ORLA and TRENWITH
[2018] FCWA 206
•1 NOVEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: ORLA and TRENWITH [2018] FCWA 206
CORAM: DUNCANSON J
HEARD: 17 OCTOBER 2018
DELIVERED : Ex tempore
FILE NO/S: PTW 4877 of 2016
BETWEEN: MS ORLA
Applicant
AND
MR TRENWITH
Respondent
Catchwords:
CHILDREN - Undefended proceedings - Where mother seeks to relocate child to Country A - Where father does not spend time or communicate with child - Relocation permitted
Legislation:
Family Court Act 1997 (WA) s 66A, s 66C, s 70A
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mrs R Oakley |
| Respondent | : | No Appearance |
| Independent Children's Lawyer | : | Mr C Scott |
Solicitors:
| Applicant | : | DS Family Law |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | CMS Legal |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The mother, [Ms Orla] and the father, [Mr Trenwith] are the parents of [A] who is six years of age.
2A lives with the mother. A has not spent time with the father since November 2017 and has not communicated with him since February 2018.
3The mother wants A to live with her and she seeks permission to relocate him to [Country A].
4The proceedings came before the Court on 30 April 2018 when orders were made providing an extension of time within which the parties were to file trial documents. Relevantly, it was ordered that the time within which the father was to comply with previous orders for filing documents be extended to 5 June 2018. It was further ordered that in the event that he did not do so, his response filed 16 November 2016 be dismissed and the mother have leave to proceed with her application on an undefended basis.
5The father did not comply with that order for filing documents. The father did not attend the trial. The matter proceeds on an undefended basis.
THE ORDERS SOUGHT
6The mother seeks an order that she have sole parental responsibility for A and that he live with her. The mother seeks permission to relocate A to Country A.
7The mother proposes A spend time with the father as may be agreed between the parties. She seeks an order facilitating the issue of a passport for A and she seeks injunctions.
FAMILY BACKGROUND AND HISTORY
8The father was born [in] 1987. He is 30 years of age. He is a [plasterer]. The mother was born [in] 1991. She is 27 years of age. She is engaged in home duties.
9The parties have one child, A born [in] 2012.
10The parties commenced cohabitation in 2011. They separated finally [in] 2014. After separation, the mother and A moved to [Country Town B]. A spent time with the father every third weekend.
11In about March 2015, the mother met [Mr H] and they began living together in 2016.
12In April 2015, the mother ceased A's time with the father by reason of her increasing concerns as to his conduct at handovers and his ability to care for A.
13In 2016, the father was incarcerated in relation to driving and drug offences.
14The mother commenced these proceedings on 9 August 2016 seeking parenting orders, including the permission to relocate A to Country A. Mr Scott was appointed Independent Children’s Lawyer.
15In February 2017, A was diagnosed with [a neurological condition].
16In March 2017, A commenced telephone communication with the father.
17In April 2017, Mr H relocated to Country A permanently.
18In August 2017, A began spending unsupervised time with the father. The father ceased spending time with him in November 2017.
19A last had electronic communication with the father on 13 February 2018. Since that time A has not spent time, nor communicated with the father and the father has not sought to do so.
THE EVIDENCE
20The mother relies on her affidavit filed 23 April 2018, that of Mr H filed 2 May 2018 and a financial statement filed 7 May 2018.
21The mother gave oral evidence. Her evidence was reliable. I am satisfied from her evidence that the orders sought by her are those she believes to be in A's best interests.
THE LAW
22These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
23In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.
24Section 66C(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
25In applying the above considerations, the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
26Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.
27The presumption does not apply in circumstances where there is abuse or family violence. The mother seeks an order for sole parental responsibility for A and I refer to that further below.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
28A has a meaningful relationship with the mother and it is to his benefit. It is to the benefit of A to have a meaningful relationship with the father provided he is not exposed to harm by doing so, and provided the father is prepared to commit to their relationship.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
29There is not a need to protect A from harm in the care of the mother. It is necessary to protect him from harm in the care of the father by reason of the father's drug use and inability to provide for his needs.
THE ADDITIONAL CONSIDERATIONS
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
30A is six years of age. By reason of his age and [neurological condition] he is unable to express a meaningful view.
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)
31A has a close and loving relationship with the mother. He has no relationship with the father at this time as the father has not sought to spend time or communicate with him. A also enjoys a close and loving relationship with Mr H. He has a loving relationship with his maternal grandparents.
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; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
32The mother has made decisions about major long-term issues in relation to A since separation. The father has not taken the opportunity to spend time with A since late 2017, or to communicate with him since early 2018. The father does not fulfil his obligations to maintain A.
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
33A is accustomed to living with the mother and any change to his living arrangements such that he is separated from her would have a detrimental effect upon him.
34The likely effect on A of a separation from the father is diminished by reason of A not currently spending time, or communicating with him. The mother proposes that A have communication with the father and spend time with him as may be agreed between the parties.
35In the event that A is permitted to relocate to Country A with the mother, there will be no change in his circumstances insofar as they relate to his primary carer.
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
36There is practical difficulty and expense associated with A spending time or communicating with the father if he lives in Country A. This arises by reason of distance and cost of travel. The mother proposes the father meet the costs of travel in circumstances where the father does not pay child support except to the extent it is deducted from his Centrelink benefits.
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
37The mother provides well for A on all levels. She proposes that she and A will live in Mr H's home. There are children of A's age living nearby. A will be enrolled at [Primary School C] which is located a short distance from the home. The school is able to provide support for A's special needs. The mother proposes that A recommence his extracurricular activities in Country A. The mother proposes to work [at] Mr H's [family business].
38The father has not provided well for A's needs in the past and the mother holds concerns about his capacity to do so. Her concerns are heightened by A's diagnosis of [a] neurological condition. The father failed to comply with orders for drug testing.
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
39A has been diagnosed with a neurological condition.
if the child is an Aboriginal child or a Torres Strait Islander child –
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
40This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
41The mother has demonstrated a responsible attitude to A and to the responsibilities of parenthood. She will facilitate time between A and the father provided it is safe to do so. The mother also proposes orders for the provision of information to the father regarding A and orders for electronic communication. The father has not demonstrated a responsible attitude to A or the responsibilities of parenthood in that he has failed to commit to an ongoing and meaningful relationship with the child.
any family violence involving the child or a member of the child's family
42There has been family violence between the parties. The mother deposes to the father's controlling and abusive behaviour towards her during the relationship.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following –
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
43In February 2014, the mother obtained an interim Violence Restraining Order protecting herself from the father. There is no current family violence order in place.
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
44 It would be preferable to make final orders and conclude these proceedings.
any other fact or circumstance that the court thinks is relevant
45Mr H relocated to Country A permanently as he was accepted into [a] Country A [government department position]. In addition to this employment he runs his family business. He deposes to a close relationship with A and an understanding of his particular needs. Mr H provides financial support to the mother for herself and A.
CONCLUSIONS
46Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental responsibility
47There has been family violence between the parties. The presumption that it is in A's best interests that his parents have equal shared parental responsibility for him does not apply. I intend to order that the mother have sole parental responsibility for A. Since the parties separated she has made decisions without the participation of the father. She is attuned to A's needs and is best placed to make decisions about long-term issues for him in the future.
The child’s living arrangements
48The mother has been A's primary carer since birth. It would be in his best interests to continue to live with her as she provides well for him on all levels.
49A does not have a relationship with the father at present. As a consequence, a move to Country A will have less of an impact upon him than if his relationship with the father had been a strong one.
50The mother wishes to join Mr H in Country A; she and A will live with him as a family. She has well‑thought‑out proposals for A's upbringing including his education and care. The mother has sound reasons for seeking to relocate A to Country A. I intend to make an order that the mother be permitted to do so.
51Having weighed and balanced the matters in s 66C of the Act referred to above, I am satisfied that it is in A's best interests to live with the mother and she be permitted to relocate him to Country A.
52I propose to make orders regarding a passport for A. The father has not participated in these proceedings. There is no indication he would cooperate in obtaining a passport for A. If the father does not cooperate, it would necessitate further proceedings which would not be in A's best interests and would incur cost to the mother. I therefore intend to make orders enabling the mother to obtain a passport for A, and dispensing with the necessity for the father’s consent.
THE ORDERS
1All previous parenting orders be discharged.
2The mother have sole parental responsibility for the child [A] born [in] 2012.
3The child live with the mother.
4The mother have permission to relocate the child to [Country A].
5The child spend time and communicate with the father as may be agreed between the parties and upon such terms and conditions that the mother considers to be in the best interests of the child.
6Upon request by the father the mother shall:
(a)provide the father with an email address where the father can send photos, letters and other items to the child;
(b)authorise the child's school to provide the father with copies of school reports, notices, other publications and any information he may request about the child; and
(c)authorise any medical practitioner, psychologist or other health care professional seen by the child to contact the father so as to provide him, at his expense with any information about the child that he should seek.
7Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the mother for the child and the necessity for the consent of the father to the issue of a passport for the child be dispensed with.
8The mother shall hold the child's passport.
9Without admission as to need, the parties be restrained and an injunction be granted restraining either party from:
(a)denigrating the other party or any member of their family to the child, or to any other person in the presence or hearing of the child; or
(b)discussing or arguing about adult issues with the child or in the child's presence or hearing, including but not limited to the care arrangements set out in these orders.
10The proceedings otherwise be dismissed.
11All subpoena material be returned to source.
12The Independent Children’s Lawyer be discharged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE
1 NOVEMBER 2018
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