PEAK and CLEARY
[2017] FCWA 166
•24 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: PEAK and CLEARY [2017] FCWA 166
CORAM: DUNCANSON J
HEARD: 24, 25, 26, 27, 28 JULY 2017
DELIVERED : 24 NOVEMBER 2017
FILE NO/S: PTW 4944 of 2016
BETWEEN: MS PEAK
Applicant
AND
MR CLEARY
Respondent
Catchwords:
CHILDREN - Where orders made for child to live with mother and she be permitted to relocate child to [Country A] - Where there has been family violence - Orders made for mother to have sole parental responsibility for child - Child to spend time with father
Legislation:
Family Court Act 1997 (WA) s 66, s 66A, s 66C, s 70A, s 89AA
Evidence Act 1906 (WA) s 11
Category: Reportable
Representation:
Counsel:
Applicant: Ms P Giles
Respondent: Dr R Ingleby
Solicitors:
Applicant: Kim Wilson & Co
Respondent: Western Legal
Case(s) referred to in judgment(s):
Zahawi & Rayne [2016] FamCAFC 90
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern the child [S] who is seven years of age. S lives with the mother, [Ms Peak] and spends time with the father, [Mr Cleary] each Wednesday overnight and two out of three weekends. The mother wants S to continue living with her and she seeks to relocate him to [Country A]. The father wants S to continue living in Perth.
The orders sought by the mother
2The orders sought by the mother are contained within a minute of orders sought filed on 24 July 2017. The mother proposes that she have sole parental responsibility for S and that he live with her. She seeks an order that she be at liberty to relocate S to live in Country A on a convenient date after 1 January 2018.
3The mother proposes that S spend time with the father in Perth prior to the relocation each alternate weekend for a period of up to four nights during the school holidays.
4S's time with the father is to be subject to various conditions including restraining the father from drinking alcohol or using illicit drugs while S is in his care.
5The mother proposes that after S's arrival in Country A she provide the father with information as to his residential address, contact details and educational matters.
6In terms of S's time with the father, the mother proposes that S spend time with him on three occasions in each calendar year gradually increasing to periods of not exceeding 14 days.
7The mother proposes the father be at liberty to spend time with S in Country A on a gradually increasing basis for up to 10 days three times a year. If however, the father is unable to obtain a visa enabling him to travel to Country A, the mother proposes he spend time with him in either Sydney, Melbourne, or Brisbane.
8In the event the mother is not permitted to relocate S to Country A she proposes that she be at liberty to travel overseas with him on three occasions each year. She proposes that this occur for the whole of the July school holidays, for the April school holidays in even numbered years and the September school holidays in odd numbered years, and for a period of four weeks during the December/January school holidays.
The orders sought by the father
9The orders sought by the father are contained within a minute of final orders sought filed 3 July 2017.
10The father proposes that he and the mother have equal shared parental responsibility for S. Until the conclusion of 2017 he proposes S spend time with him overnight every Wednesday and two out of three weekends.
11With effect from the commencement of school in 2018 he proposes a three weekly rotation, with S spending time with him for two nights, three nights and then four nights in each week and one half of school holidays.
12With effect from the commencement of school in 2019 the father proposes S live with the parties on a week about basis.
13The father proposes various injunctions and orders regarding the provision of information.
14In the event S is permitted to relocate to Country A, the father proposes that S live with the mother and spend time with him for the whole of the March and September school holidays and for four weeks during the December/January school holidays. The father also proposes that S spend time with him in Country A and in the event that members of his family travel to Country A, the mother should facilitate S's time with them.
15Both parties seek orders regarding the cost and conditions of travel.
FAMILY BACKGROUND
16The mother was born [in] 1971 and is 46 years of age. She is a full-time parent.
17The father was born [in] 1968 and is 49 years of age. He is a [landscaper].
18The parties commenced a relationship in 2009 and began living together in [Country B] in early 2010.
19S was born [in] 2010. The parties separated on 14 February 2014.
THE PARTIES AND THEIR EVIDENCE
The mother
20I consider the mother endeavoured to give truthful evidence. She appeared to be quite fragile and during the course of cross-examination made a number of concessions, partly because she did not seem to have the strength to object. For example, the mother was asked about the parties' move to Australia and in particular their discussions about their options in doing so. It was put to the mother that those options were not mentioned in her affidavit and she conceded that there were serious omissions in her affidavit in this respect. I am inclined to accept the mother's evidence that she always wanted to return to Country A and that she felt she had no choice but to come to Australia as she did not want to remain in Country B.
21There were some inconsistencies in the evidence of the mother in respect of her cocaine use, but she did not deny this use.
22The mother spoke positively of S's relationship with the father. She acknowledged S and the father love each other.
23The mother conceded at the time she left Country B for Country A in 2014 she wanted the father to join them there.
24A disappointing aspect of the mother's evidence was an occasion when she withheld S from the father on the day he was to attend S's great‑grandmother's birthday. She said she did this because S had told her on two previous occasions that he had not been supervised. This was at a time when the orders provided for supervision.
25I did not see the mother as a spiteful or mean-spirited person and she clearly had concerns for S. It is possible however that on this occasion she might have dealt with this in some other way, perhaps by insisting on supervision. Having said that, I think it may be very difficult for the mother to confront the father about any issue.
26An inconsistency in the mother's evidence was in relation to Exhibit 17 which was a transcript of messages between the parties tendered by the mother. In the document the father referred to the mother in foul language and he threatened her. When the document was put to the father in cross-examination he said he thought it had been edited and that the messages were incomplete. The mother gave further evidence about this and it transpired that Exhibit 17 was a summary of messages exchanged between the parties in 2014 compiled by the mother's solicitor in Country A. The mother tendered the source documents as Exhibit 17A. They demonstrated that parts of the conversation were not reproduced in Exhibit 17, and some messages appeared out of sequence. Counsel for the father suggested that the way in which Exhibit 17 was compiled was "calculated" to rewrite the conversation to present the father in an unfavourable light. The mother's counsel submits this inference is not open to the Court as Exhibit 17 is "less damning of him" than Exhibit 17A.
27The transcript of text messages ought to have been an accurate reproduction of those messages and anything less had the potential to be misleading. Either way however, the messages did not reflect well on the father.
Ms J
28[Ms J] is a counselling psychologist. She prepared a written report as to the mother's diagnosis and treatment dated 30 June 2017.
29The mother was referred to Ms J on 15 November 2016. She first saw Ms J on 2 February 2017 and currently sees her fortnightly, outside of school holidays.
30The mother's general practitioner referred her to Ms J for the treatment of Post‑Traumatic Stress Disorder ("PTSD") and anxiety. Ms J reported her observations were consistent with the mother's clinical presentation and doctor's diagnosis and her presenting mood and affect were congruent with the history of abuse she described.
31Ms J reported that the mother reported a pervading sense of entrapment stating she exists in a state of fear and anxious uncertainty, despite the existence of a Violence Restraining Order ("VRO") against her ex-partner. The mother further reported her sense of entrapment is aggravated by continued financial dependency and a sense of being manipulated and controlled by her ex-partner.
32Ms J reported the mother is likely to require supportive counselling pending the resolution of the proceedings and ongoing treatment to address anxiety and PTSD. She may also require treatment to address any depression and adjustment issues which potentially arise in the event the court outcome is contrary to her hopes.
33In cross-examination Ms J acknowledged that there was no reference by the mother's referring general practitioner to the mother's cocaine use. The mother did not tell Ms J of her cocaine use.
34In re-examination Ms J said she had not had any formal training on the effect of cocaine on a person's mental health although she had a general knowledge about it.
Ms G
35Ms G is the mother's sister. She has been financially supportive of the mother and was supportive of her in her evidence. Ms G said the mother did not discuss her use of alcohol or cocaine with her.
36On 19 January 2016 the mother emailed Ms G saying "As much as I'd love to go home I think Australia is the best solution so [the father] can still have access to [S]". The mother wrote she was considering moving to Eastern Australia where she could work. Ms G acknowledged she had not said this in her affidavit.
37Ms G said the mother was in a poor situation when she returned to Country B after being ordered to do so under the Hague Convention.
Mrs Peak
38Mrs Peak is the maternal grandmother. I consider she gave honest evidence. She too was supportive of the mother. The mother had told her she had used cocaine, although that was not in her affidavit.
39Mrs Peak was aware that after returning to Country B the mother was considering her options and was thinking of moving to Perth, but she said she was aware the mother would have preferred Country A to Australia. Mrs Peak also said her understanding was that Perth was a better option for the mother than Country B. She said that she and the mother had discussed her caring for S while the mother sought employment.
Other witnesses
40The mother relied on the affidavits of her brother, [Mr Peak] filed 21 March 2017, S's treating occupational therapist, [Ms F] filed 3 July 2017, and that of barrister and Country A immigration law specialist, [Mr M] filed 3 July 2017. None of these witnesses were required for cross-examination.
The father
41The father was extensively and comprehensively cross-examined by counsel for the mother.
42The father's disclosure was inadequate in relation to certain issues which were in dispute, for example his stated intention to sell the property in Country B and his sale of equipment in [Country C]. He gave the impression that the property in Country B was to be sold to a friend [Mr K], but the evidence did not support that assertion. He said he was likely to receive US$120,000 for the sale of equipment in Country C within the next week. He did not produce paperwork to support the contract of sale. His evidence in these respects is questionable.
43The father denied he intends to return to either Country B or Country C stating his plan is to remain in Perth. I have some doubts about that and it remains to be seen whether he will remain in Perth working as a landscaper or whether he will return to Country C. I do not doubt however that he is sincere in his love for S and wishes to spend frequent and regular time with him, which he could do if he remains in Perth.
44The father admitted he gets angry and did not deny his outbursts. He admitted he "exploded", but said he had not done that for some time. He said he had not expressed anger for some time, although there was an incident of road rage in 2016. He was also convicted of an offence in Country B in early 2016 in which he resisted arrest.
45The father accepted that he frightened the mother during the relationship, but not after the relationship and he said he did not frighten S.
46I consider the father minimised his behaviour towards the mother. As discussed below, at times during their relationship he was violent, aggressive and overbearing. The father assaulted the mother and she suffered injury.
47A number of incidents were put to the father in which he was alleged to have assaulted the mother. In response to many, he denied, or said he could not recall doing so. In many instances I do not accept his denials, nor do I accept that he was unable to recall the circumstances.
48The father denied threatening the mother in emails until emails containing threats were put to him.
49I consider the father lacks insight as to his behaviour. He said he never saw injuries on the mother. He used foul language to her. For example when he threatened to flog her senseless, he described this as him "venting".
50There is no doubt that the father was quick to anger during the relationship. He said the mother was argumentative and angry and often drunk. A most disturbing aspect of the incidents between the parties was that some occurred in the presence of S.
51Where the mother's evidence differs to that of the father in relation to many incidents of violence, I prefer the evidence of the mother. I refer below to my findings in that respect.
52I consider the father is devoted to S and wants to maintain his close relationship with him. I have some reservations however about his conduct in the future, including managing his anger and drug use.
Ms Cleary
53[Ms Cleary] is the father's sister. I consider she gave honest evidence. She was supportive of the father. She was asked about the father's future plans. She did not say anything inconsistent with the father's evidence in that respect.
Mr B
54Mr B is the father's brother. He worked for the father in Country C for some years. The father paid legal fees for him in the sum of $60,000 which he has not repaid.
55Mr B was very supportive of the father. A number of incidents were put to him. Not unlike the father he recalled most incidents in general terms only. I am not sure he gave entirely truthful evidence regarding an incident when the father was outside the parties' accommodation with a gun and wearing just a towel. He recalled an incident like this, but was unsure if it was the same night.
56Mr B gave some evidence about the father selling [equipment]. He said the father had not said he wanted to sell the Country B house. He also said the father had always rejected the idea of selling the boat.
57Mr B recalled the father had guns and he spoke of an incident in which he and the father were shooting at fish in the water.
Ms E
58[Ms E] is the paternal grandmother. She was very supportive of the father and had a great deal to say about everything. She said she did not want to denigrate the mother's character but went on to make a number of adverse comments about the mother. She was closely aligned with the father. At one point she said "I would never ever have said anything against my son."
Ms C
59[Ms C] is the father's aunt. She too was supportive of the father and aligned with him. She spoke of the incident of road rage, but said the father did not say anything to the other driver. This was inconsistent with the evidence of the father who stated that he said "bad things" to the driver.
Mr Cleary Snr
60[Mr Cleary Snr] is the paternal grandfather. He lives in [Coastal Town B] and is retired. The father has helped him financially. He and his partner travelled to Country B and undertook work on the house there. Not unlike other witnesses, Mr Cleary Snr remembered certain incidents, for example when a child gate was broken, but he did not see how it happened and he did not ask. On that occasion he did not recall the father getting angry with the mother. As to the father's future plans Mr Cleary Snr said it depended on the outcome of the case, but the father had not talked about going back to Country C. In relation to selling the property in Country B the father had said to him it was not a suitable time to be selling property.
Dr Phil Watts
61Dr Watts was appointed single expert witness on 19 December 2016. He provided a report dated 28 February 2017. He also gave oral evidence. Dr Watts' evidence was of assistance to me.
62In the summary of issues Dr Watts reported:
… The mother alleges a relationship of domestic violence and feels very fearful. The father sees the mother as "making up good stories", having an alcohol problem and says she acts irrationally. He sees himself as supportive, she sees him as not living up to his parts of various agreements.
63Dr Watts accurately reported that both parties drank excessively and used cocaine.
64Consistent with the evidence as to family violence Dr Watts in cross‑examination, said that many of the incidents, as discussed with him had core elements of commonality, but one or both of the parties was "spinning the incident to make it either far more sinister or less sinister than it may have been". Dr Watts reported that the parties were in a domestic violence situation with each blaming the other.
65Dr Watts reported in relation to the mother:
… She presents as highly anxious and traumatised. Therefore, there is no doubt in my mind that the mother genuinely believes that the father is highly dangerous and she is very fearful. The issue of note, however, is whether that is an objective reaction to the situation or an emotionally‑aroused over-reaction to a perception.
66I refer below to my findings in relation to the family violence perpetrated by the father upon the mother. I agree with Dr Watts' assessment that the mother genuinely believes the father is highly dangerous and she is very fearful. I am of the view, having regard to my findings, that the mother's fear is an objective reaction to the situation and not an emotionally‑aroused over-reaction to a perception.
67In terms of the personality assessment Dr Watts said at [30]:
Therefore, the mix of personalities shows a father who is likely to be quite domineering and overbearing but lacking insight into his personality-style, dealing with a mother who is avoidant and lacks assertiveness skills, and has coped by drinking alcohol. It is a recipe for interpersonal disaster.
68In submissions the parties agreed with Dr Watts' assessment as do I.
69Dr Watts referred to a flourishing relationship between S and the father and also to a strong bond between them.
70Dr Watts referred to the importance of the mother having therapy to address her issues and in particular the trauma caused by the family violence. He recommended that S's education needs be addressed by the parents. He suggested the father might benefit from medication rather than psychological therapy, but that he should continue to receive therapy.
RELEVANT HISTORY
71The mother was born in Country A. In 1996 when she was 25 years of age she moved to Australia to work [fly in fly out]. She was based in Perth.
72The maternal grandmother lives in Country A as does the mother's brother. The mother's sister lives in [Country D].
73In 2008 the mother commenced work at [Company A] in Country C as [a supervisor]. She met the father there and they commenced their relationship in 2009.
74The father was born in Australia where he lived until 2004 when he commenced work abroad at Company A [in Country C].
75In April 2010 the mother resigned her position at Company A and the parties commenced living together in [the capital city of Country C].
76The parties moved to Country B in June 2010 where the father had bought a home in [Town M]. The home required renovation. During the renovations the mother lived in rented accommodation. The father continued to travel away from Country B to work in Country C for periods of time.
77The parties subsequently occupied the home in about August 2010.
78After S's birth the mother cared for him. The father spent time in Country B and continued to work in Country C.
79In July 2011 the mother fell pregnant and later suffered a miscarriage.
80The parties had a wedding ceremony in Country B in May 2013, although the marriage was not formalised or registered in Country B.
81The parties' relationship deteriorated. In January 2014 the father left Country B. On 14 February 2014 he sent a text message to the mother in which he told her to leave the home.
82The mother and S remained in the home in Country B until April 2014. Until March 2014 the mother was able to access the father's credit card, but thereafter she was dependent upon borrowing from friends and family for food.
83On 14 April 2014 the mother left Country B with S. The maternal grandmother paid for their airfares and they travelled to Country A. The mother and S lived with the maternal grandmother before renting a home nearby. The mother obtained employment and S commenced pre-school in Country A.
84In April 2014 the mother sent emails to the father saying that she had returned to Country A for a break. She referred to living [there], but stated it was not home. In an email dated 11 April 2014 she stated she wanted them to be a family again.
85The father learned that S had been enrolled in school. He subsequently ceased paying any financial support to the mother.
86On 21 August 2014 the mother commenced proceedings in the Family Court in Country A. She was granted a parenting order in respect of S and an order was made preventing his removal from Country A.
87The father initiated proceedings under the Hague Convention and sought an order for the return of S to Country B.
88The mother deposed that someone had accessed her Facebook page and put offensive posts on it. She reported this to police on 24 September 2014, who recorded threats made against the mother by the father. The mother was advised to and sought a protection order against the father. A temporary protection order was made on 16 October 2014.
89On 16 October 2014 the father's Country A solicitors informed the mother that the father intended to travel to Country A and spend time with S while there.
90The father travelled to Country A in November 2014. The mother required him to deposit S's Country C passport with the Family Court in Country A as a condition of him spending time with S. He was unable to do so as he did not have the passport. He did not spend time with S on this occasion.
91The father again travelled to Country A and arrived at [Town C] airport on 21 January 2015. Country A customs refused him entry to the country. The father had been questioned by Australian boarder officials but allowed to travel to Town C. He was clearly annoyed on this occasion. He referred to the mother as a "psycho b…h". It was put to the father that his behaviour on this occasion was designed to engineer a situation where he was refused entry in effect to bolster his case. The father denied this. I am not convinced that he deliberately ruined his chances of gaining entry to the country. I accept that the father was annoyed and possibly angry when refused entry. I think he would have preferred to have gained entry to the country to have an opportunity to see S.
92The Hague Convention hearing took place in Country A on 18 March 2015 and on 15 April 2015 an order was made that S return to Country B.
93The mother and S returned to Country B on 15 May 2015. The mother said the father had not provided her with accommodation, car and funds as he had told the Country A court he would. The father denied this and said he provided a rental property for her. The mother and S occupied part of the home in Town M.
94The father provided financial support. The mother had insufficient funds to support herself and S and she borrowed funds from her sister. The father said the mother was unhappy and drank to excess. He said by reason of her level of drinking he was unable to send her large sums of money.
95In early 2016 the father was involved in an altercation in which he received a broken nose. He was intoxicated and resisted arrest. In July 2016 he was convicted of an offence and fined.
96In March 2016 the father told the mother they were moving back to Australia. She said and I accept that she wanted to return to Country A but she had no choice. He asked her to find a school for S. She located [School A].
97Upon the parties' return to Perth on 15 May 2016 they lived together in a short‑term rental in [Coastal Suburb F]. The father returned to Country B.
98The mother and S remained in Perth. While the father was away, the mother vacated the apartment. On 1 July 2016 the mother obtained an interim VRO against the father. The parties subsequently entered into undertakings and the interim VRO was discharged.
99Orders were made for S to spend time with the father. Initially that time was supervised but gradually increased moving to overnight time.
100On 24 March 2017 orders were made providing that S live with the father each Wednesday from after school until the commencement of school on Thursday and two out of three weekends from after school Friday until 4.00 pm Sunday.
101The mother does not consider this arrangement to be in the best interests of S and would prefer an alternate weekend arrangement if S must remain in Perth. The father seeks to increase his time with S eventually to a week about arrangement.
102Currently the father pays $880 per week to the mother for her rent and the financial support of her and S. On 23 March 2017 he entered into an undertaking to the court that he would pay the mother the sum of $450 per week, plus rental of $430 per week. In addition, he agreed to meet the expenses associated with S's school fees at School A, his occupational therapy expenses, and his swimming and [foreign language] lessons.
FAMILY VIOLENCE
103It is not in dispute that there was family violence between the parties. Upon the evidence, I find it was mostly perpetrated by the father upon the mother.
104The mother deposed to various incidents of violent behaviour by the father in great detail. These were put to him in cross-examination including the obscene language used by him which need not be repeated here in full. He admitted having assaulted the mother in some instances. In others he said he could not recall or he denied doing so. In many respects I do not accept his denials.
105The father admitted slapping the mother "maybe five times". Counsel for the mother questioned the father about this as follows:
I asked you about slapping, and those five occasions you said all constituted slapping, is that correct? --- Two of them were not actual slaps.
What were they? --- With the back of my hand.
Alright, two backhanders and three slaps? --- It was worse than that, I had my hand closed.
When you say your hand closed, you mean your fist closed? --- It wasn't a punch like this, [motions], my hand was closed.
…
And you hit her with the back of your fist? --- Yes.
106The mother deposed that the father assaulted her for the first time in April or May 2010 when the parties were living together in [the capital city of Country C]. The father denied this allegation. In mid-2010 the mother said the parties argued in the car and the father slowed down the car, opened her door and pushed her onto the road. The mother sought medical treatment. The father described this as a heated argument between the parties and a fight that got out of control. He denied pushing the mother out of the car and said he leaned over and opened the door and asked her to get out. I prefer the mother's evidence and accept her version of events.
107An incident occurred in July or August 2010 when the parties argued. The father threw a phone out of the window. The mother said he punched holes in the bedroom and wardrobe walls. He denied telling the mother it was lucky it was not her. He said the holes in the walls were made by opening the bedroom door onto the wardrobe. Again I prefer the mother's account of the events.
108The father admitted he smashed five mobile phones during the parties' relationship.
109In late September 2010 the parties argued. The father accused the mother of hiding car keys. He slapped the mother with an open hand as he said she had hold of him and was trying to stop him leaving the house.
110The father denied assaulting the mother in early 2011 and did not recall her ribs being strapped thereafter. He conceded that in a physical contest she would come off worse.
111In May 2011 the parties argued after attending [a sporting event]. The father acknowledged he was upset and angry. He said he calmed down. The father admitted he held a taser while the mother was driving and told her to chase a scooter driver to teach him a lesson. He denied he held the taser to the mother's leg. He said at the time it was funny.
112In July 2011 the parties attended the wedding of the paternal grandfather in Perth. The mother said she was four to six weeks pregnant at the time. The father said he did not know that. He went out at night and did not return until the following day. He denied taking drugs, but said he went to visit friends. He could not remember which friends he visited. The parties argued. The father denied pushing the mother on the bed and punching her spine. I accept the mother's evidence that he did. The father admitted that after the wedding the mother said she lost the baby. He did not recall saying there must have been something wrong with the baby, but recalled saying drinking while pregnant would be bad for the baby.
113The father did not recall returning home after his brother's wedding and vomiting onto a laptop. He denied shoving the mother on that occasion.
114In September 2012 the mother said the father was angry with her for not having sent out wedding invitations. He denied assaulting the mother on this occasion, but admitted they fought and that he left with guns, which he said was so that the fight could not get worse and to avoid an aggravated situation.
115In about October 2012 an incident occurred while the parties were on the father's boat. The father recalled the circumstances of the incident as they were put to him, but denied kicking the mother on the chest. He did however tell her they did not need her misery.
116In January 2013 the parties argued about the father drinking beer in the car. The father agreed with the circumstances of this incident as put to him, but denied punching the mother on the face and saying "shut up c..t". When the parties arrived home the father saw an email from a friend, [Mr Z], on the mother's phone. The mother deposed he punched her numerous times in the head, but the father denied this. He said that this was one of the occasions when he hit her with the back of his fist. The father was asked about this in cross examination as follows:
The evidence goes on as follows: "We went to the house and as I was looking around [Mr Cleary] had my phone. He saw an email pop up from [Mr Z] and flew into a rage and said that we are leaving now". Did that happen? --- Yes, it did.
So this was in the house you were inspecting? --- Yes, you have the order incorrect though, I think, of the events.
The evidence goes on "In the car on the way home, he was driving like a maniac and punched me numerous times in the head". --- That's just not correct.
That's right, isn't it? --- Partially.
The part where you were driving like a maniac was true? --- No.
The part where you punched here several times in the head was true? --- This was the time that I mentioned where I hit her like this [motions].
You backhanded her with your fist. --- That's correct.
On several occasions. --- Yes.
How many occasions do you say it happened? --- I don't recall.
Well the evidence is: [Ms Peak] says it happened on numerous occasions, numerous times on this particular occasion. That's right isn't it? --- It happened more than once, that's correct.
More than once, you were very angry because you had seen an email from [Mr Z]. --- Yes I was.
You were jealous? --- Jealous is probably not the word that I would use, but I was upset.
You were certainly very angry. --- Yes I was.
And you erupted didn't you, on this occasion? --- Yes I did.
You said that you were going to throw [Ms Peak] off the cliffs that you were driving past? --- No I did not.
Are there cliffs on the route from the house that you were inspecting to your home? --- All the way.
When we got home, she says, he smashed my phone. Now you've already agreed with me that you have smashed [Ms Peak’s] phone on many occasions. Was this one of them? --- I didn't agree to smashing her phone on several occasions, I agreed to smashing a phone on several occasions.
Smashing a phone on several occasions. Were any of those phones [Ms Peak’s] phones? --- On this occasion it was [Ms Peak's] phone.
And you did smash it? --- Yes I did.
117The mother deposed S witnessed this incident and was crying the entire time. I accept her account of events.
118In April 2013 a further incident occurred, regarding the cooking of the father's steak. The father said he was angry. The parties argued and he kicked the child gate. The father said he did not recall describing the mother as a "parasite and lazy c..t".
119On the occasion of the mother's birthday [in] 2013, the mother said the father was drinking with his brother and had his guns out shooting bottles. The father admitted he had firearms but denied shooting at bottles. The father's brother Mr B recalled them shooting at fish in the water. The father admitted being agitated and drunk and getting into a fight with Lebanese men. The father did not recall grabbing the mother by the throat when she tried to intervene, as deposed by her. He did however recall saying he was going home to get his gun to "sort those f…..g Lebs out". He went home to get a gun, but it was taken away from him by a security guard with whom he had an altercation. The father's description of this incident was confusing. It is however of concern that he was under the influence of alcohol and in possession of a firearm.
120In mid-2013 the parties were on the father's boat during their honeymoon. The father recalled the parties argued, but denied assaulting the mother by pushing her to the ground and kicking her numerous times in the back and kidneys as deposed by her. He did however recall the following day having a conversation about how deep the water was, but denied he said that "nobody would find her". The father denied frightening the mother. I accept the mother's evidence that he said this to her and he frightened her.
121In September or October 2013 the father became agitated after receiving an email about work. The mother deposed the father "blew up" and punched her three times on the side of the face. The father said he did slap her on this occasion. This was not one of the occasions when he backhanded her with his fist.
122In December 2013 the father returned from a skiing trip. The parties argued. The father slapped the mother and backhanded her with his fist. The mother threw an ashtray and the father threw a beer bottle. S witnessed this incident. The father denied seeing the mother's bruised face the next day and said that he never saw any injuries on the mother.
123The father used foul language to the mother. He threatened to harm her. The father threatened to flog the mother, but said it was not a threat and he was just venting. He said it was not possible that the mother should have interpreted that as a threat.
124On 6 October 2013 the father sent an email to the mother in which he said "I wanted to drown you today". He did not consider that to be a threat.
125On 6 October 2013 the father sent a further email to the mother in which he said:
… Honestly. You have to go! Today I hit you with a closed hand. I don't want to continue. I also do not want my kid to leave. You did him a huge injustice. So you have to leave him. I don't care where you go. A shallow grave is my preference but I won't further the pain for my son. So do all of us a favor [sic] and leave with what dignity you have.
C..t
126The father said this was an expression of how hurt he was and not intended to frighten the mother.
127In a further email the father wrote "C..t leave my boy or I will hunt you like the parasite you are".
128The father described the mother as aggressive, argumentative and unable to communicate effectively.
129He father deposed that he found out that the mother was having extramarital affairs which together with her violence towards him led to their separation.
130I find that during the relationship the father was overbearing and aggressive and violent. The mother coped by drinking alcohol and was often intoxicated. The parties' relationship was marred by incidents of violence mostly perpetrated by the father upon the mother. Both parties abused drugs and alcohol. S was exposed to family violence between his parents.
THE LAW
131These proceedings are determined under Part 5 of the Family Court Act1997 (WA) ("the Act").
132In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
133Section 66 sets out the objects and the principles underlying them.
134The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
135The 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).
136In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in sub-sections (2) and (3), being the primary considerations and the additional considerations respectively.
137It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote S's best interests. I am mindful that the best interests of the child is the paramount consideration, but it is not the only consideration. It is necessary for me to consider all proposals or, subject to procedural fairness, to formulate others which I consider to be in the child's best interests.
In Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):
47All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48"Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
PARENTAL RESPONSIBILITY
138Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
139Pursuant to s 89AA of the Act, a consequence of making an order for equal shared parental responsibility is that the court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the court must consider making such an order.
140If the court does not make an order for equal time the court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the court must consider making such an order.
141The mother seeks an order for sole parental responsibility for S. The father proposes that the parties have equal shared parental responsibility for him.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
142S has a meaningful relationship with both of his parents. It is to his benefit that it continues.
143S's relationship with the father is well developed. He enjoys his time with him. They have a close bond. In these circumstances I am satisfied that a meaningful relationship can be maintained whether S lives in Country A or Perth.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
144S was exposed to family violence between the parties when they were together. Since orders were made providing for S's living arrangements S has enjoyed his time with the father. He has not since been exposed to family violence in the care of the father. It was put to the father that he had been involved in an incident of road rage in 2016. The evidence suggests that he overreacted to another driver. The father said on that occasion the driver of the vehicle behind him was trying to intimidate him. The father opened the door and shouted at the driver, and he "might have given him the finger sign". S and Ms C were in the car. I consider that the father is sufficiently concerned about the welfare of S that he is able to acknowledge his poor behaviour in the past. He has however minimised that behaviour and I consider that the father's attitude to family violence must be addressed as recommended by Dr Watts.
145S is not at risk of harm in the care of the mother. She no longer drinks to excess, but it is necessary for her to address her issues and receive therapy for the trauma caused by the family violence as recommended by Dr Watts.
146Dr Watts reports that the mother is protective of S in contrast to the father who is less so. He reported if the mother was to resume drinking at a high level that would pose a risk factor for S. If the father was to excessively use alcohol or drugs, that too would become a risk factor. In evidence the mother admitted to using cocaine once or twice a week with the father until February 2014. The father also admitted to using cocaine until about July 2014 in Country B, and amphetamines in Australia post‑separation. The father still has some contact with the person who supplied him with the amphetamines, although he said this was only "very little" as she has her own life. The father was granted a certificate under s 11 of the Evidence Act 1906 (WA) with respect to this evidence.
147Dr Watts reported that S had been exposed to family violence which is harmful to him. There is not currently a need to protect S from harm. If however, he was exposed to family violence in the care of either party, or if either party were to abuse drugs or alcohol, S would be at risk of harm.
ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
148S is seven years of age.
149Dr Watts reports S is happy with both parents. He expressed a view of having a little more time with the father, but did not want a substantial increase at the time he was interviewed. Dr Watts interprets this as S being secure with the mother, but enjoying his time with the father. Dr Watts' report provides independent evidence of S's views.
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)
150S has a close and loving relationship with both of his parents. He has a good relationship with extended family members. Dr Watts reports and I accept that S enjoys "a really good relationship with both parents". Dr Watts further reports S is clearly happy with his father and secure with his mother. Dr Watts reports the mother was more "emotionally-available" while the father was "interactive and more engaging".
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; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
151The mother has made most of the decisions about long-term issues for S. The father has participated to the extent that he has been able to. Both parties have spent time and communicated with S. Both parties maintain him.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
152If S remains in Perth he will continue to live with the mother and spend regular and frequent time with the father. He will continue to spend time with paternal relatives and members of the father's extended family. He is currently settled in this arrangement.
153The father submits that there is no information before the Court as to the mother's plans beyond the immediate arrangements of staying with her mother for the short term, and that to allow the mother to relocate the child to Country A would be to "gamble" that she intends staying there, and would sever S's paternal relationships.
154During the parties' relationship there were periods when the father worked away. The mother submits that in this respect the effect of relocation would be no different to the position prior to July 2016 when the father was absent from S's life for long periods of time.
155The mother is S's primary carer. She is far from settled. She has a number of psychological difficulties as described by Dr Watts largely arising from her relationship with the father, her ongoing fear of him and her dependence upon him. The mother fervently wishes to live in Country A and access the support of her family, including her mother and her brother. There is no suggestion that the mother wants to go anywhere other than Country A. Although a move to Country A will involve change for S, what will remain unchanged is his primary carer, namely his mother. S is very securely emotionally attached to her. This attachment is likely to enable him to adjust to any changes in his living arrangements.
156Dr Watts refers to the mother as the "constant figure" in S's life. As to how much impact a relocation to Country A would have on S would depend largely on how much time he is able to spend with the father. The mother's proposal in this respect is quite comprehensive including increasing periods of time in both Australia and Country A. This would enable S to maintain the close bond he has with the father.
157S would be able to have electronic communication with the father between face to face visits.
158Overall I consider that the effect upon S of a move to Country A would be beneficial to him and he is likely to gain from the mother's security and happiness.
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
159There is practical difficulty and expense which arises by reason of distance, travel and cost of travel. The parties agree that if S is permitted to relocate to Country A he would spend time with the father on three occasions each year in Perth with the father being at liberty to spend additional time with him in Country A subject to the father being granted a visa to travel there. The mother proposes that if the father is unable to obtain such a visa, he be at liberty to spend time with S in Sydney, Melbourne or Brisbane for four periods of four days during Country A public holiday weekends of the father's choosing, provided they do not fall in the July school holidays.
160As to S travelling to Perth, the mother proposes that the father meet the costs of S's return airfares and also one half of her own airfares until he attains nine years of age at which time he may travel unaccompanied. She submits that the father should meet the costs of travel until she is able to return to the workforce.
161The father proposes that the mother pay for the costs of S's travel to Australia and the costs of her own flights to accompany him until he is able to travel unaccompanied, which the father proposes is at the age of eight years. The father submits that S has been a regular traveller since he was born and that after his first trip to Perth accompanied by the mother there is no reason why the mother would need to accompany him on subsequent trips.
162Dr Watts reported that at the time of his assessment he did not find S to be an overly mature child for his age and that there are issues around S having anxiety. I take this into account in considering the question of accompanied travel.
163As to S spending time with the father in Country A, there is practical difficulty in the father obtaining a visa to enter Country A. Mr M, Barrister prepared an opinion dated 21 June 2017 as to the father's ability (or not) to travel to Country A in the future if the mother and S were living in Country A. Mr M identifies that the father is subject to an "Alert", which although expired remains on the father's record and "unless removed means he will not be permitted to board a craft to Country A unless he gets a Ministerial special direction permitting him to do so". This alert might be removed if the father can convince the Country A Police to inform [Country A Immigration] that he is no longer (or never was) a threat to the Country A public interest. Further, the mother could assist in obtaining the deletion or suspension of the alert, or obtaining a special direction, by satisfying the Country A Police and Country A Immigration that the father "did not threaten her or her family members, or that … he has "changed", made amends, and would no longer be a threat to anyone in [Country A]".
164The mother is prepared to provide an undertaking that she will give written consent to Country A Immigration that she does not object to the current alert in respect of the father being lifted. The undertaking is Annexure 11 to her closing submissions filed 22 September 2017.
165I do not know if the father will be able to enter Country A but the mother offers to provide an undertaking to facilitate that entry.
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
166The mother has the capacity to provide for S on all levels. In Country A she will have the support of family members and she will be entitled to Government benefits. She is well motivated to seek employment. She proposes Country A attends school in [Town R] which is a short distance from where she plans to live.
167Dr Watts reports that as long as alcohol and drugs are not at issue, both parties are capable of meeting S's needs in general. He reports the mother is more attuned to S's emotional needs and likely to be more sensitive to any issues or problems S may have.
168The father is capable of providing for S's needs. He has the financial means to provide for S, although he has been inconsistent in meeting S's education costs.
169The father is capable of providing for S on an emotional level, although Dr Watts reports that he is likely to supervise S to a lesser degree. Dr Watts also reports that S is likely to be treated like a "little mate".
170I find that both parties are capable of providing for S's needs, although I agree with Dr Watts that the mother is better able to provide for his emotional needs.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
171S is seven years of age. Dr Watts described him as "a lovely little child, full of energy and enquiry". Dr Watts also found him to be a little vague and reported that he seemed to have some difficulty at times in comprehending and the level of activity was suggestive of a mild Attention Deficit Hyperactivity Disorder.
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
172This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
173Both parties complain the other has not complied with orders for electronic communication between S and the other parent. Electronic communication is very important and both parties must comply with orders in that respect which clearly benefit S.
174Both parties have demonstrated an appropriate attitude to S except when they exposed him to family violence. The father provides financially for S.
175S enjoys a close and loving relationship with both parents, which would indicate that neither have undermined his relationship with the other.
176Dr Watts expresses some concern for S with respect to the father. He reports as to the father's lack of insight which he says is such that he may be inclined to say things which are inappropriate and speak to S in blunt terms. Dr Watts also reports that the mother's anxiety is likely to transmit a behavioural message of reluctance.
177In respect of both parents these aspects of their personalities should be addressed in therapy as recommended by Dr Watts.
any family violence involving the child or a member of the child's family
178I refer above to my findings as to family violence.
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
179There is no family violence order in effect.
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
180It is desirable to make final orders such that S is no longer the subject of ongoing proceedings between the parties. A refusal of the mothers' request to relocate S to Country A will retain her in Perth, where she is unhappy, unsupported and where she does not wish to be. That may lead to further proceedings.
181If comprehensive orders are made at this time regarding S's arrangements there is less likelihood of future proceedings.
182S is only seven years of age. There may need to be further changes to his arrangements in the future as he gets older.
any other fact or circumstance that the court thinks is relevant
183I refer to paragraph 32 above as to the counselling and treatment required by the mother.
184The mother has extremely severe anxiety and Dr Watts reports she requires long‑term psychological therapy by someone qualified and experienced in trauma.
185Dr Watts opines that S would benefit from continuing to see a counsellor to help him manage the difficulties between parents and provide some support.
186Dr Watts has also recommended that S has a full psychological assessment by an education psychologist.
187The father is currently seeing a therapist which Dr Watts says is beneficial. Dr Watts reports that long-term therapy is required.
188The father has lived and worked abroad for many years. He has a home in Country B and retains business connections with Country C. I cannot be certain as to his future plans. At this time however he has employment in Perth and seeks to continue spending regular time with S in Perth.
189The mother seeks orders restraining the parties from removing the child from the Commonwealth of Australia, with the orders to take effect on the day after she leaves Australia. No submissions were made about this and I assume this order arises from the mother's uncertainty as to the father's future plans. I will hear from counsel in this respect.
CONCLUSIONS
190Having considered the evidence in the context of the primary and additional consideration, I have come to the following conclusions.
Parental responsibility
191There has been family violence between the parties. The presumption that it is in S's best interests that his parents have equal shared parental responsibility for him does not apply. For reasons set out below I intend to order that S live with the mother. I consider it would be in S's best interests for the mother to have sole parental responsibility for him. Having regard to her intense fear of the father, there is no prospect of the mother consulting with the father and endeavouring to come to a joint decision on any major long-term issues.
192The father should however be kept informed of such decisions made.
The child's living arrangements
193As I do not intend to make an order that the parties have equal shared parental responsibility, it is not necessary for me to consider the outcomes provided for in s89AA of the Act. It is necessary for me to make orders which I consider to be in S's best interests.
194The parties' relationship was one characterised by severe family violence. The mother has been left traumatised, with a sense of entrapment aggravated by a financial dependency upon the father.
195The father is devoted to S, although at times lacks insight as to the impact of his behaviour upon S.
196S is attached to both parents, reportedly happy with his father and secure with his mother.
197Dr Watts reports that S does not have the same deep level of attachment with the father and that a separation from the father would be distressing, but not devastating. On the other hand, the mother has been a constant figure in S's life. Dr Watts recommends and I agree that she should be S's primary carer. I intend to order that S live with her.
198I have found it is to S's benefit to have a meaningful relationship with both of his parents. I am satisfied that relationship can be maintained in the future.
199I am mindful of the practical difficulties in S spending time with the father in the event he is permitted to relocate to Country A by reason of distance and cost and also the alert placed on the father by Country A Immigration.
200Both parties have exposed S to family violence in the past. That would not be a cause for concern for S in the care of the mother in the future and provided she does not drink to excess, S will not be at risk in her care.
201The family violence perpetrated by the father upon the mother was severe and has left her psychologically damaged. S is not exposed to family violence in the care of the father at this time and provided he does not abuse alcohol and drugs, S will not be at risk in his care.
202S's time with his father is mutually enjoyable. S has the benefit of close relationships with paternal family. I have taken this into account in coming to my decision as I am satisfied that these relationships can be maintained.
203I consider the mother will comply with spend time orders, although it is possible she will remain fearful of S's welfare in the care of the father.
204Having weighed all of the factors carefully I have concluded that the mother should have permission to relocate S to Country A. I consider this to be in S's best interests. It is likely that the relocation will enhance the mother's parenting of S and her own happiness is likely to have an impact positively upon him.
205I have carefully considered the impact on S of a separation from the father and also the paternal relatives with whom his relationship is important. I am satisfied that S's close and loving relationship with the father can be maintained from a distance and that the orders proposed by the mother for S to spend time with the father are those which will enable this to happen.
206I consider the relocation should take place after mid-January 2018 to enable the mother to settle S in his new environment prior to commencing the 2018 academic year.
Spend time arrangements
207Prior to S's departure I consider it would be in his best interests to spend regular time with the father to enable them to take the opportunity of being together during the forthcoming school holidays and over Christmas.
208I therefore propose to order that S spend time with the father until mid‑January 2018. The mother is at liberty to arrange to depart any time after 15 January 2018.
209I consider the mother's proposals for S to spend time with the father to be appropriate. The orders proposed by the mother with respect to S time with father in Australia until he turns nine, appear to me to be orders which are in the best interests of S having regard to his maturity and sensitivity and also having regard to the mother's anxiety. It is to be hoped that the father will be permitted to enter Country A and spend time with S there and in that respect I have noted the terms of the undertaking offered by the mother to this court.
210It is also in S's best interests that in the event that the father's family members travel to Country A that S spend time with them.
Travel and cost of travel
211I considered the parties' positions in this respect when considering the practical difficulty and expense.
212I am of the view it would be in S's best interests that his air travel be accompanied until he has the maturity to travel alone. I do not consider there is anything "lucky" about the age of nine years (as submitted by the father). In light of Dr Watts' observations as to S's level of maturity, I consider the more conservative proposal of nine years to be an appropriate age.
213Regarding the cost of travel, the mother may incur costs living in Perth when accompanying S, incurring extra expense. I accept the father will have expense if he travels to Country A or interstate. In light of the father's comparatively greater income it is appropriate that he bear the cost of S's airfare and half of the mother's airfare until S attains the age of nine years and can travel unaccompanied. By that time the mother will have had an opportunity to establish herself financially and the parties should share the cost of S's travel. If the mother chooses to travel with him, she is at liberty to do so and will pay her own airfare.
Injunctions
214It is entirely appropriate that both parties be restrained from using any illicit substance while S is in their care. I also propose to make an order that the parties be restrained from consuming alcohol to excess while he is in their care.
Electronic communication
215Electronic communication is important particularly by Skype or FaceTime. Such communication with the parent with whom S is not living should take place not less than three times a week and at such other times as S may request.
Counselling and therapy
216I intend to order that parties have counselling or therapy as recommended by Dr Watts. Having regard to the family violence between the parties, the father's behaviour and its impact upon the mother I consider this is necessary to enable the parties to provide for S's emotional needs.
THE ORDERS
217Subject to hearing from counsel, the orders I propose to make are as follows:
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [Ms Peak] have sole parental responsibility for the child, [S] born [in] 2010.
3Before the mother makes a decision relating to a long-term issue concerning the child she shall:
(a) notify the father by email of the decision she intends to make and the reasons for the decision;
(b) seek the father's comments on the decision she intends to make;
(c) take into account any comments the father makes about the decision she intends to make, provided such comment is received, by email, from the father within five days of notice being given by her; and
(d) notify the father by email of the decision she has made.
The child's living arrangements
4The child live with the mother.
5The mother be permitted to relocate the child to the [Country A] after 15 January 2018.
Spend time arrangements
6Pending relocation to [Country A], the child spend time with the father as follows:
(a) during the school term, each alternate weekend from after school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday;
(b) for a period of four nights commencing on the last day of the school term in December 2017, with the father to collect the child from school on that day;
(c) from 1.00 pm on 23 December until 9.00 am on 26 December 2017;
(d) for a period of four nights commencing on 3 January 2018;
(e) for a period of four nights commencing 10 January 2018; and
(f) at such other times and dates as agreed in writing by the parties.
7Order 6 above be subject to the following conditions:
(a) the father collect the child from school at the commencement of the time spent and return him to school at the end of the time spent; and
(b) a member of the father's family other than the father do collect the child from and return him to the mother if handover takes place at a place other than at the child's school.
Spend time arrangements after relocation
8Upon the mother and the child relocating to [Country A], the child spend time with the father as follows:
(a) on three occasions not exceeding 14 days in each calendar year in Perth during each of the April, September/October and December/January School holiday periods, with the father to meet the costs of the child's return airfares between [Country A] to Perth by the most direct route on the following conditions:
(i)until such time as the child attains the age of nine years the father meet one half of the costs of the mother's airfares between [Country A] and Perth by the most direct route;
(ii)during the time the child is in Perth pursuant to these orders:
(a) from the date of these Orders until 2 September 2018, the child spend two periods of four nights with the father, and spend the fifth and tenth nights with the mother;
(b) from 2 September 2018 until 2 September 2019, the child spend two periods of six nights with the father and spend the seventh night with the mother; and
(c) from 2 September 2019, the child spend 10 nights with the father; and
(iii)the time provided for in the previous provision be arranged so that:
(a) in 2018 and each intervening year, the child is in [Country A] in the period between 20 and 27 December; and
(b) in 2019 and each alternate year thereafter, the child is in Perth in the period between 20 and 27 December;
(b) by telephone, video link, Skype or FaceTime each Tuesday, Thursday and Sunday between 4.30 pm and 6.00 pm ([Country A] time) with the father to initiate the call and the mother to ensure [S] has access to a telephone or computer to receive the call;
(c) by email to the email address provided pursuant to these orders, with the mother to facilitate [S] receiving emails and assist and encourage him to respond; and
(d) at such other times as are agreed in writing between the parties.
9In addition to the time provided for in these orders the father be at liberty to spend time with the child in [Country A] on up to three occasions in each calendar year for up to 10 days, upon giving the mother not less than 21 days' notice of his intention to do so and provided he not do so during the July School holidays.
10For the purposes of the previous order:
(a) the father give notice to the mother by sending her an email to the email address provided in accordance with these orders;
(b) the mother do sign all documents and do all things necessary to consent to the father being granted a visa to travel to [Country A] if required by the Ministry of Immigration ([Country A]);
(c) if the father intends to spend time with the child during the school week, then unless agreed otherwise in writing by the parties, the father ensure the child attends school during the time;
(d) the father provide the mother with notice of the address at which he and the child will be staying during the time, and a telephone number at which the child may be contacted;
(e) on the first day the child spends with the father and on each alternate day thereafter, the father facilitate the child speaking to the mother by telephone; and
(f) the child return to the mother for one night:
(i)until the child turns eight years old, after four nights with the father;
(ii)from the time the child turns eight years old and until he turns nine years old, after five nights with the father; and
(iii)from the time the child turns nine years old, after 10 nights with the father.
11If the father is unable to secure a visa enabling him to travel to [Country A] to spend time with the child, the father be at liberty to nominate four periods of up to four days, to spend time with the child in either Sydney, Melbourne or Brisbane, subject to:
(a) the father giving the mother at least 21 days' written notice of his intention to do so;
(b) the time taking place during a long weekend or public holiday weekend for [Country A], but not during the July School holidays; and
(c) the father meeting the following costs:
(i) the airfares for the child to and from [Country A];
(ii)the mother's airfares to and from [Country A]; and
(iii)the reasonable costs of the Applicant's accommodation in Australia.
12In the event a member of the father's immediate family travels to [Country A], and provided the mother receives not less than 21 days' notice of the family member's intention to do so, the mother facilitate the child spending time with the father's immediate family.
13For the purposes of the previous order, a member of the father's immediate family means the father's parents and step parents, siblings and step-siblings.
14The mother ensure the child has a photograph of the father and the child in his bedroom and the father be at liberty to provide a photograph of his choice of him and the child together for that purpose.
Injunctions
15The parties be restrained and an injunction is granted restraining each of them from:
(a) consuming alcohol to excess while the child is in their care;
(b) using illicit drugs 72 hours prior to spending time with the child, or while the child is in their care; and
(c) denigrating the other party, or the other party's family in the presence of, or within the hearing of the child.
Counselling and therapy
16The mother shall arrange for the child to attend upon a counsellor and an educational psychologist as recommended by Dr Watts.
17The mother shall attend upon a psychologist as recommended by that psychologist.
18The father shall attend upon a therapist as recommended by that therapist.
19The parties have permission to provide to their and the child's treating practitioners a copy of the report of Dr Watts and these reasons.
Passports
20The mother be at liberty to uplift the child's [Country A] passport from the offices of Kim Wilson & Co 48 hours prior to her departure from Western Australia pursuant to these orders.
21The mother be at liberty to renew the child's [Country A] passport without notice to the father.
22The mother be at liberty to renew the child's [Country A] passport without the consent of the father.
Provision of information
23Each party forthwith provide to the other party an email address at which the party may be contacted by the child and by the other party for the purposes of communication with the child and the other party pursuant to these orders.
24Within 48 hours of the mother arriving in [Country A], the mother notify the father of:
(a) the residential address at which she and the child are living;
(b) a telephone number on which the father may contact the child;
(c) an email address to which the father may email the mother and the child; and
(d) keep the father notified of any changes of address, contact telephone number or email address.
25Within 7 days of the mother arriving in [Country A], the mother do all things necessary to enrol the child at school, and:
(a) provide the school with the father's contact details; and
(b) authorise the school to provide school reports and newsletters published from time to time to the father at his email address provided in accordance with these orders, at the father's expense.
26Forthwith upon the child being enrolled at school in [Country A], the mother notify the father of the name of the school and written confirmation that the father's name and contact details have been provided to the school and that the school has been directed by the mother to provide the father with the following:
(a) notification as to school events to which parents are invited, including but not limited to school assemblies and concerts, parent-teacher interviews and sports events; and
(b) copies of school reports issued for the child at the father's expense.
27The mother notify the father of the name and contact details of the child's General Practitioner, and authorise and direct the child's General Practitioner to provide information to the father, on the father's request and at the father's expense.
28If the child suffers any significant injury or illness, the parent with whom he is spending time forthwith inform the other parent of the nature of the injury or illness and the name, address and telephone number of any health professional upon whom the child has attended.
Registration of orders and Border Alert
29Forthwith upon the mother and the child relocating to [Country A] pursuant to these orders, the mother, at her expense take all steps to register these orders with the Family Court of [Country A].
30The mother be at liberty to seek a Border Alert from the Family Court in [Country A] preventing the child's removal from [Country A] except with the consent of both parties.
31Save as provided for in these orders, the parties be restrained by injunction and an injunction is hereby granted restraining them from removing or attempting to remove or causing or permitting the removal of the child, [S] (male) born [in] 2010 from the Commonwealth of Australia, with such order to take effect on the day after the mother leaves Australia pursuant to these orders.
32It is requested that the Australian Federal Police give effect to the previous Order by placing the name of the said child on the Family Law Watch List ("the Watch List") in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List.
33 The injunction contained in paragraph 31 of these orders shall remain in force until the child attains the age of 16 years.
34Upon expiration of the period referred to in the preceding paragraph and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police cause the removal of the child's name from the Watch List.
35 The Marshall and Officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these Orders.
Procedural
36The proceedings otherwise be dismissed.
37All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
38In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
39In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 37 and 38 above do not apply.
I certify that the preceding [217] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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