KOSKO and MOROZ
[2020] FCWA 173
•7 OCTOBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KOSKO and MOROZ [2020] FCWA 173
CORAM: DUNCANSON J
HEARD: 5, 7, 27, 28 AUGUST 2020
DELIVERED : 7 OCTOBER 2020
FILE NO/S: PTW 4214 of 2017
BETWEEN: MR KOSKO
Applicant
AND
MS MOROZ
Respondent
Catchwords:
CHILDREN - parenting orders - turns on its own facts
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr R Butcher |
| Respondent | : | Ms D Taylor |
Solicitors:
| Applicant | : | Butcher Paull & Calder |
| Respondent | : | Tan & Tan |
Case(s) referred to in decision(s):
Nil
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 Kosko and Moroz has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1[Mr Kosko], the father and [Ms Moroz], the mother are the parents of [G] who is 11 years of age. The parties are unable to agree about certain parenting issues concerning G.
BACKGROUND AND SHORT HISTORY
2The father is 59 years of age. He is an [accountant]. The mother is 49 years of age. She is a homemaker and student, studying online.
3The parties commenced their relationship in 2007 when the mother was living in [Country A] and the father was living in Australia.
4The parties married [in] 2008. G was born [in] 2009.
5In November 2016 the parties separated, but remained living in the same home until the mother left the home with G in January 2017.
6Pursuant to parenting plans, G lived with the mother and spent time with the father at weekends.
7The father commenced these proceedings on 8 February 2018. On 9 August 2018 orders were made permitting the father to take G to Country A on a holiday in September 2018.
8In August 2018 the mother commenced proceedings for divorce and ancillary orders in Country A. On 7 December 2018 the parties were divorced.
9The parties attended a case assessment conference on 21 November 2018.
10On 24 January 2019 the parties and G attended a child inclusive case assessment conference.
11On 18 July 2019 orders were made that G live with the parties on a week about basis with handovers to take place at 3.00 pm each Friday. The proceedings were assigned to the Complex Track as the mother sought to relocate G to Country A. Subsequently the mother withdrew her application to relocate.
12G was interviewed by the Family Consultant on 10 March 2020. The Family Consultant reported that G indicated a preference for his living arrangements to remain unchanged or to live with his father and spend weekends with his mother.
13The proceedings were listed for trial to commence on 5 August 2020. The parties attended a conciliation conference with a Registrar on 6 August 2020. The trial which had been adjourned to 7 August 2020 was vacated and relisted to 27 August 2020.
THE AGREED ORDERS
14To their credit the parties were able to agree various parenting orders in relation to G. They agreed as to the time G is to spend with each of them on special occasions and also as to G's communication with them. The parties agreed orders as to their attendance at extracurricular and other activities, the cost of extracurricular activities, the arrangements for collection/handover of G, their communication with each other, their attendance at medical appointments and arrangements for holidays within Australia.
THE ISSUES IN DISPUTE
15The parenting issues in dispute include the following:
•parental responsibility;
•G's living arrangements during the school term and during the school holidays;
•extracurricular activities;
•G's schooling, and whether he should attend [School A] in 2021 as proposed by the father, or [School B] as proposed by the mother;
•time in the summer school holidays and whether G should spend a block of 20 days with only the mother, or whether he should spend that time with each of his parents;
•holidays overseas and whether there should be an injunction restraining the parties from taking G overseas until he attains the age of 16 years as proposed by the father, or whether with appropriate notice the parties should be able to take G overseas, including travel to Country A with the mother for four weeks each year and a sojourn of three months, not before 2021; and
•whether G's passport should be held at the Family Court or whether it should be held by the mother.
THE PARTIES AND THE EVIDENCE
The father
16The father is from Country A. He did not require an interpreter. I consider the father gave truthful evidence which was reliable. At times he gave literal answers to questions in cross-examination. I consider this arose by reason of his command of the English language rather than any attempt to be unhelpful. The father was sincere when he expressed a hope that the mother would have a more friendly approach towards him and he believes things will settle down. I consider the father's decision making is based on G's wishes. He said the reason he was in Court was because G was not happy and that he had spent a lot of time and money to achieve G's happiness.
Ms A
17[Ms A] is the father's former wife. She was supportive of the father. She has cared for G on occasions during the holidays. Ms A's evidence was reliable. She was straight forward and did not embellish her evidence. When she did not know the answer to a question she said so.
Mr C
18[Mr C] is the adult son of Ms A and the father. He deposed to having a good relationship with G and G being very happy in his company. He cares for G when the father is working and is happy to help out. He deposed to seeing G every weekend. His evidence was unchallenged.
The mother
19The mother is also from Country A. She had the assistance of Country A interpreters and called upon the interpreter when required. At times the mother's evidence was confusing and unclear. At times the mother was tearful. Like the father, the mother has G's best interests at heart and she acts in accordance with what she believes to be his wishes. However, notwithstanding the clear terms of the report of the Family Consultant as to G's wishes, the mother does not accept them. The mother said G told her he did not tell the Family Consultant that he wanted equal time with his parents and the mother said this was exaggerated.
20The mother denied sending the father unpleasant text messages. She said it was possible to use an App on the internet to send fake messages and that is what occurred. I am not inclined to believe the mother's evidence in this respect. I consider it more likely than not that she sent the messages.
Ms B
21[Ms B] is a parent of one of G's former classmates. She deposed to the mother's dedication, encouragement and support of G.
Ms D
22[Ms D] is also a fellow parent. She too deposed as to the mother's good care of G and her care of his wellbeing and positive development.
Ms E
23Ms E is G's [music] teacher. She deposed to the mother's provision of the best opportunities for G and her care and love for him. She described G as growing up as a well-rounded intelligent young man.
24The evidence of the mother's witnesses was unchallenged.
Family Consultant
25A case assessment conference was held on 21 November 2018 with [the] Family Consultant. She provided a memorandum dated 18 December 2018. The Family Consultant considered it was appropriate to seek G's views on his relationship with both parents and his ongoing living arrangements prior to any attempt to negotiate a change. The Family Consultant then conducted a child inclusive conference on 24 January 2019 and provided a memorandum dated 14 February 2019.
26In her memorandum the Family Consultant expressed "overwhelming concern" in relation to the mother causing G emotional harm due to her negative views of the father. She noted:
Although the Family Consultant would normally hesitate to recommend an equal shared care arrangement when parties are in such high conflict, in this matter given the mother's behaviour it is suggested the Court give consideration to supporting [G's] views to live equally between his parents. It is suggested this be reviewed in six months, with a further Child Inclusive Conference and if during that time the mother has not found ways to moderate and change her behaviour, consideration be given to [G] living with his father and spending time with his mother.
27The parties adopted the recommendations of the Family Consultant and in July 2019 G began living with the parties on a week about basis. On 10 March 2020 the Family Consultant met with G for the purpose of a follow up interview. She provided a memorandum dated 24 March 2020 to which I refer below.
THE LAW
28These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act").
29In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
30Section 60B sets out the objects and the principles underlying them. The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
31In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the primary considerations and the additional considerations.
THE PARTIES' POSITIONS
Parental responsibility
32The father seeks an order that the parties be jointly responsible for the long term care, welfare and development of G. The mother's position at trial was that she should have sole parental responsibility for G. She proposes that the parties should confer about long-term issues, but in the event that they are unable to reach agreement she should make the final decision in relation to a particular issue.
33The father deposed to there being some communication via text and email between the parties, but frequent disagreements. He referred to difficulties dealing with the mother after separation, but he also referred to two agreed parenting plans. The father deposed that the difficulties in reaching agreement with the mother led him to believe that a week about living arrangement for G would be the simplest way of organising their lives and reduce conflict. The father deposed that he has never been violent towards the mother, although there have been arguments. The father deposed to hostile text messages received by him from the mother between May and July 2020. Notwithstanding the parties' difficulty in communication, the father said he remained hopeful that if the parties used their common sense and communicated properly they would be able to reach agreement in the future.
34The mother alleged the father was aggressive, violent and abusive towards her during the relationship and in the presence of G. The mother deposed she has attempted to involve the father in joint decisions relating to G and provided him with information. She received threatening letters in Country A and feared they were from the father. In her oral evidence the mother agreed her communication with the father is polite and compromising. She denied sending the father the text messages to which he referred and said the father used an application to fake the messages.
35The parties disagree as to the school to be attended by G. The mother deposed she worries the father does not take G's medical issues seriously and dismisses or minimises them. She does not believe the father has provided for G's medical needs. The mother deposed the parties disagreed as to G's referral to [Company A] for tests. The mother deposed the parties' distrust of each other gets in the way of effective communication between them.
Living arrangements during the school term and school holidays
36The father proposes that G live with each of the parties in a week about arrangement during the school term and during the school holidays unless otherwise agreed. The mother's position is in the alternative. She proposes that during the school term in a two week period, G live with her and spend time with the father each fortnight as follows:
•In week 1 from afterschool Tuesday until the commencement of school Wednesday, and from Friday to Saturday; and
•In week 2 from Friday to Sunday.
37In the alternative the mother proposes that G live with her from after school on Monday until the start of school on Friday and with the father from after school Friday until after school Monday each week.
38The father deposed that the orders he seeks are in accordance with the current arrangement and also in accordance with G's wishes. The father referred to the reports prepared by the Family Consultant in which G has consistently said he wishes to live with the father each alternate week. The father deposed that G attends after school care and is happy with that. The father's employer allows him flexibility.
39The mother deposed she is available to look after G during the week and the father is available on weekends. The mother asserted the father cannot implement an equal living time arrangement because of his hours of work. She deposed that while G's sense of justice and fairness may say he wants to split his time equally between his parents, in practice that does not work well for him because of different commitments.
40The mother deposed that the father neglects to care for G personally and leaves his son Mr C to care for him. She is of the view that the father will not adequately be able to care and provide for G on a full-time basis, whereas he enjoys a stable routine in her care. She asserted the father does not have the capacity to facilitate G's active lifestyle and therefore the week about arrangement is impractical and not in G's best interests.
41The mother proposes that G should spend half of each school holiday period with each parent and in the absence of agreement this should be on a week about basis. The mother does however propose that G may be taken on holiday both within Australia and overseas by a parent on certain conditions to which I refer below.
Extracurricular activities
42The father proposes that the parties consult as to the enrolment of G in any new extracurricular activity which should not conflict with the time G spends with the other parent. He proposes that both parties may attend those extracurricular activities and will notify each other prior to attending such an event. The parent who arranges an extracurricular activity will be responsible for the cost.
43The mother agrees that the parties may attend G's extracurricular activities including any schooling event, assembly or function. She also agrees that a parent who arranges any new extracurricular activities should bear the costs associated with it.
44The mother deposed that G plays [certain extracurricular activities]. She stated that as the father works full-time he would not be able to bring G to after school activities which he enjoys in her care.
45The mother deposed that the father does not allow or take G to his [extracurricular activities] often. She asserted the father refuses to bring G to his activities even when she has offered to drive him. The father was asked if he would take up the offer from the mother to take G to a scheduled extracurricular activity if the father was unable to do so. Initially the father said he would not as he said this is against G's express wishes and he is trying to make G happy. Subsequently he said he would take up an offer by the mother to look after G after school or to take him to an activity.
Schooling
46The father proposes that for 2021 and thereafter G be enrolled at School A and he proposes to pay the mother $50 per fortnight during the school term to compensate her for the cost of driving to and from that school when G is in her care.
47The father deposed that the mother acted unilaterally in placing G in [School C]. The father referred to the mother's proposal to enrol G in School B. School B starts at 8.30 am. The father starts work at 7.30 am. It was put to the father that if it is ordered that G attend School B the father could drop G to school and start work later. The father agreed however he said it was not that simple. The father explained this poses logistical problems for him, as he will not get to work in [Suburb A] until 8.20 am at best. The father said he cannot start work later than 8.00 am as his workplace closes at 5.00 pm and he must work a certain number of hours. The father said he could drop G to school at 7.45 am to commence work by 8.00 am. Although he has flexibility in his employment, there have been redundancies and he points out that the mother and G are dependent on his income.
48School B closes at 3.00 pm so G would have to be collected at that time. The father finishes work at 4.30 pm so when G in in the father's care he would have to catch a bus, a taxi or an Uber to his home.
49The father said School A [has received a secondary school award]. It has a [Sport A] academy which is G's main sporting interest. It also has [after school clubs] which enables children to stay in the library until 4.00 pm and be provided with a snack. The school has a program for maths and science in which G has an interest. It also has a swimming pool. The father lives in the catchment area for School A, which is located 1.8 kilometres from his home. G would be able to ride his bike to and from school and he has expressed a wish to do so.
50The father's main concern is travel time. His travel time by car from his house to School A is three minutes. To School B it is 12.1 kilometres, but this takes about 19 minutes depending on traffic.
51The father deposed that from the mother's unit to School B takes about six minutes by car and about 24 minutes by bus. The father owns his property and is unable to sell it and move. He said the mother rents a unit and is free to locate closer to School A. If she does not do so, he will pay her $50 per week for her travel expenses.
52The mother has enrolled G in School B. She is of the view that she has a better understanding of G's educational needs than the father. She chose to move to [Suburb B] to be in the catchment area of what she describes as an excellent primary and high school. The mother deposed that G's friends and classmates are going to School B in 2021 and he is able to get to school from her home and return by walking, car, bike or bus. She is then available to take him to after school activities.
53The mother referred to the father's reliance on before and after school care and the travel distance to the father's home leaves G looking exhausted and unhappy.
54The mother deposed G is making good progress at School C. He is established within the community and his current arrangements. He has a close group of friends and it is convenient for his activities. She considered it would be in G's best interests to remain in the environment in which he has grown up comfortably and she is concerned a move may aggravate his medical conditions. The mother moved to Suburb B with the intention of G being educated in that catchment area and said School B has a good academic record.
Holidays in Australia
55Broadly speaking the parties agree that G should spend half of the school holidays with each of them. In the holidays at the end of Terms 1, 2 and 3 the effect of this is that he spends about a week with each of his parents. The mother seeks an order that in the holidays at the end of Term 4, G spends a block period of three weeks (20 days) with her. The father is not opposed to this, but seeks that such an order apply to both parties. The mother does not agree to G spending three weeks with the father. Her primary objection is that he would not be personally available to care for G. She is concerned that G is left in the care of other persons or left alone. The father's position is that he makes appropriate arrangements for G's care when G is with him and he should be given the responsibility to do so. Both parties seek an order that G spend an extended period of time with each of them to enable them to take him on holiday in Australia if they wish to do so.
Holidays overseas
56The father seeks an order that the parties be restrained from taking G overseas until he is 16 years of age. The father proposes that 60 days notice of an intention to travel must be given together with a full itinerary and contact details. Linked to this is the order sought by the father that until G is 16 years of age, his passport be retained by the Court.
57The father explained that he was given permission by the Court to travel with G to Country A on 9 August 2018. He subsequently learned that the mother had commenced legal proceedings in Country A for divorce and custody and he thought it prudent not to take G to Country A because she had commenced legal action there. He was concerned it may be difficult to return. The mother travelled to Country A. The father and G did not.
58The father referred to the mother's previous intention to relocate permanently with G to Country A and pointed out that it was only two days before the trial on 5 August 2020 that she indicated she no longer wished to do so. The father acknowledged it would be of benefit to G to visit Country A, but not to relocate there. G has relatives on both sides of the family in Country A. The father does not accept that the mother has genuinely abandoned the idea of relocating to Country A. In her correspondence she told him the trip had been postponed because of COVID-19 and he suspects that she planned to relocate with G in 2018 without telling him. The father deposed the mother does not accept the outcome of the Country A Court proceedings, which was to dismiss the child related proceedings and he has no confidence she will return G if she is permitted to take him to Country A. Although Country A is a signatory to the Hague Convention, the father pointed out there is no guarantee as to the outcome of proceedings in Country A, the cost thereof or how quickly the outcome would occur. The father said when G is 16 years of age he can stand up for himself and make his own decisions.
59The mother proposes that the parent with whom G is staying during the holidays can take him out of Australia provided the travel is subject to the Department of Home Affairs ban on international travel and is limited to countries with risk levels at Level 1 or Level 2 and there must be the provision of information.
60The mother proposes that she be permitted to take G to Country A for a four week holiday each year, commencing with the holiday period after the travel ban is lifted. In addition she wants to take G to Country A for a "temporary sojourn of up to three months" not before 2021 and at a time recommended by the principal of the school. The mother proposes this overseas travel for herself and G, but not for the father.
61The mother deposed that she believes it to be in the best interests of G to continue living and being educated in Perth, but to have the opportunity to travel to Country A for holidays. She wants to take him to Country A to visit family and friends and will do so with the advice of the school principal as to timing. She will give him home lessons during the absence. She is writing a thesis on [the history of Country A] and needs to inspect original documents in Country A. She wants to continue her research there for her PhD thesis and that is the reason for her three months sojourn. The mother referred to the many advantages to G of travel. The mother said the father has no family in Country A. The father said he has family in Country A who are on good terms with the mother's family.
62The mother referred to an extensive network of family in Country A and the opportunity for G to see his family to improve his Country A language skills and she referred to a special bond between G and his grandmother. She referred to G's relationship with cousins and friends with whom he continues to enjoy Skype and mobile calls and says he would very much like to see them again.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
63G has a meaningful relationship with both of his parents and it is to his benefit that it continues.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
64The father expressed concern about the mother's angry moods, although he referred to the improvement in this respect as set out in the family consultant's report dated 10 March 2020. The mother deposed "there may be a need" for the father to understand that his actions against the mother may cause psychological harm to G. This appeared to be a reference to the mother's allegations that the father was verbally and physically abusive towards her during the marriage. The mother alleged the father assaulted her, threatened her and was controlling of her. The father was concerned that the mother was suffering from depression and he referred to her behaviour and outbursts of anger towards him and others.
65Neither party asserted that there is a need to protect G from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. The Family Consultant reported on 18 December 2018 that both parties expressed concern about the behaviour of the other posing a risk to G. However, the Family Consultant considered the primary risk to G at that time was the ongoing conflictual relationship between the parties with him caught in the middle.
66The Family Consultant reported that her concern was as to the possible emotional harm which the mother may have been causing G. I refer to this below when considering the parties' capacities to provide for G's needs including his emotional needs.
ADDITIONAL CONSIDERATIONS
any view 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
67The father deposed that G has told him that he wishes to live with his parents on a week about basis. The mother deposed that G wants to continue to spend time with both of his parents on a regular basis in Perth and to maintain a relationship with his family in Country A.
68G was interviewed by the Family Consultant on 10 March 2020. As to his living arrangements, the Family Consultant reported as follows:
[G's] willingness to clearly state that he did not want to return to live with his mother and weekends with his father, and his unwillingness to state whether he would prefer living with his father and weekends with his mother seems to indicate to the Family Consultant a preference for the situation to remain unchanged or for [G] to live with his father and weekends with his mother.
69G is 11 years of age.
70There was no suggestion that either parent had influenced G. The report from the Family Consultant suggests that he is happy with the current living arrangement and does not seek a change. I place weight on G's views as reported by the Family Consultant.
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)
71G enjoys a close and loving relationship with both of his parents. He also has a good relationship with his half-brother, Mr C and the father's first wife. G has friends at school and in his local area.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
72Both parties have taken the opportunity to participate in making decisions about major long-term issues in relation to G since July 2019 when he has lived with each of his parents on a week about basis.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
73Both parties have fulfilled their obligation to maintain G.
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
74Upon the father's proposal there would be no change to G's circumstances such that he is separated from either of his parents or other person with whom he has been living. Upon the mother's proposal there would be a change in the living arrangements, but not such that it would involve a separation from either the father or other persons. The mother deposed and I accept that G's relationship with both of his parents is sufficiently close and established to enable him to be separated from a parent for holiday periods, particularly if telephone communication is maintained.
75The Family Consultant reported as to G's views above. G wishes the existing arrangement to remain unchanged, although the Family Consultant suggested that the alternative would be that he lived with the father and spent weekends with the mother. Neither party proposes an arrangement whereby G would be separated from the other parent and such a change to his circumstances is not contemplated.
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
76There is no practical difficulty or expense which would substantially affect G's right to maintain personal relations and direct contact with both of his parents on a regular basis. Both parties deposed to practical difficulties in relation to schooling and travel associated with that and I refer to that below.
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
77In her memorandum dated 14 February 2019, the Family Consultant reported that her overwhelming concern at that time was the emotional harm the mother may be causing G in relation to her ongoing negative and inappropriate narrative about the father, her lack of insight and awareness of how this could impact on G's immediate and long-term wellbeing. The Family Consultant based her concern on the mother's behaviour to and in front of G.
78The Family Consultant reported on 24 March 2020 that G stated his mother no longer yells at him as much and has become "a bit nicer". At that time G also said his parents do not have arguments in front of him, nor do they talk about each other.
79The mother said she has addressed criticisms made of her behaviour by the Family Consultant and attended several courses designed to assist parents to understand the needs of their children post‑separation.
80From G's perspective there would appear to have been an improvement in the mother's behaviour towards him.
81The mother asserted the father's ability to care for, or to participate in G's day to day life is constrained in practice by his work commitments. The father said G attends before and after school care during the week. I am satisfied he is capable of making suitable arrangements for G in his absence.
82In her oral evidence the mother said the father "threatens" G's life in that he fails to take appropriate precautions in the sun and G plays too close to the edge of the pool. The mother said she does not trust the father anymore, she worries and gets stressed a lot of the time when G is in the father's care.
83However, the mother deposed and I accept that both parties are able to provide for G's needs including his emotional and intellectual needs.
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
84G is 11 years of age. Both of his parents are from Country A and [Nationality A] is their first language. The Family Consultant described G as a delightful, maturing young person who needs to be supported as his parents continue to navigate the Family Court process.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
85This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
86Both parties have a responsible attitude to G and to the responsibilities of parenthood. Both are committed to his wellbeing. It is important that neither party speak negatively of the other in the presence of G and the most recent report from the Family Consultant suggests that does not now occur. The parties are to be commended for that.
87In the February 2019 report, the Family Consultant recommended that both parents attend various courses and for the mother to attend individual counselling to assist her in navigating and managing her negativity she continued to feel towards the father.
88The mother deposed to taking proactive steps and continuing to improve the regulation of her behaviour, her view of the father and the overall co-parenting relationship. Upon the recommendations of the Family Consultant, the mother has completed the Separated Parents Orders Training program, the Mums and Dads Forever program and a Raising Resilient Kids course.
89The mother said since attending the Mums and Dads Forever course through Anglicare she has tried to limit the conflict and improve her view of the father, even sharing photographs of the father with G.
90The Family Consultant reported on 24 March 2020 that the parties received feedback following her interview with G and the mother commented each time in a negative manner as it related to the father.
any family violence involving the child or a member of the child's family
91The mother said the father was violent and verbally abusive towards her during the marriage. The father denied any family violence and referred to arguments between the parties. I am unable to make a finding as to whether there was family violence between the parties during their marriage. There is not currently any family violence involving G or a member of G's family.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
92There is no family violence order in effect.
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
93It is desirable to make final orders and conclude these proceedings. Finality would be of assistance to both parties and in the best interests of G, as it is likely to minimise conflict. The only aspect of the parenting orders which may not be capable of finalisation is that with respect to overseas travel.
any other fact or circumstance that the court thinks is relevant
94The father has not attended the Mums and Dads Forever program and he should do so.
CONCLUSIONS
95Having considered all of the evidence in the context of the primary and additional considerations and the submissions made on behalf of both parties, I have come to the following conclusions.
Parental responsibility
96At trial the mother's position was effectively that she have sole parental responsibility for G. She proposed that the parties should consult as to long term issues concerning G, but in the event that they were unable to agree she should make the final decision. The father sought an order that the parties have equal shared parental responsibility for G.
97Equal shared parental responsibility imposes an obligation upon the parties to consult as to major long-term issues regarding G and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are issues about the care, welfare and development of G of a long-term nature including issues about his education (both current and future), religious and cultural upbringing, health, his name and changes to his living arrangements that make it significantly more difficult for him to spend time with a parent.
98Both parties are responsible and caring parents who want the best for G.
99The parties are able to communicate, although this is by text message or email. The parties have agreed that they will continue to communicate in this way. The father is hopeful that their communication will improve. The mother appeared less optimistic, but I consider that she was able to understand the benefits to G of such an improvement.
100Both parties are responsible and caring parents who want the best for G. The mother is very anxious about his health. The father's position is that G has no major health difficulties. It is likely to be in G's best interests that there be some balance in the decision making in this respect and that both parties should have input into decisions about medical issues. I will make comprehensive orders about the provision of information regarding G's health.
101The parties do not fundamentally disagree about G's education. They merely disagree as to the location of his secondary school and that is a decision to be made by the Court. This issue should not therefore give rise to conflict between the parties in the future. In these proceedings I have had to determine a number of issues, but the parties were also able to agree many issues.
102Although the mother was concerned about G's wellbeing in the care of the father, the shared arrangement for his care has worked well and is one which G wishes to continue. The mother alleged the father's behaviour was violent. Had I found that there were reasonable grounds to believe that a party had engaged in abuse or family violence, the presumption that it is in G's best interests that his parents have equal shared parental responsibility for him would not apply. Upon the evidence I do not make such a finding.
103The report from the family consultant indicates that G is a child who is thriving and doing very well. He has lived in the current week about living arrangement since July 2019. The fact that he is flourishing and making good progress suggests that to the extent that the parties have co-parented him, they have done so successfully.
104The father was hopeful that the parties' relationship would improve with time. My orders will resolve a number of issues between the parties and there is therefore scope for that improvement in the future.
105I am mindful that the objects of the legislation including that the children's best interests are met by ensuring that they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent is consistent with the best interests of the child. The order for equal shared parental responsibly is consistent with this.
106I am satisfied that an order that the parties have equal shared parental responsibility for G is in his best interests. The orders will set out precisely what the parties are required to do to give effect to such an order.
G's living arrangements
107As I intend to make an order that the parties have equal shared parental responsibility for G, I must consider whether G spending equal time with his parents is in his best interests and reasonably practicable. If not I must consider whether G spending substantial and significant time with his parents is in his best interests and reasonably practicable. The good progress being made by G would suggest that the current arrangement of equal time is working well for him. There is no evidence to suggest that a change to it would be in his best interests. I am satisfied it is in the best interests of G to spend equal time with his parents. The current arrangement of week about is reasonably practicable and there are no impediments to implementing it.
108The arrangement whereby G lives with the parties on a week about basis accords with his wishes. The Family Consultant reported as to his views. The mother does not accept her report represents his views. I am satisfied that they do. G is 11 years of age. He is described as mature. A living arrangement which accords with his wishes is likely to be one which is in his best interests.
109A week about arrangement enables G to spend a continuous period of seven nights in the home of each parent. It provides stability and predictability.
110I consider an order that G live with each of his parents on a week about basis to be in his best interests.
111During the school term handovers should take place at school at 3.00 pm on a Friday. The number of handovers are limited to one each week. The week about living arrangement should continue during the holidays at the end of Terms 1, 2 and 3. During these holidays, handover should take place at the parties' homes at 5.00 pm on a Friday. It is not in dispute that handovers should take place at school during the school terms and at the parties' homes during the holidays.
112An order providing that each party collect G at the commencement of G's time with that party is in G's best interests.
113Both parties seek an extended period of 20 days with G in the holidays at the end of Term 4. An order providing that G spend half of those holidays with each party achieves that. This will give an opportunity to each party to take G away from Perth on holiday if they wish to do so. It gives G an opportunity to spend a continuous period of up to three weeks with each of his parents.
114The father's working hours may not allow for him to be on leave from work for three weeks at a time. He may not be able to take G for three weeks but he should have the option of doing so. He may ask the mother to retain G in her care or he may make arrangements for his care. It would be to the benefit of G if the parties cooperate with each other in this respect.
115I consider G would enjoy the opportunity of travelling within Australia, or simply spending an extended period of time with each of his parents.
Opportunity to care for G
116The mother proposes that in the event that the father is unable to care for G personally then she be appointed alternative carer. The mother indicated a willingness to look after G if the father required her assistance when G was spending time with him. The father was opposed to this. He suggested this would not accord with G's wishes. I consider it is likely that the father will do what G wants.
117The mother was concerned about G being left unattended at the father's home. I consider her concern is not unreasonable given his young age. There is however no suggestion that G has been neglected or that he has come into any harm in the care of either party.
118I am satisfied that both parties are capable of making suitable arrangements for G's care in their absence. Both parties are at liberty to offer the other party the opportunity to care for G, if that party is unable to personally care for him, but they are not obliged to do so. I do not consider it to be in the best interests of G to make the order sought by the mother that the father must personally care for G or she be appointed alternative carer. I have found that both parties have a responsible attitude to G and to the responsibilities of parenthood. Both parties can be trusted to make appropriate arrangements for his care and supervision. That said, it is to be hoped that both parties will first call upon the other to assist with G's care if needed and that each will be prepared to assist the other in this respect.
Extracurricular activities
119G has a number of interests including extracurricular activities. The mother is keen to maximise his opportunities. The father has difficulty in taking him to extracurricular activities by reason of his work commitments. The mother is not working at present, although I am mindful that she said she was looking for employment both full-time and part-time. An order which I consider to be in G's best interests is that he be enrolled in extracurricular activities which he enjoys and wishes to do. Both parties should then use their best endeavours to ensure that he attends those activities when spending time with each of them. Once again, if for example the father has difficulty in taking G to an activity and the mother is prepared to do so, he should accept her offer to assist in this way. G's activities are to be encouraged and his opportunities maximised. The parties should both use their best endeavours to facilitate his attendance at those activities which he enjoys regardless of which party enrolled him in such an activity.
Schooling
120I have given very careful consideration to this issue. I have concluded that it would be in the best interests of G to attend School B in 2021 and thereafter. G has lived in the Suburb B area since 2017. He has friends there and friends who attend School C who will be going on to School B. In particular G's closest friends will be attending there.
121School A would be an acceptable school, but the father's reasons for G attending there are primarily reasons of his convenience. That is not a criticism of the father, but a practical reality. I accept that G is familiar with the location in which his father resides as he is in a week about living arrangement with his parents. The father will have some practical difficulties associated with his working hours, but like any parent it will be necessary for him to make arrangements for G's supervision, both before and after school. The distances involved are not great, but the difficulty primarily arises because of the father's working hours. I am mindful that the mother is seeking employment. It is for that reason that I propose to make an order which allows the parties to arrange for a third party known to G to undertake handovers on a parties' behalf.
Holidays overseas
122I do not consider that the orders sought by either party are in the best interests of G. To delay G's opportunity to travel to Country A and to enjoy his culture and heritage there until he is 16 years of age is not to his benefit. It would be to his benefit to have that opportunity. The mother frankly conceded that if she had the choice she would prefer to live in Country A. I am left with the residual concern that if the mother could, she would relocate G to Country A at this time. I am concerned that by reason of the mother's overall unhappiness with the post-separation arrangements and her relationship with the father, if she was given the opportunity to take G to Country A at this time she would wish to remain in Country A with him and may do so. I consider therefore that at this time the mother is a flight risk despite her assurances that she would return to Australia.
123In any event I am unable to make a decision about overseas travel at this time. Australia's borders are closed by reason of the COVID-19 pandemic. I am unable to assess the risk to G, if any, posed by international travel generally and to that destination in particular. I consider it would be in the best interests of G if a decision in this respect was deferred. The passage of time may assist the mother, as in the future, she may be able to persuade the Court she has come to terms with the outcome of matters at issue between her and the father such that she poses less of a flight risk than I consider she does at this time.
124I infer from the submissions of both parties that this issue is one which they accept may be deferred to a later date and that all the facts and circumstances of any proposed travel could be taken into account and assessed at the relevant time.
125An order that G's passport be retained by the Court is consistent with a later determination as to overseas travel. By reason of the distrust between the parties and to minimise conflict in the future I consider it to be in G's best interests that I make that order.
THE PROPOSED ORDERS
126Subject to hearing from counsel, I propose to make the following final orders, noting that (subject to minor variations as to wording) orders 8, 9, 10, 11, 13,14, 17, 18, 19, 20, 24, 25(a) and 25(b) are made by consent and the balance of the orders are made by determination.
1All previous parenting orders be discharged.
Parental responsibility
2The father, [MR KOSKO] and the mother, [MS MOROZ] have equal shared parental responsibility for the child, [G] born [in] 2009 ("the child").
3Unless contrary to the child's immediate welfare, the father and the mother shall, before making any major long-term decision about the child:
(a)consult with each other by email setting out any major long-term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond by email in a timely manner and within no less than 14 days, making a genuine effort to resolve any issues; and
(c) in the event any dispute is unable to be resolved, the party making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other parent to attend to resolve the dispute.
Living arrangements during the school term
4The child shall live with the parties on a week about basis with handovers taking place at 3.00 pm on Friday at the child's school.
Living arrangements during the school holidays
5During the school holidays at the end of Terms 1, 2 and 3, the child shall live with the parties on a week about basis, with handover taking place at 5.00 pm on Fridays.
6During the school holidays at the end of Term 4 the child shall spend equal time with the parties with handover taking place at 5.00 pm.
7During the school holidays at the end of Term 4 (and subject to arrangements for special occasions) the child shall spend time with each party for half of the holidays commencing the first half with the mother and the second half with the father in 2020 and each alternate year thereafter and the first half with the father and the second half with the mother in 2021 and each alternate year thereafter.
Special occasions
8The child shall spend time with both parties on his birthday as follows:
(a)with the mother from the night before his birthday to noon on his birthday;
(b)with the father from noon on his birthday to the next morning at 8.00 am; and
(c)with the father for two hours on the birthday of the child's half-brother, [Mr C].
9The child shall spend Father's Day with the father and Mother's Day with the mother.
Variations
10The father and the mother shall be at liberty to have the child live or spend time with each of them other than as set out in these orders and are at liberty to vary these orders provided such variations are agreed in writing.
Handover
11Handovers shall take place at the child's school. If handover occurs on a non-school day then the party commencing time with the child shall collect the child from the other parent's home or otherwise as may be agreed between the parties.
12Both parties be at liberty to authorise another person to collect the child at the commencement of the child's time with each of them, provided that person is known to the child.
Communication with the child
13The child be permitted to call either parent when he wishes to do so.
14The parties be at liberty to call the child when the child is with the other party but the calls be limited to once per day.
Extracurricular Activities
15The parties shall consult each other if they wish to enrol the child into any new extracurricular activity.
16Both parties shall use their best endeavours to ensure the child attends an extracurricular activity in which he is enrolled during the time he is living with each of them.
17Both parties may attend the child's extracurricular activities, including attending any schooling event, assembly, or function.
18The parties will notify each other by email prior to attending any event for the child.
19Unless otherwise agreed, the parent who arranges any new extracurricular activity will bear any costs associated with that activity.
Communication and Provision of information
20The parties shall communicate with each other by email and or text.
21Both parties shall keep each other informed of their primary place of residence, landline and telephone numbers and their current email addresses and promptly notify the other parent in writing in advance of any change thereto.
22The parties shall notify each other as soon practicable if the child experiences any emergency, serious illness or injury, is hospitalised, or must attend a doctor's appointment.
23The parties shall communicate with each other in relation to the child's medical and developmental conditions including but not limited to any appointments required and any medications or pharmaceutical treatments required or administered.
24Both parties shall be entitled to attend the child's medical appointments and the parties shall notify the other party of such appointments.
Holidays in Australia and overseas
25If either party wishes to take the child within Australia for a holiday then the departing party shall:
(a)provide 21 days written notice of the holiday; and
(b)provide full details of the travel itinerary and contact details whilst away.
26The parties have liberty to apply with respect to removing the child from the Commonwealth of Australia.
Passports
27The mother shall deposit the child's passport with the Registry of the Family Court of Western Australia for safekeeping to be released only upon the written consent of both parties or order of the Court.
Programs
28The father shall enrol in the Anglicare Mums and Dads Forever Program and provide the mother with a certificate of completion.
Other Orders
29All extant applications be otherwise dismissed.
30In 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 Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the chambers of Justice Duncanson 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.
31In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 30 does not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
7 OCTOBER 2020
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