Q and D

[2005] FCWA 112

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: [THE REGIONAL CENTRE]

CITATION: Q and D [2005] FCWA 112

CORAM: PENNY J

HEARD: 11, 12, 13 APRIL 2005 & 28 JUNE 2005

DELIVERED: 19 OCTOBER 2005

FILE NO/S: PT 6909 of 2003

BETWEEN: Q

Applicant/Father

AND

D

Respondent/Mother

Catchwords:

Children's issues - residence - relocation to New Zealand - best interest of children to reside in Western Australia

Legislation:

Family Law Act 1975 - s 68F

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr S Jones

Respondent : Ms G Braddock

Solicitors:

Applicant: Ball & Co. Respondent: Kaeser Kroon

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

A v A Relocation Approach (2000) FLC 93-035

D and SV (2003) FLC 93-137

1The wife, who has been the primary carer for the three children of the marriage since the parties separated in 2002, now wishes to relocate with the three children of the marriage and her now husband, Mr [D], to New Zealand. The wife, Mr [D] and the children currently reside in the former matrimonial home in a small town [in the south-west of the state].

2The husband opposes the relocation of the children to New Zealand and says they should now reside with he and his partner, Ms [KW], in a rural area [closer to Perth].

Brief background and history of the parties and the marriage

3The parties were married in April 1992. Shortly after the marriage they purchased, with the wife's parents, Mr & Mrs [J], a farming property at [in the south-west of the state]. The husband and wife lived in one house on the property and Mr & Mrs [J] in another.

4During the course of the marriage the husband was in full- time employment. For the first six years he was employed as a truck driver working 60 to 70 hours per week. He then worked as a yard manager at a vineyard for about five years. When at home he worked around the farm.

5 There are three children of the marriage, [E], born March

1993, [J], born February 1995 and [B], born July 1997. The child [E] was a difficult child from birth. She would not sleep and became hysterical, screaming for hours. She would grab knives, throw things and once threw herself through a glass window.

6The wife experienced an incident where she was afraid she was going to hurt [E], and sought assistance through Ngala, to learn skills to help cope with her. In October 1999, [E] was assessed by a team of specialists, including a paediatrician, speech therapist, social worker and child psychologist. They concluded that she suffered from attention deficit hypoactivity disorder and

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anxiety. She was treated for a number of years through the State

Child Development Centre.

7Since these proceedings have commenced, [E] behavioural issues have worsened. She now shows symptoms of Obsessive Compulsive Disorder. I shall deal with [E]'s problems later in this judgment.

8The husband and Mrs [J] have always had a poor relationship, the husband believing that she had far too much influence over the wife. The parties' marriage was unhappy for a number of years before they separated on 30 August 2002. The wife initially moved with the children into her parents' home. Ten days later she returned to the former matrimonial home after the husband moved out. The husband had contact each alternate weekend, as well as some intervening weekends, and half school holidays.

9Prior to the separation the wife had spent many hours per day on the internet. Her parents were concerned about her internet use and her mother believed she was addicted to it. During that time, she met Mr [D] through an internet chat room. Her relationship continued over the internet until she travelled to New Zealand in November 2002 to meet him.

10 While in New Zealand the children stayed with the wife's parents. In May 2003 Mr [D] came to Western Australia to visit the wife and stayed with her and the children. In July 2003 the wife and her father flew to New Zealand for a nine day holiday with Mr [D]. During that time he proposed to the wife and she accepted. The wife spent time with Mr [D]'s children, parents and friends. During this time Mr [J] "fell in love" with New Zealand. In October 2003 Mr [D] visited Western Australia with his eldest daughter, [C], then aged 12. In January 2004 Mr [D] returned to Western Australia, bringing his son [R]. [R] returned after eight days and Mr [D] stayed. The wife and Mr [D] were married on 6

March 2004.

11 In June/July 2004 Mr [D]'s three children came to Western Australia for three weeks. The wife says all the children got on very well. In March 2004 the farming property upon which the wife and children resided was sold and the wife rented back the home, where she still resides.

12 The wife asked the husband whether he would agree to her taking the children to New Zealand to live. He told the wife there was no way he would agree to that.

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13 On 13 March 2004 the husband had contact with the children. [J] had a severe bruise on his right thigh. The children told the husband that their grandfather, Mr [J], had hit [J] with an electric cable. The children told the husband they were told not to tell him, and that their grandfather would go to gaol if anyone found out about it. The husband was very concerned when he heard of this assault. He rang the wife and abused her and told her he was going to seek custody of the children.

14 On 19 March 2004, the husband received a letter from the wife's solicitors stating that the wife wished to relocate to New Zealand with the children. On 25 March 2004, the husband filed his application seeking an order that the children reside with him or, alternatively, if they were to reside with the wife, she be injuncted from residing outside of a 200 kilometre radius of [the regional centre]. The wife opposed this application and sought an order that she and the children be able to relocate to New Zealand with Mr [D].

Competing proposals

15 The husband proposes that the children reside with he and Ms [SW], and her daughter, [K], and that the wife have contact in similar terms to that now enjoyed by the husband.

16 The wife proposes to live on the North Island of New Zealand with Mr [D]. She proposes to fly the children to Western Australia to spend time with the husband for two weeks of the mid -year school holidays, and for four weeks over the summer school holidays. The children can communicate with the husband by way of internet and by telephone.

17 If the children reside with the wife and she is unable to relocate to New Zealand with the children, she proposes moving to [the regional centre] with Mr [D].

The law

18 In A v A: Relocation Approach (2000) FLC 93-035 the Full Court summarised the manner in which matters involving a relocation should be determined. The Full Court stated at p

87,551:

In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

· A court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.

· It is necessary for a court to evaluate each of the proposals advanced by the parties.

· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ''permitted'' .

· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

19 The Court went on to state that even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with and access to the other parent. The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges on those interests it must give way.

20 In D and SV (2003) FLC 93-137 at 78,282 the full Court of the Family Court contrasted intrastate relocation cases with interstate or overseas relocations. In that case the mother sought to relocation 115 kilometres from Melbourne with the three boys the subject of the proceedings. The Court noted:

"[38] Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.

[40] Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children's lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court."

21 S 68F(2) of the Family Law Act sets out the matters I must take into account when determining what is in the best interests of the children. I will consider each of the relevant factors together with how the competing proposals of the parties impact upon them.

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court things are relevant to the weight it should give to the child's wishes;

22 The children were interviewed by Mark Proud, a Family and Child Counsellor, in August 2004. At the time of the interview [E] was aged 11 years 5 months. She advised Mr Proud that she would like to live with her mother, but would like more time with the husband. She stated that if the Court decided she should live with the husband, she would not like it at all. In relation to contact, [E] stated she would like to have contact on the basis of two weekends with the husband and one with the wife. She stated she would like telephone calls to and from the husband at any reasonable hour, and would like holidays to be shared.

23 In relation to the move to New Zealand, [E] thoughts were "I don't know what to think. It's a big, big step. It's good. It's nice. It's scary." [E] eventually stated she would accept whatever decision was made for her.

24 [J] was intervie wed and was then aged 9 years 6 months. He stated that he would like to reside with the husband because the wife and his step-father do "not take me camping and fishing and do not treat me with as much respect as Dad does". He stated he would like to see his mother one weekend in three, call her once a week on the telephone and see her for half of the term holidays and two weeks of the Christmas holidays. [J] stated that he did not want to move to New Zealand, principally because he would not be able to see the husband.

25 [B] was aged 7 years 1 month at the time of the interview. [B]'s wishes were that if his mother remained living in [the regional centre], he would like to continue living with her and spend more

time with the husband. If the wife moved to New Zealand, he stated he would like to live with the husband and see the wife every holiday.

26 In November 2004 [J] was seen by John Brewer, a school psychologist. [J] was very concerned about the likely change of residence because he thought that if the court's decision was that he was to live with his mother and go to New Zealand, he would never see the husband again. If the decision was to live with the husband, he would never see the wife again. [J] stated that his "best option" was to live with the wife if she stayed in Australia.

27 A psychologist, Russell Bailey-Brooks, has been treating [E] this year in relation to her symptoms of Obsessive Compulsive Disorder. She has not given to him any clear statement about whether she wishes to liv e in New Zealand, but has told him that she loves the husband and does not want to miss out on contact. In May/June 2005 [E] wrote a letter to the husband in which she stated that unless he stood up to his de facto, she was not coming to his house again.

28 [E] wrote a letter for Mr Bailey-Brooks to bring to court in which she set out her current wishes in relation to residence. The letter states as follows:

"My recwests [sic] are that I don't live with my dad because wile [his de facto] is living whith [sic] him I can not live there because me and [his de facto] we are unable to get along but I still wish to see my dad maby [sic] every 3rd weekend and half the amount of holidays."

(b) the nature of the relationship of the child with each of the child's parents and with other persons

29 When interviewed by Mr Proud in August 2004, [E] stated she had a good relationship with her mother, although she acknowledged that she and her mother fight. [E] stated that she had a good relationship with Mr [D], her step-father, and placed him on 8 on a 0 to 10 scale.

30 [E] stated at that time that she had a positive relationship with the husband, although not to the same extent as with her mother. She stated she loved the husband and acknowledged that he is putting in more effort now the parties were divorced. She found it stressful when the husband made negative comments about her maternal grandmother. She stated the only thing she would change about the husband would be "the grandma thing". [E] placed him

at 8 on the scale. [E] had some reservations about [his de facto], t, saying that she had criticised the wife and Mr [D] for wanting to go to New Zealand. She placed [his de facto] at 7 on the scale.

31 At the interview with Mr Proud, [J] stated that he got on well with his mother, although he did not like the way she was angry with [E], and subsequently with the boys. He placed his mother at

7 on the scale because "she can be nice, on and off". [J] stated that

he did not get on with Mr [D] and said that while he enjoyed motor bike riding with him, he thought that he was always yelling at him, saying that his kids were better. [J] placed Mr [D] at 3 on the scale.

32 [J] had a very positive relationship with the husband, saying he was "very, very nice". The worst thing about the husband, [J] said, was that he did not like the wife because she got a boyfriend in the marriage.

33 [J] stated that [SW] helped him with his homework. He placed her at 6.5 on the scale.

34 [B] did not think he had a very positive relationship with the husband, describing him as "half grumpy, half funny and half nice". He stated that he did not think he and the husband "really match ". [B]'s request was that he would like the husband to spend more time with him. He did not think that [SW] was one of his type. He did not think he got on very well with her.

35 [B] described his mother as "the same type as me" [B] thought he and Mr [D] had a good time and "half match and half not". Even though the husband and Mr [D] were different, [B] thought they were on a par with each other. Of his parents' partners he preferred Mr [D] over [SW].

36 All the children have a good relationship with the maternal grandparents, Mr & Mrs [J].

37 The mother says that the children have a good relationship with Mr [D]'s children, although they have only spent short periods with them.

(c) the likely effect of any changes in the child's circumstances, including the likely effect of separation from:

38 (i) either of his or her parents; or

39 (ii) any other child, or other person, with whom he or she has been living

40 It is not the case of either parent that the children should be separated from each other.

41 If the children reside with the wife and she continues to remain in Western Australia, then she, Mr [D] and the children will reside in [the regional centre]. I have no evidence about the arrangements which would be made for the children there, but the husband does not object to the wife relocating in that area and there was no cro ss-examination of the wife in relation to her proposals. I presume, therefore, that the arrangements the wife and Mr [D] will make for the children will be appropriate. Contact would be able to continue in the same manner. A relocation to [the regional centre] will mean the children will be required to change school whether they reside with the wife in [the regional centre], in New Zealand or with the husband [south of Perth].

42 If the children reside with the wife in New Zealand, the obvious effect of a change in their circumstances will be that their face-to-face contact with the husband will be very significantly reduced. At the moment they see him each alternate weekend and for half of the school holidays. Before March 2004 when formal contact ord ers were made, he had more frequent contact. Personal contact will be reduced to twice a year with two weeks contact in the middle of the year and four weeks over the Christmas holidays.

43 When interviewed by Mr Proud all of the children indicated they wished to see more of the husband, not less of him. The move to New Zealand will result in the children seeing a lot less of him.

44 If the children were able to relocate to New Zealand, Mr [D] would have much more contact with his own children than he does at the moment. It was the wife's evidence that if she and Mr [D] were to relocate to New Zealand, then two of Mr [D]'s children would live with them. These children, according to her, currently had some problems relating to their mother. She acknowledged that if these children resided with her, this could cause some problems for [E]. [E] does not like the husband's de facto's daughter, [K], because she thinks the husband pays her too much attention. [E] also expressed a desire to have more time one on one with the husband, rather than having her brothers present. It is highly unlikely that she will flourish in a situation where she would have to compete with four others for her mother's attention.

45 Mr Bailey-Brooks, the psychologist, acknowledged that [E]'s style is to divide and conquer. If she had Mr [D]'s children in the household, I have no doubt she could make the environment very difficult indeed.

46 Mr [D], however, states that his children would not live with him. He stated his daughter, [C], was having problems and getting into trouble last year, but was now more settled. He said the other two children have never been a problem and he did not anticipate they would leave their mother and live with him.

47 I have some difficulty with the conflict in evidence between Mr [D] and the wife in relation to this important issue. I accept Mr [D]'s evidence that his children will not live with him, but why did the wife say they would? In my view, the wife has exaggerated her evidence about the importance of Mr [D] returning to New Zealand in order that the children could live with him to bolster her case. The wife stated that if she could not relocate to New Zealand with Mr [D] and the children, her marriage may be in jeopardy. That is not the impression given by Mr [D].

48 The wife's parents say that they, too, will move to New Zealand and live near the wife and Mr [D]. They say they would be there to support the wife and be available to assist her as they are now.

49 The wife says that one of the advantages for the children in going to New Zealand is that they would not be exposed to the husband each alternate weekend, and would be sheltered from his negative influence. I have no doubt the husband's style of looking after the children is different to the wife's. The wife sees this as being negative for the children. In my view, this is not necessarily the case. The wife has not been firm enough with [E] in the past and let her take over. The husband's manner of disciplining her has been firmer and there have been less problems in his household. The effect of the children residing with the wife in New Zealand is that they would not have the balancing effect of the husband's methods of dealing with the children, and this may have a negative impact, particularly upon [E].

50 If the children were to reside with the husband and have contact with the wife, [E] and [B] would be very unhappy. [E], in more recent times, has become more negative in relation to the husband, [SW], and [K]. "H.2" is a letter written by [E] to the husband. In that letter [E] stated as follows:

"I think that [SW] is a horrible old cow who needs to mind her own business and I don't really like her. and [K] is an attention seeking little brat. I feel like I have been pushed out and [K] is your number 1. I don't know if you can see it but [SW] is controlling you, the boys and me. To be honest, she

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is a bitch you need to stand up for yourself and tell her no because until you do I am not coming to your house …

Dad I do love you very much but it is hard for me to come to your house because I feel so bad about how I am treated there." [sic]

51 [B] would also have difficulty if he moved to live with the husband. His perception is that he and the wife are very similar and enjoy a close relationship. He does not feel that he "matches" the husband or [SW]. Extended periods away from the wife are likely to have a detrimental effect upon him, particularly as the wife will be living in the [the regional centre] area.

(d) the practical difficulty and expense of a child having contact 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;

52 The wife says that she and Mr [D] will be responsible for the costs of flying the children to Western Australia for contact. The airfares will be paid for by "flying credits", which Mr [D] will earn through his work.

53 Neither the husband nor the wife are in a strong position financially. Neither have any assets of any significance and they are both living in rented accommodation. Neither Mr [D] nor the husband earn a large amount of money and return airfares for three children from New Zealand will be a significant impost on either household. If Mr [D] was unable to get these flying credits, it is highly unlikely the children could fly to Western Australia.

54 The wife says the children can maintain their close relationship with the husband by way of telephone and email access. No doubt she is relying on her own experience of maintaining a relationship with Mr [D] prior to him moving to Western Australia. We are not talking of the children maintaining a romantic relationship over the internet, but a normal parent/child relationship with the husband. The children are unlikely to spend hours on the computer maintaining their relationship with the husband as the wife did with Mr [D].

55 Mr [D] is an example of where distance has affected his relationship with his children. He stated that he has a closer relationship with the husband and wife's children than he does his

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own at the moment because his children are residing in New

Zealand and he had had little contact with them.

56 If Mr [D] was not in a position to get "flying credits" the cost of the contact may well mean that contact could not take place twice a year as anticipated now by the parties.

57 If the children resided with the wife in [the regional centre], contact could take place as it has previously, that is each alternate weekend and for half of the school holidays. If the children resided with the husband in [south of Perth], the wife could have contact very regularly without any difficulty.

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

58 While the parties resided together it was the wife who was responsible for their day-to-day needs. It was she who took responsibility for [E]'s care in very trying circumstances. The husband had little involvement, when the wife attended Ngala to obtain some assistance in dealing with [E]. He had little to do with [E]'s involvement with the State Child Development Centre when she was being assessed to ascertain what was causing her difficult behaviour.

59 The husband also had little or no involvement with the children's schooling while he and the wife lived together, and has had no involvement since separation. He says during the time the parties lived together he worked long hours and was unavailable for those types of activities. Since separation, he has not been responsible for the farm and has been more available for the children, but has not attended at the school, or even enquired as to the wellbeing of the children in that environment.

60 The wife says that the husband does not encourage the children in their educational pursuits and is not likely to do so in the future. While the husband has not involved himself in the past, I do not accept that he will encourage the children not to achieve at school, but he is very unlikely to be as involved as the wife has been

61 The wife is critical of the husband's capacity to provide for the children's emotional needs, saying that he is very hard on the children, particularly [B]; does not support [J] in his athletic endeavours and does not deal with [E]'s problems. She also states that he undermines her position to the children.

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62 I accept that the husband does not encourage or spend time with [B], which is reflected in [B]'s comments to Mr Proud. It appears [B] is a sensitive child, who did not think that he had very positive relationship with the husband. [B] has told the wife that the husband does not love him as he loves [J], and his wish is that the husband would spend more time with him. [B]'s opinion was that the husband wanted him to hate the wife, but thought the wife supported him having a good relationship with the husband.

63 [E] expressed concerns about the husband talking about the wife. She described the husband's de facto, [SW], as saying negative things about the wife and Mr [D] because they want to take the children to New Zealand. It was [E]'s view that the husband did not want her to have a good relationship with the wife. [E] also observed that the husband and [SW] tried to turn everything to their advantage.

64 The husband's comment to [J], as told to Mr Proud, that he should love the wife even though she got a boyfriend "off the net", shows that his support of the wife is limited, and he is keen to communicate what he perceives to be the wife's poor behaviour to the children.

65 I accept that the husband does not support the children's relationship with the wife. He is obviously still unhappy about the circumstances of the separation and her involvement with Mr [D] on the internet prior to separation. He has a very negative view of Mrs [J], who is a very significant adult in the children's lives. He constantly puts her down to the children, which has a negative impact upon them.

66 The wife ran a very negative case at trial. She and her witnesses had little, or nothing, good to say about the husband. The only good comment made was that he was a hard worker during the course of the marriage, but even that was tempered with the qualification that he did not know how to budget. One of the reasons she wishes to move to New Zealand is so that the children will not be exposed to what she perceives as his negative influence and "finger waving, eyeballing" sessions. Whether she lives in Western Australia or in New Zealand, in my view, she will only support the children's relationship with the husband to a very limited extent. The fact that she thinks it is a benefit to have less contact rather than more with the husband puts in question whether she is likely to comply with contact orders should she reside in New Zealand. It would be more difficult for the husband to

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enforce contact orders if the wife resided in New Zealand. If she resided in Western Australia, the husband would be able to more readily access the court and the wife if contact did not occur.

67 One of the most significant issues in relation to the wife's capacity to care for the children is the role of her parents and their capacity to care for the children. From very early on the husband has had a difficulty with Mrs [J], who he thought had too much influence over the wife. From the time the parties were married they lived on the same property as the wife's parents. Now the wife has decided that she wishes to relocate to New Zealand with Mr [D], Mr & Mrs [J] have now decided that they wish to relocate to New Zealand as well, despite Mrs [J] having never been to New Zealand.

68 The Ngala notes in 1996 set out what the wife said about her relationship with her mother at that time, as well as the difficulties she was having with the husband. In relation to her mother, she stated as follows:

"She also refers to her Mom's [sic] interference in her life and that she is confused in her position/role. [The daughter] refers to her Mom's over protective/demanding and controlling behaviour, and that she has been able [sic] to say "no" to her Mom [sic]. [Her] Mom [sic] has had nervous breakdowns in the past and [she] doesn't want to cause another one by standing up to her."

In relation to this comment, the wife says that this was her perception at the time, but she now disagrees with this assessment. She says her view in 1996 was influenced by the husband.

69 Mr & Mrs [J] are an important factor in this matter, as not only are they involved with the children on a daily basis, but they were involved in a serious incident where [J] was injured by Mr [J] in March 2004. The assault was very worrying, as was the manner in which the adults, that is the wife, Mr [D] and Mr & Mrs [J] let the children deal with the sequel.

70 The incident came about because [J] referred to Mrs [J] on the school bus after school one afternoon as "a stupid old fart". [E] told Mrs [J] about this incident. Mrs [J] broke down and told her husband. He took [J] to the shed and hit him with an electrical cord four or five times, resulting in extensive bruising to his upper thigh. In explaining this incident Mr [J] took little responsibility for it and attempted to blame the husband. In his affidavit sworn on 28

January 2005 he stated as follows:

"21 Previously [Mr Q] had told me to "beat" the children if they need it. He told me that it was okay to "beat the shit out of them" as his mother had done this to him. This concerned me, but I didn't resort to such discipline, although on the 7th March 2004 I did give [J] a belting for which I am deeply ashamed of. This has been the one and only time I have hit the Children and I have always talked to the Children to reason with them or implement the strategies [the daughter] learnt at Ngala in handling [E]."

71 Both the wife and Mrs [J] also thought the husband should take some blame because he had allegedly coached [J] to say such things to the grandmother.

72 While the incident of the striking by Mr [J] is disturbing in itself, the reaction of the adults was, as stated previously, even worse. It was decided that the husband would not be told about this incident. Mr & Mrs [J], the wife and Mr [D] agreed at the time to "let things slide". This decisio n was made in the context of the wife, Mr [D] and Mr & Mrs [J] being well aware that the husband was capable of losing his temper and getting very angry. Once he found out about what happened from the children, it was inevitable that he would be angry and express his anger in front of them. This could have been deflected if one of them had given him notice of the incident.

73 On the following weekend the husband had contact with the children. Mr [D] dropped the children off to the husband in [the regional centre], but did not tell him anything about the incident. The husband saw the bruises and when asked how he had got them, [J] was initially reluctant to say. He finally told the husband that his grandfather had beaten him with an electrical cord. After the husband was told this, both [E] and [J] were both very worried because they had been told not to say anything to the husband about it. [E] told the husband that her grandmother had told her that she would never forgive her if she told anyone what happened and that she would never speak to her again. [E] said she had been told her grandfather would go to gaol and probably die there and that it would be her fault for telling the husband.

74 I accept the husband's evidence, not only that the children told him this, but that they had been given those instructions by Mrs [J]. The husband was not told about the incident because the adults were hoping that the children would not tell him and they would never have to account to him for what happened.

75 The husband rang the wife and questioned her about the incident. She was not particularly forthcoming, not agreeing or disagreeing that an incident had taken place. The husband became very angry and abused her that night, and at contact changeover the next day.

76 I have very real concerns about the ability of the wife, Mr [D] and Mr & Mrs [J] to care for the physical and emotional wellbeing of the children if, firstly, they are prepared to lie to the children in an effort to get them hide things from the husband; second, to not take responsibility when an incident like this occurs, but leave it to the children to "face the music"; third, the incident of the assault should not have happened at all. Mrs [J] is obviously emotionally fragile. Calling her a name as [J] did, to others on the school bus, should not have been a big issue for her and should not have been a big issue for Mr [J]. For both to react in the manner in which they did is worrying.

[E]'s behaviour

77 While [E]'s behaviour has always been difficult, in the weeks before the trial in April 2005, it became worse. The wife says that she had become stressed and was very emotional. She believed the boys were carrying germs and she became concerned that if she touched anything the boys had touched, that she too would carry the germs. To avoid this she would wash her hands, on occasions every five minutes, and leave soap on her hands for a protective barrier. The problem with the hand washing had become more evident as the weeks went along. On occasions her hands were red raw.

78 In March 2005 there was a serious incident when [E] becoming very concerned after [B] had played with frogs. [E] insisted that he washed his hands and she stood over him while this happened. He refused to wash his hands, but eventually did so because [E] insisted. She then became concerned that he had touched other things in the house. She became very upset and started to kick the walls and was told to go to her room. When in the bedroom she started kicking the wall. She then said that everyone would be better off without her. The wife tried to reassure her and she calmed down. While the wife was attending to [B], [E] got out of the bedroom window with bags packed. The wife asked Mr [D] to go after her. When Mr [D] got to her they both fell over. [E] was hysterical after this incident. She had a small scratch near her eye and redness near her jaw. After this

incident [E] told the wife she believed that she was the cause of the marriage break-up and that it had been her fault because she was so difficult. [E] was taken to the doctor in the morning and the wife rang the school psychologist to seek assistance for these behaviours.

79 The wife spoke to the husband at contact handover to explain to him what had happened. While [E] was at the next contact period with the husband, the wife received three text messages from [E] saying that the husband and [SW] wanted to take photos of her injuries. [E] also stated to the wife that she could not control the hand washing. The husband's actions in wanting to take photos at this time were highly insensitive and no doubt resulted in enormous stress for [E], emphasising her serious concern that she was the cause of the dispute between the husband and the wife.

80 David Wade, a senior community mental health nurse, saw the wife and [E]. Mr Wade discussed with [E] how she should hand the mothering role back to her mother. Since [E] has had involvement from Mr Wade, there has been a meeting with the husband and the wife in an attempt to deal with the issues in a consistent manner. The wife accepted that [E]'s behaviour has caused some difficulties for the boys and they have been resentful of her behaviour.

81 It was the opinion of Mr Wade that [E]'s problems were exacerbated by the stress caused by the contested residence proceedings between the husband and wife, and the fact that the matter of where [E] is to live is yet to be resolved.

82 [E] does not have these compulsive problems at school. Mr Sypkers, the headmaster at the school she attends, stated she had a very high verbal IQ, but came to the school with reading and writing problems. She has had special classes and has caught up. He stated she had problems socialising at times.

83 The trial was adjourned in April 2005 because of [E]'s behaviours and the fact that she was to be reviewed by a clinical psychologist. At the resumed hearing in June 2005, Russell Bailey-Brooks, a psychologist, gave evidence. Mr Bailey-Brooks stated that after the trial in April [E]'s behaviour had been very bad, and the wife and Mr [D] were considering putting [E] in respite care in [the regional centre] to give the family a break from her. Her behaviour improved when she knew that this was likely to happen, which indicated to him that she had the ability to control the situation if she needed to do so. It was recommended that

contact with the husband cease to see whether [E]'s obsessive behaviours improved. Eventually, contact was re-instated and, as can be seen from her latest letter, [E] wishes to have contact with the husband.

84 [E] does not have the problems with obsessive compulsive behaviour to the same extent at the husband's and [SW]'s home. Firm boundaries are set there as to what is expected in relation to her behaviour.

85 Should the wife relocate to New Zealand with Mr [D] and the children I have very real concerns about her ability to deal with [E]'s behaviours. Her behaviours have the capacity to severely disrupt the household, to the extent that she was almost placed in respite care to give the family a break. Mr Bailey-Brooks stated that [E] functions best when in a stable and secure environment. If the wife moved to New Zealand, [E] would have to deal with a change of country, a change of education systems, new friends, Mr [D]'s children who would come and stay from time to time and the fact that she would have very little direct contact with the husband. She is likely to react very badly to this scenario.

86 I also have concerns about the fact the wife's parents will move to New Zealand to be near her. They will leave behind their other children and grandchildren. Mrs [J] does not like flying and has never been to New Zealand. Mr [J] says they will live there because they like the cool climate and because they could afford to buy a home there. I do not accept these are the only reasons they wish to move. My concern is that Mr & Mrs [J] either believe the wife cannot look after the children on her own, with Mr [D], or will not let her do so. Mr Wade commented that the wife should take back the mothering role from [E]. This inferred that the wife does not take responsibility and lets [E] take control as her own mother has done in the past. If this is the case it is certainly not in [E]'s best interests.

87 The wife has made it very clear she wishes to raise the children without the negative influence of the husband. The decision to formally approach the husband through a lawyer in relation to their desire to relocate to New Zealand only came about after the husband said he would bring an application for residence. If the wife, Mr [D] and Mr & Mrs [J] relocated to New Zealand with the children I have concerns about the manner in which they would be disciplined; the fact that the husband would not be promoted as an appropriate father figure; and that the husband

would not be told of any problems the children were having. Further, in my view, [E] would react very poorly to the change of circumstances which would negatively impact upon the entire family.

88 If the wife resided in Western Australia with the children, they would have regular contact with the husband and he would be able to observe himself any difficulties the children suffered and the manner in which those difficulties were being dealt with. He will be able to have some input into treatment received by [E]. He would ameliorate, to some extent, the influence of Mr & Mrs [J] on the wife and the children.

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed to[W]s, or may affect, another person

89 [E] is a vulnerable child who, as was stated by Mr Bailey- Brooks, could suffer serious long term consequences as a result of the obsessive compulsive symptoms currently exhibited by her. It was his view that if [E]'s symptoms did not start to improve in the next six months, he would be very concerned for her long term prognosis. In my view, the best case scenario for [E] to improve her psychological health is to live with the wife and have regular, frequent contact with the husband, and not be subjected to a change of country, friends and education system, all of which are likely to exacerbate her symptoms.

90 While [J] has only been struck on one occasion by Mr [J], I have concerns that if the children are out of Australia and away from the husband's ability to check on their physical condition that they may well be subjected to some physical abuse from Mr [J], especially if he became frustrated with the manner in which the children were acting. If the children resided in Western Australia that would be less likely to happen as the husband would be able to vet their physical condition when they came to see him for contact.

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(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

91 Both the husband and wife have a poor attitude to each other, which they impart to the children, and as a consequence this has a negative impact upon them.

92 I am satisfied that the wife's attitude to the responsibility of parenthood has been better than the husband's. She has been responsible for their physical and emotional needs since birth. The husband has taken very little responsibility for these activities.

(i) any family violence involving the child or a member of the child's family

93 The only recent serious violent incident has been that between

Mr [J] and [J], and I have already commented on this.

(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

94 If the wife and children remain in Western Australia, she will reside in [the regional centre] with Mr [D], the husband will be able to have regular contact and there should be no necessity for the institution of further proceedings.

95 If the wife resides in New Zealand with the children and, if Mr [D] is not entitled to flying credits to assist with the airfares of the children, it is difficult to see how either of the parties could afford to pay for airfares for three children from New Zealand to Australia twice per year. This may involve contravention proceedings being brought by the husband and further stress for the children and the parties by way of litigation.

96 If the children were to reside with the husband in [south of Perth], both [E] and [B] would be very unhappy. In those circumstances I would expect a flood of litigation seeking either to change the arrangements for the children or to force the children to return to the husband after contact. I can see a situation where [E] may well run away, which could compromise her safety and result in further proceedings.

Conclusions on residence

97 In my view, it is in the children's best interests to reside with the wife in the [the regional centre] region. The wife's right to freedom of movement must, in these circumstances give way to the

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best interests of the children. My reasons for finding this are as follows:

• The children, even [J], want to live with the wife.

•The children want to have frequent contact with the husband, which cannot occur if they reside in New Zealand.

•The wife has the capacity to care for the children with input from the husband.

•At this stage [E] needs stability and security, which she can get in the [the regional centre] region with ready access to the husband and the wife.

•If the wife resided in New Zealand with the children, she would not support the husband's relationship with them.

•There is a possibility that if the wife lived in New Zealand with Mr & Mrs [J], the children could be subjected to physical abuse.

•The wife has a "rose coloured" view of New Zealand and the manner in which her children and those of Mr [D] would interact.

•The wife has always been responsible for the children, both during the time the parties lived together and since separation.

•The husband is unlikely to promote the wife's relationship with the children if they resided with him.

•There is a likelihood of future litigation if the children resided with the husband against their wishes.

I certify that the preceding [97] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate