P and v

[2010] FCWA 37

[2010] FCWA 37

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975 FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	P and V [2010] FCWA 37
CORAM	:	CROOKS J
HEARD	:	2-4 MARCH 2010
DELIVERED	:	25 MARCH 2010
FILE NO/S	:	PT 4990 of 2009
BETWEEN	:	P Applicant/Mother
AND
V Respondent/Father
Catchwords:

Parenting orders - relocation to eastern states

Legislation:

Family Court Act 1997, s 66, s 66A, 66C

Category: Not Reportable

[2010] FCWA 37

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:
Respondent	:

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

Morgan and Miles [2007] FamCA 1230

[2010] FCWA 37

1 These proceedings concern the living arrangements for [Tracey] aged 10 years

and [Christian] aged 7 years. The children’s mother, [Nicola] wants to relocate with the children to the eastern states where her father, step-mother and siblings live. The children’s father, [Robert], wants Tracey and Christian to remain living in Perth and proposes that they live with him and his fiancé, [Heather], on their property in the country if Nicola intends to move regardless of the Court’s decision. Nicola will not, however, leave Perth without the children.

Background

2 Nicola is 29 years of age and is presently a full-time parent. Robert is also 29 years of age and is employed as a labourer.

3 The parties began living together on 27 May 1998 and finally separated on 14 February 2007. At this time they were renting a home in Perth.

4 Since the separation, Tracey and Christian have lived with Nicola and have

generally spent each alternate weekend with Robert from Friday evening until Sunday evening. The children also spent about eight days with Robert during their last Christmas holidays and an extra three days after their usual weekend period on another occasion.

5 Robert started living together with Heather about two years ago. They live with

Heather’s daughter, [Ilsa], who is aged 9 years on a property they rent in a small rural community. Heather and Robert are engaged to be married.

6 In mid 2009 Nicola sought Robert’s agreement to moving with the children to

the eastern states where Nicola wants to train as a hairdresser. Robert was unwilling to agree to the children leaving Perth which prompted Nicola to file an application on 23 September 2009 to permit her to relocate. Before this application, neither of the parties had sought any parenting orders in relation to the children and appeared able to resolve the children’s living arrangements between themselves.

The evidence

7 Robert and Nicola were unrepresented at the trial. Each of them gave evidence

and was cross-examined. Nicola’s father, [Jeff P], gave evidence from the eastern states by telephone linkup. He also verified the contents of a statement attached to Nicola’s affidavit which was filed in Court on 3 March 2010. Heather gave evidence in support of Robert’s position.

8 I did not have the benefit of any report from a Family Consultant or Court Expert nor was an Independent Children’s Lawyer appointed.

Credibility

9 The issue of credibility was not a matter of significance in this case. Each party,

in my view, did their best to tell the truth as they saw it. There were not many relevant factual disputes between the parties and ultimately the case was not determined by my

[2010] FCWA 37

accepting the evidence of one party where it may have differed with the evidence of

the other party.

Positions of the parties

Nicola’s position

10 When Nicola filed her application, she sought orders for Tracey and Christian to

live with her and she be able to move with the children to the eastern states for a period of up to five years. At the hearing, Nicola indicated that she was prepared to return to Perth after three years. This, Nicola asserts, would give her sufficient time to train as a hairdresser in the eastern states and qualify her to work as a hairdresser in Perth.

11 During her time in the eastern states, Nicola proposes to live with the children at

her father and step-mother’s home in the suburbs. Apart from her father and step- mother, the children will be living with Nicola’s three youngest siblings aged 20, 18 and 17 years. During her period in the eastern states, Nicola proposes that the children spend time with Robert in Perth during each end of term school holiday period and for up to one half of the children’s Christmas holidays. She also seeks that the costs of the children’s air travel between the eastern states and Perth be shared equally.

12 Nicola further proposes that the parties have equal shared parental responsibility for Tracey and Christian.

Robert’s position

13 Robert sought orders for the children to remain in Western Australia. If Nicola

cannot afford to adequately support the children in Perth or intends to leave Perth without the children, Robert proposed that they live with him, Heather and Ilsa in the country.

14 Although Robert did not, in his court papers seek to spend more time with

Tracey and Christian if they remain living with Nicola in Perth, at the hearing he sought to spend three weekends out of four with the children and regular time during school holidays. Nicola indicated she was prepared for the children to spend the extra weekend time with Robert if she was unable to move.

The Law

15 Section 66A of the Family Court Act 1997 (the "Act") provides that in deciding whether to make a particular parenting order, I must regard the best interests of Tracey and Christian as the paramount consideration.

16 In determining what is in Tracey and Christian’s best interests, I must consider the "primary" and "additional" considerations set out in s 66C(2) and (3).

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17 The primary considerations are:

(a)	the benefit to the children of having a meaningful relationship with both of the children's parents;
(b)	the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

18 I must also have regard to s 66 of the Act which sets out the objects of the Act dealing with children and the principles which underlie those objects.

19 Section 66 provides as follows:

(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
(d)	ensuring 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; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

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(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

20 Other relevant provisions of the Act will be considered later in this judgment.

Principles to be applied in relocation cases

21 In Morgan and Miles [2007] FamCA 1230 (delivered 17 October 2007) the Full Court considered the principles to be applied in determining a parenting application when one party wishes to relocate following the Shared Parental Responsibility Amendments. Boland J said at paragraph 74 of her reasons:

“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”

22 At paragraph 80 her Honour further said:

“80.  It follows from my exposition of the legislation, that earlier core
principles:

– that the child’s best interests remain the paramount but not
sole consideration;

– that a parent wishing to move does not need to
demonstrate “compelling” reasons;

– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

– the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

remain valid.”

Best interest considerations

23 I now deal with the primary and additional considerations before finally determining what is in Tracey and Christian’s best interests.

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

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24 It is not in dispute that the children have a very close and loving relationship

with each of their parents. Whilst I am satisfied overall that Nicola was the children’s primary caregiver before the separation in February 2007, Robert’s role was nonetheless significant.

25 The parties first separated in 2003 when Christian was about seven months. Robert did not challenge Nicola’s evidence that the parties remained apart for about 13 months and during this period Tracey and Christian lived with Nicola who cared for them on a full-time basis. The parties resumed living together in July 2004 and after Robert lost his job it was agreed he would look after the children full-time whilst Nicola worked in hospitality and sales and supported the family. Robert did not dispute that he looked after the children for about 12 months before resuming work.

26 Since the parties’ final separation in February 2007, the children have lived with

Nicola and she has been primarily responsible for looking after their needs. As earlier noted, Robert has generally spent each alternate weekend with the children.

27 Although Robert’s involvement with the children has not been as great as

Nicola’s since the separation, she readily acknowledges that Robert is a good father and the children look forward to spending time with him. In my view, the children will clearly benefit from having a meaningful relationship with both of their parents.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

28 There is no evidence to suggest that the children are likely to be exposed to any abuse, neglect or family violence whilst in the care of either parent.

Additional considerations

29 I now turn to 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;

30 As earlier noted, Tracey is 10 years of age and Christian is 7 years of age.

Neither party sought that a report about the children’s wishes be obtained so I am limited when dealing with this consideration to my assessment of the parties’ evidence.

31 Nicola says Tracey is excited about the prospect of moving to the eastern states

but is also worried about missing her father and other family members in Perth. In relation to Connor, Nicola says he does not wish to go to the eastern states. Nicola is concerned that Christian’s negative attitude to the prospect of moving to the eastern states is because of comments Robert has made to Christian

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32 Robert conceded during cross-examination that because of Christian’s age, he

may think moving to the eastern states will mean he must stop seeing Robert and this
may explain his negative views.

33 I have no doubt both children are likely to be sad about the possibility of leaving

Perth and spending less time with Robert, Heather and the other relatives with whom they are close. I am not, however, satisfied that either child is sufficiently mature to warrant any significant weight being given to the views they have expressed to either parent concerning the proposed move to the eastern states. The evidence suggests that Tracey and Christian are adaptable children who are likely to make new friends easily and adjust to a new school if they move to the eastern states for three years, particularly once Christian realises he can look forward to spending longer periods with his father in Perth during school holidays, than has been the case in the past.

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);

34 I have already considered the very close and loving relationship that Tracey and

Christian have with each of their parents. Nicola’s parents divorced many years ago. Her mother, [Jean], lives in Perth with her husband, [Ronald]. Since June 2009 Nicola and the children have lived with Jean and Ronald whilst she awaits the outcome of these proceedings. There is no question the children enjoy a good relationship with them and will benefit from maintaining that relationship.

35 Nicola’s father, Jeff, lives in the eastern states with his wife, [Tanya], and

Nicola’s three youngest siblings. Two other siblings live in neighbouring suburbs of the eastern states with their partners.

36 Whilst the children have seen their relatives in the eastern states far less

frequently than their relatives in Perth, I am satisfied the children get on well with them and there is no evidence to suggest the children will not benefit from developing their relationship with their extended family in the eastern states.

37 Robert’s mother, [Shauna], lives in Perth. Nicola readily agreed that Shauna is

very close to the children. She has looked after them overnight and spends frequent and regular time with the children which is encouraged by Nicola. I accept Shauna is a very significant person in the children’s lives and they will benefit from maintaining a strong relationship with their paternal grandmother. Robert also has two elder sisters who live in Perth. Nicola agrees the children also get on well with their aunts.

38 As earlier noted, Robert is engaged to Heather who gave evidence to support

Robert. Heather has been a significant person in the children’s lives since she commenced living with Robert a few years ago and helps provide for them during their visits. There is no reason for me to doubt the children enjoy a strong and beneficial relationship with Heather.

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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; and

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

39 I intend to deal with these considerations together.

40 When assessing the parties’ attitudes to the responsibilities of parenthood, a very

important consideration is the likelihood of each parent positively promoting the
children’s relationship with the other.

41 I am satisfied each of the parties recognise the importance of the other in the

lives of Tracey and Christian and can be relied upon to encourage and facilitate
a continuation of the very close relationship each of them have with the children.

42 To their credit, the parties have been able to resolve the children’s living

arrangements following the separation and it was only when a decision needed to be made on whether Nicola could take the children to the eastern states that an application was filed. Robert did not suggest Nicola has tried to discourage the children from spending time with him and I have little doubt Nicola would have agreed to Robert spending more time with the children than has occurred in the past, particularly during school holiday periods had he requested it. As earlier noted, Nicola indicated she would agree to the children spending three weekends out of every four with Robert when he sought this at the hearing.

43 The fact that the children enjoy such a close relationship with each of their

parents is strong evidence of Nicola’s support for the relationship. I am satisfied Nicola will not try to undermine the children’s relationship with their father if she is able to relocate and can be relied upon to comply with orders of this Court relating to the time the children are to spend with Robert during the three year period.

44 As previously mentioned, most of the responsibility for the day to day care of

Tracey and Christian since the parties’ separation has fallen to Nicola. I accept that at times Nicola has struggled to financially provide for the children’s needs on the income she has received, particularly during periods when little or no child support has been paid by Robert. During 2008 Nicola says there were periods she was living on about $103 per week after paying for private rental accommodation. Nicola’s care of the children included her arranging for Christian to have speech therapy twice a week at the suburban Development Centre in 2009. It was also not challenged that Christian suffered with learning difficulties and behavioural problems at school. He was diagnosed with sleep apnoea and in 2008 his adenoids were removed which appears to have brought about a marked improvement in Christian’s wellbeing. At times I accept Jeff provided funds to help Nicola with payment of her bills.

45 Overall, I am satisfied both Nicola and Robert are committed and loving parents

to the children and both have demonstrated a good attitude to the responsibilities of parenthood, other than in respect of Robert’s attitude to the payment of child support. He is presently in arrears in an amount of about $1,300 and at the time of the hearing

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Nicola had received no child support payments since December 2009. Robert gave up his job in December 2009 so he could stay at home and look after Ilsa after Heather was offered work at a mine site. Robert did not resume work until 10 March 2010 so paid nothing in child support for some three months during which Nicola was left to support the children on Centrelink payments. Although I accept Robert and Heather have struggled financially from time to time and the extra income Heather would earn working at the mines would help them get back on their feet financially, Robert’s conduct in quitting his job without discussing his plans with Nicola and thereafter paying nothing in child support for a significant period was irresponsible and reflects poorly on him.

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;

46 This is very important. If Nicola moves with the children to the eastern states,

Robert will see them much less frequently than he is able to at present. The children will also see much less of Heather and other family members in Perth, particularly Robert’s mother who has enjoyed a lot of contact with the children.

47 I accept Robert genuinely fears the children will miss the time they are presently

able to spend with him and his family in Perth. Neither party suggested it was reasonable or practicable for Robert to consider moving to the eastern states so he could spend more frequent periods with the children if they are permitted to relocate.

48 If Nicola is allowed to move with the children, she proposes they spend time

with Robert in Perth for eight days in each end of term school holiday period and for up to one half of the children’s annual Christmas break. This is significantly more holiday time than Robert has enjoyed in the past. Nicola further proposes that the children have frequent telephone contact with their father and other family members in Perth and also communicate with him by e-mail and webcam if Robert acquires a computer for his home use. Robert did not oppose Nicola’s proposals for holiday time with the children if her application succeeds.

49 I accept Nicola is most anxious to move to the eastern states and live with her

family whilst she seeks to train as a hairdresser. If Nicola qualifies, it will provide her with a trade from which she is likely to benefit financially and be able to provide the children with a better standard of living.

50 To permit Nicola to move with the children to the eastern states will also enable

Tracey and Christian to spend much more time with their maternal family in that city than is possible if they continue to live in Perth. I have found the children are likely to benefit from being able to develop closer relationships with their extended family in the eastern states.

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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;

51 This factor is also very important since the travel costs of the children spending time with Robert in Perth will be significant.

52 There is no dispute the approximate costs of airfares for the two children to

travel from the eastern states to Perth and return is about $1,000. If the children make the return flight on four occasions each year as proposed by Nicola, it is therefore likely to involve travel costs in the region of $4,000. Nicola seeks that Robert pay one half of this cost. Whilst Robert did not oppose the making of this order if Nicola is permitted to move, he says he is not in a strong financial position and may have difficulties paying his share.

53 Robert did not dispute that during the financial year ended 30 June 2009, his

taxable income was $46,000. As previously noted, he has recently commenced work as a labourer. This is a full-time position for which he is paid $18.00 per hour for a 38 hour week which gives him a gross weekly salary of about $684 per week. Robert further says in addition to this basic salary, he may be in a position to work overtime during busy parts of the year to increase his income.

54 Heather and Robert pool their incomes to meet expenses other than Robert’s

child support which has in the past been deducted by Robert’s employer. Heather presently works as [a trainer] for which she says she is paid about $15.00 per hour. Her hours of work fluctuate and what Heather is likely to earn over 12 months is far from clear. Nonetheless, Heather and Robert do have the benefit of being able to share expenses.

55 Whilst I accept that Robert is not in a strong financial position, I am satisfied he

is likely to be able to find payments totalling $2,000 over a period of 12 months to meet one half of the air travel costs if relocation is permitted. I am confident Heather would assist him if necessary and in concluding that Robert is likely to be able to find the air travel costs mentioned, I have also taken into account that he and Heather spend about $60 each week on maintaining pets on their property.

56 If Nicola is able to move to the eastern states with the children, she expects to

receive Centrelink benefits of approximately $240.00 per week and wages as a hairdressing apprentice in the region of $230.00 per week without taking into account any child support payments from Robert. Whilst Nicola does not have a job to go to, I accept it would be difficult for her to seek a position when she is unable to give a firm commitment as to when she could start, if at all. Nicola did present, however, as motivated and determined to give a career in hairdressing her “best shot” and genuinely believes she will be successful.

57 I accept Nicola has no debt and whilst her income is likely to remain modest

until she finishes training, I am satisfied she will be in a position to meet one half of the children’s air travel costs for the four return flights from the eastern states each year. Nicola says she expects to pay $150 per week as a contribution towards the

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living costs of herself and the children when she lives with her father. Jeff said the amount of board Nicola would be required to pay has not been finally set and he was negotiable on the amount which would depend on what she could reasonably afford. John also said he was prepared to financially assist Nicola with her share of the airfares if she was unable to make the payments herself.

58 Nicola has in the past managed on much less disposable income than she is

likely to have in the eastern states if she is permitted to relocate and I was left with the impression that Nicola can, if necessary, be very careful with her money and if she takes on the obligation to contribute one half of the airfare costs, I am satisfied the obligation is likely to be met.

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;

Physical needs

59 If Nicola moves with the children to the eastern states, she intends, as earlier

noted, to live with her father, her step-mother and three siblings. Her father’s residence has six bedrooms and three bathrooms. Jeff confirmed Nicola and the children will have two bedrooms and a bathroom for their own private use with the main bedroom being divided so that each child will have a sectioned off area to use.

60 At present, Nicola is living with her mother in Perth. Nicola shares a bedroom

with Christian whilst Tracey has her own room. If Nicola is unsuccessful in her application, she says she will have to find other accommodation for herself and the children in Perth because her mother’s home is not suitable long-term. I accept this evidence. To rent a home in Perth, Nicola says she would have to pay between $280.00 and $380.00 per week. If she is unable to relocate, I accept Nicola is likely to have to find unskilled employment to help support the children once she takes on rental accommodation.

61 There is no suggestion the accommodation available for the children at Robert

and Heather’s home is in any way unsuitable for the children’s requirements nor did Nicola suggest that the children were not adequately cared for during the times they spend with their father and Heather.

Intellectual and schooling needs

62 Prior to the commencement of school in 2010, Tracey attended the local primary

school. Tracey’s school reports were less than satisfactory overall. Both parties agreed that Tracey was the subject of bullying at the school and was generally

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unhappy at this school which no doubt affected her school performance. Tracey changed to another school when school started in 2010. Nicola says the change in school proved beneficial for Tracey and she seems far happier than she was at the previous school. Robert did not seek to dispute this evidence.

63 Christian also attends at the school after having attended a metropolitan

Language Development Centre in 2009. Nicola was very positive about Christian’s improvement during his time at the school which appears to be supported by his final 2009 report. The general comment from Christian’s teacher in his final report (Exhibit 1) is as follows:

“Christian is a friendly cheerful and accepting class member who consistently works to the best of his ability. He listens to advice and feedback which has led to steady improvements in all learning areas. His behaviour is usually of a high standard and he displays respect for everyone around him. Christian thank you for always being so positive, it has been a pleasure being your teachers and we wish you all the very best in Year 2. Congratulations on a fantastic year!”

64 If Nicola is able to relocate, she proposes the children attend the primary school which is nearby to the family home. Nicola’s youngest sister, [Claire], who is aged 17 years, currently attends the local high school which is on the same grounds as the primary school. I accept Claire is in a position to take Tracey and Christian to school each morning and pick them up after school if Nicola’s work or study commitments make it impractical for her to drop off and collect the children. Nicola believes the local primary school will prove beneficial for the children. She says the school has a full-time speech pathologist for Christian who Nicola says worked closely with her brother and younger sister and helped them significantly.

65 I am satisfied that the children will receive a proper level of education and that

their intellectual needs are likely to be properly provided for whether they move to the
eastern states for three years or remain in Perth.

Social and emotional needs

66 It is not disputed that Tracey and Christian make friends easily and in the past

have enjoyed various sporting interests and other activities. I am satisfied both parents
have a good appreciation of the children’s emotional and social needs.

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.

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

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(ii) the likely impact any proposed parenting order under this Part will have on that right;

67 These considerations are not relevant to this case.

Any family violence involving the child or a member of the child's family.

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;

68 Neither party suggested there has been family violence involving either of the

children or a member of their family, nor was there evidence that a family violence
order has been granted which applies to either of the children or a family member.

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;

69 The making of orders that are least likely to lead to further litigation between the

parties is usually preferable because of the emotional harm that is likely to be caused to the children by further litigation. I do not view the prospect of further litigation to be a significant factor. As earlier noted, I am satisfied Nicola will ensure Robert is able to spend the time with the children ordered by the Court if she is permitted to move to the eastern states making it unnecessary for Robert to take any enforcement proceedings. I further accept Nicola will also ensure the children will be able to have frequent telephone contact with Robert and other family members in Perth if she is able to move with them to the eastern states. Neither party, in my view, will be anxious to be involved in further defended proceedings in relation to Tracey and Christian

Any other fact or circumstance that the court thinks is relevant;

70 Other than matters which may be dealt with in my discussion and conclusions to this judgment, there is no other fact or circumstance I view as being relevant.

Section 66C(4) factors

71 I am required by this section to consider the extent to which each party has failed

to fulfill their parenting responsibilities. Unless otherwise mentioned, I am generally satisfied Nicola and Robert have participated in the children’s lives as fully as was reasonable given their circumstances.

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Discussion and conclusions

Parental responsibility

72 As earlier mentioned, Nicola sought an order for herself and Robert to have

shared parental responsibility for Tracey and Christian. This does not relate to the time the children spend with each parent but rather the responsibility for the making of decisions on important long-term issues concerning Tracey and Christian Whilst Robert sought no orders for parental responsibility in his court papers, he did not oppose the order sought by Nicola.

73 Although the parties’ ability to communicate in the past has not been good

overall, in my view, each party wants the best for the children and are likely to have the capacity to discuss important issues concerning the children once I have determined whether the children should move to the eastern states.

74 I am satisfied Christian and Tracey will benefit from having each of their

parents involved in any future major long-term decisions which need to be made concerning the children and I intend to make the order sought by Nicola which, in my view, is in the children’s best interests.

Equal time or substantial and significant time

75 Having concluded the parties should have equal shared parental responsibility

for the children, I must consider whether Tracey and Christian spending equal time with each of their parents would be in their best interests and is reasonably practicable.

76 If I am unwilling to make an order for Tracey and Christian to spend equal time

with each of their parents, I must then consider whether it would be in the children’s best interests to spend substantial and significant time with each of their parents and if so, whether this is reasonably practicable.

77 Neither party sought orders for the children to spend equal time with each of

their parents, whether they remain living in Perth or move to the eastern states for a period of three years as sought by Nicola. Robert concedes the children should continue to live primarily with their mother, whether they are living in Perth or the eastern states. It was only if Nicola insisted on leaving without the children or considered she is unable to adequately maintain them in Perth that Robert proposed they live with him.

78 As earlier noted, there is no suggestion from either party that Robert is

reasonably in a position to leave Perth and make a home for himself in the eastern states. He appears settled living with Heather and Ilsa in the country and having just found work, I accept it would be very difficult for him to establish a new home for himself, Heather and Ilsa in the eastern states, particularly given that Nicola is prepared to return after three years.

79 I must next consider whether it would be in the children’s best interests to spend

“substantial and significant time” with Robert and if this is reasonably practicable.

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For the reasons earlier mentioned, I accept it would not be a viable option for Robert to move to the eastern states and so spending “substantial and significant time” with the children is not realistic unless they remain in Perth. Whilst in my view, the children would likely benefit from Robert having greater involvement in their lives than has been case since the parties’ separation, I accept the distance between Robert’s home in the country and Nicola’s home in Perth would make it difficult for Robert to have involvement in the children’s daily routine. Robert’s evidence that there is approximately 45 minutes travelling time each way between his home and Nicola’s home was not disputed. Robert did not seek time with the children during their school week if they remain in Perth and I accept if Nicola is unable to relocate, the most practical outcome for the children would be for the time they spend with their father to be on weekends and holidays.

Should Tracey and Christian be allowed to move to the eastern states with Nicola?

80 As with many “relocation cases”, this has been a difficult decision because, in my view, each of the parties advance arguments which have considerable merit.

81 I do not view Nicola’s application to move to the eastern states as being

motivated by any desire on her part to limit the time the children can spend with Robert or any desire to harm the strong relationship he has with the children. I accept Nicola’s reasons for wanting to move to the eastern states are genuine.

82 I also accept Robert genuinely fears Tracey and Christian will not benefit from

the move and believes it is best for them to remain in Perth and be able to see him far
more frequently than will be the case if they relocate to the eastern states.

83 Whilst the arguments advanced by each of the parties are perfectly

understandable, it is the children’s best interests which must remain the paramount
consideration in reaching my conclusion.

84 After considering all of the relevant factors, I have concluded that Nicola should

be permitted to move to the eastern states for a period of three years. As earlier noted, I am satisfied Nicola is anxious to train as a hairdresser and commence a career she has wanted to take up for a significant period. It is not disputed that Nicola was accepted for a pre-apprenticeship hairdressing course in the eastern states when she applied in 2009. Whilst it is possible Nicola could also undertake training as a hairdresser in Perth, I accept that living with her family in the eastern states is likely to give Nicola significant financial and emotional support from her father and other family members who can also assist in providing for the children’s supervision needs whilst Nicola undertakes her course. This level of support, I accept, is not likely to be available to Nicola in Perth and is likely to have a positive impact on the children.

85 Nicola has struggled financially over a number of years, particularly during

periods when she has received little or no child support from Robert. Her father confirmed and I accept he has paid a number of Nicola’s bills when she has been unable to meet them. I am satisfied that living in the eastern states with her father, step-mother and other family members will provide the children with the best

[2010] FCWA 37

environment to meet their needs whilst Nicola seeks to qualify as a hairdresser which
I accept can be done within three years if she is successful with her training.

86 If Nicola successfully completes the course in hairdressing, it is likely to enable

her to provide a better standard of living for Tracey and Christian in Perth which I view as an important consideration given she is likely to have the main role in supporting the children until they complete their education. Nicola has been the children’s principal caregiver since the parties’ separation and regardless of the outcome of the proceedings, this is likely to continue.

87 Tracey and Christian are now aged 10 and 7 years and they have established

a very close relationship with their father. Whilst there will be a significant reduction in the frequency of contact, the children will be able to spend more time with Robert during school holidays than has been the case and will have frequent telephone contact between school holiday visits. Given the children’s ages and the strength of their relationship with Robert, I am satisfied that the children will be able to maintain a relationship with their father that is close and meaningful during the three years they will live with Nicola in the eastern states. The children will also be able to spend time with their extended family members in Perth during their school holiday visits and can also communicate with their relatives by telephone and by electronic means if available.

88 I do not doubt that Robert will be heartbroken by this decision. Nonetheless,

I am satisfied the decision is in the children’s best interests. I am confident the children are likely to adjust well to their new home and school and will come to enjoy the three years in the eastern states, particularly if Robert is able to focus on the benefits associated with the move in any discussions with the children which include spending more school holiday time with their father than has occurred in the past and returning to Perth in three years.

Proposed orders

89 Subject to hearing from the parties, I propose making the following orders:

1.	The parties have equal shared parental responsibility for the children, Tracey V born in February 2000 and Christian V born in November 2002.
2.	The children live with the applicant, Nicola P.
3.	The applicant be at liberty to relocate the children to the eastern states for a period not exceeding three years from the date on which the relocation takes effect after which she returns the children to live in Perth.
4.	Until the applicant relocates with children the respondent, Robert spend time with the children which shall include three weekends out of every four.

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5. During the period that the children are living in the eastern states, the respondent spend time with them as follows:

(a)	for up to eight days in each of the children’s end of school term holiday periods;
(b)	for up to one half of the children’s Christmas school holiday period; and
(c)	during such further times as shall be agreed between the parties including reasonable time during any period the applicant may return to Perth with the children other than during their school holidays and during any period the respondent may travel to the eastern states.

6. The respondent have liberal telephone contact with the children and also communicate with them by electronic means if available to the respondent.

7. If the respondent is unable to spend the time with the children during their school holiday periods as provided for in these orders he give the applicant not less than one month’s prior written notice.

8. Unless otherwise agreed, the respondent be responsible for organising and meeting the costs of the children flying from the eastern states to Perth to spend time during the school holiday periods and the applicant be responsible for organising and paying for the costs of the children making the return flight from Perth to the eastern states at the conclusion of each period of holiday contact.

9. The parties do keep the other informed of any changes to their residential address and telephone numbers.

10. The applications of the parties otherwise be dismissed.

I certify that the preceding [89] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate