KILEY and TAPPING
[2020] FCWA 174
•30 SEPTEMBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: KILEY and TAPPING [2020] FCWA 174
CORAM: SUTHERLAND CJ
HEARD: 10-12 AUGUST 2020
DELIVERED : 30 SEPTEMBER 2020
FILE NO/S: PTW 6187 of 2019
BETWEEN: MR KILEY
Applicant
AND
MS TAPPING
Respondent
Catchwords:
CHILDREN - Interstate relocation - Mother seeking liberty to take 18 month old child to [the Eastern States] - Case turns on its own facts
Legislation:
Family Court Act (WA) 1997
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Rynne |
| Respondent | : | Ms Anderson |
Solicitors:
| Applicant | : | Oswald Legal |
| Respondent | : | Stellan Family Law |
Case(s) referred to in decision(s):
AMS v AIF (1999) 199 CLR 160
Fullgrabe & Fullgrabe [2015] FCWA 9
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
Sayer & Radcliffe [2012] FamCAFC 209
Selkin & Artliff-Selkin [2013] FamCAFC 19
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kiley and Tapping has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
INTRODUCTION:
1[Ms Tapping] (the “mother”) and [Mr Kiley] (the “father”) were unable to reach final agreement about parenting issues concerning their son, [Child A], who was 1½ years old at the time of trial. The father sought that the parties and Child A continue to live in [Regional Town A], [Western Australia], where the father is settled and has a comfortable existence, including: full-time, well-renumerated employment; good quality subsidized rental accommodation; and daily support from his extended paternal family. On the other hand, the mother has no such comforts available to her in Regional Town A. Since separation she has effectively been homeless for periods of time, has no employment and no family support. The mother instead sought that she be permitted to relocate with Child A to [Regional Town B], [in the Eastern States], where her family resides and where she would have the benefit of free accommodation, as well as financial and other supports from them.
2During the trial, the parties reached agreement in relation to certain parenting orders on a final basis, including that the parties have equal shared parental responsibility for Child A and that he live with the mother. On 10 August 2020, I made consent orders in the terms of the parties’ Joint Minute of Consent Orders. However, the key parenting issues that remained in dispute were as follows:
a)Whether the mother should be permitted to relocate with Child A to Regional Town B or remain in Regional Town A.
b)The father’s time with Child A, in the event that: (1) the mother and Child A continued to live in Regional Town A; (2) the mother and Child A moved to reside in Regional Town B but the father remained in Regional Town A; or (3) the mother and Child A lived in Regional Town B and the father also lived in Regional Town B or at another location.
ORDERS SOUGHT BY EACH PARTY
3In summary, the father’s primary position[1] was that Child A should remain living in Regional Town A with the mother, and spend defined time with him, building to overnight time as from October 2020. In particular, the father proposed that Child A’s time coincide with his days off during his “sportsman’s work roster” which comprised 12 hour day shifts followed by 12 hour night shifts per cycle on a rolling basis as follows: first cycle – five on / five off; and second cycle – four on / four off. This included Child A spending time with the father on the day immediately following the father’s last night shift in each five or four day work cycle. However, in the event the court were to permit Child A’s relocation, the father’s position[2] was that it should be delayed until July 2023 when Child A is 4½ years old. The father then set out a series of alternate proposals as to the spend-time-with arrangements, depending on the father’s future living arrangements (whether that be Regional Town A, Regional Town B or elsewhere).
[1] Refer to the father’s Minute of Final Orders Sought at Trial – Relocation Refused, attached to the father’s Papers for the Judicial Officer filed 3 August 2020.
[2] Refer to the father’s Minute of Final Orders Sought at Trial – Relocation Granted, attached to the father’s Papers for the Judicial Officer filed 3 August 2020.
4The father also sought numerous other ancillary orders, including that if the mother’s relocation application is unsuccessful, then: (a) the mother be permitted to travel back to Regional Town B with Child A for holidays for up to 14 days twice a year, but on condition that Child A be made available for make-up time; (b) the father be permitted to travel with Child A for holidays for up to 14 days four times a year, but on the basis that there was no provision for make-up time with the mother; and (c) the mother be required to live in specific localities within the Regional Town A area.
5On the other hand, the mother’s primary position[3] was that as from January 2021,[4] she be permitted to relocate with Child A to live in Regional Town B, with the child to spend defined time with the father on four occasions each year: in Perth, in Regional Town A and in Regional Town B; and at other times as agreed, until he reaches primary school age. The mother proposed that the spend-time-with arrangements be renegotiated via Family Dispute Resolution once Child A reaches primary school age, save that in default of agreement he would spend time with the father for two entire mid‑term school holiday periods each year, and half of the long summer school holiday period.
[3] Refer to the mother’s Minute of Final Orders – Relocation Permitted, attached to the mother’s Papers for the Judicial Officer filed on 3 August 2020.
[4] The mother clarified during the trial that she was now seeking to relocate as and from January 2021, partly in response to the evolving situation regarding the COVID-19 pandemic.
6In the event the mother’s application to relocate was refused, the mother sought orders[5] that Child A live with her and spend defined time with the father. In particular, she proposed that the father’s time with the child: (1) primarily occur on two weekends per month, rather than the spend-time-with arrangements slavishly following the father’s work roster; and (2) not take place on a day immediately following the father’s last night shift in each five or four day work cycle. She also sought various ancillary orders, including in relation to travel arrangements.
THE EVIDENCE:
[5] Refer to the mother’s Minute of Final Orders – Relocation Refused, attached to the mother’s Papers for the Judicial Officer filed on 3 August 2020.
7The parties were legally represented throughout the proceedings, including by counsel and instructing solicitors at the trial. The father relied upon his trial affidavit[6], updating affidavit,[7] up-to-date financial statement[8] and witness affidavits of his friend, [Mr B],[9] and his sisters, [Ms C][10] and [Ms D].[11] The mother relied on her trial affidavit,[12] up-to-date financial statement[13] and witness affidavit of her mother, [Ms E].[14]
[6] Father’s trial affidavit filed 24 February 2020.
[7] Father’s updating affidavit filed 31 July 2020.
[8] Father’s Form 13 Financial Statement filed 31 July 2020.
[9] Affidavit of Mr B filed 24 February 2020.
[10] Affidavit of Ms C filed 24 February 2020.
[11] Affidavit of Ms D filed 24 February 2020.
[12] Mother’s trial affidavit filed 25 February 2020.
[13] Mother’s Form 13 Financial Statement filed 23 February 2020.
[14] Affidavit of Ms E filed 21 February 2020.
8 The father: The father was extensively cross-examined by the mother’s counsel. For the most part, the father appeared to give his evidence honestly and as he saw it. However, I considered that the father was not frank, open or honest in his evidence about a number of matters, including:
a)The financial arrangements between himself and his sister, Ms D, in relation to a [gutter cleaning] business that he previously owned but which he transferred to Ms D (for no consideration) in 2017. In particular, I did not accept the father’s evidence that he assisted Ms D in the gutter cleaning business from time-to-time “for free” and did not receive any financial benefits for the work he did. Instead, I am satisfied that during the parties’ relationship, the father regularly worked for the business during his rostered days off and that since separation, he continued to do so to some extent. I also considered that the father’s explanation that the various lump sum cash payments he received from the business during the parties’ relationship were repayments of loans owing to him, was contrived, implausible, and was in any event partly contradicted by Ms D’s evidence. I am satisfied that during the parties’ relationship, the father received additional financial benefits from the business: by way of cash payments and / or by “working off” a debt he owed to Ms D. However, on the available evidence, I am unable to make any findings as to the extent of any financial benefits received by the father from the gutter cleaning business, albeit I consider it likely that he is receiving some benefits.
b)The father’s use of illicit drugs and alcohol. The father initially maintained in his trial affidavit that he had never “done drugs” with the mother and that when he did drink alcohol, he only had “a couple of beers after work to wind down or a few beers” when he had a social event with friends or family.[15] However, the father conceded during his oral evidence that he had misused alcohol in the past and had used illicit drugs (marijuana) on one occasion only. I did not accept the father’s evidence that he only used illicit drugs on only one occasion. I preferred the mother’s evidence in this regard, as being more consistent with the text message exchanges between the parties and as between the mother and Mr B about such matters.
[15] For example: refer to the father’s trial affidavit filed 24 February 2020, [232] - [235].
9At times the father was quite frank and blunt in giving his evidence, including in relation to matters that did not assist his case: for example, his unwillingness to provide any additional financial support to the mother, including to help her with her significant accommodation difficulties in Regional Town A. I also considered that the father struggled to give some of his evidence in a balanced manner. In particular, the father was often rigid and fixed in his views that whatever arrangements best met his needs and suited his convenience were also in Child A’s best interests. This was irrespective of the significant practical difficulties that such arrangements posed for the mother and Child A. The prime examples of this were: (1) the father’s view that his work roster should effectively control Child A’s live-with and spend-time-with arrangements and that he expected the mother to find employment for herself and arrange child care that conformed to his schedule; and (2) the father’s insistence that he spend time with Child A on Mother’s Day 2020, notwithstanding that he could easily have chosen another day during the same week.[16]
[16] Exhibit R6.
10The father’s sister, Ms D, and his friend, Mr B, were both cross-examined by the mother’s counsel. I considered that both were very unimpressive witnesses. I am satisfied that neither Ms D nor Mr B were prepared to be honest and open in relation to certain matters, including but not limited to: (1) Ms D in relation to her business arrangements with the father; and (2) Mr B in relation to his and the father’s use of alcohol and illicit drugs. I also considered that both Ms D and Mr B demonstrated considerable antipathy towards the mother and were simply unable to give their evidence in a balanced manner. The father’s other sister, Ms C was only briefly cross-examined by the mother’s counsel regarding her own family’s circumstances. From the brief time I had to observe Ms C, I considered that she was open and helpful in her responses. She was not challenged on her affidavit evidence and accordingly I accept her evidence.
11 The mother was cross-examined by the father’s counsel at length. The mother impressed as a thoughtful and intelligent woman, who was prepared to make concessions against her interest, including in relation to her misuse of illicit drugs (in particular, methamphetamines) and alcohol. I considered the mother gave her evidence in a straightforward and balanced manner. For example, the mother acknowledged that the father was owed an apology for her decision to take Child A to Regional Town B in December 2019 for a holiday without the father’s knowledge or consent. However, the mother appropriately tempered that concession by pointing to the broader context in which the decision was made, namely: the deterioration in her mental health due to her isolation in Regional Town A with a very young child and her limited support network; together with the father’s dogged refusal to consider any proposal for her to travel with Child A interstate to see her family.
12The maternal grandmother, Ms E, was not required for cross-examination and accordingly, I accept her evidence as unchallenged.
FACTUAL BACKGROUND:
13The father was born in 1985 in Western Australia and is now 35 years old. He has lived in Regional Town A since 2012 and is employed [locally] as a [tradesman] in the [construction industry]. His sisters Ms C and Ms D and their respective families also live and work in the Regional Town A area. The father’s other extended family members, including his parents (who are divorced), and his other siblings and their families live in Perth and the south west of Western Australia. The father also has a teenage child named [Child B], whom he fathered during a brief relationship with Child B’s mother when he was working in [the Eastern States] as part of a [construction] team. The father was unaware of Child B’s existence until being contacted by the Child Support Agency several years after her birth. He has never met Child B and has no relationship with her.
14The mother was born in 1989 in the Eastern States and is now 31 years old. She moved to Western Australia in 2011 with a former partner and took up employment as [an aged care worker]. The mother was quickly promoted to more senior positions in the [aged-care] industry, before starting her own aged-care business. In 2016, the mother obtained employment as an Inclusion Professional delivering support programs to [aged-care services] across the [various regional areas], based out of Regional Town A. Since Child A’s birth in [mid] 2019, the mother has been a full-time homemaker and parent. The mother’s parents continue to live in Regional Town B, in the Eastern States, as does her eldest brother, his partner and their two young boys. The mother’s second brother, his partner and their young son live in in the Eastern States.
The parties meet, and illicit drug use
15The parties first met in Regional Town A in mid-2016 or early 2017.[17] I accept the mother’s evidence that it was around this time that she used methamphetamines for the first time, including using it with the father and others at social gatherings on weekends.[18] Whilst the father denied using illicit drugs, other than smoking marijuana on one occasion, I prefer the mother’s evidence for the following reasons:
a)Firstly, the father’s concession that he smoked marijuana was given only after the mother produced, by way of disclosure, a photograph of the father using that drug. His evidence, to the effect that he could not really remember using marijuana on the occasion depicted in the photograph was, in my view, an unconvincing attempt at explaining away his failure to be frank with the Court about his past drug use.
b)Secondly, the father sent a text message to the mother in the lead up to Child A’s birth, where he said, “I love that your off the drugs now as I dont wanna do that I was on it for so long and it ruined my life when I was”.[19] Under cross-examination, the father’s evidence was that his reference to being “on it for so long” was to alcohol, and not methamphetamines. The plain, ordinary meaning of the words used by the father in his message stand in stark contrast to the meaning he sought to ascribe to them under cross‑examination. The father’s interpretation also sits at odds with his evidence in his trial affidavit, where he denied a history of drinking to excess.[20]
c)Thirdly, the father’s friend, Mr B, was cross‑examined about his [social media] messages with the mother. In one exchange, Mr B offered the mother “dingas” (ecstasy), which she declined. In another exchange, Mr B confirmed that he and the father got “a little bit” cooked the night before. When the mother’s counsel put to Mr B that, “you’re talking about drugs aren’t you?”, he responded rather evasively, “I talk about lots of things”, before going on to deny that the term “cooked” related to taking drugs. Having observed how uncomfortable Mr B appeared in the witness box under this particular line of questioning, I found his denial unconvincing.
[17] The parties were in dispute about the precise date, but nothing turns on it.
[18] Mother’s trial affidavit filed 25 February 2020, [14].
[19] Exhibit R13. Errors in the quoted portion are as per the original.
[20] Father’s trial affidavit filed 24 February 2020, [234].
16The mother’s evidence was that she used methamphetamines for a period of nine months, from January 2017 to September 2017, at which point she failed a workplace drug urinalysis test. The mother’s employer arranged for her to spend some time away from Regional Town A on a three‑month secondment in [another town]. The mother volunteered to undergo weekly urinalysis testing at her own cost to assure her employer that she was no longer abusing methamphetamines.
17I accept the mother’s evidence that she has not used methamphetamines since September 2017. The mother impressed me as having developed considerable insight into how dangerous and addictive that drug is. I also accept the mother’s evidence that in order to reduce the risk of using again, she cut ties with a number of friends in Regional Town A.
The parties commence their relationship
18In January 2018 the mother returned to Regional Town A, and in February or March 2018 the parties commenced a relationship. At the time, both parties worked full time: the father in the [construction] industry and the mother in the [aged-care] industry. I am satisfied that the father also regularly worked in the gutter cleaning business on his rostered days off.
The mother falls pregnant with Child A
19In June 2018, the mother moved in with the father, and shortly thereafter fell pregnant with Child A. I accept the mother’s evidence that during her pregnancy, she felt alone, isolated and anxious, including in relation to: (1) a general sense that something bad would happen to the baby; (2) the father’s busy work schedule and concerns that she should be left at home alone with the baby once born; (3) the father’s failure to attend a number of anti-natal medical appointments;[21] and (4) the lack of support from family and close friends. It was not in dispute that the mother has a history of anxiety which was first diagnosed in 2009, for which she has been treated on and off since. It was also not in dispute that the mother had a difficult time during her pregnancy, to the extent that the father offered to pay for the mother to travel to Regional Town B.[22] The mother declined that offer, on the basis that she wanted the father to be present at Child A’s birth.
Child A’s birth, and arrangements for his care
[21] The mother’s evidence was that the father only attended the initial dating scan. The father’s evidence was that he attended three “baby appointments”, being ultrasounds and birthing classes. Neither party cross-examined on this issue. In any case, it was not in dispute that the father did not attend the majority of the anti-natal appointments.
[22] Whilst the father disputed that he offered to provide the mother with a sum of $10,000, he conceded under cross-examination to offering to pay for the travel costs on his credit card that he was otherwise trying to “pay off”.
20Child A was born [in mid] 2019. The mother’s parents travelled to Regional Town A for the birth, arriving two weeks beforehand and staying for a month.
21It was common ground that the mother has been Child A’s primary carer since his birth. What was in dispute was the extent to which the father was involved in Child A’s care following the birth and prior to the parties’ separation. The father took six weeks carer’s leave immediately following Child A’s birth. However, the maternal grandmother’s unchallenged evidence was that the morning after the mother and Child A returned home from the hospital the father went to work in the gutter cleaning business early and did not return until 7.30pm that night. The maternal grandmother also deposed that for the remainder of her stay in Regional Town A (being a further two weeks), the father continued to work “a lot” in the gutter cleaning business and had little to do with Child A’s care,[23] which accorded with the mother’s evidence.[24] I also accept the mother’s evidence that when the father returned to his usual job following the conclusion of his carer’s leave, he continued working in the gutter cleaning business on his days off.[25] Accordingly, I am satisfied that, prior to separation, the father took a very traditional view of his role as the breadwinner for the family. He spent a significant proportion of the week away from home at work, leaving the vast majority of Child A’s parenting to the mother.
Events leading to the parties’ separation
[23] Affidavit of Ms E filed on 21 February 2020, [28].
[24] Mother’s trial affidavit filed on 25 February 2020, [36] – [38].
[25] Mother’s trial affidavit filed on 25 February 2020, [42].
22I am satisfied that the parties’ short relationship was marred by constant conflict: the mother on the one hand complaining about her perception that the father prioritised his work and social life over his new family; and the father on the other hand railing against what he perceived as the mother being overly anxious, jealous and demanding of his time. Toward the end of July 2019, the parties holidayed in the south west of Western Australia. By all accounts, the holiday was a success, with the parties and Child A enjoying their time together without incident. Unfortunately, things quickly deteriorated upon their return to Regional Town A.
23The mother and Child A flew home to Regional Town A, arriving on 1 August 2019. The father arrived the following day by car (having driven back from [the holiday location]). The father was accompanied by Mr B, whom he had collected on the way. The mother’s evidence was that she believed that Mr B had brought methamphetamines with him, and for this reason she insisted that Mr B not stay in the parties’ home during his stay in Regional Town A. I accept the mother’s evidence that her request caused tension between the parties.
24On 13 August 2019, the parties agreed that the father would look after Child A so that the mother could have some time to herself. Whilst the parties’ accounts of what transpired on that day differ (and neither was challenged in cross-examination to any great extent on their respective versions), it was conceded or was not otherwise in dispute that:
a)The mother left Child A in the father’s care from around 11.30am - 12 noon. The mother then attended a medical appointment, before meeting friends for lunch where she consumed alcohol.
b)The mother returned home about 7.00pm – 7.15pm, having caught a taxi as she considered she would be over the limit if she drove. I accept the father’s evidence that he observed the mother to be intoxicated when she arrived home.
c)Although the sequencing differs on each party’s account, the parties then had a heated verbal argument, and the father refused to hand Child A to the mother despite her requests that he do so. The father (holding Child A) made his way from the kitchen to Child A’s bedroom, and the mother followed. The parties continued to argue, before the father yelled out for Mr B to come to the bedroom. The mother then removed herself from the situation and went outside for 10 to 15 minutes.
d)Upon re-entering the home, the mother found the father and Child A gone. After running to the neighbour’s house for help, the mother then telephoned the father’s sister, Ms C, and learned that the father had taken Child A to her home. The mother went to Ms C’s home, and attempted to gain entry, but was blocked at the doorway by the father. The mother then called the police, who attended the property, and ultimately drove her home without Child A.
25Child A remained in the father’s sole care for approximately two days. This was notwithstanding that Child A was [less than six] months old at the time and still being breastfed. The mother was eventually able to arrange for the return of Child A into her care with the assistance of the Western Australian Police, after obtaining an ex parte interim family violence restraining order (“FVRO”) on 15 August 2019 protecting her and Child A from the father. The interim FVRO was later amended to remove Child A as a protected person.
The father commences court proceedings, and Child A’s time with the father
26On 19 August 2019, the father commenced these parenting proceedings. Notwithstanding the father’s refusal to hand Child A over to the mother less than a week prior, he sought interim orders in his Initiating Application that Child A live with the mother and spend time with him during his rostered days off, including two overnights each cycle. On a final basis, the father sought an order that Child A live with the parties on a week-about basis. In the letter that accompanied the father’s application, he sought an urgent listing on the basis that he anticipated that the mother would be moving back to Regional Town B “such as to unilaterally relocate the child’s residence without [the father’s] consent”. Accordingly, the father’s application was listed for hearing on 22 August 2019.
27At the hearing, the parties reached agreement about interim parenting arrangements for Child A, and orders were made by consent (among others) that: (1) the parties have equal shared parental responsibility for Child A; (2) Child A live with the mother, and spend time with the father on his “non-work days” three times per week, between 3.00pm and 6.00pm on days nominated by the father on not less than 28 days’ notice; and (3) the parties be restrained by injunction (on a without admission as to need basis) from relocating with Child A outside the Regional Town A area.
28Child A commenced spending time with the father on and from 12 September 2019. Generally speaking, it was not in dispute that Child A’s time with the father has gone well, save for the following matters:
29 Firstly, parties were in dispute about the meaning of a “non-work day” for the purposes of Child A’s time with the father. The mother’s position was that the day following the father’s night shift was a “work day”, and therefore not a day on which Child A should spend time with the father. The father maintained otherwise. The mother also expressed concerns about the father working in the gutter cleaning business immediately after coming off nightshift, such that the father had little or no sleep prior to having Child A in his care in the afternoon. The father denied that this was the case. The upshot of this dispute was that the mother refused to hand Child A over to the father on days that directly followed the father’s nightshifts, and insisted that the father instead choose to care for Child A on one of his other rostered days off. In my view, neither the mother nor the father did themselves credit in adopting their respective positions. I consider that the mother’s anxiety around the amount of sleep the father had before caring for Child A was somewhat overbearing and demonstrated a lack of trust in the father’s abilities to make proper parenting decisions for Child A (including in the management of his own fatigue to ensure that Child A was properly cared for). I have little doubt that at times, the mother also had to care for Child A whilst being very tired, noting her evidence about Child A’s disturbed sleep patterns following separation. On the other hand, the father’s refusal to simply choose another rostered day off to spend time with Child A (other than the day he came off nightshift) reflected his rigid and inflexible attitude towards the mother’s concerns around fatigue and risk (which were not completely without merit). The father failed to provide any reasonable explanation as to why he could not simply pick another day. I considered that the father was more concerned about getting his own way, rather than finding a solution that was child-focussed and would reduce the conflict between the mother and himself.
30 Secondly, the father complained about several visits where the mother did not hand over Child A on time or at all, because Child A was still sleeping and/or was ill. Whilst the father’s frustration was understandable, I also considered that he could have approached the issue with more compassion, understanding and a willingness to be flexible. Very young children do not always operate to schedule, and slavishly insisting on strict adherence to hand over times may simply not be in a young child’s best interests. Importantly, I am not satisfied there was any cogent evidence to support a conclusion that the mother was deliberately sabotaging Child A’s time with the father by using sleep and health issues as an excuse to cancel visits, despite the father’s assertions to the contrary. To the father’s credit, he did concede that he had recently agreed to cancel a scheduled visit, because Child A was “excessively sick” and it was more appropriate that Child A remain in the mother’s care.
The mother’s difficulties in finding accommodation following separation
31After separation in August 2019, the mother and Child A were effectively homeless for some months and relied on the goodwill of friends who needed someone to house sit, or who were willing to house the mother and Child A for a limited period of time in exchange for the payment of modest rent. The mother ultimately found more stable accommodation towards the end of January 2020: in a one-room granny flat at a friend’s house, for which she is paying $200 per week in rent.
32I accept the mother’s evidence that between the date of separation and the filing of her trial affidavit in February 2020, she registered to inspect over 24 rental properties in Regional Town A, of which 16 viewings were cancelled because the properties were rented to pre-approved tenants. Of the six or so properties that the mother did apply for, her applications were rejected.[26]
[26] Mother’s trial affidavit filed 25 February 2020, [74].
33The mother deposed that her average weekly income is approximately $668 per week (including child support of approximately $148 per week).[27] The mother estimated that her weekly expenses (excluding rent) roughly equalled her income, with the effect that she lives from one Centrelink and child support payment to the next. The mother has nominal savings and owns nominal property.
[27] Mother’s Form 13 financial statement filed 23 February 2020, Part B, Item A; and mother’s trial affidavit filed 25 February 2020, [80] and [81].
34The father was cross-examined at some length about a list[28] of rental properties in Regional Town A that he compiled, the cheapest of which was a one bedroom, one bathroom unit for $210 per week, followed by another one bedroom, one bathroom unit for $350 per week. The father conceded that a one bedroom home would not be suitable for the mother and Child A once he turns two years old, but otherwise refused to be drawn on what he considered would be suitable accommodation, stating that it was not for him to say how many bedrooms the mother would like. The remaining rental properties on the father’s list ranged from a two bedroom, one bathroom home for $350 per week, all the way up to properties listed for $950 per week. The father was then asked about his accommodation. He confirmed that he currently lives alone in a rented four bedroom home and that his employer subsidises the rental costs.
[28] Exhibit R11.
35It was put to the father that most of the properties on his list were well beyond the mother’s financial capacity to afford. The father denied that was the case, suggesting that the mother should obtain employment, and that her parents had also offered to pay for her accommodation. When it was suggested to the father that it was not reasonable to expect the mother’s parents to pay for her accommodation, the father riposted that, “parents should provide for their children”. When the hypocrisy of that answer was pointed out to the father in regards to his responsibility to ensure that Child A had suitable, stable accommodation, he made no response.
36The father was emphatic in his evidence under cross-examination that he would not provide the mother with any additional financial support over and above child support (even to the extent that the father refused to pay for half of the very modest fees for Child A’s swimming lessons when asked by the mother, because “that is what child support is for”). As such, I am satisfied that the mother is very likely to struggle to find, and be in a position to afford, suitable, stable accommodation in Regional Town A. I am also satisfied that the instability around the mother’s and Child A’s accommodation following separation has had a significant, negative impact on the mother’s sense of safety and security in Regional Town A, and contributed to her anxiety.
The mother commences counselling
37After separation, the mother commenced counselling with [a] psychologist. The mother initially saw the counsellor on a two or three week-basis, but reduced the frequency of her sessions to “as needed” because of the cost.
The mother applies to relocate to the Eastern States on an interim basis
38On 25 October 2019, the mother filed an application to relocate with Child A to Regional Town B on an interim basis. The application was listed for hearing on 4 December 2019. By the time of the hearing, the father had still not filed a response. The Magistrate who heard the matter made orders for the father to file his responding documents, and otherwise placed the matter in the complex track with a request that the Judge Manager consider the further listing of the mother’s interim relocation application. The mother attached to her trial affidavit a photo that the father posted to his social media page after the court hearing that morning, being a picture of a beer with the caption, “Thus (sic) is what victory looks like”.[29] The father denied under-cross examination that he was pleased that the mother’s interim relocation application had not proceeded that day. If the father was indeed referring to the outcome of the court hearing in his social media post, it reflected poorly on him and lent weight to the mother’s complaint that the father views the parenting dispute as a contest between the parties, when it should be a search for solutions that are in Child A’s best interests.
The mother travels to Regional Town B
[29] Mother’s trial affidavit filed 25 February 2020, annexure “RJ-15”.
39After the hearing on 4 December 2019, the mother asked the father whether she could nevertheless travel to the Eastern States with Child A to visit her family, and sought to engage the father in a dialogue about re-arranging the visits he would miss whilst she and Child A were away. The father flatly refused to entertain the mother’s proposal, on the basis that he had already nominated his days with Child A, and that his family would be visiting Regional Town A in December 2019 / January 2020. The father adopted that position notwithstanding that he acknowledged under cross‑examination that: (1) the mother was unhappy at the time; and (2) he was confident that if the mother failed to return from her holiday, he would be able to get a court order for her return. Accordingly, I do not accept that the father was genuinely concerned that the mother would not return with Child A if she was permitted to travel. Instead, I am satisfied that the father’s refusal exemplified his dogmatic and rigid approach to parenting arrangements, and his view that his plans should take precedence over the needs of the mother and Child A.
40The mother travelled anyway. The mother’s evidence about her decision to go (which I accept) was as follows:
After a hearing in the Family Court on 4 December 2019 the reality of having to stay in [Regional Town A] for a substantial amount of time left me feeling further overwhelmed. [The people with whom I had been staying] had let me know they were intending on moving into a company house [as one of them had a] new job. Their rent was being increased and they were struggling to afford rent and bills. I had no idea where [Child A] and I would go and experienced an emotional breakdown. I was speaking with my family numerous times a day, and when [Child A] was asleep, I would break down and cry uncontrollably to them on the phone. I tried to speak with [the father] and get his approval for [Child A] and me to take holidays [in the Eastern States]. I tried to negotiate this around the time [the father’s] family was visiting [Regional Town A], so that [Child A] would not miss out on seeing any family members. I found it completely unreasonable that [the father] wouldn’t let [Child A] and I visit [the Eastern States]. I felt helpless and trapped. My parents became extremely concerned for my emotional wellbeing and decided to book flights to [the Eastern States] for the following day, 8 December and a return ticket to [Regional Town A] for 23 December. I was adamant on returning to [Regional Town A] before Christmas Day so [Child A] would be able to spend time with [the father] as arranged. I informed my lawyer of these plans immediately and sent through our itinerary for them to communicate with [the father’s lawyer]…[30]
[30] Mother’s trial affidavit filed 25 February 2020, [89].
41On 10 December 2019 the father filed an urgent application seeking the mother’s and Child A’s return. That application was ultimately dismissed, as the mother returned to Regional Town A with Child A as planned on 23 December 2019.
42The father was critical of the mother for her decision to take Child A to the Eastern States without his knowledge or consent. The father’s counsel certainly sought to make a major issue out of it when cross‑examining the mother. Ultimately, whilst I do not condone the mother’s actions, I am more critical of the father for his patently unreasonable stance in opposing the mother’s proposed holiday, in circumstances where: (1) he acknowledged that the mother was unhappy and that she had not seen her family in over nine months; and (2) he conceded that there was ultimately no risk in the mother not returning with Child A, given he was confident in obtaining a recovery order if matters so transpired.
43The father also acknowledged under cross-examination that the mother ensured that that he and Child A had make-up time for the visits he missed in December 2019.
The matter is expedited to trial
44On 13 January 2020 the matter came before Moncrieff J. Rather than deal with the mother’s relocation application on an interim basis, his Honour instead appropriately directed that the proceedings be expedited to trial.
45The parties were also afforded the opportunity to participate in a Pre‑Trial Conference with a Registrar on 24 June 2020. To their great credit, the parties reached a number of agreements at the conference, including that: (1) the parties will have equal shared parental responsibility for Child A; (2) Child A will live with the mother; and (3) the interim arrangements for Child A to spend time with the father will be extended, such that Child A will now spend time with the father from 11.30am to 4.30pm three days per week. The parties also agreed to vary the orders made on 22 August 2019 to enable them to speak directly with each other about Child A, as opposed to communication needing to be in writing.
46The trial proceeded before me over four days, commencing on 10 August 2020. During the trial, the mother confirmed that in the event she was permitted to relocate with Child A to Regional Town B, then she would not oppose an injunction being made restraining her from changing Child A’s principal place of residence from Regional Town B without the father’s prior written consent or an order of the court. She also clarified the orders she sought in the event she is permitted to relocate with Child A to the Eastern States on or after 21 January 2021. In particular:
a)The mother proposed that Child A continue to spend time with the father on three non-work days per week, from 11.30am to 4.30pm (and noting that the definition of a “non-work day” is one where the father does not work at any time during the 24 hours of that day).
b)Then from 1 October 2020 to 20 January 2021, the mother proposed that Child A spend two weekends per calendar month with the father, being from 11.30am to 4.30pm on three consecutive days, and including one overnight visit from 11.30am on day 1 to 4.30pm on day 2, in addition to time on non-work days as agreed between the parties.
c)Thereafter and upon the mother and Child A relocating to the Eastern States on or after 21 January 2021, the mother proposed a staged increase in Child A’s time with the father during his four visits with Child A each year (being six days in Regional Town A, six days in Perth, and two blocks of eight days in Regional Town B), as follows: in 2021, two non-consecutive overnights during each visit; in 2022 an additional (non-consecutive) overnight during the two Regional Town B visits; and in 2023; three overnights (two consecutive, one non-consecutive) in the Regional Town A and Perth visits, and four overnights in the Regional Town B visits (being two consecutive overnights with a one night break, and a further two consecutive overnights).
47The parties also agreed that in determining these proceedings, I may take judicial notice of the current border/quarantine restrictions imposed by the Western Australian government in response to the COVID‑19 pandemic.
Current care arrangements for Child A
48As at the date of the trial the mother is a full-time parent to Child A. The father continues to work [in the construction] industry, and Child A spends time with him three days per week on his rostered days off, from 11.30am to 4.30pm. Both parties agreed that Child A is a very happy and healthy child, who enjoys spending time with both parties and his extended family.
APPLICABLE LAW:
49These proceedings are determined under Part 5 of the Family Court Act1997 (WA) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 66 sets out the objects and the principles underlying them. As the parties agreed to an order for equal shared parental responsibility, I must consider the obligations placed upon me by s 89AA of the Act which requires me to consider whether the child should spend equal time or substantial and significant time with each parent. Neither the mother nor the father sought an order that Child A live equally with the parties. Instead, the parties agreed that Child A should live primarily with the mother. However, they did not agree the time that Child A would spend with the father.
50In determining the outcome of parenting matters, I must, pursuant to s 66A of the Act, consider the best interests of the child as the paramount consideration. In determining what is in a child’s best interests I must consider the matters set out in s 66C of the Act. This case concerns a proposed relocation from Regional Town A, Western Australia to Regional Town B, in the Eastern States. It is well established that while some special requirements apply to relocation cases, they are guided by the same legislative pathways as other parenting cases and the proposed relocation is not to be treated as a discrete issue in the making of a parenting order.[31] The case law establishes the following core principles that are applicable in relocation cases:
a)the child's best interests remain the paramount consideration, but they are not the sole consideration;
b)a parent wishing to relocate does not need to demonstrate “compelling” reasons;
c)the court is not bound by the competing proposals of the parties and may be required to formulate alternative proposals in the child's best interests, but any such alternative proposal must not be put in place without giving the parties reasonable notice of the proposal and an opportunity to be heard;
d)the child's best interests must be weighed and balanced with the proposed relocating parent's legitimate interest and desires and right to freedom of movement, but this right can be outweighed if there is a need to put in place an arrangement that is inconsistent with that right, but is nevertheless in the best interests of the child; and
e)in an appropriate case, the court should inquire as to whether the party who opposes the proposed relocation could not, himself or herself, move to a place close to where the child will be living if the relocation is allowed.[32]
[31] Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 [47].
[32] AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 [144], cited with approval in Selkin & Artliff-Selkin [2013] FamCAFC 19; Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 [80]; Fullgrabe & Fullgrabe [2015] FCWA 9 [163] - [168].
51I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor, it is because I consider that it is not relevant in this case.
PRIMARY CONSIDERATIONS:
The benefit to the child of having a meaningful relationship with both of the child’s parents
52The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that “a meaningful relationship…is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one”.[33] It was not in dispute and I am satisfied that there is a positive benefit to Child A in having and maintaining a meaningful relationship with each of the parties. I am also satisfied that if Child A were to remain in Regional Town A, then in all likelihood, he will continue to have opportunities build on and develop his meaningful relationship with the father, reinforced by regular, physical contact. On the other hand, if I permit Child A to relocate to the Eastern States, I accept there is a risk that the quality of the father’s relationship with Child A may diminish. That said, I am also satisfied that in all likelihood, with regular Skype/Facetime sessions in between physical visits, Child A will be able to maintain a meaningful relationship with the father. As Kay J observed in Godfrey & Sanders [2007] FamCA 102 (at [36]), “[e]ven if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[33] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 [115] and [121]; Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 [26].
53The father’s counsel invited me to take judicial notice of the fact that Child A is too young to have formed a meaningful relationship with the father that will survive the relocation. Allied to that was the submission that delaying the relocation to mid-2023 would allow time for the father and Child A to cement their relationship. In this regard, the father’s counsel conceded that if the mother had delayed making her relocation application until Child A is five or six years old, the father would have difficulty resisting it. The court did not have the benefit of evidence from a psychologist with expertise in child development, which would have provided a proper basis for the father’s submission about the risk to Child A and the father’s relationship (or perhaps counted against it). Whilst I am not prepared to take judicial notice of the matters urged upon me by the father’s counsel, I nevertheless do accept that as a matter of common sense and experience, Child A’s very young age means that in the future, he is unlikely to remember his experiences to date with his father. However, I am not satisfied that, in the event relocation is permitted, the lack of such memories will inevitably detrimentally affect the nature and quality of Child A’s relationship with his father moving forward, particularly if regular contact between Child A and the father is maintained through blocks of physical time, together with regular Skype/Facetime sessions.
54The father’s counsel also submitted that there was also the risk that the Western Australian Government’s COVID-19 travel restrictions may extend into the future, such that it may be some time before the father is able to take up the opportunity to spend time with Child A if I permit the relocation (that is, of course, leaving aside the scenario where the father also relocates to the Eastern States). In closing, the father’s counsel urged me to find that in these extra-ordinary times, the mother’s interest in relocating to the Eastern States to be with and enjoy the support of her family must yield to Child A’s right to have a meaningful relationship with the father. Regrettably, that submission did not engage with the obvious inverse position: that in these extra-ordinary times, the father should consider leaving Regional Town A to live close to Child A in the Eastern States, so that distance and potentially ongoing COVID-19 related travel restrictions do not diminish their meaningful relationship.
55In his Minute of Final Orders Sought at trial, the father contemplated eventually moving to the Eastern States himself, if relocation was permitted. The only reason the father gave for not being prepared to also relocate to the Eastern States in the short to medium term was because he wanted to pay off his debts. Beyond that, the father’s case as to why he could not or did not want to move was opaque. Having observed the father in the witness box, the father struck me as someone who likes things done his way. I am satisfied that his reticence to move to the Eastern States is (at least in part) based on the fact that he is comfortable and settled in Regional Town A and would simply prefer not to move.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
56Neither the mother nor the father contended that Child A is at risk of abuse, neglect or family violence in the other party’s care. Although the parties deposed at some length to historical incidents of family violence, those matters were not the subject of any real cross-examination and the trial was very much conducted with a future focus. However, I do wish to address the following:
a)The mother’s mental health and illicit drug use: I am satisfied that the mother is appropriately managing her mental health (including by attending upon a psychologist as needed, and taking anti-anxiety medication as prescribed). I am also satisfied that the mother has not used illicit drugs since September 2017, and has developed considerable insight into the dangers of methamphetamine use. It follows that I am satisfied that neither the mother’s mental health nor her historical illicit drug use pose a risk of harm to Child A.
b)The father’s use of illicit drugs and alcohol: I am satisfied that the father was not frank about his use of illicit drugs in the past, save for his eventual concession that he smoked marijuana on one occasion. Even so, there was no cogent evidence that the father is currently misusing illicit drugs, and I accept his evidence that he continues to be employed in an industry that regularly (and randomly) drug tests its workforce. I am also satisfied that the father has misused alcohol in the past – and he conceded as much under cross-examination. However, there was also no cogent evidence that alcohol misuse remains a feature of the father’s life or that the father poses a risk of harm to Child A.
ADDITIONAL CONSIDERATIONS:
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
57It was not in dispute that the mother has been Child A’s primary carer since birth, and the father conceded that Child A should remain living with the mother, regardless of whether I permit the relocation. It was also not in dispute that Child A has a close and loving relationship with both parties, as well as the father’s extended family who live in Regional Town A. If Child A remains living in Regional Town A, he will have the opportunity to continue to develop those relationships. I am also satisfied that there will also be regular opportunities for Child A to spend time with and develop his relationships with the broader paternal family who live in Western Australia, including his paternal grandparents.
58I am satisfied that the mother has promoted Child A’s relationship with the extended maternal family members who live in the Eastern States, including by facilitating regular Facetime/Skype sessions, and by visiting them in December 2019. If the mother is permitted to relocate with Child A to the Eastern States, then I am satisfied that he will have further opportunities to develop his relationships with the extended maternal family, including the maternal grandparents, his aunts, uncles and cousins. He will also be able to maintain his relationship with the paternal family, both via Skype/Facetime sessions and during holidays (noting the mother’s proposal that Child A travels to Western Australia on two occasions per year, albeit I accept there is a risk that COVID-19 travel restrictions may hamper those arrangements).
59In circumstances where the maternal and parental extended families live on either side of Australia, it is inevitable that my decision will result in Child A having greater opportunities to develop relationships with the family to whom he lives closest.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child
60I am satisfied that both parties have taken every opportunity to participate in decision making about major long term issues affecting Child A, to spend time with and communicate with him.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
61The father is currently paying child support for Child A as assessed, in the amount of approximately $148 per week.[34] The parties otherwise meet Child A’s costs when he is in their care.
[34] Mother’s Form 13 financial statement filed 23 February 2020. I note that the father disclosed a higher amount of child support in his Form 13 financial statement filed 31 July 2020. However, the father also annexed a child support account statement to his updating affidavit filed 31 July 2020, which indicated that the currently monthly payment was $645.33 per month: or approximately $148 per week.
62The financial statements filed by the parties revealed that the father’s income was $2,879 per week (gross), and he had weekly expenses totalling $3,144 (including child support payments for both Child A and his daughter, Child B).[35] For her part, the mother’s income was $668 per week (gross), and she had weekly expenses totalling $670.[36] Having reviewed the mother’s average weekly expenses in Part N of her financial statement, I am satisfied that she and Child A are living an exceedingly modest existence.
[35] Father’s Form 13 financial statement filed 31 July 2020, Part B.
[36] Mother’s Form 13 financial statement filed 23 February 2020, Part B.
63The mother and Child A were effectively homeless for some months after separation and I am satisfied that the many times they moved would have been disruptive and unsettling for them both. I also accept the mother’s evidence that her current accommodation (a one-room granny flat) is small, cramped and unsuitable. I also note her unchallenged evidence that it flooded during a recent [storm], whilst she and Child A were inside. The father’s position was that the maternal grandparents should financially support the mother to find accommodation in Regional Town A – because “parents should provide for their children”. That answer was astounding given the father’s refusal to provide that very same support for his own son.
64My criticism of the father’s failure to provide additional financial support to the mother is somewhat tempered by the fact that he was not cross-examined on the content of his financial statement,[37] which on its face disclosed a weekly deficit of about $265. I also do not criticise the father for not offering up his home to the mother and Child A, as I accept his evidence that it is company provided accommodation that requires that he be in occupancy. However, I am satisfied that:
a)During the parties’ relationship the father received significant cash sums of money from the gutter cleaning business. I am satisfied that the gutter cleaning business was a financial resource for the father during the parties’ relationship. To the extent the father conceded that he continues to work in the gutter cleaning business (in terms of providing his time and labour), and that sums of money frequently pass back and forth between him and his sister in respect of the business, I am satisfied it is likely that the business continues to be a financial resource for him. I am reinforced in that conclusion by the father’s evidence that he transferred the gutter cleaning business to his sister in 2017 for no consideration, on the basis that she would, in future, give the business back to him. The father denied the allegation that his sister was warehousing the business so as to minimise his tax and child support liabilities.
b)The father currently lives in a four-bedroom home by himself. There was some evidence that the father had an employee from the gutter cleaning business living with him for some time following separation. I agree with the submission by the mother’s counsel that the father was very cagey in his evidence when he was asked how much the employee paid in rent. I am satisfied that the father was paid rent, although he was not forthcoming about the amount. To the extent the father has previously sublet his home and received additional income, I can see no reason why he could not do the same in the future.
37.Prior to the mother’s relocation to [Regional Town B] with the child pursuant to these orders, the Mother and the Father be restrained by an injunction and an injunction hereby be granted restraining them from relocating with the child outside the [Regional Town A] area and changing the child’s principal place of residence, without the written consent of the other party or an order of the court.
38.Following the mother’s relocation to [Regional Town B] with the child pursuant to these orders, the Mother be restrained by injunction and an injunction be hereby granted restraining her from changing the child’s principal place of residence from [Regional Town B], [Eastern States] without the father’s express written consent or an order of the court.
39.In the event that the child is exposed to family violence, the parent with care of the child pursuant to these orders, shall immediately remove the child from such exposure. [JM]
TRAVEL
40.Should either parent wish to travel outside of the State in which they reside (but within Australia) during their time with the child, the parent intending to travel with the child shall provide the other with written notice of their intention to do so at least fourteen (14) days prior to the intended departure date and provide:
a) an itinerary;
b) flight numbers (if applicable);
c) details of where the child will be staying; and
d) all other appropriate contact details;
and the other and the other parent's consent will not be unreasonably withheld.
41.Should either parent wish to travel overseas during their time with the child, the parent intending to travel with the child shall provide the other with written notice of their intention to do so at least fourteen (14) days prior to the intended departure date and provide:
a) an itinerary;
b) flight numbers (if applicable); and
c) details of where the child will be staying;
and the other parent's consent will not be unreasonably withheld.
42.Should a passport be needed for the child, the parties do all acts and sign all relevant documents to obtain a passport for the child and the parties shall equally bear the cost of the same. [JM]
43.Thereafter, the Mother shall retain the passport for the child for safe-keeping and provide the passport to the Father 14 days in advance of any overseas travel. [JM]
PROCEDURAL
44.This is an order to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties in the Magistrates Court in [Regional Town A] being complaint number [XXXX], the aforesaid parenting Order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency. [JM]
45.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar Magistrates Court at [Regional Town A] and Chief Executive Officer of the Department of Communities. [JM]
46.The Mother’s Application for Spousal Maintenance be dismissed. [JM]
47.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
48.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits;
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
49.In the event of an appeal being lodged prior to the expiration period of 42 days, then the two immediately preceding paragraphs above do not apply.
50.The matter be removed from the Defended List.
51.All outstanding proceedings be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate
30 SEPTEMBER 2020
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