K and O
[2009] FCWA 101
•31 JULY 2009
| 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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AND
O
Respondent/Mother
Catchwords:
CHILDREN - With whom a child lives - s 65DAA Family Law Act 1975(Cth) - Meaning of review ordered to permit additional evidence and to consider impact of relocation on child
"consider" - Relocation from [the Regional centre] to Perth - Interim Orders
CHILDREN - Impact of high level conflict - domestic violence - racism - cruelty to animals
Legislation:
Family Law Act 1975 (Cth) s 60CC, s 65DAA
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms G Anderson |
| Respondent | : | Self Represented Litigant |
(Page 2)
| Independent Children's Lawyer | : | Mrs B Noble |
Solicitors:
| Applicant | : | Max Owens & Co. |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Shaddicks Lawyers |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
Champness & Hanson [2009] FamCAFC 96
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
G & C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane [2009] FamCAFC
Re F
Litigants in Person Guidelines (2001) FLC 93-072
Rice and Asplund (1979) FLC 90-725
Sealey & Archer [2008] FamCAFC 142
Taylor & Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
(Page 3)
1 These proceedings concern eight year old [Harry K]. [Harry’s] parents have
been fighting about him for most of his life and have now finally had a trial in which
their many grievances have been aired.
The primary issue
2 The mother wants [Harry] to live with her in Perth, where she has recently taken up residence after living in [the regional centre] for many years. another unrelated boy who is the same age as [Harry].
3 The father wants [Harry] to live with him in [a nearby town], together with
4 The Single Expert originally recommended that [Harry] should live most of the
time with the mother. However, he believes the most important thing for [Harry] is stability. Accordingly, when the mother suddenly moved to Perth, the Single Expert proposed that [Harry] reside with the father pending further investigation.
5 The Independent Children’s Lawyer supports the mother’s application.
| [Harry] |
6 [Harry] was born in September 2000 and is now in Year 3. He is of above
average intelligence, but until recently had been performing very poorly at school. He was well behind his peers and his behaviour at school was appalling. There has been a significant improvement in the last 12 months, both in academic performance and behaviour. [Harry] is nevertheless still achieving below his ability and some issues remain concerning his behaviour.
7 [Harry] spent the first two years of his life living with both his parents. Their relationship was highly acrimonious and he was repeatedly exposed to their conflict.
8 [Harry] has lived with his mother since his parents separated in 2002. [Harry]
initially did not see a great deal of his father, but since 2005 has been spending regular periods with him. [Harry] continues to be acutely aware of the high level of conflict that persists between his parents.
9 [Harry] has lived in the [regional] area all his life. He attended kindergarten in
[the southern suburbs of the regional centre]. His mother wanted him to attend the school attached to the kindergarten, but his father proposed he transfer to the [the College]. [Harry] started at the [the College] in pre-primary in 2006 and remained there until the time of trial, even though the funding promised by the father for school fees dried up. [Harry’s] father has provided almost nothing by way of financial support for [Harry].
10 [Harry] lived with his mother in Perth in the weeks leading up to the trial. The
mother had previously obtained a number of Court orders (to which the father had consented) which led her to believe that she was entitled to change [Harry’s] place of residence. Nevertheless, after she moved to Perth, the father was successful in obtaining orders requiring the mother to return [Harry] to [the regional centre]. She was unable to
| (Page 4) | |
| do this; however, she drove [Harry] back to [the regional centre] for school almost every day for the last few weeks of the school term. | |
| 11 | [Harry] has been a member of [a football club] for the last few years. The father |
| coaches [Harry’s] team, which is based in [another town]. The team trains on Wednesday afternoons and the games are currently on Saturday afternoons. [Harry’s] father also conducts a soccer clinic in [his home town] on Fridays. [Harry] is doing well at soccer and very much enjoys the sport; however, he is only able to play each alternate weekend when he is with his father. [Harry] is also a paid up member of [a soccer club in Europe] and is encouraged by his father to take an interest in that team’s progress.) | |
| 12 | [Harry] is also enrolled in scouts in [his fathers town]. There have been issues |
| about him being a full member of the pack because he can only attend every second weekend. He also enjoys this activity. | |
| 13 | [Harry] does not play soccer when he is with his mother. She made enquiries |
| about him joining a [regional] team but was informed that he could only be a member of one team in the region. The mother has, however, for many years been taking [Harry] to swimming lessons with other children. She also enrolled him in karate. The father complained that [Harry] was too young for that sport and he no longer attends. |
[Harry’s] parents
14 [Harry’s] father is [Mr K]. The father:
• was born in [Europe] and is aged 45 years; • has been unemployed for many years; • lives in [a town] about 37 kilometres inland from [the regional centre]. 15 [Harry’s] mother is [Ms O]. The mother:
• was born in [Europe] and is aged 33 years; • until becoming unemployed recently, worked as an assistant accountant (as well as working a second job and studying part time); • previously lived in [a suburb of the regional centre], but recently took up residence in [a Perth suburb], [a considerable distance from the regional centre].
[Charley Hampson]
16 The father has another child living with him. He is [Charley Hampson], who was born in November 2000, just two months after [Harry].
17 [Charley] has no biological connection with the father. He is the only child of
[Mrs Hampson]. [Mrs Hampson] is a 37 year old [European] woman who used to be
friends with both [Harry’s] parents.18 [Mrs Hampson] and [Charley] moved in with [Harry’s] father when
| [Mrs Hampson] left her husband in February 2003. [Mrs Hampson] relocated to [the Eastern states] in October |
| (Page 5) |
2006, leaving [Charley] behind in the care of [Harry’s] father. [Charley] had been enrolled in [the College] and was in the same class as [Harry]. He remained there until September 2006 when he transferred to the [local] school.
19 [Charley] went to [the Eastern states] to live with his mother for the first two
school terms of 2007. He then came back to [Harry’s] father. [Charley’s] mother returned to [town] in 2008, but [Charley] continued to live with [Harry’s] father. [Charley’s] mother visits him regularly and [Charley] also visits his mother in her home.
20 [Charley] calls [Harry’s] father “Papa” or “Dad”. Although [Charley] originally
had supervised contact with his own father, he now does not see him at all. It is claimed that [Charley’s] father has mental/emotional problems and once threatened to kill [Charley’s] mother in the presence of [Charley] and a friend of [Charley].
21 [Charley] does not see his paternal grandparents, even though they live in [the region] and previously took some interest in him.
Mother’s background and education
22 [Harry’s] mother was born in [Europe] in 1976. Her father died when she was a baby. She was raised in what she described as a happy and close extended family.
23 The mother attended the same school for 11 years and claims to have had many
friends. She was a good student and went straight to university where she studied
economics, as well as undertaking extracurricular studies in art and music.24 [Harry’s] maternal grandmother is 56 years of age. She has worked as an
economist in [Europe]. She has spent a lot of time in Western Australia with her
daughter and [Harry]. She is planning to take up full-time residence in Perth.
Father’s background and education
25 [Harry’s] father was born in [Europe] in 1964. He was educated in that country
and claimed in his affidavit that he had completed “vocational training for a diploma in advanced finance”. He refers to himself as a “merchant banker”. He stubbornly refused to answer questions designed to establish that he did not have any tertiary education. The impression I gained is that the father, who comes from a wealthy family, is embarrassed that he does not have any tertiary qualifications. In particular, the father does not like being compared, as he would see it unfavourably, with [Harry’s] mother who was a high achiever at school and has a tertiary education.
26 The father finally acknowledged that he obtained his “diploma” without
undertaking any study. In this regard, I note that in the affidavit he filed for the trial in October 2005 (which I was assigned to hear), the father referred to his qualification as being an “International Diploma in Finance from the Industry of Trade, Chamber and Commerce” and claimed it was “the equivalent of a university degree in Australia”.
| (Page 6) | |
| 27 | The father left [his hometown] when he was about 21 and went to work in |
| [the capital city], where he remained for two years before he moved to London. He worked in London with “financial institutions” for six years. Whilst he was there the father met an Australian woman. He married her and they came to [the Eastern states] together in 1990. The marriage only lasted two years after the move, but the father was nevertheless able to secure Australian citizenship. | |
| 28 | The father claims he had difficulty obtaining work in Australia because of the |
| recession. He said he had “a number of short term jobs [before] establishing a property maintenance business contracting to [a friend]”. He took umbrage when I referred to his business as that of a “handyman”. When asked about his “short term jobs” he said he had installed a computer system in a firm of motor trimmers over a period of 18 months. He has not worked for the last ten years. | |
| 29 | The father has received a great deal of financial support from his parents. The |
| mother claims that the father’s parents are divorced. She says she was told this by the father and saw evidence of it when they visited [Europe] together. [Harry’s] grandmother was living in [the capital city] with a man called [Mr Z]. The grandfather was allegedly living with another woman hundreds of kilometres away. | |
| 30 | The father steadfastly denies the mother’s allegations. He acknowledges his |
| parents “live” in different cities, but says they “reside” in [the one capital city]. He acknowledges that his mother and [Mr Z] lived in the same residence from when he was a young boy; however, he refutes any romantic association, saying his mother and [Mr Z] were school friends who “found each other after the war”. The father describes [Mr Z] as his “uncle”. [Mr Z] is [Harry’s] godfather and was the source of funds for the [the College] fees. [Mr Z] died in 2007. | |
| 31 | It is unnecessary for me to form a concluded view concerning the marital status |
| of [Harry’s] grandparents. There are, however, many indicators that they are estranged. They live in different cities. They have both travelled to Australia to see [Harry’s] father, but have never come together. Although they have lent funds to [Harry’s] father, they have done so separately and the debts are secured by separate mortgages. The grandmother lived for decades with another man who left her his entire estate. |
The parties’ relationship
32 Neither the mother nor the father volunteered any information about the
circumstances in which they met and married, save that the mother recorded that the
father was “my first boyfriend, my first lover and my first man”.33 It transpired from my questioning that the parties met over the internet. At the
time, the father must have been about 32 and the mother 20. The mother was only able to communicate with the father in rudimentary English and German (the father apparently spoke no other language.)
34 After communicating over the internet, the father (in company with “Uncle”
[Mr Z ]) travelled to [Europe] to meet the mother. Within a matter of weeks, they were married in April 1997. They spent a very short time together before the father returned to Australia. Later that year they spent a few weeks together in [Europe].
| (Page 7) | |
| The father once again came back to Australia without the mother. She ultimately secured entry into Australia in August 1998. | |
| 35 | The mother and father initially lived in [the Eastern states], where the father had |
| been living. They remained there until they moved to [the regional centre] in November 1999. The father says they relocated because this was the only way they could afford to buy a house. He acknowledges the mother was not happy in [the regional centre]. He says she complained that [the region] was “backward” compared to [the Eastern states]. | |
| 36 | In March 2000 the father and mother bought a block in [the suburbs], a small |
| community just north of [the regional centre]. The deposit was provided by “Uncle” [Mr Z]. They borrowed money and constructed a house on the land. | |
| 37 | The mother fell pregnant with [Harry] shortly after arriving in Western |
| Australia. At around the same time, she commenced studying English at the [regional] TAFE, having previously attended a similar institution in [the Eastern states]. | |
| 38 | The father acknowledges they had a disagreement soon after the mother found |
| out she was pregnant. He cannot remember what the argument was about, whereas the mother recalls that he wanted her to terminate the pregnancy. In any event, the father says the mother told him she could see no reason for them to live together any longer and she went back to [the Eastern states]. After a few days she decided to return to [the regional centre]. This is not surprising given that (as the father pointed out) the mother had limited English, no money, no accommodation and no personal support. | |
| 39 | [Harry] was born [in] September 2000. After his birth the mother gave up her studies, but went back to study English and accounting at TAFE in February 2001. |
| 40 | The parties had never enjoyed a good relationship from soon after they |
| commenced residing together. Their relationship deteriorated badly in [the regional centre]. The mother left the home with [Harry] on 28 November 2002. |
Relevant history of proceedings
41 The parties have been litigating ever since the mother commenced proceedings
within a few days of the separation. I will not traverse the entire history; however, it is necessary to trace some of the background. In particular, it is important to ascertain why the mother believed she was entitled to relocate to Perth shortly before the trial.
42 The proceedings originally concerned both [Harry] and money. At the time of
separation the mother was not interested in pursuing a financial settlement. Her overriding interest was to provide a safe home for [Harry]. I accept that she decided to pursue a settlement to fund legal representation to ensure [Harry] lived with her (which is how the money was ultimately spent).
43 The father responded by seeking an order for residence of [Harry]. At the first
hearing in December 2002 the father consented to an order that [Harry] reside with the mother and spend time with him two days each week from 9 am to 5 pm. He says he agreed to this on the basis that he intended to seek overnight time with [Harry] after a short period of daytime contact.
| (Page 8) | |
| 44 | Shortly after the first hearing, the mother informally agreed to the father |
| exercising overnight contact on three occasions. She then did not respond to the father’s proposal for this to become a regular arrangement (two nights each week). The father claims the mother said she did not want to continue the overnight regime because it affected her pension entitlements. The mother denies this. In any event, the father then applied in February 2003 for overnight contact. An order was made for him to have [Harry] overnight twice each fortnight (with one additional daytime period). This order, necessarily, involved six handovers each fortnight. | |
| 45 | The parties shortly thereafter (in March 2003) agreed in writing that instead of |
| the arrangement ordered by the Court, the father would have two consecutive nights a week with [Harry]. The father claims the mother then reneged on this arrangement and he says he was prevented from seeing [Harry] for about a month. The mother claims this private arrangement involved handover at the [regional] Hospital and that the father simply did not turn up at the hospital for weeks in a row. | |
| 46 | At the same time the mother accepted this settlement, which she says was much |
| less than what she was advised she should receive, the father agreed to a new contact regime. Instead of the two overnight periods each fortnight which had been ordered in February 2003 (and instead of the two nights each week the parties had agreed) the father consented to an order that [Harry] see him only one weekend each month from Saturday morning to Monday morning. | |
| 47 | The father says he made this agreement against the advice of his solicitor. He |
| claims his strategy was that if he agreed to have [Harry] for just one weekend each month he would be sure to see him, whereas he had been experiencing problems in gaining the more frequent contact previously agreed. He also places emphasis on the fact that the orders provided that he could have additional time with [Harry] as agreed with the mother and he says he thought this would occur. In my view the father’s evidence is entirely self serving. | |
| 48 | Although not noted by the father in his summary of the history, the 2003 orders |
| also provided that each parent was prevented from making [Harry’s] place of residence anywhere outside a radius of [several hundred kilometres] from [the regional centre]. The mother was also required to advise the father of any change of residence. | |
| 49 | The clear implication is that consideration was given to the mother relocating – |
| almost certainly to Perth – and that the father agreed she could. There has never been any suggestion that the father has wanted to move away from the [regional] area, hence the permission to relocate was intended for the benefit of the mother. | |
| 50 | Eighteen months later (December 2004) the father commenced proceedings |
| seeking to extend his time with [Harry] to alternate weekends and half of school holidays. Notwithstanding the earlier agreement, the father proposed that both parents be restrained from changing [Harry’s] place of residence to any place more than 100 km from [the regional centre]. | |
| 51 | The father claims he commenced these proceedings because he was disappointed the mother had not allowed him more time with [Harry] than specified in the 2003 |
| (Page 9) | |
| orders. The father also says the mother had informed him she intended to move to Perth (which she was, of course, permitted to do). | |
| 52 | In January 2005 the parties signed a Minute which varied parts of the 2003 orders. The Minute made provision not only for the handover arrangements whilst the mother lived in [the regional centre], but also for handover when the mother was residing in Perth (i.e. at the [nominated] Police Station). The proceedings were adjourned to a conciliation conference. The issues were not resolved at that conference and the matter was ultimately listed for trial in [regional] in October 2005. |
| 53 | In the meantime, there had been correspondence concerning [Harry’s] schooling. |
| In March 2004 the mother had given notice of intention to enrol [Harry] in the [local] school in 2005. The father had responded by proposing he attend the [the College] with “Uncle” [Mr Z] paying the fees and expenses. | |
| 54 | In her affidavit filed in July 2005, the mother said she agreed with the father’s proposal; however, she stressed (as she had done in earlier correspondence): |
“this arrangement would need to be long – namely until the end of year seven as it would not be in the child’s best interest to have educational organization change unnecessarily as relationships etc with his peers and friends are paramount in child’s development. Saying this I would like to note that my own personal circumstances change For whatever reason, I would not be prejudiced to remove him from Mentioned institution”. [In this and later citations from the mother’s letters and affidavits, the precise spelling and punctuation has been used.]
55 As previously noted, the trial in October 2005 was listed before me. The father
was represented by his long-time solicitor and the mother was self represented. After two days of negotiations the matter was settled – save for some minor issues which I resolved. The consent orders provided for:
• the mother and father to have joint responsibility for [Harry’s] long term care, welfare and development; • the father to spend time with [Harry] each alternate weekend from 3.00 pm on Friday until 8.30 pm on Monday (or Tuesday in the event of a long weekend); • the father to have [Harry] for one week in the term holidays and for two weeks during the 2005 Christmas holidays (and then increasing to three weeks). 56 Most importantly, the orders went on to provide that if the mother lived in Perth,
the changeovers would occur at the [nominated] Police Station. Provision was also
made for variations in the times for weekend contact if the mother moved to Perth.57 These orders replicated the provision in the 2003 orders by which both parties
were restrained from changing [Harry’s] principal place of residence outside a radius of [several hundred kilometres] from [the regional centre]. The orders also provided for each party to give 14 days’ notice of any change of address.
58 The preamble to the October 2005 Minute indicated that the orders were made:
| (Page 10) |
| “upon the intention of the parties to enter into a Child Support Agreement whereby the father agrees to pay enrolment fees, school tuition fees and book bonds and school uniforms until [Harry] completes his school education”. |
59 At the time the Minute was agreed, the parties signed the child support
agreement. The preamble indicated that the father had agreed to meet the costs of [Harry] attending the [the College] “until [Harry] finalises his secondary education”. Significantly, the words “until [Harry] finalises his secondary education” were added in handwriting at the insistence of the mother. The preamble also noted that the agreement had been entered into “on the basis of the child’s godfather [Mr Z] agreeing to assist the father financially by providing to the father funds, from time to time, to enable the father to pay the school fees and uniform expenses …”
60 The operative provision is set out below. The portions emphasised were alterations made to the original document at the mother’s request.
1. That, in addition to any obligation to pay child support under an assessment, the father shall, while the child attends the [the College], or such other school as agreed between the parties:
1.1 Pay all the child’s enrolment fees, school tuition fees and book bond in advance before the commencement of each year 1.2 Pay for such school uniforms as required from time to
time by the school.1.3 The father shall pay the invoices for the expenses to clause 1.1 and 1.2 within 14 days of receipt of such invoices.
61 Arrangements were then put in place for [Harry] to commence at the [the
College] in 2006. However, as the start of the year approached, the mother became concerned that the father had not, and would not, honour his commitments and decided she would not allow [Harry] to commence at the school.
62 The father then commenced proceedings to ensure that [Harry] attended the
College. His application also sought an order that the mother comply with an earlier order requiring her to authorise any school [Harry] attended to provide information to the father. The father proposed that if the mother did not comply with this requirement [Harry] should reside with him. The mother responded by seeking some variation of the existing orders, but also sought an order preventing the father from coming to [Harry’s] school except when picking up or dropping off.
63 On 20 February 2006 orders were made for [Harry] to attend the [the College].
This order was made over the mother’s opposition. [Harry] then commenced attending the College – albeit some weeks after the other students – and the proceedings were adjourned to a conference.
| (Page 11) | |
| 64 | Prior to the conference, the mother filed an interim application seeking |
| clarification/variation of the October 2005 orders. The mother also filed another interim application to vary the orders; however, the changes were relatively minor and in many respects only sought to clarify matters which were unclear. | |
| 65 | In September 2006 an interim order was made preventing the father from |
| attending at [Harry’s] school on Tuesdays, Wednesdays and Thursdays. This order precipitated [Charley’s] removal from the College, as the father had been picking him up and dropping him off at school. | |
| 66 | On 19 January 2007 orders were made by consent, once again “resolving” all |
| issues. These orders continued the operation of the injunction concerning the father’s attendance at the school. Otherwise, the orders made only minor changes to the father’s time with [Harry]. | |
| 67 | The 2007 orders also made provision for [Harry’s] continued enrolment at the |
| [the College] and the circumstances in which he might be removed. The orders were in the following terms and were expressed to be “until further Order”: |
“5.1 The parties shall enrol [Harry] in the [the College] (“the school”)… 5.2 The mother shall, subject to the school requiring the item, select for
purchase the school uniforms for [Harry].5.3 The father shall pay, as and when the same falls due, the school enrolment fees, school tuition fees, stationery and school uniforms as selected by the mother under Order 5.2. … 5.4 Should there be a dispute between the parties as to whether any particular item referred to in paragraph 5.2 is required by the school for [Harry], or when payment of the same falls due under Order 5.3, the parties shall join in with each other and seek a determination from the school as to their requirements, and the school’s determination of the issue shall be binding and final between the parties. 5.5 Subject to the parties’ compliance with Order 5.4, the mother shall be at liberty to remove [Harry] from the school if his enrolment fees and school tuition fees are not paid by the due date, provided that she first gives the father 30 days written notice of her intention to do so following the due date for payment of school fees. 5.6 Except without leave of the Court, or as expressly provided for in Order 5, the parties shall be restrained by injunction from removing [Harry] from enrolment and attendance at [the College], except with the written consent of the other party.” 68 On 19 July 2007 the father filed yet another application. This commenced the round of proceedings which I am now determining. The substantive order sought was
| (Page 12) | |
| for [Harry] to spend “substantial and significant time” with the father. This was to be each alternate week from after school on Wednesday until the commencement of school on Monday (or the next school day in the event of a public holiday). | |
| 69 | The application also sought that [Harry] spend half of all school holidays with |
| his father (as the existing orders did not quite provide for the father to have half). The father also applied to take [Harry] on holiday to [Europe] (his previous application to do this having been dismissed in 2006). | |
| 70 | In February 2008 the mother filed an interim application seeking make up time |
| arising out of the father having allegedly wrongfully retained [Harry] for three nights during the school holidays. The mother filed an affidavit in which she said: |
“I am not agree for my ex-husband to have extro time with my son, as he have already a lot more time compere to other father’s. Also,last Court Orders made not long time ago and nothing was changed in chield’s life.
I am in process to filed relative documents for relocation from WA to
[the Eastern states], as I do have a relevant reasons for it.”
71 In fact, just before filing this affidavit, the mother had taken [Harry] to
[the Eastern states] for a holiday. It appears she attended a wedding and that the trip
involved the man with whom she is now in a relationship.72 On 25 February 2008, presumably prompted by this turn of events, the father
filed an amended application in which he sought that [Harry] reside with him and
spend “reasonable time” with the mother.73 In March 2008 the father filed a contravention application arising out of the
mother having not made [Harry] available on the weekend commencing 8 February 2008 when she was in [the Eastern states]. The mother had written to the father’s solicitor on 7 February 2008 (the letter having apparently been delivered by the mother on the afternoon of 8 February 2008) advising that [Harry] would not be available that weekend. The letter proposed make up contact when the mother came back. The mother also provided a telephone number where the father could contact [Harry]. The father did not receive notice of the letter and he turned up at [Harry’s] school (with his father who was visiting from [Europe]) only to find [Harry] had been removed early.
74 The October 2005 orders had provided that if [Harry] was “unavailable for
contact for any reason”, the mother was to allow “make up contact equivalent to the period of contacts missed on the non-contact weekends following…” Presumably it was the terms of this order that led the mother to consider she was entitled to remove [Harry] on the father’s weekend. In any event, having initially agreed to make up time following her return, the mother realised she had offered the father time on a long weekend. She then unilaterally announced that the father would instead have his make up time on the weekend after the long weekend. The mother was later found “guilty” of contravening the orders.
75 In February 2008 the parents attended a conciliation conference. The file note indicates that the mother “flagged an intention to apply for relocation”. Given this
| (Page 13) | |
| development, the Registrar who conducted the conference requested the appointment of an Independent Children’s Lawyer. | |
| 76 | In March 2008 the mother filed a Response in which she sought permission to |
| relocate to [the Eastern states]. At some stage the mother also indicated she might want to move to Melbourne, but I have not seen any document in which that proposal was formally raised. In any event, at a conference held on 3 April 2008 the mother advised that she wished to relocate to [the Eastern states] as soon as possible. | |
| 77 | On 15 July 2008 the father’s solicitor filed an affidavit in which he said he had |
| been informed by the Independent Children's Lawyer that the mother was no longer proposing to relocate. At some stage the mother did decide she was not going to pursue the move to [the Eastern states] but it is not apparent when this occurred or when this was communicated to others. (I note from consideration of the transcript of proceedings on 3 June 2009 that the mother had not abandoned all hope of obtaining permission to move to the Eastern states.) | |
| 78 | On 17 September 2008 an order was made for the appointment of [Dr M] as the |
| Single Expert. [Dr M] is a highly experienced clinical psychologist, with a degree in social work. He has an extensive background in mental health settings and the criminal and civil justice systems. He has experience in child protection and completed his doctoral thesis in family law. | |
| 79 | The Single Expert interviewed [Harry] in November 2008 and in January 2009. In February 2009 he sought an extension of time to provide his report. He had almost completed the report when he received advice from the father that there was “no longer any funding capacity” to keep [Harry] at the [the College]. The Single Expert advised that [Harry’s] education had been a significant focus of his examination and research. He considered his assessments and research would need to be reviewed and therefore suggested that the report be delayed until the end of first term. |
| 80 | The parties attended a conference in February 2009, but the matter could not be resolved. The proceedings were adjourned to a pre-trial conference on 26 June 2009, apparently in the expectation that if the matter did not resolve it would be listed for trial in October 2009. There were, however, discussions at the conference concerning the “recent” death of [Mr Z] and [Harry’s] school fees. This will be discussed at greater length later, but it is sufficient to say here that [Harry’s] father had no proposal to pay the fees and [Harry’s] mother assumed responsibility for them. |
| 81 | The Single Expert’s report was finally distributed in early May 2009. The report |
| recommended that [Harry] remain at the [the College] and receive private tutoring five days a week. The Single Expert put forward a carefully formulated program which was designed to maximise [Harry’s] involvement in his soccer club. This would have involved [Harry] taking the school bus to [town] for training each Wednesday afternoon and remaining overnight with his father; then coming back to his father on Friday night for the game on Saturday, before returning to his mother on the Sunday morning. By this means [Harry] would spend three nights a week with his father and four nights with his mother. | |
| (Page 14) |
The mother’s move to Perth
82 In the meantime, whilst the parties awaited the Single Expert’s report, which had been commissioned seven months earlier, there had been another turn of events.
83 The mother had been planning to leave [the regional centre] from when she first
moved there nearly 10 years ago. She yearned for a life in a bigger city where she and [Harry] would have more opportunities. She had remained in [the regional centre] after obtaining permission to leave only because she wanted to improve her English, finish her tertiary education and obtain financial security. She had also made friends in [the area].
84 Although the mother had originally been concerned about [Harry] attending the
[the College], she had come to accept his attendance there and believed, as it transpired with good reason, that he was starting to make progress. She had been adamant that [Harry] would not change schools unnecessarily and she took on extra work to ensure that he could remain at his school when the father advised funds were no longer available for this purpose.
85 The event that precipitated the mother’s relocation was her dismissal from her
employment with a firm of accountants. Although the mother was told this was due to the economic downturn, I consider she was justified in suspecting it may have had more to do with the time she was devoting to these proceedings. The mother felt she had to sell her home urgently to avoid an adverse credit rating which she believed would upset her plans for a stable economic future. The mother had also been forced to terminate [Harry’s] tutoring as she no longer had the funds.
86 The mother searched on the internet for positions and ascertained there were
greater opportunities in Perth than [in the regional centre]. In accepting the mother’s evidence I have not overlooked that, by accident or design, she used different parameters when comparing available jobs. There were 1,076 jobs on “Seek” matching “Accounting in Perth” and only two matching “Full Time, Accountant and tax in [the regional centre]” (neither of which was suitable).
87 The timing of the decision to move to Perth might have given rise to suspicion
that the mother’s actions were in response to reading the report of the Single Expert in which he recommended that [Harry] should reside with the father three nights a week. I accept, however, that the mother had been dismissed and begun the move to Perth before receiving the report in early May 2009.
88 On 29 April 2009 the mother had signed and delivered a document to her
university (which is a major institution with more than one campus in Perth). This was a form to be completed by students wishing to discontinue/intermit their course. The mother wrote on her form, “I am relocated/moving to Perth. I would like to withdraw from Semester 1 2009 and I will come back to study in Semester 2, 2009”. The mother also noted that she wished to withdraw from one unit.
89 The legal framework in which the mother relocated can be seen from this
chronology. The mother had taken advice about the move and was advised that all she was required to do was to give the 14 days’ notice. There is no doubt she was entitled to move [Harry] to anywhere within 300 km from [the region]; however, there was an
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| issue as to how this fitted with the orders requiring [Harry] to remain at the [the College]. In this regard, the mother was clearly entitled to remove [Harry] from the school if the father ceased paying the fees, provided she gave 30 days’ written notice. |
90 By letter dated 14 May 2009, the mother wrote to the father’s solicitor saying:
“I would like to follow court order and I would like to inform your client [Mr K] 2 weeks in advance that we are moving in 2 weeks time. Our new address is [in the suburb]”.
91 The mother also advised that she proposed [Harry] would attend the school near her new home, which she had visited with a view to enrolling him.
92 On 15 May 2009 the mother signed a 12 month tenancy agreement for her new
home. Although this was not alluded to at trial, I note that the agreement provides for
a maximum of two occupants in the residence.93 The father took prompt action upon being alerted to the mother’s proposed
relocation. On 20 May 2009 his solicitor sought an urgent listing before the Court. On the same day the Independent Children's Lawyer advised the Court that she supported the father’s application to restrain [Harry’s] removal from the [the College]. She also said that “in accordance with the recommendations of the Single Court Expert a move to Perth is also opposed”.
94 On 22 May 2009 a Magistrate made an ex parte order restraining the mother from changing [Harry’s] place of residence from “the City of [the region] or the from the Shire of [the region]” without leave of the Court and also from removing [Harry] from the [the College].
95 The proceedings were then adjourned to 29 May 2009 at which time the mother
indicated she had moved to Perth the previous day, being the 14th day after she had given notice. The mother also informed the Court that she had only received notice of the injunction on the day she moved. She repeatedly drew the Magistrate’s attention to the earlier orders which had been made permitting her to change [Harry’s] place of residence. The Independent Children’s Lawyer advised the Magistrate that she supported the mother remaining in Perth with [Harry] and she also informed the Court she had spoken by telephone with the Single Expert who was of the same mind.
96 The proceedings were nevertheless adjourned again to 3 June 2009. The
Magistrate indicated that he was adjourning the matter for those few days because he believed “we owe it to the father for the expert to qualify – if the expert is so minded – his views”. He asked the Independent Children's Lawyer to liaise with the Single Expert and put to him this question: “You did say in these strong terms in your report – are you quite satisfied now that under the new regime and new circumstances [Harry] is better off with the mother in Perth?” The Independent Children’s Lawyer undertook to put that question to the Single Expert that same day.
97 The Single Expert interviewed the father and [Harry] by telephone on 30 May 2009 (and the mother by telephone on the following day). He also spoke with the
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| three school principals who ultimately gave evidence in the proceedings to ascertain what support [Harry] would receive if he attended their school. | |
| 98 | The Single Expert then published a supplementary report on 2 June 2009 recommending that [Harry] reside with the father pending further investigation of the new arrangements. On the following day the Magistrate made an order directing the mother to return [Harry] to the [regional] area. The mother had only just been provided with the supplementary report and had been unsuccessful in her repeated applications for an adjournment for legal advice. During the course of the hearing the Magistrate sought a “solemn undertaking” from the mother that she would return to [the region] with [Harry] that night and asked her to understand that he had “reposed trust” in her “for the continuation of custodial role”. He made clear, however, that the mother could apply for an interim order for relocation and assured her such an application would be heard within about three weeks of filing. |
| 99 | On 4 June 2009 the mother formally applied for an interim order allowing her to |
| relocate to Perth. The application was listed for hearing on 16 June 2009 but came before another Magistrate. This Magistrate did not appreciate that the previous Magistrate intended that the mother be given an opportunity to present her case for interim relocation (although counsel for the father and the Independent Children's Lawyer informed him that liberty had been granted for the application to be made). The Magistrate ruled that the matter had already been determined by the order of 3 June 2009 requiring the mother to return [Harry] to [the region]. He therefore simply adjourned the proceedings to the pre-trial conference already listed for 26 June 2009. He gave the mother liberty to bring her application back before the previous Magistrate after the pre-trial conference. | |
| 100 | The mother applied to the Court again on 17 June 2009 on the basis that she had |
| been unable to secure short term rental accommodation in [the region] and her furniture and possessions had already been moved to Perth. She also sought a stay of the earlier orders. The mother’s application for a review of the decision refusing an urgent listing of that application was unsuccessful. | |
| 101 | In compliance with the spirit of the orders, the mother began driving [Harry] |
| back and forward to [the regional centre] so he could continue at the [the College]. The mother claimed (albeit only in the course of cross examining the Single Expert) that on the last day of the school term, [Harry’s] classmates had been informed he was moving to Perth. The mother said she had bought sweets for the class and everyone said their “goodbyes”. Although this information was not provided on oath, it seems likely this happened. Certainly the school had been informed that [Harry] would not be returning and it would be expected there would have a farewell for him. |
The trial
102 It was contemplated that at the June 2009 conference the proceedings would be
set down for trial in October. However, in view of the urgency, the Registrar expedited the hearing. The trial was listed for 13 July 2009, with an estimated hearing time of two days. The parties were given until 8 July 2009 to exchange trial affidavits.
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| 103 | By way of illustration of the language difficulties involved in these proceedings, I will cite two snippets from the mother’s affidavit. It began thus: |
“First I would like to apologise for my grammar and spelling mistakes in my affidavit. English is my second sandwich and I didn’t have any Legal help with it. I did try my best.”
104 Later in the affidavit the mother wrote:
“Maybe my English grammar and spelling not is prefect but its not
describe that I am bad mother.”
105 At the commencement of the trial, noting that only two days had been allocated,
I enquired as to whether it was expected I would be making final orders or only dealing with the matter on an interim basis, as was contemplated by the Single Expert in his supplementary report.
106 The Independent Children’s Lawyer proposed that the matter be dealt with on
a final basis. Counsel for the father also expressed concerns about the matter being dealt with on an interim basis. It was only when I enquired as to whether or not the Single Expert would be available to give evidence that I was told that the expert was scheduled to attend on the third day.
107 I then drew attention to the fact that the circuit had been organised on the basis
that the matter was listed for only two days, whereupon the Independent Children’s Lawyer advised that she had always anticipated it would take three days. Counsel for the father advised that a trial of more than three days would cause her embarrassment, given prior commitments.
108 I indicated that whether the matter was to be dealt with on an interim or final
basis, it would be necessary for there to be extensive oral evidence. I also indicated that it would only be at the end of the hearing that I would be able to determine whether it was appropriate to make “final” orders.
109 Major trial management issues immediately emerged in attempting to complete
the matter in the time available. This was not only the result of the mother being self represented and her difficulty with English, but also because both parents demonstrated a remarkable capacity to prevaricate and “nit pick”. The trial was finally completed at 9.00 pm on the third day.
110 It should not be thought that all of the difficulties at trial were on the mother’s
side. She had provided her affidavit late and the father only received it on the evening before the trial commenced (minus the many attachments). Although the mother had repeated much of what she had said in earlier affidavits, the late receipt of the affidavit undoubtedly caused difficulties for the father and his counsel.
The Self Represented Litigant Guidelines
111 I drew attention at trial to my obligation to ensure the hearing was conducted as fairly as possible, given the mother was self represented. During the trial I provided
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| the mother with limited assistance on matters of practice and procedure in accordance with the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072. | |
| 112 | It is a matter of concern that proceedings as important as these were conducted |
| with only one party having legal representation. Notwithstanding that he has been unemployed, the father has always had private legal representation. The father spent around $50,000 in the proceedings which were resolved in 2005. (The costs notification was unclear as whether this related only to that round of proceedings or included earlier proceedings.) The costs notification provided for the most recent proceedings indicated that the father’s costs since November 2007 exceeded $21,000 (with an additional $15,000 to $20,000 to complete the trial). These notifications did not cover the costs incurred between October 2005 and November 2007. Accordingly, the father, who has never paid more than a pittance in child support, has been able to fund legal costs which must now exceed $100,000. | |
| 113 | Counsel for the father submitted that the mother could have obtained funds from |
| her family to meet legal costs in the same way as the father has done. I do not know the financial position of the mother’s family but it seems [Harry’s] grandmother (and mother) thought that buying a home for [Harry] had priority. The mother said that the legal paperwork now occupies five 94 litre plastic containers in her home. I can only imagine what a different life [Harry] might have enjoyed if the time spent by his parents in waging their paper war had been spent reading him stories and helping him learn to read and write. I can also only wonder what the father (or his parents) might have been able to do for [Harry] with the money spent on litigation. |
Father’s proposals for [Harry]
114 The father proposes that [Harry] will live with him (and [Charley]) in his home
in [the country town] in which [Harry] already has his own bedroom, set up with his
own possessions.115 The father does not work and would therefore be able to look after [Harry]
full-time. The father did say he was keeping his “eye open for opportunities for work” and had in mind commencing a [business]. I formed the view that he was quite content being unemployed and would remain so if [Harry] came to live with him.
116 The father proposes to support [Harry] from social security and with the $100 he
receives from [Charley’s] mother each week. His parents also assist him “from time to time”. The father’s home is fully encumbered by mortgages in favour of his parents, but he is not required to make any payments. The father would also happily receive child support from [Harry’s] mother, who is likely to work.
117 In his trial affidavit the father observed that there were two options for [Harry’s]
schooling, namely to continue attending the [the College] or to move to the school at [the local school]. The father claimed there were “some definite advantages” in [Harry] attending [the local school], but said if the Court considered [Harry] should continue at the [the College] he would send him there (with [Harry’s] grandfather being responsible for the fees). At trial, the father’s counsel advised that the proposal was that [Harry] would remain at the [the College]. The father said he would also
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| try to assist [Harry] with his reading and writing “on as near as possible to a daily basis” and would arrange additional tutoring if the school recommended it. | |
| 118 | The father proposed that [Harry] would continue to play with the |
| [the football club] and would attend scouts and have swimming lessons. In addition he proposed that on Friday afternoons [Harry] would attend a drama academy which has recently commenced in [town]. | |
| 119 | The father did not make any proposals in relation to the time that [Harry] would spend with the mother if he was successful in his application. |
Mother’s proposals for [Harry]
120 The mother proposes to continue living in Perth. She has taken a lease on a two
storey residence in [suburban Perth]. The home is near the school [Harry] would attend and is close to a shopping centre and parks. The beach and a cinema complex are nearby. [The suburb] is in fairly close proximity to the CBD where the mother might work.
121 The mother says she will not be working and studying as much as she has in the
past. She proposes not to have work or classes later than 3 pm so she can be with [Harry] after school. She is near to the end of her degree and can finish it off part time. The mother has already withdrawn from her course for two six month periods.
122 Although the mother said she would “sit on the dole” like the father if that is
what it took to ensure [Harry] lived with her, this is not her style and she could not afford it. The mother will have to work to pay her rent of $340 per week. She did give some evidence from the bar table that she has a modest surplus of rent over outgoings on the home she still owns in [the regional area]. The evidence she had earlier provided suggested this might be correct, but the funds would still not be enough to allow her to live comfortably in Perth unless she also worked.
123 The mother is likely to find work in Perth. She was successful in securing a
number of interviews when she moved to Perth, albeit she was not able to secure any of the positions because she was caught up in these proceedings. Understandably she did not want to reveal to employers why she could not start work immediately.
124 [Harry’s] grandmother is likely to be returning to Perth to take up residence
soon. She would probably live with the mother initially and then obtain her own place. She will be of assistance to the mother in looking after [Harry]. I accept the mother’s evidence that she and her mother have decided that they will start speaking English at home. This may or may not always happen, but [Harry] has sufficient [language] to be able to converse with his grandmother. She already speaks a little English.
125 The mother plans to enrol [Harry] in a local soccer club and has already made
enquiries about this. She anticipates this will be good for [Harry] and will help him meet other children in Perth. I have no doubt the mother will take an active interest in [Harry’s] soccer. I note that at the hearing on 29 May 2009 she told the Magistrate, “My son likes soccer, yes. Okay, I am from Europe, I like soccer too. More than food and everything else”.
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| 126 | Very late in the trial the mother claimed that two of [Harry’s] friends from |
| [the regional centre] ([Peter and John]) now live in Perth – the implication being that she planned on [Harry] spending some time with them. However, neither of these boys lives in close proximity. | |
| 127 | The mother proposes that the father will continue to have regular time with |
| [Harry]. She wants to keep to the arrangements agreed in the 2005 orders under which the father would see [Harry] on alternate weekends and half the school holidays. | |
| The law | |
| 128 | These proceedings fall to be considered under the Family Law Act 1975. It is important to keep in mind the relevant provisions of that legislation. |
Best interests and the objects of the legislation
129 Section 60CA makes clear that I must treat [Harry’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 are to ensure that the best interests of children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
130 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.”
131 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
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(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…”
132 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 that 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.”
133 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 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
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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.
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
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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.”
134 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 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
135 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.
136 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.
137 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.
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| 138 | 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. |
| 139 | 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).) | |
| 140 | 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 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. |
Controversy concerning the interpretation of s 65DAA
141 In a paper delivered at the National Family Law Conference in Adelaide in April
2008, the eminent commentator, the Honourable Professor Richard Chisholm, expressed concerns about the drafting of s 65DAA and the Full Court’s analysis of that provision in Goode, in particular the reference to s 65DAA as suggesting “a consideration tending to a result”. In order to appreciate his argument, it will be helpful to set out s 65DAA(1), which I have earlier only paraphrased:
“(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
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142 Professor Chisholm expressed his concerns about this subsection and the Full Court’s analysis in Goode as follows [footnotes omitted]:
“The drafting problem is this: since the child’s best interests are the paramount consideration, once the court has found that a particular order (here, equal time) is in the child’s best interests, and is reasonably practicable, so far as I can see the court would obviously go ahead and make that order. Doing anything else would be making an order that was not best for the child, and doing that would seem to be contrary to the principle that those interests are to be the paramount consideration. The word ‘consider’ is therefore mis-used in paragraph (c), because it suggests that there remains something else to be taken into account in deciding whether to make the order. The subsection should have stopped before paragraph (c).
The problem is not quite solved by the Full Court’s analysis in Goode. The Full Court quotes some perfectly appropriate authorities on the meaning of ‘consider’ – they contain no surprises. But then it says that the meaning of ‘consider’ in those decisions is ‘not entirely apposite to the meaning of the word in s 65DAA’. This is said to be so
because the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, of the need to consider positively the making of the order, if [the conditions in paragraphs (a) and (b) are met.]
The problem with this, I think, is that it treats the word ‘consider’ as having the same meaning in all three paragraphs. What I think the Full Court should have said is that the authorities cited were entirely applicable to the meaning of the word ‘consider’ in paragraph (a) and (b). As to paragraph (c), I think it should have said that despite the word ‘consider’ in paragraph (c), once the court has found that an order for equal time is in the child’s best interests, and is reasonable practicable, since the child’s interests are paramount, the court will ordinarily, if not inevitably, make that order. It is in this sense, and this sense only, that it can be said to be ‘tending to a result’.
The reason I think it worth bothering with this apparently pedantic point is that if the Full Court’s remark about ‘tending to a result’ is not understood as confined to paragraph (c), it could be taken to indicate that s 65DAA as a whole tends towards orders for equal time; or, in other words, that it creates something like a presumption favouring equal time. I am confident that the Full Court did not mean this, since such a statement would be quite wrong. It is crystal clear that the court’s obligation under the section is, essentially, to pay attention to whether equal time would be in the child’s interests – and, if it is, then of course to make the order. ‘Consider’, in paragraphs (a) and (b), means precisely this, as it does in the administrative law cases cited by the Full Court. The quote from the Full Court would be correct if their Honours had said that the administrative law definitions were not apposite to the meaning of the word ‘consider’ in
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s 65DAA(c). I suggest that this is what the Full Court must have meant to
say.”
143 I would venture, with utmost respect to Professor Chisholm, an alternative
approach to the interpretation of s 65DAA, which would have the benefit of allowing the word “consider” to be interpreted consistently wherever it appears in the section. As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 [my emphasis added]:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”
144 I acknowledge these words may be treated as “the counsel of perfection” (see
Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed., Butterworths, Australia, 2001 at [4.5]), and that it is legitimate for a court to give a different interpretation to the same word, even when construing the words of just one section of an Act. Nevertheless, in my view, an approach which allows the same meaning to be given to the word “consider” in the many places in which it appears in s 65DAA is to be preferred over an approach requiring differing meanings, provided the interpretation is consistent with the objects of the Act and the paramountcy provision.
An alternative approach to s 65DAA
145 The interpretation I propose for the word “consider” achieves the objective of
consistency and also sits comfortably enough with the formulation in Goode concerning “the need to consider positively” the making of certain orders. I accept, however, that it may not sit quite so comfortably with the alternative formulation proposed in Goode of “a consideration tending to a result”.
146 My interpretation of “consider” stems from asking two questions: Why would
Parliament merely require the Court to “consider” making an order that is both in the best interests of a child and reasonably practicable when the Court’s fundamental obligation is to make orders that are in the best interests of the child? Why not instead require the Court to make such an order?
147 The answers can be provided by recognising that there may be a number of
possible outcomes that could be seen as promoting the best interests of the child and being reasonably practicable. Life is full of occasions when two different but tempting scenarios present themselves, with what may appear to be an equal measure of “pros and cons”. When faced with such alternatives, the competing factors are usually weighed before identifying those that ultimately make one outcome more appealing than another. Sometimes the final decision is made on the strength of nothing more than a “gut feeling” on the part of the individual, couple or family making the
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| decision. On other occasions, it will be a matter of deciding whether short-term or long-term advantages are to be given greater weight. | |
| 148 | The judicial officer given the task of making decisions for families employs |
| a process of reasoning which arguably is not dissimilar to that employed by families when weighing up the benefits of competing scenarios. One important difference, of course, is that families might choose the option that is seen as best for the family as a whole (or sometimes just for one member of the family), whereas the judicial officer must treat the child’s best interests as paramount. | |
| 149 | The judicial officer will carefully assess all of the available outcomes and select |
| the one that stands out from the others. Selection of that outcome does not mean that the other options were not in the child’s best interests, it just means that the option which found favour was considered the “best” available. Having undertaken this process and come to a decision, the judicial officer will have discharged the legislative requirement to “consider” making all orders that would have been in the child’s best interests. | |
| 150 | This approach to the interpretation of “consider” can be best understood when |
| applied to that range of cases in which there appears to be only a marginal difference between the competing proposals. Take, for example, a dispute as to whether a child will attend one excellent school instead of another excellent school. Or a dispute about where a child will live, when both parents are outstanding parents, but a shared care regime is impracticable. It would be straining the language in such cases to say that the proposal which was rejected was not in the child’s “best interests”. | |
| 151 | Discussion of the legislation has hitherto proceeded on an unstated assumption |
| that there can be only one outcome that is in a child’s best interests. If indeed such an assumption was correct prior to 2006, the way in which Parliament has chosen to amend the legislation requires reassessment of the language of the statute. |
Relocation cases – best interests and reasonable practicability
152 Relocation cases are notorious for presenting options which whilst being starkly
different in outcome can be seen as potentially likely to promote the child’s best interests. The parties involved in such cases are often outstanding and highly committed parents. Many of them (although not those involved in the present matter) have never needed to involve the Family Court in resolution of any issue concerning their child. Such parents do not generally make proposals that are contrary to their child’s best interests.
153 The judicial officer given the task of deciding such disputes may see great
benefits to the child associated with the proposed move to a new locale (or a return to a former locale) and at least as many benefits to the child associated with staying where they are. On the interpretation I have proposed, both outcomes may be assessed as being in the child’s best interests. This is arguably why judicial officers so frequently say that they have found the decision in a relocation case to be excruciatingly difficult.
| (Page 28) | |
| 154 | The “reasonable practicability” of the possible outcomes will assume crucial |
| significance in relocation disputes, especially when the relocation is to a distant place. In such cases, if only one parent relocates, it is not generally practicable for children to spend equal time with each parent. It is also usually difficult to craft orders permitting children to spend substantial and significant time with the parent left behind. | |
| 155 | The Full Court discussed these and other issues in Taylor & Barker (2007) FLC 93-345. The majority of the Full Court (hereafter “the Full Court”) acknowledged at [53] that prior to the 2006 amendments the preferred approach in relocation cases had generally been not to treat the relocation proposal as a separate issue, but rather as just one of the proposals for the child’s future living arrangements. The Full Court went on to say at [60] that although a relocation proposal should continue to be considered and evaluated in the context of the paramountcy provision, the proposal must also now be considered in the context of s 65DAA. |
| 156 | The Full Court in Taylor & Barker recognised at [62] that the Act gives no express guidance as to the appropriate order in which the relevant sections of the legislation are to be considered; however, the Court said it would seem only logical to make the necessary findings under s 60CC (which contains the list of relevant factors to be considered) before applying any of the provisions in which the determinative factor is the child’s best interests (which would include s 65DAA). |
| 157 | The Full Court went on to endorse the approach taken by the Federal Magistrate |
| in that matter, which involved consideration being given first to whether it was in the child’s best interests to spend equal time with each parent, without regard to the relocation proposal, before then moving on to consider whether an order for substantial and significant time was in the child’s best interests. | |
| 158 | The Full Court noted at [78] that the legislation gives no guidance as to the stage |
| at which a court should commence consideration of the relocation proposal, but said that if the Court found advantages in either the equal time or substantial and significant time scenarios, the Court would then be required to consider the “reasonable practicability” of such outcomes. In considering that issue, the Full Court said assistance would be gained from s 65DAA(5), which provides that in determining whether it is “reasonably practicable” for a child to spend equal time or substantial and significant time with each parent, 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
(Page 29)
(e) such other matters as the court considers relevant.”
353 I also consider that the father has failed in his responsibilities as a parent by
making no real effort to earn a regular income so that he could contribute to his son’s wellbeing. The father claimed he had tried unsuccessfully to make some money by buying and selling antiques. He also suggested a firm of personnel consultants had
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| doorknocked every business in [town] looking for a job for him but nothing was available. He also claims that he would violate his “duty of care” to [Charley] if he looked for “night fill” work which it was suggested he could have done. | |
| 354 | The father pays only a pittance in child support and yet in 2006 he sought to |
| have credited as a “non agency payment” $42.95 he spent on stationery items for [Harry] at the school at which he insisted the child should be enrolled. His child support obligation was the statutory minimum of $21.67 per month so the father, in effect, wanted the mother to forgo two months’ child support. | |
| 355 | I also accept that the father told the mother that it is entirely acceptable to live on |
| social security (or, as she put it, “we can use an Australian Government system to seat on doll and do not work for rest of our lives”). His conduct over the last ten years has been consistent with such an attitude. The father’s decision to adopt such a lifestyle has been made easier for him by virtue of the fact that he has received significant financial assistance from family. | |
| 356 | I note there is no suggestion that any of the substantial family funds the father |
| has received have been passed on for the benefit of [Harry’s] mother who is the child’s primary carer. I have great difficulty in accepting that it is appropriate that $100,000 can be expended on a legal war of attrition and yet nothing other than nominal child support is paid for the benefit of the child who is the subject of that litigation. |
Any family violence involving the child or a member of the child’s family
357 I consider that the father’s violence towards the mother is a significant factor. I
have rejected his denials concerning this violence. In particular I reject his assertion that the injuries sustained by [Harry’s] mother were self inflicted. Although the mother did not apply for a restraining order I do not consider this as being an indicator that there was no violence. The mother did call the police but no action was taken. The mother would undoubtedly have presented as highly volatile and emotional and the father would have seemed calm and plausible.
358 Whilst the father comforts himself by suggesting that [Harry’s] aggressive
behaviour at school was the result of the mother having enrolled him in karate classes too early, I consider it more likely that the father’s demeaning and aggressive behaviour towards the mother and the high level of conflict have been strong contributing factors to [Harry’s] problems. In making these observations I am fully aware that [Harry] was only a small child at the time his parents separated.
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
359 It is usually preferable to make the order least likely to lead to further
| proceedings, although it is often difficult to ascertain which orders would achieve that result. |
| (Page 63) |
360 [Harry’s] parents have now been litigating, more or less non-stop, for the last
seven years. It would be unduly optimistic to anticipate that the making of any orders (perhaps other than an order cutting one parent out of [Harry’s] life) would be likely to result in the termination of proceedings.
361 That said, the trial before me was the first time any Judicial Officer has had the
opportunity to consider in detail, and to make findings about, matters that have been festering over a long period. The findings I have made on a number of key issues may assist in reducing further proceedings.
362 In the event I was to make orders as requested by the father, I consider it would
be essential for the orders to be made only on an interim basis as recommended by the Single Expert. On such a scenario it would be important to carry out a review of the arrangements by the end of the year in order to determine whether [Harry] was happy with the change in his life and to determine what impact there has been on his education and overall progress.
363 In the event that orders were to be made as sought by the mother, there would be
somewhat less need for review as her proposals reflect to a greater extent the current arrangement which involves [Harry] being predominantly cared for by his mother. On the other hand, the mother’s proposals involve significant changes for [Harry] and in particular a change of school. In my view the effect of these changes on [Harry] would also need to be assessed and reviewed. Accordingly, whichever outcome I order, there will be further proceedings.
364 Subject to hearing submissions, I intend to make an order preventing the filing
of further applications without leave. Such leave would initially be sought by letter. Before applying for such leave, I would generally expect the parties to have made a concerted effort to resolve the issue, either by correspondence or by mediation at a Family Relationship Centre, or possibly both.
Any other fact or circumstance the Court thinks is relevant
365 Although the father denied the mother’s allegations that he routinely refers to black people and Asians as “monkeys”, I found his denials unconvincing.
366 The mother alleged that prior to separation the father said these sort of things
every time he saw black people or Asians on television. The mother also alleged that [Harry] informed her that his father is still saying the same thing. The mother said, “I think it is not for best interest of the child to have this attitude in …life”. I accept that this has been a matter of concern to the mother from early in [Harry’s] life and that it was a contributing factor in her decision to end the relationship.
367 I consider it is a matter of importance that the father apparently does have racist
| attitudes. I consider this to be another indication of the father’s lack of empathy for anybody different to him. |
| (Page 64) |
Section 60CC(4)
368 I am required to consider a variety of other matters in s 60CC(4). The provision
is lengthy and I do not intend to repeat it. In my view, I have already dealt adequately
with the relevant matters.
The test in Rice and Asplund
369 The Independent Children’s Lawyer made fairly oblique reference to the rule in
Rice and Asplund (1979) FLC 90-725. In doing so, she was drawing attention to the fact that the dispute appeared to have been entirely resolved by the orders made by consent in 2005 by which the mother was, in effect, given permission to relocate to Perth. The question therefore arises as to whether or not there has been a sufficient change in circumstances to make it appropriate for the Court to reconsider the matter.
370 I am satisfied there has been a sufficient change of circumstances to warrant the
Court giving consideration to the father’s application. Whilst it is true that the mother was given permission to relocate in 2005, I do not consider it was necessarily anticipated that she would take so long before she decided to move. Furthermore, serious issues have emerged in relation to [Harry’s] behaviour and performance at school. The causes of this warranted investigation. Furthermore, the mother is proposing to embark upon a new relationship which may have an impact on [Harry]. Accordingly I consider that the Rice and Asplund threshold test has been satisfied.
Parental responsibility
371 I turn now to the various decisions I must make, taking into account the findings
recorded above. The first matter to be considered relates to which parent(s) should
make the major long term decisions concerning [Harry].372 Decision making involving more than one person necessarily requires
communication. Communication between [Harry’s] parents has been channelled through lawyers for years. Initially this involved two lawyers but for a long time now the correspondence has been through the father’s lawyer. Notwithstanding their inability to communicate with each other, both parents seek an order for equal shared parental responsibility (even though the father originally sought sole responsibility).
373 The Independent Children's Lawyer also seeks the same order. She is well
aware of the communication problem but hopes that the parents might finally be able to put their hostility to one side and concentrate on working together in [Harry’s] best interests. As the Single Expert said, the conflict from [Harry’s] perspective is “all encompassing and is there all the time”. The Single Expert’s view, which I endorse, is that the conflict will not be removed in [Harry’s] eyes until his parents learn to speak civilly and parent him together.
374 The statutory presumption in favour of equal shared parental responsibility does
not apply because of the findings I have made in relation to family violence. Nevertheless, such an order should be made if it is in the child’s best interests. In my view there are strong arguments to suggest it would not be in [Harry’s] best interests
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| for his parents to share parental responsibility. Nevertheless, as both parties and the Independent Children's Lawyer seek such an order I am prepared to make it. | |
| 375 | However, I intend to make the order for shared parental responsibility only |
| “until further order of the Court”. This will be done with the intention of assessing how much progress [Harry’s] parents are able to make over the coming months in improving their communication. They have now heard from the Single Expert, from the Independent Children’s Lawyer, from [Mr P] and from me about just how devastating their conduct has been for [Harry]. If they love their son as much as they say, they will make a real effort to change their ways. |
With whom [Harry] should live
376 As I propose to make an order for equal shared parental responsibility I am
obliged to consider whether or not it is in [Harry’s] best interests and reasonably practicable for him to live equal amounts of time with each of his parents. If it is not, then I must consider whether or not it is in his best interests and reasonably practicable to spend substantial and significant time with each of his parents. The way in which I will approach these tasks has been outlined earlier in these reasons.
377 [Harry’s] father has given no firm indication that he would move to Perth to live
closer to [Harry], and [Harry’s] mother has given no firm indication that she would return to live in the [regional] area. In these circumstances, even if it were in [Harry’s] best interests for him to spend equal time, or substantial and significant time, with each parent, it would not be reasonably practicable because of the distance between the two homes.
378 There are many attractions in the recommendation made by the Single Expert for
[Harry] to remain in the [regional] area pending further consideration of the issues involved. The strongest argument would be that it would allow [Harry] to remain at the [the College] where he has been making good progress over the last year. [Harry] has developed a group of friends and seems to be much happier and his academic achievement has improved.
379 In an ideal world, [Harry] would remain at the College until at least the end of
the current academic year. The fact is, however, that [Harry’s] mother has finally made her move from [the regional centre] to Perth. This has been planned for many years and a number of Court orders have already contemplated precisely what has occurred. The timing of the move was not ideal but I accept this was to some extent outside the mother’s control as she lost her means of supporting herself and [Harry].
380 If I considered that at the end of a review period there was a reasonable prospect
that I might decide that [Harry] should live with his father, I would be attracted to the Single Expert’s recommendation for [Harry] to live with the father pending further investigation. However, for reasons I will outline, I cannot foresee any circumstances in the short to medium term in which I would consider it would be in [Harry’s] interests to reside with his father.
381 I have given careful consideration to the possibility of [Harry] living with his father for the balance of the school year because by that means he could continue at
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| the [the College]. Apart from providing some stability in his education, it initially seemed to me that this may provide a means by which [Harry’s] expressed desire to spend some more time with his father could be partially accommodated. Ultimately, I have determined that as [Harry] is very likely to end up living with his mother, it would be best for him to remain with his mother in Perth, rather than moving to live with his father for a period of what would be just a few months. | |
| 382 | One other factor which pointed to it being desirable for [Harry] to remain at the |
| [the College] until the end of this year was the recommendation of the Single Expert that [Harry] be reviewed by an educational psychologist to determine whether it may be appropriate for him to be held back one year. If this were to happen, it would ideally occur at the same time as [Harry] moves school. I have not overlooked this, however, as [Harry] is an intelligent boy; is apparently quite big for his age; and has been making better progress lately, I consider it is fairly likely that [Harry] would not be kept down, provided he continues receiving intensive tutoring and support. | |
| 383 | In coming to my decision I have also taken into account the fact that [Harry] has |
| already said his “goodbyes” at the [the College]. Whilst I accept the opinion of the Single Expert that [Harry] would be likely to try to shrug off any embarrassment caused by turning up at his old school again, I do not consider that the boy needs any more burdens. | |
| 384 | I have also taken into account the fact that a place at the [the College] was not |
| absolutely guaranteed. The evidence indicated (and subsequent information provided by the Independent Children’s Lawyer confirms) that [Harry’s] place has been taken. Accordingly, there would have to be a special meeting of the School Board to obtain permission for [Harry] to be accepted back into the school. [Mr P] thought that the Board would be likely to give favourable consideration to such a request. However, there would be a delay (albeit short) in convening a meeting. I was also of the view that it was in [Harry’s] interests for him to receive at least a few days notice of where he would be going to school. I particularly had in mind that [Harry] has already had two delayed starts in his short time at school. There was also the risk, however small, that the Board would not approve [Harry] returning to the College, given that his enrolment would push his class beyond the normal size limit. | |
| 385 | In coming to my decision I have taken account of concerns I have about [Harry] |
| and [Charley] being brought up together. In my view there is at least the prospect of unfortunate rivalry between [Harry] and [Charley] for the attention and approval of the father. This is especially so as [Harry] is an intelligent boy who wants to perform well at school, whereas [Charley] is already performing well and not getting into trouble. The father has been less than sensitive in the past in comparing [Harry’s] performance unfavourably with [Charley’s]. | |
| 386 | [Mr P] gave evidence of how school staff had expressed concern about |
| conversations with the father in the presence of [Harry] regarding how well [Charley] was doing in comparison with [Harry]. [Mr P] said the father had done the same in conversations with him. He said that such comparisons would “not be healthy” for [Harry]. This was also a matter that troubled the Single Expert. He said that if this were to continue while the boys lived in the same house it would have an adverse | |
| (Page 67) | |
| effect on [Harry’s] self esteem; would fuel further anger; and might cause [Harry] to become more depressed and withdraw further. | |
| 387 | Toward the end of the Single Expert’s cross-examination I put to him the |
| dilemma that I was arguably required to address in having to make a choice between two parents – one of whom had been less than frank and who might have been involved in domestic violence, cruelty to animals and racism – and the other whose life might be said to be “chaotic”. The Single Expert responded that these scenarios were often just the “flip side of the coin” and in his experience prisons were full of men brought up in one or other of these environments. | |
| 388 | On reflection, I accept the submission of the Independent Children’s Lawyer that |
| the mother’s life has not been as chaotic as it might first seem. As the mother said in her affidavit: |
“I start from scratch in this country where I didn’t know now one but I always giving [Harry] my love and did for him the best things that I can. I love him dearly, he is the best thing that I ever done in my life”.
389 It is true the mother has moved homes a number of times, but not as often as the
father alleged. On each occasion she had a good reason and in the process has been able to build two homes. On each occasion she moved, the mother ensured that [Harry] remained at the same school. She made a point of giving evidence that she herself had gone to the same school for 11 years and said, “I know how imported is for the child to attend the same school, its what I would love to have for [Harry], for him change is less school is possible”. She took steps to ensure he remained at the same school, even when the promised fees failed to materialise in 2009.
390 The mother has attended the same medical centre for the whole time she has
lived in the [region]. Her doctor, who at the time had known her for nearly three years, said in a letter in December 2002 that the mother “demonstrated a strong and resilient inner person” and said that “despite many difficult circumstances she has shown great mental stability and never had any recourse to medication for stress”. The doctor described the mother’s care of [Harry] as “exemplary”. She said that [Harry] had always been “well cared for, had appropriate immunizations, and been neatly, cleanly and appropriately dressed”.
391 The mother has been enrolled in English and accounting courses for many years.
She attends her classes and has been obtaining certificates/diplomas and is well advanced in her studies towards a university degree.
392 All of these things in combination point to the mother’s life not being as chaotic
as has been asserted. It is true there are elements of chaos, including her difficulty with punctuality. However, when one considers the challenges she has faced and what she has achieved since being brought to a foreign country as a very young woman, the facts must be viewed in a different light.
393 I am satisfied that it is in [Harry’s] best interests for him to reside with his
mother. Whilst I have many serious reservations about the mother’s personality, I consider that she is much more closely attuned to [Harry’s] needs and in particular his
| (Page 68) | |
| emotional needs than is the father. If [Harry] was to live with his mother it is less likely that he will develop racist attitudes. It is more likely that he will develop empathy with animals and with other human beings. In the longer term it is likely that his mother will provide him with a better role model and she is likely not to “sit on the dole” in the way that [Harry’s] father is content to do. | |
| 394 | I am also satisfied that it is in [Harry’s] best interests for his mother to be |
| allowed to live with him in the Perth Metropolitan area. I accept the mother’s evidence that she is more likely to be able to obtain employment in Perth than in [the regional centre]. I also accept her evidence that there are many more opportunities not only for her but for [Harry] in Perth. Furthermore, the father has on more than one occasion given his consent for her to live in Perth. | |
| 395 | In coming to my decision I have not overlooked the possibility, and indeed |
| perhaps the likelihood, that the mother may move home in Perth on one or more occasions before she ultimately settles down. Whilst I consider that it would be better for [Harry] to have stability of accommodation I consider it even more important that he have stability of schooling. I accept that the mother will do her best to ensure that [Harry] does not change school, unless she considers that this would be in his interests. | |
| 396 | The evidence satisfies me that every effort will be made at the [Perth] school to |
| ensure that [Harry] feels welcome when he arrives and is supported while he settles down. I nevertheless did not consider this to be a determinative factor as I am equally confident every effort would be made to ensure [Harry] felt welcome at the [school in the country town]. | |
| 397 | Nor have I taken into account the fact that if [Harry] stays living in the [Perth |
| suburban] area, he will ultimately be able to attend just one High School rather than two. A lot of water will “go under the bridge” before this is of any significance for [Harry]. Similarly, the far greater variety of tertiary institutions in Perth is not a matter of great significance at present. Nor is the apparent lack of employment opportunities in the [town] area. | |
| 398 | There was one other potentially significant matter. That is the likely reaction of |
| each parent to an unfavourable outcome. The mother would have been heartbroken if [Harry] ceased living with her and she would have not been able to conceal her sadness and anger from [Harry]. Her frustration would have been magnified by virtue of the fact that she has previously been given permission to bring [Harry] to Perth. This display of sadness and anger would have been quite upsetting for [Harry]. On the other hand, the father is far more controlled and would be more likely to conceal his upset and anger. Such matters ultimately did not affect my decision because in my assessment [Harry] would probably have fairly soon recovered from the upset. If it was in his longer term interests I would not have hesitated to make an order for him to live with his father, regardless of the hurt this would have caused the mother. |
Departure from Single Expert’s recommendation
399 I have not departed lightly from the recommendation of the Single Expert. I was very greatly impressed by his first report. It was very well structured, thorough and
| (Page 69) | |
| very clearly expressed. The recommendations were carefully developed. The report did take a long time to be prepared, but there were some good reasons for this, not least of which was the development concerning a possible change of school for [Harry]. | |
| 400 | In preparing his second report (and giving evidence at the trial), the Single |
| Expert was placed in a most invidious position. On this occasion he was presented with an entirely different scenario and was required to undertake additional enquiries in a very short space of time. Furthermore, he was asked to make a recommendation about what should occur only in the short term, pending further investigation. In such circumstances it was not surprising that the Single Expert made a recommendation which maintained as closely as possible the status quo. | |
| 401 | At the time the Single Expert prepared his second report, the trial affidavits had |
| not been prepared. These became available only shortly prior to trial and regrettably were not provided to the Single Expert until the lunchbreak before he gave his evidence. Although he looked at the material over the lunchbreak, this was not an adequate opportunity to consider all that the parties had to say. It was certainly not adequate time to peruse all of the many important attachments to the mother’s affidavit, which in itself was quite difficult to read. | |
| 402 | Matters were made even more difficult for the Single Expert when, during the |
| course of his cross-examination, he was provided with a good deal of information that had not previously been made known to him, for example that [Harry] had already been farewelled at the [the College]. The Single Expert was entirely justified in saying that “the ground just keeps moving”. | |
| 403 | The other difficulty under which the Single Expert laboured, as is common in |
| such matters, is that whilst he had been given a substantial amount of information, he did not have the benefit of all of the information that was available to me – albeit I endeavoured to bring some of it to his attention during the course of his evidence. The Single Expert also did not have the benefit of any detailed findings in relation to credibility issues, which were particularly important. Although he maintained the same view when I provided him with some of this additional information, I do not consider that I was able to convey to him sufficiently all of the information I have been able to include in this judgment. | |
| 404 | It is noteworthy (although, of course, not determinative) that the Independent |
| Children’s Lawyer, who is highly experienced and had heard all of the evidence, reached the same view as I had in determining what outcome would be best for [Harry]. |
Time to be spent with the father
405 The amount of time [Harry] is able to spend with the father will, to some extent, depend on the father’s intentions now that [Harry] has relocated to Perth.
406 In the event that [Harry’s] father does not wish to have to travel over long
distances to see [Harry], it is a viable option for him to move to Perth. He has a home which he estimates is worth between $350,000 and $370,000. I am satisfied that the mortgages to his parents would be lifted in order to allow him to use funds to acquire accommodation in Perth.
| (Page 70) | |
| 407 | The father is still a relatively young man. He is someone who, if he put his mind |
| to it, could obtain employment in Perth to assist him to maintain a home and provide financial assistance for his son. The father and [Mrs Hampson] are both prepared (at least so they say) for [Charley] to return to live with his mother. [Charley] has lost his own father and grandparents. As [Harry’s] mother pointed out during the trial, it seems very sad that [Charley] has also, in some ways, lost his own mother. | |
| 408 | Although I am concerned about the issues associated with the long journey |
| involved in [Harry] visiting [the country town], I nevertheless consider that alternate weekend contact would be in [Harry’s] best interests if the father decides not to move to Perth. School holidays should continue to be shared equally, save for the forthcoming October holidays which I propose will be spent entirely with the father. When I asked the Independent Children's Lawyer to speak to [Harry] to inform him of the Court’s decision I anticipated that he might be disappointed with the outcome. I thought that it would assist the Independent Children's Lawyer in breaking the news to let [Harry] know that he would be able to spend all of the next school holidays with his Dad, as I am sure [Harry] would enjoy that and he might think it was “fair”. | |
| 409 | I accept the evidence of the Single Expert that if [Harry] is to live in Perth, his |
| soccer activities should ideally be centred around his home and school in Perth. The reality, however, is that the father is likely to remain in [the town] and he will wish to have [Harry] living in his home on “his” weekends. [Harry] enjoys his soccer. He could not previously be a member of two teams when living in [the regional area]. Although it is not ideal, my view is that it would be desirable for [Harry] to remain a member of the [local] team and also join a team in Perth – hopefully attached to his school or involving children who attend his school. | |
| Orders | |
| 410 | I informed the parties at the end of the trial that as [Harry] had to commence |
| school on the following Tuesday I hoped to provide my judgment before the new school term. It became apparent on the Friday of that week that my reasons could not be ready as quickly as I hoped. I did not want [Harry] to have to wait any longer to know where he was starting school and I therefore determined that it was appropriate to make orders without giving reasons at the time. | |
| 411 | As the father lives in [the country town] and as his counsel and solicitor were |
| both away, and as the mother was self represented, I determined that the appropriate course was to convene a hearing in the absence of parties but with the Independent Children’s Lawyer attending by telephone for the purpose of pronouncing the orders that needed to be made prior to the commencement of the term. A transcript of that hearing has been distributed to all parties. Reference to the transcript will reveal that the Independent Children’s Lawyer advised me that the [the College] had confirmed [Harry’s] place had been filled and that the school was not anticipating that he would be returning to the College. (I should indicate that my decision was not affected by this information although it is clearly of some relevance.) | |
| 412 | The Independent Children’s Lawyer undertook to advise both parties of my |
| decision. She also undertook to speak with [Harry] to explain the Court’s order and in | |
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| particular the decision about the school he would be attending. I also asked the Independent Children’s Lawyer to make enquiries concerning the availability of the handover services in [the regional area], [and surrounding suburbs]. I was informed this process was already under way. | |
| 413 | I have subsequently been informed that the Independent Children’s Lawyer has |
| advised the parties that future handovers should take place at the Relationships Australia Children’s Contact Service in [town], rather than at the Police Station as contemplated by the 2005 orders. I am firmly of the view that it would be in [Harry’s] interests for handovers to take place at a handover centre. The [town] facility would be most appropriate for the time being. Although the father will have to travel the greater distance, the mother will have to negotiate heavier traffic. In the fullness of time an alternative arrangement might be made so as to allow the parties to take advantage of the new highway. | |
| 414 | Now that I have published my reasons, I will hear from the parties about the |
| detail of the orders to be made. For the time being, until a hearing can be arranged for this purpose, the consent orders made in October 2005 (as amended) will remain in | |
| place, save for the handover venue. |
Costs of private tutoring
415 I have given some consideration to making orders about the funding of [Harry’s]
private tutoring. I have serious concerns about [Harry] regressing, as predicted by [Mr P], after moving to a new school. I consider it is imperative that he have tutoring although not necessarily five times a week as the Single Expert had proposed. [Mr P’s] view was that two sessions of one hour each week would be sufficient, and he is probably in the best position to judge.
416 The difficulty from the mother’s perspective is that she is wanting to cut back on
her hours of work at the same time as wanting to resume private tutoring for [Harry]. I am not at all convinced that it is appropriate that the mother should be expected to shoulder the financial responsibility for this tutoring. The father has shown the capacity to find funds to meet substantial legal costs. He was in a position to be able to offer to have [Harry’s] private school fees paid in advance within 48 hours of the conclusion of the trial. As the mother is responsible for meeting almost all of [Harry’s] other expenses, it is appropriate that the father should accept responsibility for the tutoring expenses. However, as the mother has made no application for the father to meet these expenses and arguably this is an issue to be dealt with under the child support system, I do not propose to make any formal order.
Credibility
417 Given the conflict in the evidence and the findings I have made it is important I make some observations on the credibility of the parties.
418 I had reservations about the credibility of both parents. There were a number of
| instances where it was apparent the mother’s recollection was faulty about time periods and chronology. There were other instances where I considered she was |
| (Page 72) |
giving evidence of what she wished had been the position rather than what she actually remembered. For example, the mother seemed to have convinced herself that it was not the father’s weekend for contact when she went to [the Eastern states] but the correspondence she sent at the time indicated that she clearly accepted it was his weekend. Overall, I nevertheless was generally inclined to accept the mother’s evidence over that of the father concerning what I saw as being important issues, such as domestic violence, racism and cruelty to animals.
419 The father’s evidence on time periods and matters of chronology seemed more
accurate than the mother’s recollection. The father is a very “buttoned down” individual and very precise in his thinking. Overall, however, I found him to be a quite unreliable witness on matters of substance. I reject his evidence that the mother’s injuries at around the time of separation were self inflicted. I did not accept his denials in relation to racism and cruelty to animals. I also found his evidence concerning the marital status of his parents to be a little difficult to accept given all the other uncontroverted surrounding circumstances.
420 The mother attached to her affidavit a letter from her doctor dated 4 December
2002. The letter strongly supported the mother’s claim for residence of [Harry]. The doctor wrote that from her first consultation with the mother nearly three years previously she was aware of the father’s “difficult behaviour with episodes of verbal and psychological abuse” and she also went on to say that “his behaviour was observed in the surgery by myself, another doctor here and receptionists all of whom noted problems”. None of this behaviour was detailed in the letter, but the father’s response was to say that he must have been confused him with another person. I express no concluded view about this since the doctor did not give evidence.
421 The father admitted in cross-examination that he had lost his driver’s licence in
[the Eastern states] for exceeding the blood/alcohol limit. He claimed that he lost his licence for nine months. When I asked how far over the limit he was to have incurred a suspension for such length for a first offence he said he did not have a high reading but the offence was aggravated because he ran into a stationery vehicle. He said it was later discovered this happened because of a faulty steering mechanism. The mother said in her affidavit that the licence was suspended for three years and that the father had been involved in a “very big car exedens”. In this regard, I note the father said in an affidavit earlier in the proceedings that his licence had been suspended for three years, not nine months. This discrepancy was not put to him and there may be an explanation for him having provided conflicting sworn statements. Nevertheless, the excuse relating to the faulty steering mechanism sounded a little improbable.
422 The father initially refused to answer questions concerning ownership of the
[vehicle] he drives. When asked why he did not want to reveal this information he said he feared that the mother may involve the owner in proceedings. When required to answer the question, it transpired the vehicle had been registered in the name of “Uncle” [Mr Z] and that the father’s mother had therefore inherited it upon his death. I cannot understand how the father thought his mother might become involved in proceedings if it was ascertained she owned the vehicle. I suspect the father had an ulterior motive in seeking to keep this information quiet at that stage of his cross-examination – possibly because he did not want to reveal that his mother had inherited the entire estate of his “Uncle”, perhaps anticipating the mother’s later
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| questions about the nature of their relationship, which seems to have been a sensitive topic. | |
| 423 | I was unable to form a firm view about the credibility of [Mrs Hampson] save |
| that I had considerable difficulty in accepting that in 2003 [Harry] had the verbal ability to engage in a conversation with her in which he said “I really, really, really hate [the mother]” and when asked why, replied, “Because I want to stay with my Papa”. | |
| 424 | I found the father’s friend [Mr B] to be a friendly and likeable man who I am satisfied did his best to assist the Court in giving his evidence. |
The next step
425 Although I have given serious consideration to making final orders, I have decided this would not be appropriate.
426 The mother should have disclosed to the Court full details of her relationship
with her boyfriend and her plans to marry and have a family. Such matters are clearly of great importance to [Harry]. If the mother intends to continue to pursue her relationship it is appropriate that the Court receives evidence from her boyfriend concerning his background and intentions, and for him to present himself for cross-examination, if required.
427 It would also have been desirable for the Court to receive evidence from
[Harry’s] grandmother who has spent a lot of time living in his home and may live with him in the future. Various allegations have been made concerning her conduct towards [Harry] and those matters also ought to be explored. I appreciate that the mother anticipated that the trial would take place in October 2009 and planned that her mother would give evidence at that time. However, the grandmother was overseas when the trial was expedited. The grandmother will be able to give evidence in the event that there is a review of the new arrangements.
428 I am also concerned by the evidence of the Single Expert that there is
a possibility [Harry] may become more depressed in the event that he lives in Perth and does not live with his father. The evidence provided by [Mr P] might give some reason to consider that [Harry] may now not be quite as depressed as the Single Expert found when he first saw him. Nevertheless, I consider that it would be appropriate for [Harry] to be reviewed later this year in order that the Single Expert can assess the impact of these changes. This will also provide an opportunity to assess how [Harry] is coping with the travel.
429 Part of the father’s case at trial was for him to be permitted to take [Harry] to
[Europe] to visit his family. The father has made a number of similar applications over the last few years – and on at least two occasions the applications have been dismissed. I have not dealt with this issue. The hearing was directed primarily to where [Harry] is going to be living and time did not permit the proposed trip to be considered. I will hear argument about this at an appropriate time. It may be best for this to be delayed until I am undertaking the foreshadowed review which I would hope to schedule late this year or very early in the New Year.
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| 430 | Finally, I consider that the passage of some time under the new arrangements |
| will give some indication as to whether it is realistic to continue the interim order for shared parental responsibility. I hope that by the time the matter comes back before the Court there might be some signs that the parents have learned how to cooperate in relation to [Harry]. In particular, rather than the father and mother dealing with each other through the father’s lawyer, I consider the time has come for them to start endeavouring to communicate directly. Whilst I acknowledge the difficulties, the parents should commence using a “communication book” which will pass back and forward as [Harry] moves between the two homes. This book should not be used as an opportunity for each parent to make complaints but to pass on information concerning [Harry’s] education, health and general progress. |
Publication of reasons
431 Subject to hearing submissions from the parties and the Independent Children’s
Lawyer, I consider that a copy of these reasons should be made available to the principals of the [the College] and the [Perth school]. Naturally a copy should also immediately be made available to [Dr M], who I hope will be able to undertake the review.
432 I recognise that because the trial was rushed, these reasons may contain some
background information that is not entirely accurate. In some instances I have taken the unusual course of having recourse to the voluminous Court file to satisfy myself as to matters of chronology and minor detail. These were principally matters of record or material that was not controversial. I am satisfied that all of the matters on which I have based my decision were properly in evidence.
I certify that the preceding [432] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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