R and R
[2010] FCWA 69
•31 MARCH 2010
[2010] FCWA 69
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : REGIONAL CENTRE | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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Applicant/Mother
AND
R
Respondent/Father
Catchwords:
CHILDREN - With whom a child lives - Relocation - Child's view - Child has strongly held wishes to relocate to live with the mother - Status quo - Child is settled in her current environment - Relocation allowed but delayed until end of school year
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Anderson |
| Respondent | : | Mr Supljeglav |
[2010] FCWA 69
Solicitors:
| Applicant | : | DCH Legal Group |
| Respondent | : | DS Family Law |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
Champness & Hanson (2009) FLC 93-407
Marsden & Winch (No. 3) [2007] FamCA 1364
Mulvany & Lane (2009) FLC 93-404
[2010] FCWA 69
1 I am required to resolve a dispute between [Mr R] and [Ms M] (formerly Mrs R) concerning living arrangements for their nine year old daughter, [Bree].
2 Bree has primarily been living with the father on the family farm in the region
since the parties separated in April 2007. The mother initially lived in [the regional centre] following the separation, during which time she had regular contact with Bree and with Bree’s older brother, [Harry], who was boarding at the [local high school].
3 In August 2007 the mother moved to [the south] to live with [Mr M], to whom
she is now married. Since moving south, the mother has had Bree for one-half of the school holidays and on one weekend each school term. The mother now wants Bree to live with her in this town. Bree has also expressed a firm wish to move to this town.
4 There are no proceedings before the Court concerning Harry. He has left the
local high school and is now boarding at [a college] in Perth. He is presently estranged from his father and therefore spends any time he spends away from boarding school living with the mother.
Orders sought
5 The orders sought by the mother are set out in her Papers for the Judge. She
proposes, in effect, the reversal of the provisions of the existing parenting plan. Under her proposals the father would be able to spend time with Bree for one-half of all school holidays, on two weekends each school term and on other occasions. She also proposes that the father have liberal telephone contact with Bree. She seeks an order that the parents jointly make decisions about long term issues in relation to Bree and otherwise she seeks orders that appear not to be controversial.
6 The orders sought by the father are also set out in his Papers for the Judge. He
proposes that Bree continue living with him at [the farm] and that the mother have somewhat more than one-half of all school holidays with Bree. This would involve the mother having Bree for the whole of the July school holidays, one-half of the April and September/October school holidays and for four weeks during the Christmas school holidays. The father proposes that the mother have liberal telephone contact and otherwise he seeks orders that appear not to be controversial, including an order for equal shared parental responsibility.
7 In the course of his oral evidence yesterday, the father indicated that in future his
preference would be that the mother have her Christmas holiday time with Bree in one block, rather than split in two as has occurred in previous years. On his amended proposal, the Christmas holiday time would be arranged so that each parent would have Bree for Christmas Day each alternate year.
Background
8 The mother is 39 years of age and currently does not have paid employment.
She has in the past worked as a secretary. In 2005 she was diagnosed with [cancer], but she has been in remission since February 2007.
[2010] FCWA 69
9 The mother lives on a small rural property south of Perth. The property is owned by Mr M, to whom she was married in July 2009. Mr M is aged about 43 years. He was previously married for 14 years. He has no children of his own. His parents live on the adjoining property. Mr M works in the local [area].
10 The mother had an unhappy childhood for the reasons explained in
paragraphs 11 and 13 of her trial affidavit. She does, however, have very positive recollections of the time spent away from her family when she attended boarding school during the latter stages of her secondary education. She was well respected at school and was given a variety of leadership positions.
11 The father is aged 42 years. He owns a wheat farm, which is about 625 kilometres north of the town where the mother lives. He lives with [Ms D] a woman from overseas who has plans to live permanently in Australia. Ms D does not presently have paid employment. She assists the father in caring for Bree. She initially came to the farm as paid help in April 2008; however, their relationship quickly flourished.
12 The mother and father met when they were in high school and were married in 1990. The mother was not yet 20 years of age and the father was 23.
13 There are two children of the marriage; Harry, who was born in September
1994; and Bree, who was born in September 2000. Harry and Bree will therefore turn
16 and 10 respectively this year.14 During the first 10 years of their marriage the mother and father lived on the
father’s family farm, which is situated about 25 kilometres from the regional centre. With the assistance of the father’s parents, they then purchased their own farm in 2001. The property is about 90 kilometres away from the home of the father’s parents. Bree was, of course, only a very young child at the time the family moved up to the property.
15 Harry and, in due course, Bree attended the small [local school]. Harry then
went off to the regional centre to board when he commenced high school in February 2007. By this stage the marriage was under severe stress. The parties had separated for three days in the middle of 2006 and the mother then left the farm in April 2007. The mother had not planned to leave when she did; however, after a visit to regional centre she found herself unable to return to the property. She had made no arrangements and had nothing with her other than the clothes on her back. The father’s parents, who had a good relationship with the mother, allowed her to stay with them for 10 days and would have permitted her to stay longer.
16 The mother, very sensibly in my view, decided that Bree should remain on the
farm and continue attending the local school for the time being. With the help of friends, the mother then took up residence in fairly basic rental accommodation in the regional centre.
17 The mother initially anticipated that Bree would soon move to live with her, but
as events unfolded this did not occur. The mother did, however, have regular time with Bree and went back to the town quite often to help out at the school and attend events. She also went back to the farm on a couple of occasions to help out.
[2010] FCWA 69
18 Harry remained at boarding school when the mother moved to the regional
centre. She was seeing him in the city once or twice a week. He did not enjoy staying overnight in the mother’s unit and it seemed he did so only once while the mother was in the city. During the one term Harry had been at boarding school before the separation he had gone back to the farm for weekends only once or twice. He continued to go back to the farm to see his father periodically after the separation.
19 In the period following separation there were a number of discussions between
the parties concerning Bree’s future. At times, the father was in agreement that Bree could come to live with the mother, she having been the primary caregiver prior to separation. This would have involved Bree leaving the home in which she had lived for much of her life and commencing at a new school in the regional centre. This ended up not occurring and the father was able to manage Bree’s care on the farm, initially with the assistance of his mother, and then with the help of Ms D.
20 The parents very sensibly elected to attend mediation to assist them to resolve
issues about Bree. Some of the evidence they gave about what occurred during the mediation process is not admissible in evidence. Until I drew attention to the confidentiality provisions of the law, neither party had any objection to evidence being led about the mediation process, since much of what had been said was not controversial. I therefore have to be careful in what I record here. It is sufficient to say that at the time of the mediation, Bree was interviewed by the director of [the regional agency], in late 2007. By the time the mediation process had been completed, both parents had a common understanding that Bree’s wish was to remain living on the farm. Apart from anything that may have been said in mediation, Bree had explained her reasons for her decision to her mother. The mother accepted that this was Bree’s wish and reluctantly agreed that Bree would remain with the father. In June 2008, after the mother had moved south, the parties finalised the parenting plan, pursuant to which it was agreed the mother would have Bree for half of all school holidays and on two weekends each school term. In addition, it was agreed that the mother would have telephone contact with Bree every day. Provision was made for the parenting plan to be reviewed in March 2009 or as Bree’s needs arise.
21 Whatever may have been verbally agreed between the parties, I am satisfied that
the mother understood at the end of the mediation process that both parents accepted that if Bree had a change of opinion about where she would live, the parents would accept that. The mother explained this to Bree when she told her why she was agreeing to Bree staying on the farm with her father. The father now says that no matter what Bree’s views may have been, he would never have agreed to her moving to live with the mother if this involved her moving south.
22 Having entered into the parenting plan, the parties got on with their respective
lives. The mother commenced her holiday time with Bree, but she ended up usually having only one weekend with Bree each term rather than the two weekends allowed by the terms of their agreement. Bree was initially content with the arrangements her parents had decided for her. However, in the October 2008 school holidays Bree told her mother that she now wished to live in the south with her mother. The father did not agree it was in Bree’s best interests for her to move away from the farm.
[2010] FCWA 69
23 The father reluctantly agreed to advance the review of the parenting plan and the
parties went back into mediation. It is common ground that in the course of this mediation Bree was again interviewed, this time by a child consultant from the Regional Family Relationship Centre. It was put to the father that he must have agreed to this occurring, whereas the father said he understood it was simply a required part of the mediation process and that from his point of view it did not matter what opinion Bree might express, his position was clear, namely, he would not allow her to move to be with her mother. I do not know what consents, if any, the parents may have given for the interview with Bree to take place, but there is no objection from counsel for the mother to me proceeding on the basis that it is a common practice of Family Relationship Centres to follow what is called “child inclusive practice” which routinely involves children’s views being obtained and fed back to the parents. I have not had the benefit of any considered submissions about the admissibility of such information in subsequent Court proceedings. I think the safer course to adopt is to presume that this part of the mediation process is also captured by the confidentiality provisions. If that is the correct application of the law, it points to what I suggested to counsel as being a very unsatisfactory position, since a parent will be later prevented from explaining to the Court why they entered into a particular agreement or said or did something relating to the child outside of the mediation process. The policy reasons underpinning the confidentiality of discussions between parents in mediation would not seem to me to have equal application to information about a child’s wishes, which are provided through an independent person. However, that is a matter for consideration in another forum at another time.
24 All that I need say for present purposes is that at the end of this round of
mediation, both parents had a common understanding that Bree wanted to move to live with her mother. They also had a common understanding that in expressing her views, Bree had requested that some of what she had had to say on that topic should remain confidential. It is not appropriate that I record or take into account in any way the recommendation made by the consultant who spoke with Bree during this mediation process. All that can be said is that at the end of the process, the parties could not agree what should happen to Bree and the mother thereupon commenced these proceedings in February 2009.
25 In August 2009 a report was commissioned from a psychologist, [Mr C], who
was appointed as single expert. He met with the parents, both children and other significant people in September 2009 and provided a report to the Court in late October 2009. By the time the report became available, the parties had agreed that the trial which had been set for 23 November 2009 should be postponed to this circuit of the Family Court.
26 Mr C’s report recorded that Bree had expressed “a wish and a want” to live
with her mother. Her wishes were consistent over two interviews, one of which took place whilst Bree was in the care of the mother and the other while in the care of the father. Although Mr C met with Harry, he did not formally interview him and did not discuss him in his report. This is to some extent understandable since the focus of these proceedings and his report was on Bree. However, in view of the dramatic decline in the relationship between Harry and the father, and for other reasons, I determined during the first day of the trial that it would be desirable for Mr C to speak with Harry again and I settled terms of reference for a supplementary report.
[2010] FCWA 69
27 Fortunately, Mr C was available on very short notice and he interviewed Harry
yesterday at his school before giving his evidence this morning by video-link. Later in
these reasons I will mention pertinent matters arising from his two reports.
Credibility
28 Assessment of credibility is not of major significance in these proceedings since
so much of the important material is common ground and because the decision, in my
view, will inevitably turn on consideration of relatively discrete issues.29 I do, however, consider it is important to record that I was greatly impressed by
both the mother and the father. Each of them was frank and thoughtful in the way they gave evidence and each very readily made concessions when they were warranted. As is not uncommon in such proceedings, each party had on occasions overstated their case in their affidavits and each of them had their own impression of various events. It will be apparent from some of what I will say later that I did not necessarily accept all the evidence given by each party, but I am satisfied that each of them set out to tell the truth and largely did so.
30 One matter on which there was controversy that was very important to the
parties was whether the mother had commenced her relationship with Mr M before the separation. On her own admission, she had started to have what she called “feelings” for him before she finally left the father. I suspect that at that time she entertained some hope or expectation that they might end up in a relationship if she ended the marriage. However, I am satisfied that the marriage was by then well and truly on the rocks. I accept that the mother had been very unhappy in the relationship for some years, although I consider it likely the father was unaware of the full extent of her dissatisfaction. This dynamic is well known to those who are familiar with the way in which couples end their relationships. Ultimately, it makes no difference to my decision and I make no finding about this matter.
31 Before concluding this brief assessment of credibility, I should record that I was
also greatly impressed by all of the friends and relatives who gave evidence. They seemed to me, without exception, to be honest and decent people who are united in their desire to achieve what is best for Bree. I am convinced each of them did their best to assist me to arrive at the right decision for her.
| The law | |
| 32 | These proceedings fall to be considered under the Family Law Act 1975 (“the Act”). It is important to keep the relevant provisions of that legislation in mind. |
Best interests and the objects of the legislation
33 Section 60CA makes clear that I must treat Bree’s best interests as the
paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects are to ensure that the best interests of children are met by:
[2010] FCWA 69
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
34 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:
…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
35 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…
36 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this concerning the 1995 amendments to that Act:
It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.
37 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
[2010] FCWA 69
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter- relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
[2010] FCWA 69
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”…
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.
38 It will be noted that the Full Court made many references to s 65E, which was
the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006
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amendments. In particular, it remains the case that the paramountcy provision defines
the essential issue and the legislation still contemplates individual justice.
Parental responsibility and the outcomes the Court must consider
39 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. In this case, both parties agree that an order should be made for equal shared parental responsibility. It is obvious that such an order would be in the best interests of Bree, given the commendable way in which the parents have demonstrated their capacity to come to agreements in relation to matters concerning her in the past.
40 Having decided to make the order for equal shared parental responsibility, the
legislation then requires me to consider making an order for Bree to spend equal time with each of her parents. If I determined that such an order should not be made, I must then consider whether or not Bree should have what the legislation describes as substantial and significant time with each parent. However, these alternatives can only be ordered if they are reasonably practicable. Neither parent considers such arrangements to be reasonably practicable and for good reason, since the distance between their respective homes precludes such outcomes.
41 Having found these two alternatives to be inappropriate, I must then consider the
competing applications of the parties. As I have said, the father’s proposal essentially involves the continuation of the status quo, albeit with the mother having some additional time during school holidays. The mother’s proposal is effectively for a reversal of the current arrangement.
The primary and additional considerations
42 I should note for the sake of completeness that I am not confined to the
proposals made by the parents. Provided procedural fairness has been afforded, I can make orders different to those which they have sought. As I have said, my overriding obligation in considering the alternatives is to try to find the outcome most likely to promote Bree’s best interests.
43 The legislation itself specifies those matters I must take into account in
determining what orders I should make. Section 60CC divides these into what are
called the “primary considerations” and “additional considerations”.44 This dichotomy between “primary” and “additional” considerations was
introduced by the 2006 amendments. There has not been a great deal of judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364:
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably
[2010] FCWA 69
clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
45 See also Champness & Hanson (2009) FLC 93-407 (Thackray, O’Ryan and Benjamin JJ) at [101] to [103] and Mulvany & Lane (2009) FLC 93-404 (per May and Thackray JJ) at [84].
The outcome
46 I should pause at this point to warn everyone here this afternoon that I still have
a great deal more to say in explaining the reasons for the decision that I have made. Unfortunately, as is obvious, it is not possible for both parties to achieve what they want today. I am acutely conscious of the fact that the mother said she was heartbroken when she had to make the decision to leave Bree with the father and that the father has said he will be heartbroken if Bree is permitted to move to live with the mother. My task therefore is one I do not approach lightly. I approach that task knowing that I am choosing between two perfectly appropriate sets of proposals made by two highly committed and competent parents. However, as the parents have not been able to resolve their dispute, the law entrusts that responsibility in me.
47 I recognise that sitting here waiting for me to announce my decision is an
agonising experience for everyone in the room. I also recognise that the parties may have seen the writing on the wall in some of the questions I asked during the closing addresses of their counsel. Rather than waiting until the end of this judgment, I propose therefore to depart from my usual practice by now indicating the decision I have reached and I will then proceed to give the detailed reasons which the law requires.
48 The decision that I have made is that up until the end of this school year, Bree
will remain living with the father, but that at the commencement of the new school year in 2011 she will move to live with her mother. Provision will be made for the father to then commence spending the same kind of time with Bree as the mother has been entitled to have under the terms of the parenting plan. Bree is in year 4 this year. The effect of my orders, assuming she starts boarding school at the start of year 7, is that following separation she will have spent the best part of four years with her father, and she will then spend just two years with her mother. If she starts boarding school in year 8, she will have spent three years with the mother. That is not the basis on which I have made my decision, but that is the reality.
49 I have noted the father’s suggestion that if Bree is permitted to move to be with
her mother, he might sell up the farm and move closer to where she is living. At first
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glance, that is an attractive proposition, from Bree’s perspective at least, but I intend to
sound a note of caution about it at the end of my reasons today.50 Having indicated my decision, I will now return to discuss the matters that the law requires me to take into account.
The primary considerations
51 I turn first to the primary considerations set out in s 60CC(2) of the Act. There
are two of these.
52 The first relates to the benefit to Bree of having a meaningful relationship with
both her parents. I am satisfied that Bree already has such a relationship with both parents. Each parent properly concedes that there will be great benefit to Bree associated with the continuation of these relationships. Bree is now nearly 10 years of age and whilst I recognise what has been said by the single expert about the difficulty of maintaining relationships when parents live a long way apart, I am satisfied that whatever order I make, Bree will continue to have a meaningful relationship with both of her parents and this will be of tremendous benefit to her.
53 The second primary consideration concerns the need to protect Bree from
physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The parents are once again in agreement that there is no evidence to suggest that Bree would be subjected to any of these things in the care of either of her parents.
The additional considerations
54 Given that the primary considerations clearly do not favour either parent’s case,
this matter will inevitably be resolved by reference to the additional considerations set
out in section 60CC(3) of the Act.Any views expressed by the child any any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
55 As I have said already, Bree is turning 10 this year, but she had only recently
turned 9 when she was interviewed by Mr C. All the evidence would suggest that Bree is a child of above average intelligence and maturity. She is a confident child who is known to express her views in a very forthright fashion. These factors would point towards it being appropriate to give her views somewhat more weight than might be normally considered appropriate for a child of her age of lesser intelligence and maturity. That said, I acknowledge she is still a young child and potentially subject to all sorts of influences from parents and others around her.
56 It is not in dispute that Bree’s stated preference has been to move to live with her
mother. This view has been expressed to the mother, to Harry and to others who are aligned with the mother. Significantly, it was also a view expressed to [Mrs S] on a number of occasions in May through to September 2008 when Mrs S was driving Bree
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to school in the local school bus. This was before Bree expressed the same wish to her
mother in the October 2008 school holidays.57 Bree was quite upset when she was confiding in Mrs S. She said she was
missing her mother very much and wanted to live with her. She said to Mrs S that now that her father had Ms D, he would be OK and she did not have to look after him any more. She also expressed the view that she would not tell her father how she felt because she believed it would make him angry.
58 The significance of this evidence being given by Mrs S is that while she is
clearly a good friend of the mother, she was also on good terms with the father. The father had confided in her concerning his feelings in the aftermath of the breakdown of the marriage. There is no reason to expect that Bree would have anticipated that the views she expressed to Mrs S would be reported to her mother. Bree was living with her father at the time and it seems she simply needed to discuss her inner feelings with someone with whom she was comfortable.
59 In considering Bree’s views, it is important to attempt to understand what factors
may have influenced her to express them. The father’s position is that the mother has encouraged Bree to form an adverse view of him, but more particularly he considers that she has effectively bribed the child by offering her a pony and riding club lessons if she came to live with her. The mother’s position is that Bree’s wishes reflect the fact that she was always closely attached to her, having been her primary caregiver, and that Bree’s statements about where she wants to live are a genuine representation of her real wishes and needs.
60 The comment Bree made to Mrs S about her father being OK now that he has
Ms D in his life might be seen as lending weight to the proposition that one of the motivations in Bree originally wanting to stay on the farm was her concern about her father being left alone. It is suggested, perhaps with justification, that Bree is focusing more on her own wishes and needs now that her earlier concerns have been alleviated by her father establishing a relationship which he finds fulfilling and brings him happiness he has not experienced for some time. On the other hand, there is also the possibility that Bree is simply missing her mother and feels she wants to spend more time with her.
61 There are many other possibilities, including some that may not have been
mentioned by Bree to Mr C for fear that mentioning them may upset the father or someone else, such as Ms D. Bree would seem to be a sensitive and insightful young girl and would know what she was saying to Mr C would be conveyed to both her parents. Given her maturity and sensitivity, it would be reasonable to think that she may have held back a little in explaining what has prompted her to express a desire to live with her mother. In this regard, I have in mind the mother’s evidence that in late 2008 Bree rang the mother crying, saying, “I have tried and tried and I just cannot do it any more with Ms D”. It is, of course, feasible that this had something to do with Ms D’s commendable efforts to ensure appropriate behaviour on the part of Bree. There is, however, the possibility that the issue is more complex. It is, of course, a notoriously difficult task for any woman, no matter how competent or caring, to try to step into the shoes of an absent mother. This is borne out to some extent by what Harry told the single expert yesterday. Harry told Mr C that while Ms D had never
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done anything bad to him, he felt he did not have a very good relationship with her. He would, nevertheless, be prepared to see her if she came to visit him at his college. Perhaps more importantly, however, was Harry’s perception of Bree’s relationship with Ms D. He said he felt they did not have a very good relationship. He said, “Bree does not really respect Ms D”. He acknowledged that Ms D does go a long way to help Bree, but Bree does not care. He said, “She [Bree] would easily hurt her feelings”.
62 It might be thought that these comments from Harry should be seen as the biased
view of someone who is not well disposed to his father and is trying to assist his mother to achieve her objective. However, I am not sure that would do justice to Harry. Although he is presently estranged from his father, he readily acknowledged to the single expert that Bree’s relationship with her father was pretty strong and that ever since she was little, they had been close. He went on to say to the single expert, “With mum not around and stuff, she [Bree] had developed a strong bond with dad”. If Harry was truly trying to sabotage his father’s case before this Court, I do not think he would have spoken in such glowing terms of the relationship between his sister and his father. There was very little to distinguish his description of the quality of the relationship between Bree and her mother and Bree and her father.
63 It is apparent that this separation has been a very traumatic experience for this
little girl. It is noted that, for example, she expressed a desire after the marriage ended to be adopted by a family that had not separated. This could not be seen as a true reflection of her real wishes, but rather a manifestation of how much she dislikes having her parents living apart, which is a common reaction from a child of her age. It is readily apparent that Bree loves both her parents and feels very divided loyalties. Ms D, who I am firmly convinced has the best interests of both children at heart and who, on all accounts, has done a terrific job, has stepped into somewhat of a minefield in joining this family.
64 All of this has to be taken into account in assessing the reasons for Bree
expressing the view she has. I accept that those reasons would include many of those hypothesised by the single expert at lines 840 to 860 of his first report. However, what seems significant to me in considering Bree’s wishes are these facts:
•
Bree is clearly aware her father has a strong desire for her to remain living with him on the farm;
• Bree loves her father dearly and would not want to hurt him; •
Bree has expressed a fear, which I suggest is not unreasonable for a child of her age, that her father would be angry if she expressed her true wishes and she has, of course, seen her father quite angry on at least some occasions in the past and this would stick with a young child;
•
nevertheless, in speaking to a variety of people, including someone independent whom she knew would report her wishes to her father, Bree has expressed a consistent view over a lengthy period that she wants to live with her mother;
•
although, as the single expert noted in his report, there were some subtle differences in the way that Bree expressed her wishes when she was interviewed
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at the home of her father and then interviewed at the home of the mother, it
remained the case that Bree retained the same opinion across both interviews;
• finally, Bree is an intelligent child, sufficiently mature to appreciate the main ramifications of her decision, including the necessary change of school, loss of existing friendships and so on. 65 All of these factors persuade me that Bree’s expressed wishes are genuine and
strongly held. I am not satisfied they can be explained away by suggestions of undue influence or, more importantly, because Bree’s experience of her mother in recent times has been as a “holiday mum”, whereas her experience of her father has been predominantly as a “school week dad”.
66 The father is quite right in saying that there are many other factors to be
considered in deciding what is best for Bree. Although the child’s views are the first in the long list of additional considerations mentioned in the Act, they are not necessarily of greater importance that many other factors. However, it is worth recording that I have no doubt the arrangements that have been in place since 2007 came about only because of the expression of Bree’s wish at the time to remain with the father. Were it not for the mother’s acceptance of Bree’s wishes at the time, it is likely an entirely different outcome would have eventuated. The father himself was surprised that the mother gave up the fight so easily. Had she pursued the matter to Court, it is arguable she would have been successful, given she was the undisputed primary carer and the father was dependent upon the assistance of others, including a lady who was very new in his life, to provide adequately for Bree. Although I accept there were other very important factors at play, I consider it likely that the mother made the decision she did because she was acutely aware of her daughter’s temperament and, in particular, how strongly she held her opinions, which it seems is a characteristic she might share with her older brother.
67 It would be reasonable to accept, given Bree’s close attachment to her mother,
that her reasons for wanting to stay with her father in 2007 may have included a desire to remain in her familiar surroundings, attending the same school and mixing with the many friends, both children and adults, who live in the close knit farming community. It would be reasonable to conclude, however, that part of Bree’s reasoning was the concern she felt for her father, who would be left alone on the farm if at least she did not stay there with him. In this regard, I accept the mother’s evidence, quite apart from what [the regional agency director] may have reported, that Bree had made statements at the time such as, “Daddy will be all alone and I don’t want daddy to be alone”.
68 It is at least of some significance that Bree was informed by the mother in 2007 that in the event that she ever had a change of mind about where she wanted to live, she was free to express that to her parents and that they would act upon it. Although the mother was criticised by counsel for the father for this, I do not consider it unreasonable, at least in the circumstances of this case, for the mother to have conveyed such a message to the child. It was certainly an accurate reflection of the basis on which the mother had entered into the agreement, although in the absence of admissible evidence concerning what the father may have said, it is difficult to know whether he shared the same view. I consider that in making the statement to Bree, the mother was doing no more than assuring a very young child of her affection and
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explaining she was not abandoning her, but rather respecting her wishes. I do not consider that in making this statement, the mother was laying the groundwork to have Bree eventually come to live with her.
69 In considering Bree’s views, it is important to contemplate, as the father did in
his evidence yesterday, the possibility that Bree may have another change of heart when she has experienced life with her mother and being separated from her father. Clearly, it would not be desirable to have Bree moving back and forwards between the two homes like a yo-yo. I accept there is a possibility that she will again have a change of views and wish to live with the father after she has been with her mother for some time. On the other hand, I consider there is at least as strong a possibility that she will settle into the mother’s home and while she will miss her father desperately, will be content with the decision she has made. In making these observations, I have a sense that Bree, as an intelligent and mature young child, realises that a move such as the one contemplated here cannot be undertaken lightly and has factored that into her expression of wishes.
70 For all of those reasons, I place significant weight on Bree’s expressed views.
The nature of the relationship of the child with —
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
71 I am satisfied Bree has a very good relationship with each of her parents. They each love her dearly and their love is reciprocated by Bree.
72 I formed a very good impression of Ms D, the father’s partner. She presented as
a very pleasant and sensible young woman. I was impressed by many aspects of both her written and oral evidence, but I was particularly impressed by her evidence in paragraph 8 of her first affidavit concerning her reasoning behind getting in touch with Bree’s mother when she started to assume a role in the life of the children. That seemed to be a very sensitive and appropriate thing to do. It also struck me as so very different from many other cases in the Court, where the first time that one party hears a word from their former spouse’s new partner is at the trial at the end of the proceedings.
73 I am satisfied that Bree has a good relationship with Ms D. Everyone who sees
Bree with Ms D can see only a happy and content little girl, even if there may be some more subtle issues in the background. Mr C has commented about the extent to which Bree felt dependent on Ms D when she was interviewed in September 2009. It is obvious that Ms D has taken on a very caring and nurturing role with Bree, even though I accept Bree’s father has become more heavily involved in the day-to-day care of her than he did sometimes in the past.
74 I was also impressed by the mother’s new husband, Mr M. He seemed to me to
be a decent and down to earth man who would provide considerable support to the mother emotionally and in looking after Bree. The evidence suggests he has a good
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relationship with Bree. Harry has said that he is “pretty good for a step dad” and that
Bree really loves Mr M.75 Whilst I consider that Harry and Bree are lucky to have Ms D and Mr M in their
lives, and both couples now present as being involved in happy and stable relationships, it is appropriate I record that each of these relationships has been of fairly short duration and there is no way of predicting whether they will stand up to the inevitable pressures of time. The relationships the children have with Ms D and Kim, whilst very important, are, in my view, of much less significance at the moment than the relationships they have with their parents.
76 I turn next to the nature of the relationship between Bree and Harry. There is
almost precisely six years’ difference between them. The evidence indicates that Harry is very protective of his younger sister and concerned for her welfare. One of the father’s witnesses, [Ms W], and the paternal grandmother said in their affidavits that it was obvious that Bree adores her brother. I consider their relationship to be a very important one for each of them. It is no doubt perceived by Harry with some ambivalence, as might be expected when the boy is 15 going on 16 and the girl is 9 going on 10. Harry himself told Mr C frankly yesterday that whilst their relationship is good, it is not great and he pointed to their age difference.
77 I sincerely hope that, in time, the present estrangement between the father and
Harry will be repaired. I am not entirely convinced the father’s current strategy of waiting for the rift to pass over is likely to be an effective one. Until such time as that rift is repaired, any contact between Bree and her brother appears destined to take place only when Bree is with the mother. If Bree was living with the mother, she would spend time with Harry, not only during school holidays, but would also get to visit him on occasions during school term time, either when Harry goes to Boddington for a weekend or the mother and Bree travel to Perth to see him there. She would also be around the house when Harry makes what appear to be daily telephone calls to the mother’s home. Bree could speak with him or, at least, keep up to date with his latest news of life in the city. His apparently positive experience of boarding school life may also assist ease any anxiety that Bree feels in going away to board in a few years’ time.
78 I find that Bree has close relationships with her paternal grandparents, especially
it seems with the grandfather, as she is known in the family to be a “man’s girl”. They do live 90 kilometres apart, but they get to see each other relatively often and the grandparents are close enough to travel to the school for concerts, carnivals and the like.
79 The maternal grandmother and her husband maintain a residence in the regional
area, but they spend a lot of time away and have not been as important in the lives of
the children as the paternal grandparents.80 I have already noted that the community surrounding the farm is a close knit
one. As a consequence, Bree has developed worthwhile and happy relationships with
many, many people in the area who are very clearly fond of her.
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81 I am satisfied, finally, that Bree has a good relationship with the parents of Mr
M, although that association is a relatively recent one in comparison with her associations with extended family and community members at the farming community.. The association is likely to become a valuable one over time, especially if Bree takes up residence in with her mother. The M family, I note, have been a part of the local community for more than a century.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
82 I am quite satisfied that the father is not only able, but willing to facilitate and
encourage a close and continuing relationship between Bree and the mother. Although the mother has been critical in some respects of the father, I consider that he is to be strongly commended for much of what he has done since separation in promoting the relationship between Bree and her mother. It is hard for me to judge his behaviour during face to face or telephone communications with the mother, but I am prepared to accept that from time to time, he has come across to her as aggressive and perhaps intimidating. On the other hand, his email correspondence is one of the most outstanding examples of cooperative and sensitive post-separation parenting that I have ever encountered. The content of the correspondence demonstrates a very strong child focus and a recognition of the importance of the vital role that the mother continues to play in Bree’s life. It is noteworthy the father has been able to strike the right balance in his written communications with the mother, notwithstanding the clear hurt he still feels as a result of his perception that the mother ended the marriage in order to take up with a man who was previously his best friend.
83 I consider, too, that the mother is to be commended for the way in which she has
respected the important role that the father has to play in Bree’s life. I accept that her correspondence with the father has sometimes not been quite as well modulated as that of the father, but she, too, has demonstrated a very strong child focus. Just as it must have been hard for the father to try to put aside the hurts he feels from the marriage breakdown, it must have been very hard for the mother to relinquish the full-time care of her daughter, first to the father and then, at least in part, to a total stranger. This is especially so in circumstances where the mother had been the primary caregiver before separation, as the father necessarily had to concentrate on making a living to support the family during some very tough times.
84 The father is critical of the mother for not letting him know when Bree arrives
safely after the long journey to see her. Although it is not a major issue, I consider that it would have been reasonable for the mother to comply with the father’s wishes in this regard. The father also considers the mother should provide him with a landline number as well as her mobile, but I can understand why the mother would prefer this not be made available, especially given the animosity that exists between the father and Mr M, who presumably might answer the phone from time to time.
85 The father is concerned that if Bree were to live with the mother full-time, she
would not encourage the child’s relationship with him. He points to the occasion at the end of 2008 when the mother was reluctant to send Bree back to the father, which caused him a great deal of understandable anxiety. I do not see this incident as a very
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strong indicator of the likelihood of the mother promoting a relationship between the father and Bree. I consider it likely she will ensure that Bree speaks with her father regularly over the phone and by email and will also ensure she goes off to him for his regular holiday visits and other visits. Facilitation of telephone communication will be especially important in this case, given that face-to-face visits would necessarily be fairly limited. The mother’s own evidence indicates that she appreciates the vital importance of the very regular telephone contact the father has facilitated for her and Bree.
86 I also do not consider that the current estrangement between Harry and his father
provides any real assistance in determining whether the mother will facilitate a relationship between Bree and the father. It needs to be remembered that previously there was a considerable degree of estrangement between Harry and his mother, although fortunately that was alleviated by proactive steps taken by the mother in organising what seems to have been a successful mediation between them. The evidence tends to suggest that Harry’s current attitude to his father is primarily the product of things that have occurred between the two of them rather than anything the mother has brought about. I accept, however, that things may not have been helped by the extent to which the mother has involved Harry in at least some issues. These sorts of estrangements within family are complex and it would be a mistake to look for a single explanation. There are some indications in the evidence that the problems extend back before the time of this separation and in this regard I had no reason to doubt the evidence of the mother about what Harry said to her about the father when she was discussing the prospect of him going to boarding school in the regional centre.
87 It is almost inevitable in the context of high conflict marital separation that
children, especially older children, will take sides with one or other of their parents. This is especially so in cases such as the present where there is a perception that one parent has ended the marriage to take up with a third party. However, it is also not uncommon for allegiances to change as life goes on and children become used to a changed set of circumstances. I accept that the mother and/or a member of her family may have contributed in some way, perhaps unintentionally, to Harry’s present attitude towards his father. However, the father himself very properly volunteered in his cross-examination yesterday that he, too, had been guilty of talking to Harry about things that he should not have. This resonated with the evidence given by the mother that Harry had expressed a view some time after separation that he had felt very much the burden of being “dad’s counsellor”, or words to that effect. There are also a host of other matters that need to be considered, including the view Harry now holds associated with his recollection that his father entrusted him with the keys to the gun cabinet around the time of separation in circumstances where Harry’s uncle had previously killed himself with a gun in his (i.e. Harry’s) home.
88 What is important for the future is that I find that both parents now have a very
good appreciation of the importance of them avoiding drawing the children into their disputes. I find that both of them will promote and encourage the relationship between Bree and the other parent.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —
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(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
89 The mother’s proposal involves very significant changes in circumstances for
Bree. In the event she is successful in her application, Bree will only be able to see the father during school holidays and on very odd occasions during school term. Whilst this will be very difficult for both the father and Bree, I consider that their relationship is now too strong for it to be significantly damaged by a reduction in the amount of time they spend with each other. To the extent that there will be some damage to the relationship, there will be compensations for Bree because she will have a greater opportunity to maintain and develop her relationship with her mother from whom she has now been separated for more than two years.
90 In considering the impact on Bree of spending less time with her father, I note
and I accept the evidence of the mother that she feels she has been able to maintain a strong relationship with Bree because of her ability to have very regular telephone contact, as well as face-to-face time during the school holidays and occasional weekends. It is also important to appreciate that like many other children living in rural areas, Bree will not be spending school term time with either parent once she commences high school.
91 Bree will naturally also have much less of an opportunity to maintain and
develop her relationship with her father’s partner. Whilst all of the evidence indicates that Ms D has done an excellent job in helping the father look after Bree, I do not consider this factor to be one of great significance. Furthermore, the negative impact associated with this will be compensated at least in part by the opportunity for Bree to develop her relationship with Mr M.
92 I also accept that if orders are made as proposed by the mother, Bree would see
much less of her grandparents than if she stayed at the farm, although they do go to Perth a number of times each year and might take the opportunity to catch up with Bree, as well as seeing her during school holidays and on any other occasions she might visit the farm. They will also be able to keep in touch by telephone and perhaps by other means as well.
93 I accept it will be very hard for Bree to keep up the associations she has formed
in the farming community if she moves to be with her mother. This is regrettable, as the evidence of both parents suggested the community is an exceptionally supportive one where people all look out for each other and enjoy each other’s company. It is, however, a fact of life that we live in an increasingly mobile world. The evidence in these proceedings demonstrates that people are coming and going from the farm area, as they do elsewhere. It is also reasonable to assume that the mother, who appears to make and keep friends fairly easily, will ensure that Bree develops new associations in the town if she is living in that area and going to school there. Bree will also have the opportunity to see more of relatives who live in Perth, which is in relatively easy driving distance of the town. It needs once again to be remembered that in year 7 or 8 at the latest, Bree will be going away to boarding school and would be home at the farm for only half the holidays anyway.
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94 A very significant factor in my mind is the change of school associated with the
mother’s proposal. I accept that there is almost always some disruption associated with a change in schooling, particularly for a child such as Bree who is very well integrated and happy in the school community. On the other hand, the evidence suggests that Bree is an excellent student, who enjoys sport and a range of other activities. I have the impression she is a child who is likely to fit in relatively well in a new environment.
95 It is also important to keep in mind that unlike many other cases where a parent
is relocated to an unfamiliar environment at the same time as the child is relocating, in this case the mother has already been living in the new community for over two years and her husband has been living there all his life. The mother could be described as quite a social person and she has already developed a network in the local community. I am satisfied this will make it much easier for her to assist Bree to settle in to a new environment. It is also to be noted that Bree has now visited the town on many occasions and to some extent, at least, has begun the process of settling into a new environment; see, for example, the evidence of Mr M at paragraph 25 of his affidavit.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
96 This is clearly a factor of great importance given the vast distance between the
homes of the parents. Any face-to-face contact for Bree will involve her or her parents undertaking a nine-hour, one way car journey or, alternatively, travel to and from an airport and waiting around at the airport, which will together take much longer than the fairly short aeroplane flight.
97 Apart from the obvious physical strains associated with such travel, there is the
significant question of the associated expenses. I do not have a great deal of information concerning the financial position of the father, who has been required already to find a very substantial sum of money to meet the mother’s property settlement entitlements, but it was not suggested in the evidence that he would be unable to afford the cost associated with travel to facilitate time with Bree.
98 While I accept that the logistical difficulties associated with maintaining contact
are a result of the mother’s decision to move to the new town, the fact is that this is a life which she has chosen and was entitled to choose. The logistical difficulties associated with Bree maintaining contact with each of her parents will be no different in the event that the mother’s application is successful than they have been over the last two-and-a-half years.
The capacity of —
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
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to provide for the needs of the child, including emotional and intellectual
needs
99 There is no doubt that both parents can provide well for Bree’s physical and
intellectual needs. Both parents are high functioning individuals and have demonstrated their ability to attend to all aspects of their daughter’s care. They both appear of above average intelligence and both are thoughtful and articulate.
100 The only issue that has been raised in the proceedings under this heading is the
ability of the parents to provide for Bree’s emotional needs. In particular, it has been suggested that the mother has demonstrated a lack of commitment to Bree’s emotional needs by voluntarily leaving the regional centre and moving to the new town, thereby depriving her of the opportunity to maintain regular contact with Bree. It has further been suggested that the mother has not availed herself of all of the term time contact with Bree to which she is entitled under the terms of the parenting plan.
101 Dealing with the last matter first, I accept the mother’s reasoning about why she
has had only one mid-term weekend each term with Bree rather than two. The logistics associated with spending what amounts to no more than a couple of additional days with Bree each term are very substantial and need to be considered in light of the fact that the mother maintains very regular telephone contact with Bree. It also needs to be kept in mind that the mother and Bree find the parting after a period of time together to be distressing and this factor needs to be weighed against the benefit to Bree of having a short amount of additional face-to-face time with her mother. I can anticipate that the father will face similar problems in the event that the mother is successful in her application and, indeed, I accept his problems will be even more acute as a result of his commitments on the farm, whereas the mother does not presently have similar commitments.
102 I return now to the first of the two issues I raised concerning the mother’s
capacity to provide for Bree’s emotional needs. This concerns the lack of commitment to Bree said to have been demonstrated by the mother in voluntarily leaving the regional centre and moving to the new town, thereby depriving her of the opportunity to maintain regular contact with Bree. Although the mother gave other explanations for moving away from the regional centre, I consider her primary and overriding motivation was her desire to cement and maintain her relationship with Mr M. In deciding to pursue that relationship by moving into Mr M’s home, the mother knew she would no longer be able to have the once or twice weekly contact she was enjoying with Harry. She also knew she would no longer be able to continue to have alternate weekend contact with Bree and would not be able to continue to take part in activities at Bree’s school in the same way as she was able to when she was living in the regional centre. I have little doubt that Bree and probably Harry would have preferred that the mother remain in the regional centre so they could continue their closer association with her. To that extent, it could be said with some justification that the mother put her own interests in pursuing her relationship with Mr M ahead of her commitment to her children. I accept, however, that the mother was placed in an invidious situation. She would have preferred to have Bree living with her and if she was, she would have preferred to take her to rather than leave her behind at the farm. She would also have preferred to continue to be able to be close by Harry and keep in regular contact with him. On the other hand, the mother was living in a fairly basic
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unit in the regional centre with only basic furniture and at that stage, had not received the property settlement to which she was ultimately found to be entitled. Although after a relatively short period of time the father commenced paying her a regular allowance, she had to some extent been dependent on the assistance of others and was not in a strong financial position. If she stayed on in the regional centre, it is likely she would have had to find work which would in turn have impacted on her ongoing capacity to spend as much time with Bree as she had in the past. The trips to the farm area were about one-and-a-half hours each way and over time would have become tiring for Bree, who would be missing out on activities at home in the farming community every second weekend. The mother had formed a close association with Mr M and, understandably, looking forward to the rest of her life, wanted to foster that relationship in a way that was possible only in the event that she moved in to live with him. Having made the decision to do so, she ensured she remained in close contact with Bree and took up almost all of the time she was entitled to have with her under the terms of the parenting plan. I do not consider the mother’s behaviour indicates that she is incapable of meeting her daughter’s emotional needs. On the contrary, I am satisfied she can provide for those needs very well. I am also satisfied the father can provide for Bree’s emotional needs.
103 There were some issues raised concerning the health of the parents. The mother
suffered a serious back injury when she was pregnant with Harry and then suffered badly from post-natal depression for some time following his birth. She was on a high dose antidepressant from which she weaned herself and she returned to work on a job share basis when Harry was three. She then kept working nearly up to the time of the birth of Bree. The mother blames the father to some extent for her depression. She feels that there was a lack of love, happiness and support in the marriage and I accept that was her perception. I am satisfied she is now in good health and this is no longer an issue. The mother’s cancer is in remission and there was no suggestion during the trial this was a matter which I should take into account.
104 The father, too, felt depressed at around the time of separation, which would be
understandable. He also considers he was depressed for a number of years, but he puts that down to a number of very stressful events over which he had no control, such as the death of his brother and the very difficult farming conditions. There is no suggestion the father is currently depressed; however, one enduring issue arising out of his emotional health at the time of separation is the fact that he mentioned to the mother at the time that he might contemplate suicide. I recognise the father did not concede in cross-examination that he had made such comments, but I was inclined to accept the mother’s evidence on this point, which is corroborated to some extent by the email to the mother that was put to the father in his cross-examination. This is a very raw issue in this family, not only because of the suicide of the father’s brother, but also the suicide of the mother’s father and his brother. I accept the mother’s evidence that her concern about the possibility of the children’s father himself committing suicide was highly influential in the decision she made about Bree at the time of separation and following. She was right, in my view, to feel that the father would be particularly vulnerable if he found himself in the position where he was left alone on the farm, facing not only the loss of the company of his wife and both his children, but also a potentially even bleaker financial future in light of the potential property settlement claim.
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The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
105 I have already commented on Bree’s level of maturity. Although there has been
a suggestion in the mother’s papers that she, as a woman, may be better placed to attend to her daughter’s needs than the father, I am not convinced this is a factor of significance. This is especially so because the father has the support of Ms D and his mother in dealing with issues that will arise for Bree as she matures.
106 The only other matter requiring comment under this heading is to note that Bree
has been used to a rural lifestyle. Although the property where the mother lives is a very different proposition to that at the farm, it does provide a continuation of the rural environment to which Bree has become accustomed.
Any family violence involving the child or a member of the child’s family
107 The mother acknowledges that the father has never been physically violent
towards her. She was criticised in the course of the trial for suggesting that the father had been intimidating towards her and for saying that he was aggressive and she felt threatened by him. In defending herself against these criticisms, the mother referred to an occasion in 2006 when she said the father had approached her with a clenched fist. Although the mother had not mentioned this detail in her affidavit, I presume this is said to have occurred in the course of the unpleasant exchange between the parties in 2006 which the mother had mentioned in her affidavit. I accept that the father probably did behave as the mother described. It must have been a very unpleasant event for the mother. It clearly must have upset the children, since Harry was prompted to telephone the S family, who were the neighbours at the time, and then drove the farm car with his little sister to the safety of their house. I accept that the father would not see himself as intimidating or aggressive and he certainly came across in the witness box as a person who can contain his temper. The 2006 incident needs to be seen in the context of a disintegrating relationship and the pressures that the father had experienced over many years. All of that said, there was at least some element of the father’s presentation which made me accept that the mother was wary of him and found herself fearful that if she pushed matters too far, she might be the subject of some aggression.
108 I accept that the mother’s fears of the father may have contributed to the
mother’s decision to move from the regional centre to the new town, although I expect that the anxiety the mother felt at that time about the father’s behaviour at most accelerated plans she was already forming to move in with Mr M.
109 Overall, I do not consider this factor is of any great significance, save that I
accept that the mother’s fears of the father have been one of the reasons she is unwilling to have face-to-face communication with him following separation. The mother is of more delicate constitution than the father and she feels unable to cope with communication other than emails. Whilst in some respects this is inconvenient, the use of emails has not prevented the parties from cooperating well together in matters concerning their children.
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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
110 It is usually preferable to make the order least likely to lead to institution of
further proceedings, but it is often difficult to ascertain what that order might be. In the present case if the father’s application is successful, it is possible there will be further proceedings as Bree matures in the event she begins to express an even stronger desire to live with the mother and perhaps becomes defiant in the home of her father.
111 On the other hand, there is the prospect in the event the mother’s application is
successful that Bree will miss her father so much so that she will express a desire to return to live with him and that too might lead to further proceedings. I would be inclined to think that in the event that Bree did express a strong desire to go back to Binnu, the mother would probably let her do so as she has a strong child focus, and particularly bearing in mind her previous experiences with Harry, would not wish to jeopardise her relationship with Bree by making her stay in the new town against her wishes.
112 Overall, I do not consider this factor is of great significance.
Any other fact or circumstance that the court thinks is relevant
113 The mother has been critical of the father for what she sees as his lack of interest
in the family until after the separation. In some respects, it seems likely that this was a reflection of the different way in which fathers and mothers relate to their children, but it does seem also from the father’s own very frank evidence that there was some substance in this part of the mother’s complaints. What is important for the future, however, is that there is now no reason at all to question the father’s commitment to and involvement in the life of Bree.
Conclusion
114 Relocation cases are excruciatingly difficult for a court to decide. Unlike most
of the other litigation that comes before the Court, both parents in these cases are commonly high functioning and committed parents who either by necessity or desire are no longer able to live in close proximity to each other and hence have much more limited options in ensuring that each parent is able to retain very frequent and regular contact with the child or children.
115 This case is no exception. Both parents are committed to Bree. Both are
capable of providing for her physical, intellectual and emotional needs. In my view, Bree is likely to do well in the care of either of them. The decision in my view comes down to the weight to be given to Bree’s expressed wishes compared to the weight to be given to the desirability of her not being disturbed in her current well settled environment.
116 In my view, the decision was a very finely balanced one. Ultimately, I
determined that the greater weight should be given to Bree’s wishes. In coming to my
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decision, I have taken into account the fact that the original placement of Bree by the agreement of the parents was largely influenced by her expression of wishes at the time when she was younger and less mature than she is now. I note also that prior to Bree’s wishes becoming clear following separation, the father was, in my view, very properly, prepared to allow Bree to go to the regional centre to live with the mother, which would by necessity have resulted in her losing many of the links in the local community that will now be lost in the event she lives in the new town.
117 The other factor that has assisted me in coming to my decision is that Bree will
have the opportunity to have somewhat more contact with Harry if she is living with
her mother for reasons I have already discussed.
The timing of the changeover
118 Although I have determined that Bree should move to live with her mother, it
does not necessarily mean that the move should be made immediately. As I have already said, the father is perfectly capable of providing for all of Bree’s needs and has a very good relationship with her. The father has done an excellent job in providing for Bree’s needs over the last two-and-a-half years.
119 If a child has to change schools, in my view the ideal time is at the end of an
academic year - or if that is not possible the next best thing is at the end of a school term. It is also desirable, in my view, for teachers and other parents and children to have advance notice that a child is leaving school so that she can be farewelled in an appropriate way. It is also desirable for a child to have some advance notice in order to prepare herself psychologically for the move.
120 It so happens that this trial falls immediately at the end of the first school term.
It would not be possible for the things I have just mentioned to be achieved in the event the handover was to take place at the end of this term and, indeed, this has been acknowledged by counsel for the mother, who now proposes that the handover take place a few weeks into the next school term. In my view, however, it will be in Bree’s best interests for the handover to be delayed until the end of the current academic year. In coming to this decision, I have noted that when Bree first expressed her view to come and live with her mother in the term 3 holidays of 2008 she said she wanted to finish the year at the local school and start at the new school in the New Year. I appreciate that much water has gone under the bridge since then and Bree has continued to express the desire to live with her mother. However, Bree can now be told that she will be moving to the new town at the end of this year and I have a sense that she may feel that delaying the move until then is the fair thing to do.
| Orders | |
| 121 | I propose making the orders generally as proposed by the mother in relation to |
| the time sharing arrangements. I have not heard any submissions in relation to the various other orders sought. I propose in these circumstances, and given the time of day, to give the parties time to discuss those and any other details relating to the time sharing arrangements and provide me in due course with a minute of orders to give |
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effect to my reasons. If these cannot be agreed, then I will hear a short argument at
some convenient time to both counsel in Perth.
The father’s proposal to relocate
122 I said earlier in my reasons that I was going to say something in relation to the
father’s proposal, or thought, about moving from the farm to be with her mother. I said that on the face of it, it looked like a good idea because everyone would be able to keep in touch with Bree. It was not a proposal that was put to the Court and may be something that has crossed the father’s mind and is going to be discarded. It may be something that he is thinking about very carefully. It goes without saying, it is a major decision. It goes without saying it would involve potentially the loss of the father’s property and the loss of his connections with people in the area where he has lived for a long time. I think the fact that the father has been thinking about it demonstrates the commitment he has to his daughter. I am not going to rule on it. I cannot rule on it. The father is a free person. He can do what he wants, but I would suggest he think about it very carefully. It would probably only be for a couple of years and then the father would find himself in the same town and wondering whether to go back to the farm. It is not guaranteed that there would be a shared care arrangement if he moved. There might be. There might not be. It might depend upon the mother’s attitude and what the Court might order. What would happen, however, is that the father would be back into closer proximity with mother and mother’s husband, and that could lead to things that are not altogether satisfactory from anybody’s point of view. I would be inclined to think it might be in everybody’s best interests that the father did not make the move, but, as I have said, it is a matter entirely for the father to determine. No one can stop the father moving, just as no one could stop the mother from moving and that is all I wanted to say on the topic.
123 I am going to adjourn now because I have asked counsel to provide me with the
Minute. I just want to say I have given this matter my most careful attention. I can appreciate that the father and his family will be bitterly disappointed. I can appreciate that the mother will also be disappointed that this decision is being delayed for quite some time until the end of the year, but in coming to what I found an excruciatingly difficult decision, that is what I have decided to do. I wish you both and your families the best for the future and I think your kids are very lucky to have you both as their parents.
I certify that the preceding [123] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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