KING and KING

Case •

[2011] FCWA 29

•

15 APRIL 2011

No judgment structure available for this case.

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : KING and KING [2011] FCWA 29

CORAM : THACKRAY CJ

HEARD : 5 APRIL 2011

DELIVERED : 15 APRIL 2011

FILE NO/S : PTW 5920 of 2007

BETWEEN : KING Applicant Wife

AND KING

Respondent Husband

Catchwords:

CHILDREN – RELOCATION – Application by the mother to relocate the children from a wheatbelt town to the Perth metropolitan area – Turns on its own facts – Relocation permitted

Legislation:

Nil

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr Moser
Respondent : Ms Penn

Solicitors:

Applicant : Crossing Family Lawyers
Respondent : W L & K J Everett

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

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

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

1[Andrew] (13) and [David] (11) have always lived in [a wheatbelt town]. Their mother now wants to take them to live in [the metropolitan area]. Their father wants them to stay in the wheatbelt town, and would like to spend more time with them.

2 The wheatbelt town, is about 200 kilometres from Perth. The suburb is on

Perth’s south-western perimeter, about 50 kilometres from the CBD.

Brief background

3 The mother and father were married in September 1995, separated in October

2006, and divorced in March 2008. They lived in the wheatbelt town throughout their relationship. Andrew and David are their only children, having been born in December 1997 and March 2000 respectively.

4The mother works as [a teacher’s aide] at the [local country high school], where Andrew recently commenced Year 8. She lives with the boys in the former matrimonial home, which is now in her name. The property has been on the market since about May 2010.

5The father boards with his nephew, but spends a lot of time staying with his mother in [another country town], where he works (30 hours a week). This town is about a 30 minute drive from the wheatbelt town.

6 The mother continued to have the primary care of the children after separation.

Initially, the children spent two nights with the father each alternate weekend, as well as one three hour period each week. The night-time contact increased to four nights a fortnight following an interim order made in March 2009. The order also provided for the father to have three hours with the boys each intervening Wednesday.

7The mother had offered, in October 2007, to increase the father’s time with the children to four nights each alternate week, and two periods of three hours in the intervening week. The father initially accepted her proposal, but then failed to go ahead with the agreement. As a consequence, he continued to have the boys for only two nights a fortnight and three hours each intervening week.

8The mother and the father share school holidays equally, except for Christmas, when the father has the boys for two weeks. The mother had also offered, in October

2007, for the father to have the boys for two nights each alternate weekend during the part of the Christmas holidays when the boys were not staying with him, but that was not taken up either.

9The mother made a further attempt to come to a formal agreement with the father in October 2008, but her efforts were rebuffed. At that stage, her proposal was essentially to formalise the existing arrangement. Although the father was not prepared to accept her proposal, he failed to say what would be acceptable to him.

10 The mother commenced proceedings in January 2009. At that stage, she was still only trying to formalise the existing arrangements and was not seeking to relocate. In June 2010 she amended her application, seeking permission to relocate to the metropolitan area.

The orders sought

11 If she is permitted to relocate to the metropolitan area, the mother proposes that the father spend time with the boys as follows:

• half of the weekends during school terms, to include all long weekends;

•half of the holidays at the end of the first three school terms (plus an additional two nights in each of those holidays);

• 14 days during the Christmas holidays, to be taken in the first half of January;

• Christmas Day/Boxing Day on an alternating basis.

12 The mother is also agreeable to the father having regular contact with the boys by telephone and Skype.

13 The mother proposes that the handovers occur roughly half way between [the two residences]. The weekend handovers would occur at 5.00 pm on Fridays and Sundays (or Mondays on long weekends).

14 The father proposed that the boys live with him from after school on Thursday to

6.00 pm on Sunday in one week, and from after school on Thursday to 6.00 pm on

Saturday in the following week. In addition, he sought half of the term holidays and

14 days in the Christmas holidays. As well as spending time with the children for two weeks during the Christmas holidays, the father proposed that during the balance of those holidays he have the children from 6.00 pm on Saturday until 6.00 pm on Thursday. He also wants time with the children on Christmas Day/Boxing Day, Fathers’ Day, the children’s birthdays and his own birthday.

15 When it was pointed out to the father that his proposals would involve the mother only being able to have the children on one weekend day each fortnight, he said he did not anticipate that his proposal would be accepted, but he wanted the mother “to see what it was like not to have the children”. The father did not seek to amend his application to indicate what arrangement he considered would actually be in the boys’ best interests; however, the impression I gained is that he regards the current arrangement as being acceptable. He did not put forward any proposal for the time he would spend with the boys if he was unsuccessful in opposing the relocation.

Credibility and impressions of the parents

16 Both parents presented as decent, honest people. They each seemed generally to be trying to tell the truth, as they understood it. Nevertheless, the mother appeared to have a much better memory than the father and was far more balanced in the way she responded to questions. To the extent they gave different versions of events, I find she was more likely to have the better recollection.

17 The presentation of the parents in court was markedly different. The mother had a somewhat depressed affect, which appeared to be genuine. She was thoughtful in the way she responded to questions and was prepared to make concessions, usually without hesitation. Whilst she was, as would be expected, inclined to highlight what she considered to be advantages of the city, she did not adopt an exaggerated posture on the differences between life in the country and the life she hopes to have in the metropolitan area.

18 The father adopted a much more belligerent stance. He could see nothing wrong with the country and little right about the city, which he sees as a dangerous and threatening place. He showed little or no capacity to appreciate any view other than his own. His presentation in the witness box reflected the way in which he had instructed his solicitors to respond to correspondence from the mother.

19 Although it was the father who introduced into evidence the letters between the solicitors in October 2008, the correspondence did him little credit. The letter from the mother’s solicitor was child focused, and conciliatory in tone. It sought to achieve an understanding about matters of importance to the children. The father’s response was not child focused, and accused the mother, wrongly in my view, of seeking to “control his time with the children”. Instead of making a counter proposal, the father simply refused to engage – instead inviting the mother to make a further proposal “whereby each parent is able to develop their own relationship with their children and have uninterrupted time with them”. It was entirely unsurprising that the mother’s response was to commence these proceedings.

20 The father complained in his affidavit that correspondence sent by the mother demonstrated she was “dogmatic”. He properly conceded, when required to reread the correspondence in the witness box, that this description was largely inaccurate. Given the way the father chooses to communicate, the mother had sensibly sought to clarify matters by communicating in writing. In doing so, she generally gave him an opportunity to put forward a contrary view. The father did not do so in writing, and I had difficulty in accepting his evidence that he provided his response verbally.

21 Whilst the father made a poor impression in the witness box, he nevertheless presented as a father greatly devoted to his children. I have no doubt he wants what is best for his sons and has their interests at heart. I also accept that all of the strongly expressed opinions he gave in cross-examination were genuinely held.

Applicable law

22 These proceedings fall to be considered under the Family Law Act 1975 (“the Act”). Section 60CA of the Act requires me to treat the boys’ best interests as the paramount consideration. In doing so, I must be guided by the objects of the legislation and the principles underlying them. The stated objects in s 60B(1) of the Act 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;

(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.

23 These objects are more comprehensive than the previously stated object of the relevant part of the Act. 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.

24 The first of the four “new” objects of the legislation is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:

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

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development …

25 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this concerning the 1995 amendments to the Act:

… It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.

26 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 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 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.

27 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 now 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

28 I will deal with this issue first, since the Act requires different pathways to be followed depending upon whether or not an order is made for equal shared parental responsibility.

29 When making parenting orders, the Court must apply a presumption that it is in the best interests of children for parents to have equal shared parental responsibility. Oddly, the presumption must be applied even if neither parent seeks an order for parental responsibility. The presumption 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. No such grounds exist in the present case.

30 The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. In the present case, no orders were sought by either party in relation to parental responsibility until the dying moments of the trial. No orders had been made on the topic when the interim orders were made in 2009. It was only after the issue was raised by me in closing addresses, that the father’s counsel sought to amend the father’s application to seek shared parental responsibility.

31 I am satisfied that it would not be in the children’s best interests for there to be an order for the sharing of parental responsibility. If I made such an order the parents would be obliged (by s 65DAC of the Act) to consult each other and make jointly all decisions concerning major long term issues for the children. The parties are unable to communicate effectively, and have shown no capacity to reach agreement on important issues. The father says that communicating with the mother is “like getting across to a brick wall”. The mother has the same view of his negotiating style. Neither has undertaken the Mums & Dads Forever program as recommended, and there is therefore no reason to expect their communication is likely to improve in the future.

32 The parties have managed to parent their children adequately for more than four years since separation without an order for parental responsibility. Each has full parental responsibility by virtue of s 61C of the Act. The mother has not sought an order for this to be changed. I therefore assume that she anticipates proper arrangements for the children will be able to be made without the need for any formal order dealing with the issue. I consider that expectation to be well founded.

Matters to be taken into account

33 As I do not propose to make an order for equal shared parental responsibility, I am not obliged to follow the pathway laid down in s 65DAA. I therefore need only consider the proposals of each parent but, in doing so, I will consider whether they are in the boys’ best interests and reasonably practicable. Subject to procedural fairness having been afforded, I may also need to give thought to whether some other outcome, apart from that sought by the parents, would be in the children’s best interests.

34 The legislation lays down a list of matters that must be taken into account in deciding what orders are most likely to promote the best interests of the children.

These are divided into “primary considerations” and “additional considerations”. It is now well established that although the primary considerations should be accorded particular importance, they cannot determine the outcome in every case.

The primary considerations

35 The first of the two primary considerations is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration needs to be examined in light of the first of the stated objects of the legislation, namely that of “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” (my emphasis added).

36 There is no doubt there would be considerable benefit to Andrew and David in having a meaningful relationship with both parents. The children already have excellent relationships with both the mother and the father. I am satisfied they will continue to have such relationships, even if the father’s time with the children is reduced in the way the mother proposes.

37 Although the father would like to spend more time with the boys, I am nevertheless satisfied he currently has a meaningful involvement in the children’s lives. I am also satisfied that would continue to be the case if the mother’s proposal was implemented. The boys would continue to see their father every alternate week, and holiday times would continue to be shared. In between visits, their relationship can be sustained by telephone and Skype. I accept the father would have difficulty in being involved in the children’s school activities, however, his current involvement does not appear to be extensive in any event.

38 It is also likely that in future the father will be able to spend more time with the boys during school holidays than he has been able to manage to date. Although the father is entitled to four weeks leave every year, he has only taken a total of two weeks leave in the last three years. I accept he has nevertheless been able to spend time with the boys during holidays (because of his hours of work and because he often takes David to work with him). Nevertheless he is now owed, on his calculations, 12 weeks leave, which he says his employer could no longer refuse him.

39 It is also important to recognise that the time the children will spend with the father under the mother’s proposals are not markedly different from the time the father was spending with them prior to March 2009. The father elected until then not to take up more time when offered, but nevertheless retained relationships with the boys which were undoubtedly “meaningful”.

40 The second primary consideration is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. This is not of any significance as there is no suggestion that either parent has ever subjected or exposed the children to abuse, neglect or family violence.

The additional considerations

41 There are a number of “additional considerations” set out in the Act, many of which are potentially relevant.

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;

42 The boys were interviewed by a Family Consultant in September 2010, prior to the Family Consultant providing a report to the Court. At the time Andrew was 12, and David 10 years of age.

43 Andrew reported sharing close, loving relationships with both parents, but said he maybe felt slightly closer to his mother. There was nothing Andrew would want to change about his mother, although he commented that he would like her to stop worrying about her job, which seemed to cause her stress. Andrew also liked everything about his father, except perhaps his “stubbornness”.

44 Andrew described positive relationships with significant extended family members, but he particularly mentioned his maternal grandparents, paternal grandmother and his (maternal) Uncle [George].

45 In the event he remained living in the country, Andrew said he wanted the current arrangements to stay in place, save that he suggested that the Wednesday time be extended by one hour. Andrew would not want to spend any more time with his father during the week because of the impact this may have on his schooling, as he considered his mother was more helpful with his homework. He also did not want to spend each weekend with his father, because he enjoyed spending time on weekends with his mother and considered this was important.

46 Andrew felt “good” about moving to the metropolitan area. He said the country was “boring” and believed there was more to do in the metropolitan area, which had better schools and equipment, and more opportunities for his future. Andrew expressed an understanding that his mother wanted to live in the metropolitan area to be closer to her family and Andrew said he would like this too.

47 Andrew acknowledged that he would miss his father if he moved to the metropolitan area because he would see him less often. He also acknowledged that he would not like the travel between the metropolitan area and the wheatbelt town as he often feels sick during car trips. A further negative aspect of the move, according to Andrew, was the changing of schools and making new friends, but he considered this would be a little easier by timing the move so that he would start high school when other students would also be new at the school.

48 Andrew stated that he had considered various aspects of the potential consequences of the relocation and on balance, his preference was to move to the metropolitan area. In expressing his preference he said he had taken into account the impact on his ability to undertake sporting activities on weekends, but expressed the view that he would be able to play sport in the metropolitan area during the week instead.

49 The Family Consultant also interviewed David, who seemed unaware of the Court proceedings. David described close and loving relationships with both parents, but indicated that if he was in trouble or upset he would talk with his mother about his problems, although sometimes he would talk with his father (noting that he preferred to speak with females about things that were bothering him). There was nothing about either of his parents he would like to have changed.

50 David spoke positively about relationships with significant family members, mentioning his maternal grandparents and paternal grandmother. He referred to Uncle George as his “favourite Uncle”.

51 David’s preference, if he was to remain in the wheatbelt town, was for the current arrangements to remain in place. He had liked the change in arrangements that occurred in March 2009, but also mentioned that he enjoyed spending weekend time with his mother and wanted this to continue.

52 David reported that he felt “good about moving to [the metropolitan area]”, because there was not much to do in the wheatbelt town and it was expensive. David imagined it would be cheaper in the metropolitan area, where he thought he would have a better life and where there would be more things to do and experience. He commented that most of his mother’s family and friends live in the metropolitan area, and that some of his own friends were also moving to the metropolitan area.

53 David recognised he would spend less time with his father if he moved to the metropolitan area, but thought that spending alternate weekends with his father would work well, apart from adding that he thought his father might complain about seeing him less often.

54 When asked again how he would feel if he had to relocate to the metropolitan area, David responded that it would be “good”, but if he remained in the wheatbelt town it would be “OK”. When asked to identify three wishes, David named only two, one of which was to see Dad “a little bit more” and the other was for “Mum and Dad to agree on things”.

55 The Family Consultant concluded it was possible that both children had been “somewhat influenced by their parents’ views” but it did not seem to her that they had been submitted to any “undue influence”. She concluded that Andrew’s views seemed to be in accordance with his age and level of maturity, and that it seemed he had considered his friendships and relationships with both parents and had “displayed considerable maturity in weighing up his options”. In the case of David, the Family Consultant felt his views seemed in accordance with his age and maturity and were essentially in line with the mother’s views, which the Family Consultant considered “somewhat understandable given his young age”.

56 In summarising her report, the Family Consultant once again noted that Andrew presented as a mature child who seemed to have considered his views carefully and, as such, she suggested his views “may be deemed to carry some weight with the Court”. On the other hand, whilst David had also given his views some thought, she considered the Court would “need to be mindful of his younger age when considering his views”. Amongst matters that the Family Consultant considered should be taken

into account was “the personal toll and financial costs involved in the regular travel for the children”, which she suggested “may over time prove taxing”.

57 It is significant that in her report the Family Consultant noted the difficulties the parents have in communicating, and further noted that the children were aware that their parents did not communicate with each other. She expressed the view that it was important for the parents to find a way to communicate that was satisfactory to them, and did not involve the children taking responsibility for this. She suggested it might be helpful for the children if the parents attended the Mums and Dads Forever program (and she provided a brochure and contact details).

58 The mother’s response to receiving the report was to contact Anglicare, who run Mums and Dads Forever, to enquire about the program. She correctly, in my view, concluded that the father would not involve himself in such a program, but incorrectly assumed that she could only attend the program if the father was also attending. In fact, the program is arranged in such a way that the parents attend separately. The father took no steps at all in response to the Family Consultant’s suggestion.

59 The children were seen again by the Family Consultant in February 2011. By this time Andrew was 13, and David was approaching his 11th birthday. Andrew informed the Family Consultant that neither parent had spoken with him about what he had said at the previous interview. By the time of this interview, Andrew had had his first week at the local high school and stated that it had been “easier than he expected”. He mentioned that he had friends there from his primary school and that the new children were “nicer and friendlier than he had anticipated”.

60 Andrew considered that the current dispute between his parents had not impacted on his relationship with his mother, but he thought it may have impacted on his relationship with his father, in that his father now “acts differently at times” although Andrew was unable to explain his view further.

61 Although neither parent had apparently spoken with Andrew concerning what he had said at the previous interview, he did say that both parents had spoken with him about the relocation, with each discussing their reasons for their own views on the topic. Andrew added that he did not consider either parent was trying to pressure him to agree with their views, although the Family Consultant concluded that Andrew thought his father is “perhaps more vigorous in his view and the way he says things”. Andrew mentioned that he did not want to upset either parent and said when they do attempt to discuss the relocation with him he endeavours to avoid the issue.

62 Andrew repeated much the same views as he had at the previous interview, including his desire for there to be no change in the current arrangements if he remained in the wheatbelt town – and a particular desire not to spend any more time with his father during the school week, and not to spend each weekend with his father. In discussing holidays at Christmas, Andrew said he might like to spend a few additional days with his father at the end of the holidays, having spent two weeks with him at the commencement of the holidays (in accordance with the terms of the order, which makes provision only for the father to see the children for two weeks at Christmas).

63 In discussing his wishes about the relocation Andrew again stated that he would prefer to live in the metropolitan area and gave the following reasons:

a The wheatbelt town is boring and there is nothing to do;

b He can get a better education in the metropolitan area;

cHe wants to spend more time with his mother’s family in the metropolitan area, such as his Uncle George, Uncle [Peter] and his cousins;

dHis friend who boards at [a private school in Perth] can stay with them on “closed weekends”.

64 Andrew mentioned that he had visited the school that he may attend, which he said looked “good”. He also added that he may attend another school which is now attended by one of his friends from the wheatbelt town.

65 Andrew mentioned to the Family Consultant that he was not alone in thinking that there was nothing to do in the country, because all of his friends shared the same opinion.

66 In discussing the impact of the move on his sporting commitments, Andrew again mentioned that he could play sport in the metropolitan area during the week, but on this occasion noted that it was a possibility he could also play weekend sports on alternate weekends. If it turned out that it was not possible, it would still not change his view about moving to the metropolitan area, as he would still be able to play sport during the week.

67 Andrew said that, on balance, that there were “more good things than bad” about moving to the metropolitan area. He was able to express what the bad things were, namely:

a Spending less time with his father;

b Starting a new school and making new friends;

c Missing his old friends in the wheatbelt town.

68 The Family Consultant noted that while considering the negative aspects of the move, Andrew seemed to consider these were “manageable”. He said he makes friends easily, and that he would be able to see his old friends in the wheatbelt town when he was spending time with his father.

69 Andrew told the Family Consultant that he realised the new arrangements would mean a lot of travelling, but his view was that he would get used to it. He went on to say that if he was obliged to remain in the wheatbelt town he would be “disappointed”, whereas it would be “good” if he was allowed to relocate to the metropolitan area. At the end of the interview Andrew indicated that whilst generally he was not worried about his parents’ reaction to what he had said, he was a little worried about what he

had said about his father’s views in regard to discussing the move to the metropolitan area.

70 David reported that both of his parents had discussed the proposed relocation.

He said his mother “asked him how he feels about the move, while his father tries to talk more about the situation and consequences of the move”. The Family Consultant reported that David gave the impression that he does not like talking with his father about the move as he prefers to talk with a female about personal matters. Nevertheless, David stated he did not consider either parent was trying to pressure him or convince him to adopt their view regarding the matter.

71 Consistent with what he had said in the previous interview, David said that if he remained in the wheatbelt town he would want the current arrangements to remain in place, although he added he might like to spend another afternoon during the week with his father, but wanted the weekend time with both parents to continue in accordance with the current arrangements.

72 The Family Consultant reported that David seemed less certain about the move to the metropolitan area on this occasion. David said that sometimes he “wants to move, sometimes feel I don’t want to” and that he is “half/half” for either option. David was unable to explain to the Family Consultant why his views had changed.

73 In discussing the move to the metropolitan area, David informed the Family

Consultant:

aThere is not much to do in the wheatbelt town, with more to do in the metropolitan area;

b The schools in the metropolitan area are probably better;

cIf you want something in the wheatbelt town it is too expensive and cheaper in the metropolitan area (the examples provided by David include DS and Nintendo games).

74 David also mentioned that he had visited his proposed school in the metropolitan area and thought it looked “good”; however, in discussing the negative aspects of the move he mentioned spending less time with his father. Nevertheless, David also expressed the view that his relationship with his father would not change if they spent less time together and that he expected the current holiday arrangements would continue.

75 When asked how he would feel if had to relocate to the metropolitan area, David stated he would probably be happy, but also sad as he wouldn’t see his father as often. If he was required to remain in the wheatbelt town this would “be OK”, as he would see his father the same as he does now. When discussing these views, David indicated to the Family Consultant that he was at times worried about his father’s reaction, so he had stopped saying anything about his views to both parents.

76 When asked to make three wishes, David once again made only two, which were “more time with Dad if move to the metropolitan area, arrangements to stay the same (while in [the wheatbelt town])”.

77 In considering whether or not the children had been unduly influenced, the Family Consultant noted it seemed both had been somewhat influenced by their parents’ views, and had included this as a consideration in reaching their views. She commented that David’s change of view may “perhaps indicate the father’s discussions with him over recent months may have contributed to the change…”. She also noted it was clear that neither child wanted to be questioned about their views and both indicated they were reluctant to talk with their parents about the topic, particularly with their father.

78 In concluding her report, the Family Consultant again noted that given Andrew’s age and the consistency of his views, his views may be given some weight by the Court. She also drew attention to the fact that whilst David identifies advantages and disadvantages associated with moving to the metropolitan area, his view was that the move would not cause a detrimental impact on his relationship with his father.

79 In considering the weight to be given to the views expressed by the boys, I take account of the fact that both the Family Consultant and the father have described Andrew as being a “mature” boy. The way in which he was able to explain not only the advantages but the disadvantages associated with the move to the metropolitan area satisfies me that he has given this issue considerable thought. The fact he maintains a clear preference for moving to the metropolitan area, in the face of what he knows is the strong opposition of his father with whom he has a good a relationship, indicates to me that Andrew’s views may be even more firmly held than he was prepared to express to the Family Consultant. Whether or not I am right in that assumption, I still consider that weight should be given to his views, although they are by no means determinative of the matter.

80 David is somewhat younger and less mature than Andrew. He is clearly torn in his desires. Given his age, it is not surprising he expresses his views in a somewhat contradictory fashion. Thus, for example, if he moves to the metropolitan area he says he wants to see his father more, but if he remains in the wheatbelt town he wants the time he spends with his father to remain the same. The impression created is that he wants to please everyone.

81 I consider the views David expressed at the first interview are more likely to be closer to his real opinions rather than the ambivalent views expressed at the second interview. Having had the opportunity to observe his father, and noting the father’s own concessions about what he has told the children about life in the city, I have little doubt that the change in David’s views have largely been the result of comments made by his father. That said, I would not place a great deal of weight on David’s original views, since I consider they are likely to be strongly influenced by his mother’s preferences. Although David says he has a very good relationship with both parents, the impression I gained from the evidence is that he feels much closer to his mother, with whom he prefers to talk when he is hurt or upset.

82 It was of significance to note that David informed the Family Consultant that his mother talked to him about how he felt about the move to the metropolitan area, whereas his father was inclined to tell him of the (perceived) consequences of the move. In my view, this indicates a difference in the parenting style of both parents. It would have better if the father had not portrayed the city in such a negative light,

given there was a possibility David would be permitted to relocate. Nevertheless, I again record that I consider the father’s views to be genuinely held (albeit based largely on what he sees on the television news) and that in expressing those views he considered he was acting in the boys’ best interests. Understandably, also, he is concerned about the reduction in his time with his children.

83 I should record, finally, that I have not overlooked the substance in the submission of counsel for the father about the children’s experience of the city as being a place where they have come for enjoyable activities. Their views must be assessed with that fact in mind. On the other hand, in my experience, children are commonly somewhat apprehensive about moving away from familiar schools, friends, and surroundings and do not relish the thought of walking into new schools and unfamiliar surroundings. The fact both boys are comfortable with the thought of moving to the metropolitan area, knowing this will be the consequence, is also taken into account.

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);

84 The children have excellent relationships with both their parents, although I consider it likely they are most closely attached to their mother. In my view, their relationship with both parents would be further enhanced if they were not exposed to denigration of one parent by the other.

85 The children also have important relationships with extended members of the family on both the mother’s and the father’s side, although they have been able to see much more of their father’s relatives who live in and around the wheabelt town. It is of interest that Andrew told the Family Consultant that he had a positive relationship with his maternal grandparents, notwithstanding that for some time his only contact with them has been by Skype, as they travel around Australia. The father found this difficult to accept because of the lack of face to face contact, but in my view it demonstrates that it is possible in the modern world to feel connected with people who are not in close physical proximity. This also augers well for the children keeping in contact with their father between their regular periodic visits to the wheabelt town, albeit I accept the father would much prefer to have close physical proximity to his children.

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;

86 Both parents consider the other will not encourage a close and continuing relationship between them and the children. However, I consider the mother’s criticisms of the father had greater substance. In particular, I considered it more likely than not that the father speaks of the mother to the children using the highly derogatory language mentioned by the mother in her affidavit.

87 Whilst the mother is clearly poorly disposed toward the father, her conduct since separation, and her presentation in the witness box, satisfied me that she has a good appreciation of the need of the children to continue their relationship with the father. The mother has shown herself willing to increase the children’s time with the father in the past, although the father gives her little or no credit for doing so, and for going out of her way to ensure the children saw him in hospital and when he was convalescing.

88 The mother was criticised for being inflexible in relation to the contact arrangements – for example, not allowing the father to have the children on the Monday of long weekends. The criticism was not well-founded. The father acknowledged he had never asked her for extra time on long weekends and, as the mother said, it is difficult to be flexible when no request is made for a change to arrangements. In my view, in behaving as she did, the mother was doing no more than complying with the court order – and on occasions she did allow the father time with the children to which he was not entitled.

89 The father could equally have been accused of inflexibility. For example, in November 2010, when David became unwell at football, the father took him back to his place and left him there on his own while he returned to the football match (although he says he was not away for very long). He could, instead, have contacted the mother to see if she wanted to look after David (which she was keen to do when David rang her in his father’s absence to ask her to come and collect him – which she felt unable to do lest she be seen as breaching the court orders).

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;

90 The obvious impact of the change of circumstances proposed by the mother is that the children will spend less time with the father during school terms than they have been used to until now. This can, in part, be alleviated by ensuring the father has all of the long weekends with the children. It can also be alleviated by increasing the time he spends with the children during school holidays (and by the father taking leave when he has the children with him). It needs to be appreciated, however, that the children, especially Andrew, are reaching an age where it is likely they will be wanting to achieve a greater degree of independence from both of their parents. Contact arrangements that work well for younger children may not be so satisfactory for children in their mid to late teens. In any event, neither boy anticipates that the reduction in time with their father is likely to affect their current good relationship with him, and I consider their expectation is realistic.

91 If the mother’s proposal is implemented, the children will also have somewhat less opportunities to spend time with the father’s relatives in the the wheatbelt area. They will still, however, be able to see them regularly. I do not consider that the quality of the relationship with relatives living in and around the wheatbelt area is

likely to be diminished as a result of the boys moving away, given the many years over which these relationships have developed.

92 The boys will, if they are permitted to relocate to the metropolitan area, have increased opportunities to spend time with the mother’s relatives, most of whom live in the northern suburb. The mother was not cross-examined on her claim that she also intended to facilitate the boys’ relationships with relatives of the father who live not far from the proposed residential area.

93 In the event the relocation is permitted, the mother anticipates being able to call on her relatives for support. Probably foremost amongst these is her brother George, who lives near the proposed residential area, has no children of his own, and who clearly is one of the boys’ favourite relatives. Even the father is well disposed to him, having described him in his affidavit as a “nice guy”.

94 The mother presently has no family support in the wheatbelt town, and is not able to call on the father’s family for support. If the mother has support, and feels supported, in the metropolitan area, she is likely to be happier and to provide better parenting for the children, who I suspect are troubled by what they appreciate is her unhappiness about being tied to the wheatbelt town.

95 The other significant change in circumstances for the children would be a change in schools. David is still in primary school, and Andrew started high school two months ago. The father was understandably concerned that the mother’s proposals might involve two changes of schools in the city, but I accept the mother’s assurance that if she ends up having to live with George when she first moves to the metropolitan area, she will endeavour to ensure that she obtains accommodation in an area nearby that does involve the children having to change school again.

96 The mother attempted to persuade me that high schools in the metropolitan area are better than the high school in the wheatbelt town. The father tried to persuade me to the contrary. Reference was made to the My School website and the NAPLAN scores of the schools. Ultimately, I found none of this evidence helpful. I consider the children are likely to receive an adequate education wherever they live, albeit it is possible there may be access to a greater range of subjects in larger schools in the city.

97 I consider that in many respects the quality of the children’s education will be determined by the “luck of the draw”. They may have a good principal/teacher one year, and a bad one the next. They may end up in a cohort of classmates who either help or hinder their educational progress and enjoyment of school. The characteristics of the cohort can change as children come and go from whichever school they attend. In my view, the matter of greatest importance to the children’s education is the support they receive from both their parents in achieving to the limit of their capacity. I accept the mother’s evidence of the importance of her own efforts in assisting the children's education, particularly David who has struggled at school. Her evidence was corroborated by what the boys themselves told the Family Consultant.

98 The mother’s evidence about Andrew being bullied at school in the wheatbelt town was not accepted by the father. I accept the mother accurately reported that Andrew told her he was being bullied and I also accept, notwithstanding what was said

in Annexure K7, that she reported this to the former principal some time ago. The mother was not impressed by the action, or lack thereof, by the school concerning the bullying. I am not convinced, however, that there is any guarantee that such problems will not occur at any other school Andrew might attend, nor am I convinced they are likely to be any better handled at a different school.

99 The mother nevertheless impressed me as someone who was closely attuned to her children’s educational and emotional needs. She was able to answer in the witness box every detail about her children’s past educational experience without a moment’s hesitation. She works in the local high school both boys would attend if they remained in the wheatbelt town. I have confidence that she would not be proposing a change in their schooling arrangements were she not satisfied that they would at the least be no worse off in the next school they attend.

100 The mother says that, if she is able to relocate, Andrew will be able to see more of a couple of friends from the wheatbelt town who have come up to the city to attend school. This is a possibility, but I do not regard it as of great significance. In my view the likelihood is that these boys will soon make new friends and associations now they are in the city, in the same way that I consider it is likely Andrew and David will.

101 Another factor of significance is that the children will not be able to participate in regular weekend team sports if they move to the metropolitan area, as they will spend many weekends in the wheatbelt town. The parents agree it is good for the boys to be involved in sport, apart from anything else because they have a tendency to be overweight. The mother is satisfied she will be able to keep up appropriate physical activities for them midweek. It is also not beyond the realms of possibility, as Andrew told the Family Consultant, that the boys could still be involved in weekend sporting activities. The father has been a long time volunteer in local junior sport in the wheatbelt town, and may be able to arrange for the boys to join in a game when they visit him. Whilst I accept it would be preferable for the boys to be able to engage in regular weekend sport in the one location, I am satisfied they will be encouraged to keep up some form of physical activity regardless of where they are living. Whether they can be persuaded to continue to do so is another matter (regardless of where they live).

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;

102 This factor is of considerable significance. The mother’s proposals will involve the children undertaking extensive travel to keep in touch with their father. If the changeover occurs [where the father proposes], the mother will have round trips each alternate weekend totalling about 5 hours and the father will have round trips totalling about 4 hours (with an additional 2 hours of round trips if he ends up living [where he proposes], which is likely if the children move away from the wheatbelt town). The children will have round trips of about 4.5 hours (or 5.5 hours if the father lives full time where he proposes).

103 Importantly, neither parent has much money and both have cars that are “getting on” in age. It will be desirable, if the relocation is permitted, for both to have the use of a reliable vehicle to facilitate the travel. The mother expects she will have some capital when her home sells in the wheatbelt town and she could put this toward a suitable vehicle if she begins to experience trouble with her current vehicle (which I accept is currently in good working condition). Otherwise, she is likely to have employment, and I am satisfied she would ensure she maintains a vehicle adequate for the travel. Although I recognise it was not explored in the evidence, her brother George is supportive. He has no family commitments of his own, and there is at least the possibility he could assist with transportation if a problem was to occur. He said in his affidavit, which was not challenged, that he would provide any support the mother needed with the relocation, including financial support.

104 The father has a very modest income (he only works 30 hours a week), but he also has very modest needs, given that he pays only $100 per week to stay in his nephew’s home and is able to live with his mother when he is not staying with his nephew. His child support is pitched at a very low level (although this could increase to some extent from the current $48 per month with the proposed change in care arrangements). The father will be left with a liability to his solicitors at the end of these proceedings, but has no other liabilities. Even if things stayed as they are, the father would need to have a reliable vehicle to get him to and from where he is proposing to live (although I recognise that journey is shorter than the one to where the father proposes handover should occur). Again it was not explored in the evidence, but the father does have family in the wheatbelt town and it is possible he could call on them for assistance if he experiences car problems.

105 In determining that the transport difficulties are not insurmountable, I have not overlooked the fact that apart from needing a reliable vehicle, both parents will also incur additional fuel costs in undertaking the journeys associated with implementation of the mother’s proposals.

106 There was mention in the affidavit evidence, but no mention in the oral evidence, of the fact that Andrew suffers from car sickness. Given that the father’s counsel cross-examined on the basis that the mother could bring the children to the metropolitan area regularly in order to visit the mother’s relatives, I do not consider this is a factor of significance, especially since Andrew himself sees this as being manageable. Furthermore, the mother was not cross-examined on her evidence that the carsickness was largely related to travel in the morning, which is of significance given that the regular travel will take place in the evening.

107 There is no difficulty associated with the children maintaining regular telephone contact with the father. The evidence suggests this is likely to occur. Furthermore, I am satisfied arrangements can be made for the children to have contact with the father by Skype, which is the means by which they have successfully maintained what appears to be a good relationship with the mother’s parents who have been travelling around Australia for some time.

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;

108 I am satisfied both parents have the capacity to provide for the children’s needs, including their emotional and intellectual needs, when they are in their care.

109 I am satisfied that the mother, both before and after separation, undertook a significantly greater proportion of the day-to-day parenting. Furthermore, the father’s living arrangements are not ideal for the boys in that, when they are with him in the wheatbelt town, they have to share a bedroom. In itself, sharing a room is not a bad thing even though the boys do tend to fight on occasions. Much more significantly, the boys do not see the bedroom as being theirs, in that they feel they need to pack away their gear when they are not staying with the father because others also have access to the room. When the boys are staying with the father at their grandmother’s home, they do not each have a room. David shares a room with his father, in preference to sharing a room with Andrew.

110 The father was, as would be expected, critical of the mother for the uncertainties associated with her proposals to take up residence in the metropolitan area. She cannot say precisely where she will live (other than she will live with George in the short term if she cannot find suitable accommodation). She does not know where she will work (other than that her experience as a teacher’s aide with considerable experience in working with children with special needs is likely to result in work being available for her at any number of schools in the area where she anticipates living). She does not know precisely where the children will go to school (although she has made entirely appropriate enquiries, she can’t commit to a school until she finds accommodation).

111 All of these uncertainties would have to be expected in the case of a person whose finances are limited and who realistically accepts that final arrangements can only be made at the time she is permitted and ready to leave her current environment. It could not be expected that she could come to Court demonstrating that she had a place in which to live. Nor could it be expected that she could be sure precisely where the children would go to school until she knows where she is going to be living. Nor could she know where she will work until she is ready to be able to apply for a job. The mother appears to be a responsible, mature person who has been able to make sensible life choices. I am satisfied she would not bring the children to the metropolitan area unless she was able to make adequate arrangements for them. I consider that she can be trusted to make appropriate decisions for the children.

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;

112 The fact that the children are now much older than they were at the time of separation is, in my view, a significant factor. Their relationship with both of their parents has been cemented and will not be impacted by what should be viewed, in the

overall scheme of things, as fairly modest changes in the way their time is divided between their parents.

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

113 I am satisfied both parents have demonstrated a very good attitude to the children and to the responsibilities of parenthood. In particular, they have fulfilled what I consider the most important duty of all parents – which is to provide for their children’s everyday needs and to give them unconditional love.

114 Both parents could be criticised for their failure to engage in appropriate consultation with the other parent concerning matters relating to the children. It is significant that when David expressed two wishes at his first interview, one of them was for “Mum and Dad to agree on things”.

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;

115 It is usually preferable to make orders least likely to lead to the institution of further proceedings, but it is difficult to predict which of the orders proposed would be least likely to lead to further proceedings. I do not consider this factor to be of any real significance.

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

116 One attraction to the mother of getting away from the wheatbelt town is that she (and a couple of her colleagues) have experienced what she believes is bullying in the workplace. Her efforts to resolve this have not been successful. Although mediation has now been proposed by the employer, this has not yet occurred and may not be successful in any event. The superior who has engaged in the alleged bullying is very elderly and might be expected to retire soon. However, the same might have been said many years ago.

117 Although the bullying issue is of some potential relevance in itself, in my mind the greater relevance is that it highlights that there has had very little incentive for the mother to remain in the wheatbelt town following separation more than four years ago. The mother was prepared to remain in the wheatbelt town notwithstanding the fact that her marriage had ended; her family was largely based in the metropolitan area; and she was unhappy at work. It would seem the likely primary reason for her remaining in the wheatbelt town was to allow the boys (who were then much younger) to keep in regular contact with their father and to continue to attend their regular school. She made her move to leave the wheatbelt town when Andrew was coming toward the end of his primary education, which was a logical time to make the shift to the city. Whilst the Court’s obligation is to regard the best interests of the children as paramount, the fact that the mother has waited so long to move is a relevant factor, as it demonstrates to me that she has not acted impetuously and would not take any step she regarded as being detrimental to the children.

118 I do not consider the differences in cost of living between the wheatbelt town and the metropolitan area (if any) to be of significance. I am satisfied the mother will be able to provide an adequate, albeit very modest standard of living for the boys in either location. Her ability to adequately support the children is, of course, compromised by the fact that the father earns so little and is therefore not required to make anything other than nominal payments of child support.

119 I do not place great weight on the mother’s statement that if she moved to the metropolitan area she would be able to pursue further studies with a view to obtaining alternative (presumably better paid) employment. I do accept the mother may have greater opportunities to pursue studies in metropolitan area, but she will have her hands full with having to work and look after two children, whilst undertaking fairly onerous travel commitments. It may be that the mother will find it difficult to do anything more than this for some time yet.

120 I also do not place great weight on the mother’s desire to get the children away from the racial tensions she described as existing at local high school. I have no doubt these tensions exist and that they are a matter of grave concern to the mother. However, I am not convinced there will not be tensions of this nature, or different types of tension, at other schools the children might attend in the city.

Discussion

121 Like almost all relocation cases, this one has been very difficult to decide. As was submitted by counsel for the father, there are no “compelling reasons” why the mother should be permitted to move to the metropolitan area. On the other hand, the law makes clear that the mother does not need to demonstrate “compelling reasons” for moving.

122 The children are lucky to have two loving parents. In an ideal world, both parents would live in close proximity and the boys would be able to move back and forth between their two homes without extensive travel. Ideally, their relatives would all live nearby and they would be able to see lots of them too. Ideally both parents would be happy in their current environment.

123 We do not live in an ideal world. The arrangements that have been made over the last four years have suited the father fairly well. He has seen the children on a very regular basis (and could have seen them more if he had played his cards better). He is able to continue to see his own family and can arrange for the children to see them too. He can continue his work in the local area, while the mother undertakes the primary care of the children. Although there is good reason for it, he does not have to pay anything other than a pittance for the support of the children when they are with their mother, and is able to take advantage of cheap/free accommodation available to him with relatives in the area.

124 On the other hand the mother has become increasingly unhappy living in the country. She is separated from her family. She is unable to arrange for her children to get to know her family to the extent she would like. She has no support from the father’s family in the country and his belligerence towards her has made life more

difficult than it needed to be. Like many other people who live in the country, she recognises what the local community has to offer, but considers there are more opportunities for herself and the children living in the city.

125 Whilst it might be suggested the case is finely balanced, I consider it is in the best interests of the children that, having lived in the country for more than four years since the separation, they now have the opportunity, over the few remaining years of their childhood, to live in the city.

126 In arriving at that view, I have taken into account all of the matters I have mentioned in these reasons, but I have particularly take into account the following matters:

•The mother is the primary caregiver of the children and is the parent most closely attuned to their educational and emotional needs; in my view, decisions she makes about the welfare of the children should be afforded some respect;

•The father is a very important figure in the lives of the children and will still be able to remain involved with them in a meaningful way, especially now that the boys are much older than they were when the parents first separated;

•Andrew is a mature boy who has carefully considered the advantages and disadvantages of the move; and his clear preference is to make the move;

•David’s views are ambivalent, but he is quite prepared to move to the city and has no doubt this will not damage his relationship with his father;

•The move will allow the boys to get to know more of their relatives, whilst at the same time maintaining important relationships already developed;

• The mother will have more support available to her than she does at present;

•There is a potentially greater range of activities available in the city; both in the wider community and at school; however, even if this proves not to be the case, living in the metropolitan area will ensure the boys have had an opportunity to appreciate the advantages and disadvantages associated with both small town and city life;

•The mother may obtain employment that is more pleasant than what she has endured over recent years, and may in due course have greater opportunities to undertake further studies; her happiness and welfare is of importance to the children because they care for her, want her to be happier and could potentially experience better care if she is happier and feels more settled and supported;

•The children will be able to continue involvement in physical activity in some form or another, probably in both the metropolitan area and the wheatbelt town;

•Whilst the extent of travel and expense involved in the mother’s proposals are of significant concern, the problems are not insurmountable.

Orders

127 For the reasons above I intend to permit the mother to relocate to the metropolitan area. It will be a matter for the mother to determine at what time this is undertaken. Given that Andrew has only recently started high school, it may be

desirable for the move to be made sooner rather than later. On the other hand, I recognise it may take some time for the mother to sell her home and she may prefer not to move until this has occurred.

128 I have already noted that the father did not put forward any proposals for the time he would spend with the children in the event the mother moved to the metropolitan area. I imagine he would want to have as much time with the boys as is logistically possible. In my view, the mother’s proposals in relation to the weekends in school terms are appropriate, particularly as she is prepared to allow the schedule to be shuffled to allow the father to have all long weekends.

129 As for school holidays, the mother’s proposal in her affidavit was that the father would have two “additional” days during each of the mid-year holidays. In her amended application the mother proposed the father have 9 nights in each of the holidays. I propose to order that the father have 10 nights in each of the mid-year holidays, which on my calculation amounts to half of the holidays, plus two nights.

130 As for the Christmas school holidays, the father provided no explanation for seeking the orders he did in his amended Response, which involved him having time over Christmas/Boxing Day and 14 days in January; and then from 6.00 pm on Saturday until 6.00 pm on Thursday each week for the rest of the Christmas holidays.

131 In November 2009, the parties consented to an arrangement for Christmas holidays which involved the father having 14 consecutive days during the holidays commencing on the first Monday following New Year’s Day in each year. The orders sought by the mother in her amended Application proposed that this arrangement continue – i.e. that there be no further time during the Christmas school holidays after the father has his two weeks in January.

132 In my view the mother’s proposals for the Christmas holidays are appropriate.

The children will be travelling to the wheatbelt town at around Christmas time each year and they will then be going back in January for two weeks to spend time with their father. I consider the balance of the Christmas holidays should be spent in the metropolitan area. This will be the only holiday time during the year in which they can have a longer extended period with their mother. It will also provide a short respite from the regular travelling.

133 The mother and father each sought the same orders for the sharing of Christmas

Day and Boxing Day, which were the same as those made by consent in November

2009. On reflection, I am not convinced those arrangements will be satisfactory when the boys have moved to the metropolitan area. They involve the father having the children from 6.00 pm on Christmas Eve until 9.00 am Boxing Day one year and then from 11.00 am Boxing Day until 11.00 am on 27 December in the alternate year – i.e. a 24 hour turnaround after a long trip from the metropolitan area. The orders I propose to make will give the father a slightly longer time with the boys. However, as I have not given the parties notice of my intention to make these different orders, I will give them liberty to apply to seek a variation of this part of the orders.

134 I do not propose to make specific orders in relation to the children’s birthdays and the father’s birthday. There has been no order covering these times in the past,

and yet the parents have been able to reach an arrangement to ensure that the father sees the children. I will rely upon the mother to ensure this continues if the father wishes to come to the metropolitan area to see the children on their birthdays or on his birthday. As for Father’s and Mother’s Day, I expect the parents to make arrangements to ensure the children are with the appropriate parent, without the necessity for an order.

135 I have contemplated making an order for the parents to attend the Mums and Dads Forever program, from which I consider they (and the children) would receive benefit. I appreciate, however, that it may be logistically difficult for them to do so. I will leave it to them to see if they can find a way to arrange to attend the program. They have been previously provided with the contact details for Anglicare.

136 There were a variety of other orders sought, but there was no discussion of them during the hearing. The orders set out below are those I consider to be in the children’s best interests.

1The mother be permitted to relocate the principal place of residence of the children, ANDREW, born December 1997, and DAVID, born March 2000 to any place in or around the [metropolitan] area.

2All existing parenting orders be discharged with effect from the date on which the mother takes up residence in [the metropolitan area], and the following orders shall then take effect.

3 The children shall live with the mother.

4 The children shall spend time with the father:

aFor one half of the weekends during school terms, commencing at 5.00 pm on Friday and concluding at

5.00 pm on Sunday (or Monday in the event of a long weekend) with the father to inform the mother not later than two weeks prior to the commencement of each school term the weekends during which he proposes to spend time with the children in that term (with the father being at liberty to select all of the long weekends as part of his half of the weekends).

bDuring each of the school holidays, other than the Christmas holidays, commencing at 5.00 pm on the Friday at the end of the school term and concluding at 5.00 pm on the Monday of the second week of the holidays.

c From 3.00 pm on 23 December until 3.00 pm on

26 December, commencing in 2011 and each alternate year thereafter.

d From 3.00 pm on 26 December until 3.00 pm on

28 December, commencing in 2012 and each alternate year thereafter.

e For two weeks in January each year, commencing at

5.00 pm on the first Monday after New Year’s Day (or on
New Year’s Day if that day is a Monday).

5Handovers for the purposes of the above orders shall take place at the [country] Roadhouse with both parents or their agent to collect/deliver the children.

6The mother and father be at liberty to agree variations of dates or times pursuant to these orders, provided that such variations are agreed in writing.

7The mother shall allow the children to communicate with the father by telephone or Skype whenever they reasonably request, and in any event on no less than two occasions each week; on Christmas Day; and on the children’s birthdays.

8The father shall allow the children to communicate with the mother by telephone or Skype whenever they reasonably request, and in any event on no less than two occasions each week during school holidays when the children are with the father; on Christmas Day; and on the children’s birthdays.

9The father and mother have liberty to apply within the next 28 days for variation of the orders made in relation to time spent by the father with the children around Christmas Day and Boxing Day and for further definition of paragraphs 7 and 8 of these orders if required.

10The mother and the father are each restrained by injunction from denigrating the other parent in the presence of the children.

11 The application and response be otherwise dismissed.

I certify that the preceding [136] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate

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