P and G

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	P and G [2006] FCWA 142
CORAM:	THACKRAY J
HEARD:	22 DECEMBER 2006
DELIVERED:	22 DECEMBER 2006
FILE NO/S:	PT 3709 of 2000
BETWEEN:	P

Applicant Husband
AND
G

Respondent Mother

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Catchwords:

FAMILY LAW - RELOCATION- Application to remove child interstate; CHILDREN - With whom a child spends time - Child’s views; CHILDREN - Best interests; Mother accepted employment opportunity in [another capital city]; Child’s preference to reside with mother; Child not currently having overnight contact with father; Relocation to [another capital city]; Child to spend time with father in Perth

Legislation:
Family Law Act 1975, s 60B(1)(a)
Family Law Act 1975, s 60CA
Family Law Act 1975, s 60CC
Family Law Act 1975, s 60CC(3)(d)
Family Law Act 1975, s 60CC(3)(j)
Family Law Act 1975, s 60CC(3)(k)
Family Law Act 1975, s 61DA(3)
Family Law Act 1975, s 65DA

Family Law Act 1975, s 65DAA(2)

Category: Not Reportable

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Representation:

Counsel:

Applicant Husband	:	Mr Dowding SC
Respondent Mother	:	Ms Lane

Solicitors:

Applicant Husband	:	Carr & Co
Respondent Mother	:	Butlers

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

Goode v Goode [2006] FamCA 1346
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1 HIS HONOUR: It's nearly lunchtime on Christmas Eve and given that no doubt everyone wants to get away, I intend to give my brief reasons in relation to my decision now. In doing so, I don't propose to attempt to trace the history of this six-volume Family Court file that has been running now since 2000. The background in any event is not really in dispute. The biographical details of the parties and the important dates were set out in [Ms G]'s affidavit filed on 20 December.
2 In a nutshell, these proceedings relate to [K, the 11-year-old son of the parties, who has been living with his mother since his parents separated in May 2000, and been having contact with his father. That contact has been fairly limited in that [K] has only been seeing his father on a daily basis and does not spend overnight periods with him. The reasons for this appear to relate to earlier proceedings conducted a couple of years ago, during which a report was prepared from a Family Court counsellor which indicated that [K] had a fairly firm view, or appeared to have a fairly firm view, against overnight contact. His view was respected by his father and for reasons which he has set out in his affidavit, he has continued to respect those views up until the present time.
3 The circumstances in which this matter comes before the court are set out in [Ms G]'s affidavit. The matter came on urgently before the court on 12 December when I made the directions for the listing of this urgent interim hearing. In summary, [Ms G] is an academic in a very specialised field and she sets out in her affidavit the background to her having accepted an academic post in her specialised field in [another capital city], which she says suits her background and qualifications.
4 Decisions of the High Court show that there is no need for me to find compelling reasons before allowing a party to relocate. Nevertheless, there seemed to me to be some compelling reasons why, from a professional and academic perspective, it would be highly desirable for [Ms G] to take up this appointment. In coming to this view I have not overlooked what [Mr P] has said in his affidavit; however, [Ms G]’s claims about the attraction of her new academic post are corroborated by the affidavit of [Dr B], the dean of the faculty at the University of Western Australia. She says that
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[Ms G] is exceedingly fortunate to have been offered this position as a senior lecturer in [another capital city] in a highly prestigious institution, where she anticipates that [Ms G] will flourish.
5 I am not prepared to accept that there are mala fides in relation to this proposed move. Had [Ms G] wanted to move out of the state over the last many years of the separation, I would imagine that she would have been able to engineer circumstances in which she could have done it. She certainly could have done it without too much difficulty back in 2003, because in proceedings that were before the Court at that stage, [Mr P] all but invited her to move out of the state, indeed out of the country, provided that appropriate arrangements were made in relation to regular contact with [K].
6 There's a dispute on the evidence as to what happened a few months ago when [Ms G] was offered this new position. She says that [Mr P] was surprisingly, given the history of their relationship, quite cooperative and congratulated her on her appointment. She thought he was accepting of the fact that [K] would be going to live in [another capital city]. After that, there was an exchange of correspondence between [Mr P]'s solicitor and [Ms G], who at that stage was self-represented. That correspondence was referred to at the last hearing and taken into evidence.
7 What I found of interest in relation to that correspondence was that [Mr P], through his very experienced solicitor, initially indicated that he was keeping an open mind about the issue. He led the discussions off into a set of inquiries about just what arrangements were going to be made for [K] in [another capital city]. This was quite appropriate because there is absolutely no doubt that [Mr P] takes a very close interest in his son's welfare and is highly protective of his need to have a good education, in particular, but of course he was also concerned about accommodation and other arrangements.
8 The correspondence between the parties ended up with [Mr P] pulling down the shutters on the possibility of [Ms G] relocating. [Ms G] then found herself in a position of having to come to the Court on a rather urgent basis to get this matter sorted out. It was clearly the case that she had to make a decision in the near future. She has now not only made the decision but she has indicated to the Court that she will be going to [another capital city] regardless of the outcome of these proceedings. Whilst I can understand, in other circumstances, one's eyebrows might be raised
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by a parent adopting that position, given the circumstances of this case, and given her academic and professional history, I readily sympathise with the position that [Ms G] has chosen to adopt.
9 [Mr P] initially proposed that there be a change from the current arrangement of effectively full residence, to use the old- fashioned term, with [Ms G] and no overnight contact with him, to an arrangement of shared care. He has now amended his application to seek residence in the alternative. It does need to be borne in mind in dealing with this matter that although this has been a truncated hearing, it has been somewhat longer than other interim hearings and there has been an opportunity for fairly limited cross-examination. It is also important to put the matter in the context of the new legislative framework that the Parliament has seen fit to impose on the Court with a view to ensuring that the best interests of the children are promoted.
10 The first and most important thing is to say that the law has not been changed in that the new section 60CA of the Act contains precisely the same principle as was found in the Act before the amendments, namely that the best interests of the child, i.e. [K], are the paramount consideration.
11 It is, however, necessary for me to approach the decision in a way that is different from how matters were previously dealt with. The first matter to determine, because consequences follow from it, is the issue of parental responsibility. Counsel has been unable to direct me to any order of the Court that has allocated parental responsibility previously. That being the case the position up until now has been that each parent has retained parental responsibility in relation to [K] in the same way as if they had never separated.
12 [Mr P] seeks in his application that there be equal shared parental responsibility. There is ordinarily a presumption that there should be an order for equal shared parental responsibility. That presumption does not apply in certain circumstances, which broadly relate to family violence or abuse of the child.
13 There are competing views and competing evidence in relation to these issues, with the mother claiming quite extensive domestic violence and the father absolutely refuting it. I'm in no position to make a proper finding in relation to these issues today. The next question then is whether or not I should apply the provision of section 61DA(3), which gives the Court a discretion not to apply the presumption where it would not be appropriate when making an interim order.

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14	The Full Court has had something to say about these issues very, very recently in the decision of Goode v Goode [2006] FamCA 1346 that was handed down earlier this week. In my view, even though it is a tempting option to say that it is not appropriate to apply the presumption in circumstances where I only have affidavits that have not really been tested, the determining factor in considering parental responsibility is that up until now there has not been any order in relation to parental responsibility.
15	I'm satisfied I have before me two highly intelligent, respectable members of the community who both have the best interests of [K] as their primary concern. I can't at the moment see any reason, apart from their communication difficulties, why they should not each have equal parental responsibility for [K].
16	As far as their communication difficulties are concerned, whilst it is readily apparent, notwithstanding they have been separated for a very long time, they are still somewhat hostile towards each other, I consider they have the personal wherewithal to overcome these communication difficulties. It is therefore my view that until this matter is properly considered, there certainly should be an order for interim equal shared parental responsibility.
17	It follows that I am now required to consider the matters set out in section 65DA of the amended legislation. To summarise, firstly I have to consider whether [K] spending equal time with each of his parents would be in his best interest and, if so, whether it's reasonably practicable. If I consider it's in his best interests and it's reasonably practicable, then I have to consider making an order to provide for him to spend equal time with each parent.
18	I don't intend to recite what the Full Court has recently said in Goode v Goode [2006] FamCA 1346 as to what is the meaning of the word "consider". The Full Court has spoken and this Court is now bound to attempt to interpret what their Honours had to say on this issue.
19	In the event that I determined, for whatever reason, not to make an order for equal time, then by virtue of section 65DAA(2), I am then required to consider whether or not [K] spending substantial and significant time with his father or his mother would be in his best interests and whether or not it's reasonably practicable. If I decide both of those matters in the affirmative, then I must consider whether or not I should order [K] spending substantial and significant time with each parent.
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20	In the now familiar circuitous method of legislative drafting, this discussion sends me all the way back to consideration of what is in [K]'s best interests. In deciding what is in [K]'s best interests, I am required to take into account the matters set out in section 60CC of the Act. I have nearly two pages of such matters that I'm required to consider, but the structure of the legislation is that there are two primary considerations and a number of additional considerations. I have in a number of recent judgments indicated my view in relation to the division of these matters into primary and additional considerations and I have repeated in each of those judgments my respectful agreement with views expressed by the Honourable Richard Chisholm. His view is that the additional considerations are not ”trumped” by the primary considerations, but nevertheless the primary considerations are the first to be considered and they are clearly very important.
21	The benefit to the child of having a meaningful relationship with both of the child’s parents;
22	Emphasis has been placed in the submissions today particularly on the first of the primary considerations, which is the benefit to [K] of having a meaningful relationship with both of his parents. Emphasis has also been placed by senior counsel for [Mr P] on section 60B(1)(a) which again talks about the benefit to the child of his parents having a meaningful involvement in his life to the maximum extent consistent with the best interests of the child.
23	The first thing to say is that I do not accept as a premise that a child who lives interstate is unable to have a meaningful relationship with both of his parents. It is certainly very difficult for much younger children to have such a relationship, but in this case we have a child who is fast approaching his teenage years, and who sounds a highly intelligent and literate child. Given the cost of interstate travel, the fact that [another capital city] is only three and a half or so hours away from Perth, and given that this family has some means, I am not satisfied that it would be the end of any meaningful relationship between boy and father in the event that he were permitted to go to [another capital city] with his mother.
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24	The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
25	The next primary consideration I'm required to take into account is the need to protect [K] from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Whilst there have been allegations in relation to family violence in the past, I'm not satisfied at all that he would be exposed to abuse, neglect or family violence in the event that he lived with either his mother or his father.
26	Although the psychological harm referred to in this subsection of the Act is specifically directed to exposure to abuse, neglect or violence, it's a convenient place to say that I would be concerned potentially that there may be psychological harm to the boy in the event that he were placed full-time with his father as he proposes. The reasons for that lead me to the first of the additional considerations and that is the views expressed by the child.
27	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;
28	The Court has the benefit of a report prepared at short notice by Family Consultant College in relation to [K]'s wishes or views, and her report is to be read in the context of the earlier report prepared in 2004.
29	There is a considerable degree of consistency between [K]'s expression of views in those reports spread over a couple of years. I don't intend to recite the contents of the report, but in summary [K] has expressed a fairly definite preference to move to [another capital city] with his mother and a preference not to live with his father, and a continuing preference not to spend time overnight with his father.
30	In considering those views, it is extremely important to consider the views eloquently expressed by senior counsel for [Mr P] about the weight that might be placed on his views. The suggestion is, of course, that [K] has been influenced by his mother and that indeed [K] might in fact be concerned about saying anything to the Family Consultant that would make his mother unhappy if the comments were reported back to her.
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31	Senior counsel also has made a number of appropriate submissions in relation to elements of the evidence which might tend to suggest that, while [Ms G] has ensured that there has been fairly strict compliance with the terms of the contact order, she may not have done all that she could have to encourage [K] to have additional contact. This related particularly to some occasions which might well have been perceived as appropriate occasions for additional contact. Senior counsel also suggested that [Ms G] has not encouraged [K] to have a more positive view of his relationship with his father.
32	It would be a rare case with a seven-volume file where all of the fault in relation to the problems in the family relationship falls on the shoulders of one parent. In this case, there almost certainly are aspects of the conduct of both parents that have lead [K] to express the wishes that he has expressed in this report. Nevertheless, I cannot ignore the fact that a person as experienced in dealing with children as Family Consultant College had a very clear impression that [K] felt comfortable in saying things about his mother, because he says he regards her as a person who would be prepared to accept his opinions.
33	I appreciate that there's a “Catch-22” in that proposition in that [K] might be just saying that because he wants to please his mother. However, the overall impression I obtained is that for the purposes of these interim proceedings it would be safe to proceed on the assumption that these are [K]'s present views, no doubt influenced by both of his parents. He is a boy now of some maturity who has expressed a strong view and I regard those views as being quite important in coming to my decision.

34 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);
37 The next consideration, always an important matter, is the nature of the relationship of the child with each of his parents. This is a boy who has lived all of his life with his mother. In the last few years he has lived with her on his own with his sister, and he has only spent time during the day with his father. Happily, it seems from reading the evidence that he has a good relationship with both of his parents in that he enjoys the time that he spends with them. It certainly seems, concentrating in particular on the
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father's side of the equation, that he has a really good time with
what seems to me to be a very loving and close family.
38 It's always important, when dealing with relocation cases, to appreciate the position of people such as the paternal grandfather, who I am sure loves every minute he gets to spend with his grandson. He and others are going to deprived of the regularity of that contact if [K] leaves Perth. I don't ever approach lightly the making of relocation decisions, when I take into account not just the views and hurt suffered by the parent left behind, but the views and hurt suffered by the extended family left behind.
39 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;
40 The next matter, and I am not reading out loud all the headings, because it takes so long, is the matter that Mr Dowding has concentrated on significantly in his submissions regarding the ability of the mother in particular to facilitate a close and continuing relationship with the father. There may well be merit - maybe quite a lot of merit - in some of the things Mr Dowding has said. Nevertheless, in the circumstances of this family, I consider the most important decision that I have to make is whether or not the mother is likely to comply with any order for contact which the Court makes to ensure that [K] does, in fact, come back to spend periods with his father that might be ordered.

41 The mother's history would suggest that there is every reason to have confidence this will occur. My impression of the mother is that she would comply with her obligation to at least facilitate contact that the Court ordered. She has done so to date, notwithstanding her own views of the father. Furthermore, notwithstanding some of the reservations [K] has expressed about his father, he has always gone on the contact ordered. Other findings that may be relevant under this heading would need to await a final hearing before I could say much more.
42 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

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

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45	In considering 60CC(3)(d), it's clear that if [K] goes to [another capital city] he is going to see his father less regularly. Fortunately, because the family would appear to have more money than average, it may not be a case where he only gets to see his father at holiday time. It would seem to me to be at least a reasonable possibility that his father would be able to travel to [another capital city], for example, on occasions to have weekend time with him during the school term. Nevertheless, he will be separated from his father to a greater extent than he has been used to, but as I have said earlier, I'm not satisfied that that would prevent him from continuing a meaningful relationship with his father.
46	If anything, what these proceedings might do is bring matters to the point where the overnight contact issue is revisited. This proposed relocation may provide the perfect opportunity to give consideration to [K] having a different form of contact with his father than he has been used to having in the past.
47	On the other hand, I consider separation of [K] from his mother would be quite a serious matter if [Ms G] went ahead with her plan to go to [another capital city] without him. The impression is that they are very close. The evidence in relation to sharing the same bedroom might indicate that there is a degree of closeness that is unusual. I'm not suggesting it's inappropriate, but it's certainly unusual. I am satisfied that the nature of their relationship is such that separation would be a matter of serious concern.
48	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;
49	The next issue relates to contact and the difficulties and expense of contact. It is going to be more expensive in [K] goes to live in [another capital city]. Issues have to be worked out as to who is going to pay the additional cost, but there is not any difficulty in there being, as a bare minimum, contact during every school holiday, contact by telephone, contact by computer and, as I have said, probably contact during the school terms as well.

50 The capacity of —

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(i)

each of the child’s parents; and

52 (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;
53 There's no doubt both parents are high functioning individuals and they are quite capable of attending to all of the child's physical and intellectual needs. As far as emotional needs are concerned, I think that the submissions made on both sides would suggest that there is some question marks in relation to the ability of both parents to cater for their child's emotional needs. At a final hearing it may well be that I would find that each of them has the capacity to cater fully for his emotional needs. At the moment there's a question mark.
54 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;
55 [K] is now a boy who is growing up and who is old enough for his views to be taken into account. As far as his background is concerned, it's fair to say that he is a member of a well-known and highly respected set of families in Perth. It is unfortunate that with the move to [another capital city] he will lose the opportunity to have contact with those people as regularly as he does at the moment. On the other hand, whilst the extended family in [another capital city] is clearly much more removed and not well-known to [K], it gives him an opportunity to meet and get to know another part of his family.
56 Any family violence involving the child or a member of the child’s family; member of the child’s family, if —
57 Any family violence order that applies to the child or a

(i)

the order is a final order; or

(ii)

the making of the order was contested by a person;

60 Section 60CC(3)(j) and (k) relate to issues of family violence. There is a possibility that this boy presents as he does and that the contact arrangements have been arranged as they have been, because there is substance in the allegation of family violence and bad temper on the part of the father. The allegation is strongly denied and it's preferable that I do no more than to say that some of
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the things that I see in the history of this family would be possibly interpreted as consistent with a family where there has been some trauma suffered by a child prior to the date of the separation. There could, of course, be many other explanations including, for want of a better expression, “parental alienation”.
61 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;
62 The benefit of making the order that would be least likely to lead to further proceedings is not usually a very significant matter. It is not significant here to any great extent, given that I have some confidence that [K] will in fact return to Perth for contact without the need for enforcement proceedings(certainly pending the final hearing, because if he does not come back for contact visits, it might have an impact on the outcome of the final hearing.
63 Any other fact or circumstance that the court thinks is
relevant.
64 The only significant “other facts or circumstances” I consider relevant, are the fairly firm comments made by [Mr P] in Court in 2003. These would have entitled [Ms G] to have left the Court feeling free to look for employment interstate and overseas, without anticipating any application to prevent her moving with [K].
65 Conclusion
66 The flavour of what I have been saying during the course of these reasons (and what I said the other day) is that I see this as a strong case for relocation. I say this with regret as I appreciate the impact that it will have on [Mr P] and on his extended family, including his wife, with whom [K] clearly has a fairly good relationship, if not a very good relationship. I regret all of those things, but the move to [another capital city] is for the clear financial and professional benefit of [Ms G]. The benefits of the move will have a direct and positive impact upon the lifestyle that she is able to provide to [K]. I should also mention that it stood out in the evidence of [Ms G] that this family has moved around in the past for the professional benefit of [Mr P].
67 For all those reasons, I intend to allow the relocation. As far as the contact arrangements are concerned, I only want to make a few general observations in the hope that agreement can be reached.

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68	First, I am not prepared yet to order overnight contact on [K]'s return to Perth. This is because of his wishes and because of the recommendation of Family Consultant Colledge that there should first be some attempt to professionally explore the issues that have been expressed in her report between [K] and his father. I also say now, as I did to Mr Dowding in hearing his submissions, that I would be very concerned about implementing overnight contact at the same time as the first visit back to Perth from [another capital city].
69	If there was ever anything that might cause difficulty in getting the boy to come back to see his father it would be imposing that new arrangement at this stage. That said, I accept that normally an 11-year-old would be able to go on overnight and extended contact with his father. I think that should be the aim here and I also think there is some merit in Mr Dowding's submissions that [Ms G] could do somewhat more to encourage [K] to see that this is going to be the way in which contact would most easily work and be most beneficial. There are more issues to be explored before forcing the issue and I consider that the issue will have to wait until the final hearing.
70	[Mr P] has been patient up until now. He has accepted [K]'s expressed wishes and I would like to see the counselling between father and son put in place first. I would like to see the first contact visit or visits occurring before we then move on to consider what the extension of contact to overnight.
71	As far as the length of the first contact periods is concerned, I appreciate that [Ms G] says that [K] would like to have the opportunity to explore the Eastern States during holidays and so on. I see that as an important opportunity for him, but I think that it is more important that he maintain as good a relationship and have as much contact with his father as possible. I therefore consider that the proposed 10 days duration of visits back to Perth during school holiday periods, pending the final hearing, is more appropriate than a half of the holidays. There's not much in it, it's only a few days, but I nevertheless consider that the father’s proposal in that regard is to be preferred.
72	Clearly, if [Mr P] wants to go to [another capital city], he should have as much time as he can over there with [K]. Clearly I think the first contact visit back in Perth should incorporate the [cultural celebrations] in the first-term holidays. This will give [K]
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the opportunity to spend that very important time with his father's extended family.
73	Telephone contact should be at least once a week and at whatever times that [K] otherwise wishes. Arrangements should be made for email accounts to be set up to ensure that father and son can communicate regularly in that fashion. Also I'm sure with Mr Dowding's expertise in relation to matters concerning video communication, some orders can be crafted to ensure that not only can father and son hear each other on the telephone, but that they can see each other at little or no cost.
74	I don't think there were any other contact issues where I need to give a general indication of what I see to be the appropriate outcome. If I have forgotten anything let me know, but my intention now is that there will be a conference between the parties - if not now, then before [Ms G] departs. If you can't come to an agreement on the precise terms of contact, then the matter can be relisted before me and I will make a decision on any matter remaining in dispute.

I certify that the preceding [74] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate

[2006] FCWA 142

22 DECEMBER 2006