R and M

[2007] FCWA 76

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	R and M [2007] FCWA 76
CORAM:	CRISFORD J
HEARD:	17 MAY 2007
DELIVERED:	14 JUNE 2007
FILE NO/S:	PT 3537 of 2005
BETWEEN:	R

Applicant/Father

AND

M
Respondent/Mother

(Page 2)

Catchwords:

Children's issues - where a child is to live - interstate relocation - factors to
consider

Legislation:

Family Law Act 1975, Division 12A, Part VII, s 60, s 61, s 68

Category: Not Reportable

Representation:

Counsel:

Applicant:	Self Represented Litigant
Respondent:	Self Representative Litigant

Solicitors:

Applicant:

Respondent:

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

AMS v AIS (1999) FLC 92-852
Godfrey & Saunders [2007] Fam CA 102
M & S (formerly E) (2006) FamCA 1408
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1 [Ms M] wants to take the two children of her marriage to [Mr R] to live [on the coast in the Eastern states]. [Mr R] wants the children to stay in Perth, ideally living with him for seven days out of every 21 days.

Brief background

2 [Mr R] was born [in] March 1976 and is now 31 years of age. He is a [machine operator]. [The mother] was born [in] December 1976 and is now 30 years of age. She is [a clerk].

3 The parties commenced living together in 1994. They married [in] November 1996 and separated in May 2005. They were divorced on 1 September 2006.

4 [Stuart R] was born [in] May 1997. He was almost 10 years old at the time of the trial. [Rosemary R] was born [in] June 1999 and is now nearly 8 years old.

5 After the parties separated the children lived with [the mother] and spent time with [Mr R] on a regular basis. [The mother] has re- partnered with [KP]. They have been living together since June 2005.

6 [Mr R] has re-partnered with [Ms A] and they have been living together since June 2006.

7 There are no parenting orders in place for the children.

Orders sought

8 [Mr R] seeks orders that [Stuart] and [Rosemary] reside in the Perth metropolitan area.

9 He wants the children to live with him for one week in every three and to be able to attend all of their school and sporting events. He wants to communicate with the children by telephone and to spend time with them on their birthdays.

10 [The mother] wants to go with the children to live with [KP] in [Eastern states]. She proposes that, in total, the children spend up to 11 weeks of their holidays with [Mr R] in Perth.

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11	She proposes that [Mr R] and the children communicate by telephone on a regular basis and that there be communication by email. She deposes to being able to set up a webcam for the children and [Mr R].
12	She proposes that she pay all of the airfares for the children to spend time with their father and his family.
13	If the children are not able to go to [Eastern states], she proposes to remain in Perth. She wants the children to continue living with her and for them to spend time with [Mr R] every alternate weekend from after school Friday to the commencement of school on Monday. This is the arrangement which has taken place on an informal basis since separation.
14	She proposes the children spend time with [Mr R] for one week of every term holiday and for up to three weeks during the Christmas holidays.
15	She proposes that the parent who has the children in their care be able to attend any weekend sporting activities. She wants there to be a separate bedroom for the children when they spend time with their father.

Preliminary observations

16 Both [Mr R] and [the mother] made a good impression in Court. These child related proceedings, conducted pursuant to Division 12A, Part VII of the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 proceeded on a relatively informal basis.

17 Both parties were able to articulate clearly what their respective positions were and why each saw that position as being in the best interests of the children.

18 Despite the difficulties they presently have in communicating with each other and the added anxiety of the court proceedings, there is nothing to suggest in anything I have read or about which the parties gave evidence that each is anything other than a good parent.

19 The mother] presented as a woman with much common sense and a focus on maintaining a meaningful relationship between [Mr R] and the children.

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20	[Mr R] gave every impression of being deeply attached to his children and very concerned about being separated from them anymore than he has been to date.
21	[The mother] correctly makes the observation that until there was any suggestion she wanted to move and take the children with her, the fairly limited time [Mr R] was spending with the children did not trouble him. Once she flagged the issue of relocation, he became interested in spending more time with the children.
22	[Mr R] on the other hand explains that [the mother]’s desire to move crystallised his feelings about being a father and made him reassess his relationship with his children. He now wishes to be more involved. He says that cannot take place if the children are removed from their present environment.
23	Both parties have very valid points of view and it is with regret that this Court cannot provide a solution that will make both parties happy. It is simply not possible in the context of a case such as this.

Applicable law

24 The case before me is commonly called a relocation case. “Relocation cases are notoriously difficult. Both parties have valid claims of right” (Godfrey & Saunders [2007] Fam CA 102 (23 February 2007). The Family Law Act 1975 requires the Court to regard the best interests of the child as the paramount consideration. Not everyone agrees just what the best interests of children are in any given set of circumstances.

25 The new legislation is strongly in favour of both parents having substantial involvement in their children’s lives.

26 S 60B(1)(a) of the Act provides that the objects of the legislation are to ensure that the best interests of children are met by children benefiting by both of their parents having a meaningful involvement in their lives.

27 Neither [the mother] nor [Mr R] sought any order in relation to parental responsibility. S 61C(1) of the Act provides that until a child turns 18 each of the child’s parents has parental responsibility for the child. This can be exercised jointly or independently. S 61B sets out the meaning of parental responsibility:

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“61B in this part, parental responsibility, in relation to a child, means all the

duties, powers, responsibilities and authority which, by law, parents
have in relation to children.”

28 Note 2 in s 61C sets out that the section does not establish a presumption to be applied by the Court when making a parenting order. Thus the presumption set out in s 61DA does not apply in this case, on my reading of the Act. Thus there is no need, as a starting point, to consider the practicality of the children spending equal time with each of their parents or if that is not viable then considering whether an order that the children spend substantial and significant time with each of their parents would be in their best interests and viable.

29 For the reasons set out in the judgment, even apart from the fact that neither party sought an equal sharing of time, their circumstances are such that it is not viable. [Mr R] has, however, sought an order that he have substantial and significant time with the children and that issue is canvassed in the context of the considerations set out in s 60CC.

30 The High Court has examined issues involving the restraint of movement of a parent AMS v AIS (1999) FLC 92-852. In A v A: Relocation Approach (2000) FLC 93-035, the Full Court undertook an analysis of the considerations that might properly affect the outcome of a case where relocation is proposed and guidelines for decision making were set down. The Court stated:

“64. In our view, the following binding principles of law were established by a majority of the High Court in AMS v AIS: AIF v AMS (supra):

• In determining a parenting case that involves a proposal to relocate the residence of a child, 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.

• In determining a parenting case that involves a proposal to relocate the residence of a child, 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

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existing circumstances: (per Gleeson CJ, McHugh and Gunmow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).”

31 The Full Court went on to outline matters to be taken into

account:

• The Court must identify and evaluate the competing proposals advanced by each party.

• The Court is not to dissect 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 issue of relocation is not to be separated from that of residence and the best interests of the child.

• In determining which proposal best promotes the best interest of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975.

• The Court must consider the various matters that are set out in s 68F(2).

• None of the parties bears an onus.

• It is important to consider the party’s right to freedom of movement.

32 I am of the view that despite the recent amendments to the Family Law Act 1975 there is nothing to suggest that the binding principles so enunciated no longer apply to relocation cases. These principles are still applied in the context of the objects and principles of the overall Act.

Competing proposals

33 [The mother] wants to move to the [coastal] area [in the Eastern states] at the end of 2007 or the beginning of 2008. This will coincide with the start of the new school year.

34 [The mother]’s partner, [KP], originally comes from that area in [Eastern states]. She came to Western Australia on a temporary basis for work. She had always intended to return to her family in [Eastern states]. She stayed here as a result of meeting and forming a relationship with [the mother].

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35 [The mother] wishes to go to [Eastern states] for a number of

reasons:

• [KP] is now very much a part of her and the children’s lives. They form a family unit. She wishes to be with KP] who wants to return as she had always planned to.

• Whilst the children are settled and happy in Perth at [the local] Primary School, [The mother] believes that the [Eastern states] Primary School which has a [specialist teachers] and smaller class sizes will have a positive effect on the children. This is especially the case in relation to [Stuart] who has some [particular] development difficulties which have affected his speech and reading skills. [The mother] receives a carer’s allowance for him.

• She wishes to rehouse but given the current prices in Perth would not be in a position to purchase a larger property in the [desired] area. Houses in the [Eastern states area] are considerably cheaper.

• She believes she will be more financially secure in [Eastern states].

36 [The mother] proposes to move at the end of the school year or early in 2008. Initially, the family would stay with [KP]’s mother and would move once they purchased their own home.

37 The children have been tentatively enrolled in the [new] Primary School and can start there in 2008.

38 [The mother] has made enquiries through a recruitment agency in relation to obtaining employment. She has taken active steps to access job advertisements for appropriate part-time work in close proximity to where they will be living. All indications are she would have little difficulty obtaining work.

39 [The mother] proposes that she pay all the costs of the children returning to Western Australia to spend time with [Mr R]. She proposes that he has up to 11 weeks in total of the school holidays available to the children each year. She proposes there be regular communication by way of telephone calls and that an email account be set up for the children to enable them to contact [Mr R] and his extended family.

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40	[Mr R] wants the children to remain in Perth and to live with him for seven days in every three weeks. Since separation he has seen the children, in the main, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday. On a couple of occasions he has had the children for extended periods of time over the holidays. Due to his work this has not been on a regular basis.
41	He said he currently works nine hours a day, five days a week as a [machine operator]. He would not reduce his work hours if the children resided with him, although he has flexibility in relation to his start and finish times. However, his partner and family would be available to assist him.

42 He wants this change because:

• he has the family support to make it work;

• he wants to move on to being part of “ordinary” time in the children’s lives, including part of their school activities;

• he wants the children to stay in the [Stuart]e school for at least their primary years;

• he sees his role as very important for their growth and development;

• he does not see the reasons for relocating as being sufficient;

• the children are settled and happy here and should not be disrupted by such a full scale change.

43 If [the mother] was to remain in Perth she does not view the proposal of [Mr R] as being viable. She sees that proposal as being disruptive to the children’s school routine, especially given [Mr R]’s working hours and his lack of availability to be with them as she is. She works part-time. Historically, he has not shown any interest in such involvement. His proposals do not take into account holiday periods.

44 It would be fair to say that the proposals of both parties were lacking in some detail. However, there was no real issue about the ability of either party to cater for the needs of the children either practically or intellectually. I have no doubt each would make sure the children were well catered for.

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45	[The mother] was, without hesitation, able to give credit to [Mr R] for being a good father. The children loved him, loved seeing him and there were few care issues raised.

46 [Mr R] admitted that [the mother] was a good mother, although

begrudgingly.

Section 60CC Family Law Act 1975

47 These competing proposals are now discussed in the context of S 60CC(2), (3) and (4) of the Act insofar as they are relevant to the facts of this particular case.

48 The children have a meaningful relationship with both their parents. They have had some weekend time with [Mr R] for approximately two years. It is to their benefit to continue with their meaningful relationship with both parties no matter where they live.

49 [The mother] had raised the issue of family violence. This was in the context of [Mr R] handling her roughly and having unpredictable mood swings. [Mr R] accepted there had been some violence but says:

• it had taken place over 10 years ago;

• it arose in the context of heavy alcohol use; and

• it arose at a time when the parties found themselves in an unhappy period of their marriage.

50 It was not raised by [the mother] as a present issue. [Mr R] took and is now again taking steps to address his alcohol consumption. He says he has been attending Alcoholics Anonymous for the last three months. I accept [Mr R] may well be quick to anger. It is not something that is determinative in this case given the context of the allegations and the manner in which the parties have operated since their separation.

51 The parties, wisely, did not seek to press the views of the children as being of much assistance to the Court. They are young children and [Stuart] has had some language difficulties. In any event, the evidence did not suggest strong views either way. What is clear is that the children love both their parents and wish to have both parents in their lives.

52 The children have a very good relationship with both parents. Given their ages and the regular time with both parents this has been

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possible. They presently have good relations with [Mr R]’s extended family. [Mr R]’s sister gave supportive evidence and the picture painted is of a close knit family unit.

53 [The mother] has developed a good relationship with [KP]’s family. [KP]’s mother has visited the children in Perth. Both [KP]’s sister and mother swore affidavits in support of the move. In addition, there is nothing to suggest that the children do not love and are loved by their parent’s present partners.

54 [KP] has been a part of the children’s lives for around two years. Both her and [the mother]’s affidavit material attest to [KP] being an important part of [Stuart] and [Rosemary]’s lives. She is involved in their sport and schooling. She has assisted [Stuart] with his reading and language skills.

55 The Court was impressed by [the mother]’s willingness and ability to facilitate and encourage a close and continuing relationship between the two children and [Mr R]. However, it was clear she wanted no contact with [Mr R] herself. This appeared to be reciprocated by [Mr R] and his family.

56 [The mother] deposes that originally, after separation in May 2005, [Mr R] saw the children one weekend out of every three. She encouraged it to increase to an alternate weekend basis and this is what happened in November 2005. She has been willing to allow the children to spend time with their father when his work has closed down for a week over Christmas/New Year in the past two years and there was nothing in her presentation to suggest that there was any plan to try to remove the children from having a meaningful involvement with him.

57 [The mother] correctly stated that whilst her present plans would not allow the children to see their father as regularly as now, there would be blocks of time where they could see their father and his family. He would have up to 11 full weeks each year and she would pay all the costs of the inevitable travel. She said [Stuart] would especially benefit from those blocks of time.

58 The proposed geographical change in the children’s living environment is likely to affect them. There is no doubt they will miss the regularity of their time with their father if they were allowed to move. They would face a new environment and school.

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59	It is likely the children would also face some disruption if they went to the one week in three routine proposed by [Mr R]. [The mother] has always been their primary caregiver. Even if [the mother] was to remain in Perth she opposes [Mr R]’s proposal of seven days out of 21. She is sceptical of the reason behind such a proposal. She says in the past [Mr R] has been reluctant to spend more time with the children or have them for holidays. It has only been when she has agitated, encouraged and facilitated that he has been willing to have more time. Even then there were times he refused. She sees this proposal as stemming solely from her wanting to relocate.
60	Whilst I am satisfied that [Mr R] is able to care for the children he had very few specific proposals as to how such an arrangement would work and how it would impact upon the children. The children currently share a bedroom at his home and [the mother] is critical of this.
61	[The mother] says the practical difficulty and expense of the children spending time with [Mr R] is overcome by regular blocks of time at her expense. [The mother] would be selling her house in Perth and purchasing a house of lesser value in [Eastern states]. She is employed and [KP] has offered to assist. There would be funds available for airfares.
62	These parties are not able to communicate on day to day issues relating to schooling and sport.
63	There was nothing put to me that would suggest [the mother] has anything other than a very positive attitude to the children and to her responsibilities of parenthood.
64	[Mr R] was more angry and showed more animosity towards [the mother]. I accept that some of this arises out of her recent plans to relocate but there appears to be an unresolved anger stemming from the relationship breakdown.
65	There have been times when [the mother] has tried to arrange for the children to spend extra time with [Mr R]. On some occasions he has made it more difficult for this to take place or has refused. [Mr R] admits that in the early days of their separation things were chaotic and he was driven by his hostilities. He accepted that he had refused to have the children when it did not suit him. He says this has not always been the case and there have been times when he has availed
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himself of the additional opportunities. He also said he regretted having said some of the things he did.
66	[The mother] deposed to a number of fairly recent incidences. In January 2007 she asked [Mr R] if he wanted to spend a week with the children during the term holidays or whether he was going to go way. [Mr R] indicated that he might be taking holidays himself and thus could not have them. He refused to have the children saying he wanted to keep the situation as it was. [The mother] therefore went ahead and made arrangements for holiday care.

67 There is no evidence of any family violence involving the

children.

68 One of [Mr R]’s main concerns with the children going away is that he would only see them for a limited time each year. He was adamant that due to his 45 hour a week work schedule which allowed only four weeks holiday a year, the children would be in holiday or day care when they came to visit him for seven of the 11 weeks. He anticipated this would be intolerable for them and would be more so as they got older.

69 [CR], his sister, gave evidence that she would be prepared to help out. She is a teacher with a three year old child herself. She is not in a relationship and she often called upon their parents to assist with her young daughter. Her evidence is that they are also very close to [Mr R]’s children.

70 [Mr R] said he felt that he would only be able to avail himself of four weeks of the 11 weeks. The seven weeks in which he would be working would not be meaningful and he would not be available himself that time. He said he would not therefore want that time.

71 [Mr R] was unwilling to concede that even with the wide supportive family network he has, he could not call upon them to assist. He saw it as his responsibility as a father to care for them. He said he would be concerned with his extended family caring for the children and would only call upon them if the children were sick.

72 This was somewhat at odds with his attempts to persuade the Court that his proposals to have the children for a week in every three would work. He would, even on his own evidence, need assistance with that proposal. He would still be faced with some blocks of holiday time over and above his leave entitlements. He said he did

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have some work flexibility. He has appeared unconcerned in the past when due to his unavailability the children have been in care over holiday periods.

73 Given his attitude in this regard and his concession that there had been times when he had not taken up every opportunity to see the children, I formed the view that he allowed his own disappointment to spill over onto decisions about the children.

Conclusion

74 There are few decided cases in relation to relocation since the amendments to the Act. The Honourable Justice Dessau in M & S (formerly E) (2006) FamCA 1408 expressly refused the submission of counsel that the new Part VII effectively casts an onus of proof on the applicant for relocation. Her Honour went on to say at para 38:

“38. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggest that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the Court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that being the intention, the Act would have been amended accordingly.

75 Thus neither party in this matter bears an onus to prove that their case is the better option. It is also important to consider that both parties have a right to live their lives where they choose bearing in mind the paramount consideration is the best interests of the children.

76 I have an extremely difficult decision to make in this case. Both parents are good parents. If [the mother] is able to live in [Eastern states], I have no doubt that [Mr R] will be significantly distressed. If [the mother] is not able to move then her living environment will be less than optimal.

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77	The Honourable Justice Kay recently considered the issue of interstate relocation in the context of the amended legislation (Godfrey & Saunders supra).

78 His Honour there said:

“33. The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case, the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.”

79 [Mr R] does not suggest that [the mother] not remain the primary caregiver for the children. He is not seeking an equal shared arrangement. He is seeking to have substantial and significant time with the children. A relocation to [Eastern states] would not make that arrangement viable or practical.

80 Having heard the evidence of [Mr R] and [the mother], their children, [Stuart] and [Rosemary] have already established a meaningful relationship with [Mr R]. There is nothing to suggest that the relationship will not be maintained if [the mother] moved to [Eastern states] as long as there is regular contact. In order to ensure that it is maintained, arrangements would need to be made to ensure regular visits of adequate duration.

81 The distance between Western Australia and [the Eastern states] make this problematic. [The mother]’s proposals allow [Mr R] to have the maximum time available given the move. I accept she is able to pay for the airfares and would do so.

82 Any visits would be supplemented by telephone, internet communication and webcam.

83 As Kay J commented: “even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (Supra).

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84	At first blush the reasons proposed for the move may appear of little moment compared to the benefits of the children remaining in Perth, settled and in close proximity to their paternal family. However, [the mother] is not required to prove her case or provide compelling reasons for the move. There is nothing to suggest that the changes in the legislation effect those propositions. Having said that there is nothing to suggest the move is capricious or ill thought out. I do not doubt [the mother]’s bona fides.
85	[The mother] is in a committed relationship. She has been in that relationship for two years. She wishes to relocate to an area her partner had always intended to return. There are some benefits to the children in such a move – one being their primary caregiver believes that the move is to a better life both financially and practically than the one she is presently living. To this end, she has formulated different ways for the children to spend time with [Mr R] which, as far as the Court is concerned, go as far as is possible in the circumstances to meet their needs in terms consistent with having a meaningful relationship with their father.
86	[The mother] has endeavoured to maximise the opportunities for the children to spend time with their father and communicate with him. This has always been her stance.
87	[The mother] has been the children’s consistent available caregiver. Her attitude to promoting the children’s relationship with [Mr R] has not changed simply because of her desire to relocate. She has not waivered in her view the children need to see [Mr R].
88	The main concern the Court has about the possibility of relocation is [Mr R]’s attitude to seeing the children. He said he would not be in a position to avail himself of anything other than four weeks holiday a year. He said on this basis the children coming over and being cared for by others would be a waste of time. The Court accepts that he may not be available for all the period but having given evidence about flexibility in his work arrangements and his availability every night and morning, his attitude is perplexing. He would be faced with the same problems, although to a lesser extent, on the regime he proposes if the relocation is not permitted. His attitude in this regard is consistent with his attitude of not availing himself of time with the children in the past when it has not fitted exactly with his plans.
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89	However, the Court is hopeful and confident that [Mr R] will see the bigger picture of what is in the children’s best interests. The life of the children’s primary caregiver and thus the children’s lives cannot be held ransom to the whims of the other parent.
90	I find that in all the circumstances the children should be able to go with [The mother] to live in [Eastern states].

Orders

1. The children, [Stuart R] born [in] May 1997 and [Rosemary R] born [in] June 1999 live with their mother, [the mother].

2. The mother be at liberty to relocate with the children to [Eastern states] after 31 January 2008.

3. The children spend time with their father:

(a)  until 31 January 2008: 

(i) from after school Friday to the commencement of school Monday for two weekends out of every three;

(ii) for one half of each school holiday period;

(b)

upon the children residing in [Eastern states]:

(i)	for the whole of each [Eastern states] term school holidays with the children to return to Perth;
(ii)	at his election for up to five weeks in the [Eastern states] Christmas school holidays with the father spending Christmas Day with the children in 2008 and each alternate year thereafter; and
(iii)	at such other times either in Perth or [Eastern states] as agreed between the parties.

4. The children communicate with their father by telephone:

(a) every Wednesday and Saturday at 6.00 pm (western standard time) with the mother to initiate the telephone call to the number or numbers provided by the father;

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(b) on the children’s birthdays, on the father’s birthday and any other special occasion agreed between the parties.

5. The mother is to arrange for an email account for the children’s own use to be used to communicate with the father and members of his family with the mother to facilitate such communication.

6. The mother is to arrange for webcam facilities to be installed to enable webcam communication with the father and members of his family.

7. Upon arriving in [Eastern states] the mother is to provide to the father full details of the children’s residential address and telephone number, the children’s school and contact details, the school holiday periods for [Eastern states] and to keep him updated as required.

8. The father is to advise the mother 45 days prior to any school holiday period of his wish to spend time with them.

9. The mother is to pay the whole of the airfares for travel as set out in paragraph 3 hereof with the mother to undertake the bookings and payment therefore and to confirm with the father 30 days prior to the date of departure.

I certify that the preceding [90] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate