O and O
[2005] FCWA 14
•28 JANUARY 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: O and O [2005] FCWA 14
CORAM : MARTIN J
HEARD : 20 & 21 JANUARY 2005
DELIVERED : 28 JANUARY 2005
PUBLISHED : 10 FEBRUARY 2005
FILE NO/S : PT 280 of 2003
BETWEEN : O Applicant
AND O
Respondent /Father
Catchwords:
Residence - relocation - to country town
Residence - shared residence
Capacity - post-traumatic stress syndrome
Contact - practical difficulties
Legislation:
Family Law Act 1975 - s60b, s65E and s68F
Category: Not Reportable
Representation:
Counsel:
Applicant : Mr Mather
Respondent : Ms Brownlie
Solicitors:
Applicant : Legal Aid WA
Respondent : William R Allen & Associates
Case(s) referred to in judgment(s):
A v A
Relocation Approach (2000) FLC 93-035
D v SV (2003) FLC 93-137
U v U (2002) FLC 93-112
1The issues for determination were the parties' respective applications for parenting orders, seeking to vary orders made, by consent, on 20 March 2003, which provide for the parties to have shared residence of their only child, a boy aged six years.
2The parties' respective positions by the conclusion of the trial were as set out in Minutes of Proposed Orders filed immediately following the trial.
3In summary, the applicant mother sought to move from the suburbs to a country town, and that the child reside with her and have alternate weekend and school holiday contact with the respondent father.
4The respondent father's application was that, as a first preference (although included last in his final minute), the mother be restrained by injunction from changing the child's place of residence from the Perth metropolitan area, and that the week about shared residence arrangement continue. In the alternative, in the event the mother proceeds with her proposed move to the country town, the child should reside with him, with the mother having contact on two out of three weekends, all mid year school holidays and half the Christmas holidays.
5As a last resort, in the event that the child is to reside with the mother in the country town, he proposed that he have contact each weekend, but that the mother be responsible for all transportation of the child for contact purposes.
6Although in his Papers for the Judge he had said he may move to the country town himself, if necessary, this idea had been abandoned at the trial.
7As it was preferab le for orders to be made prior to the commencement of the 2005 school year, on 28 January 2005, I made the following orders:-
1. All previous parenting orders be discharged.
2. The child, [PO], born October 1998, reside with the applicant and she have responsibility for his day-to-day care, welfare and development while the child is residing with her.
3. The respondent be responsible for the child's day to day care, welfare and development while the child is in his care.
4. The applicant and respondent have joint responsibility for the child’s long-term care, welfare and development.
(Page 4 )
5. The respondent have contact with the child :
(a) during school terms, on two out of three weekends from 5:00pm Friday to 5:30pm Sunday, extending to 5:30pm Monday on a public holiday, commencing Friday, 4 February 2005;
(b) for nine days of mid year school holiday periods commencing on the day the school holidays begin, but to include Easter in each alternate year that Easter falls during school holidays;
(c) during the December/January school holiday period each year from 12:00 noon on Christmas Day, and concluding at 5:30pm on 20 January;
(d) from 5:00pm on the Thursday before Easter to
5:00pm Easter Monday in 2005 and each alternate year that Easter does not fall during school holidays;
(e) on the Father’s Day weekend each year from
5:00pm Friday to 5:30pm Sunday;
(f) reasonable telephone contact;
(g) as otherwise agreed between the parties from time to time.
6. The applicant have telephone contact with the child on at least two occasions each week of holiday contact.
7. Contact under paragraph 5 be suspended:
(a) over Easter if it is not the respondent's Easter contact year;
(b) on the weekend before Father’s Day, if Father’s
Day does not fall on a usual contact weekend;
(c) on the Mother’s Day weekend, if that weekend otherwise falls on a contact weekend, in which case the respondent have contact on the weekend before the Mother’s Day weekend that he would otherwise not have contact from 5.00pm Friday to 5:30pm Sunday.
8. To facilitate contact, subject to any further agreement between the parties:-
(a) the respondent collect the child from McDonald 's
Restaurant, Armadale, or any other place to be
| (Page 5 ) agreed in Armadale, at the commencement of | |
| contact; | |
| (b) the applicant collect the child from McDonald's Restaurant, Armadale or any other place to be agreed in Armadale, at the conclusion of contact. | |
| 9. | In the event that the applicant does not move to the country town, or the respondent does move to the country town and |
| in any event, there be liberty to apply for further definition of contact. | |
| 10. | Neither party be permitted to remove the child from Western Australia without the written consent of the other |
| party. | |
| 11. | The parties and [Mr H] attend post-trial counselling within |
| the next three weeks. | |
| 12. | The applications otherwise be dismissed. |
| 8 | As foreshadowed, I now publish reasons for decision. |
Background to the proceedings
9The respondent father is 35 years of age and engaged in home duties. The applicant mother is 31 years old and also engaged in home duties and doing bookkeeping and office work for her present partner's business. The parties commenced living together in October 1995, in [the Eastern states], and moved to Western Australia in January 1996. They married in August 1996, in [the Eastern states]. The child, the subject of the proceedings, [PO] was born in October 1998. The parties finally separated in October
2002.
10 In July 2003, the applicant mother moved into the home of her present partner, [Mr H], a roof repairer and restorer, on a share basis. She and the son lived at the rear of the property for a time. The couple then commenced a relationship and regard themselves as living in a de facto relationship since 24 April 2004.
11 [MR H] has a son, b, eight years, who lives with him, and the applicant. [B] has irregular contact with his mother. He has cared for [B] since 1998. [MR H] also has another child, [LW] aged one year, who lives with his mother. He sees [LW] by arrangement with the child's mother for several hours, usually once per week. He pays minimal child support, but has provided some funds to [LW]'s mother on request.
(Page 6 )
12 Prior to marriage, the respondent was in the Regular Army for a time. During the marriage, the respondent was in the Army Reserves from which he was medically discharged in 1996. On his own evidence, the respondent subsequently had difficulties with employment - "I would usually get into an argument with my employer and get sacked or end up walking off the jo b". In 1997, he suffered an accident at work while working as a welder, injuring his knee and he has not worked outside the home subsequently. He has had four knee operations.
13 The applicant worked in sales and marketing in the tourism industry and later, as an accounts manager. After the respondent ceased employment, the parties planned to have a child, as the respondent would be available to care for him. The applicant took three month's maternity leave, but otherwise, apart from occasions when the respondent was hospitalised, or when the child was in day care or being cared for by friends, the respondent cared for the child during the applicant's working hours.
14 There is an issue between the parties as to the extent of the father's care of the child. I accept that the father was actively involved in the care of the child, and more than the mother at that time. However, I have concerns about the quality of his care then as he had serious alcohol and mental health problems. He has said the additional stress of caring for the child caused his emotional problems to surface.
15 Since 1998/1999, the father has been in receipt of Defence Department compensation payments, initially, because his knee had first been injured while he was in the army.
16 It is not in dispute that during the marriage there have been several incidents of violence in the home.
17 In mid 2000, the respond ent commenced seeing his present psychiatrist, Dr Darryl Bassett, whom he presently sees about every three to four weeks, and, in December 2000, was diagnosed with post-traumatic stress disorder and depression. He had witnessed horrendous events in his army service in Cambodia and Australia. However, his military service was very important to him, and his psychiatrist has said it became an integral part of his identity.
18 Since then, the respondent has been an in-patient at the Clinic on several occasio ns and has attended residential alcohol management programmes there. He has attended an anger management course. He also attends the Vietnam Veterans'
Counselling Service very frequently, usually once or twice per week.
19 In early 2001, [KS] moved into the home to look after the child while the applicant was working and the respondent was undergoing his treatment, including residence at the Clinic for several weeks from February 2001, and three weeks from mid May
2001, for an alcohol programme. [KS] left the home after an
incident in December 2001, when the applicant stayed away from home overnight and the respondent damaged the home and threw the applicant's and [KS]'s clothing outside. The respondent claims [KS] had a drug pro blem and he had to look after her.
20 The child was then returned to day care during the applicant's working hours.
21 On 31 December 2001, the respondent attempted to commit suicide and was admitted to the Clinic, where he remained as an in - patient until 16 February 2002. He resumed the day time care of [PO], but the child was returned to day time child care in August
2002.
22 There had been two minor separations when the mother had left the home for a few days, with [PO], as a result of violent or aggressive incidents. On 18 October 2002, the respondent assaulted the applicant by putting her in a headlock and causing a neck injury and she and [KS] then finally left the home with the child. The respondent was charged with assault occasioning bodily harm and was eventually convicted after pleading guilty to the charge. He was placed on an intensive supervision order for two years, being required to do 200 hours community service, which he has completed.
23 On 2 November 2002, the respondent had said he was close to "killing us all", and she obtained a telephone violence restraining order. On 5 November 2002, the applicant obtained an interim violence restraining order in the Perth Court of Petty Sessions in favour of herself and the child against the respondent, but subsequently withdrew the application. The respondent did not see [PO] until between 18 and 30 December, when the applicant allowed him to have [PO] as his parents were visiting from [the Eastern states].
24 On 30 December 2002, the parties signed an agreement providing that, upon expiry of the mother's current rental agreement on 25 April 2003, the mother would either resume full- time residence at the former matrimonial home, or return the child
to the full-time custody of the respondent. The father was to "refrain from any verbal attempt to coerce the mother to resume full-time residence at the home", the mother says because she was concerned about what the respondent would do and she wanted to get him "off her back". I accept she probably had no intention of complying with the agreement, and appropriately so.
25 On 7 January 2003, the respondent held the applicant in a room against her will, the applicant says until she agreed to attend marriage counselling with the respondent or give him full residence of the child. The parties underwent some counselling and mediation, with the assistance of the respondent's parents. The respondent threatened to go to the child's day care centre and take off with him.
26 On 13 January 2003, the applicant obtained an interim violence restraining order against the respondent in the Court of Petty Sessions which was made final on 20 February 2003, and expires on 20 February 2005.
27 Proceedings in this Court commenced on 17 January 2003, when the applicant filed an applicatio n seeking that she have residence of the child, with reasonable contact, after a period of supervised contact, with his father.
28 On 31 January 2003, the respondent filed a response proposing that the child reside with him, with the mother to have reasonable contact with the child. He also instituted proceedings for property settlement.
29 On that date, it was ordered, until further order, that the applicant have interim residence of the child with reasonable supervised contact to the respondent.
30 The respondent had no contact with [PO] from 10 January
2003 to 1 February 2003, a two day contact period on 1 and 2
February 2003, and then no contact until 20 March 2003. The respondent spent two weeks at the Clinic.
31 In February 2003, the respondent was charged with two breaches of the applicant's violence restraining order by contacting the applicant by telephone.
32 On 20 March 2003, following court counselling, orders were made, by consent, that, until further order:-
1. The parties have joint responsibility for the long term care, welfare and development of the child of the marriage.
2. Subject to the orders herein, the husband and wife have shared residence of the child on a week about basis with the changeover to be at 3:00 pm each Friday provided that the husband continues to attend Vietnam Veterans Counselling Service (VVCS) and his psychiatrist Doctor Darryl Bassett as recommended by VVCS and Doctor Bassett.
3. That the parties will negotiate and agree shared residence arrangements during the Easter and Christmas holiday periods.
4. During odd years, the child will reside with the wife from
3:00 pm Christmas Eve to 11:00 am Christmas Day, and
from 11:00 am Christmas Day to 5:00 pm boxing Day with the husband, and during even years, the child will reside with the husband from 3:00 pm Christmas Eve to 11:00 am Christmas Day, and from 11:00 am Christmas Day to 5:00 pm boxing Day with the wife.
5. The child will reside on Mother's Day and Father's Day with the respective parent from 3:00 pm the evening prior to 3:00 pm on the day on each such occasion.
6. During each week, the child be at liberty to telephone the non-resident parent.
7. That neither party remove the child from Western Australia without the written consent of the other party or court order.
33 These were, substantially, the orders in force at the time of trial.
34 At that time, the mother was not legally represented until she was granted Legal Aid in late 2003. Her evidence is she agreed to this arrangement because she believed it was in the child's best interests to have frequent contact with his father, but she was also scared of what the respondent would do if she did not agree. The conference was adjourned to September 2003, it being noted that agreement may be reached on a final basis.
35 The proceedings were included in the defended list following a conciliation conference on 2 April 2003, following which consent orders were made pursuant to which the issue of property settlement was resolved, partly on the basis that the former matrimonial home be transferred to the respondent.
36 Between 26 April and 2 May 2003, the applicant took the child to Darwin during her residence period without the respondent's formal consent.
37 In July 2003, the applicant resigned from her employment, partly on the advice of her psychologist as "the mental anguish of the whole situation was having an effect on my health" and has not subsequently been employed outside the home. Her employers could not offer her a position which coincided with the share care arrangements.
38 On 21 July 2003, the applicant moved to the home of [Mr H], whom she had met as he lived next door to a friend. She and [PO] occupied the back of the house rent free, and in return, she looked after [B] in the mornings and took him to school.
39 On 1 September 2003, the applicant's lawyer wrote to the respondent's lawyer expressing concern about the workab ility of shared residence.
40 On 9 September 2003, further orders were made at a conciliation conference, as to changeover, which was to occur from the road verge outside the parties' homes. As soon as practicable, both parties were to enrol, and take part in, the Mums & Dad's Forever programme at Anglicare to completion. The conciliation conference was otherwise adjourned with liberty to relist.
41 On 5 December 2003, the child informed the applicant the respondent had got drunk, yelled at him, put his hand around his throat and pushed him onto the lounge, so the applicant refused to hand over the child to the respondent on the next due date, being 12
December 2003. Letters were exchanged between the parties' solicitors.
42 On 24 December 2003, the child admitted to the applicant he had lied about the respondent assaulting him and said he had said it because he did not want to be left at the respondent's neighbour's home when his father went to fire brigade duty. The normal arrangements then recommenced from Christmas Day.
43 On 15 January 2004, directions were made for a pre-trial conference. The respondent spent one week in the Clinic.
44 On 2 February 2004, the child started pre-primary school at the local primary school.
45 In late April 2004, there were problems because [PO] required some dental treatment. On 21 April 2004, the child was at the respondent's home and complained of a toothache. The father rang the applicant and said he did not have the money to take him to a dentist. The mother did not provide her private health insurance number (the cover had apparently then lapsed), but she told the respondent she would arrange payment and later, she would get him to a dentist. The respondent could not get into a dentist and did not accept the offer of payment. On 23 April 2004, the child was collected by the mother, and she obtained an emergency appointment the next day. [PO] subsequently had treatment by a paedontist who admitted him to Princess Margaret Hospital for the best part of a day as two front teeth were removed because of an abscess.
46 At about this time, the applicant and [Mr H] commenced their de facto relationship.
47 On Anzac Day 2004, there had been an incident at the local RSL Club where the respondent had been abusive to other members, while under the influence of alcohol, and had removed a plaque from the wall. The applicant not knowing (or her solicitor not then knowing), about this incident, on 27 April 2004, her solicitor wrote to the respondent's solicitor advising she was prepared to agree to final orders for equal shared residence as the child seemed happy.
48 On 30 April 2004, the applicant refused to hand over the child to the respondent, her evidence being she had to attend Princess Margaret Hospital with the child on Monday, 3 May, for a post- operative check-up and because of concerns about the respondent.
49 The applicant was, on 4 May 2004, prepared to permit the shared residence arrangement to resume, when the respondent collected the child after school and the arrangements were working reasonably well. The respondent had threatened to apply for a recovery order.
50 On 3 May 2004, there was to be a pre-trial conference, which was adjourned administratively, although, unfortunately, the pre- trial conference note indicates that counsel for both parties attended the conference. The matter then appears to have fallen into abeyance, to some extent, but was listed for trial at a further pre- trial conference on 21 September 2004.
51 On 13 May 2004, the respondent filed a contravention application against the applicant, which was listed for hearing on
(Page 12)
15 June 2004. The respondent agreed that his application could be dismissed after the parties attended counselling. However, orders were made, by consent, permitting the parties to take the child to [the Eastern states] on holiday during the December 2004/January
2005 school holidays. Both the parties' families reside in [the Eastern states], and the holiday arrangements apparently proceeded very satisfactorily, the child spending substantial periods of time with each parent and with each parent's family during the holidays.
52 On 15 August 2004, having drunk seven cans of beer (being all that was left in the refrigerator), the respondent cut his wrist with a knife. He immediately changed his mind about committing suicide, and telephoned his counsellor seeking assistance. He was transported to the local hospital, and then to the Hospital where he stayed the night. He was discharged the next day.
53 On 28 September 2004, he drank about four cans of beer and took four or five Temazepam tablets. He called for help and woke up in the Hospital. He was then transferred to the Clinic where he remained for three weeks and two days.
54 Of considerable concern is that the respondent did not inform the applicant, or her solicitor, of these recent events, although the applicant was aware that the respondent had been an in-patient in the Clinic recently, since he was unab le to care for the child as usual. The applicant found out about the recent incidents of self harm through subpoenaed material only a few days prior to trial and, as a result, leave was granted to the respondent to file a further affidavit at the commencement of the trial setting out the events.
55 At the time of trial, weekly handover was continuing to take place at 3:00 pm at the child's school, so the parties have not been coming into contact with each other at handover. During school holidays, handover takes place in accordance with the court orders of 9 September 2003.
Proposals for the care of the child
56 The applicant proposes to shortly move to live in a country town. The home in the suburbs, in which the applicant is presently residing is owned by [Mr H], subject to a mortgage. It has been sold, with settlement due to occur at the end of January 2005. [Mr H] has purchased a block of land in a country town on which he shortly intends to construct a residence. The b lock is three acres, but is in the townsite. It has been purchased for $40,000 and is in [Mr H]'s name.
57 Until the home is constructed, the applicant and [Mr H] propose to live in rental accommodation. A four bedroom, two bathroom home in the country town has been leased for a period of
12 months, at a rental of $130 per week. At the time of trial, [Mr
H] and the mother's furniture was partly situated in both homes.
58 The applicant is not now employed outside the home, although she assists [Mr H] in his business, running a home office and doing the bookkeeping. [Mr H] has been paying her $140 per week gross for her work. The applicant also receives $124 per fortnight family assistance benefit from Centrelink.
59 Although at the time of filing her trial affidavit in September
2004, the applicant proposed that the child attend a Catholic school, since then, she and [Mr H] have firmed up their plans to move to the country town, and there is apparently no Catholic primary school there. The child has therefore been enrolled in the local school where he will be in Year 1. A friend of the mother moved to the same town with her children in October 2004, so the children do know some children in that town already.
60 The mother intends to become involved in school activities, as she has been in Perth.
61 Although the mother and [Mr H] have only been involved in a relationship since April 2004, they lived together for a few months prior to then and I have no reason to doubt the relationship is likely to continue. [Mr H] presented as a bit of a rough diamond and does have a minor criminal record from prior to [B]'s birth. However, he is obviously a committed father.
62 [B] will be going into Year 4 this year. In early 2004, he was diagnosed with ADHD. A psychologist has been involved in a behavioural management programme, but in August 2004, b commenced medication for the ADHD. [B]'s mother, [Mr H]'s former partner, has alcohol and mental health problems, and has fairly intermittent contact with [B] which may have contributed to his pro blems.
63 At the time of filing the applicant's trial affidavit, the Child Support Assessment was $166.92 per month, which the respondent was to pay to the applicant. However, I was informed that this figure has now been reduced to $250 per annum from 1 December
2004. No doubt, this will now be further adjusted. The respondent has made a minor contribution to the child's school fees, which have been $17 per fortnight. At trial, he was $2,700 in arrears with child support payments.
64 As to the applicant's reasons for relocation, [Mr H]'s evidence is he had been planning to move to a country area within 100 kilometres of Perth, prior to the de facto relationship with the applicant commencing. His reasons for moving were partly financial, because he considered that it would be desirable to purchase a property at a more modest price, fairly close to Perth, but in a cheaper country area. The country town had been selected as being fairly convenient, with moderately priced properties. There is more space, easy access to recreational activities, including horse riding and cycling, a small community, smaller class sizes, and it is still reasonably close to Perth.
65 [Mr H]'s plans are to continue to conduct his business from the country town doing a little country work, but mainly commuting to the metropolitan area, perhaps twice each week. He engages sub-contractors to do the actual roofing work. In addition, he considers it is desirable for him, and the family, to live in a rural area, which he considers to be safer than the suburban area, and with more open space and freedom for [B] and [PO]. He previously had a country home before moving to the suburbs.
66 The respondent father proposes that the child live with him in the former matrimonial home, which obviously provides suitable accommodation for the child. He proposes that [PO] continue to attend the local primary school, which he has attended since kindergarten and where he has many friends. The home is five minute's drive from the primary school.
67 The respondent proposes to supervise [PI] on a full-time basis.
68 Neither party has any family in Western Australia, and both are likely to visit their families in [the Eastern states] in the future. This is unlikely to be a problem as the arrangements went well this past Christmas holiday.
Relocation issues - the legal position
69 There have been a number of significant cases in recent years, as to the principles to be applied in “relocation” cases.
70 This issue was considered by the Full Court of the Family
Court of Australia in A v A : Relocation Approach (2000) FLC 93-
035, in which a mother sought to relocate to Portugal. The Full Court (Nicholson CJ, Ellis and Coleman JJ) summarised the position as follows:
(Page 15)
“108. … In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
•The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
•A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
•It is necessary for a court to evaluate each of the proposals advanced by the parties.
•A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
•The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
•It is necessary to follow the legislative directions espoused in s 60b and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.
•The object and principles of s 60b provide guidance to a court’s obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
•It is to be expected that reasons for decision will display three stages of analysis and :
1. A court will identify the relevant competing proposals;
2. For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thin[KS] fit having regard to s 60b;
(Page 16)
• As one, but only one, of the matters considered under s
68F(2), the reasons for the proposed relocation as they bear
upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. …
•The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
•Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitab le implications they have for the child’s contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
•The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
•In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party’s right to freedom of movement:
•In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s
92 of the Constitution, where applicable.
•In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a
(Page 17)
regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitab le arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
•In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60b and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
•In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”
71 The High Court of Australia further considered the issue of relocation in U v U (2002) FLC 93-112, which was an appeal from a decision of the Full Court of the Family Court of Australia, which had refused to make orders permitting the appellant mother to relocate residence with her child from Australia to India.
72 The relevance of the decision in U v U (supra) in these circumstances, is that it is open to me to restrain the mother from relocating to the country, even if the father had not made an application for residence.
73 In D v SV (2003) FLC 93-137, the mother of three boys, aged
13, 11 and 9 years, had sought to move from Melbourne's eastern suburbs to a town near Geelong, a distance of about 115 kilometres. The children had previously had a substantially shared residence arrangement with their father. The mother had re- partnered, and her new partner, with whom she had resided for about 12 months prior to trial, had connections in the country town. The trial Judge had imposed a geographical limitation on the mother residing outside a 10 kilometre radius from the father's home. The Full Court allowed the appeal and made orders enabling the mother to move to the country town, with the father to have weekend contact on two out of every three weekends, as well as sharing school holidays. In summary, the Full Court said that the trial Judge needed to at least turn her mind to whether alternate arrangements could be made that would meet all the criteria needed to determine what was best for these children. In that case, the Full
(Page 18)
Court decided that the factors favouring the move clearly outweighed any factors against it.
74 Although it was not a ground of appeal, it had been raised with Counsel for the respondent, the issue of whether, in the context of a relatively short move, the relocation principles should apply. At p 78,282, the Full Court said:-
"37. … Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent's freedom of movement. The enquiry should be directed more at alternative contact or shared residence arrangements. …
39. The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.
40. Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children's lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the court".
75 Counsel for both parties accepted that, having regard to the fairly short distance involved, the principles in relocation cases were not as significant as they could have been to this case, and the statements of the Full Court in D v SV (supra) were relevant.
76 It is of relevance that while the proposed relocation in this case is not interstate or international, and that fairly frequent contact is practicable, it still means a substantial change in circumstances for the child.
77 It is now necessary to consider each of the relevant factors.
Relevant Factors
78 The object of Part 5 of the Family Law Act relating to children and the principles underlying it are set out in s60b of the Act.
“(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve
(Page 19)
their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests -
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.”
79 Pursuant to s65E of the Family Law Act 1975, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. In determining what is in a child’s best interests, the Court must consider the matters set out in s68F(2) of the Act.
80 As to any wishes expressed by the child, [PO] is only six years old, and it was accepted that his wishes would bear little weight. The mother said that the child has not expressed any particular wishes to her as to how he wishes to divide his time between his parents, but the respondent says that the child has informed him that he wishes to reside with his father.
81 As to the nature of the relationship of the child with each of his parents and with other persons, the child obviously has a close and loving relationship, and is bonded, with both his parents. The applicant claims that the child has a good relationship with [Mr H] and his son [B]. The respondent claims that the child complains to him about [B] and [Mr H] hitting him. [PO] has "fibbed" about these issues in the past, and I accept he has a reasonable relationship with [B] and [Mr H].
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82 The child has no extended family in Western Australia as the parties' families reside mainly in [the Eastern states]. There was no evidence to suggest he does not have a reasonable relationship with his family there. The applicant does not have a relationship with her father, the respondent claiming that the father has a history of sexual abuse. This issue was not canvassed at trial.
83 As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, or any other child or other person with whom he has been living, from his birth until the date of separation in October 2002, the child was used to being cared for by his father during the day, Monday to Friday, but some of his time was spent in day care or being looked after by a babysitter. After separation, the child had limited contact with his father until the making of the consent orders on 20 March 2003. Since then, the child has resided week about with each parent, except when the father has been hospitalised.
84 The child is therefore used to being separated from each parent for a week at a time. In the event that the child moves to the country town with his mother, at worst, the parties' proposals entail the child not seeing his father for a further five days each fortnight. I have no reason to believe that, having regard to his young age, the child will not adjust to the separation.
85 As to the practical difficulty and expense of the child having contact 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, the parties presently live quite close to each other and there have been no practical difficulties with changeovers, which have been occurring at the child's school.
86 I was informed that the country town is located 130 kilometres from Perth, and the suburb is approximately 30 kilometres from Perth. However, both locations are to the south of central Perth so the parties may only need to skirt Perth when travelling to and from each other's homes. Both parties have motor vehicles, but the father's evidence was that he simply cannot afford to pay for the cost of petrol for his vehicle which, if a round trip to the country was involved, would be at least $60 per round trip.
87 As to the capacity of each parent, or of any other person, to provide for the needs of the child, including his emotional and intellectual needs, I am satisfied that the mother is very capable of
providing for the child's physical, emotional and intellectual needs. She has been closely involved with the child's medical and dental care, with his pre-primary educational requirements during 2004, and with out of school activities such as swimming lessons and sports, and fostering the child's relationships with his friends. She has attended a psychologist for some time for counselling for family violence issues between July 2003 and September 2004. The counselling was arranged and paid for by the Vietnam Veteran's Counselling Service. She ceased counselling when she was advised it was no longer required.
88 The father is capable of caring for the child's physical needs, apart from during occasions that he has been hospitalised. Dr Bassett, the father's psychiatrist, has observed his behaviour as a father to be "appropriate, measured and balanced. He has exhib ited genuine concern for his son, genuine affection and a willingness to extend appropriate boundaries of discipline without harshness".
89 The respondent has had some difficulty in his dealings with others, for example, he threw a chair at a man at a meeting in February 2004, and there was the incident on Anzac Day 2004. The father has self-harmed on several occasions, including, before separation, when [PO] was in the home, and although more minor, there have been comparatively recent incidents. He has been quite clinically depressed at times.
90 The father has had serious alcohol problems in the past, but has had extensive treatment for this. His evidence is he limits his drinking to certain days, usually Wednesdays, Fridays and alternate Saturdays, when he may have up to eight or nine cans of full strength beer. However, he drank much more than this on Anzac Day 2004.
91 In July 2004, Dr Bassett, wrote to the father's general practitioner, Dr Bassett noting that the father was "more significantly depressed than he had been for some time" and that "his alcohol consumption has tended to climb again".
92 On 22 September 2004, he noted "His tendency to become explosive at times is a concern, but he is containing his alcohol consumption and is more socially active".
93 Dr Bassett's evidence is that he was not particularly concerned about the incidents in August and September 2004, being indicative of constructive developments and not being serious suicide attempts. He said "There were times when the wife would ring and say "Look, he's just drunk a dozen bottles of beer. He's cut his
wrists. He's tried to jump through plate glass …". He's really come a long long way". This really just reinforced to me how bad the position was prior to separation.
94 Dr Bassett's evidence is that the father's mental health is improving and that he believes he is fit to continue with extensive parenting. There is no reason to restrict his contact with [PO]. He felt that the present arrangement of equal shared care is preferable to both alternatives. There is only a small risk of return to alcohol abuse and violence. The respondent's present medication is to treat depression and anxiety, and he also sometimes uses sleeping pills. He has a good insight into his state of mental health, and his last four hospital admissions have been at his behest. It is expected the respondent will require psychiatric treatment for at least one to two years and probably longer.
95 The respondent has had difficulty in coping with the stress of the proceedings and I was concerned about the possible impact on him of my decision. However, I was reassured by Dr Bassett's evidence in this regard, and the fact that the father has strong counselling support availab le to him.
96 I accept that, generally, the respondent is capable of providing adequately for the child's emotional and intellectual needs, and that since he has had sole responsibility for the child for a week at a time, he has properly cared for him. His evidence is he avoids "heavy" counselling in weeks when he has [PO], meaning counselling dealing with the most difficult issues. However, it is apparent that, overall, the mother is more capable of dealing with the child's needs, particularly his emotional needs, because of her better mental health.
97 As to the child’s maturity, sex and background, and any other characteristics of the child the Court thinks are relevant, despite the ill health of his father, and the conflict in which his family have been involved, the evidence is that [PO] is a normal, well adjusted and happy child, with no particular medical problems. He has had dental problems which have eventually been appropriately dealt with.
98 As to the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill treatment, violence or other behaviour, either directly or indirectly, I accept that in the past the child has been exposed to violence by his father. However, it is
unlikely to occur again, unless the father's mental health deteriorates.
99 The father says that the child may be at risk from the mother's partner, as the child has complained to his father that [Mr H] and his son have hit him. [Mr H]'s evidence is that he smacked the child on two occasions some months ago, and it is difficult in his household when his own son and [PO] are playing together and both are naughty. [B] has had some behavioural problems, and being older and, presumably bigger, it is possible that he has been hit by [B]. However, there was certainly no evidence of any injuries, and while I do not approve of physical discipline being used in any circumstances, I accept that the children are not at risk of abuse or ill treatment in any way while in the mother's home, partly because the mother would not allow it.
100 As to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, I accept that both parents are committed and caring parents.
101 The father has been criticised for threatening he could disappear with the child. This was inappropriate, even if it was said in the heat of the moment.
102 Although the mother was not overly critical, the father's attitude to child support, and financial support of the child, has not been over-generous, but I appreciate he has had legal fees to pay.
103 The mother criticised the father's lack of ability to communicate with her about issues concerning the child. The father has been nervous about the VRO, which expires shortly, but has obviously been reluctant to deal with the mother. His position was that neither party should interfere with the other parties' care of the child during their time with him. For example, he did not want the mother to be a parent-helper at the child's school during his week with [PO], ostensibly so as not to cause the child confusion.
104 I would expect both parties, because of their history, to have difficulties in dealing wit h each other, and, hopefully, time, or an improvement in the father's mental health and the conclusion of these proceedings, will gradually lead to an easing of the problems, which would be in [PO]'s interests.
105 The father has said that the mother's focus is on [Mr H], [B] and the business as well as [PO]. I, in fact, consider this a beneficial situation for the child as providing a balanced family
background. I certainly have more doubts about the respondent's narrow focus, perhaps necessarily, on his problems, and on [PO].
106 As to family violence involving the child, or a member of the child’s family, or any family violence order, there is no doubt that there has been family violence, in this family, specifically, particularly when under the influence of alcohol, the father physically and verbally assaulted the mother, including:-
•In April 1999, he damaged the mother's work car with a crowbar and assaulted her by grabbing her around the neck.
•In December 2001, he smashed the mother's bedroom furniture, broke a telephone and computer monitor and threw the mother's clothing outside.
•At other times, he has placed the mother in headlocks, pushing her against walls, abused her and threatened to punch her.
•On 18 October 2002, the father put the mother in a headlock and assaulted [KS] who was then a carer for [[PO]. The assaults occurred in front of the child. The father was convicted of a charge of assault on the mother, occasioning bodily harm and placed on an intensive supervision order for two years.
•On 2 November 2002, the father held the mother in his home against her will, and made veiled threats to harm her, [PO] and himself with a knife. [PO] was with the mother at the time.
•On 7 January 2003, the father held the mother in his home against her will until she agreed to attend marriage counselling.
107 The father's affidavit evidence was he felt that the wife was not "there" for him at the time. His counsellor had made it very clear about things that the wife needed to do to prevent an aggravation of his PTSS. He used to yell and shout, but did "not hit her. However, I am sure I made her scared by my behaviour. When I get angry my adrenaline levels rise and this sometimes causes flashbacks. I then have problems controlling my anger and have acted inappropriately".
| 108 | As to any family violence orders, there is a famil | y violence |
| order in force against the father in the mother's favour. expire in February 2005. | This will |
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109 As to whether it would be preferab le to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, I do not accept any order I make is more or less likely to lead to further proceedings.
Conclusion
110 The issue to be determined is whether it is in the best interests of the child to continue to reside with both parents on a week-about basis, with the mother being restrained from leaving the suburban area, or whether it is in his best interests to reside predominantly with his father, having weekend contact with his mother, or predominantly with his mother in the country town, having weekend contact with his father. The issue is not just whether the father is an appropriate caregiver for the child, or whether the child is safe with him. It is a matter of comparing the parties' respective proposals overall, having regard to the history of the family, and the relevant factors to which I have referred at some length. The issue is also not about what is best for either party, even though it is apparent that it is good for the father's mental health for the child to be with him.
111 Both parties are clearly usually capable of taking care of the child's day to day needs and there is no doubt that [PO] has a very good relationship with both his parents.
112 While the respondent has a good insight into when his mental health is deteriorating, and has been appropriately able to seek help, which limits the possibility of any risk to [PO]'s welfare, and while the respondent has clearly made enormous progress in dealing with his depression, alcohol problems and anger management problems, and post-traumatic stress disorder, and deserves extensive credit for his commitment to improving his health, the fact remains that the mother is much more capable of meeting all the child's needs. There have been many occasions in the past, where the respondent has not been ab le to look after himself, and even if the child were residing with him, he would probably have to spend additional periods with his mother if the respondent's health deteriorated. In addition, it is clear, for his future mental health, that the respondent needs time, during the working week, with [PO] not in his care, so he can continue to undertake "heavy" counselling.
113 While I have considerable sympathy for the respondent's difficulties, both parties, in very different ways, went through
horrendous times prior to separation, the mother as a result of the father's actions. I was impressed by the compassion shown by the mother to the father, despite what she went through. I did not feel that the respondent came across as particularly remorseful or understanding of the impact of his anger and violence on the mother, and probably [PO].
114 Instead, the approach, on his behalf, was to argue that the mother could not be greatly concerned about the respondent's ability to care for the child, since she agreed to maintain the shared arrangement over a lengthy period. I accept the applicant's evidence that she has always had concerns about this, the extent of which has varied, depending on the state of the respondent's mental health at the time.
115 The mother's case is that even without the catalyst of her move to the country town, that the shared residence arrangement should not continue, partly because communication between the parties is so difficult, and this had led to pro blems in relation to, for example, [PO]'s medical treatment. The mother claimed that she should have primary care of the child, partly because she had been more involved than the father in the child's school life, and more pro-active in arranging activities, and medical treatment necessary. I accept this is the case, but the issue is not definitive.
116 I accept that the mother's proposal for the move to the country town is a reasonable one, and I am not prepared to accept that she should be required to remain living in the suburban area to enable the shared residence arrangement to continue.
117 Both parties have made proposals for extensive contact to continue, with whichever parent the child resides, although the father's position was that the mother should do all the transporting of the child for contact purposes for financial reasons. Having regard to the mother's financial circumstances, I do not accept that this was a reasonable proposition.
118 For nearly two years, the parties have equally shared [PO]'s care, and in the circumstances of this case, I do not place significant weight on the care arrangements prior to separation, although I have considered them.
119 Taking all the matters to which I have referred into account, I have determined that it is in [PO]’s best interests to reside with his mother as being able to provide a more stable, comfortable and secure home for the child overall, and that she be permitted to relocate to the country town. However, it is important, in [PO]'s
interests, for him to maintain frequent contact with his father, having regard to the practicalities of the situation.
120 The mother's proposal was that the father have alternate weekend contact with the proposed handover being at Lake Leschenaultia or The Lakes Roadhouse, depending on the season. The father proposed that if the child was residing with the mother that he have contact each weekend, with the mother to be responsible for all the transport. The mother was prepared to contribute the sum of $40 should the father come to the country town for handover. The mother's partner will be travelling to the Perth metropolitan area very regularly and it is possible that, occasionally, he could assist with transport. My concern is that, having regard to the father's attitude to assisting with the transport, that [PO]'s contact with his father may not occur as often as it should because of his father's attitude. I therefore proposed that the changeover be at Armadale, which is much closer to the father's home than the country town, but I was prepared to hear further submissions in this regard. To her credit, the mother was prepared to accept this, at some inconvenience and cost to her.
121 I therefore determined that it was in [PO]'s best interests for him to have contact with his father on two out of three weekends during the school term, extending to Monday if a public holiday. I have also determined that it is in the child's interests to spend slightly more than half the mid year school holidays with his father and slightly more than half the December/January school holiday period with him, with the initial changeover on Christmas Day, so both parties have contact with him on Christmas Day. There was no dispute over Easter or Mother's and Father's Day arrangements.
122 I consider that in the event there is a significant change in circumstances, then the parties should be permitted to have liberty to apply to short circuit the process through the Court if there is a need for further definition of contact.
123 There was an issue during the trial as to the father's attitude to the mother's partner, [Mr H]. The evidence was that the father had not really been prepared to speak to [Mr H] in the past. He said it was [Mr H] who was abusive of him in the first place over the child's dental treatment. [PO] is concerned about his father's possible attitude to [Mr H], although the father denies saying he would like to kill him. It is obvious that [PO] has taken the line of approach of keeping his life with his respective parents quite separate. It is important for him to feel as relaxed as possible about
the situation and the relationship of the adults in his life. In the hope of improving the communic ation between the parties, and starting to open a line of communication with [Mr H], I ordered the parties to attend post-trial counselling.
124 The father has not started the 'Mums and Dads Forever' course and the mother did not quite complete the course. Although I consider it would be desirable for the parties to attend, I am not prepared to make a further order in this regard. The father attends counselling very frequently already, but, hopefully, when his mental health further improves, he will find time, and the inclination, to attend 'Mums and Dads Forever', from which I am sure he would benefit. Although the mother has not finished the course, I accept that she has a suitable regard for the importance of his father to the child.
I certify that the preceding [124] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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