MONTGOMERY and MONTGOMERY
[2017] FCWA 7
•17 JANUARY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: BUNBURY
PERTH
CITATION: MONTGOMERY and MONTGOMERY [2017] FCWA 7
CORAM: THACKRAY CJ
HEARD: 16 & 17 FEBRUARY 2016 - BUNBURY
9 & 10 JANUARY 2017 - PERTH
13 JANUARY 2017 - ORDERS MADE
DELIVERED : 17 JANUARY 2017
PUBLISHED : 17 JANUARY 2017
FILE NO/S: PTW 1231 of 2013
BETWEEN: MS MONTGOMERY
Applicant
AND
MR MONTGOMERY
Respondent
Catchwords:
CHILDREN - Relocation - The child has lived in the [Country A] with the mother for the past six months pursuant to interim orders - The father lives in Western Australia and says he will not move to the [Country A] to be near the child - Whether the mother should be permitted to relocate with the child to the [Country A] on a final basis - The child wishes to remain in [Country A] - Weight given to the child's views - Order for the child to continue living with the mother in [Country A] - Order for the mother to have sole parental responsibility in relation to the child's health and education
Legislation:
Family Law Act 1975 (Cth), s 60CC
Category: Reportable
Representation:
Counsel:
Applicant: Mr Childs
Respondent: Self Represented Litigant
Solicitors:
Applicant: Alison McInnes Lawyer
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
CDJ v VAJ (1998) 197 CLR 172
Sawant & Karanth [2014] FamCAFC 235
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I must determine a dispute between the mother and the father concerning living arrangements for their only child, [C], who will soon turn 12. The major issue is whether the mother should be permitted to relocate with C to reside in [Country A], where the parties lived until 2004. C had a six-month trial period in Country A last year, and has now expressed a strong desire to live there.
Background
2The mother was born in Country A in 1963, and the father was born there the following year. The mother has recently qualified as a [nurse practitioner], having previously worked in many different capacities, including as a [teacher]. The father is [an instructor], having previously worked as a [mechanic], using his [other] qualification.
3The parties married in 2001. The mother came from [Suburb D of Country A], but was living in [Suburb O of Country A] when she met the father. The father and his family come from Suburb O. The mother had moved there after she was made redundant and a relationship ended. Until then, she had spent her life in Suburb D (apart from when she was studying and working for a few years overseas).
4In 2004, the parties migrated to Australia, having greatly enjoyed their honeymoon here. They are not “city people” and decided to live in Suburb A, about 30 km from Suburb B, where they thought they might obtain work. The father obtained full-time work at [Company A] within a few weeks of C’s birth. C started out life with some serious health problems, and the mother stayed home full time to look after him.
5Difficulties developed in the relationship. The mother found the father to be very controlling, and she eventually said she wanted to separate. They parted in April 2010, when C was just five years old. The mother and C remained in the family home, while the father moved into their investment property nearby. The mother received the family home free of encumbrance and a cash settlement, but needed a regular income to manage after the separation. She commenced working part time, and then ceased this employment in June 2013 to start studying [as a nurse practitioner] full time in Suburb B.
6C commenced school in Suburb A. By agreement of his parents, he spent alternate weekends with his father and also saw him regularly midweek, sometimes in the former family home. Although there were some ups and downs, and the arrangements changed from time to time, the parents generally demonstrated a commitment to making the arrangement work well in C’s interests.
7Following the separation, the father had a recurring back injury and was off work for about two years, during which time he took on somewhat greater responsibility for assisting in the care of C, although the mother continued to have C for the majority of the nights. In 2013, the father obtained casual employment as an instructor in Suburb B.
8The mother claims, and I am inclined to accept, that the father was somewhat inconsistent in his assistance with the care of C, and sometimes seemed to proceed on the basis that it was the mother who had primary responsibility for sorting out arrangements for the boy. This is not to suggest that I accept all of the mother’s criticisms of the father, as some of the examples she gave of his inconsistency were shown to be without foundation. I also accept that the father often showed great willingness to be flexible and preparedness to assist the mother when her other commitments necessitated his help.
9C has [a developmental condition], which I will discuss later. In 2013, his doctor referred him to [Mrs A], who is a psychologist. She saw C many times, and they developed a close therapeutic relationship. C enjoyed his talks with Mrs A and the parents agreed he had built a good rapport with her.
10The mother had commenced speaking of returning to Country A from early in the separation, and the father complained as long ago as 2012 that she was telling C they were going to move there. The parties attended mediation in early 2015, after the mother began talking more seriously about wanting to return home. It was only with great reluctance that the mother agreed at mediation to an increase in the father’s time so that C would spend equal time with each parent on a trial basis. The mother said that she was concerned that C would not cope emotionally, and I accept that she wanted to implement the arrangement more slowly than the father was prepared to agree. C did not cope well with the arrangement initially and became more stressed and anxious, which would also have been associated with him being very unhappy at school.
11Ultimately things settled down into a regular week-about arrangement. There were occasional hiccups, for example in April 2015 when there appears to have been an altercation between the father and C when a disciplinary incident got out of hand. On some occasions, C did not want to go with his father, or wanted to come home early, and he sometimes expressed a desire to spend more time with his mother. Overall, however, the arrangements worked well and C greatly enjoyed his time with his father.
12The matter proceeded to trial in Bunbury in February 2016. The mother was represented by experienced counsel. The father was self-represented, but conducted his case with great ability. He was thoroughly prepared (even to the extent of sitting through an entire trial I conducted in the circuit before the circuit in which his case was heard). His cross-examination was polite and skilfully targeted at weaknesses in the mother’s evidence.
13After the evidence was almost completed, the parties reached agreement that the mother could take C to Country A from 15 June 2016 until 30 December 2016, and enrol him in school there. The agreement was reached in circumstances where C had expressed great ambivalence about the possible move to Country A, but had mentioned the possibility of having a taste of what life would be like for him in that country. I made orders giving effect to the agreement on 17 February 2016. The trial was adjourned to January 2017 so that a final decision could be made before the start of the 2017 academic year in Australia.
14As planned, during the six-month trial period in Country A, the mother and C lived with the maternal grandparents in their home in Suburb D. C spent a few weeks in primary school at the end of the Country A academic year, before enrolling in a local college at the start of his secondary education in September 2016. By the time C returned to [Suburb A] at the end of 2016, he had spent one full term in secondary school. He is currently missing out on school time in Country A, as the new term started [in early January] 2017.
15The mother claims that C made friends at primary school in Country A, and some of these children went on to high school with him. She says C is thoroughly enjoying school, and has settled in better than she could ever have hoped. She says he happily goes off to school every morning, which she said was “a huge contrast from when he was at school in [Suburb A]”. C has told her that he has more friends than he ever had at [Suburb A], and that he is “very popular” at his new school. C’s first school report issued in October 2016 was as the mother said, “very positive”, given C’s past difficulties.
16The father travelled to Country A for about a month almost immediately after C took up residence in Suburb D. The father only told the mother of his intention as she was leaving Australia in June 2016. The mother facilitated C seeing the father and his family in Suburb O on four occasions while the father was in Country A, and later facilitated another visit to the father’s family. Since returning to Australia, the father has had regular contact with C by Skype. This was initially on three occasions a week, but is now usually on two occasions each weekend, for about an hour at a time.
17While in Country A in 2016, the mother completed her nurse practitioner degree, and undertook her 14-week placement with the local [hospital]. She was able to do so because of the availability of her family to supervise C, including during the school holidays.
18C’s therapy with Mrs A continued after the trial was adjourned, with them having seven more sessions together prior to C’s departure in June 2016. The therapy thereafter continued by Skype, with four sessions being conducted from August to November 2016. Mrs A spoke to C again on 26 November 2016, for the purpose of preparing her updated report for the court. After it was published, the parties attended a Child Dispute Conference, but this was unsuccessful in resolving matters.
19The trial resumed on 10 January 2017 and concluded on 11 January 2017, when I reserved my decision. I indicated that I hoped to give my reasons before the end of the week, but this proved impossible. I therefore made orders on 13 January, accompanied by very short reasons, on the basis that these more detailed reasons would be delivered in the following week. The orders I made are set out at the end of this judgment.
Credibility and impressions of the parents and the witnesses
20I was impressed by both of C’s parents. They each appeared to have C’s interest at heart, and are united in their desire to do the best for him. Both parents have great intellectual ability and are exceptionally articulate. The father appeared to be a much more gregarious than the mother, who gave the impression of being fairly reserved, although she had a friendship group in Suburb A and has kept friends in Country A.
21Some parts of the mother’s affidavit evidence did not stand up to scrutiny under cross-examination. In particular, some of her criticisms of the father’s conduct appeared to me to have been overstated. She was, however, very ready to make concessions that advanced the father’s case, and I concluded that she is overall an honest and truthful person. More significantly, her oral evidence demonstrated (in a way not possible in affidavit evidence) her absolute commitment to C’s welfare and her very sound understanding of C and his special needs. Every issue was considered from his viewpoint, and her responses indicated deep and logical thought on what would be best for him.
22There were also aspects of the father’s affidavit evidence which did not withstand scrutiny. As is common in ‘relocation cases’, I considered the father was much inclined to exaggerate some of the disadvantages of living in Country A and the advantages of living in Australia. Nevertheless, he too appeared to be a generally honest and truthful person. I did not find his understanding of C and his needs to be as intuitive and advanced as the mother’s. While clearly a very intelligent man, who was prepared to make concessions when challenged by me, I found his thinking to be sometimes somewhat one-dimensional, and I felt that his responses were not always as child focused and thoughtful as those of the mother.
23Further, while the parents were exceptionally polite to each other in court (and are probably polite outside court as well), I gained the impression that the father is much attached to his own opinions, and somewhat dismissive of the mother and her opinions. I note also the evidence of C’s paediatrician who, along with her receptionist, was taken aback by the vigour with which the father spoke to her when he disagreed with her recommendation.
24The evidence also suggested that the father had, in the past, been inclined to blame the mother for C’s developmental problems. He also criticised her for not having paid sufficient attention to C’s maths and writing, even though he did not take issue with her evidence about the extent to which she had assisted him with his reading and knowledge of history. He also, for example, criticised the mother for not continuing C’s riding which she had arranged, but admitted that he himself had not taken C riding.
25I was impressed by the maternal grandparents, who gave evidence by video both at the hearing in 2016 and on the resumption in 2017. Although they were cross-examined for only a short time (the cross-examination of the grandmother in particular was extremely brief), they appeared kindly, decent and caring, and I had no hesitation in accepting their evidence, notwithstanding the suggestion by the father in his closing address that they and the mother had “colluded”. The grandparents are not poorly disposed to the father. The grandfather, for example, accepted that he had always got along well with the father and hoped that that would continue, stating that any differences between the mother and father regarding C were their concern, not his.
26I also had the benefit of two affidavits the father filed from people in Suburb A, who were not required for cross-examination (albeit at a point in the second part of the trial when counsel was endeavouring to assist the court to complete the matter in one day). I have no reason to doubt the veracity of their evidence and the sincerity of their opinions, although I have other evidence that needs to be considered with theirs.
27The paediatrician, [Dr L], and the psychologist, Mrs A, were both impressive and independent witnesses. Their carefully considered evidence was most helpful.
The orders sought by the mother
28The mother’s Amended Minute of Proposed Orders filed in January 2017 sought permission to relocate to Country A on the basis that C would spend up to six weeks with the father during C’s long school vacation each year. The Minute proposed that, in 2017, this time would be spent in Australia, with the mother to pay the costs associated with her and C travelling back. In his closing address, counsel for the mother said that the mother, in future years, would also be prepared to meet the costs for one return trip each year, which was consistent with evidence she had given earlier.
29The mother proposed that if she were allowed to relocate, she would have sole parental responsibility on the basis that she would consult with the father before making decisions. If she was not allowed to relocate, the mother proposed that she have parental responsibility for matters concerning health and education, but otherwise that there should be “joint parental responsibility”. In the event that she was not permitted to relocate, the mother’s Amended Minute proposed a week-about care arrangement.
30At the commencement of the trial in 2016, the mother was seeking that if she was not permitted to relocate to Country A, she be allowed to move to Suburb B on the basis that C would attend one of the government schools which cater for children to Year 12. Such an arrangement would have been feasible even with a week-about arrangement, as there is a school bus from Suburb A to Suburb B. It is also the type of arrangement which I find the parties had agreed would be appropriate during the time they were together, albeit they hoped to be able to afford for C to attend a private school. At the resumption of the trial in 2017, the mother advised that she now considered it would be too disruptive for C to move to Suburb B and a new school after all he has experienced in the last year. Her proposal therefore was that she would take up residence again in Suburb A, and that C would return to the local district high school, which caters for children to Year 10.
The orders sought by the father
31The father’s Amended Response filed in December 2016 proposed that the father have parental responsibility for health and education, on the basis that he would consult with the mother before making decisions. Otherwise, the father proposed that C live with him for 76% of the time and with the mother the rest of the time. He also proposed that the mother be able to take C to Country A for up to five weeks each year, and that she be at liberty to travel there for up to three weeks each year, during which time C would remain in his care. By this means, he said, the mother could see her family twice a year.
32These proposals differ from those advanced when the trial commenced, as the father was then advocating a week-about arrangement. However, the father explained at the recent hearing that he had no real opposition to week-about, and said that he was simply putting forward an alternative which would free up the mother’s time to allow her to follow her career ambitions. The father said that the proposed 76:24 division was based on a calculation made by the Child Support Agency some years ago, when he was working full time and the mother was caring for C. He also made the valid point that his 76:24 proposal was made prior to him learning that the mother had abandoned her plan to move to Suburb B.
33The father was adamant that he would not return to live in Country A to be near C if the relocation was permitted. His position was in stark contrast with that of the mother, who said she would not move without C, and that if her son was “on the other side of the planet, [she] would move heaven and earth to be with him”.
The parents’ proposals for caring for C
34The father’s proposals are fairly straightforward. He intends to continue living in his home in Suburb A, and will continue to work two days a week as an instructor. To the extent that he would require assistance in looking after C, I anticipate he would continue to rely upon the mother (when available) and/or his friends in Suburb A.
35The mother’s plan is to live within a five-mile radius of Suburb C, which is the [suburb] in which her mother and stepfather live in. Although there was talk last year of them all living in the same residence, this was only one of the options they were considering. The mother now plans to rent a cottage of her own, while it is anticipated that her mother and stepfather will sell their large home and move into a bungalow which would likely be on the edge of Suburb C (at present they live about four miles out).
36The mother proposes that C will return to [Suburb C College], where a place has been kept for him. It is a large school with about 1,400 students. C’s class is divided into about six streams for each subject, with students allocated to classes according to ability. The school has a program for children with special needs, although C has not been assessed as requiring access to the program. Last year, C caught a school bus each day, and the mother intends this will continue. C’s grandparents will be living close enough for C to be able to go to their place after school and during holidays as required.
37The mother hopes to obtain employment as a nurse practitioner, but while waiting for a suitable placement, she will seek employment in an allied field in Suburb D. Although she was not specific in her evidence, I anticipate that she will work on a full-time basis.
38The mother sold her home in Suburb A after the trial was adjourned. If she is not permitted to relocate, she will need to find a new home in Suburb A. My expectation is that if required to live in Australia, the mother would endeavour to obtain work as a nurse practitioner in Suburb B. She would then be dependent upon either the father or friends to make care arrangements for C after school and during school holidays when she is working.
The parties’ extended families
39Neither party has any relatives in Western Australia. Almost all of their family live in Country A. Proximity to family is an important element of the mother’s case.
The mother’s family
40C’s maternal grandmother is 78 and his step-grandfather is 81 years of age.1 The father placed great emphasis on their advanced years, suggesting that statistically the grandfather may only have a year or so left to live, especially as he has had cancer. Although the grandparents are elderly, they presented as delightful people, well in command of their faculties. They walk their dogs regularly and the grandfather only gave up part-time work recently. He gardens every day, is very active, and his cancer has been in remission for some time.
41The mother has two sisters, one living in the north of Country A and one in Country B. Their children are, of course, C’s cousins. The cousins in Country A are adults, but those in Country B are younger, one boy being about three years older than C.
42The mother’s stepfather has four children and nine grandchildren. It is not suggested that they are likely to be a significant part in C’s life.
The father’s family
43The father has had no contact with his father since 2004. The rest of his family cut off all contact with C’s grandfather in 1988, after he had “caused a lot of friction in the family”. The father said he did not know, or care, whether his father was dead or alive.
44The father’s immediate family lives in Suburb O. His mother’s home is about a 3½ hour drive from Suburb C. When C’s mother said C enjoyed spending time with his paternal grandmother, the father responded by saying that she had had a stroke and that C was not going to get anything out of visiting an “invalid old lady”. The rest of the family, including two sisters, a brother and their families all live in the same area.
45C knows his Country A relatives, as the father and mother used to return to Country A each second year to visit, and he saw them again during the trial period in 2016. Relatives from both sides have also come to visit in Suburb A. Nevertheless, until C had his trial period in Country A, he had spent comparatively little time with any of his relatives.
46The only family in Australia are the father’s uncle and his family, who live [interstate]. C has been to visit them on a couple of occasions since 2010, and they have also been to Suburb A to visit early in C’s life. The father was going to spend Christmas 2016 with them, but decided to stay home. (Although C was back in Suburb A by the start of January, the father said he could not have him until 5 January because of his trip interstate. He did not seek to have C earlier when his plans changed, claiming he was too busy with trial preparation.)
Applicable law
47These proceedings come under the Family Law Act 1975 (Cth) (“the Act”), which makes C’s best interests the paramount consideration.
48In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests 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;
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
49The Full Court has discussed the application of those principles in cases where one parent wishes to relocate, but the other does not intend to follow if the relocation is permitted. In Sawant & Karanth [2014] FamCAFC 235, the Full Court said (original emphasis):
8. Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 … into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives …”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “… spend time on a regular basis with … both their parents …” (s 60B(2)).
9. Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S (2007) FLC 93-313 per Dessau J; Taylor v Barker (2007) 37 FamLR 461).
10.The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).
…
17.The father’s proposals all assumed that the mother would continue to live in Australia. Inferentially his orders proposed that she should do so in order to facilitate the time he proposed between him and his son. No proposal of the father, nor any of his evidence, suggested that he had himself contemplated the possibility of his living in India so as to facilitate a significant co-parenting arrangement in that country should the mother and child reside there (the reasons of Gaudron and Hayne JJ in U v U (2002) 211 CLR 238 at [35] and [173] – [175] respectively, are apposite).
…
21.It is important to appreciate that there was no proposal before his Honour that the child should live with the father. The contentions as to the child’s best interests as they emerged from the proposals of the parties required an assessment of whether it was in the child’s best interests to live with the mother in India with the ramifications for time between father and child consequent upon that outcome or to live with the mother in Australia with time between father and child consequent upon that outcome. (See, for example, AMS v AIF; AIF v AMS (1999) 163 ALR 501, per Gaudron J, especially at [95]; Hayne J at [218] – [219]; U v U (2002) 211 CLR 238 at [81] per Gummow and Callinan JJ).
50In the present case, the father’s proposal is that C should live with him, and if that is the outcome, the mother’s proposal is that she will live nearby. Nevertheless, the remarks of the Full Court in Sawant & Karanth are apposite, as they draw attention to the fact that the court’s focus must always be on what is in the individual child’s best interests.
51In determining the orders most likely to be in a child’s best interests, the legislation mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision, I am required to apply a presumption that it is in C’s best interests for his parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
52The allocation of parental responsibility does not govern the time C will spend with each parent. However, if I make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time” with each parent would be in C’s best interests. If either alternative is in his best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”. Whether these outcomes are “reasonably practicable” would depend on whether it will be in C’s best interests for his mother to live in Country A, given the father intends to remain residing in Suburb A.
53In determining what is in C’s best interests, I must consider the matters in s 60CC of the Act, which are divided into “primary considerations” and “additional considerations”. The dichotomy between the “primary” and “additional” considerations has been considered in many judgments of the Full Court, which have also discussed the significance of Parliament having described just two of them as being “primary” considerations. Those judgments adopt the analysis of former Justice Richard Chisholm, who said in one of his many scholarly papers:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
54It is within this legal framework that I must determine this case.
The primary considerations
55The first of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. It is now well accepted that “a meaningful relationship” is one which is important, significant and valuable to the child, and that “meaningful” is a qualitative adjective, not a quantitative one.
56The parents accept it would be in C’s best interests for him to have a meaningful relationship with the other parent. I also consider this would be in his best interests, as they are good parents and have much to offer C. Their respective relationships with C are very strong (contrary to what the father asserted on the last day of trial). Given the strength of their relationships, and given C’s age, and proven ability to communicate by Skype, I am satisfied C will be able to maintain a meaningful – albeit not optimal – relationship with his father, even if C’s time with him during the remaining years of his minority is limited to an annual six-week visit.
57The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am satisfied neither parent would subject C to these things.
The additional considerations
58I turn now to the additional 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;
59C’s current strong desire to live in Country A stands in contrast with the ambivalent statements he made to his parents and to Mrs A prior to the trial period spent in Country A. C’s ambivalence was well captured in a session with Mrs A, during which he wrote: “50-50 good/bad feelings about moving. Basicly [sic], close [to] family, or further away [from] family, that is the question”. In assessing the change in C’s stated position, it is important to recognise that, even when he was 10, C was described by his paediatrician as “amazingly articulate” and “just fascinating to listen to”.
60I am satisfied that both parents, but perhaps especially the father, placed subtle pressure on C to come around to their way of thinking about the relocation prior to the trial in 2016. Mrs A said it was clear that C was:
caught in the middle of two adults with strongly opposing points of view – who have been doing their best to reduce [C’s] anxiety by discussing the pro’s and con’s of the situation. This impacted on [C’s] functioning, his mental health and also likely impacted on his ability to manage his emotions and to concentrate at school.
61Mrs A reported that C experienced a number of challenges during 2015, leading to increased difficulty managing his emotions and increasing anxiety. She opined that it “is likely that this has arisen as each parent has tried to share with [C] the benefits of their proposal/point of view regarding the proposed move”. In March 2015, C said to Mrs A that he was uncomfortable with the situation, worried about “what country am I going to end up living in when I am in High School” and stating “I don’t want to cause any arguments”. In discussing the possible relocation prior to the trial in 2016, C again shared his feelings with Mrs A, which she described as “feeling confused, worried and apprehensive”. She said that C had described feeling “stuck in the middle” and like it was a “human tug of war”.
62For the purposes of the hearing in 2016, Mrs A specifically discussed C’s views with him. She described the outcome in her report as follows:
[C] started by outlining some challenges and his views on this –starting with the weather (“I like warm weather” … “The weather wouldn’t improve” (in [Country A]) and moving to social experiences (“I wouldn’t have to start making friends all over again” (if staying in Australia). [C] reiterated his interest in the outdoors, with so many camping opportunities (“I liked swags, and being outdoors” – e.g. in Australia), the school (in [Country A]) is bigger (“Likely to be more bullies”) and it’s a long way from home. [C] highlighted to me all the reasons that he would prefer to stay in Australia, without directly stating that request. At the end of the discussion, [C] said “If I have to go to [Country A], I’d like dad to come”. [C] was clear that his preference regarding his ongoing “care” was that he continue to spend time with each of his parents … It would appear that this view alone would exclude the move to [Country A], yet [C] has considered and conceptualised each of his concerns clearly.
63C also told Mrs A in 2015 that he felt that the shared care arrangement was working well and that he liked it. Mrs A discussed other arrangements “such as a more direct 50:50 split” with C and said that C felt this could be easier and something that he would be willing to do if his parents were agreeable. C explained that this was because “I wouldn’t always be changing, and whoops, I forgot something again”.
64C said that he would prefer holiday time to be spent in a block at a time. He said that in the summer holidays, he would like to try an arrangement where he spent a week with his mother and then two weeks with his father. His reasoning was that “dad’s got more time to spend with me, he is not watching TV or computer games – we go camping, visit mates, ride motorbikes”. C expressed to Mrs A several times that he likes to be outdoors and be active, and that he enjoys spending this time in the presence of his father.
65While I accept this was an accurate statement of C’s wishes, the suggestion that the mother was engaged in “computer games” was incorrect, and should have been a reference to her spending time on her computer, probably in the course of her studies. After C’s concerns about the mother being so busy were made known to the mother, Mrs A recorded that C felt things had “definitely improved” and that his mother was now spending less time on her computer.
66After preparing her first report on 15 November 2015, Mrs A had further appointments with C on 24 November 2015 and 4 December 2015. In these appointments, C again confirmed that he liked the arrangement where he was spending a similar amount of time with each parent. Mrs A again said that C was clear that he wished to spend more time with his father, particularly in the school holidays, and she recommended that an arrangement of one week with the mother and then two weeks with the father should be implemented during holidays. She also reported that she had discussed her report with C, and that he advised that his views about returning to Country A were the same. However, in his discussions with Mrs A on 24 November 2015, C suggested that his mother could undertake her final nurse practitioner placement in Country A. Mrs A asked C if he could have three things to change with his family, what they would be. The first was to have a garden tractor at his mother’s place so that he would have something interesting to do. The second was “to have a demonstration of living in [Country A] – to see what it’s like if I go. I have no idea of what I’m getting into”. The third was to “stay in Australia”.
67During her session with C on 4 December 2015, C shared with Mrs A what was important in life for him. She reported that this included “spending time with my dad”. It also included C having significant anxiety about a new school and bullies, and the impact of this on him. She said that “[C] has a mixture of feelings about the proposed move and I note that his anxiety regarding this has increased due to the uncertainty about the current situation and future plans”. C had certainly not discounted the possibility of going to Country A, and I accept the mother’s evidence that, on occasions, he spoke to her with some interest and enthusiasm about the prospect.
68Although the father suggested in his closing address that it had been my idea that there should be a trial period in Country A in 2016, I do not recall making that suggestion (although I asked questions of Mrs A about a trial period, and thoroughly approved when the parents decided to give it a go). The idea for a “demonstration of living in [Country A]” clearly came from C, and could not have been better timed, as the trial period fell in the period when he would be making the transition from primary to secondary school.
69Mrs A saw C again in February 2016, just before the trial commenced. She reported that he “strongly feels that he would like to remain living in [Suburb A]” and did not want to move, even to [Suburb B]. C acknowledged that:
he prefers things to remain the same, than for “change” to occur. He also outlined his reasons included: friends, and not changing school. Also that he knows more people, it’s a smaller place and not so boring (“I can go bush more”).
70C was adamant he did not want to change schools. Mrs A reported:
The reasons stated were “that’s what I want…I want to get out as soon as I can”. He expressed concern regarding expectations that he was to complete all of High School or to attend University, stating that he ‘wants to leave school’ when he can to seek other alternatives. [C] outlined that he is not very good with new things or meeting new people and prefers the stability of [Suburb A] area/school.
71Although each parent had shared their views with C, Mrs A said she did not feel either of them had unduly influenced him. She assessed C as being mature and responsible for his age. She noted his well-developed language skills, and his strengths in verbal conceptualisation and reasoning. As a result, Mrs A concluded that C’s views were his own.
72The best evidence of C’s current views is, once again, that given by Mrs A in her recent report and in her oral evidence on the resumption of the trial. Mrs A noted that C had settled into school and made friends in Country A, and was clear that he wished to stay there and not return to Australia. C told Mrs A that he felt the arrangement was working well and that he liked it. Mrs A reported that the main reasons were that C
has friends, more friends and is accepted by his peers. He states that he is enjoying school and likes not having to travel on a long flight to see his family. [C] likes the smaller community where he lives and appears to have settled positively into the new schooling arrangement.
73In another part of her report, Mrs A wrote:
The main reasons that [C] has expressed regarding his views relate to his personal situation of school and friendships, including peer relations. [C] presents as more mature, happy and confident in himself. His view is firm in relation to remaining in [Country A] to attend school and is in opposition to returning to Australia.
74Mrs A also reported that having the time to settle into Country A had resolved C’s concerns and reduced his previous anxiety. She said that this has had “a positive impact on his self esteem”. Mrs A had discussed in depth with C his views regarding the relocation. She wrote:
[C] and I reflected on his previous stated reasons that he would prefer to stay in Australia (weather, new friends, bullies and his love of the outdoors) and he has now changed his mind regarding these, having experienced living in the [Country A]. [C] was clear that his preference regarding his ongoing “care” was that he continue to live with his mother in [Country A]. [C] is enjoying the new school and reports that he has made friends and wishes to continue to live in [Country A].
75Mrs A again reported that C is a “mature and responsible child” and that she considered that the views he had expressed were his own. She observed that C had even gone so far as to say that he would prefer to remain in Country A and complete school there, even if his mother were to return to Australia. C would, of course, be under no illusion that his mother would ever leave him, and I therefore regard this as merely his way of emphasising the strength of his current wishes.
76Mrs A said it was important that C’s “strong views [are] taken into consideration in the decision making regarding his family situation”. She considered that this “is quite important for his development and progression into adolescence”.
77In his discussions with the Family Consultant at the Child Dispute Conference, the father discounted C’s expression of wishes to Mrs A, claiming that she “hasn’t connected that well with C over Skype”. Mrs A rejected this proposition, and drew attention to the long-established therapeutic relationship she had with C.2 In any event, Mrs A has met with C face to face during his time back in Australia, and he continues to state his strong preference to live in Country A. (His preferences were expressed to Mrs A not only in her November 2016 Skype session, but also in earlier sessions.)
78Mrs A’s evidence concerning C’s views was corroborated by the evidence of the mother, which I accept. The mother said that C told her that he loves living in Country A, and really wishes to stay in that country. She said she believes that C will be devastated if he has to return to live in Australia, and that she has never seen him as happy as he has been while living in Country A.
79Mrs A’s evidence about C’s greater maturity, happiness and confidence was also corroborated by the evidence of C’s grandparents, which I accept. The grandmother said in her most recent affidavit:
I have been thrilled to see the changes in [C] during the last six months. He has really grown up. He has grown in confidence. He even seems to hold himself more confidently, standing up tall instead of looking down at the ground as he used to. [C] is a shy boy and I had expected that he might initially find it difficult being in a new place and going to a new school but he has embraced it, settled in well, made lots of new friends and appears very happy and relaxed.
80In response to my questioning, Mrs A said that the improvement in C’s maturity and confidence was greater than what she would have anticipated merely because of the passage of time. Her evidence, when combined with all the other evidence, satisfies me that C is thriving in Country A and much happier at school than he was in Suburb A.
81Importantly, including in the time that he has been back in Australia, C has also expressed his views about wishing to remain in Country A directly to his father. The father volunteered that C had told him that there are “better looking girls over there”; that girls came and talked to him; that he had “lots of mates”; and that he was “really popular at school”. At the earlier part of the trial in 2016, the father placed great store on what C had said, but now he considers that his opinions should be discounted. He told the Family Consultant at the Child Dispute Conference that the decision concerning C’s living arrangements needs to be based on “more information, looking at the bigger picture and the status quo as it was”.
82The father also now, for the first time, questions whether C is of sufficient age and maturity for his wishes to be taken into account as a significant consideration. As another line of attack, he suggests that C’s desire to return to Country A is associated with him having a girlfriend at school there, and that his “hormones were kicking in”. He also sought, in a way I found unconvincing, to suggest that C’s real wishes were different to those he had expressed.
83The father has, in effect, been cross-examining C to establish he is not telling the truth about the extent of his popularity and friendships in Country A. For example, he asked C what soccer team his new mates followed, and felt it was significant C was unable to tell him (but then acknowledged in response to my question that C was not interested in soccer, but was able to say what computer games his friends enjoyed).
84In further support of his theory that C is not telling the truth about having so many friends in Country A, the father produced a school report of C’s, which would appear to have been produced in the first part of 2015. There was room on it for the student to comment on their own progress, and C had written, “I am fitting in very well this year”, which the father said was contrary to the evidence.3 However, this overlooks the fact that C’s Semester 2 report in 2015 said that “it has been evident that [C] has increased his time interacting with his peers this semester”. Evidence was also given that one of the teachers commented last year on C’s social improvement and on how C had “become one of the boys”. (I accept therefore that there is some evidence of C making some gains prior to moving to Country A.)
85The father has also been strategic in trying to obtain information from C’s school to demonstrate that C has been not telling the truth about how well he has settled in. He was able to obtain an email from C’s tutor, in which she recited a brief comment from each of his teachers about how he was “socialis[ing] within his peer group”. These comments need to be considered in the context of the observations of the educational psychologist who assessed C in Suburb A in March 2015 and reported:
Concerns were identified regarding [C’s] peer relations, based on both the parent and teacher [reports]. This is consistent with reports that [C] does not appear to have specific friends at school and will sometime [sic] isolate himself from social situations. Parent reports suggest that [C] prefers to interact with his peers one-on-one as he can become overwhelmed by groups of people, but demonstrates appropriate social skills in his interactions. This is consistent with observation that [C] commonly interacted with a peer when completing tasks in the classroom, and reported playing chasy on the day of assessment. Further, [C’s] interactions during the assessment situation were appropriate and concerns were not evident regarding his social competence. Children with [a developmental condition] often avoid socialising with peers, particularly in the playground, instead preferring to play alone. This may be due to decreased self-confidence or avoidance of physical activities, resulting in [C’s] avoidance of social interactions and activities.
…
… Children with [a developmental condition] often show a lack of interest in or avoid particular activities, especially those that require a physical response, which can likely account for [C’s] presentation in the classroom.
86The brief comments from the teachers in Country A describe a quiet boy who largely keeps to himself in the classroom. However, they also describe a boy who “usually contributes to Q & A sessions well” in computer science; “does work in pairs when asked” in science; “worked well within the group and seemed happy” in music class; and “works well with [K] and is still next to him in the new seating plan” in the French class.
87In his email seeking information from the school, the father engaged in some subtle refinement of information given to him by C’s tutor. The father’s email to her read:
Thank you for your email and yes it does reflect the content of our telephone conversation. One of our concerns as parents is how well [C] socialises within his peer group and I note that in our conversation, your observations are that [C] will come and sit in your tutor room at lunchtime and that he sits on his own and that there would be typically around 3 other students plus yourself in your tutor room.
88The father referred me to this statement on a number of occasions, without drawing my attention to the earlier email from the tutor to the father, which said:
As we discussed I know from conversations with [C] that he tends to spend the first part of his breaks sat in the canteen to eat his packed lunch and then he does come and sit in my tutor room, as do other students as there aren’t many quiet places to sit and to spend break times. He interacts well with his peers within the tutor group although he is not the most forthcoming he participates in the tutor quiz and other activities.
89Nothing advanced by the father persuaded me that C was not truthfully reporting how he felt about his new school, home and friends. I accept his statements may have painted a rosier picture than might have been evident to an observer who did not know him well, but it cannot be overlooked that C has started from a very low base. Thus, I accept that in Country A he has played rugby at lunchtime with some other boys, although I also accept this may only have happened once or infrequently. To my mind, it is not the underlying facts that are important, but rather C’s interpretation of them, since it is this which will drive his feelings of belonging and his own self-esteem. Thus, he might not spend as much time hanging out with the boy next door as other close friends might, but they do spend time together out of school hours and they do walk to and from the bus every day. The boy was important enough to C to mention to Mrs A, along with two other named boys who he sees as friends. I conclude that he has rather quickly developed a small group of friends in Country A in the same way he slowly did in Suburb A. It is for C, not his parents, or me, to judge which of the friendship groups is more valuable to him.
90I accept there are likely to be a variety of factors which have led to C’s wishes turning around to the extent they have. These are likely to include:
•C having settled into school in Country A very well, indeed far better than could have been predicted (the reasons for this are unknown, but I was impressed by what I gleaned from the mother’s evidence and the statements by C’s tutor and the teachers about how they have handled C’s transition into a new school);
•The educational benefits to C of taking Ritalin during the school week (as had been recommended by the paediatrician, and as supported by the mother but originally opposed by the father);
•C having made a few friends, including the boy next door who seems to have been very supportive (the mother seems to have been instrumental in facilitating C going out of his comfort zone to make this connection);
•C being freed from the unsatisfactory aspects of a shared care arrangement, including the minor disagreements that arose from time to time between his parents, notwithstanding their civility to each other;
•C no longer being exposed to the pressure of both parents relating to the proposed long-term relocation;
•The knowledge that his time in Country A was being spent in accordance with an agreement reached between his parents;
•C enjoying the day-to-day company of his lovely grandparents, and having the opportunity to visit his father’s extended family and the prospect of spending time at Christmas with his mother’s extended family;
•C being taken on a number of activities by his mother and grandparents which he finds interesting and stimulating; and
•C’s natural inclination not to want to change existing arrangements.
91I regard C’s wishes as a matter of real significance for the reasons expressed by Mrs A. Although C is only 12 years old, and notwithstanding his learning difficulty, he is highly intelligent and articulate, being ranked at the 92nd percentile for verbal comprehension. He has no hesitation in saying things to his parents he knows they do not want to hear (especially I think to his mother). He was quite prepared prior to trying out life in Country A to expose his anxieties about living there, but having had the experience, has found it suits him well. I would be very concerned about the impact on C if his wishes were ignored.
(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);
92The father, at times, beneath his genial and polite persona, gave a hint of a capacity to be a little dogmatic and authoritarian. My only concern about his relationship with C is some doubt about the way he might handle situations of high conflict as C gets bigger. Apart from this concern, which may not be well-founded, it is obvious that father and son enjoy an affectionate, easy and very close relationship.
93The mother acknowledges that the father enjoyed being involved in aspects of C’s care; that he was a “good dad”; and that father and son were close. The mother also gave evidence of C enjoying going into the shed and building and fixing things with his father, and doing “boys’ stuff” together. I accept that the father also undertakes other activities with C, including cooking, and has been heavily involved as a parent helper. C shares similar interests to his father, and has described himself as a “petrol head” and “into engines and cars”. He told Mrs A that while he liked both his parents, “some people are more like their mums, I’m more like my dad”. On another occasion he told Mrs A that he felt he was closer to his father than his mother because “she’s not really fun” and he wanted to do “some fun things” with her.
94Mrs A in her recent report noted that while C has, in the past, been clear he wished to spend more time with his father and enjoyed their time together immensely, and does not express any significant concern about either parent, he is now “clear that his engagement with his peers is more important to him at this point in time”.
95It emerged on the last day of trial that the father did not consider C had a good relationship with his mother. I am not sure whether the father, in advancing this proposition, was clutching at straws in the face of the adverse recent report of Mrs A, or whether he was playing to the gallery of spectators from Suburb A, as I thought at times he might have been. In any event, whilst seeming to have a very good recollection of much of the earlier evidence, the father seemed to have overlooked in his submissions that Mrs A had said that she considered that C had a “deep emotional bond with both parents” but “may have a closer emotional bond with his mother because she is the main carer”, which was evidenced in Mrs A’s opinion by C needing comfort from his mother.
96In any event, I find that C and his mother have a very close attachment, reflective of the mother’s constant presence in C’s life, and the care and attention she has given to him. This is not to say that there are not some issues in the relationship, and in particular I accept that C has not appreciated his mother being unavailable to him over the last few years, as she has struggled with maintaining a home while undertaking onerous studies. I also accept that C would prefer that his mother had the interest his father has in outdoor activities and “boys’ stuff”. The mother does what she can in this direction, but she cannot replicate the fun times that C greatly appreciates having with his Dad.
(c)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;
97The parents have both made a real effort to participate in making decisions about C, and have generally attempted to maximise their time and communication with him. There does appear justification, however, in the mother’s claim that the father’s desire to maximise his time with C became more evident when she was strongly contemplating returning to Country A, and that he previously could have sought additional time with C, especially during school holidays when he was not working, but did not do so.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
98The parents have been sharing expenses for C while they have had a week-about arrangement. Prior to that, the father made only very modest child support payments. Pursuant to the parents’ agreement, the father was not required to pay child support while the mother was in Country A in the last half of 2016. The father did, of course, have to meet the expense of going to Country A to see C in this period.
(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;
99This factor is clearly of great significance where one party plans to live in Country A and the other party does not plan to move there. If the relocation is permitted, C might see his father only once each year, albeit for a period of six weeks. It is probable, however, that the father would also travel to Country A, as he traditionally has at least each second year. In fact, I consider it likely he would try to visit C annually. Whatever the frequency of visits, C would see his father much less than he has been accustomed to (at least until the start of the trial period in 2016). I have nevertheless recorded my belief that C would maintain a meaningful relationship with his father.
100It must be made clear that the reduction in time C would spend with the father would ultimately not be as a consequence of the court’s decision, but rather as a result of the father’s decision not to return to live in his native country, and where his own family reside. I accept that the father enjoys living in Australia; indeed, he said that “just about everything in Australia is better than in [Country A]”. I accept that he has a circle of good friends in the Suburb A area and in Perth. I also accept that he has a job he enjoys in Suburb B, and that it would be a major disruption in his life to return to Country A to live near C. I was not convinced, however, by his arguments about why he could not obtain work in Suburb D, and it seemed that he was simply unwilling to contemplate ways in which that might be possible.
101While there is no doubt of the father’s love for C, his readiness to live in a different country to his only child stands in contrast to the position of the mother, who has been willing for many years to remain in a place where she has not wanted to live. Given the father’s strong, and in my opinion accurate, views about the benefit to C of regular contact with both parents, I would have thought that he would give much more serious consideration to relocating in the event that he is unsuccessful in opposing the relocation. In this context, I note that the mother earlier offered the father $15,000 to cover the costs of him relocating to Country A because of her desire for him to continue spending regular time with C. Indeed, the mother even offered to live in Suburb O near the father’s “huge family”, because she would then at least have had the opportunity to travel to Suburb D on weekends to visit her family. Even this arrangement was not acceptable to the father.
102The negative consequences for C associated with the mother’s relocation, and the father remaining in Australia, would in some part be compensated for by the opportunity for C to continue to enjoy the much closer association he had with his maternal grandparents in the last half of 2016, and the opportunity for him to spend at least some more time with the rest of his relatives than he would if he stayed here. If C is not permitted to relocate, he will continue his childhood without the benefit of any close and regular interaction with relatives other than his parents. While I accept that the mother and C could continue to travel to Country A, this is very unlikely to happen more often than once per annum, especially now that the mother proposes to move into the full-time workforce.
(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;
103This is a significant factor in light of the difficulties associated with C spending time with his father if the father remains in Australia and the mother relocates. The mother proposes that in 2017, she and C would come back to Australia for a period of up to six weeks at her expense. After 2017, she proposes to continue to meet the cost of one trip each year. She did not say whether she would continue to accompany C in later years, but given that he will be a teenager, and given the proposed introduction of direct flights from Country A, it may be considered unnecessary.
104The father proposes to meet half of the costs of C travelling to Country A each year to visit relatives if the relocation is refused. If the relocation is permitted, the father would not need to meet that expense, and the funds that would otherwise have been used for the purpose could be utilised in him travelling to spend time with C. As the father is an instructor, and has enjoyed flexibility in his work timetable to date, it would not be unrealistic to think that he could be in Country A to spend time with C around Christmas, as well as having six weeks with C in Australia during the Country A long summer holidays.
105There is no difficulty or expense associated with C having regular communication with his father by Skype, as that arrangement was in place while C was in Country A. C is computer literate and has his own laptop. While I accept that Skype communication is no substitute for physical contact (for example, when C needed help renovating his old bike), it allows them to maintain a relationship between visits.
106The father placed emphasis on Mrs A’s recent report in which she said that C “is struggling with conceptualising the practicalities of engaging with his father, given the distance between Australia and [Country A]”. However, Mrs A went on to say:
Despite this, [C] is clear that he likes the current arrangement … [C] considered how to spend time with his father, if his father remains in Australia – and accepts that the key opportunity for this would be during the school holidays.
(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;
107Both parents have the capacity to provide for C’s needs, but I was inclined to consider that the mother had a more nuanced understanding of C’s emotional and intellectual needs. While both parents have been heavily involved in C’s care in recent years, it was the mother who previously was predominantly involved in looking after him, and I gained the impression that even during the week-about arrangement, she was primarily responsible for organising many of the more significant aspects of C’s life. This is not to suggest that the father was not also significantly involved in many aspects of C’s upbringing, as he clearly was.
108One of my concerns about the father’s ability to provide for C’s emotional needs arises from what I consider to be his premature, but successful, agitation at mediation to move to a shared-care arrangement somewhat earlier than would have been desirable for C. The mother was resistant to such an arrangement, and would have preferred to move to shared care in a more graduated process, but felt pressured to enter into the regime proposed by the father. Although it is not possible to be certain, I have an impression that the father’s desire to move quickly to a 50:50 arrangement was because he felt this would be advantageous in successfully fending off the relocation application.
(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;
109C is a mature and intelligent boy, with a good sense of humour, who has struggled with the separation of his parents. Mrs A said it is not uncommon for children whose parents have separated to have difficulty adjusting, difficulty sleeping, emotional fluctuations or anxiety. She said that some children may regress in their development or develop separation anxiety with their primary attachment figure. She said that a number of these issues had occurred for C.
110Notwithstanding his intelligence, C has always had learning problems and been chronically unable to complete tasks on time. It is now accepted that he suffers from a developmental condition, which Dr L described as being about “the way your brain deals with concrete information and planning”. Over the years, he has been seen by at least three paediatricians, an audiologist, an occupational therapist, educational psychologists, and by Mrs A.
111The father was originally most reluctant to accept that C had a developmental condition, and C himself doubted it, although I think it likely he was encouraged in his scepticism by the father. The father still doubts the accuracy of testing which established that while C’s verbal comprehension is on the 92nd percentile (i.e. in the top 8%) his “processing speed” ranking is 1% “which is as low as you can get” and in the “intellectually disabled range” according to Dr L. The mother too was initially unprepared to accept there was anything wrong with C, and did not feel able to meet with the coordinator of the day-care centre, who first noted issues of concern relating to C. However, once she came to accept that C did have problems, it appears to have been the mother who mainly sought out medical help for C, and who has been prepared to follow advice and ensure that C, for example, undertakes exercises recommended by the occupational therapist. The father did not challenge the mother’s evidence about his failure to follow these recommendations and his failure to contribute to expenses associated with the treatment.
112Although there has been some doubt on the issue, C has also been diagnosed with Inattentive Attention Deficit Disorder, which has been described as the flip side of the developmental condition coin. Mrs A said it has been noted that children with this diagnosis can experience difficulties coping with everyday life, symptoms of anxiety and depression, low frustration tolerance, decreased self-esteem and a lack of motivation.
113Dr L considers that C is a child of “amazing brilliance”, who was simply not achieving his potential. In May 2015, she recommended trialling Ritalin, which increases the “speed of transmission and increases processing speed” in children. The father refused to consider trialling the drug, even though Dr L said that some children “benefit hugely” from it. The parents then saw Dr L together, in what the doctor recalls was a “very tense consultation”. The mother recalls the father accusing Dr L of “pushing drugs”, and the doctor’s receptionist commented that it had been a very loud consultation, which Dr L said had left her “reasonably stressed”. The doctor was moved to telephone the mother the following day to check that she was “OK”. The father refused to pay any of Dr L’s fees.
114In light of the father’s refusal to accept the proposed Ritalin trial, Dr L referred C to another paediatrician, [Dr G], for a second opinion, as Dr L said he was the local practitioner with the most experience of Ritalin. The mother says that the father said that he would still not trial Ritalin even if recommended by Dr G, and that he wanted to try a “holistic approach” to address C’s problems. Although the father claims that Dr G recommended dealing with C’s condition by use of fish oil and dietary supplements, I am inclined to accept that these recommendations were made when the father would not accept Dr G’s opinion that Ritalin could be beneficial for C.
115The father apparently persevered with his opposition to Ritalin for some months after Dr L gave evidence at the first part of the trial. However, before C went to Country A, the parents and C met with Dr G again, after the school reported that C was not coping. The father agreed at that appointment that Ritalin should be trialled. Initially Dr G prescribed what the mother described as “only a short-acting dose”, which she said seemed to have little effect. Shortly before the mother and C travelled to Country A, Dr G, with the consent of both parents, prescribed what the mother described as “a long-acting dose”. While C was in Country A, he took one short-acting dose and one long-acting dose each school day, but did not take Ritalin on weekends and holidays. The mother reports that C is happy to take the Ritalin, and that he says that it helps him at school and that he finds it easier to focus and remember things. While in Country A, the mother had an appointment with a doctor to obtain a new prescription, and the doctor provided a referral to [a] Country A paediatrician so that the need for C to take Ritalin could be monitored.
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
116This factor is not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
117Both parents have demonstrated a good attitude to the responsibilities of parenthood.
(j)any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied…
118These factors are not relevant.
(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;
119It is usually preferable to make the order least likely to lead to the institution of further proceedings. Aside from the contentious issue associated with relocation, the mother and father have shown capacity to resolve matters without litigation (albeit on occasions this was simply as a result of someone ‘giving in’). If the mother was to be refused permission to relocate now, she might seek permission again when C is older. If she is permitted to relocate, disputes might arise in relation to the terms of visitation. Overall, I do not consider this factor to be of any great significance.
(m)any other fact or circumstance that the court thinks is relevant.
120The father made a number of criticisms about the sedentary lifestyle he claims that C has experienced while living in Country A and the mother’s failure to assist C in some of his activities. The father was also concerned about the extent of C’s access to television and the Internet. In many respects, these criticisms were shown to be unfounded, and others were arguably related to the father’s failure to appreciate that C is rapidly growing up and developing new interests. There was, however, some basis for part of the father’s criticisms, as the mother has been preoccupied in completing her degree, undertaking her work placement and settling into her new routine. The mother has, however, made some time for C, and she and her mother and stepfather have done a good job in seeking to keep him entertained and helping him learn about his new neighbourhood. In fact, I accept that it has been C who, on occasion, has been resistant to getting “out and about”, as he said he was in Country A to see what it is like to live there, rather than being on holiday there.
121It is significant, in my view, that unlike the position prior to the trial in 2016, in his more recent discussions with Mrs A, C appears not to have made any adverse reference to his mother’s availability. It should also be stressed that while there are clear signs of the mother not having been able to pay sufficient attention to C over the last few years, she has overall been a very attentive parent who, for example, read to C every night of his life until a couple of years ago. I accept the mother’s evidence that she has shared her love of books and languages with C, and her love of history, which would go a long way to explaining C’s eloquence and interest in matters historical.
122Hopefully now that the mother has completed her studies, she will have greater opportunity to spend time with C; albeit she will have to work, and her inclinations and ability are such that she will never be able to replicate the father’s capacity to engage with C in “boys’ stuff”. While this is unfortunate, I consider it likely to be less of an issue for C in his teenage years than it would have been for him when he was younger, as his interests in future are likely to involve more interaction with peers than parents.
Parental responsibility
123The mother said during the earlier part of the proceedings that it was impossible for her to reach agreement with the father regarding issues concerning C’s schooling and health issues, and she therefore wanted to have parental responsibility for those matters. At that time, however, the parties were still in dispute about the use of Ritalin, whereas that dispute was resolved before C went to Country A in 2016. Nevertheless, I accept the mother’s evidence that while the parents are capable of communicating, there have been difficulties in their communications, and that the father has been inclined to ignore or brush off things that the mother has told him C is telling her.
124Although I accept, as Dr L said, that the desirability of medicating children with Ritalin is “contestable”, and that it is not unusual for parents to be cynical about Ritalin, having heard the evidence of Dr L in 2016, I was convinced that it would be highly desirable for Ritalin to be tried. C is clearly a boy who has great potential to achieve at a higher level than he has to date, and the severity of his processing difficulties was such that a pharmaceutical intervention appeared justified. The father’s strong objection to Ritalin in the face of medical advice, and in the face of the mother’s desire, was some indication of the tendency of the father to believe that he knows best. I accept the submission of counsel for the mother that the father’s actions deprived C of the opportunity to achieve at a higher level at an earlier stage in his education. (Although C expressed ambivalence about taking Ritalin, I consider it likely that this was, in part, the result of his father’s attitude.)
125The presumption in favour of equal shared parental responsibility clearly applies in this case, given the absence of violence and child abuse. Nevertheless, I am satisfied that the presumption is rebutted, as C is likely to continue to require medical intervention associated with his developmental condition, and history suggests the parents will be unable to readily reach agreement about such matters. The mother is an intelligent and attentive parent, and I am satisfied that she will make good decisions relating to medical issues. As the father is keen to be involved, and has C’s best interests at heart, I accept he should be consulted, if practicable, in relation to any long-term medical decisions.
126I also consider that the mother should have parental responsibility for C’s educational needs. Whether C is living in Country A or in Suburb A, I consider it possible that there will be a disagreement between the parents about whether C should leave school at around the end of Year 10, or continue with his studies, as his intellect suggests would be appropriate. The father is likely to be keen for C to leave school earlier and to obtain manual work, and I accept that this may be appropriate, depending upon how C progresses over the next couple of years. C’s discussions with his parents and Mrs A prior to his trial period in Country A suggested that this is very much what he wanted. The mother also gave evidence in 2016 that C hated school and constantly talked about leaving school when he is 15, and in fact would have left school then if he could.
127When she gave evidence in 2016, the mother was not convinced that it would be good for C to leave school early, which was one of the reasons she was keen for him to attend school in Suburb B, where there would be the option for C to complete Year 12. I was much inclined to accept her evidence that there is “another side of [C]” that had, at that point, not been explored. No evidence was given on the resumption of the trial in 2017 as to whether C may have changed his mind about when he will leave school, but there is a possibility he has, given that he is clearly enjoying school more than he did in Suburb A. In any event, I accept the mother’s evidence that it is the responsibility of the parents to ensure that the child is given choices, rather than necessarily making the decision for him.
128It would not be in C’s interests for his parents to be in dispute about the age at which he is to leave school. I consider that the mother should have responsibility for this and any other long-term educational issues that arise, as I am satisfied she would weigh up C’s wishes and the pros and cons of continuing his schooling. Again, however, because of the father’s great interest in C and his education, the mother ought not make any long-term decision about such matters without first consulting the father.
129The mother proposes that she have parental responsibility for all other issues if she is permitted to relocate, but does not seek that responsibility if she remains in Australia. The rationale, as stated in her Amended Papers for the Judge, is that if she is in Country A, and the father is in Australia, “it may be difficult for the parties to consult on matters and for the father to take an active role in decision-making”. Given that much of the parties’ communications about C are undertaken by correspondence even when they live in the same town, I am not convinced that the distance between them would make it any more difficult for them to consult about matters concerning C. It is also important to contemplate what, if any, “major long-term” decisions the mother might need to make about C, other than education and health issues.
130The Act defines “major long-term issues” as meaning “issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education … ; and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
131While I recognise that the definition is not inclusive, it is difficult to envisage issues likely to arise for C other than those specifically mentioned above. Had the mother been asked, I doubt that she would have thought that she alone should be able to make decisions about C’s religious and cultural upbringing, or his name, or be permitted to make changes to his living arrangements that would make it more difficult for him to spend time with his father. I can see no basis for limiting the authority of the father to join with the mother in making decisions about any topics other than C’s education and health.
Equal time
132As I do not propose to make an order for equal shared parental responsibility, I am not required by the Act to consider whether C should spend equal time with his parents, but I am required to consider that option, as it is the mother’s alternative proposition, and it is also an option the father would clearly prefer rather than the relocation being permitted.
133Mrs A’s evidence is that C benefits from spending time with each parent. Her position in her 2015 report was that serious consideration would need to be given before there was any alteration to the week-about arrangement. She opined that:
[C] is a vulnerable child and at an age where a strong relationship with both of his parents is important for his mental health and daily functioning. In particular, as a pre-pubescent boy, the importance of good male role models and interactions with his father is quite important for his development.
[C] has been clear that he wishes to spend more time with his father. As time has gone by, [C] has been very clear and consistent in his statements about this. I note that [C] had difficulty expressing his feeling regarding his relationship with his mother and I suggest that his mother considers the time they spend together and seeks to improve the parent-child relationship. Whilst [C] has not expressed any significant concerns about either parent, he has been clear that he is engaging better with his father at this point in time…
134In her oral evidence, Mrs A said it was not unusual for some children to have difficulty in expressing their feelings regarding their relationship with a parent. When asked about her statement concerning C’s difficulty in expressing his feelings about his mother, Mrs A volunteered that many children in separated families spend more fun times with their father, and the difficulty for them is to have fun times with their mother. She agreed with counsel for the father that it is harder for the child when the mother has done the “hard graft” and is seen as the disciplinarian, while the other parent is seen as the one providing “fun and leisure activities”. Mrs A went on to say that while C may have been bored because his mother was very busy; at all times he would say that he had a good relationship with both his parents.
135Although I accept that C’s wishes and feelings were as described to Mrs A in 2015, he is now a year older and has had the benefit of trying out life in Country A. He fully appreciates that his wish to return to that country will involve him having much less time with his father than he was used to having. While I have no doubt that this is a matter of real concern to C, he has clearly taken that into account in determining his own preferences for his own life.
136If I considered that the relocation should not be permitted, I would order that C spend equal time with each parent during school term, but more time with the father during school holidays. Even though I anticipate that the mother will be working full time and the father working part time, both parents have a great deal to offer C and I do not consider that he would want to spend any less time with his mother during school term than he spent with his father. I would order that C spend more time with his father than with his mother during school holidays, because his father is likely to be working much less than the mother, and is skilled at arranging activities which C enjoys.
Substantial and significant time
137As I have decided not to make an order for equal shared parental responsibility, the Act does not require me to consider making an order for “substantial and significant time”, but I have to consider that option, as it is the father’s proposal that the mother spend time with C which would fit within the statutory definition of “substantial and significant time”. However, for the reasons already indicated, I would not be prepared to make an order along the lines proposed by the father. Other than for school holidays, I do not consider C should spend anything less than equal time with his mother.
138The mother says she would be willing to agree to the father spending “significant time” with C if the father was to return to Country A, and she notes that she has always been willing for him to spend significant time with his son. If the father decided to move back to Country A in the event the relocation is permitted, I would be confident the mother would agree to him having “substantial and significant time” with C, and may well be agreeable to resuming the week-about arrangement, depending upon C’s wishes.
Relocation
139As the plurality of the High Court said in CDJ v VAJ (1998) 197 CLR 172 at 218–219, resolution of a parenting dispute:
necessarily involve[s] predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.
140By the time the first part of the trial had been completed, my intuition suggested that C’s interests would be best served by residing in Country A, near to his grandparents. However, I was very troubled about making such an order, given C’s statements of wishes which, while ambivalent, overall evinced a desire to maintain the status quo.
141I was therefore pleased for C that his parents had the flexibility and good sense to offer him a chance to experience life in that country. At worst, he would get the benefit of six months living with his grandparents so that he could get to know them better and obtain a better sense of belonging than I consider he had in Western Australia, where he has no relatives at all. I also thought, mistakenly as it has turned out, that if C expressed a strong desire to remain in Country A, his father would not stand in the way. In retrospect, I think the father anticipated (or certainly hoped) that C would not like the arrangement, which would further strengthen his case. In any event, the court now has the luxury, not available in most other cases, of knowing the strong views of a fairly mature and intelligent child who has recently sampled life in both locations. As I have noted earlier, I place much weight on his views and agree with the expert opinion of Mrs A about the dangers of ignoring them.
142In a ‘relocation case’ involving a child of C’s age, a significant issue is the loss of peer associations if relocation is permitted. Although C has had a few friends when living in Suburb A, there have been some difficulties associated with them (related to C’s difficulty in forming friendships and also issues personal to the type of friends that he had). C has now had an opportunity to make friends in Suburb D and, perhaps surprisingly given the history, has quickly made friends who are important to him. In my view, it would be in his interests to have the opportunity to develop these associations. The fact that C appears to have significantly improved his self-esteem in his time in Country A is also of significance, given that children with a developmental condition often experience low self-esteem.
143As was pointed out during the hearing, it is unnecessary for the mother to demonstrate compelling or even good reasons for wishing to relocate. I am convinced, however, that she has genuine reasons for considering that relocation would be in the interest of both herself and C. I reject the suggestion put to the mother in cross-examination that she had decided to move away from Suburb A because she realised that C was enjoying his relationship with his father more than his relationship with her. I also reject the suggestion that the father made near the conclusion of his evidence in the second part of the trial that the mother has no genuine reasons for going back to Country A, and that she may be doing so out of “spite”, with a view to destroying his relationship with C.
144The mother has wanted to return to Country A for most (if not all) of the time she and the father have been apart. She has known the father was opposed to this and was unlikely himself to return. She nevertheless did what she could to encourage him to return, including offering a financial incentive, and proposing to live near his family. I accept that she genuinely wants him to continue being a big part in C’s life, and she also recognises that life would also be easier for her if he did return to Country A, because he could assist her with the care of C, which would be especially helpful when she has full-time work.
145Although the father attempted to paint a picture of the mother as a person who is by inclination discontented with her lot in life, I consider that her reasons for wishing to return to Country A are bona fide and have been made only after careful consideration of what would be in C’s best interests. Although the father considered the advanced age of C’s grandparents to be an indicator against relocation, I consider it a strong indicator in favour. C only has a few years of his minority left in which to enjoy what I consider to be the undoubted benefit of spending time with close relatives other than his parents. There will be benefit to him in this even if the health of his grandparents declines, or even if one or both of them passes away within the next few years. Part of the richness of humanity is to travel life’s journey with loved ones; to comfort them and care for them in times of need; and to learn how to grieve when they are no longer with us. It not just about what C’s grandparents might be able to do for him, but rather what he might be able to do for them.
146In the meantime, the mother would clearly prefer to have the assistance of her mother in supervising C after school or during school holidays while she is working. It is true that in the past, the mother has been able to rely upon friends in Suburb A to assist her in C’s care, but she has not previously worked full time and has also had the father to assist her. It will only be for a couple of years that the mother will need assistance from her mother in supervising C, as thereafter he would hopefully be mature enough not to require adult supervision after school. If, for whatever reason, C’s grandmother was unavailable, the mother is a resourceful woman and would make satisfactory arrangements.
147The father is content with a life in which he sees his relatives, including his aged and invalid mother during a visit each second year, and during such times as they are able to visit him. He clearly obtains great pleasure and fulfilment from his association with friends. The mother, on the other hand, is no longer content with such a life and wants to be near her mother and stepfather in their twilight years. Although the father effectively purports to tell her that she would be better off in Suburb A than in Suburb D, the mother has clearly been unhappy in Western Australia for a long time and has got by, in part, because of her own strength, but also by taking antidepressants and, on occasions, drinking more than she considered proper, for which she felt the need to seek medical attention. I accept the mother’s assessment that she would be “a better mum to [C] if I was happier”, and I have no doubt she would be much happier living in Country A than in Suburb A.
148The father suggests, entirely incorrectly in my view, that the mother’s need for the company of her family will be satisfied by his proposal that would allow her to travel home to Country A twice per annum. Although the mother and father had previously spent extended periods in Country A for periods of up to 10 weeks, roughly each alternate year, the mother will no longer be able to have holidays of such duration, given it is likely she will be in full-time employment. Unlike the father’s family who all live in fairly close proximity, the mother’s family in Country A is spread out from Suburb D in the South to [Suburb E] in the North, and she would have an opportunity to spend only short periods with each part of the family unless they could all be brought together specially for the purpose.
149I accept the validity in the father’s concerns about C not having him at hand as a role model, as he has undoubtedly fulfilled that role in C’s life to date. Mrs A discussed the importance to C of having a good male role model, but she also accepted that many children can cope without good male role models and have their needs met in other ways. C will have his grandfather nearby, and he would be a role model, although of a very different type to the father. He will also have teachers at school who may serve as a role model. There is potential for the mother to re-partner, as she said, although there is no indication that is likely to happen soon, and it may cause more problems for C than it would solve. Although the mother said in her evidence in 2016 that she had male friends in Country A, there was no evidence that she was keeping company with any of them during the trial period last year, but I accept that if she lived full time in Country A, she will expand her circle of friends. Importantly, I expect that C will spend some time in holidays with his father’s family in Suburb O, who the mother said “are into motorbikes and things”. She noted that there is a half-term holiday every six weeks, which would provide opportunities for C to go to Suburb O. His [Uncle C] lives there, and C appears to have a good relationship with him, for example, having been away on a fishing holiday with him and the father to [a Western Australian coastal town].
150I consider that, in his cross-examination in the 2017 part of the trial, the father misconstrued the mother’s earlier evidence about her motivations for wishing to move to Country A, and the benefits she expected to obtain from doing so. In my view, the mother’s evidence was clear that her motivation in moving was not so much about issues concerning the support she might receive in C’s day-to-day care, but instead was primarily related to the closer proximity of relatives, and in particular C’s grandparents, and her great desire to give C a “feeling of belonging”. As the mother said in her evidence in 2016, what is important for C is not so much things such as “motorbikes and entertainment” but rather “the support of family and getting to know his family and developing relationships which are irreplaceable”.
151Contrary to what the father suggested in his cross-examination of the mother in 2017, the presence of friends of the mother in Suburb D was not a significant aspect of her case, although it was certainly mentioned. In answer to questioning, she said in 2016 that she was not looking to her friends for support, and that it would merely be “nice to know people there if I go back”. It was obvious that the mother would be primarily looking to her mother for support, which is what occurred during the trial period.
152It is true that the mother had no physical interaction with other members of her family, apart from her mother and stepfather, during the trial period, but she never said she expected they would be seeing much of each other, given the distances involved. The expectation was that they would get together occasionally, which is what occurred when the three sisters and their families got together for what sounded for C to be a very enjoyable nine days at Christmas – an event he wishes to repeat as soon as possible.
153The mere fact that the mother could much more readily go to see her sisters if she felt the need will be something that will assist her avoid the feelings of isolation that she has experienced being in Suburb A, even if she does not often avail herself of the opportunity. As a minimum, being in the same time zone, it will be much easier for her to speak with them on the telephone, as she does routinely. Otherwise, I accept the mother’s evidence that her family is very close, even though she and her sisters do not spend a great deal of time in each other’s company. Although the mother would clearly be in much closer proximity to her sisters if living in Suburb D than living in Suburb A, I would not anticipate that she would see them more often than a couple of times a year or perhaps even only once a year.
154It must be remembered that the six months the mother spent in Country A were exceptionally busy for her as she completed her degree, undertook her 14-week placement, and made all the arrangements for C to settle in to his new school and locale. Her focus clearly had to be on herself and C, and it is over the coming years that she will have the opportunity to resume some of the friendships and associations with more distant relatives which she mentioned as being one benefit of her going home to Country A.4 However, even had none of these existed, or been mentioned by her as part of the reason for wanting to go home, the single most important part of her plan was to give C the chance to get to know his grandparents better, which undoubtedly is what has occurred, and will continue to occur if relocation is permitted. He will also have much greater opportunity to spend time with the father’s family, including C’s invalid grandmother, whose potential importance for C cannot be as easily discounted as the father’s comments suggested.
155The father was scathing in his cross-examination of the mother during the 2017 part of the trial for having earlier based her case on the availability of support services at C’s school and in the community, but then not having accessed them during the trial period. He claimed in his most recent affidavit that C “has not received any learning support, or assistance in class, to assist him with coping with his ADHD or his [developmental condition]”.5 He also said C has not used the laptop that the school has agreed to him using in class, and that C told him that he does not use his laptop because he is scared it will get broken.6 Although the father’s information was correct about the laptop (which has not yet been fitted by the school with special software they have said it needs), he was not correct in saying that C had not received any learning support.
156The evidence the father himself adduced indicated that C has already been moved from his initial English class to a “Progress Group, which is a smaller group with students who need more support with improving their literacy and English skills”, where he was “working hard” and had “good support”. C has also been given a different program than other boys in his Physical Education class, which would be very important for C, as he has struggled with sporting activity in the past. The French teacher said that C does not appear to need any extra help; the history teacher commented that C does “not need a huge amount of additional support in lessons”; the music teacher said he “rarely needs additional support from me”; and the computer science teacher noted “all in all very positive”. I do not see what more the mother should or could have done in accessing support for C. As for accessing supports in the community, the mother’s point in her earlier evidence was that these were more readily available in Suburb D than in Suburb A, and I am not satisfied that she was wrong in saying so. It is also very early days, given the mother was in Country A for only six months during which time C seemed to come along in leaps and bounds, without the need for more support.
157Like so many ‘relocation cases’, this one has not been easy to decide. There are undoubted advantages to C of having both parents living nearby so they can both continue to be a constant part of his life, which is particularly important in this case because the parents have different parenting skills and each has a lot to offer C. The father is aware of how important it would be for him to live near C. He knows that is what C would want too. But oddly, the law does not contemplate compelling a parent to move to a location where they do not wish to live, whereas it readily contemplates effectively preventing a parent from moving to the place where they do wish to live. I must therefore make my decision knowing that it could well have the effect of separating C from a much loved and good parent for the next few years.
158Having considered all of the matters discussed above, but taking particular note of C’s strongly expressed wish, and the great benefits to him and his mother of living in closer proximity to family, I have concluded that the mother should be permitted to relocate.
Orders
159The orders I made last week are replicated at the end of these reasons. Many of the less significant orders were not contentious. I need make only a few additional observations about some of the orders.
160The father did not put forward proposals about the time he should spend with C if the relocation was permitted. I sincerely hope he will change his mind about staying in Australia, and will return to Country A to live near the mother and C. I note that C told Mrs A that he would feel “much better” if this occurred, but that he did not think his father would go because “he doesn’t like [Country A] very much”.
161As I have had to take the father’s word at face value about remaining in Australia, I have not made any orders about special occasions such as Christmas, Easter and birthdays, but I would expect the mother to agree to an appropriate sharing of these if the father is in Country A at the time. The school break at Christmas is hardly long enough to make a trip back to Australia worthwhile, but if this can be accommodated within the holiday time, then it should occur, at the father’s expense. Ideally, by one means or another, the parties will agree to an arrangement where C spends each alternate Christmas with the father (and his family if he is visiting Country A). This could start in 2017, as C spent last Christmas with his mother and her family.
162I have ordered continuation of C’s therapy with Mrs A for six months, as she felt this may be beneficial for him, and it will provide the opportunity for the “planned closure to the therapeutic relationship” which Mrs A recommended. I am confident that thereafter, the mother will access support for C if she determines there is an ongoing need. In this context, I note that the educational psychologist who saw C in March 2015 recommended that he “continue to access external support to ensure his emotional wellbeing”.
163In the event that the relocation was permitted, the father sought an order that funds be placed in a trust account to ensure compliance with the mother’s proposal that she meet the costs of one trip per annum for C to return to Australia. It was not suggested to the mother in cross-examination that she could not afford to pay for C to come back to Australia each year, nor was it suggested to her in cross-examination, or to me in submissions, that she would be unlikely to comply with an order requiring her to do so. I did not consider it necessary to make an order providing security for the mother to honour her promise.
164I have also not made an order giving permission for the parties to provide a copy of my reasons to Mrs A, Dr L or any other professional. Such an order was not sought, but I wish to make it clear that the court’s permission is not required for this to occur. In my view, these reasons should be provided to Mrs A, and to any other professional that either parent considers would benefit from knowing more of C’s background.
165The orders I made last Friday were in the following terms:
1.Subject to Order 2, [MS MONTGOMERY], (“the mother”) and [MR MONTGOMERY] (“the father”) have equal shared parental responsibility for [C], born [in] 2005 (“[C]”).
2.The mother have sole parental responsibility for [C’s] health and education provided that, where practicable, the mother shall consult with the father in relation to such matters prior to making any decision concerning [C].
3.[C] live with the mother, and the mother have leave to relocate with [C] to [Country A], provided that the mother shall not remove [C] from Australia prior to 5.00 pm on 18 January 2017.
4.During each long [Country A] summer school vacation, [C] shall spend time with the father for six weeks (or such lesser time as the father may determine), such time to be exercised in such place as the father shall determine.
5.If the father elects to spend time pursuant to Order 4 in Western Australia, the mother shall meet the costs of [C] travelling economy class from [Country A] to Perth (and in 2017 shall meet her own costs of accompanying [C]).
6.In the event that the father is visiting [Country A], he shall spend liberal time with [C] as agreed between the father and the mother, subject to the father giving reasonable notice of his intention to visit. (The Court notes the mother’s intention to facilitate [C] spending some time during holidays with the father’s family in [Suburb O].)
7.The father be at liberty to communicate with [C] by Skype or other electronic means not less than twice each week (the length of such communication to be subject to [C’s] wishes), and the mother shall facilitate such communication.
8.When [C] is spending time with the father, the mother be at liberty to communicate with [C] by Skype or other electronic means not less than twice each week (the length of such communication to be subject to [C’s] wishes), and the father shall facilitate such communication.
9.The mother and father shall each keep the other promptly informed as to any emergency, illness or serious medical condition in relation to [C].
10.The mother and father shall be at liberty to obtain copies of [C’s] school and healthcare records, and to discuss [C’s] education and health with his medical practitioners, therapists and teachers, and each parent shall sign any necessary authority to ensure information concerning [C’s] education and health may be fully disclosed and discussed with both parents.
11.The mother and father shall keep each other advised at all times of their current address, telephone numbers and email addresses, and if practicable, give at least seven days’ notice of their intention to change those details.
12.The mother and father shall each ensure that [C] continues to consult with [Mrs A] for a period of six months, at such frequency as [Mrs A] shall determine, with the costs to be met equally by the mother and the father.
13.Subject to any agreement to the contrary between the mother and the father, the father shall spend time with [C] up until 24 hours’ prior to mother’s proposed departure to [Country A] pursuant to Order 3.
13.There be liberty to apply on short notice in relation to the implementation of these orders.
14.The proceedings otherwise be dismissed.
I certify that the preceding [165] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
______________________________________
1 In these reasons, I refer to them collectively as [C’s] “grandparents”, as the grandmother’s husband has been [C’s] only grandfather figure.
2 In his first trial affidavit, the father said Mrs A “knows [C] exceptionally well and is also truely [sic] independent of either parent”.
3 The father’s approach was, with respect to him, disingenuous. He appeared to have forgotten that in his first trial affidavit at [110], he relied upon C’s statement as being the truth.
4 In his first trial affidavit at [118], the father acknowledged that the mother had kept in contact with two friends in Country A, but commented that they lived more than 400 km away from where the mother would be living. Nevertheless, the mother met up with one of these friends three times while in Country A for the trial period.
5 In his first trial affidavit at [111] the father said, “[C] has not got any ‘special needs’, he does not have, or need, any special support services or any special aids to assist him at school in class or in any other situation”.
6 The educational psychologist who assessed C in March 2015 at [Suburb A] recommended that C be allowed to use an iPad or computer where possible to reduce the amount of handwriting required in class, but there was no evidence that this ever occurred.
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