K and Q

[2008] FCWA 13

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: K and Q [2008] FCWA 13

CORAM: CROOKS J

HEARD: 29 JANUARY 2008

DELIVERED : 1 FEBRUARY 2008

FILE NO/S: PT 3646 of 2002

BETWEEN: K

Applicant/Mother

AND

Q
Respondent/Father

Catchwords:

Parenting orders - relocation [overseas]

Legislation:

Family Law Act 1975, s 60B, s 60CA, s 60CC, s 61DA

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hedges

Respondent: Self Represented Litigant

Solicitors:

Applicant: Clairs Keeley

Respondent:

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

Nil

1The dispute between [Ms K] (“the mother”) and [Mr Q] (“the father”) concerns the parenting orders to be made for the child of their marriage, [the daughter] (“[Tara]”) born [in] April 2000. The mother is proposing that [Tara] reside with her [overseas]. The father opposes the making of these orders.

Background

2The father is 51 years of age and the mother is 45 years of age. [Tara] is the only child of the parties.

3The mother and father commenced living together in December 1997. They were married on 17 April 1998 and finally separated in January 2002. The parties divorced on 22 June 2003.

4On 11 June 2002 orders were made by consent that [Tara] reside with the mother and spend time with the father as agreed.

5Since the parties’ separation, the mother has spent the following periods [overseas] with [Tara]:

•In December 2002 for approximately one month.

•In December 2003 for approximately one month.

•In January 2005 for approximately one month.

•From 8 January 2007 until 15 July 2007.

6By letter incorrectly dated 13 August 2008 the mother advised the father of her desire to relocate [overseas] with [Tara] during the Christmas school holidays 2007/2008. This was not agreed to by the father.

7On 11 October 2007 the mother made application for orders to relocate [overseas] with [Tara].

8On 30 November 2007 the mother’s application was listed for hearing to commence not before 29 January 2008 and the father was ordered to file and serve his response and affidavit material within 14 days of that date.

9On 1 December 2007 the father spent about three and a half hours with [Tara] prior to which [Tara] had not spent time with the father for approximately two and a half years.

The evidence

10The mother was represented on the hearing by Mr Hedges of counsel. She supported her application to relocate with affidavits from herself, [Ms G, Mr ECK, Ms K and Mr SGK].

11The father did not file any response or affidavit material to oppose the mother’s application.

12The father appeared at the hearing unrepresented. He said he would not agree to the relocation orders but would take no part in the proceedings until after taking action in the District Court to dispute allegations contained in documents from the mother that he was a violent person. The father was given the opportunity to be heard at the hearing but he elected not to do so.

Mother’s parenting proposals

13The mother seeks that she have sole parental responsibility for [Tara] and that she be at liberty to change [Tara]’s place of residence [overseas] where she lived with [Tara] for the first half of 2007. The mother proposes that she and [Tara] reside with her father, [Mr K] [overseas] until she can arrange rental accommodation for herself and [Tara]. The mother will arrange at her expense for [Tara] to return to Perth to spend time with her father on one occasion each year during school holidays and for the father to spend additional time with [Tara] if he travels [overseas]. Communication with [Tara] by telephone, e-mail or letter is also proposed.

Father’s parenting proposals

14The father advanced no proposals.

The law

15Pursuant to s 60CA of the Family Law Act 1975 as amended (the “Act”), in deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration.

16For the purpose of determining what is in [Tara]’s best interests, I must consider the “primary” and “additional” considerations set out in s 60CC(2) and (3).

17The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child's parents;

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

18I must also have regard to s 60B of the Act which sets out the objects of the Act which deal with children and the principles which underlie those objects.

19S 60B is as follows:

(1)The objects of this Part are to ensure that the best interests of children are met by:

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

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

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

20I will consider other provisions of the Act relevant to this case when I deal with the particular matters pertaining to these parties. I deal now with the “primary” and “additional considerations” set out in s 60CC(2) and (3).

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child's parents;

21[Tara] was about 20 months old when the parties separated in January 2002. Since the separation, [Tara] has resided in the mother’s care. Since the parties separated, the father’s time with [Tara] has been irregular and infrequent. The mother’s evidence is that from July 2003 until July 2004 the father lived [about 200] kilometres from Perth. This no doubt made it more difficult for the father to spend time with [Tara]. The mother made trips to visit her family [overseas] in 2002, 2003, 2005 and 2007 for about six months. The mother’s evidence is that when [Tara] resided with her mother [overseas] in 2007, the father did not contact [Tara] by telephone and communication was limited to one letter and a gift for [Tara]’s birthday. On 1 December 2007 the father spent about three and a half hours with [Tara] which is the first time the father spent time with [Tara] in two and a half year or thereabouts.

22There is no evidence to suggest that [Tara] has other than a very close and loving relationship with her mother who has been the primary and constant caregiver in [Tara]’s life. Even though there have been long periods of little or no contact between [Tara] and the father, [Tara] enjoys spending time with her father. This was the case on 1 December 2007 when [Tara] and the father were reunited after a long period of absence. The mother says it will be necessary for the father to re-establish his relationship with [Tara]. I am unable to make any findings as to the quality of the father’s relationship with [Tara] given the lack of any independent or expert evidence.

23It will become more difficult for the father to rebuild or enjoy a meaningful relationship with [Tara] in the event that she relocates [overseas]. Nonetheless, the mother’s proposal will ensure that [Tara] is returned to Western Australia on one occasion during her school holidays so that she can spend time with the father. There is also nothing to prevent the father travelling [overseas] from time to time to spend additional periods with [Tara] as well as communicating with her by telephone and other means.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

24In paragraph 84 of the mother’s trial affidavit, she makes reference to the father having a police record from 2002, arising from certain charges for which the father received a suspended sentence. Mr Hedges said that the mother accepts that the father does not have a police record and that he was charged with resisting arrest for which he received a spent conviction. The mother acknowledges in her trial affidavit that the father has never physically abused either herself or [Tara]. Whilst there is reference in the mother’s trial affidavit to the father being a heavy drinker and user of cannabis over a long period, no evidence was presented to suggest that this was a relevant matter in relation to the mother’s proposals to relocate [overseas].

Additional considerations

25I now turn to the additional considerations which must be taken into account:

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

26[Tara] is 7 years of age. The mother does not rely upon any views expressed by [Tara] to support her application.

(b)the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

27I have dealt with [Tara]’s relationship with each of her parents when I considered the primary considerations. The mother has a large extended family which includes her father, two brothers and four sisters who reside in [the same area overseas] or at least visit on a regular basis. The mother’s father, her sister-in-law [Ms K], her brother [Mr SGK] and her sister [Ms G], have all filed affidavits to support the mother’s relocation application. [Tara] appears to enjoy a very close relationship with members of her extended family with whom she has spent time both during visits [overseas] and when family members have visited Perth. The evidence suggests that there will be a lot of involvement between [Tara] and her extended family [overseas] which will benefit [Tara] in her future years.

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

28I consider the mother’s proposals for the father to spend time with [Tara] to be reasonable in the circumstances. [Tara] would appear to enjoy spending time with her father and if she is able to relocate, the mother will facilitate a continuing relationship between [Tara] and her father. There is no evidence to suggest that the mother’s proposal to relocate [overseas] is motivated by any desire to diminish the relationship between [Tara] and her father.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

29Since the parties’ separation, [Tara] has spent long periods having little or no contact with her father. The longest period was for two and a half years. This is not a case where [Tara] has become used to spending a lot of time with the father. A relocation [overseas] will mean that [Tara] will see her father less frequently than would be the case if both parties resided in Perth. However, [Tara] will spend time with her father during one school holiday period at the mother’s expense and additional periods if the father chooses to travel [overseas]. This is in addition to telephone and other forms of communication as proposed by the mother. A relocation will enable [Tara] to spend much more time with her maternal grandfather, aunts, uncles and cousins with whom [Tara] enjoys a close relationship. [Tara] will benefit from being part of her large extended family living [overseas].

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

30[Tara] has been a fairly regular traveller between [overseas] and Perth in recent years and no evidence was led to suggest that [Tara] would have any difficulties making this flight at least once a year. The mother proposes that she be responsible for [Tara]’s air travel costs for the purpose of travelling to and from Western Australia. The mother expects to obtain well-paid employment as a registered nurse in [the capital city] which is where the mother originally did her training and has had previous work experience. The mother will have the means to meet the costs of air travel for [Tara] to facilitate the contact proposals. I have no evidence as to the father’s financial position or his ability to travel [overseas] to see [Tara] on other occasions during the year. He does not pay any child support for [Tara].

(f)the capacity of:

(i) each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

31I am satisfied that the mother has the capacity to provide for all of [Tara]’s needs. She has extended family members [overseas] who have a close relationship with [Tara] and can assist the mother if necessary. The mother raised various concerns in her trial affidavit as to certain aspects of the father’s behaviour which may impact on his capacity to properly provide for [Tara]’s needs. There is insufficient evidence for me to make any findings in relation to the father’s capacity which is perhaps unnecessary in any event given that the father is not seeking that [Tara] reside with him.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

32There was no evidence led to suggest that this was a relevant matter.

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

33The mother appears to have demonstrated a good attitude to the responsibilities of parenthood. She has provided for [Tara]’s needs since the parties’ separation including her accommodation, maintenance and support. The evidence indicates that [Tara] is a healthy, happy and good natured child who is developing well. The father has had so little contact with [Tara] in recent years and offered no evidence as to his attitude and responsibilities of parenthood that I cannot make any findings concerning the father.

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

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

34No evidence was led to suggest that these matters were relevant.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

35If the mother relocates and the parties are unable to resolve issues relating to the time the father is to spend with [Tara] or on what terms, then the institution of further proceedings may be necessary. The parties were involved in proceedings when they both lived in Western Australia. They have had problems resolving issues in the past. I do not, however, consider that relocation [overseas] would make it more likely to lead to the institution of further proceedings in the future.

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

36No evidence was led to suggest other relevant matters.

Section 60CC(4)

(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a) has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

37Insofar as these sections are relevant, they have been dealt with earlier in this judgment.

Sole parental responsibility for [Tara]

Section 61DA

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

38The mother seeks an order that she have sole parental responsibility.

39In the event relocation is permitted, I am satisfied that it would not be in the best interests of [Tara] for her parents to have equal shared parental responsibility. The mother will be residing [overseas]. The father resides in Western Australia. It would not be in [Tara]’s best interests for important decisions relating to her welfare to await consultation between the parties and the approval of the father.

40It is best for [Tara] that the mother be in a position to make significant and important decisions concerning [Tara] when they need to be made. This is particularly so in circumstances where the parties’ relationship and ability to deal with one another on matters concerning their daughter’s welfare has been poor and becoming more difficult.

Factors supporting relocation

41The mother wishes to relocate [overseas] so that she can be close to, and spend more time with, her father, her siblings and their families. The mother spent six months living [overseas] in 2007. [Tara] appears to have adjusted well to living [overseas] where she was able to engage in wide ranging activities and interests with other family members including her cousins. The evidence suggests [Tara] was happy living in [the capital city] and benefited from the interaction with her mother’s extended family.

42The mother has good employment opportunities [overseas] and [Tara] will re‑enrol at the school she attended during her six month stay in 2007 and where she made good progress.

43There is no evidence to suggest that [Tara] will have any difficulties adjusting to life [overseas]. She has already made friends and has the support of a large extended family.

44The mother proposes to return to Perth with [Tara] on one occasion each year so that she can spend time with the father. The mother will also facilitate other means of communication between [Tara] and her father in the form of letters, e-mails and telephone calls.

Factors against relocation

45If the mother relocates, the father will get to spend significantly less time with [Tara] than may be the case if both parties resided in Perth. This, however, must be viewed against a background of the father not having enjoyed regular or frequent contact with [Tara] since the parties separated.

46[Tara]’s home has been in Perth apart from the periods spent [overseas] and she has friends in Perth.

Conclusion on relocation

47I am satisfied that it is in [Tara]’s best interests that her mother be permitted to relocate [overseas].

48Living [overseas] would enable [Tara] to live close to and spend time with a large extended family including the maternal grandfather who is in poor health. I consider the mother has made proper arrangements for [Tara]’s care, welfare and development [overseas]. The reasons for wishing to relocate are bona fide.

49The arrangements the mother has made for [Tara] to have contact with her father are reasonable and if he is in a position to travel [overseas], he can spend more time with [Tara]. [Tara] will benefit from living in a happy and settled family environment which she can enjoy [overseas].

Orders proposed by mother

50In paragraph 5 of her Minute of Proposed Orders, the mother seeks that any provision for the father to spend overnight periods with [Tara] be conditional upon:

(a)[Tara]’s expressed wish to stay overnight;

(b)the mother being reasonably satisfied with the father’s accommodation;

(c)the father forthwith returning [Tara] to the mother should she show distress or express a wish to be returned during any overnight stay with the father.

51I am not prepared to make orders in these terms. [Tara] is not yet 8 years of age. The parties may disagree as to the suitability of the father’s accommodation.

52Whilst I understand the reasons for the mother’s concerns, particularly given that [Tara] has never stayed overnight alone with the father, the provisions sought may cause more problems than they solve. I intend to make an order giving the parties liberty to apply as to the conditions which relate to [Tara] spending overnight periods with her father, if the parties cannot agree.

53Otherwise, I am satisfied that the proposed orders sought by the mother in paragraphs 1 to 11 of the Minute are appropriate and in [Tara]’s best interests.

The orders

54I propose to make orders in these terms:

1.The child, [TARA] born [in] April 2000 (“the child”) live with the Applicant, [Ms K] (“the Applicant mother”) and in that regard paragraph 1 of Consent Orders made on 28 October 2004 remain in full force and effect.

2.Paragraphs 2, 3 and 6 inclusive of Consent Orders made on 28 October 2004 be discharged.

3.The Applicant mother have sole parental responsibility for the child.

4.The Applicant mother be at liberty to change the place of residence of the child [overseas].

5.The Respondent, [Mr Q] (“the Respondent father”) spend time with, and communicate with, the child, as follows:

(a)on one occasion in each year to take place in the school holidays in Western Australia on terms and conditions to be agreed between the parties;

(b)in the event the Respondent father travels [overseas] reasonable time as agreed between the Applicant mother and the Respondent father;

(c)by telephone on at least one occasion each week with the Respondent father to initiate the call;

(d)by telephone on special occasions, including Christmas, the child’s birthday and the Respondent father’s birthday;

(e)liberal telephone communication at any reasonable time in accordance with the child’s wishes; and

(f)reasonable communication by email and by letter.

6.For the purpose of paragraph 5(a) of these orders:

(a)the Applicant mother be responsible for the air travel costs of the child’s travel to Western Australia for the purpose of spending time with the Respondent father, with the Respondent father to be responsible for the child’s costs while in Western Australia;

(b)the Applicant mother take all necessary steps to book, arrange payment for and collect the child’s air tickets for the purpose of the time the child spends in Western Australia.

7.The Applicant mother have liberty to communicate with the child by telephone on one occasion each day when the child is in the care of the Respondent father.

8.The Applicant mother ensure that the Respondent father is kept fully informed of the child’s progress at school and is to authorise any school attended by the child to provide the Respondent father, on his request, with school reports, school photographs, newsletters and any other significant information relating to the child.

9.The Applicant mother ensure that the Respondent father is kept fully informed of any issues in relation to the child’s health and to inform the Respondent father in the event of any serious medical issue as soon as practicable.

10.The Respondent father be restrained and an injunction be granted restraining him from consuming alcohol to excess and from consuming illicit drugs for 24 hours prior to and during the time he spends with the child.

11.The Applicant mother and Respondent father keep each other informed of their address and telephone numbers at all times.

12.The parties have liberty to apply in the event agreement cannot be reached as to the terms of the respondent father spending time with the child in Western Australia pursuant to Order 5.

I certify that the preceding [54] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate