P and C

[2007] FCWA 119

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	P and C [2007] FCWA 119
CORAM:	CRISFORD J
HEARD:	3-6 SEPTEMBER 2007
DELIVERED:	16 OCTOBER 2007
FILE NO/S:	PT 205 of 2007
BETWEEN:	P

Applicant/Father

AND

C

Respondent /Mother

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Catchwords:

Children's issues - interstate relocation - applicable principles

Legislation:

Family Law Act 1975, s 66A, s 60B, s 66, s 66C, s 68F, s 89AA

Category: Not Reportable

Representation:

Counsel:

Applicant:	Ms S Moncrieff
Respondent:	Mr R Bannerman

Solicitors:

Applicant:	Paterson & Dowding
Respondent:	Bannerman Solicitors

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

A v A Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
B & B [2006] FamCA 1207
B and B Family Law Reform Act 1995 (1997) FLC 92-755
Godfrey and Saunders [2007] FamCA 102
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1 From the beginning of their relationship, [Mr P] and [Ms C] have been very mobile. They are now unable to decide where their children, [G] aged 6½ and [T] aged 5 should live. [Mr P] wants them to live with him in [the North-west] and [Ms C] wants them to live with her in [[another state].

2 The parties lived in the [the North of W.A.] from 2001, some six months after [G]’s birth, until November 2005.

3 They then spent a year in [another state] before returning to [the North-west] in late 2006. By mid January 2007 they had separated. Then, without notice to [Mr P], [Ms C] removed the children to [another state] where they have lived since.

Applicable law

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

“•

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

•

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

5 The Full Court went on to outline matters to be taken into

account:

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

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

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

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

• None of the parties bears an onus.

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

6 Despite the recent amendments to the Family Court Act 1997 by the Family Legislation Amendment Act 2006 there is nothing to suggest these binding principles no longer apply to relocation cases. They are still applied in the context of the overall objects and principles of the Act.

7 S 66 identifies these objects as promoting the best interests of

children:

1. The objects of this Part are to ensure that the best interests of children 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; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

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(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

8 The Court is directed by s 66A to regard the best interests of the child as the paramount consideration. This will be the final determinant in this matter – what is best for [G]and [T]. S 66C sets out the matters I must take into account in determining what is in their best interests. I will return to these later.

Parental responsibility

9 At the conclusion of the evidence both parties agreed there should be an order they have equal shared parental responsibility for the children. It is appropriate in this case.

10 This order triggers s 89AA of the Act. I am thus obliged to consider whether or not the children spending equal time with each of their parents would be in their best interests and reasonably practicable. If I decide not to make an order for the children to spend equal time with each of the parents, I must consider whether or not it would be in the children’s best interests to spend substantial and significant time with each of them and, if so, whether such an order would be reasonably practicable.

11 The legislation is strongly in favour of both parents having substantial involvement in their children’s lives. In this case, the parties do not have any definitive links to one particular place. Both

[States] have played a part in their relationship. Both have lived and
worked in each State.

12 This is not a case where the Court could or should make an order requiring one parent to relocate with the other parent. It is not viable for the parties to live in close proximity, be it in [another state] or Western Australia. However, appropriately, these issues were explored in evidence and the validity of their reluctance to relocate was explored.

13 [Ms C] has a strong desire to remain in [another state] with her family. Any move back to [the North-west] would be unrealistic in a practical sense. It is common ground that accommodation for her would be virtually non-existent due to both lack of availability and of finance. When the Court enquired of her whether she would come

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back to Western Australia if the children were to be here she said she
would but her obvious distress at that prospect was palpable.

14 [Mr P], in turn, has a strong desire to remain where he is in [the North-west] in his current work position. A move away would result in a breaking of his present contract and that would have financial consequences. He is close to his sister and her family.

15 “Relocation cases are notoriously difficult. Both parties have valid claims of right” (Godfrey and Saunders [2007] FamCA 102 23 February 2007). It is necessary to “attempt a resolution of often irreconcilable considerations” AMS v AIF (supra) Kirby J at 86,041. The Act requires the Court to regard the best interests of the child as the paramount consideration. However, it is trite to say that not everyone agrees just what the best interests of children are in any given set of circumstances.

The parties

16 [Mr P] was, by and large, an impressive witness. He was calm and measured. He made concessions against interest. Even [Ms C] described him as “a lovely man”.

17 [Ms C] was less sophisticated. One witness described her as being “a bit rough around the edges”. There were times when I had difficulty accepting her evidence. She exaggerated and was prone to misinterpretation. There were differences, both in degree and fact, between some aspects of her affidavit evidence and the oral evidence she gave at trial. Despite some reservations about her credibility she appeared to be a very genuine and loving parent.

18 The work background of the parties is in the mining industry in regional towns. This posed a number of challenges for them. I have no doubt that both of them drank to excess and acted inappropriately from time to time. This appears to be particularly so during 2005 and up until the time they separated. I accept that this, in the main, was a symptom of the unhappiness they were experiencing in their relationship.

19 I found the over-consumption of alcohol likely to have made the reliability and accuracy of their recall of some events less than perfect. This made it difficult at times to determine issues of credibility. Neither was an entirely satisfactory witness. I have no doubt [Ms C] urinated in public on occasions and exposed her entire upper body in

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public whilst feeding [G] as a baby. Her denials were no doubt borne of shame or at least embarrassment rather than from her being an innate liar.

20 [Mr P] and [Ms C] have different approaches to parenting. [Ms C] termed [Mr P] obsessive about cleaning and general tidiness within the home. The tenor of [Mr P]’s evidence was that [Ms C] was slovenly. [Ms C] said [Mr P]was mean and financially controlling. [Mr P] viewed [Ms C] as financially inept and given to overspending.

21 Having made those observations, I am of the view that this case, although finely balanced, did not rest on the issue of credibility.

Applying the facts to the law

22 It is necessary to turn to the primary considerations to be taken into account in assessing the competing proposals put forward by the parties.

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

23 The children have meaningful and fulfilling relationships with both their parents. Although [Mr P] worked long hours for many years, when he was at home he was involved fully in the care of the children. In recent years and prior to separation, he was more and more involved in their daily care.

24 Despite the fact that they have been living in [another state] since January 2007 they have maintained their good relationship with [Mr P]. They have spent holiday periods with him and have regular communication over the telephone.

25 When a relationship breaks down there is inevitably a change in the dynamics between both parents and the children. It is not always realistic to try and preserve the same quality of the relationship that each parent previously enjoyed.

26 It is important to try and formulate different arrangements for the children to spend time with and communicate with the other parent to ensure the meaningful relationship is preserved.

(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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27 I find there have been times when the behaviour of each party has lacked insight into how it may impact on the children.

28 There have been allegations and counter-allegations about physical discipline of the children. [Mrs C], [Ms C]’s mother, and [Ms T], [Ms C]’s sister, both gave evidence that [Mr P] had acted aggressively towards the children. [Mrs C] outlined an occasion where [T] refused to eat all his breakfast. She said there was a bit of a power struggle between [Mr P] and [T]. This culminated in

[Mr P] threatening to hit his child with a wooden spoon. [Ms C]’s sister recounts an unfortunate occasion on Christmas Day 2005 when [G] was being demanding. She gave evidence that [Mr P] smacked [G] across the back and pushed her out the door. [Mr P] denies these allegations.

29 Although I am conscious that [Ms C]’s family dislike [Mr P] intensely and may have exaggerated matters, I accept there were times when [Mr P] was extremely short with the children. However, it was not a regular pattern of behaviour and there is no evidence the children fear him in any way.

30 A number of [Mr P]’s witnesses recount [Ms C] physically disciplining the children. This included a slap across the head and smacking. [Ms C] denied these allegations. I accept [Ms C] has sometimes acted inappropriately in this respect.

31 This Court does not condone physical punishment of children. There are other more appropriate ways in which to discipline children or to have them accept the need to obey their parents. I find that both parties have, from time to time, been disrespectful and belittling of the children.

32 Particularly concerning was the evidence of [Mr P]’s witnesses that [Ms C] had called the children, to their faces, “turds” and “little shits”. [G] had apparently been called variously “butch”, “fat” and “ugly” by [Ms C]. [Mr P] had apparently called her “fat”.

33 This behaviour is humiliating for the child. It has the potential to not only needlessly hurt but also to rob a child of self esteem and confidence. I am not satisfied that [Mr P] is culpable in this regard. [Ms C] needs to be vigilant and curb her behaviour. It is completely inappropriate.

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34	There have also been allegations that [Mr P] has been physically aggressive to [Ms C]. On some occasions it is alleged the aggression has been in the presence of the children. [Mr P] denies categorically that he has been physically aggressive, except for an occasion on Christmas Day 2005 when he says he cannot remember what took place.
35	On Christmas Day 2005 the parties and the children attended [Ms C]’s mother’s house for celebrations. A considerable amount of alcohol was consumed throughout the day. Both the parties were drinking, although it appears that [Mr P] was far more intoxicated than [Ms C]. I accept his behaviour during the latter part of the day ranged from physically aggressive to sexually offensive. It is on this day that [Ms C]’s sister alleges he smacked [G].
36	In any event, the day culminated at around midnight, at least on one version, by [Mr P] physically striking [Ms C]. A commotion ensued and it was necessary for [Mr P] to be put to bed. [Mr P] is not able to recall this incident.
37	Despite the fact that [Ms C]’s trial affidavit made no mention of this, I accept that, at least on this occasion, [Mr P] was physically aggressive to her. I accept the children are likely to have been aware of his poor behaviour towards their mother.
38	I am satisfied that [Mr P]’s behaviour, overall, was a response to moments of conflict with [Ms C] rather than a more sustained course of conduct. I find in the seven years of their relationship it happened infrequently. The parties were clearly drinking too much, were having relationship difficulties and were not happy as a couple when the Christmas 2005 incident took place.
39	I must now turn to additional considerations. They are to be read in conjunction with the primary considerations. They are additional to them and not merely secondary 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;

40 The two children are young. They love both their parents dearly. [Ms C] said they have missed [Mr P] during their separation from him in 2007. [Mr P] accepted they would not cope well without their

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mother. Neither party, appropriately, sought to involve the children or
their views in this case.

(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);

41 I am satisfied that each parent has an extremely good relationship with both the children. There is nothing to suggest that the extended families in [another state] and in Western Australia have anything other than a good relationship with the children.

42 The parties have been very mobile. Although the extended families have not always been living in close proximity, they are a known and necessary part of the children’s world.

43 [Mr P]’s parents live in [the South]. His sister, her husband and their children live in [the North]. [K] aged 10 and [L] aged 7 have grown up with [G]and [T]. [Mr P]’s cousin who is close to the family lives in Perth.

44 [Ms C]’s family is scattered throughout [another state]. Her parents live in [another state] where she currently lives.

45 Despite distance and limited finances the children have developed good relationships with both sides of the family.

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

46 I am satisfied that both parties are aware of the benefit to the children of having a positive relationship with the other parent. Both parties propose the other parent has considerable time together with the children.

47 The minutes of proposed orders of the parties envisage that if they live in close proximity then at the very least there be a substantial sharing of time. If [Ms C] and [Mr P] live in different states then both parties envisage that the majority of the school holiday periods would be spent with the other parent. The proposals are that there be a sharing of the cost of the return airfares.

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48	In the context of what the parties are now saying, it is useful to consider their past actions.
49	[Ms C]’s removal of the children from Western Australia to [another state] was done in an underhand and selfish manner. I accept she may have canvassed with [Mr P] the possibility of a return to [another state] to see a sick relative but this was on the basis it was short-term and the detail had not been decided. Her stated intention was to find accommodation in [another town]. She was staying with one of her friends, [Ms W] and she did not advise [Ms W] of her impending departure. [Ms W] arrived home from work to find [Ms C] and the children gone. She was extremely worried and attempted to locate [Ms C] herself.
50	Her move was presented to [Mr P] as a fait accompli as to what the arrangements for the children would be.
51	Whilst the children have been in [another state], there have been occasions, and I do not accept [Ms C]’s evidence that it has only been on one occasion, when the children have spoken to their father by telephone but on which a speaker facility has been used. Relatives have listened in. It is important that the children have the freedom to talk to their father without the mother or her family being present to monitor the calls.
52	When [Ms C] and the children left the home they were faced with difficulties in obtaining accommodation. It is not an answer to suggest they could stay long-term with [Ms W] given she had her own family to accommodate. [Ms C] and [Mr P]had not appreciated their own friends arriving for a couple of days and staying for a number of months. It was in this atmosphere that [Ms C] left the State. I do not see that her attitude in leaving the State with the children is indicative of any lack of desire for the children to have a close and continuing relationship with [Mr P].
53	On 21 March 2007 I made an order that the children were to spend the whole of the April and July school holiday periods with
[Mr P] in Western Australia. Although there was some difficulty in arranging the logistics of the flights, these periods of time did take place between [Mr P] and the children. [Ms C] and [Mr P] were able to have family and friends assist in the transportation. It is likely it will be less difficult as time goes on and the parties are able to pre-
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book and have more knowledge of the best way to execute the travel arrangements.

(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;

54 [Mr P]’s proposal would have the children returning to [the North-west]. The practical effect of this would mean they leave the extended maternal family and the environment in which they have lived for about 10 months. [Mrs C] has extensive day to day involvement with the children at this stage. I formed the view that she played a very hands-on role in their care. It is likely the children would miss her.

55 A return to [the North-west] would require an adjustment but they are familiar with the town and its environs. A return to [the North-west] would also see the children again spending a substantial amount of time with their paternal aunt and her children.

56 Perhaps the biggest change would relate to [Ms C]. I have no doubt that if the children were to return to [the North-west] to live that [Ms C] would also return to [the North-west]. However, she has little opportunity for work and even less opportunity for immediate stable accommodation. The possibility of spending time with her or even having equal time with her would be problematic, both physically and emotionally.

57 [Ms C]does not want to live in [the North-west] or the [regional] area. This is not a new state of affairs. It was the main reason the parties went to [another state] in 2005. [Ms C]’s return, with [Mr P], to [the North-west] in late 2006 was in a last ditch attempt to save their marriage. It is not and has never been her location of choice.

58 If the children are to remain in [another state] as they have done so since January 2007, they will face the continued dislocation from their father and the father’s family in the [regional area] and Western Australia.

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59	[Mr P] has moved for the purpose of his work approximately four times in the last six or so years. He has portable skills as a [mechanic] and [supervisor]. He was paid more in [another state] in 2005 than he was in [the North-west].

60 He says he will live in [the North-west] for the foreseeable

future.

(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;

61 Unless these parties live in the same general vicinity there will be substantial cost in the children spending time and communicating with the other party.

62 Since [Ms C] left with the children to return to [another state] in January 2007, [Mr P], without complaint, has spent approximately $15,000 on airfares. I accept this has been a substantial drain on him but to his credit he has absorbed those costs without any relief from his child support assessment.

63 These parties have been used to long distance travel and the associated expense. This does not make it any easier and it is appropriate that if the parties chose not to live in the same vicinity that there be a sharing of those expenses. This should include telephone costs and any costs associated with web cam or like facilities.

64 Unfortunately, there is no viable solution for avoiding this difficulty and expense.

(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;

65 Despite the fact that [Mr P] worked very long hours in the early days of the children’s lives, especially that of [G], I have no doubt he has the capacity to provide for all their physical needs. He has always been a good financial provider for the family. They have always had

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adequate housing and food. Despite the difficulties during the breakdown of the parties’ relationship, the children were generally adequately supervised by both parties.

66 It is necessary to bear in mind that each party has a different approach. [Ms C] is more relaxed and less demanding in her standards.

67 [Mr P] is organised, proactive in his parenting and very attuned to providing appropriate food, supervision and activities for the children.

68 [Ms C] on the other hand has a more casual approach to hygiene and cleanliness, is inclined to take the easy option insofar as food is concerned and is more prone to physical chastisement. She has a robust approach to life. Despite my concerns about this, there is no independent evidence to suggest the children had ever been anything other than dearly loved by her and love her in return. I have no doubt they are well cared for, although perhaps not to the same standard as [Mr P]. There is nothing to suggest her less stringent attitude will cause them harm or they fear her.

69 [Mr P] accepted, in general, that he was happy with the care [Ms C] provides. He had spoken with a representative of [G]’s school.

70 Both parties need to be vigilant about the over-consumption of alcohol. It is clear from all the evidence that such over-consumption reduces their capacity to parent in all areas. I am satisfied that there have been times in this relationship when both parties have not been in a position to properly supervise or interact appropriately with the children as a result of consuming alcohol. Whilst they continue to live in far flung towns, it is something that each will need to be constantly vigilant about when the children are in their care.

71 In [another state] [G]is presently attending [the local]State School. [T] attends kindergarten. [Ms C] is renting accommodation which is close to the centre of [the town]. The property is on a half acre block with three bedrooms.

72 [Ms C] is presently employed as an environmental assistant with [a local company]. She works on a part-time basis approximately three days each week from 7.00 am to 5.00 pm. Her mother assists during these times.

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73	Although [Ms C]’s family do not all live in [the same town], they are in [the same state] – in [nearby towns]. They are able to travel to see each other. Importantly, [Ms C] is happy to be back in [the state] in close proximity to her family. Her employment situation is far superior to that she was able to obtain in [Western Australia].
74	[Mr P] works full-time although he is able to work on a flexible basis. If the children were to live in [the North-west] they would return to what was previously the family home. The home is in close proximity to the school. [Mr P] has the assistance of his sister to care for the children when he is engaged at work.

75 Both parents have proposals that cater for all of the children’s

needs.

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

76 [Ms C] showed a poor attitude to the responsibilities of parenthood when she unilaterally removed the children from Western Australia. The children were not given the opportunity of saying goodbye to their father and the mode of leaving Western Australia was underhand and clandestine. This sets a poor example to the children and fails to recognise the role [Mr P] played in their lives. This does not reflect well on [Ms C].

77 In the early years of the children’s lives, [Mr P] was what could perhaps be termed an absent father. He worked very long hours and was away from the family on what I accept to be a regular basis. It was [Ms C] who did all the caring for the children during those years except for the times that [Mr P] was home. It is hardly surprising that his witnesses generally deposed to [Ms C] relaxing when [Mr P] was at home given the amount of time she spent with the children catering for their needs when he was away from the home.

78 I also accept that as time passed, [Ms C] wanted more from her life than simply being a stay at home mother. She has sought to expand her social circle and also to obtain employment. [Mr P] has not been averse to this save when it impacts on her ability to supervise and care for the children. If the relationship between the parties had been stronger, I have no doubt that her desire to enter the workforce could have been achieved without much ado. However, some of her previous work and social activities have not been particularly child friendly. The children are of an age where they require their parents

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or at least one of them to meet their needs. I am not satisfied that this
was always a priority at least in 2005.

79 I also accept that [Ms C] has displayed a lack of boundaries in some of her behaviours. Whilst she is intoxicated, these behaviours may appear to be amusing. However, they are, by and large, socially unacceptable and the children should be shielded from these. Children need to know what is socially acceptable behaviour so that they can move freely in the community without embarrassment or running the risk of breaching the laws of the community.

80 [Ms C] gave evidence that [Mr P]was financially controlling. She said he would allocate her a limited amount of money in order to provide food, clothing and other household items for the children and the parties. [Mr P] paid the bills and made a determination on how the money was to be spent. It was for this reason that [Ms C] wanted to find employment of her own. This enabled her to have some financial autonomy and allowed her to make decisions on how her money was utilised.

81 [Mr P] on the other hand gave evidence about his financially responsible attitude. I have no doubt that [Mr P] is an excellent financial manager. He has the ability to organise, budget and live within his means. He gave evidence of acts of generosity directed towards [Ms C] in the form of presents and giving her money for items he considered appropriate. Despite this suggested generosity, there is no doubt that [Mr P] controlled the finances and held the purse strings. Whilst [Ms C] may be critical of this, the Court is not in a position to say [Mr P]has been anything other than financially responsible towards the children or that he has failed in the past or would fail in the future to provide adequately for them.

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

82 Insofar as this is relevant, it has been canvassed in earlier parts of

the judgment.

(k)

any family violence order that applies to the child or a member of the child's family, if:

(i)	the order is a final order; or
(ii)	the making of the order was contested by a

person;

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83	On 12 February 2007 [Ms C] applied for a protection order against [Mr P] in a [another state] court. The matter was listed for a mention hearing. [Mr P] took steps to dispute the allegations. [Ms C] did not attend at the mention hearing and her application was dismissed. It is noted that [Ms C] took no steps to obtain any such order whilst she was living in Western Australia and where, if there was a genuine concern, it was appropriate to ventilate that concern. In [another state], [Mr P] was so far away that the application for such an order was ill-conceived and without foundation.
(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;

84 Having seen [Mr P] and [Ms C]give evidence, I consider it unlikely that there will be further proceedings. As unpalatable as my decision will be to one of them, I did not form the view that court proceedings held any attraction to them and the experience had been wholly unpalatable. I do not consider this to be a factor of significance.

S 66C(4) and (5)

85 Insofar as these sections are relevant they have been dealt with earlier in the judgment.

Conclusions generally

86 In the recently decided case of B & B [2006] FamCA 1207, Warnick J identified some of the difficulties in cases of this nature:

“1.	In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
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2.	However described, the nature of the judicial exercise required is such that even well crafted reasons for the orders (which more often than not permit relocation, at least within Australia) often seem unconvincing, formulaic, at times even as if there is a subtext. Unsurprisingly, in this context, many a losing litigant is perplexed. Many appeals are generated.”

87 In this case there is considerable merit in the propositions advanced by both parties. This is not a case where relocation was obvious.

88 Here the Court is presented with two basically appropriate parents. They have different approaches to parenting. A number of the criticisms levelled at the parties are likely to have arisen in the context of an unhappy relationship rather than being a deep and lasting problem which will impact on the children.

89 It is necessary to identify the possible outcomes which I believe are available to the Court.

• The children live with [Mr P] in [the North-west]. The children would return to live in familiar surroundings. They would be close to their aunt and their cousins. They would be adequately provided for in every sense. The real outcome would see [Ms C] returning to where the children would be. It is likely this would then move, at some stage, to a form of shared care arrangement. However, [Ms C] would be at least for a time financially dependent on [Mr P] and government benefits, she would have no real choice in accommodation and she would be desperately unhappy.

• The children live with [Ms C] in [another state]. They have lived there since January 2007 and spent a year there in 2005/2006. They are reasonably familiar with their maternal family, especially their grandmother who is involved in their care. They would travel regularly to see their father in Western Australia.

90 The fact that [Ms C] would move back to Western Australia to be with the children should not disadvantage her forensically. Her reasons for relocating to [another state], although without any necessity to be compelling, need to be treated with the seriousness they deserve. Her disenchantment with living in the [region of

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Western Australia] has an historic basis. It is not something that has arisen in the context of the breakdown of her relationship.

91 On balance, I have determined that the children should remain living with [Ms C] in [another state]. There is very little to distinguish the parties but I have arrived at this for the following reasons:

• [Ms C] has consistently been primarily responsible for the children. She only started work in March 2006. Although [Mr P] has had considerable input and was very highly involved around the time of separation, there was no suggestion the children would not leave the home with her.

• [Ms C] has part-time work and has more flexibility in her time to be with the children.

• [Mr P] accepts the children are settled and happy in [another state] despite missing him greatly.

• Whilst the parties have different parenting styles, there is nothing to suggest one is significantly better than the other.

92 I am also mindful of what the Full Court of the Family Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755:

“A very important aspect of a child’s best interests is to live in a happy family environment … ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household.”

93 If the children return to Western Australia with [Mr P] and

[Ms C] follows, they will not be spending time in an environment that
is happy and stress-free.

94 This case provides no easy answers or solutions.

Orders

95 The orders I intend to make, subject to any submissions by counsel are as follows:

1. The mother and father have equal shared parental responsibility for the children, [G] born [in] January 2001 and [T] born [in] November 2002.

2. The children live with the mother.

(Page 20)

3.

In the event that the parties live within close proximity of each other, there be a shared care arrangement in relation to the children with times and dates to be agreed between the parties.

4.

In the event that the father lives in Western Australia or outside [another state], he spend time with the children:

(a)	for periods of up to three quarters of the total annual [another state] school holidays;
(b)	at such times as he may travel to [another state] on dates and times to be agreed;
(c)	from noon on 24 December 2007 until noon on 26 December 2007 and in each alternate year.

5.

The father communicate with the children as follows:

(a)	regular telephone contact up to a daily basis with the father to telephone the children at a time to be agreed between the parties;
(b)	by way of web cam to be installed at the mother’s expense.

6.

All costs associated with spending time and communicating (save as set out in 5(b) be shared equally between the parties.

7.

The mother do authorise any school the children attend to release to the father any information that he may reasonably request regarding the children at his expense.

8.

The mother advise the father as soon as she is aware of any matters of importance relating to the children’s health, education and general welfare to include any medical appointments for the children, any school awards, sports days, prize giving, school photos or other special school occasions as soon as she is aware of them.

9.

The mother keep the father advised at all times as to the mother’s residential address, landline and mobile telephone numbers.

(Page 21)

I certify that the preceding [95] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate