M and M

[2008] FCWAM 1

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : M and M [2008] FCWAM 1

CORAM : MORONI M

HEARD : 24 JANUARY 2008

DELIVERED : 18 FEBRUARY 2008

FILE NO/S : PT 2815 of 2006

BETWEEN : M Applicant/Mother

AND M

Respondent/Father

Catchwords:

Children's issues - proposed relocation

Legislation:

Family Law Act 1975, s 60CC, s 61DA, s 65AA, s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr Supljeglav
Respondent : Self-represented Litigant

Solicitors:

Applicant : DS Family Law
Respondent : Self Represented Litigant

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

Nil

1The proceedings for determination by the Court comprise a Form 1 application filed 14 May 2007 as answered by a Form 1A response filed on 25 July 2007, insofar only as they concern child welfare issues.

2 By her Form 1 Application, the Applicant seeks the following orders, namely:-

“1 Paragraphs 2 and 3 of the Orders made on 10 July 2006 be discharged.

2The Applicant and Respondent retain joint responsibility for making decisions in relation to [A]’s long term care, welfare and development.

3The Applicant be at liberty to relocate with [A] from her current place of residence, being [from an inland North-west town], to [another inland mid North-west town around 800 kilometres away].

4 Upon [A]’s relocation to [the inland North-west town], and until

[A] commences kindergarten, the Respondent spend time with [A]:

(a) In Perth for one week every six weeks, from Saturday to the following Saturday (extending to Sunday in the event that [A]’s time with the Respondent coincides with the week immediately preceding Father’s Day);

(b) On the following special occasions in the event that these occasions do not otherwise coincide with [A]’s time with the Respondent pursuant to these Orders;

(i) on Father’s Day weekend each year;

(ii) for Christmas in 2007 and each alternate year thereafter, from Christmas Eve until 3 January

2008;

(iii) for Christmas in 2008 and each alternate year thereafter, for one week immediately preceding Christmas Day;

(iv) for Easter in 2007 and each alternate year thereafter, from Good Friday to Easter Monday.

(c) In [the mid North-west town] at such times that the Respondent may travel to [the mid North-west town], upon providing the Applicant with reasonable written notice of his intention to do so;

(d) In Perth at such times as the Applicant may travel to Perth with [A], upon providing the Respondent with reasonable written notice of her intention to do so;

iAt such further times as may be agreed between the parties.

5Upon [A] commencing kindergarten, she spend no less than half of each school holiday period with the Respondent in Perth, with the Respondent to provide the Applicant with at least 28 days written notice of the dates on which he wishes to spend time with [A], with such time to include Christmas Day each alternate year.

6For the purposes of [A]’s time with the Respondent outlined in paragraphs 4 and 5 above:

(a) The Applicant and the Respondent share equally the costs of transporting [A] to and from Perth Airport where the Respondent or a member of the Respondent’s family shall collect [A];

(b) The Applicant have liberty to telephone [A] during her time with the Respondent and the Respondent shall provide the Applicant with a telephone number where [A] can be contacted.

7Upon the applicant’s relocation to [the inland mid North-west town], the Applicant shall forward to the Respondent on regular occasions:

(a) Any letters, pictures, paintings or artwork done by [A] for the Respondent;

(b) Photographs of [A];

(c) Information pertaining to [A]’s ongoing health and development, including copies of any documents, reports or letters in this regard;

(d) Information pertaining to [A]’s ongoing education, including copies of all school reports, assessments, documents, reports or letters in this regard; and

(e) Any other information pertaining to [A] that the

Respondent may reasonably request from time to time.

8The Respondent have liberty to telephone [A] on at least two occasions each week with the Applicant to provide the Respondent with a telephone number where [A] can be contacted.”

3 By his Form 1A response, the Respondent seeks the following orders, namely:-

“1 If the Applicant Wife wishes to relocate from the [Northern town]

to the [mid North-west town], the child [A] born [in]

October 2004 live with the Respondent Husband and the Husband have sole responsibility for her day to day care.

2The parties share equal parental responsibility in relation to [A]’s long term care, welfare and development.

3 Until [A] attends kindergarten she spend time with the Applicant

Mother for one week in six weeks.”

4The child related proceedings are running ancillary to substantive property proceedings which were the subject of an unsuccessful conciliation conference conducted on 19 October 2007. Notwithstanding the making of procedural directions for the trial of the property proceedings, the Court was told during this hearing that the parties are close to settling those proceedings. The parties are not people of great wealth. The Respondent will retain sole ownership of the home in which he is now residing and will pay to the Applicant a sum of money, yet to be agreed. The impression gained by the Court is that settlement of the financial proceedings is likely to occur fairly soon after the child related proceedings are concluded.

5The Applicant is a lady now aged some 32 years and she presently resides in [the North] of the State. Currently, she holds no paid employment although it would appear that she has in the relatively recent past had some casual employment in her town.

6The Respondent is a gentleman now aged some 40 years and he presently resides in [a suburb of] the Perth metropolitan area. He is employed on a full-time basis as a [driver].

7 The parties began to live together in January 2001 before marrying on

25 January 2003 and separating finally on 1 May 2006.

8 The marriage produced the one child, namely [A], who was born

[in] October 2004 and who is now aged some 3 years and a couple of months.

9It is common ground that the Applicant has been the child’s primary caregiver both during the relationship and subsequent thereto. During the relationship the Respondent fulfilled the role of breadwinner for the family, although it is clear he has always had a loving involvement in the child’s upbringing. Since the separation, the Respondent has spent time regularly with the child and it is common ground that he has a very good relationship with her.

10 The parties were living in Perth at the time of the separation. However, on

22 May 2006 the Applicant applied to the Court seeking orders which would permit her to relocate to the [Northern town] where her father lives and where she is closer to family support. Unfortunately, the Applicant was the victim of criminal assault in Perth and she is now unwilling to consider ever living in Perth again. Agreement was reached by the parties in July of 2006 and orders by consent were made on

10 July 2006 which provided for, amongst other things, the child to live with the Applicant in [the North of the state]. There were extensive orders made governing the amount of time the child would spend with the Respondent and dealing with a host of

other parenting issues. In passing, it is noted that although the consent orders were made following the commencement of the 1 July 2006 amendments, the consent orders are couched in pre-1 July 2006 language.

11 The consent orders provided for the child to spend each alternate weekend with the Respondent, however, given the considerable distance between the respective homes of the parties and given the lengthy driving time involved, the parties, quite sensibly, agreed to depart from the terms of the consent orders and to vary the frequency of contact to once each three weeks rather than once each alternate week.

12 The Court is told that the [Northern town] is some 50 kilometres from the [regional centre] and that the driving time involved for the child in each direction is some four and a-half to five hours. The parties have been in the habit of meeting at [a place] which is situated about half of the way between Perth and [the regional centre].

13 Working in reverse order, the actual history of recent contact between the child and the Respondent is as follows. The child spent time with the Respondent over:-

(a) some 14 days over the Christmas 2007/New Year 2008 period. (b) 8 days in September 2007.

(c) 3 days in August of 2007.

(d) some 8 days in June of 2007. (e) 18 days around Easter of 2007. (f) 8 days in January of 2007.

(g) otherwise, 2 days in each 3-week period falling in between the periods above.

14 The fact that the parties have themselves been able to reach agreement from time to time to depart from the strict terms of the 10 July 2006 orders demonstrates their joint commitment to the ongoing development of the relationship between the child and the Respondent. It reflects great credit upon them both. The Respondent readily and properly conceded that the Applicant is not the type of person who would fail to comply with Court orders. In fact, neither party really expressed much, if any, criticism of the character and/or care-giving capacity of the other.

15 Leading up to the trial of the proceedings, the Respondent had the benefit of legal representation. However, he was self-represented at the trial. The parties had filed affidavit material in respect of the interim hearing conducted on 2 August 2007 and both were permitted to rely upon such material at the trial. Both were given the right to file, by no later than 30 November 2007, any additional material upon which he/she respectively might wish to rely at the trial. However, neither party exercised that right.

16 So, in the result, the case proceeded to trial with the Applicant relying upon three affidavits only, being her affidavit, the affidavit of her partner, and the affidavit of her father all filed on 26 June 2007, and, the Respondent relying upon his single affidavit filed on 25 July 2007.

17 At the trial the Respondent sought to call his sister to give oral evidence.

However, as no notice of such intention had been given to the Applicant and as the proposed witness had not signed an affidavit filed prior to 30 November 2007, the Respondent’s request was refused.

18 The trial had been listed to run for two days but was actually completed by lunchtime on the first day, even after substantial time that morning was lost in order to permit the Respondent to read the Court file as his former solicitors had not delivered to him all of the necessary documents prior to the commencement of the trial.

19 The Respondent’s cross-examination of the Applicant and her two witnesses was extremely brief. Whilst this is not a criticism of the Respondent, one of the consequences of such limited cross-examination is that it is difficult for the Court to form much of a view, in terms of credibility and sincerity, of any of the three witnesses. The Court’s task in this respect was made more difficult by the fact that the Applicant’s partner, who resides in [the mid North west], participated in the hearing by telephone.

20 The cross-examination of the Respondent was also relatively short. Again, this is not a criticism. Fortunately, this is not a case where it will be necessary for the Court to make a large number of findings of disputed fact based on an assessment of the credibility of either party or of any witness. The material facts in this case are largely undisputed. What is in dispute is how the child’s best interests will be served into the future, and that will be a matter of judgment for the Court.

21 The Applicant’s case is that it would be in the best interests of the child for her to remain in the Applicant’s care with the Applicant being at liberty to relocate to [the mid North- west town] to start a new life with her partner, [Mr P].

22 The Respondent’s case is that the best interests of the child would be served by the Applicant continuing to care for the child from her present home in [the North], or alternatively, by the Court ordering that if the Applicant departs [the North] then the child live with him in Perth.

23 The parties will appreciate that this is not the first case of its kind to come before the Court. Given the vastness of the Australian continent (and this State in particular) and given the mobility of the Australian population and geographical spread of economic activity, requests are frequently made to the Court to allow a parent to move with a child (or children) to a distant place within Australia. In addition, there are several cases which come before the Court where a parent will seek the liberty of the Court to relocate with a child (or children) to an overseas destination.

24 This case raises most of the arguments usually raised in cases of the same nature.

For her part, the Applicant argues that as the child’s undisputed primary caregiver she has the right to make a new life for herself with her new partner, subject to her making

proper arrangements for the child to spend time regularly with the Respondent. She says also that from her own personal viewpoint she would have greater opportunity to find employment in [the mid North west town]. She is only 32 years of age and has the care of only the one child. She says to the Court that it is reasonable to allow her an opportunity to gain the financial and other benefits usually attaching to gainful employment. She has been substantially dependent upon Social Security payments and she says she would like to be financially independent.

25 Not surprisingly, the Respondent’s case is that the status quo should not be upset because it would be adverse to the child’s best interests for the child to see him for only one week in six as opposed to spending time with him on one occasion in each three weeks. In addition, the Respondent is concerned by the increased financial burden which would have to be carried by the parties, in terms of airfares, if relocation to [the mid North-west town] was permitted. Further, the Respondent is concerned that the additional distance to [the mid North-west town] from Perth rules out almost completely any realistic thought of him driving to see the child in the event of an emergency. Whilst acknowledging that there are regular flights to [the town] from Perth, the Respondent suggested that in the event of an emergency he would be held hostage to flight availability and to the attendant cost of purchasing a ticket at short notice.

26 The respective cases of the parties, of course, need to be analysed by reference to the particular evidence adduced in this case and by application of the relevant provisions of the Family Law Act 1975.

27 Dealing firstly with the Applicant’s evidence, she has said that she has commenced a relationship with [Mr P], a person she has known for some 10 years. As the Court understands it, the Applicant’s sister is the partner of the brother of [Mr P]. The Applicant is anxious to join [Mr P], who has permanent employment in [the town]. The Applicant also wishes to get back into the paid workforce. She says that [the Northern town where she lives] is situated in an area which has been drought ravaged for several years and that employment opportunities in that town are now extremely limited. On the other hand, she believes that there is likely to be much greater opportunity for employment in the [the North-west]. She says that she no longer wishes to be dependent upon Social Security payments and is hopeful of finding well-paid employment in [the mid North-west town]. As the child is not yet of school age, the Applicant, if she was to obtain employment, would need to make child care arrangements for her and in this respect her evidence is that she has made appropriate enquiries and can cover the need.

28 The Applicant has made visits to [the town] over the last year or so. She is aware of the family, social and sporting network of [Mr P]. She says that she is very keen to become a part of a much broader lifestyle. Whilst leaving [her current hometown] would diminish contact with family members in that area, the Applicant is confident that her father, in particular, would travel North to see her on a fairly regular basis. In addition, the Applicant has a sister living in [another town], situated about

80 kilometres from [the mid North-west town].

29 The Applicant is proposing that if she is permitted to relocate with the child then the child should spend one week in every six with the Respondent, that is, that the

child live with her for five weeks in each six week period. There was evidence given regarding the cost of airfares between Perth and [the mid North-west town]. The airline concerned offers different fare structures which depend upon how early a particular fare is booked and, of course, the time of the year. It is common ground that at the moment the child may not fly unattended by an adult but that as from the child’s fifth birthday, that is, 8 October 2009, the child will be able to fly without being accompanied.

30 As the hearing progressed, it seemed to be common ground that with prudent management a ticket could be purchased for an adult at a cost of $271.00 each way, with the price for the child being $233.00 each way.

31 At the present time the Respondent is paying to the Applicant child support at the rate of $128.95 per week, pursuant to an administrative assessment of child support. The Respondent’s income varies according to the amount of hours he works from week to week, the usual range being between $700.00 and $800.00 nett weekly. It would appear that both parties accept that the administratively assessed rate of child support is fair and reasonable.

32 Initially, the Applicant proposed that the cost of the air travel be shared equally, with her delivering the child to the Respondent at the beginning of each contact period (and presumably flying straight back to [the proposed home town]) and the Respondent returning the child to her, at his cost, at the conclusion of each contact period. However, towards the end of the hearing, the Applicant said that to ease the financial burden upon the Respondent, she would, if successful in her application, agree to accept a reduction in child support to $100.00 per week and also to pay for all of the child’s return fare on four occasions per year whilst meeting a half share of the child’s return fare on the other four or five occasions per year.

33 The Respondent’s cross-examination of the Applicant was, as mentioned above, quite limited. The only material point to arise concerns the Applicant’s employment plans whilst the child is at pre-kindergarten stage. It is clear to the Court that the Applicant’s priority is to attend to the child’s needs rather than to pursue short-term employment. The Court is satisfied that if permitted to relocate to [the mid North- west town], the Applicant would ensure that any employment she might undertake would not compromise her capacity to care for the child. In this regard, it is noteworthy that the Applicant’s partner is quite well paid and so it is unlikely that the Applicant would feel immediate pressure to seek out employment. Otherwise, the cross-examination of the Respondent did not lead to any material changes, if any, to the Applicant’s evidence-in-chief. The Court has little difficulty in accepting the whole of the contents of the Applicant’s affidavit filed 26 June 2007.

34 Turning now to the evidence of [Mr P], again, there was really no material challenge by the Respondent to any of the contents of [Mr P]’s affidavit filed

26 June 2007. In fact, [Mr P]’s evidence was probably strengthened slightly by the cross-examination. [Mr P] made it clear that he has no intention of supplanting the role of the Respondent in the child’s life. There is no reason to believe that [Mr P] would act in any way which was not supportive of the development of a proper relationship between the child and the Respondent. Again, the Court has little

difficulty in accepting the whole of the contents of [Mr P]’s affidavit filed

26 June 2007.

35 Finally for the Applicant, there was the evidence of her father, [Mr C].

Basically, this evidence was provided in order to support the Applicant’s case that employment opportunities are better in [the mid North-west] than [the Northern town]. It was regrettable that there were some negative comments made during cross- examination in respect of certain very limited aspects of the quality of the Respondent’s care of the child. These were not helpful to the Court and are matters best dealt with by sensitive communication between the parties outside of the Court. Otherwise, [Mr C] and his wife are supportive of the proposed move to [the mid North west], notwithstanding it will lead to a reduction in the time they will be able to spend with the child. [Mr C] also pointed out the negative effect on the child of frequent lengthy car travel between [the Northern town] and Perth, and his evidence on that subject is accepted by the Court.

36 Finally, there is the evidence of the Respondent. He maintained his case in line with the contents of his affidavit filed 25 July 2007. The very strong impression gained by the Court is that his preferred option is not to be the child’s primary caregiver but rather that the status quo be maintained. In an ideal world he would probably prefer that the child and both parties lived in Perth, however, he seems to accept that the Applicant had good reason for wanting to move with the child from Perth to [the Northern town]. He did not express any reservations regarding the giving of his consent to the making of the orders of 10 July 2006.

37 In cross-examination, the Respondent conceded, quite readily, that the Applicant has allowed him to spend more time with the child than provided for under the current orders. The Respondent has no criticism of the Applicant’s care-giving capacity and he conceded that the Applicant has in the past put the child’s needs ahead of her own. In fact, the only concern expressed by the Respondent is that the Applicant wishes to relocate further North. The Respondent conceded that the telephone contact he has exercised has been satisfactory. The Applicant’s counsel pointed out to him that at paragraph 3 of Part C of his Form 1A response he was proposing that if he cared for the child in Perth on a full-time basis, then the child should spend one week in six with the Applicant, which is precisely the reverse of the Applicant’s proposal which he finds unacceptable. It has to be said that the Respondent could not satisfactorily explain this apparent inconsistency in his case. Finally, the Respondent conceded that he himself has never visited [the mid North-west town] and that any information he has regarding the town has come from the Internet.

38 In answer to questions from the Bench, the Respondent told the Court that he spends something like $150 to $160 on petrol alone in order to travel to and from [the half way meting place]. Presumably, the cost to the Applicant per visit is something similar. The Respondent is, not unreasonably, concerned by the high cost of air travel associated with a relocation to [the mid North-west], particularly until the time of the child’s 5th birthday next year. However, the evidence regarding the cost of air travel must be considered against the evidence of the present cost of transport to facilitate the operation of the current orders. That is to say, depending on the precise number of road journeys which might be made in a given year, there is obviously a significant saving to the parties which needs to be offset against the estimated costs of future air

travel. Further, it does also need to be said that the cost of petrol is not the only expense associated with road travel. There is obviously motor vehicle wear and tear costs which would not be insignificant over an extended period.

39 Otherwise, subject to the admissions made by the Respondent in cross- examination, the Court does not have any difficulty in accepting the contents of his affidavit filed 25 July 2007. In the event that the Court was minded to order that the child live with him, then his proposed arrangements are as set out by him, very briefly, at paragraph 41 of his affidavit.

40 The Court now turns to consider the relevant provisions of the Family Law Act 1975 (“the Act”). The starting point is s 61DA of the Act. It provides that, generally, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have “equal shared parental responsibility” for the child. It is clear that the presumption relates only to the allocation of parental responsibility and not to the amount of time the child spends with each parent.

41 Section 61DA(2) of the Act sets out some circumstances in which the presumption does not apply. Those circumstances do not arise in this case.

42 Section 61DA(4) of the Act provides that the presumption referred to in paragraph 40 above may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. There was no such evidence in this case and so there should be an order for the parties to have equal shared parental responsibility for the child.

43 Having made that determination, the Court then needs to apply the provisions of s 65DAA of the Act. Firstly, the Court must consider whether the child spending equal time with each of the parties would be in her best interests and whether the child spending equal time with each of the parents is reasonably practicable. This is not a difficult exercise for the Court. Firstly, neither party actually proposed an equal time regime. Secondly, given the distances between Perth and [the Northern town], and also between Perth and [the mid North-west town], it would not be reasonably practicable to give effect to an equal time regime.

44 Then, the Court must move to s 65DAA(2) of the Act. It must consider whether the child spending substantial and significant time with each parent would be in her best interests. The term “substantial and significant time” is covered at s 65DAA(3) of the Act. The respective proposals of the parties would involve the child spending substantial and significant time with the other party.

45 However, overarching these provisions is s 65AA of the Act which requires that before making any particular parenting order, the Court must regard the best interests of the child as the paramount consideration. The Court in deciding what would be in the best interests of the child must have regard to the checklist of factors set out in s

60CC of the Act.

46 At the completion of the cases of the parties, the Court has been presented with three options:-

(a) to leave the provisions of the orders of 10 July 2006 unchanged, which would, in effect, then require the Applicant to remain resident in [the Northern town];

(b) to vary the provisions of the orders of 10 July 2006 so as to permit the Applicant to relocate to [the mid North-west town] and to create fresh orders to provide for the child to spend time with the Respondent; and

(c) to vary the provisions of the orders of 10 July 2006 so as to order that the child live with the Respondent in Perth and spend such time with the Applicant as the Court considers appropriate.

47 Each of these options requires the Court to consider them by reference to the relevant s 60CC factors. The Court will deal firstly with option (c) above, as it is the least difficult to eliminate.

48 As mentioned above, the impression gained by the Court is that the Respondent was not entirely committed to option (c). No doubt, if extraordinary circumstances should arise, such as the Applicant becoming seriously ill, then he would be more than willing and able to care for the child. However, the Court was not persuaded that the Respondent would truly prefer to give up his work to become a full-time caregiver. This would be a new role for him and something completely unfamiliar to the child.

49 Subparagraph (d) of s 60CC(3) of the Act requires the Court to take into account the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent. It seems to the Court that the Respondent has not addressed this issue in his evidence. This child has been primarily in the care of the Applicant throughout her very short life. These parties have been separated since 1 May 2006 following which time the Applicant has been, clearly, the primary attachment figure for the child. This is not to say that the child does not love the Respondent nor is it to say that the Respondent does not have a good relationship with her. However, generally, relationships are built on time spent together and the undeniable fact is that this child has spent the majority of her young life in the care of the Applicant. It seems to the Court that to remove suddenly this child from the care of the Applicant is likely to have an adverse impact on her welfare, and that the evidence falls well short of satisfying the Court that this impact would be more than offset by other positive consequences flowing from the proposed change.

50 The evidence satisfies the Court that the child has done well in the care of the Applicant and that she is likely to continue to do well in the Applicant’s care. There is nothing in any of the other s 60CC(3) factors which would tip the scales in favour of the Respondent. Indeed, not only does subparagraph (d) operate against option (c) referred to in paragraph 46 above, it needs to be said that on balance subparagraph (b) of s 60CC(3) of the Act also favours the Applicant. From the Respondent’s viewpoint, subparagraphs (c), (e), (f) and (i) operate, at best, in a neutral way. So, given that there are no s 60CC(3) factors operating in favour of the Respondent’s proposition that

the child live with him and that there are at least two subparagraphs (that is, (b) and (d)) which operate in the Applicant’s favour, it must follow that the Court should rule out option (c).

51 So, the remaining choice for the Court is between preserving the status quo or permitting the Applicant to relocate to [the mid North-west].

52 Like most disputes brought to the Court, there are advantages and disadvantages for the child attaching to different options put forward by parties.

53 The Court finds that there are at least the following advantages for the child in permitting the relocation to [the mid North-west]:-

(a) the child would live in a larger community with more modern infrastructure and services;

(b) the child would live in an extended family environment which would give rise to a greater variety of social activity, given [Mr P]’s social and sporting network;

(c) the Applicant herself is likely to be far happier living with [Mr P] in [the mid North-west] and this is likely to have a significant positive effect upon the child;

(d) whilst the distance from [the mid North-west town] to Perth is greater than the distance from [the Northern town] to Perth, the travelling time is actually much shorter and the travel itself is likely to be more comfortable for the child than sitting in a car for five to six hours in each direction;

(e) in due course, the Applicant is likely to find some paid employment in [that town] which would not compromise her care for the child and this is likely to lead to an uplift in the Applicant’s self-esteem and general sense of wellbeing which will in turn impact positively upon the child.

54 On the other hand, it seems to the Court that there are only two significant disadvantages in permitting the proposed relocation, namely:-

(a) the frequency of the contact between the child and the Respondent would be diminished and this is particularly disadvantageous given that the child is so young; and

(b) notwithstanding the savings in eliminating motor vehicle transport, there is still an increased financial burden for the parties under the Applicant’s proposal (this is an issue covered by subparagraph (e) of s 60CC(3) of the Act).

55 So, finally, it falls to the Court to weigh up the competing considerations and to choose between options (a) and (b) referred to in paragraph 46 above. The Court is swayed towards option (b) for the following reasons.

56 Firstly, the disadvantage referred to in paragraph 54(b) above can be addressed by the making of orders which would soften the financial impact upon the Respondent. Furthermore, it must not be forgotten that as from October 2009 the cost of air travel will be slashed when the need for the child to be accompanied by an adult will be removed. Thus, the sole reason to disallow the relocation to [the mid North- west town] is that the frequency of contact between the child and the Respondent would be diminished.

57 Currently, the basic arrangement between the parties provides for visits to be spaced about three weeks apart. The Applicant is proposing that the child spend, generally, one week in six with the Respondent until she commences school/kindergarten. That would mean that some five weeks would pass between the end of one visit and the commencement of the next. Given that this child is only three years old, the widening of the gap between visits is a negative. However, that said, there is a way of softening the impact upon the child and that is by way of increased attention to non-physical contact, that is to say, communication by way of telephone, cards, gifts and so on. The Court appreciates that communicating by telephone with a three year old is not without its difficulties. However, the real purpose of such regular telephone communication would be to ensure that the Respondent remains at the forefront of the child’s consciousness. As the child grows older, telephone communication will become more important and somewhat easier to facilitate. The evidence of the Applicant and her partner satisfies the Court that they would do all things reasonably necessary to make telephone and other non-physical contact work well for the child’s benefit.

58 The other point to make about frequency of contact is that the Court is not bound to limit the time to be spent by the Respondent with the child to the one week in six proposed by the Applicant. If the Applicant’s proposal was implemented then there would be nine visits in each 54-week period. The evidence demonstrates that the child has spent periods of up to 18 days straight in the care of the Respondent without problems. So it seems to the Court that at least a couple of the visits per year could be extended from one week to two weeks. This would result in the child spending more days each year with the Respondent and so would mitigate against the effects of decreasing the frequency of visits. The Court is mindful of the fact that the Respondent is probably limited to taking four weeks’ annual leave per year and so could not be available full time to care for the child whenever she might visit. However, it appears he has family support and that the parties have not had any difficulty in the recent past with the child spending reasonably significant periods in the care of the Respondent.

59 On balance, the Court considers that it would be reasonable to order, as a default position, eight visits per annum, six of those being for a period of one week and the other two being for a period of two weeks each. Those visits should be spread as evenly as possible through the year. Hopefully, the parties would be able to cooperate regarding the timing of the visits so as to stretch the Respondent’s leave credits around public holidays as they fall from time to time during the year. Given the evidence of the willingness of the parties to depart from Court orders in the best interests of the child, the Court has confidence that once the difficult decision regarding relocation is made, the parties will be able to work together constructively in order to reach agreement on an appropriate schedule of visits by the child to Perth.

60 The last issue for the Court to determine concerns the question of how the cost of air travel should be shared. Having worked through the figures provided by the parties and having weighed up their competing proposals, the Court has come to the view, firstly, that it should not interfere with the operation of the administrative assessment of child support. There will be some eight visits per year. Each of the parties should bear their own individual travel costs, with the Applicant to meet the whole of the travel costs for the child herself, until the child’s 5th birthday. Beyond the child’s 5th birthday, the parties should bear the child’s travel costs equally.

61 Subject to hearing from the parties regarding the form of the appropriate orders, the Court would propose to pronounce the following orders:-

1.The provisions of the orders made on 10 July 2006 be and are hereby discharged.

2. The parties have equal shared parental responsibility for the child

[A] (born [in] October 2004).

3. The said child live with the Applicant, [Ms M]

4.The said child spend time with the Respondent, [Mr M], during eight periods per annum, comprised of six periods of one week each and two periods of two weeks each, spaced as evenly as practicable throughout the year.

5.In order to give effect to the provisions of paragraph 4 of these orders, and until the said child’s 5th birthday:-

(a) the Applicant deliver the said child to the Respondent in Perth at the commencement of each of the above periods, and bear her own travel costs;

(b) the Respondent return the said child to the Applicant in [the mid North-west town] at the conclusion of each of the above periods, and bear his own travel costs;

(c) the Applicant bear the whole of the said child’s travel costs.

6.By way of further implementation of the provisions of paragraph 4 of these orders, following the said child’s 5th birthday, the parties each bear one-half of the said child’s travel costs.

7.Both parties have liberty to apply in respect of the further definition of paragraph 4 of these orders, if necessary, and in respect of any necessary variation thereof consequent upon the child reaching kindergarten/school age.

8. The said proceedings otherwise be and are hereby dismissed.

I certify that the preceding [61] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary