PAZDAN and HARBERS
[2014] FCWA 42
•8 JULY 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: PAZDAN and HARBERS [2014] FCWA 42
CORAM: WALTERS J
HEARD: 6, 7, 10, 11, 12, 14, 18 & 24 MARCH 2014
DELIVERED : 8 JULY 2014
FILE NO/S: PTW 2436 of 2010
BETWEEN: ELENA PAZDAN
Applicant
AND
ADAM HARBERS
RespondentAND
ELKA PAZDAN
First IntervenerAND
MAKSYM PAZDAN
Second Intervener
Catchwords:
CHILDREN – PARENTING – RELOCATION – Where primary carer of young child is the maternal grandmother – Where grandmother is ordinarily resident in North America and wishes to return to North America with the child – Where mother and father separated in 2010 – Where mother and father have an acrimonious relationship and are involved in use of drugs – Where mother and father have been convicted of numerous offences, and each has been imprisoned – Where mother and father have involved themselves in irresponsible and antisocial activities – Where mother and father seek additional time to demonstrate that they are capable of accepting the responsibilities and duties of parenthood, and of caring for the child and providing a safe and secure environment for her – Where mother and father oppose the proposed relocation – Where the maternal grandfather, the single expert and the independent children's lawyer all support the proposed relocation as being in the child's best interests – Where it is clear that the grandmother is the only appropriate person to care for the child – Where the legitimate interests and desires of the grandmother are relevant to the child's best interests – Where the maternal grandmother has or perceives that she has very little support in Australia – Whether parents can have a meaningful relationship with the child if the relocation is to occur – Orders made permitting the proposed relocation
Legislation:
Family Court Act 1997 (WA), s 66A, s 66B, s 66(1), s 66(2), s 66(3), s 66C(2), s 66C(3), s 66C(4), s 66C(5), s 70A, s 70A(2), s 70A(4), s 70DA, s 84, s 84(3), s 89(1), s 89AD
Family Law Act 1975 (Cth), s 64B, s 60CC, , 65DAA
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Mr A McNeill
First Intervener : Ms T Farmer
Second Intervener : Self Represented Litigant
Independent Children's Lawyer : Ms H Turner
Solicitors:
Applicant:
Respondent: North Lake Legal
First Intervener : Summers Legal
Second Intervener :
Independent Children's Lawyer : Helen Turner Barrister and Solicitor
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo (2010) FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Donnell & Dovey (2010) FLC 93-428
Eades & Wrensted [2014] FCWA 15
Goode & Goode (2006) FLC 93-286
Heath & Heath [2012] FamCA 844
Hungerford & Tank (2007) FamCA 637
Jets & Maker (No 2) (2011) FMCAfam 1473
M & S (2006) FamCA 1408
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) (2007) FamCA 1364
Mazorski & Albright (2008) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) FLC 93-424
Plastow & Saville [2013] FCWA 105
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact
Violent Parent) (1999) 2 FLR (UK) 321
Saxena (2006) FLC 93-268
Sayer & Radcliffe [2012] 48 FamLR 298
Sealey & Archer [2008] FamCAFC 142
Selkin & Artliff-Selkin [2013] FamCAFC 19
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FamCA 1246
Yamada & Cain [2013] FamCAFC 64
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1This case is about the living arrangements for [K], who was born [in] 2009. K is now five years of age.
2The primary question for determination is whether K should live with her mother, her father or her maternal grandmother. That question was made more complex by the fact that the maternal grandmother – with whom K has lived since March 2013 – lives in [North America] and wishes to return there as soon as practicable. The maternal grandmother has resided in North America for the past 14 years. She came to Perth in late 2012 on a temporary basis in order to care for K. She has now been here for well over 12 months. She has conceded, however, that she will remain living in Perth if the Court concludes that it is in K's best interests to continue to live with her, but contrary to K's best interests to be removed from Western Australia.
3The maternal grandmother is K's primary carer and primary attachment. She cares for K very well.
4K's mother opposes the relocation. She recognised, however, that it is in K's best interests to continue to live with her maternal grandmother but argued that the maternal grandmother should be restrained from taking K with her to live in North America.
5K’s father, from whom the mother is separated, sought orders to the effect that K should live with him or, in the alternative, his sister. On the first day of the trial, however, the father's solicitor, Mr McNeill, suggested that his client would be willing to accept orders to the effect that K should remain in the care of the grandmother, provided she was prevented from removing K from Australia. While he was prepared to accept such an order, it appears to have been with only a partial concession that it was in K’s best interests to remain in the care of her grandmother. Effectively, the father's proposal was to the effect that the grandmother should remain K's carer for approximately 6 months only – until the father could demonstrate that he was capable of performing the role of K's full‑time caregiver.
6The maternal grandfather, who is separated from the maternal grandmother, supports the maternal grandmother's case. He argues that it is in K's best interests to live with the maternal grandmother and for the maternal grandmother to be permitted to take K with her to live in North America.
7The mother, the father, the maternal grandmother and the maternal grandfather were all parties to the proceedings. In addition, an independent children's lawyer ("ICL") was appointed to represent K's interests.
8The mother and her father were unrepresented at trial. The father was represented by his solicitor, Mr McNeill. The maternal grandmother was represented by Ms Farmer of counsel. The ICL, Ms Turner, represented herself.
9After a trial that occupied seven days, I concluded that K should live with the maternal grandmother, and that the maternal grandmother should be permitted to take K with her to live in North America. The parties had requested that I should advise them of the outcome of the proceedings as soon as possible after the completion of the trial, and I did that after I had heard and considered the closing addresses. The proceedings were then stood down to enable the parties to discuss the form of the orders to be made so as to give effect to the conclusion that I had reached. When they were made, the orders were in a form to which all the parties agreed – although they were obviously not made by consent. I indicated that reasons for my decision would be provided later. These are my Reasons.
Background
10In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties by their first names (and I mean them no disrespect by doing so) – because it is less confusing than referring to them in other terms; and
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
11As indicated above –
a)I have referred to the mother, [Elena Pazdan], as "Elena";
b)I have referred to the father, [Adam Hazdan], as "Adam";
c)I have referred to the maternal grandmother, [Elka Pazdan], as "Elka"; and
d)I have referred to the maternal grandfather, [Maksym Pazdan], as "Maksym".
12I shall also refer to two witnesses by their first names (and again, I mean them no disrespect by doing so):
a)[Kalena Rogowski] is Elka's niece and Elena's first cousin. She is also K's godmother. Ms Rogowski owns her own home in [Suburb J], which is an established residential suburb. Elka and K lived with Ms Rogowski from 1 December 2013 to the completion of the trial on 24 March 2014. I shall refer to Ms Rogowski as "Kalena".
b)[Tracey Walker] is Adam's sister. Ms Walker and her husband live in [Suburb C], which is a semi-rural suburb approximately 40 to 45 kilometres [from] Perth. Their home is approximately 5 kilometres from Adam's home, which is in the adjoining semi-rural suburb of Suburb M. Ms Walker has been strongly supportive of Adam, and of his application for orders to the effect that K live with him. Although she urged the Court to accept that Adam is a capable parent, she put herself forward as an alternative carer for K in the event that the Court were to conclude that K should not live with Elka, Elena or Adam. Indeed, on 7 February 2014, she applied for leave to intervene in the proceedings for the purpose of seeking orders to the effect that K live with her. Her application in that regard was dismissed on 11 February 2014. The orders sought by Adam at trial, however, included – as one of a series of options – that Ms Walker have sole parental responsibility for K and that K live with her and (subject to a number of conditions) spend time with Elena and Adam. I shall refer to Ms Walker as "[Tracey]".
13Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete term “contact” from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
14Elena was born [in] 1987. It follows that she is now 26. Adam was born [in] 1974. He is now 39. They commenced cohabitation towards the end of 2007. While it appears that Elena and Adam reconciled on a few occasions for short periods, most notably in early 2012, the substantive relationship between them ended in December 2009. They never married.
15There is one child of the relationship: K, who was born [in]2009. K is now five.
16Elka was born in 1960 in Poland. She is now 53. After marrying Maksym, the couple moved to Australia. They later obtained Australian citizenship.
17Elka and Maksym had two children, [Peter] and Elena. In 1999, the family (comprising Maksym, Elena, Peter and Elena) left Australia and relocated to North America. Elena was approximately 12 years old.
18Elka and Maksym separated in 2001, when Elena was approximately 14. Maksym then returned to Australia. Elka and the two children remained in North America. I am satisfied that, after separation, Elka did her best to maintain and facilitate contact between the children and their father.
19Elena was accepted into Murdoch University in 2005 and returned to Perth for the purpose of study. She was then approximately 18. She completed two years of a Business Law/Criminology degree before meeting Adam and abandoning her tertiary education.
20Elena and Adam commenced cohabitation in or around October 2007. Although Adam suggested otherwise, I am satisfied that their relationship was characterised by mutual drug use from the outset. It was later characterised by domestic violence as well.
21K was born in 2009. Very shortly afterwards, Elka travelled to Australia from North America to help Elena care for the new baby. Elka remained in Australia for approximately three months. She lived with Elena and Adam for much of that time.
22Elka returned to North America in or about September 2009.
23Approximately three months later (in or about December 2009), a third party notified the Department of Child Protection and Family Support (DCP), concerned about the conditions in which K was then living. DCP investigated and found that Adam, Elena and K were living in squalid conditions, that the adults' relationship was subject to domestic violence and that there was resultant neglect of K.
24The relationship between Adam and Elena deteriorated rapidly in the early part of 2010. Elena took K and left the home on a number of occasions. Verbal and physical altercations between Adam and Elena often preceded and sometimes followed Elena's absences.
25On one such occasion, Adam refused to allow Elena to take K. On 5 May 2010, Elena returned and insisted that Adam allow her to take K. An incident ensued, following which Adam took K to his sister's home.
26On 6 May 2010, Elena applied for and obtained a recovery order on an ex parte basis. At the same time, interim orders were made to the effect that K live with Elena and spend time with Adam "as may be agreed between the parties".
27The application filed by Elena on 6 May 2010 marked the commencement of the proceedings between the parties in this Court.
28Upon learning of the recovery order, Adam delivered K into Elena's care.
29At some stage prior to 6 May 2010, Elena commenced living with her father, Maksym. She had previously stayed with Maksym on many occasions, usually after incidents involving arguments with or abuse from Adam.
30Elena continued to live with Maksym after K was delivered into her care, and Maksym facilitated contact between K and Adam, including by driving between his home and the home of Adam's sister, Tracey.
31Elka made frequent trips to Australia from North America after Elena and Adam separated.
32In 2010, Elka gave Elena $307,000 or thereabouts. The source of the funds comprised a share of the proceeds of the sale of Elka's home in North America. It appears that this was approximately 50 percent of the net proceeds of sale of Elka's home (the other 50 percent having been provided to Elena's brother – leaving Elka with little or nothing). The moneys provided to Elena were to be utilised for the purpose of enabling her to acquire a home away from Adam. Elena later purchased a home jointly with Maksym.
33In August 2012, Elena was convicted of driving without a valid driver licence. It was not her first conviction for driving without a licence. She was sentenced to six months imprisonment, but was only required to serve three months. She was released on parole on 8 November 2012. Maksym looked after K for the first few weeks of Elena's imprisonment. Adam looked after K for most of the remaining period. Elka also looked after K for a period of approximately two weeks in or about September 2012. She took K to the prison to visit Elena as frequently as she could. For his part, Adam did little to ensure that K remained in contact with Elena during her incarceration. According to Elena, Adam brought K to see her "just three times during the entire three months [she] was in custody".
34Upon Elena's release, she returned to live with Maksym and resumed the care of K.
35In January 2013, Elka returned to Australia from North America and resided with Maksym, Elena and K in Maksym’s house. As Elena's drug use continued, Elka began to be responsible for much of K's care.
36In early February 2013, Elena was arrested for breaching her bail conditions. She was remanded in custody for a week. Elka cared for K during that time.
37On 8 February 2013, police were called when Adam abused and insulted Elka during a contact handover.
38On 21 February 2013, Elka was granted leave to intervene in the proceedings between Adam and Elena. When they were at court on that day, Adam walked past Elka making a "gun" signal with his hands, as though threatening to shoot her.
39Elena absented herself from Maksym's home from 22 to 26 February 2013. Elka, who was caring for K, did not know where she was. On the following day (27 February 2013), there was considerable conflict between Elka and Elena. Elena came to the house with a male friend, [Mr C], and the two of them took K with them in spite of Elka's objections. Elka contacted the police, who attended at the house when Elena and Mr C returned a few hours later. When the police arrived, Elena and Mr C ran away, leaving K with Elka. According to Elka, Elena was swearing and screaming at the police. The police eventually arrested Mr C and brought Elena back to the house. It appears that the car they had been driving was stolen.
40When Elena returned to the house, she turned her anger on Elka. She shouted at her and abused her. The police then arrested Elena.
41Shortly after these events, Elka filed an application in a case seeking orders to the effect that K live with her and spend supervised time with Elena and Adam.
42It is clear that both Elena and Adam were angry with and resentful towards Elka at this time. Although Elena was fearful of Adam, she regarded Elka as having interfered unduly in her relationship with K. She felt that Elka had taken over the care of K and was excluding her from K's life. Adam felt that Elka was impeding his contact with K and preventing him from parenting her.
43On 11 March 2013, Adam informed Elka that he did not propose to return K to her. Elka applied for a recovery order on the following day.
44K was returned to Elka's care on 14 March 2013. During the handover process, an ugly incident occurred between Adam and Elka, the latter alleging that Adam assaulted her and broke her phone. Following this, Elka sought and was granted interim orders to the effect that K live with her. K has remained in Elka's care since that time.
45During the early part of 2013, K became fearful of Adam, seemingly because of his threats and behaviour at handovers. She attempted to hide, and even ran away to a neighbour's home, when contact was due to commence. That was distressed is apparent from the evidence of Ms [S], whose evidence I accept without hesitation.
46Maksym was granted leave to intervene in the proceedings on 15 May 2013.
47Until 1 December 2013, Elena, Elka and K continued to reside with Maksym. On that date, Elka and K went to live with Elka’s niece, Kalena. Kalena is, of course, Elena's first cousin. She is also K's godmother.
48At the Readiness Hearing held on 25 September 2013, Elena requested (via her solicitor) that the proceedings be adjourned in order to give Elena time to complete drug rehabilitation. The Court was told that Elena had entered into a drug rehabilitation program at Abbotsford Private Hospital some two weeks previously. The adjournment was granted, but Elena did not complete the period of rehabilitation. Indeed, the evidence reveals that she discharged herself from the hospital a day or so after the Readiness Hearing. She then spent two nights at home and thereafter absented herself for approximately three nights. When she returned home after that period, she did not engage with K; instead, she spent the time sleeping.
49Prior to her relocation to Kalena's home, Elka was struggling financially. She was not in receipt of any government benefits; nor did she receive child support payments from either Elena or Adam. Kalena offered to accommodate Elka and K on a rent-free basis.
50Elka and K lived with Kalena until the completion of the trial on 24 March 2014. As well as providing rent-free accommodation, Kalena assisted Elka financially with some of the costs associated with K's care.
51Elena is currently unemployed. Adam asserts that he is a carpenter, but it appears from his own evidence that his work is sporadic.
52Maksym works full-time as a [tradesman]. Elka has been unemployed since arriving in Australia in 2013. Prior to that, she was employed on a full-time basis in North America as [an] Advisor with [Company A]. She resigned in June 2013 in order to remain in Australia and continue to care for K. She is supported primarily by Kalena. She also receives a parenting payment from Centrelink.
53Both Elena and Adam have extensive criminal records. Elena’s convictions relate primarily to traffic offences, but she also has convictions for drug related offences. On 17 August 2012, Elena was sentenced to six months imprisonment for traffic offences. As indicated above, she was released after three months, but returned to prison in February 2013 for a week after breaching her bail conditions. Her last recorded offence occurred as recently as 27 December 2013.
54Adam’s criminal history is more varied. He too has a large number of traffic offences of various kinds, but also has convictions for theft, assault, criminal damage and the manufacture of amphetamines – for which he was sentenced to two years imprisonment in 2002. His last recorded conviction is in mid-February 2014.
55Both parents have admitted past drug use. Elena claims that she stopped using amphetamines in 2010 and that, save for a brief relapse in 2012 when she and Adam reunited, she is now no longer using drugs. Adam says that, save for the period of relapse in 2012 referred to by Elena, he too is no longer using drugs. He also denies that he has continued to manufacturing drugs.
Relevant Procedural and Other History
56Elena commenced proceedings in this Court in 2010, seeking orders to the effect that K live with her. On 6 May 2010, a recovery order was granted, pursuant to which Adam was required to deliver K to Elena.
57On 9 July 2010, orders were made by consent, allowing Adam to spend time with K as follows:
a)each Wednesday from 1:30 pm to 7:30 pm; and
b)each Saturday from 10:00 am to 5:00 pm.
58This time was to be supervised by Adam’s sister, Tracey.
59On 30 November 2011, orders were made by consent for Adam to spend time with K each alternate weekend from Friday at 6.00 pm to Sunday at 6.00 pm. Those orders also required that Adam attend at Holyoake to complete a Domestic Violence and Relationships Course. It appears that Adam failed to comply with this order.
60The contact arrangements were varied again on 2 February 2011, allowing Adam to spend time with K as follows:
a)each Thursday from 9:00 pm to 7:00 pm; and
b)each weekend from 4.00 pm Saturday until 4.00 pm Sunday.
61Elka sought leave to intervene in February 2013. Elena and Adam were given 14 days to file a response to Elka’s application.
62On 7 March 2013, Elka filed a Form 4 Notice of Child Abuse alleging that K had been exposed to psychological harm as a result of witnessing domestic violence occurring between Elena and Adam and as a result of being exposed to the use of drugs and manufacture of drugs by those same parties. It was also asserted that K had been neglected while in the care of Elena and Adam.
63The following day Elka filed a further application in a case. In broad terms she sought that K live with her and have contact with Elena only while under the supervision of Elka. In relation to Adam, Elka sought that he spend strictly supervised time with K as follows:
a)each alternate Saturday from 1:00 pm till 5:00 pm
b)each intervening Sunday from 10:00 am till 2:00 pm
64Additionally, Elka sought that both parents’ contact with K be supervised until they had each passed no less than two urinalysis tests and DCP had provided a report identifying that K was not at risk while under their care.
65Elka filed a further application in a case on 11 March 2013, seeking a recovery order. Adam had taken K into his care and refused to return her. The recovery order was granted on 14 March 2013.
66Adam filed his documents on 21 March 2013, denying all allegations of abuse or neglect. He also sought a substantial change to the pre-existing care arrangements for K; he proposed that K reside with him and that she have no further contract with Elka until the DCP had investigated.
67Elena filed no further documentation.
68On 25 March 2013, orders were made providing for K to live with Elka. Further procedural orders were also made, and the matter was adjourned to 15 May 2013.
69On that date, Maksym was given permission to intervene as the Second Intervener. Further procedural orders were also made.
70On 31 July 2013, consent orders were made. The orders were similar in effect to those sought by Elka in her application in a case filed 8 March 2013. That is to say, the orders provided that K was to live with Elka (provided she remained within Australia), Elena was to have contact with K supervised by Elka, and Adam was to have limited contact, supervised by a supervision agency. The consent orders further required that Adam undergo hair follicle or hair strand DNA testing for amphetamines. Elena and Adam were each required to attend a gender specific family violence program, and provide the ICL with a certificate of completion at the conclusion of such a course. Furthermore, the orders required that the matter was to be reviewed in late November by a single expert and a report was to be produced.
71On 7 February 2014 Adam’s sister, Tracey Walker, filed an application in a case seeking to intervene in the proceedings.
72The proceedings came before me on 11 February 2014. On that date, I dismissed Tracey's application for leave to intervene. I also made various procedural orders, including an order for an updated single expert report. Relevantly, I gave the father leave to file his trial material by 17 February 2014. The father had failed or refused to comply with previous orders regarding the filing of his trial material, resulting in Elka applying for orders to exclude Adam from participating further in the proceedings. Thus, paragraph 5 of the orders made on 11 February 2014 was as follows:
In the event of the father failing or refusing – for any reason whatsoever – to file his trial material strictly in accordance with the provisions of [these orders], all extant applications and responses filed by the father be dismissed forthwith and without further notice to the father, and all remaining parties have liberty to proceed in the absence of the father.
73The trial commenced on 6 March 2014. It continued on 7, 10, 11, 12, 14 and 18 March 2014. Closing addresses were presented during the afternoon of 18 March 2014, although written submissions were also provided on that day by Ms Farmer, Mr McNeill and Ms Turner. I then indicated to the parties that I would give my decision on 24 March 2014.
74When the proceedings were recalled on 24 March 2014, I advised the parties that I was of the view that it was in the best interests of K for the proposed relocation to North America to proceed. I also advised the parties that Reasons for Judgment would be provided as soon as practicable. The proceedings were then stood down to enable the parties to prepare a minute of orders to give effect to the Court's decision. After a period of approximately two hours, the parties presented the Court with a minute of orders in agreed form. Shortly afterwards, final orders were made in the terms of the minute. Although the form of the orders contained in the minute was agreed, the orders were clearly not made by consent.
75The parties were advised that the Court proposed to review the minute (which was prepared in comparative haste) with a view to improving its structure and some of the drafting – without, of course, altering its substantive provisions.
76The final orders made on 24 March 2014 are set out at the end of these Reasons.
Documents Relied Upon
77Elena relied upon her affidavits sworn 27 February 2014, 27 December 2013, 25 March 2013, 20 July 2012, 27 January 2011, 17 November 2010, 1 July 2010 and 6 May 2010.
78Adam relied upon his response filed 11 June 2010. He also relied upon his affidavits sworn 10 June 2010, 8 June 2012, 9 April 2013 and 12 May 2013, and his trial affidavit sworn 17 February 2014. In addition, he relied on his financial statement filed 6 February 2014 and Tracey's affidavit sworn 17 February 2014. At the commencement of the trial, however, Mr McNeill made it clear that Adam would rely primarily upon his affidavit sworn 17 February 2014, his financial statement and Tracey's affidavit.
79Elka relied upon her trial affidavit sworn 2 December 2013, a supplementary affidavit sworn 28 February 2014, a minute of proposed final orders filed 20 December 2013 and her financial statement filed 20 December 2013. She also relied on the affidavits of -
a)[Ms S], sworn 2 December 2013; and
b)Kalena, also sworn 2 December 2013.
80Maksym relied on his affidavits sworn 7 July 2010, 17 November 2010, 13 May 2013, 23 September 2013 and 27 February 2014.
81Elka and Adam filed Papers for the Judge prior to trial. Elena and Maksym did not.
Elka’s proposal
82Elka’s proposals were set out in the minute of proposed orders filed 20 December 2013. I need not reproduce them in detail in these Reasons. In broad terms, however, she proposed that:
a)K should remain in the care of Elka;
b)Elka should be permitted to relocate to North America with K;
c)Adam spend supervised time with K when she is in Perth;
d)Elena and Maksym spend time with K when K is in Perth, and if they happen to be in North America;
e)Elka be responsible for organising one return airfare for K from North America to Perth each year for a period of no less than 10 days (accompanied by Elka);
f)K return to Perth on one other occasion during the year, the cost of the return airfare to be borne by the parents in lieu of any child support payments; and
g)K engage in various forms of Internet/electronic communication with both Adam and Elena.
Elena’s proposal
83Elena’s proposal was set out in a minute of proposed orders attached to her affidavit sworn 27 February 2014. In brief, Elena sought sole parental responsibility for K, and that K reside with her.
84In the alternative, Elena proposed that if her application for sole parental responsibility for K were to be dismissed, the Court should grant Elka sole parental responsibility – but should restrain her from relocating to North America with K.
Adam’s proposal
85Adam’s proposals were set out in a minute of proposed orders attached to his Papers for the Judge. Again, I need not reproduce them in full.
86In brief, Adam sought sole parental responsibility for K and that K live with him. Alternatively, he proposed that K should live with his sister, Tracey.
87As indicated in the introduction to these Reasons, Adam also proposed – seemingly as a further alternative to the primary orders sought by him – that K should remain in the care of Elka in Australia for a period of approximately six months (or such other period as may be required to enable Adam to demonstrate that he has dealt with his various issues and is capable of performing the role of K's full-time caregiver).
Maksym’s proposal
88Initially Maksym proposed that K live with him and that he have sole parental responsibility. He also opposed Elka’s proposal to return to North America with K. However, by the time the matter came to trial, Maksym had recognised that he would be unable to care for K due to his work commitments and that Elka was the most appropriate person to care for K. Additionally, he supported Elka’s proposal that she be able to return to North America with K.
ICL's proposal
89Ms Turner submitted that K should be relocated to North America with Elka as soon as possible. She added:
I do not accept the submissions in his final report of Mr Menagé that the final orders should be delayed for a period of six months.
Basically, the parents have been on notice for a very long time that their parenting skills were inadequate, that K was suffering from neglect, that the drug habit of the parents, coupled with their socialisation with a criminal element, were unacceptable features of their parenting style.
… Neither parent has shown a sustained dedication to improving their behaviour, or "their way of being", to steal a phrase from Mr Menagé.
90Ms Turner also submitted that the Court "has no option" but to make an order for sole parental responsibility in Elka's favour.
Parenting Orders
91This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) (2011) FMCAfam 1473.
92Applications concerning children of parents in Western Australia who are not and have never been married (or, more accurately, applications for parenting orders) are dealt with in Part V of the Family Court Act 1997 (WA) – which I shall call the FCA. Part VII of the Family Law Act 1975 (Cth) – which I shall call the FLA – is the comparable Commonwealth legislation.
93In this summary, and unless otherwise indicated, subsequent references will be to the provisions of the FCA.
94The Full Court carefully analysed the structure and effect of a significant portion of Pt VII of the FLA in Goode & Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to FLA s 64B (FCA s 84), which includes, among other things, a list of the matters with which a parenting order may deal. For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
95Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”: see s 84(3). Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).
96If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision: see the definition of "major long-term issues" in s 7A. Such consultation is not required in relation to issues that are not major long‑term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent: see s 89AD.
97As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 66A:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
98The objects of Pt V, and the principles underlying it, are set out in s 66B. They are important.
99Pursuant to FCA s 66(1), the objects of Pt V are:
… to ensure that the best interests of children are met by:
•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
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
100Pursuant to FCA s 66(2), the principles underlying these objects are:
… that (except when it is or would be contrary to a child's best interests):
•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
•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
• parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
101Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views): see s 66(3).
102Given that all the expressed objects of Pt V are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 66C, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.1 The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
103The primary considerations are set out in s 66C(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
104The additional considerations are set out in s 66C(3). They include:2
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or any family violence order;
k)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"; and
l)any other fact or circumstance that the court considers relevant.
105Section 66C(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent 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 parents. It requires the court to focus upon each party’s ‘track record’ as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated: see s 66C(5). One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child: see s 66(4)(c).
106Although the primary considerations are listed before the additional considerations, they will not always ‘outweigh’ them: see Champness & Hanson (2009) FamCAFC 96 at par 101. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings: see Marsden & Winch (No 3) (2007) FamCA 1364, where the Full Court said at [77]-[78]:
Not only must the "additional" considerations be taken into account, but the two "primary" considerations themselves may tend in different directions.
… (It is not necessary to determine whether other factors serve to) "displace" one of the primary considerations. Rather, (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child's best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
107In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents", although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances: see McCall & Clark (2009) FLC 93-405 at [117]-[122]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
108The Full Court in Goode summarised the above process at [10] (referring to the FLA provisions then in effect):
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC.... The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
109Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay (1996) FLC 92-667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper: see s 89(1).
110When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility: see s 70A. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
111The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence: see s 70A(2) and the definition of "family violence" in s 5. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.3
112In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility: see s 70A(4).
113Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise4), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable5 and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect.6 If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"7 with each parent would be both reasonably practicable8 and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect.9
114In MRR v GR (2010) FLC 93-424, the High Court said (referring to the comparable FLA provisions):
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-sections (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-section (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
15Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
115The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt V itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said (referring to the comparable FLA provisions):10
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
116The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".11
117In Mazorski & Albright (2008) 37 FamLR 518, Brown J dealt with the “additional considerations”, prior to dealing with the primary considerations. In Moose & Moose (2008) FLC 93-375, Boland J (with whom May J agreed) approved of such an approach, saying (in effect) that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under s 66C(2) if it first considers and makes findings about relevant factors under s 66C(3).12
118Having summarised the effect of the amendments to FLA Pt VII in par 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in par 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.13
119The relevant steps under the FCA (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 66C factors and (if possible) make findings about them.
e)Decide whether the presumption in s 70A (that equal shared parental responsibility is in a child's best interests) applies.
f)If the s 70A presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the s 70DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable that the child spend equal time with each parent?
h)If both the above questions are answered in the affirmative, then consider making an order for equal time – but the court is not obliged to make such an order.
i)If the s 70A presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
i)Is it in the best interests of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable that the child spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent – but the court is not obliged to make such an order.
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the FCA. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment of whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the s 70DA presumption has been rebutted or does not otherwise apply, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in s 66 and the factors set out in s 66C).14
120Throughout the entire process, the court must bear in mind that the child’s best interests ‘remain the overriding consideration’, and that those interests are to be ‘ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC’: see Goode at [65.11] and [65.9].
121Notwithstanding the dicta discussed above, the question of an appropriate ‘legislative pathway’ to provide guidance through the intricacies of the FLA Pt VII has continued to trouble judges at first instance. In Cox & Pedrana (2013) FLC 93-537, however, the Full Court said at [31]:
Whilst reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.
“Relocation” Cases
122The following generic summary of the law is based on similar summaries in my decisions in Plastow & Saville [2013] FCWA 105 and Eades & Wrensted [2014] FCWA 15.
123Many judges have described the difficulties inherent in dealing with cases which involve a proposal on the part of a parent to remove children from their present place of residence and relocate with them to a different place, often very distant from the other parent's home (which cases are known universally as "relocation cases"): see, for example, the observations of Judge McGuire in Mabry & Neilson [2013] FCCA 478 at [39]. Occasionally, judges give way to the temptation to describe the effects of a proposed relocation in somewhat emotive terms: see, for example, Heath & Heath [2012] FamCA 844 at [98] to [100]. It seems to me, however, that such language is ultimately unhelpful. How, really, can a judicial officer be expected to balance the inability of a father "to put a consoling arm around [his child]" against, for example, the potentially paralysing unhappiness of a mother who is told that, for all intents and purposes, she must continue to live in one place when she aches to live in another? In that regard, it is helpful to note the following passage from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 160 (at [144]):
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. [Footnotes omitted.]
124Kirby J's comments were cited with approval by the Full Court in Selkin & Artliff-Selkin [2013] FamCAFC 19.
125Suffice it to say that relocation cases are always extremely difficult and emotionally draining for the parties involved in them – who perceive that the stakes are very high indeed.
126The "relevant principles" adhering to relocation cases were restated recently by the Full Court in Sayer & Radcliffe [2012] 48 FamLR 298. Their Honours said (references omitted):
47.It is a now well-established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the [FLA]. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders ...
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents ... It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. ...
50.The legislation ... requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
127In Cox & Pedrana, the Full Court also emphasised that it is not necessary for a trial judge to consider the relevant sections in any particular order It said at [32] (references omitted):
... [The] reference by this Court in [Sayer & Radcliffe] to “commenc[ing] with the presumption of equal shared parental responsibility…” is not a prescription that this issue must be addressed first but, rather, an express recognition of the necessity for findings which firmly establish the bases upon which the Court is exercising its power to make parenting orders.
c)is not in a de facto relationship with anyone who is using illicit drugs or engaged in any criminal practices or involved in any cases relating to care and/or protection of children with the Department for Child Protection and Family Support; and
d)has not committed any criminal or traffic offences over a 15 month period (save for any speeding offence that incurs no more than 2 demerit points); and
e)has attended and completed the Anglicare Fathering after Separation program, and provided to Elka a certificate of completion of that program,
then upon receipt of evidence of compliance with all the sub paragraphs above, such compliance shall be deemed to be a change of circumstance sufficient to warrant Adam reopening the case as to where and with whom K should live, and to otherwise authorise and permit the reopening of the case.
Schooling and Medical
24.Elka provide Elena and Adam with copies of K’s school reports and any other information relevant to her education.
25.Elka inform Elena and father of K’s medical care, and provide them with information of any significant medical issues or emergencies as soon as practicable.
26.The cost of K’s reasonable living expenses, education and medical care be borne by Elka whilst K lives with Elka.
Other Provisions
27.All parties keep the other parties advised that all times of their current residential address, home phone and mobile phone numbers, email addresses and Skype contact details.
28.Within 28 days of her arrival in North America, Elka must sign all such documents and do all such acts and things as shall be necessary to –
a)obtain from a Court of competent jurisdiction in North America recognition of these orders pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, and Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“Child Protection Convention”); or
b)obtain from a Court of competent jurisdiction in North America a declaration of enforceability of these orders in North America pursuant to Article 26 of K Protection Convention; or
c)register these orders in a Court of competent jurisdiction in North America pursuant to Article 26 of K Protection Convention.
29.Elka must, as soon as practicable –
a)obtain documentary proof of her compliance with paragraph 28 above; and
b)file such documentary proof in the Family Court of Western Australia, together with proof of service of such documentary proof on Elena, Adam, Maksym and the ICL.
30.There be liberty to all parties to apply to the Honourable Justice Walters, or in the event that his Honour is unavailable, to another Judge of the Family Court of Western Australia in relation to paragraphs 28 and 29 above.
31.The parties agree and acknowledge that the appropriate forum for any further proceedings concerning parental responsibility, residence, spending time with arrangements, or communication issues for K be the Family Court of Western Australia, and to that end Elka be restrained by injunction from commencing any such proceedings in North America or any other jurisdiction, without the leave of the Family Court of Western Australia having first been obtained.
I certify that the preceding [379] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
______________________________________
1 If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s 66C(6)
2 This list is not intended to be comprehensive. It is simply a summary of the factors in s 66C(3). The actual factors set out in s 66C(3) – or, more accurately, those of them that are relevant – will be considered later in these reasons.
3 See s 70A(3); it is important to note, however, that the Full Court in Goode (at par78) held that the discretion in FLA s 61DA(3) (FCA s70A(3)) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
4 See, for example, Goode at pars46 and 47, and Pender & Haywood [2007] FamCA 1526 at par 44
5 How a court determines "reasonable practicality" is the subject of s 89AA(5)
6 See s 89AA(1)
7 "Substantial and significant time" is defined in s 89AA(3)
8 How a court determines "reasonable practicality" is the subject of s 89AA(5)
9 See s 89AA(2); see also Goode at pars 43 and 44
10 See par 62; see also Sealey & Archer [2008] FamCAFC 142
11 See par 63
12 See also Collu & Rinaldo (2010) FamCAFC 53, at par 335
13
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
par 36
14 See Goode at par 65.8
0
13
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