Plastow & Saville
[2013] FCWA 105
•11 NOVEMBER 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: PLASTOW and SAVILLE [2013] FCWA 105
CORAM: WALTERS J
HEARD: 23 & 24 SEPTEMBER 2013
DELIVERED : 11 NOVEMBER 2013
FILE NO/S: PTW 976 of 2012
BETWEEN: JULIETTE PLASTOW
Applicant
AND
ADAM SAVILLE
Respondent
Catchwords:
CHILDREN – RELOCATION – Where parents emigrated from the United Kingdom to Australia in 2005 – Where parents separated in 2011 and mother wishes to return to the United Kingdom to live – Where mother proposes to take the children to live with her in the United Kingdom – Where eldest child has expressed strong views that he wishes to return to live with mother in the United Kingdom – Where eldest child's relationship with father is strained – Where younger child's relationship with father is positive – Where father opposes relocation – Where mother is homesick and has conveyed her desire to return to the United Kingdom to father and his family throughout the time that mother has lived in Australia – Where it is conceded that the children should continue to live with mother, whether in Australia or in the United Kingdom – Where the legitimate interests and desires of mother, as the children's unchallenged primary caregiver, are relevant to the children's best interests – Where father is unable to live in the United Kingdom if relocation is permitted – Where professionally and financially advantageous for mother to return to live in the United Kingdom – Whether father can have a meaningful relationship with the children if relocation is permitted – relocation permitted
CHILDREN – PARENTAL RESPONSIBILITY – Where mother seeks sole parental responsibility and father seeks equal shared parental responsibility – Order for parties to have equal shared parental responsibility
Legislation:
Family Law Act 1975 (Cth), Part VII, s 4(1), s 60B, s 60CC, s 61DA, s 64B(3), s 65D, s 65DAA, s 65DAC, s 65DAE
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr A Godecke
Respondent: Mr G Rodgers
Solicitors:
Applicant: Griffiths & Godecke
Respondent: Gary Rodgers
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160
Champness & Hanson (2009) FLC 93‑407
Goode (2006) FLC 93-286
Jets & Maker (No 2) (2011) FMCAfam 1473
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) (2007) FamCA 1364
McCall & Clark (2009) FLC 93-405
Mills & Watson (2008) 39 Fam LR 52
Morgan & Miles (2007) FLC 93-343
Sayer & Radcliffe (2012) 48 FamLR 298
Selkin & Artliff-Selkin [2013] FamCAFC 19
Starr & Duggan [2009] FamCAFC 115
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1This case is about the parenting arrangements for [Terence Saville] and [Meredith Saville], who are now aged 11 and 5 respectively. Terence (who I shall call "Terry") was born [in] 2002; Meredith was born [in] 2008. Terry and Meredith have lived with their mother since their parents separated in February 2011.
2The children's parents, [Ms Plastow] and [Mr Saville], emigrated from the United Kingdom to Western Australia in 2005. Ms Plastow is homesick, and wishes to return to the UK to live. She proposes to take the children with her, and for them to live with her in a village on the south-east coast of England. Mr Saville opposes the proposed relocation. It is his case that it is in the best interests of the children for them to continue living in Perth, where Terry has spent the majority of his life, and where Meredith was born. Mr Saville recognises that Ms Plastow is homesick, but proposes that she should remain in Perth with the children so that they can continue to spend time with both their parents on a regular basis. He perceives that the children's relationship with him will become more remote and less "meaningful" if the relocation is permitted to occur.
3Mr Saville has repartnered. He and his partner, [Ms Cornish], have a son, [Peter], born in December 2012. Ms Cornish has another son from a previous relationship. Ms Cornish and her former husband have "shared custody" of their son. Ms Cornish and her former husband also emigrated to Western Australia from the UK (they arrived in October 2007), but she has no desire to return there. For that and other reasons, Mr Saville does not regard it as a feasible alternative for him to return to the UK to live in reasonable proximity to Ms Plastow, Terry and Meredith.
4Many 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 location, often very distant from the other parent's place of residence (which cases are known universally as "relocation cases"). For example, in Mabry & Neilson [2013] FCCA 478, Judge McGuire said at [39]:
Matters involving the proposed relocation of a child are among the more difficult that come before our courts. ... Many of the considerations that the courts are obliged to reference in arriving at a determination of a child’s best interests in their living and parenting arrangements are amplified by reason of distance and the effect on the child’s future relationships with each of the parents and others which will inevitably result from a relocation. That effect is compounded where the proposed relocation is an overseas one. If such a move is permitted to take place … the primary parent will inevitably assume a far greater role and presence in a child’s life than would [otherwise] be the norm. Conversely, ... [contact] between the child and the remaining parent becomes less frequent, less regular, and [their relationship] may suffer under the strains of distance and difficulties in communication and organising direct contact. As a result, and whatever the determination by the court, one or other of the parents will understandably feel aggrieved. If the relocation is allowed, then the remaining parent must reassess all of [his/her] ambitions and expectations of the future relationship with their child. There will be feelings of loss. Those feelings are often transferred to the other parent, which in turn impacts on the abilities of [the] parents to communicate and cooperate over long distances. On the other hand, an order that for all practical purposes prevents a parent from relocating to [his/her] place of choice will also carry feelings of loss, unhappiness, bitterness and the need to adjust [his/her own life] and ambitions. Again, those feelings may manifest [themselves] in bitterness towards the other parent. [Further], the ability to cooperatively parent will be severely challenged. These senses of loss and unhappiness are [also] felt by members of the extended families, such as grandparents.
5I concur with the sentiments expressed by Judge McGuire in the above passage. The fact remains, however, that a decision must be made; and, whatever that decision may be, it must be based on the evidence presented to the court.
Introduction and background
6In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the husband and the wife (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent; 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).
7Although 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.
Significant dates
8The wife and the husband were born in the UK in 1976 and 1978 respectively. They commenced cohabitation – in the UK – in 1998. They married [in] 2005.
9They emigrated from the UK to Western Australia in September 2005.
10Terry was born [in] 2002, while the parties still resided in the UK. Meredith was born [in] 2008, after the parties had commenced living in Western Australia.
11The wife has a daughter, [Geraldine], from a previous relationship. Geraldine was born [in] 1994. It follows that she was approximately 4 years of age when the parties commenced cohabitation. She lived with them throughout her childhood, and accompanied them when they emigrated from the UK to Western Australia.
12The husband and the wife separated on 2 February 2011. Not long afterwards, the husband entered into "a domestic relationship" with Ms Cornish: see Ms Cornish's affidavit at [1]. They started living together in February 2012, and their son, Peter, was born [at the end of] 2012.
13Ms Cornish is also from the UK. She moved to Perth with her previous husband in October 2007. They separated in 2008.
14Ms Cornish and her former husband have one child – a son. They have "shared custody" of him: see Ms Cornish's affidavit at [4].
15Until 2007, the husband worked as a [tradesman] (in the UK and then in Western Australia). Since 2007, however, he has been employed as a [security] officer with [Company P]. Ms Cornish is also a security officer. According to the husband, she has "a slightly [position]" than he holds.
16The wife has qualifications in early childhood teaching, and in health and social care. She was employed at a hospital in the UK from 1997 until the family left for Australia in 2005.
17The wife is not an Australian citizen. The husband became an Australian citizen recently, after the commencement of these proceedings.
Extended family
18The wife has two sisters, [Ms Redgrave] and [Ms Palin]. Ms Palin lives in the UK, as does the wife's mother, [Ms Griff]. They live approximately thirty minutes drive from each other. Ms Redgrave lives in Perth, with her husband and children. The wife's relationship with Ms Redgrave is strained, and they are not close.
19The husband's father and stepmother live in the UK. Their home is approximately ten minutes drive from the home of the wife's mother.
20Other members of the husband's family, including his mother, brother and sister, live in Perth.
21In her affidavit, the wife said at [20]:
The husband's mother ... had very little contact with the children during the marriage. She saw the children on birthdays and at Christmas but otherwise she had little to do with us. She lived five minutes drive from the matrimonial home ... I have had no contact with her or the husband's siblings since the separation.
22I do not accept the wife's evidence in that regard. For example, the husband's mother said, and I accept, that she looked after the children for approximately six months while the husband was studying at [Company P]. During that period, she took the children (or, perhaps more accurately, Terry) to school and cared for and supervised them generally while the parties were unavailable.
Emigration to Australia
23The primary motivation for the parties' emigration from the UK to Australia in September 2005 was the husband's desire to live near his mother, brother and sister. The wife made it clear to the husband that she did not wish to leave the UK (where she had lived all her life) to live in Australia. The husband knew that she did not wish to leave her employment and her family and friends. The wife said, and I accept, that the parties agreed that if either of them was not happy living in Western Australia, then the family would return to the UK: see the wife's affidavit at [11].
24The husband decided shortly after his arrival in Perth that he wished to stay in Australia. The wife was less confident. The wife said, and I accept, that the parties agreed that they would stay for two years and that if the wife was still not happy, the family would return to the UK. At the expiration of the two year period the husband was adamant that he wished to stay.
25I accept that the wife has been homesick for most of the time that she has lived in Western Australia. I have no doubt that she has conveyed to the husband and his family members – on many occasions over the years – her desire to return to the UK to live. To the extent that the husband and other witnesses suggested that she had not done so, I do not accept their evidence in that regard. For example, the husband's mother, Ms Amos, spoke of the husband asking her to visit the wife to "give her a bit of support" at a relatively early stage after the family's arrival in Australia. Ms Amos suggested that the wife was not homesick and that she had simply "not settled" at that stage. I am satisfied, however, that Ms Amos was attempting to minimise the wife's feelings of unhappiness at having to remain in Australia and that she well knew that the wife wished to return to the UK. Further, I am satisfied that Ms Amos was well aware that the wife has wanted to return to the UK to live throughout the period that she has lived in Australia. That is not to say that the wife remained unsettled at all times, or that she constantly complained about living in Australia; nor is it to say that the wife was unable to function satisfactorily – as a parent and as an employee – after her resettlement in Australia. I have no doubt, however, that anyone who knew the wife well (including the members of the husband's family living in Australia) also knew that she was homesick and that her clear preference was to return to the UK to live.
Arrangements in Australia
26It is not in dispute that the wife was the primary caregiver for the children prior to separation. She continued to be the children's primary caregiver after separation, and the children have lived with her since that time.
27The wife suggested that the husband spent little time with the children during the marriage, and that he spent his free time playing squash, surfing and riding his motorbike. In my opinion, the wife has sought to minimise the husband's involvement in the children's lives. Although he was clearly not involved to the same extent as the wife, he was a committed parent and involved himself in the children's education and activities to the extent that he was able to do so (taking into account his employment obligations and his leisure activities).
28The wife's daughter, Geraldine, lived with the parties throughout the relationship and was treated as the husband's daughter and a member of the family. Not long after the parties separated, Geraldine commenced living independently. She has returned to live with the wife since that time, but it would appear that she is now living independently once again.
29For reasons that did not form the subject of evidence before me, the husband has not spent any or any significant time with Geraldine since the parties separated.
30The wife has neither met nor communicated with Ms Cornish, and she has had no or minimal contact with the husband's family since separation.
31In my opinion, there can be no doubt that the wife's life has changed dramatically since she and the husband separated. She is no longer living in the former matrimonial home (which has been sold): she resides in rental accommodation with Terry and Meredith. The wife has little communication with the husband, and what communication there is occurs primarily by email or text message. She is estranged from her sister Caroline (who lives some five minutes drive from the wife's place of residence). She has no communication with the husband's family members. To all intents and purposes, the wife is isolated in Perth. She receives support from her mother and from her sister, Ms Palin, who both live in the UK. In such circumstances, it is wholly understandable that she wishes to return to the UK to live. The wife and the husband arrived in Australia as part of an intact and seemingly stable family unit. Within five and a half years, their marriage had broken down and the wife's support base in Australia had crumbled. Leaving aside her sister, the wife's family ties in Australia were to members of the husband's family. Those ties have been broken.
32The husband commenced a relationship with Ms Cornish shortly after separation, and they now have a child of their own. His life is firmly rooted in Australia, and his primary support base is in this country. These facts are in stark contrast to the fragility or brittleness of the wife's tenuous attachment to Australia.
The wife's proposal
33In general terms, the wife seeks orders to the following effect:
a)She is to have sole parental responsibility for Terry and Meredith.
b)The children are to live with her in the UK (and she seeks that appropriate orders be made permitting her to remove the children from Western Australia for that purpose).
c)The husband is to have face-to-face contact with the children in Australia and in the UK, and otherwise be able to communicate with the children "at all reasonable times by telephone, Skype or other means of electronic communication".
d)The parties are to keep each other advised of their current telephone numbers and email addresses, and the wife is to keep the husband advised of her actual residential address in the UK.
e)The parties are to notify each other in the event of the children suffering any illness or injury requiring medical attention or hospitalisation.
f)The husband, his servants and agents are to be restrained by injunction from denigrating the wife and members of her family or household, and from discussing these proceedings (or matters relating to these proceedings) in the presence or within the hearing of the children.
34The wife also seeks orders of a procedural or housekeeping nature designed to implement her proposals.
35It is immediately apparent that the wife has not presented an alternative proposal dealing with arrangements that should adhere in the event of a determination that it is not in the best interests of the children to relocate with her to the UK. In other words, and leaving aside the issue of parental responsibility, the only proposal presented by the wife is to the effect that the children should live with her in the UK.
36The orders sought by the wife are more detailed than the summary I have provided in the preceding paragraphs: see the wife's minute of orders sought attached to her papers for the judge filed 18 September 2013.
37I shall refer to the wife's proposal as "the UK proposal".
The husband's proposal
38In general terms, the husband seeks orders to the following effect:
a)The parties are to have equal shared parental responsibility for Terry and Meredith.
b)The children are to spend substantial and significant time with the husband (comprising two days of each week according to the husband's work roster, one half of each school term holiday period, specified times at Christmas in each year and specified times on the children's birthdays and the husband's birthday).
c)In addition, the husband is to have telephone contact with the children on each weeknight.
d)In the event of the wife wishing to spend time in the UK without the children, the husband is to care for them while the wife is away.
39The husband also seeks orders of a procedural or housekeeping nature designed to implement his proposals.
40The husband, no less than the wife, has "nailed his colours to the mast" in the sense that he has presented only one broad proposal. That proposal is to the effect that the children must remain living in Western Australia; indeed, the husband's proposal is to the effect that the children must remain living with the wife in Western Australia (and hence that she must remain living in Western Australia).
41The orders sought by the husband are more detailed than the summary that I have provided in the preceding paragraphs: see the husband's minute of orders sought attached to his papers for the judge filed 19 September 2013.
42I shall refer to the husband's proposal as "the WA proposal".
Concessions
43Mr Godecke (for the wife) conceded that this is not a case in which it could be asserted that the wife would suffer "a psychological problem" if the court were to determine that the WA proposal should be preferred to the UK proposal. There was certainly no expert evidence presented to support such an assertion.
44Mr Godecke said, instead, that this is a case of "homesickness" and that the wife genuinely wishes to return to the UK with the children for that reason (among others). Mr Rodgers (for the husband) conceded that the wife is homesick and genuinely wishes to return to the UK. He argued, however, that the wife's homesickness is "not debilitating" and that she would be able to cope as a parent if the WA proposal were to be preferred to the UK proposal.
45It was also conceded that the living arrangements for the children inherent within the UK proposal are suitable, and that they should not be regarded as being inferior to the arrangements for the children inherent within the WA proposal. It was conceded that the wife's mother can house the wife and the children, and that the wife is capable of making proper and adequate arrangements in relation to the children's education, health and welfare generally.
Parenting orders – the law
46The following 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.
47Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975 (Cth) ("FLA").
48The Full Court carefully analysed the structure and effect of Part VII in 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 s 64B (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.
49Parenting 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” (s 64B(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 ─ even though 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): see the definition of "major long term issues" in s 4(1).
50If 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 (s 65DAC). 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 (s 65DAE).
51As 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 s 60CA:
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.
52The objects of Part VII, and the principles underlying it, are set out in s 60B. They are important.
53The objects of Part VII are set out in s 60B(1). They 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.
54The principles underlying these objects are set out in s 60B(2). They 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).
55Aboriginal 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 60B(3).
56Given that all the expressed objects of Part VII 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 60CC, 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".
[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 60CC(5).
57The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of 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.
58The additional considerations are set out in s 60CC(3). They include:
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 extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;
e)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)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);
g)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);
h)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);
i)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
j)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
l)any relevant family violence, or family violence order;
m)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
n)any other fact or circumstance that the court considers relevant.
59The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party’s "track record" as a parent.
60Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FLC 93‑407 at [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. Thus, in Marsden & Winch (No 3) (2007) FamCA 1364, the Full Court said at [77-8]):
… (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.
61In 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 [117-22]. 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.
62In Goode (supra), the Full Court summarised the above process at [10]:
… 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 s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
63Notwithstanding 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 & 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 (s 65D(1)).
64When 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 (s 61DA). Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
65The 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. 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.[2]
[2] See s 61DA(3); it is important to note, however, that the Full Court in Goode (supra) at [78] held that the discretion in s 61DA(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."
66In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility s 61DA(4).
67Where 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 otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[3] 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: s 65DAA(1). 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"[4] with each parent would be both reasonably practicable[5] and in the best interests of the child. If it is both of these things is, then the court must consider whether it should make an order to that effect: s 65DAA(2).
[3] How a court determines "reasonable practicality" is the subject of s 65DAA(5).
[4] "Substantial and significant time" is defined in s 65DAA(3).
[5] How a court determines "reasonable practicality" is the subject of s 65DAA(5).
68In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
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-ss (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-s (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. ...
Section 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.)
69The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:
… (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 s 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.
70The Full Court in Taylor & Barker (supra) 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".
71In Mazorski & Albright (2008) 37 Fam LR 518, Brown J dealt with the “additional considerations” (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (2008) FLC 93-375, Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53, at [335].
72Having summarised the effect of Part VII in Goode (supra) at [65], the Full Court then described at [82] the "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S [2006] FLC 93-313 at [36].
73The relevant steps (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) (supra) 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 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in s 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the s 61DA 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 61DA 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 for the child to 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 61DA 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 for the child to 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 FLA. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment as to whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the s 61DA presumption does not apply or has been rebutted, 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 60B and the factors set out in s 60CC): see Goode (supra) at [65.8].
m)Throughout 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 (supra) at [65.11] and [65.9].
74Notwithstanding the dicta discussed above, the question of an appropriate "legislative pathway" to provide guidance through the intricacies of FLA Part 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
75The "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.
76In Cox & Pedrana (supra), 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.
77The Full Court in Sayer & Radcliffe said that cases such as Starr & Duggan [2009] FamCAFC 115 provide "clarification and guidance" as to the approach to be adopted in relocation cases. Among other things, the Full Court in Starr & Duggan (supra) said (references omitted):
37.[The] appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise ... that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
(a)first make findings concerning the relevant s 60CC factors;
(b)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
(c)then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
78In Selkin & Artliff-Selkin [2013] FamCAFC 19, the Full Court cited at [56] with approval 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.]
79In Morgan & Miles (2007) FLC 93-343, Boland J (sitting as a single judge on appeal from a federal magistrate) considered the effect of the 2006 amendments to the [FLA] on relocation cases. Among other things, her Honour said at [80] that the following "core values" remain valid:
a)the child’s best interests remain the paramount consideration, but they are not the sole consideration;
b)a parent wishing to move does not need to demonstrate “compelling” reasons;
c)a judicial officer must consider the proposals presented by the parties, but may also be required to formulate alternative proposals in the child’s best interests; and
d)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent to freedom of movement.
80A better way of describing or contextualising a parent's "freedom of movement" is to regard the concept as falling within that parent's "legitimate interests and desires". As the passage quoted above from the decision of Kirby J in AMS v AIF (supra) makes clear, those legitimate interests and desires should not be ignored.
81I would also add the following:
a)Although the Court is not bound by the parties’ proposals, it must not put in place an arrangement that has not been sought by any of the parties without giving reasonable notice that it is minded to do so, and without giving the parties an opportunity to be heard in relation to the subject.
b)A party’s right to freedom of movement exists (under the general umbrella of that party's legitimate interests and desires), and it is important. If necessary, however, the right to freedom of movement can be outweighed by a court’s conclusion to the effect that there is a need to put in place an arrangement that is inconsistent with that right, but is nevertheless in the best interests of the child.
c)In an appropriate case, it is important for a court to inquire as to whether the party who opposes the proposed relocation could not, himself or herself, move to a place which is close (or closer) to where the child will be living if the relocation goes ahead.
The family report
82An order for the preparation of a family report was made on 4 December 2012. It is in the following terms:
A family consultant ... interview [Terry] and prepare a family report in relation to the following issues:
•the wishes of the child in relation to relocation to the UK;
•whether any person has influenced the child's wishes;
•the nature of the child's relationship with each parent; and
•any other matter the [family consultant] deems relevant.
83It follows that the family report was not intended to comprise a comprehensive analysis of the parties' competing proposals. Its primary (although not its sole) focus was to be on Terry's wishes.
84The family report was prepared by Kevin Hanavan, family consultant. His qualifications and experience were not in dispute, and the report was admitted into evidence without objection from either party.
85Neither party sought to cross-examine Mr Hanavan.
86The report is dated 11 September 2013.
87After dealing with historical matters, Mr Hanavan summarised his interview with Terry, who he described as "a sensitive child with an age-appropriate demeanour". He said that Terry was articulate, and appeared engaged and attentive.
88According to Mr Hanavan:
a)[Terry] said that his mother had told him to "just say what you want to say" at the interview, and that he had not discussed the interview with his father.
b)[Terry] spoke positively of family members and others in the UK and of the things he does in the UK.
c)[Terry] was far less positive about remaining in Australia.
89In contrast to his positive and somewhat idealised views of his life and experiences in the UK, Terry was unwilling to make other than negative comments about his life in Australia. The family report contains the following:
19.When asked what the most ideal care arrangement for him would be, [Terry] stated "I want to go back to England and live there. I want to chat with dad over the computer ... I would be more happier (sic) than seeing him, and living with him". With regard to Christmas and birthdays, [Terry] said he wanted to talk with his father by telephone or "on the computer".
20.In discussing living in Australia, [Terry] said "I don't like living here ... I just don't like it". [Terry] claims when he speaks to his father about returning to England, his father frequently says to him "you've been here seven years and it's your new life here". In relation to this, [Terry] says "I'm supposed to like it, but I don't". [Terry] also claims his father says to him "you have more family here (in Australia)".
21.In regard to his extended family living in Australia, [Terry] described them in derogatory terms, including on several occasions "feral". [Terry] described the paternal grandmother "Nanny Jill" as "not that nice" describing her collecting him from school once saying "she just made us a drink then sits outside having a cigarette and waits till dad comes home". [Terry] described his paternal uncle and aunt as "disgusting, horrible" and saying of their children "I only get on with [S] sometimes" and "then there's [L]. He's horrible, he beats me up" and "I don't get along with all the others".
22.According to [Terry] he does not spend time with his extended family in Australia very often but says "sometimes we all go dirt bike riding with everyone and I hate it".
23.With regard to the maternal aunt who also lives in Perth, [Terry] says "she is not nice ... We don't see them hardly ever". According to [Terry], "they have a giant pool and even when it's hot they don't even ask us over".
24.[Terry] was asked what he would miss if he were to move back to England to which he replied "I wouldn't miss anything". After some reflection he added that he would miss his "best friend [Charles]" but stated "his ([Charles']) Mum has already said he could come and stay with us in England". [Terry] indicated he was meaning by this, [Charles] would stay for the purpose of a holiday.
90In relation to the question of whether any person appeared to have influenced Terry's views, Mr Hanavan wrote at [25]:
It appears ... that [Terry] has been reasonably well protected from involvement in the court dispute. He states he has not seen or read anything to do with the court process, and claims that neither parent talks to him about it in any detail. In addition, [Terry] states generally neither parent talks to him about the other parent. [Terry] answered the questions in a manner that appeared age-appropriate and there was no indication throughout the interview that the answers were coached or rehearsed. There was a consistency in [Terry's]s responses and no apparent contradictions. [Terry] did not appear conflicted in his answers and they were offered in a spontaneous manner. There was no evidence for the Family Consultant to consider the responses expressed were unduly [influenced] by another or that they are not reflective of [Terry's] genuine views.
91Mr Hanavan dealt with the nature of Terry’s relationship with each of his parents in the family report at [26] to [31]. He summarised his interviews with the wife and the husband at [36] to [45] and [46] to [54] respectively. It is unnecessary to reproduce those paragraphs in these Reasons: they speak for themselves.
92Under the heading Summary and Views of the Family Consultant, Mr Hanavan wrote:
56.[Terry] is unambiguous in his views in relation to the relocation to the UK. [Terry] asserted from the outset of the interview he wants to return to live in the UK. [Terry] claims he has close family relationships there which he does not have in Australia. In addition, [Terry] appears to have fond memories of these relationships and the experiences of spending time with these relations.
57.[Terry] stated without any apparent reservation that he does not enjoy living in Australia and claims that, with the exception of his best friend [Charles], he would not miss anything in Australia should he return to live in the UK. With regard to the relationships with his extended family in Australia, [Terry] is of the view, while he does not spend a great deal of time with them, he does not enjoy a positive relationship with them either. [Terry] is of the view he would not miss them should he return to live in the UK.
58.[Terry] spoke of a close relationship with his mother. He appears to enjoy the time he spends with his mother. He expressed a preference for living with his mother and does not want to change from living with her. Rather [Terry] stated he would rather spend more time with the mother regardless of where he lives.
59.The relationship between [Terry]and his father does not appear to be a close relationship. On the contrary, [Terry] used strong derogatory language to describe his father as well as his extended family in Perth. [Terry] expressed a preference to spend less time with the father even should he continue living in Perth.
60.The father is of the view[Terry's]views have been unduly influenced by the mother. The mother claims [Terry] has been talking about wanting to return to the UK since before the parents' separation and claims the views are entirely his own. The father acknowledged that [Terry] has many times talked to him about wanting to return to live in the UK.
61.... There is a strong relationship and closeness between [Terry] and the mother. By contrast [Terry] appears to have a strained relationship with his father. Taking this into consideration it may well be expected that [Terry's] views would be more influenced by and possibly align with the views of the mother. However, [there is] no reason to consider the views of [Terry] have been unduly or deliberately influenced by the mother.
62.The father asserts that the child's views of life in the UK are based on memories that are either unreliable or unfounded, being reflective of life on holiday in the UK rather than living there. The family consultant shares this view to some degree. It is commonly understood that in a situation where a person is disaffected through migration, they may well adopt a polarised perspective in which the home country is idealised and the receiving country viewed negatively. Moreover, such a phenomenon is not restricted to children and is common in adults also. The family consultant holds concerns that the views of [Terry] reflect such polarisation, particularly given the lack of ambiguity with which they were expressed.
63.Notwithstanding this concern, the family consultant is also of the view that this phenomenon cannot of itself solely account for the discontent [Terry] has expressed towards living in Australia and, in particular, for the views he expressed in regard to his poor relationship with the father. The family consultant is of the view that such a phenomenon could partially explain the direction of the child's views to some degree, but not the strength of the views.
64.The father also expressed the view that the antagonism displayed by [Terry] toward him is exaggerated because of the resentment he feels towards him for opposing the return move to the UK. Similarly, while the family consultant regards this as possibly valid to some degree, the family consultant is also of the view that this cannot entirely explain the level of antagonism [Terry] expressed towards the father and extended family.
c)The emotive language used in the husband's submissions – relevantly, the reference to "a devastating blow and feeling of loss" for both the children and the husband, should the UK proposal be adopted – is understandable, but ultimately unhelpful. Similarly emotive language could be used when describing the wife's likely reaction to being told that she must continue to live in Perth, when she aches to return home to the UK. In that regard, it is worth repeating the passage cited above from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 160 (at [44], footnotes omitted):
…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.
d)The husband does not dispute that the children should continue to live with the wife. There is no reason to doubt that she will be able to manage successfully the children's transition from the Australian education system to its UK equivalent. In any event, there is no evidence (or no persuasive evidence) to the effect that the children will not be able to cope with the change; nor, indeed, is there evidence to the effect that the children will not be able to settle comfortably into the environment provided by the wife in the UK.
e)I accept that the husband would find it extremely difficult to relocate to the UK in his present circumstances. He is in a committed relationship with Ms Cornish, and they have a child together. Ms Cornish has a child from a previous relationship, and that child sees his father regularly in Perth. Ms Cornish and the husband are both employed as security officers, and neither wishes to give up that employment in order to return to the UK. Ms Cornish does not wish to live in the UK in any event. The majority of the husband's extended family live in Perth, and he has a close relationship with them.
245In my opinion, and on balance, the matters discussed under this general heading do not clearly favour one proposal over the other – although they help to explain why the outcome of the proceedings is of such importance to each party.
246As foreshadowed above, I turn now to consider the "primary" factors set out in s 60CC. Once again, I remind myself that I must regard the children's best interests as the paramount consideration in this case – and that it is for the purpose of determining which proposal is in their best interests that I must consider these matters.
Meaningful relationship
247It is not in dispute that the children have a close and loving relationship with the wife. That relationship is meaningful (in every sense). Meredith's relationship with the husband can be described in a similar fashion.
248Terry's relationship with the husband is poor (to use Mr Hanavan's term). I have discussed this subject elsewhere in these Reasons.
249The wife has been the children's primary caregiver throughout their lives, but there can be no doubt that the husband has also played an important part in their lives. I accept that he has much to offer them as a parent.
250I have no doubt that a meaningful relationship between the children and each of their parents would be more easily promoted if the husband and the wife were to live in relatively close proximity to each other, and if the children were able to see each of them regularly and frequently. I do not accept, however, that the children will not be able to have a meaningful relationship with the husband if they live in the UK with the wife. There is no evidence that their relationship with the husband is likely to be less "meaningful" if they see him once per year (and have telephone, Skype or other forms of electronic communication with him at other times) that if they see him on (for example) a weekly or fortnightly basis. I accept, of course, that the relationship between the husband and the children will be different if they see him with the degree of infrequency inherent within the UK proposal. Even if the husband's relationship with the children is indeed less meaningful than it would be if the WA proposal were to be adopted, that does not lead to a conclusion to the effect that the relationship will not still be meaningful (even if it is not optimal), and it certainly does not lead to a conclusion to the effect that the relationship will be non-existent or close to non‑existent.
251I have already discussed the possibility of Terry’s relationship with the husband improving if the UK proposal is adopted. Meredith's relationship will, of necessity, be different to the relationship that she now has with the husband. As I have explained, however, that does not mean that her relationship with him will be something other than meaningful.
252I am satisfied that the wife is prepared to cooperate in maintaining a close and loving relationship between the children and the husband, and in promoting that relationship to the extent to which she is able. To the extent that the husband suggests otherwise, I reject his suggestion. I am satisfied that the husband will "rise to the occasion" if the UK proposal is adopted, and that he will cooperate with the wife to put in place contact arrangements that benefit the children.
253In my opinion, this factor or consideration – as it relates to Terry – favours the UK proposal. This factor or consideration – as it relates to Meredith – favours the WA proposal.
Protection from harm
254It is submitted on behalf of the wife that "[Terry] is at risk of becoming further alienated from his father due to the husband's parenting style, which involves excessive fault finding and anger": wife's papers for the judge at page 4. The husband makes no relevant submissions under this heading.
255I have discussed the possibility of Terry becoming further alienated from the husband elsewhere in these Reasons. In my view, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is not a relevant consideration in the circumstances of this case.
Parental responsibility
256As indicated above, the court must apply a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility [s 61DA]. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
257The 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. In the current proceedings, such circumstances do not apply, and it was not in dispute that the presumption relating to equal shared parental responsibility adheres.
258It was argued on behalf the wife, however, that the presumption has been rebutted, and that an order for sole parental responsibility for the children should be made in the wife's favour. The wife's case – in broad terms – is that the parties are unable to communicate effectively in relation to issues affecting the children's welfare. In addition, she says that the husband has been abusive to her at handovers and at other times and that he has acted unilaterally when making arrangements for the children to see professionals. He has also acted unilaterally (and in a high-handed manner) by, for example, removing Meredith from day care without the wife's prior approval.
259The wife also points to the generally poor relationship between the husband and herself in support of her submission to the effect that she should have sole parental responsibility for the children.
260Given the conclusion that I have reached in relation to which of the competing proposals is to be preferred, I am of the view that it would be in the best interests of the children for the husband and the wife to have equal shared parental responsibility for them. Although the communication between the parties has been limited, and unsuccessful at times, the majority of the problems appear to have occurred relatively shortly after separation. The parties have been able to make satisfactory arrangements for the welfare of the children for most of the period leading up to trial, and I am confident that their ability to communicate effectively will improve when the emotional stress of these proceedings is behind them.
261I am satisfied that it is in the best interests of the children to require the parties to consult with each other before making decisions about major long-term issues relating to the children, and to require them to make a genuine effort to come to a joint decision about those issues. This seems particularly important if the children live with the wife in the UK, because it will ensure that the husband is kept advised of decisions that must be made and invited to participate in those decisions. It will indirectly assist in the maintenance of a meaningful relationship between the husband and the children, given that there are likely to be occasions when the husband will seek the children's input into decisions that must be made affecting their welfare (although it is the case, of course, that not every decision can be regarded as being about a major long-term issue in relation to the children).
262I propose, therefore, to order that the parties have equal shared parental responsibility for the children.
Equal time, substantial and significant time and the UK proposal
263As discussed under the heading Parenting orders – the law above, and given that I have decided to make an order for equal shared parental responsibility, I am now obliged to consider whether the children spending equal time with the husband and the wife would be in their best interests (and related questions) and, in turn, whether the children spending substantial and significant time with the husband and the wife would be in their best interests (and related questions).
264I am not satisfied that it is in the best interests of the children for them to spend equal time with each of their parents. Neither party has proposed such an arrangement, and I am not satisfied that it could be made to work even if the parties were to live in close proximity to each other. The parties do not communicate well, and disputes between them are frequent. Each tends to blame the other for problems that have arisen. Further, the wife's approach to parenting and to discipline issues differs from the husband's approach to these issues. In that sense, I am conscious that the husband is required to "serve two masters", as it were – because he is in a committed relationship with Ms Cornish, who is clearly a strong willed person and who, I sense, would not hesitate to volunteer advice to the husband in relation to parenting and discipline issues.
265At first blush, the comments I have made in the previous paragraph may appear to conflict with the comments I have made when dealing with the issue of parental responsibility and in concluding that an order for equal shared parental responsibility should be made. The perceived conflict can be explained, however, by recognising that an order for equal shared parental responsibility requires the parties to consult with each other and make a genuine effort to come to a joint decision about major long term issues affecting their children. Such consultation is not required in relation to issues that are not major long-term issues – such as what children eat or wear or what their daily activities should be when they are spending time with the parent with whom they do not live. An order to the effect that children are to share their time equally between their parents requires the parties to consult and cooperate with each other in relation to a myriad of issues that cannot be categorised as major long-term issues. In other words, the consultation and cooperation associated with an order for equal shared care of children is more frequent and, in many senses, more intimate and immediate than the consultation and cooperation associated with an order for equal shared parental responsibility. It is not unusual for parents to fail comprehensively at the former, but to put aside their differences and make a genuine effort to succeed at the latter.
266In considering whether equal time is in the children's best interests, it is also relevant to have regard to the fact that the wife has been the children's primary caregiver throughout their lives. She has done a good job in that regard, which fact is recognised by the husband in his decision to present proposals which reflect the wife's ongoing role as the children's primary caregiver.
267Even if it could be considered to be in the best interests of the children for them to spend equal time with the husband and the wife, such an arrangement is clearly not reasonably practicable. It could only be practicable if the parties were to live relatively close to each other. It cannot be practicable if the UK proposal is to be adopted.
268I am satisfied that it would be in the best interests of the children to spend substantial and significant time with each of their parents. Such an arrangement would allow regular contact with both parents during school terms and holiday times – but, again, it is only practicable if the parents live in relatively close proximity. It is not practicable if the UK proposal is adopted.
269Put another way, because I have determined that it is in the children's best interests that the UK proposal be adopted, it will not be practicable for there to be a substantial and significant time arrangement unless the husband relocates to the UK and lives in relatively close proximity to the children. If he were to relocate (which I accept is highly unlikely), then a contact arrangement similar to that outlined in the WA proposal would be appropriate.
Conclusion as to most satisfactory proposal
270As foreshadowed above, and –
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in s 60B; and
c)having regard to my discussion of the s 60CC factors above,
I conclude that the UK proposal is more likely to be in the children's best interests than the WA proposal.
271In reaching the above conclusion:
a)I have not required the wife to demonstrate "compelling reasons" for her proposed relocation to the UK;
b)I have done my best to evaluate the two broad proposals advanced by the parties (and I note that neither party put forward what might be regarded as an alternative proposal);
c)I have not considered myself wholly bound by the parties' proposals;
d)there has been no need for me to separate the notional issue of relocation from the question of with whom the children are to live (because it was conceded that the children should continue to live with the wife, whether in the UK or in Australia);
e)I have done my best to weigh the evidence and submissions as to how each proposal holds advantages or disadvantages for the children's best interests;
f)I have done my best to follow the legislative pathway (to the extent that that term adequately describes the relevant process) as I have described it in my earlier discussion of the law;
g)I have recognised that the wife's freedom of movement is an important consideration, but I have also recognised that her right in that regard must, if necessary, give way to the children's best interests; and
h)I have recognised that neither party bears any relevant onus of establishing that one proposal better promotes the children's best interests than does the other.
272Because the wife is to be the children's unchallenged primary caregiver, it is not possible to strictly separate the children's best interests - as some form of abstract concept from the wife's circumstances, and her legitimate interests and desires. The law does not suggest that such a separation can be achieved, as the passage from the judgment of Kirby J in AMS v AIF that I have (twice) cited above makes clear. The wife's happiness and emotional health are clearly important considerations.
273The wife does not regard Australia as her home and is only in temporary accommodation here. In effect, her life is on hold. Neither set of proposals presented by the parties dealt with specifics regarding the wife's living arrangements in Perth if the UK proposal were to be rejected. It follows that I have no evidence before me as to what those arrangements might be – although I accept that the wife would be capable of making appropriate arrangements (in the physical sense) should the need arise.
Orders
274The parties' proposals (which I have described as the UK proposal and the WA proposal) effectively passed each other like two ships in the night. Neither party offered a practical alternative to his/her proposal, or any form of "fall back" position. Relevantly, the husband did not put forward any proposal as to orders that might be appropriate in the event of the UK proposal being adopted.
275In those circumstances, it seems to me that the parties should now consider the orders that are appropriate and in the children's best interests in the light of these Reasons. I will hear counsel in relation to that subject. I have resolved, however, that – given the findings that I have made about the husband and his relationship with Terry – one of the orders that must be made is to the effect that the husband should attend an appropriate post-separation parenting course.
I certify that the preceding [275] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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