Pappel and Weaver

[2020] FCWAM 52

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA AT 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PAPPEL and WEAVER [2020] FCWAM 52

CORAM: KAESER M

HEARD: 6 & 7 MAY 2020

DELIVERED : 27 MAY 2020

FILE NO/S: PTW 1197 of 2015

BETWEEN: MS PAPPEL

Applicant

AND

MR WEAVER

Respondent

Catchwords:

Final parenting orders; where mother seeks to relocate child to Country A; where father opposes relocation; comparison of competing proposals; where a good bond exists between the child and both parents; discussion of evidence by single expert witness; where the benefit to the child of further developing a meaningful relationship with the father outweighs any potential benefit to living with the mother in Country A; where the difficulty and expense of maintaining contact with the father would adversely affect the child's relationship with him; relocation not permitted; extended time ordered between the child and the father.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Jane Johnson
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Richard Bannerman

Solicitors:

Applicant	:	Kim Wilson & Co
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Bannerman Solicitors

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

Albert & Plowman [2020] FamCAFC 23

Malcolm & Monroe (2011) FLC 93-460

Re F Litigants in Person Guidelines (2001) FLC 93-072

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pappel & Weaver has been approved by the Magistrates Court at 150 Terrace Road, Perth pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 [Ms Pappel], at 22 years of age, came to Australia from [Country A] on a 12‑month working holiday. Within about 18 months, she met [Mr Weaver]; they fell in love and started living together. They got married in [late] 2012 and their child [K] was born in [mid] 2013. Their relationship ended in March 2015.

2Ms Pappel obtained permanent residency in Australia, and has continued to live in Western Australia. Since separation, K has primarily lived with Ms Pappel and spent time with Mr Weaver.

3Ms Pappel wants to move back to Country A with K.

4I must decide whether that is in K’s best interests. I must then decide what time should be spent between K and Mr Weaver whether K is living in Country A or in Australia. Ms Pappel has made it clear that she will not move back to Country A without K and, on that basis, Mr Weaver seeks to spend extended time with him. He does not seek orders for K to primarily live with him.

Witnesses:

Ms Pappel’s sister:

5Ms Pappel has a good relationship with her sister, [Ms T]. Given her own commitments in [Country B], she sees Ms Pappel and their parents irregularly. Her evidence was of little assistance to deal with the issues in dispute.

Ms Pappel’s mother:

6She was a refreshing witness who gave her evidence in a thoughtful manner. I accept her evidence that, in the event Mr Weaver was to travel to Country A to spend time with K, he would be welcome at her home, and she would do everything possible to ensure that the time K spent with him was enjoyable. I formed the view that she would, as she said she would, put aside her feelings in relation to Mr Weaver, because what was important was that K enjoy his time with him.

7She confirmed that, if K was allowed to live in Country A, and orders were made for Ms Pappel to fly him to Western Australia to see Mr Weaver, and Ms Pappel was unable to afford such airfares, then she would pay the fares herself. She said that she would do whatever was necessary to ensure that the orders were complied with. I accept that evidence. She has the financial capacity to assist in that way.

Mr Weaver’s partner:

8[Ms D] confirmed that K and her child [F] get on well together, although F can be boisterous. F is 2 ½ years old. Ms D has spoken to Mr Weaver about his lack of payment of child support for K. She confirmed that K is sometimes clingy at handovers but takes a maximum of 10 to 15 minutes to settle.

9I consider she gave her evidence in a truthful manner and was supportive of Mr Weaver and understood some of his limitations.

Single Expert Witness: Mr E:

10Mr [E] provided a report on 16 January 2020. With respect, the report was convoluted and difficult to follow. I accept that neither Ms Pappel nor Mr Weaver would have found it easy to understand.

11Mr E appeared to be careful not to present a view in relation to the vexed issue of relocation. He was careful to provide recommendations on the basis that the mother was permitted to relocate, and on the alternate basis that the mother was not permitted to relocate.

12The Full Court in Albert & Plowman [2020] FamCAFC 23 (from [19] onwards) said:

[19]Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.

[20]Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.

[21]As was observed in this jurisdiction long ago (see Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819):

... There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities...

...

While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]… (References omitted)

[22]Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn[2008] FamCAFC 128; (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni[2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi[2011] FamCAFC 132 at [40]‑[44]; Whipp & Richards[2012] FamCAFC 11; (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U[2002] HCA 36; (2002) 211 CLR 238 at 261).

13In my view, Mr E could have presented an opinion as to the relocation issue, as long as it was explained and backed up by other empirical evidence or observations of the parties. He appeared to be unduly cautious in his report.

14Whilst I have taken into account his entire report, the following is a convenient snapshot of his views and opinions:

(a) K is developing normally. He has no special needs and presented as an intelligent, active, inquisitive and well‑adjusted child, with no major behavioural, emotional or developmental difficulties;

(b) K has a positive relationship and close bond with both parents. Both parents made him feel safe and secure when observed. The conflict between his parents does not seem to have had a significant detrimental impact upon K;

(c) Time and again, Mr E emphasised that K has missed out on time with Mr Weaver. He said that the conflict has impacted significantly on the amount of time K spends with the father.

(d) He said that the most significant potential risk to K, should Ms Pappel relocate to Country A, will be that he will not be able to benefit as much from what Mr Weaver has to offer;

(e) K was at ease with Ms D and her young child F;

(f) Neither Ms Pappel nor Mr Weaver presented with any major concerns or risks regarding their psychological/personality profile. He noted Mr Weaver was compliant with medication, and his post‑traumatic stress disorder and other health issues did not seem to interfere with his capacity to parent K;

(g) Ms Pappel and Mr Weaver have a distant, distrusting and non‑communicative relationship. Ms Pappel perceives Mr Weaver is dangerous and sees him in a negative light. Mr Weaver says Ms Pappel is a good parent, but feels he needs to ward off her allegations;

(h) Neither parent indicated any significant risk that K will be exposed to neglect, abuse, risk of family violence, substance use or mental health issues.

15On page 32 of his report, Mr E set out what I considered to be the most confusing aspect of his report. He set out a number of risk factors and protective factors that he has gleaned from quoted research. Each of these factors were placed into subcategories referring to “within K”, “within the non-relocating parent” and “within the relocating parent”. He also indicated risk factors and protective factors in relation to parental relationship and the characteristics of the move.

16He then highlighted which of those factors under each category were present in this case.

17He then summarised this passage by saying that should K relocate, there seems to be more risk than protective factors, particularly in relation to factors within K and within the non‑relocating parent (Mr Weaver).

18He also said that there seem to be some protective factors within the child if he relocates, but mostly risk factors pertaining to other areas.

19In relation to K he identified the risk factors as being:

(a) K was under 10 years of age;

(b) he is attached to the father; and

(c) he is involved in his home community.

20The protective factors in relation to K were:

(a) he is intelligent and emotionally mature;

(b) he is well-adjusted;

(c) he has a good relationship with the mother; and

(d) he is not attached to the father’s extended family.

21I note this last comment does not appear to take into account the good bond that appears to exist between K and Ms D and F.

22Mr E was asked, as part of his terms of reference, what the likely impact would be upon K should the mother not be permitted to relocate with him to Country A, including but not limited to the effect on his relationship with the mother and any other significant persons in his life. With respect, this question was worded badly. The court’s decision is not about whether the mother should be permitted to relocate but whether K should be permitted to relocate. The way that question was formed may have led Mr E into some confusion. He answered that question by indicating that the likely impact on K should he remain in Perth is a positive one in that he would continue developing his relationship with both parents and benefit from what they both have to offer. He provided a view about what the impact would be if the mother decided to relocate on her own. That was never really a serious prospect.

23Mr E proffered no opinion about any potentially negative effects upon K of staying in Perth.

24In my view, for all of the reasons stated, Mr E was in favour of K remaining in Perth. He could see many positive benefits to K in that situation and could see no negative aspects to it.

Mr Weaver:

25As Mr Weaver represented himself, I provided him with some procedural assistance in accordance with the guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072.

26Mr Weaver made some appropriate concessions. He accepted that some incidents had happened (which will be explored later). He provided reasonable explanations for them.

27He was unable to accept that his previous behaviour had a significant impact on Ms Pappel. I formed the view that he believed he had not acted improperly, but did not understand that he had hurt and upset Ms Pappel.

28He was very firm on the importance of his relationship with K. He was clearly emotional when asked to consider the impact of K moving to Country A. He realised that his relationship with K would be very badly affected. He accepted that he could not afford to travel to Country A to visit and, in my view, realised he would be at the beck and call of the mother in bringing K to Western Australia to see him.

29Mr Weaver’s demeanour changed when he was discussing the relationship between K and F. It was clear that this was an important aspect of his life. The importance of K in his life was also without doubt.

30When asked to describe three positive things about Ms Pappel as a mother, he quickly answered that she was loving and nurturing; was protective and had good morals and values that she passes on to K. I formed the same conclusions about Ms Pappel.

Ms Pappel:

31Ms Pappel was emotional giving her evidence, in particular, when talking about the ways she says the father behaved during their relationship. Ms Pappel has made allegations of physical, emotional, sexual and financial abuse. Fairly early in their relationship, Mr Weaver suffered a traumatic event. He became involved in an altercation with a neighbour and the neighbour attacked him with a [weapon]. He suffered physical injuries but also experienced post‑traumatic stress disorder.

32Mr Weaver denied virtually every allegation made against him in relation to the various forms of abuse and family violence.

33Whilst he represented himself, Mr Weaver did put various propositions to Ms Pappel to indicate that he did not agree with certain elements of her evidence. He failed, however, to produce any evidence or elicit any answers in cross examination that led me to consider that her evidence, on a whole, was untruthful.

34On balance, I generally preferred Ms Pappel’s evidence on these issues to that of Mr Weaver. Her evidence was given in a manner that indicated these were very serious issues for her. It may be that, because of Mr Weaver’s difficulties arising from the traumatic attack, he does not recall precise events or he does not appreciate the impact of his behaviour upon Ms Pappel.

35Having said that, I did not accept all of Ms Pappel’s evidence. In my view, she relied upon a lack of memory to avoid answering questions where she thought they would be against her interests. She was not prepared to make concessions, when that concession might be seen in a negative light by the court. An example is that she obtained [a] Country A passport for K. She was asked whether she was able to obtain the passport without Mr Weaver’s authority. Clearly the answer to that question was “yes”, because she got it without his authority. While she had some consular assistance in obtaining that passport, it would have been very clear to her that she was applying for and obtaining the passport without Mr Weaver’s knowledge or consent. Her answer was that she could not remember.

36In my view, Ms Pappel exaggerated elements of her affidavit evidence. One example is that she said Mr Weaver forced her to breastfeed. In cross examination, she changed that evidence to say that he wanted her to continue breastfeeding, but that she had difficulties with it. They are very different things.

37A further example is that, in her original case information affidavit, Ms Pappel said that Mr Weaver had refused to return K to her following separation. In cross examination, she revealed that she never had a discussion with him after he took K into his care, and she had never even asked him to return K. It was therefore not possible for him to have refused to return K to her. Despite this she gave sworn evidence in her case information affidavit that he did refuse. I find that she exaggerated that evidence potentially in an effort to make her case appear stronger than it was to support an urgent application.

38Ms Pappel seemed to say that because of inadequate legal advice, she did not get a proper chance to raise her concerns with the court before final orders were made in September 2017. There are two reasons why I do not accept that proposition. One is that Ms Pappel was interviewed in January 2016 by the (then) single expert witness, [Mr B]. She accepted that she was given an opportunity to raise all of her concerns with the single expert witness and she did so. In addition, the final orders, made on 8 September 2017, were made by consent.

39Ms Pappel first mentioned the prospect of moving back to Country A to Mr Weaver shortly after her return from her holiday in 2018. She had no intention or plan to move to Country A until then, even after her father’s accident in 2015. Interestingly, it was Mr Weaver who first raised the prospect of Ms Pappel not being happy in Australia. In text messages at the end of her holiday, he asked whether she was happy living in Australia and expressed his understanding that whilst it would have been lovely to see her family again, it must have been hard to leave them and return to Australia. In response, Ms Pappel said that she would love to live in Country A.

40Ms Pappel struggled to answer questions about any positive aspects of the relationship between K and Mr Weaver. When asked what benefits there were in K having a relationship with Mr Weaver, she struggled, but answered that he provides a link to his Australian heritage and that Mr Weaver is a “father figure”.

41She confirmed that she does not have photos of Mr Weaver in her house and has not ensured that there is at least a photo of him in K’s bedroom.

42When she was asked what three things K might lose if he was to live in Country A, she took a very long time to answer. In the end, all she could say was that she hoped that he would not lose anything. She clearly does not accept or understand the importance of the ongoing relationship between K and Mr Weaver. She does not accept that he has anything of value to offer K. In my view, her honest answer would have been that K would lose nothing if he were to move to Country A, because losing his relationship with Mr Weaver would be of no significance.

43In late October 2018, Mr Weaver refused to agree to K moving to Country A. As a result, Ms Pappel said, she commenced these proceedings. Those proceedings began in December 2018, but her initial documents said nothing about any proposed move to Country A. It was not until she amended her application in February 2019 that she included an order to relocate K to Country A. In my view, even though she says that in October 2018, she wanted to move; this was not a high priority, as her original documents did not seek that order.

44Ms Pappel said in cross-examination that when she suspended K’s time with Mr Weaver, she did not tell K anything about why he was no longer seeing him. I do not accept that evidence. K had been in a routine of seeing his father every second weekend for a significant period. I have no doubt that there would have been at least one question from K about why those arrangements had changed or why he was not seeing him.

45Ms Pappel provided no explanation whatsoever to Mr Weaver, except to say that K was unavailable. Ms Pappel accepted that, when time restarted, she did explain to K why there would initially be a person present when he went to see Mr Weaver. She told him that a lady would be there to make sure mum and dad were alright.

46Given that she provided this explanation, this confirms my view that she would have provided some explanation to K about why he was not seeing Mr Weaver. In my view, she simply refused to give that evidence. I infer that this evidence would not have assisted her case.

47At the time of trial, K was spending every second weekend with Mr Weaver from Saturday morning to Sunday afternoon.

48Until the conclusion of the evidence, Ms Pappel’s proposals revolved around a maximum of two nights with Mr Weaver until K reached 10 years of age ([mid] 2023). There appeared to be no particular “magic” to this proposal in relation to the age. Nothing in her evidence justified a change to a more extensive arrangement after the age of 10, as opposed to any other age.

49Extraordinarily, at the end of the trial, after all witnesses had given their evidence and before closing submissions, Ms Pappel sought to rely upon a revised minute of proposed orders. These new proposals made some dramatic changes:

(a) the “maximum of two nights with the father” proposal was gone. Pending relocation or if relocation was refused, she now proposed that K could spend two nights with Mr Weaver on the weekend immediately after the trial. A fortnight later, he could commence spending three nights with Mr Weaver from Friday to Monday on each alternate weekend;

(b) the school holiday proposals changed from a maximum of two nights with Mr Weaver to one full week in the July 2020 school holidays (and in other term holiday periods);

(c) in the event K was to live in Country A, Ms Pappel proposed that K spend time with Mr Weaver in Country A for 10 days in December 2020. He could then spend four weeks with Mr Weaver in Australia from July 2021. Her earlier proposals provided for a maximum of two days in Mr Weaver’s care until 2023.

50Ms Pappel’s counsel submitted that the following evidence caused Ms Pappel to reconsider her proposals and concede that there was effectively no risk to K in Mr Weaver’s care:

(a) Mr Weaver conceded in his evidence that he threw K into a pool, as K had told Ms Pappel, but he explained it was “in fun” and harmless;

(b) He conceded that K had cried on several occasions at handovers;

(c) He also conceded that K had cried about soiling himself at Mr Weaver’s home on one occasion, whereas he had previously only said that K was embarrassed.

51These three elements were said to be so significant that Ms Pappel changed her case dramatically, in that she felt comfortable with K spending much more time in Mr Weaver’s care, including for long extended holiday periods.

52Up to that point, K had only ever spent two consecutive nights with Mr Weaver.

53I do not accept that these three elements could have caused such a change for Ms Pappel. During her evidence, she maintained an underlying concern about Mr Weaver’s parenting and K’s safety in his care. She relied upon the allegations and disclosures that led to the Department’s investigation, and comments made by K.

54Ms Pappel says she no longer considers there is any significant risk to K in being in Mr Weaver’s care. I consider that this conclusion could have been reached well before the end of the oral evidence at trial. Throughout the proceedings, it appears that Ms Pappel has elevated her concerns to a level that was not justified. That has, indirectly, led to K having fairly limited time with Mr Weaver.

55The single expert witness provided his report in January 2020. Given the content of that report, Ms Pappel could have made these concessions at that stage of the proceedings. She did not do so, and instead, pressed for orders at trial that provided ongoing limited time between K and Mr Weaver.

International relocation: What are the principles?

56As the parents of K were married, these proceedings are determined by the Family Law Act 1975 (Cth).

57In reaching my decision, I must treat the best interests of K as the paramount consideration, but not the only one. I am also guided by the objects and the principles set out in the Act.

58The objects are to ensure that the best interests of a child 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.

59The 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

(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).

60In determining a case such as this, the court must examine the proposals by each party to determine which of them is more closely aligned with the best interests of the child.

61In Malcolm & Monroe (2011) FLC 93-460, the Full Court said at 85,515:

We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259‑260. Equally, there is no onus on a parent who may be "left behind" to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court's inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.

62When making a parenting order, the Court must apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. This presumption does not apply where there has been abuse or family violence. The presumption can also be rebutted by evidence which satisfies the court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility.

63A consequence of making an order for equal shared parental responsibility is that the court must consider equal time and if not, substantial and significant time with each parent.

64In this matter, Mr Weaver seeks an order for equal shared parental responsibility, whilst Ms Pappel seeks an order for sole parental responsibility.

65In my view, there is reasonable cause to believe that Ms Pappel was subjected to family violence during the relationship. I preferred her evidence over Mr Weaver’s in that regard. For that reason, the presumption does not apply.

66Mr Weaver and the Independent Children’s Lawyer both proposed an order for equal shared parental responsibility. Whilst the presumption does not apply, I can still consider making such an order. Whilst Ms Pappel’s stance softened at the end of the trial, it was very clear that she still had a significant difficulty communicating with Mr Weaver. Mr Weaver presented well at trial, and no doubt has improved his ability to communicate over the years since separation. Text messages tendered during the trial showed that, at least prior to the end of 2018, Ms Pappel and Mr Weaver communicated fairly well in relation to arrangements. I accept, however, that it may be difficult for Ms Pappel to communicate with Mr Weaver in the future.

67The parties did, however, reach agreement earlier this year about extending K’s time with Mr Weaver, without involving the Independent Children’s Lawyer.

68The imposition of equal shared parental responsibility involves requiring the parties to communicate and attempt to agree on major long‑term issues that affect K.

69The Act defines these long-term issues as including:

issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

(a)the child’s education (both current and future); and

(b)the child’s religious and cultural upbringing; and

(c)the child’s health; and

(d)the child’s name; and

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

70The Act makes it clear that, to avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

71These issues may not arise, but if they do they will be infrequent. I am therefore going to make an order for equal shared parental responsibility. The alternative is to provide sole parental responsibility to Ms Pappel. This would mean that she could make some very important decisions concerning the long-term wellbeing of K without reference to Mr Weaver at all. I do not consider that this is in K’s best interests.

72Equal time is not sought by either Mr Weaver or Ms Pappel. Substantial and significant time is proposed.

73To assist me, the legislation sets out a number of considerations that I must examine.

74The primary considerations are the benefit to K of having a meaningful relationship with both of his parents, and the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

75I have no doubt that K would benefit from having a meaningful relationship with both of his parents.

76During cross examination, Mr E said that the current relationship between K and Mr Weaver could potentially be maintained by regular communication and visits at least once per year. Ms Pappel’s original proposals provided for holidays twice per year, in different locations. This was never a realistic proposal, as the father would be responsible for sharing the cost of K travelling from Country A. He would also be responsible for his own travel and accommodation costs for two trips to Country A each alternate year. All of that would be beyond his means.

77Ms Pappel’s amended proposals (made after hearing Mr E’s evidence) decreased the frequency of visits to one in each calendar year. Trips were, however, envisaged in December in one year and in July in the next year. They would alternate thereafter. That would mean there would be gaps of seven months and then 17 months between each visit. Ms Pappel had made the travel arrangements more palatable to Mr Weaver, by proposing that beyond a single period in December 2020, all further visits would occur in Western Australia. She would meet the costs of return travel of K and of any accompanying adult to and from Western Australia.

78I accept that Ms Pappel would maintain regular Skype and/or telephone communication between K and Mr Weaver. She was proactive in this respect when she holidayed in 2018 (Exhibit M5).

79I am concerned that the good relationship that currently exists between K and Mr Weaver would be damaged if K lived in Country A. In addition, if K stayed in Australia, on Ms Pappel’s current proposals, he would have much more extensive time with Mr Weaver.

80In my view, this would likely lead to an improvement in the strength of the bond and the relationship between K and Mr Weaver. K would miss out on this opportunity were he to live overseas. Ms Pappel’s Counsel conceded this point in closing submissions.

81I am not satisfied that Ms Pappel’s proposals would be sufficient to maintain the quality of the current relationship between K and Mr Weaver. There would also be no prospect of improving that relationship if K was in Country A.

82I am also not satisfied that K has been subjected to or exposed to abuse, neglect or family violence, save to the extent that, as a young child, he may have been present when family violence took place between his parents. I am satisfied that any such exposure has had no impact on him. I am also satisfied that it is not necessary to craft orders to protect him from such harm in the future.

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

83K is too young for his views to be given any significant weight.

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)

84K has an excellent relationship with Ms Pappel. She has been the primary and constant guiding force in his life to date.

85He also has a good relationship with Mr Weaver. Mr Weaver clearly is very attached to him, and the depth of his feelings showed in cross examination.

86The time that K has spent with Mr Weaver has been fairly limited, but, despite this, he has forged a good bond – one that is worth nurturing.

The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child

87There has been no need to make any significant long-term decisions for K.

88I am not satisfied that Ms Pappel’s actions in withholding K from November 2018 to March 2019 were justified. Until her holiday to Country A from September to October 2018, K was having alternate weekend time with Mr Weaver. For all intents and purposes, that time was progressing well. K gave no indication to Ms Pappel that there were any issues with this time. K then had an enjoyable holiday in Country A.

89Within a few weeks of returning from that holiday, K had made a disclosure to a counsellor (not to Ms Pappel). That led to a Department of Communities investigation which found that there was insufficient evidence to substantiate any allegations of impropriety against Mr Weaver.

90The precise nature of the disclosures are at the lower end of the spectrum of behaviour. The disclosure related to Mr Weaver pushing K. There could be any number of innocent explanations as to why K may have made such a disclosure. Roughhouse play might have occurred and this is simply K’s interpretation of what occurred.

91One incident was clarified during the trial. Ms Pappel said that K had claimed the father had thrown him into a pool. She took this very seriously. At trial, Mr Weaver accepted that this had happened, but explained that this was in the context of having fun; that there were others in the pool and that K enjoyed it. Ms Pappel appears to have accepted this explanation, as it formed one of the reasons why she made very significant changes to her proposed orders at the end of the trial.

92In my view, once the Department’s investigation was concluded, time between K and Mr Weaver could have been reinstituted immediately. Since then, K’s time with Mr Weaver has been quite restrictive. It began with a few hours. It was only early in 2020 that Ms Pappel agreed to extend that time to include an overnight period.

93K has no relationship with any of Mr Weaver’s close relatives, as he has no contact with them. He also rarely sees Ms Pappel’s family, given they live [overseas].

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

94One sad aspect of Mr Weaver’s evidence is that his desire to own real estate was expressed as a means of one day being able to provide for K by paying some expenses such as university fees. The unfortunate aspect, which I accept he understood by the end of the trial, is that he has paid virtually no child support to date. He has therefore ignored K’s current needs. These needs are forgotten in the (perhaps) forlorn hope that he might be able to provide some financial assistance when K is much older. What K needs is Mr Weaver’s assistance now.

95Mr Weaver had overlooked that point and Ms Pappel has been left to cover all of the expenses required to maintain K on a daily basis. She works full time and has received virtually no child support from Mr Weaver.

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

96In my view, Ms Pappel has not carefully thought through the reality of a potential life in Country A. She has a relatively vague plan about obtaining employment and her potential living arrangements. She relied upon a March 2018 letter about a potential job offer, were she to return to Country A. There is no indication that offer might still be available.

97In Country A, Ms Pappel has the option of living with her grandmother, that is, the maternal great grandmother. She is elderly and lives in a two‑bedroom apartment. The reality is that, if she was to live there, she and K would share one room whilst her grandmother would have the other room. That may be appropriate on a short-term basis.

98She also has the option of potentially renting an apartment from a friend, which would be sufficient for her and K. She was unable to give much detailed evidence about the cost of living apart from the potential rental cost of the friend’s apartment.

99I am not satisfied that Ms Pappel has carefully thought out the prospect of surviving financially in Country A, but I am also confident that, if she was struggling, her mother would help her.

100K would experience significant change by relocating. Apart from no longer spending regular time with Mr Weaver, he would have to change schools. He has recently commenced school and is no doubt starting to form friendships within his school environment. Those friendships would cease. Not only would he have to change school, but he would be attending school in a different country with a different culture and language. He is, however, relatively fluent in Country A [language] and speaks to Ms Pappel’s extended family in Country A language rather than English.

101I accept the evidence that English is taught in Country A schools from Year 3. K, however, would be entering Year 1 in Country A later this year. He therefore would not be formally taught English for another two years. It would be up to Ms Pappel and her family to maintain his level of English, so that he could continue to communicate effectively with Mr Weaver. The maternal grandmother confirmed that she speaks Country A language in her household, and I have no doubt that Ms Pappel would generally speak Country A language in her household, and with her family and friends. It would require a significant conscious effort on Ms Pappel’s part to continue to speak English frequently with K, so that his level of English does not drop off to an extent that he is unable to properly communicate with Mr Weaver. Were that to occur the last remaining method of maintaining a relationship with him would be lost. That would not be in K’s best interests.

102K would benefit from the support of Ms Pappel’s extended family. Her parents currently reside in different homes but the maternal grandmother visits the maternal grandfather on a daily basis and supports him. The maternal grandfather suffered an unfortunate accident, which has led him to require care on a daily basis. He works part-time but the maternal grandmother still provides him daily meals, because he is unable to cook for himself.

103K is [a] Country A citizen by birthright and has [a] Country A passport, so living in Country A on a permanent basis is possible.

104There may be some delay in obtaining flights out of Australia to Country A given the current pandemic and travel restrictions.

105I am satisfied, in particular, given the maternal grandmother’s evidence that any orders I make in relation to holidays for K in Western Australia would be complied with, either by Ms Pappel or with financial assistance from her mother.

106There is no realistic possibility of Mr Weaver affording travel to Country A to see K. He is on a disability pension and has no contact or communication with extended members of his own family. Whilst he owns some property in [Country Town A] and [Country Town B], they have little equity. Mr Weaver has plans to potentially live in the Country Town A property.

107The other property is co-owned with Mr Weaver’s brother, with whom he conceded he does not speak. Selling a property would require his brother’s consent and that might be difficult. There may be little equity in that property but at least if it is sold, Mr Weaver would no longer have to pay ongoing mortgage repayments. He could, potentially, put those savings towards future airfares in order to see K, or to the payment of ongoing child support.

108Mr E observed a good bond between K and Ms D and F. Mr Weaver’s evidence was telling when discussing how K gets on well with F. I accept that this is the case.

109Whilst Ms Pappel has amended her proposals to provide that K spends time with Mr Weaver in Western Australia on one occasion in each calendar year, that is not enough to avoid damage to K’s relationship with Mr Weaver, if K was living in Country A.

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

110As discussed, Ms Pappel amended her proposals, and this alleviated the future expenses for Mr Weaver. The significant distance between Country A and Australia, and the associated difficulty and expense of K spending time with Mr Weaver would, however, substantially affect K’s right to maintain personal relations with his father.

111Were K to remain in Australia, there are no such issues.

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

112Ms Pappel would be happier and more settled were she to be able to return to her home country with K. In Australia, she is without significant family members. There is, however, no evidence to indicate that her sense of isolation has impacted upon her parenting of K in any significant way. The parties and the single expert witness all agreed that she has done a marvellous job and that K is a lovely and well-cared for child. Therefore, although she may prefer to live in Country A and may be saddened by the prospect of having to remain in Australia for the time being, this has not adversely affected her parenting. K is by all accounts a happy, settled and well‑loved child.

113I have no doubt about Ms Pappel’s ability to care for all of K’s needs, whether in Country A or in Australia.

114I also have no doubt as to Mr Weaver’s capacity to care for K for regular and extended periods. By the end of the trial, Ms Pappel had conceded this issue.

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

115I have canvassed the importance of K’s Country A heritage and his link to Australia. Both are equally important.

If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

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

116Not applicable.

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

117I have canvassed much of this topic when discussing other factors. A further concern was Mr Weaver’s evidence that he moved to Perth to be closer to K’s school. Since that time, however, he has not attended at the school. It has clearly been open to him to become more involved in K’s education. There has been no order preventing him from doing so and his lack of action is at complete odds with his statement that this was the reason he moved to Perth.

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

118I have found there was likely family violence during the relationship, and whilst it has had an ongoing impact on Ms Pappel, it has not had an ongoing impact on K.

If a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

119Not applicable.

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

120If I ordered that K was to live in Country A, there is little prospect in Mr Weaver making a further application for his return to Australia.

121If I ordered K to remain in Australia, Ms Pappel could potentially make a further application, when K is older and there has been some significant change in circumstances. That door would remain ajar.

Any other fact or circumstance that the court thinks is relevant

122Not applicable.

Summary:

123The holiday to Country A in 2018 was the impetus for Ms Pappel wanting to relocate back to that country. I am conscious that there can be a significant difference between the amount of fun and excitement one experiences during a holiday (in particular a return to a former country of origin) and the reality of living in that country. Part of the joy Ms Pappel experienced was to see family members, who she had not seen for a significant period. She no doubt felt the nostalgic pull of her country of origin, and missed her family and friends. Those feelings are heightened during a holiday. Those feelings are not necessarily experienced at the same level in the event that person returns to live in that location.

124As Ms Pappel conceded in cross examination, had she not had that holiday in 2018, she may not have proposed a move back to Country A.

125Notwithstanding that, I accept that Ms Pappel feels isolated in Australia. She came to Australia on a working holiday. Whilst here, she got married, had a child and separated. As a result, Ms Pappel has been in Australia for nearly 10 years, whereas her original plan was to travel to Australia for a 12‑month working visa, with the possibility of a further 12 month extension.

126On balance, however, I consider K’s best interests lie in remaining in Australia. A move to Country A would deny K the prospect of further developing his meaningful relationship with Mr Weaver.

127I must, therefore, consider what time arrangements should now be put in place. Ms Pappel’s proposals at the end of the trial were very similar to those of Mr Weaver. Ms Pappel’s proposals were couched as the alternative “if relocation was not permitted”. Subject to the precise timing, it was agreed that K could spend alternate weekends from school Friday to school Monday.

128In school holidays, Mr Weaver proposed half; whereas Ms Pappel proposed one week. The difference is minimal. In my view, Ms Pappel’s proposals are appropriate.

129Mr Weaver sought no orders in relation to Christmas or Easter periods. Ms Pappel’s proposals were reasonable and I therefore adopt them.

130There was no real contention in relation to Mother’s Day or Father’s Day in each year and I therefore adopt Ms Pappel’s proposals.

131There was very little difference between the proposed orders in relation to each party’s birthday, and Mr Weaver sought no specific order in relation to K’s birthday. Again, I adopt the mother’s proposed orders.

Other issues:

The timing of alternate weekends:

132Ms Pappel’s proposal was to start alternate weekends (Friday to Monday) from 21 May 2020 and start a full week from the July 2020 school holidays. The Independent Children’s Lawyer wanted to start with two weekends being from Friday to Sunday and then extending to the Monday morning. The Independent Children’s Lawyer also proposed a limitation on the time with Mr Weaver if he moved outside the Perth metropolitan area, so that K would not be travelling a significant distance on a Monday morning. I agree with the restriction in relation to Mr Weaver moving, but consider that the “full” weekends can commence immediately.

133This trial concluded on 7 May 2020. The parties agreed that on the weekend commencing 8 May 2020, K would be with Mr Weaver from Friday to Sunday. The next due weekend is that commencing 22 May 2020. K may well have already spent a full weekend with Mr Weaver. These reasons are to be delivered on 27 May 2020. K has, therefore, had at least one weekend from Friday to Sunday. In my view, it is appropriate to extend that time to the Monday immediately.

134I also agree with the Independent Children’s Lawyer’s proposal that there be some time during the week, in accordance with paragraph 5(c) of his minute.

Handovers:

135Mr Weaver sought no particular orders. I therefore intend to adopt Ms Pappel’s proposal for handovers to be at an agreed neutral venue.

136I also agree with her proposed order in paragraph 19. If Mr Weaver elects to move outside the metropolitan area, he will create a significant distance between the parties. He therefore should do most of the travelling. In my view, it is not in K’s best interests to have to travel backwards and forwards to a country town such as Country Town B, but that is an issue for Mr Weaver to consider in the future.

International travel:

137Ms Pappel wants to be able to take K to Country A for up to six weeks each year. Mr Weaver wants to restrict that holiday to four weeks. Given the distances involved, and my earlier findings, I have no issue with the holiday being up to six weeks. I therefore propose to adopt Ms Pappel’s suggested orders. I am content that her orders include Christmas Day in alternate years.

138Mr Weaver also wants to restrict such travel so as to not interfere with K’s education. I am not satisfied that such a restriction is necessary. Given his age and my view that Ms Pappel will avoid clashing with school times to the extent possible, there is no need to impose such an order on her.

139Mr Weaver also seeks orders that Ms Pappel prove she has an ongoing lease in Australia upon her return from any such holiday. This appears to be part of a method of ensuring that Ms Pappel does not travel to Country A and stay there with K. I am satisfied that Ms Pappel is not a flight risk. She has sought permission from the court to relocate K to Country A. She has complied with orders in the past and I am satisfied she will comply in the future. In any event, Country A is a Hague Convention country. I therefore do not propose to put in place this requested order.

140For similar reasons, I do not consider it necessary for Mr Weaver to retain K’s passport. Realistically, it is only Ms Pappel who would have the financial capacity to travel overseas in the near future. Ms Pappel should, therefore, be responsible for the cost of the passport renewals.

Communication:

141Ms Pappel seeks orders in relation to communication between the parties. Mr Weaver does not canvas this issue and, in my view, Ms Pappel suggestions are appropriate.

Various injunctions:

142Ms Pappel seeks various injunctions in relation to the way the parties are to behave in the future. In my view, it is important to make these orders to ensure that both Ms Pappel and Mr Weaver understand their obligations. The orders may assist in creating a harmonious environment for K. I therefore propose to adopt the order suggested in paragraph 26.

143The Independent Children’s Lawyer suggested that Ms Pappel be restrained from moving outside a 50‑kilometre radius from Perth. In my view, there is insufficient evidence to justify such an order. The imposition of equal shared parental responsibility will also impress upon each party certain obligations, including the requirement to consult with the other parent if that parent to move to another area and this would make it significantly more difficult for the child to spend time with the other parent.

Extra-curricular activities:

144Mr Weaver seeks a range of orders that will allow his involvement in such activities. In my view, an order for equal shared parental responsibility and the absence of any injunctions should allow him to be involved in such activities. The independent children’s lawyer, however, suggested an order in paragraph 16 which, I consider to be sensible, and should alleviate any future conflict over these issues.

Family therapy:

145The Independent Children’s Lawyer proposed this. The single expert witness indicated that Ms Pappel and Mr Weaver do not co‑parent, but they have adopted a parallel parenting model. This effectively means that they make their own decisions about K whilst he is in their care and there is little capacity to reach agreement about issues such as discipline, et cetera.

146His report at page 35 stated that

if concerns are noted or if the mother remains concerned about the father’s parenting, or if [K] says or reports concerning issues about the father I recommend reportable family therapy by a psychologist experienced in Family Court matters to help the parents and child to adjust to the changes so that they can co‑parent and communicate regarding child related matters and ensure the parents promote [K]’s relationship with the other parent.

147Given the mother’s concessions at the end of the trial and given that I have no such concerns, in my view, no useful purpose will be served by forcing these parties to engage in family therapy.

Orders:

1The parties have equal shared parental responsibility for [K Weaver] born [mid] 2013.

2[K] live with the mother.

3[K] spend time with the father:

(a)from 5 June 2020, and on each alternate weekend thereafter, from the conclusion of school Friday until the commencement of school Monday;

(b)the above alternate weekend regime applies only whilst the father lives in the Perth metropolitan region. In the event he moves outside of that region, alternate weekend time is to end at 5.00 pm on Sunday;

(c)upon the proviso that the father lives in the Perth metropolitan region, there be additional time from the conclusion of school until 6:30 pm each Wednesday;

(d)the above alternate weekend regime be suspended during all school holiday periods, during which [K] spend time with the father for the first week of the school holiday periods at the end of terms one, two and three in each year;

(e)in 2020, and in each alternate year thereafter, from 12 noon on 25 December until 5.00 pm on 26 December;

(f)in 2021, and in each alternate year thereafter, from 5.00 pm on 24 December until 12 noon on 25 December;

(g)in 2021, and in each alternate year thereafter, from 9.00 am on Good Friday until 6.00 pm Easter Saturday;

(h)in 2022, and in each alternate year thereafter, from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday;

(i)notwithstanding any other order to the contrary, on the weekend of Father’s Day in each year from 5.00 pm on the Saturday immediately preceding Father’s Day until 5.00 pm on Father’s Day;

(j)[K’s] time with the father be suspended on the Mother’s Day weekend in each year until 5.00 pm on Mother’s Day;

(k)on [K’s] birthday in each year, from after school, or from 12 noon if his birthday does not fall on a school day, until 6.30 pm with the parent he is not normally living with or spending time with on that date;

(l)on the father’s birthday in each year from the conclusion of school or 3:30 pm if a non‑school day until 6.30 pm;

(m)[K’s] time with the father be suspended on the mother’s birthday in each year, from the conclusion of school or 3:30 pm if a non-school day until 6.30 pm;

(n)at such other times as agreed between the parties in writing.

4Handovers that do not take place at school are to take place at an agreed neutral venue between the parties’ respective homes.

5In the event the father relocates to any place outside the Perth metropolitan region, then handovers are to take place at a location nominated by the mother close to her home.

6The mother be at liberty to travel to [Country A] with the child on one occasion in each year for up to 6 weeks, as follows:

(a)commencing 2020 and in each alternate year thereafter, such travel may include Christmas Day;

(b)in 2021 and in each alternate year thereafter, such travel must exclude the period of 24 to 26 December; and

(c)the mother is to notify the father at least 28 days prior to her intended travel of the dates of travel.

7During any such travel, whether within Australia or outside Australia, each party is to ensure that [K] is contactable via Skype, FaceTime or such other video communication method as is agreed, on at least two occasions per week.

8Except as provided for in these orders, each party is restrained and an injunction is hereby granted restraining each of them from removing the child from the State of Western Australia and the Commonwealth of Australia without the prior written consent of the other parent (such consent to not be unreasonably withheld) or of the court.

9The parties do all things and sign all documents necessary to obtain and then renew the child’s Australian passport as and when that becomes necessary, with the mother to meet the cost of renewal of the child’s passport.

10All communication between the parties is to be by email or text message (or telephone call in the case of an emergency) and relate only to matters concerning the care, welfare and development of the child.

11Each party shall notify the other party as soon as possible following any change in their email address or mobile telephone number.

12On a without admission basis, each party be restrained by injunction and an injunction is hereby granted restraining each of them from:

(a)denigrating the other party or their family, in front of the child or within his hearing and each party use their best endeavours to ensure other persons do not denigrate the other party in the presence of the child, and will immediately withdraw the child from any situation in which any such denigration occurs;

(b)discussing these orders, proposals or any details all documents relating to the family court proceedings with the child;

(c)showing the child copies of any Family Court documents, including solicitor correspondence, or any other documents created for the purposes of the Family Court proceedings, or causing or allowing any third party to do so;

(d)publicly posting any comments, whether derogatory, inflammatory or demeaning, on Facebook, or any other social media platform about the other party, their families, partners, de facto spouses, or spouses or causing or allowing any other person to do the same; and

(e)causing or imposing any physical punishment on the child.

13 The proceedings otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Magistrates Court of Western Australia at 150 Terrace Road.

CM
Associate

27 MAY 2020