M and R

[2008] FCWA 1

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: M and R [2008] FCWA 1

CORAM: CRISFORD J

HEARD: 7 DECEMBER 2007

DELIVERED : 10 JANUARY 2008

FILE NO/S: PT 4793 of 2003

BETWEEN: M

Applicant/Father

AND

R
Respondent/Mother

Catchwords:

Children's issues - father living abroad - mother wanting to move intrastate with child - involvement with [particular] religion and culture

Legislation:

Family Law Act 1975, s 60B(1)(a), s 60CC
Family Law Amendment (Shared Parental Responsibility) Act 2006

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Independent Children's Lawyer : Mr S Jones

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Independent Children's Lawyer : Bannerman Solicitors

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

A v A: Relocation approach (2000) FLC 93-035

AMS v AIF; AIF v AMS (1999) FLC 92-852

1[The mother] wants to leave Perth and live in [the country]. She wants to move there so she can live with her fiancé [Mr S]. She wants to take [Leanne], the daughter of her marriage to [the father], with her. [Leanne], who is 8 years old, lives with [the mother]. [The father] has lived in [his homeland] since February 2007.

2[The father] opposes [Leanne] living in [the country town] because he says such a move will remove her from contact with the [religious and cultural] community and its support structure. He says a severing of the ties with this Perth community will mean a severing of ties with him.

Court proceedings

3Court proceedings first commenced in August 2003, a few months after the parties separated. They entered into a minute of consent orders on 19 September 2005.

4These orders, relevantly, provided for [Leanne] to live with the husband from 5.15pm, Wednesday until 1.00pm, Saturday of each week. She was also to reside with him on [religious and cultural] religious festivals.

5The parties undertook to enrol [Leanne] at [a particular] school or such other [religious and cultural] school as agreed by the parties for the duration of her school education. [Leanne] is presently enrolled at [a particular school] and has attended there since kindergarten.

6The parties undertook to raise [Leanne] in the [particular] religion and to support and encourage the beliefs, practices and religious training of the [particular] religion. They undertook to ensure her attendance at [religious and cultural] festivals and to enrol her in extracurricular [religious and cultural] activities as agreed by the parties.

7They also agreed until [Leanne] turned 16 years they would reside within 40 kilometres of each other and within 40 kilometres of [a particular] school or such other [religious and cultural] school she might attend.

8[The father] commenced proceedings on 21 November 2006 on the basis he was going to [the homeland] and wanted some of the existing orders suspended during that time.

9On 18 January 2007 some of the orders were suspended insofar as they related to [the father]. He left the country on 2 February 2007 to go to [the homeland] temporarily to tend to his ailing father, now aged 78 years. He has not returned since.

10On 12 March 2007 [the mother] sought the orders of 19 September 2005 be discharged so she could take [Leanne] to [the country own]. An independent children’s lawyer was appointed on 11 May 2007 and a single expert, clinical psychologist, [Mr C] was appointed on 6 July 2007.

The Law

11Since the consent orders of 19 September 2005 there has been a substantial change in both parties’ circumstances. [The mother] was already in a relationship with [Mr S] but this has strengthened. She is now engaged to him and wishes to reside with him in [the country own] where he lives and works. [The father] remains in [his homeland] and is unable to give an exact time when he might return to this country. It is appropriate the Court now reviews the previous Court orders in the light of the parties’ present living arrangements.

12These child related proceedings were conducted pursuant to Division 12A, Part VII of the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

13The new legislation is strongly in favour of both parents having substantial involvement in their children’s lives.

14Section 60B(1)(a) of the Act provides that one of the objects of the legislation is to ensure that the best interests of children are met by both of their parents having a meaningful involvement in their lives.

15In A v A: Relocation approach (2000) FLC 93-035, the Full Court of the Family Court undertook an analysis of the considerations that might properly effect the outcome of a case where relocation is proposed. Guidelines for decision making were set down. The Court followed binding principles of law that were established by a majority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852.

•In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.

•In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gunmow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).

16The Full Court went on to outline matters to be taken into account:

•The Court must identify and evaluate the competing proposals advanced by each party.

•The Court is not to dissect the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”. The issue of relocation is not to be separated from that of residence and the best interests of the child.

•In determining which proposal best promotes the best interest of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975.

•The Court must consider the various matters that are set out in s 68F(2).

•None of the parties bears an onus.

•It is important to consider the party’s right to freedom of movement.

17I am of the view that despite the recent amendments to the Family Law Act 1975 there is nothing to suggest that these binding principles no longer apply to relocation cases. These principles are still applied in the context of the objects and principles of the overall Act.

Orders sought at trial

18[The mother] wishes to take [Leanne] to [the country town] and enrol her in school there. [Leanne] would accompany her mother and her sister [Natalie]

19She proposes that [the father] communicate with [Leanne], as he has done since he went [overseas]. This involves telephone calls by either a landline or mobile telephone. It would also involve the use of Skype when such a connection is possible. [Leanne] has her own email address and correspondence can take place through that medium. There is no suggestion by [the mother] that any communication should be other than liberal.

20She wishes any time that [the father] is to spend with [Leanne] be determined once he returns to Australia and his position is known. She does not want [Leanne] to leave the country.

21[The father] wants to stop the move. On the morning of the trial he sought to file another application seeking further orders. They were, it appeared, very wide ranging and included matters not previously canvassed. They were unsupported by any evidence. The issues related to [the mother]’s mental state and the need for [Leanne] to be removed from her care. Given the lack of notice to the other parties, the breadth of the orders and the prejudice to [the mother] the Court refused to accept the application for filing.

22In his application filed 21 November 2006 [the father] had sought that if he was to be in [the homeland] permanently he wanted [Leanne] to visit him either in that country or in [Europe].

23[The father] did not personally attend the Court for the hearing. He had previously been represented but at trial was without legal assistance. He said he was unable to afford the cost of a video link and with the consent of all parties the matter was dealt with by telephone. Whilst this was not entirely satisfactory it did enable [the father] to put his position to the Court and to question witnesses and call evidence. On 31 August 2007, he had been sent a booklet to explain how to represent himself in the Family Court of Western Australia – Children’s Cases.

Documents referred to by the Court

24[The mother] had filed an affidavit in November 2007 for the purpose of the trial. [The father] had not filed an affidavit since May 2007. It was considered appropriate that any previous affidavit material filed by the parties during the current proceedings be considered by the Court in arriving at a decision. The Court was aware that some earlier affidavits had provided information that is relevant to the present determination.

25After the trial had concluded a number of documents were sent to the Court from [the homeland] by [the father]. These documents included the new application for final orders that [the father] had sought unsuccessfully to rely upon at the hearing. This application had never been filed and had not, at the trial, been received by the Court. It was accompanied by an unfiled application in a case and three affidavits. These were signed by [the father] but neither dated nor witnessed. There was other correspondence enclosing various documents with information [the father] considered relevant. The correspondence had not been copied to [the mother] or the Independent Children’s Lawyer. The Court declined to take these into account for the purpose of this judgment.

26Whilst the Court has considered all relevant information provided since 21 November 2006 no information received after the conclusion of trial has been considered.

Applying the facts to the law

27I will firstly turn to the primary considerations set out in s 60CC(2) of the Act in determining the fundamental question of what would be most likely to promote the best interests of [Leanne].

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

28[Leanne] currently has a meaningful relationship with her mother. She has lived primarily with her mother since the parties separated on 6 June 2003.

29The parties themselves have had a volatile relationship. Despite this while [the father] lived in Australia it appears that [Leanne] had a close and loving relationship with him. She enjoyed his company and was able to fully immerse herself in the [religious and cultural] community and its activities. Since [the father] has lived in [the homeland] assisting his father the evidence suggests that the contact between father and daughter has become progressively fractured. [The father] sees a diminishing in the quality of his relationship with [Leanne]. He blames [the mother] for this and says she uses [Leanne] as a “tool of war”.

30[Leanne] historically had a very meaningful relationship with her father. It is beneficial for her to continue this on the basis it is without stress or tension. It will not be beneficial for [Leanne] if the focus of any communication between her and her father is [the mother] and her perceived unjust behaviour.

31It is important that [the father] concentrate on expanding and developing their relationship rather than tearing it asunder.

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

32[The mother] has made allegations of physical and verbal abuse. In particular she refers to an incident that took place on 7 February 2005 [in the suburbs]. [The father] was charged with unlawfully assaulting [the mother] in circumstances of aggravation, contrary to provisions of the Criminal Code, WA.

33[The mother]’s position was that about 6.00pm on 7 February 2005 she received a phone call from [Leanne] who was spending time with [the father]. According to [the mother] [Leanne] was unhappy and requested to come home. [The mother] said she spoke to [the father]. [The mother] and [Mr S] duly went to collect [Leanne]. When the couple arrived at [the father]’s home [Leanne] was waiting in the driveway and when she saw them arrive she ran back into the house to collect her school bag.

34[The mother] went to assist [Leanne]. It became apparent that [the father] was not aware that the child was leaving at that time. He may not have been aware of their arrival.

35Although the detail is unclear it appears some form of struggle ensued, centred around [Leanne] leaving or staying. In the course of this struggle [the mother] says that [the father] put his hand around her neck and was pinching and pulling her skin. She managed to break free. Her neck was visibly bruised. [Leanne] was hitting him and scratching him and trying to wriggle out of his arms. She was screaming.

36[The father] said he was on crutches. He denied any assault and alleges a “setup” by [the mother]. He said she set upon him.

37There was diametrically opposed evidence. However, [the father] was convicted in the Magistrates Court at Perth on 7 November 2005.

38He appealed his conviction to the Supreme Court of Western Australia on 7 September 2006. The appeal was dismissed. A further appeal against sentence was successful. A spent conviction order was substituted for an earlier fine of $1,000.

39The most concerning feature of the entire incident and ensuing process was [Leanne]’s involvement in it. Initially there was the violent and aggressive behaviour in her presence.

40In order to overturn the conviction and gather evidence [the father] had [Dr S] a clinical psychologist, interview [Leanne] as to what she saw. This took place on 4 December 2006 and was recorded on video.

41[Dr S] was called to give evidence in the Family Court by [the father]. She had not filed an affidavit and [the father] notified the Court from [the homeland] of his intention to call her a week or so prior to the trial. The Court advised the Independent Children’s Lawyer. Despite the failure to comply with the Rules of the Court and neither [the mother] nor the Independent Children’s Lawyer having full detail of the evidence she was to give it was agreed in fairness to [the father] she be given the opportunity to give evidence.

42[Dr S] is a registered clinical psychologist in private practice. She has practised for 25 years. She also has a Masters degree in Education. She has a long term interest and association with [religious and cultural] children.

43[Dr S] interviewed [Leanne] in total on about four occasions. She agreed she was involved to gather evidence. [The father] sought to adduce this further evidence in the form of [Leanne]’s videotaped interview with [Dr S] in his appeal to the Supreme Court. In addition to this he had issued a witness summons for [Leanne] to appear in the Supreme Court and give oral evidence. He was not given leave to adduce that further evidence.

44[Leanne]’s oral evidence was thus not required. However, it is apparent that she said that she had not seen a fight or anyone hurt anyone else. Without more, this is equivocal. [The mother] alleges [the father] bribed [Leanne] with presents to say she had not seen anything happen on the day of the assault.

45The incident and the subsequent involvement of [Leanne] does not reflect well on [the father]. He failed to appreciate the stress I accept she experienced at the prospect of attending Court.

46I must now turn to the relevant additional considerations set out in s 60CC(3) of the Act. These are not secondary matters but are to be looked at in conjunction with the earlier considerations.

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

47[Leanne] expressed both her enthusiasm about going to [the country town] and her wish to remain involved in [religious and cultural] culture and religion to the Independent Children’s Lawyer. [The mother] deposed to [Leanne] being happy and keen to move to [the country town].

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

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

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

48[The mother] has a close and loving relationship with [Leanne].

49The present relationship between [the father] and [Leanne] is unsatisfactory. There is no doubt that [the father] loves his child and wants the best for her. However, his desire for her to remain involved in the [a particular] school and his accusations about her mother appear to be creating a rift in their relationship. [Leanne] is realising that some of the accusations about [the mother] are untrue and this is no longer making it easy for her to accept her father’s view. For example, [the mother] has taken all possible steps to install Skype but there has been difficulties with the connection not due to anything of [the mother]’s making. [The father] does not accept she has made efforts and makes this known to [Leanne]. [Leanne], however, had seen her mother’s attempts for herself and has not accepted her father’s criticisms. This has caused difficulties.

50[Leanne] has a half sister [Natalie]. [Natalie] is 13 years of age. Despite the difference in their ages there is nothing to suggest they have other than a very close and loving relationship.

51[Mr S] impressed the Court. He was a credible witness. The Magistrate who dealt with the assault charge assessed [Mr S]’s credibility in the following way:

“[Mr S] is a situation of what you see is what you get, a [working man] who told me in the bluntest of terms what his reaction was when he saw unfolding in front of him an assault committed by the accused on his former wife”.

52[Mr S] presented as a sensitive and insightful man. He has a very good relationship with [Leanne] and does a number of activities with her when she spends time in [the country town] on weekends and school holidays. However, it was made clear that he never wanted or intended to take the place of her father. He acknowledged the need for [Leanne] to know and love her biological father. He said to the Court that he would defer to [Leanne]’s father in terms of how she was to behave and what she should do with her life.

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

53[The mother] presented as willing and able to facilitate and encourage a close and continuing relationship between [the father] and [Leanne]. She has taken steps to provide [Leanne] with a mobile phone to accept calls from her father at any time. She has provided a landline number and would continue to do so if she went to [the country town]. She had attempted to install Skype but there had been technological difficulties that were presently unable to be overcome even with the assistance of [the father]. However, there was nothing to suggest that she would not continue to try and have that facility installed to enable face to face contact between [Leanne] and her father.

54I accept that she has continued to facilitate a relationship between [Leanne] and her father despite the often unfairly critical attitude of [the father]. However, it is not made easy for her.

55[The father] is [of a particular faith]. [The mother] converted to [the faith] as a result of her relationship with her husband. She no longer practises the faith. However, she had spent two years studying [the religion] and attending the [church]. She is aware of the festivals and is able to talk to [Leanne] about her practices and beliefs.

56Importantly she is willing to maintain contact with the [religious and cultural] community and ensure [Leanne]’s interest in [the religion] she is able to relocate to [the country town]. She had made enquiries of a [Minister] in a Perth [church] as to the provision to her of age appropriate information about [religious and cultural] activities.

57She had made enquiries about having a group of young [religious and cultural] volunteers who visit country towns attend [the country town] to see [Leanne].

58[Dr S] had some suggestions that, should [the mother] be able to move to [the country town], would go someway to assisting [Leanne] to remain involved in the [religious and cultural] community. She made it quite clear she is not in favour of such a move. She said that it is important for [the mother] to be aware of the important [religious and cultural] days and also make [Leanne] aware. There should be some differentiation made of those days. She thought provision to [Leanne] of a calendar identifying [church] services so that arrangements could be made for her to attend would be useful. This would allow [Leanne] to acknowledge festivals as they occur.

59She also suggested visiting her father on holidays in [the homeland] and attending school camps organised by the [a particular] school and which are open to non-attendees. She also recommended keeping contact with [the church] and receiving circulars and letters. She also saw great benefit in [the mother] maintaining contact with other [religious and cultural] families and groups.

60[The mother] had no difficulty with most of [Dr S]’s suggestions except she did not believe it desirable to force [Leanne] to attend any [particular] camps if [Leanne] was not prepared to go voluntarily. She was also not willing at this stage to allow [Leanne] to leave the country to visit her father. [The father] had only sought that if he was to reside permanently in [the homeland].

61Overall [the mother] is aware of what is required to assist [Leanne]. Her best friend is of the [religious and cultural] faith and this friend’s son is a school friend of [Leanne]. There is every intention that there will be visits with this family both in Perth and in [the country town].

62Unfortunately [the father] was completely disparaging about [the mother]. He blamed her for any fracture in his relationship with [Leanne]. He accused her of actively thwarting his attempts to maintain contact with [Leanne]. He was of the view that if she went to [the country town] the move would essentially terminate his relationship with her. The Court does not accept this to be the case.

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

(i) either of his or her parents; or

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

63If [Leanne] is able to relocate with [the mother] and [Natalie] to [the country town] it will mean a change in her living environment. [The father] conceded that [the mother] was completely able to provide for [Leanne] in a practical sense. The Court has no concerns in this regard.

64The issue of most concern is the effect a removal from the [a particular] school and [religious and cultural] community will have on [Leanne]. [The mother] conceded quite readily that [a particular] was a very good school and catered for [religious and cultural] children. She accepted anything else would be second best.

65There is no [church] in [the country town] and no [religious and cultural] school. There is no [religious and cultural] community of note.

66[Mr C] undertook an initial interview with [the mother] on 26 July 2007. He was unable to interview [the father] as he was in [the homeland]. However, [the father] sent some emails, and the interview of [Leanne] with [Dr S] which had been videotaped. He had various other documents that [the father] considered he needed to see. [Mr C] did not interview [Leanne]. In his correspondence to the Independent Children’s Lawyer of 27 August 2007 he had this to say:

“… now not wishing to give into semantics at this time this matter does appear to turn upon the question “what it means to be [religious and cultural]”. One thing we can be sure of is that what it means to be [religious and cultural] is not necessarily attending a [religious and cultural] school. There are many people throughout the world who would describe themselves as [religious and cultural] who do not necessarily attend or have attended during their educative period, a [religious and cultural] School. This I believe appears to be the major sticking point in regard to this matter.

Therefore it would appear to me that [Leanne] has already received a very strong grounding on the [religious and cultural] ethos, something she will carry with her for the rest of her life and will enable her to make a decision about whether she practices [the faith] or just considers herself to be [of that religious and cultural group] throughout the rest of her life.”

67[Dr S] said the parents here had made a decision to bring [Leanne] up practising [the faith]. She saw it as being unacceptable that either of them would do a deliberate act to deprive [Leanne] of this option. She did not accept [Mr C]’s views were appropriate in this particular situation.

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

68Whether [Leanne] lives in Perth or [the country town] there will be the same difficulties in communicating with her father as long as he lives in [the homeland].

69[The father] said that whilst [Leanne] lived in Perth he was able to utilise members of the [religious and cultural] community to facilitate her receiving presents. He was adamant that [the mother] was unwilling to pass onto [Leanne] presents he would send. He had used members of the community to pass [Leanne] gifts he had sent from [the homeland]. I am not satisfied that [the mother] has failed to facilitate [Leanne] receiving gifts or other communications from her father. If [Leanne] had not received communication or gifts then I accept there is some other reasonable explanation. This does not play a part in my decision.

70On 26 April 2007 [the father] deposed that he would be returning to Perth before the end of the year 2007. During the course of the trial he indicated that his father had been involved in a car accident and that he would be in [the homeland] for another six to ten months. The Court was left without any real knowledge of whether [the father] would ever return to Australia and if so whether his return would be to Perth or Sydney. Even if he returned it may not be on a permanent basis.

(f)the capacity of:

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

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

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

71[The mother] has the capacity to provide for [Leanne]’s needs in every sense.

72In [the country town] [the mother] has been able to secure a position as an [assistant] with [a well known business]. This is permanent employment and she will receive a higher hourly rate than she does in her part time employment in Perth. She is able to support both her children from her income. [Mr S] assists if necessary. [The father] does not pay child support although he pays the considerably reduced [a particular] school fees. He is paying the cost of the Skype installation.

73[The father] said he was surviving in [the homeland] by utilising his father’s government pension.

74I accept that [the mother] due to her own training over a two year period and subsequent conversion to [the faith] can discuss, assist and point [Leanne] in the right direction insofar [religious and cultural] religion and culture is concerned.

75Presently [the father] attitude towards [the mother] is causing some difficulty in his relationship with [Leanne]. I did not form the view he had much insight into how his actions were driving them apart.

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

76Matters relevant to this consideration have been discussed elsewhere. I am satisfied that [Leanne] wants to remain involved in the [religious and cultural] faith and this is recognised and accepted by [the mother].

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

77[The mother] has shown a responsible attitude to [Leanne]. She has carried out her parenting duties to a high standard. When [the father] left the country she took over full responsibility for [Leanne].

78[The father] clearly loves [Leanne]. He does have a sense of family. He was disenchanted with his role in relation to [Leanne] after separation. His father became ill and [the father] had the difficult decision of whether to remain in Perth continuing what he saw as an unsatisfactory role as father to [Leanne] or to leave the country and assist his own father in his old age. He chose the latter. There is no doubt that it would have been a hard decision for him. However, he has been able to make his choice without really having to explain or justify his actions. His departure left [the mother] with sole responsibility for [Leanne] and considerable constraint on how she lives her life.

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

79This matter has been canvassed previously.

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

80Given it is possible [the father] may return to Perth or Australia at some undetermined time it is not possible to make orders that will cover that eventuality. His circumstances should he return are unknown. He was asked whether he would move to [the country town]. It is clearly not a suggestion with much appeal. His witness, [Dr S], visibly blanched at the prospect of anyone having to live in [the country town].

Section 60CC(4) factors

81This provision of the Act is lengthy. In essence it requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent. Both parents have fulfilled their responsibilities as a parent, in my view, by and large until the time [the father] left Australia to go to [the homeland]. Since that time he has provided little support to [Leanne] or [the mother]. He may well have fulfilled his responsibilities as a son but has been less that assiduous as a father.

82Since February 2007 he has taken little part in [Leanne]’s life. He has not spent any time with her and his communication with her has been punctuated with his intense dislike of [the mother].

83He has failed to provide for her in a meaningful financial way. He has not had employment in [the homeland]. [Dr S] said one of the reasons he was going to [the homeland] was to obtain employment. [The mother] has been totally responsible in every other sense. [Mr S] has assisted her.

The best interests of [Leanne] in light of the proposals of the parties

84The parties previously agreed they should share the long term parental responsibility for [Leanne]. There is no suggestion that this should change. [The father] has not sought any orders that [Leanne] live with him in [the homeland], in Perth or in any other environment. He has not put himself forward as a caregiver. He concedes that [the mother] is capable of providing for the child in a practical sense. His only concern is her removal from the [religious and cultural] community in Perth.

85In fact his only position in terms of where [Leanne] should live seemed to be in some form of care arrangement. His evidence in that regard was not entirely consistent.

86In considering this matter, equal shared care or [the father] spending substantial and significant time with [Leanne] is somewhat academic not only because it is not sought but it is totally impractical and unviable while [the father] lives abroad.

87Likewise no one considered the scenario of the Court not allowing [Leanne] to live in [the country town] but [the mother] deciding to move in any event.

88The real issue in this case is not with whom [Leanne] lives but where she lives. To restrict [the mother]’s desire to live in [the country town], or indeed, anywhere but Perth is simply on the basis that only in Perth can [Leanne] be wholly immersed in a [religious and cultural] way of life. This for [Leanne] and her parents is an important issue. However, there are other considerations. [The father] has been able to leave Perth, live in [the homeland] and leave [Leanne]’s upbringing to her mother and the [religious and cultural] community. If he had remained here the arrangements set out in the consent orders of 19 September 2005 may well not have been changed. He is not here. He is trying to control from afar. He is trying to restrict [the mother] whilst he has been able to leave with impunity on the basis that the [religious and cultural] community will ensure she is taken care of.

89I intend to allow the orders to be discharged so that [the mother] can go to live in [the country town] with [Leanne]. It is not the best solution if one simply looks at involvement in the [religious and cultural] community but it is in [Leanne]’s best interests overall. I do not intend to specify steps [the mother] is to take to ensure [Leanne]’s ongoing involvement in the [religious and cultural] faith but the orders I do make are intended to encompass both [Dr S]’s and her own proposals as far as reasonably practical.

90[Leanne] will be in a happy family unit with her mother, sister and [Mr S]. She will have communication with her father as she does now. I am satisfied [the mother] will do all she can to maintain [Leanne]’s involvement in the [religious and cultural faith].

Orders

91The orders I intend to make are as follows:

1.All previous orders be discharged.

2.The parties have equal shared parental responsibility for the child, [Leanne] born [in] June 1999.

3.The child live with her mother.

4.The mother do all things reasonably necessary to raise the child in the [religious and cultural beliefs and to support and encourage the beliefs, practices and training of the [religious and cultural faith] .

5.The mother do all things reasonably necessary to ensure the child’s attendance at [religious and cultural] festivals and to enrol her in extra-curricular [religious and cultural] activities.

6.The mother keep the father fully informed in relation to the child’s education and to provide him with copies of all school reports, school newsletters, merit awards and other notices.

7.The mother keep the father fully informed in relation to the child’s health and provide him with copies of medical reports and details of all medical and other professional health appointments and authorise the release of information from the professionals to him.

8.The mother be at liberty to take the child out of the State of Western Australia on a temporary basis for the purpose of a holiday during the period the father resides in [the homeland]

9.The parties are to provide each other with notice, in writing, of any proposed change of address and/or telephone number not less than 14 days prior to the change of address and/or telephone number.

10.The child communicate with her father by email, Skype and telephone calls on a liberal basis.

11.The father is to bear the cost of the Skype installation and ongoing connection fees.

12.There be liberty to apply in relation to the further definition of the time to be spent and ongoing communcation between [Leanne] and her father upon his return to Australia or upon his residing permantely in [the homeland] and upon 21 days written notice being given to the other party.

I certify that the preceding [91] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate