R and R
[2006] FCWA 59
•23 JUNE 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | PERTH |
| CITATION: | R and R [2006] FCWA 59 |
| CORAM: | HOLDEN CJ |
| HEARD: | 15 MAY 2006 |
| DELIVERED: | 23 JUNE 2006 |
| FILE NO/S: | PT 3478 of 2005 |
| BETWEEN: | R |
Applicant Wife
AND
R
Respondent Husband
(Page 2)
Catchwords:
CHILDREN - residence - relocation
Legislation:
Nil
Category: Not Reportable
Representation:
Counsel:
| Applicant Wife | : | Mr Rynne |
| Respondent Husband | : | Ms Turley |
Solicitors:
| Applicant Wife | : | Leach Legal |
| Respondent Husband | : | Biddulph & Turley |
Case(s) referred to in judgment(s):
B & B; Family Law Reform Act 1995 (1997) FLC 92-755
Driscoll v Valentine [2004] FamCA 705
(Page 3)
1 Before me for determination is the Form 1 application of the wife filed on 8 August 2005 seeking that she be at liberty to change the address of the two children of the marriage from the Perth metropolitan area to [the Eastern states] without the father’s permission. Countering that application is a Form 1A Response of the husband in which he seeks inter alia an order that the children reside with him and that he have the sole responsibility for their day to day care, welfare and development. He freely admitted that but for the desire of the wife to relocate he would not be seeking an order for residence of the children.
Basic facts
2 The wife was born August 1972 and is 33 years of age. The husband was born on August 1971 and is now 34 years of age. The parties were married in [the Eastern states] in April 1991. They were respectively 19 and 18 years old at the time.
3 The two children of the marriage are [RAR] born August 1994 (aged 11) and [CJR], born November 1997 (aged 8).
4 The parties separated on 21 January 2005.
Short relevant history
5 It is conceded by the husband that the wife has always been the primary caregiver to the children. At the date of the marriage the husband was in the Army. He was discharged in 1993 and the parties moved to [the town] where he had been born and where his parents live.
6 Both children were born [in that town]. In 2001 the husband transferred from the [that town] branch [the firm he worked for] to the [north-west]. In May 2002, the husband was made redundant and at the wife’s suggestion the parties travelled to [the Eastern states] in order to be near her family.
7 In about the middle of 2002, they made the move to [the Eastern states]. After travelling for about 2 months they arrived at [the town], which is about an hour south of the [capital].
8 The wife’s parents owned a house in [this town] where they intended to move permanently once they retire, which has in fact occurred.
| (Page 4) | |
| 9 | The parties rented a house [nearby the parents] and the husband obtained employment. In what I accept was a joint decision, in December 2003, the parties and the children moved to Perth, Western Australia. They have resided in the Perth metropolitan area since. I have outlined the various moves the parties and the children have made to demonstrate that the children are no strangers to relocation, albeit in the company of both of their parents. |
| 10 | After the separation and until May 2005, the husband had the children from Friday until Sunday morning every second weekend. |
| 11 | It is not in dispute that the wife did terminate overnight contact. She did so on the grounds that a male person whom she did not know was staying overnight at the husband’s house. The wife’s case is that she and her husband had agreed that the children would not be permitted to stay overnight when there were people, other than family members, also staying overnight. I find it likely that there was such an agreement as the wife, when she was a relatively young child, was sexually abused. She received counselling for that abuse. This is a matter to which I shall return later in these reasons for judgment if I determine it is of any relevance. Proceedings were instituted and on 8 August 2005 orders were made by consent, inter alia, that the children reside with the husband during the following periods: |
(a) each alternate weekend from 5 pm Friday until 6 pm Sunday or 6 pm Monday in the event of the residency period falling on a long weekend commencing 12 August 2005; (b) for one half of all school holidays; (c) as otherwise agreed between the parties.
It appears that between May 2005 and until the consent orders were made, the husband had contact on Saturday and Sunday each alternate weekend but not overnight.
Orders sought
12 By a Minute of Proposed Orders filed on 2 May 2005 the wife seeks the following orders:
“1.
The children, [RAR] born August 1994 and [CJR] born November 1997 reside with the wife and she be responsible for the children's day to day care welfare and development.
(Page 5) 2.
The wife be at liberty to change the children's usual place of residence from the Perth Metropolitan Area to [the Eastern states].
3. The husband have contact with the children:
3.1. For two term school holiday periods and for
four weeks of the Christmas School holidays;3.2. Regular telephone and email contact; 3.3. Such other contact as agreed if the husband
travels to [the Eastern states].4.
At the commencement of each calendar year, the husband provide the wife with details of which school holidays he intends to have the children for contact for the upcoming year, and the husband then arrange and provide the wife with at least 10 days notice of the exact times and dates of the contact and the travel arrangements.
5.
In the event that the wife is in paid employment, the wife contribute to the costs of contact, and the husband otherwise be responsible for the costs of contact.
Alternatively, if the Court does not make the order in terms of paragraph 2:
6. The husband have contact with the children:
6.1. Each alternate weekend from 5:00pm Friday to
5:00pm Sunday;6.2. For half the school holidays; 6.3. 0n Father's Day, the husband's birthday and the children's birthdays from 5:00pm to 7:00pm on a school day and from 2:00pm to 7:00pm on a non school day; 6.4.Each alternate Christmas from 4:00pm Christmas Eve to 3:00pm Christmas Day commencing in 2006 and each intervening Christmas from 3:00pm Christmas Day to 6:00pm Boxing Day commencing in 2007;
6.5.Telephone contact each Monday, Wednesday and Saturday with the call to be placed between 6:30pm and 7:00pm.
7. The husband's contact be suspended:
(Page 6) 7.1. From 9:00am on Mother's Day;
7.2.
Each alternate Christmas from 3:00pm Christmas bay to 6:00pm Boxing Day commencing in 2006 and each intervening Christmas from 4:00pm Christmas Eve to 3:00pm Christmas Day
AND: 8.
During the husband's school holiday contact, the wife have telephone contact with the children each Monday, Wednesday and Saturday with the call to be placed between 6:30pm and 7:00pm.
9.
The children otherwise be at liberty to telephone the other parent while not in their care.”
13 By a Minute of Proposed Orders filed 8 May 2005 the husband seeks the following orders:
“1. The husband and the wife have the joint responsibility for the children [RAR] born August 1994 and [CJR] born November 1997 ("the children's") long term care, welfare and development. 2. The children reside with the husband and the husband has the sole responsibility for the children's day to day care, welfare and development. 3. The children have reasonable contact with the wife defined to include:
a) In the event that the wife relocates outside of Western Australia, for all but two weeks of the school holidays at times as agreed between the parties, with the wife to meet the costs of the children's flights; b) In the event that the wife resides in Western Australia: (i) each alternate weekend from 5.00 pm Friday until before school Monday, or before school Tuesday in the event of contact falling on a long weekend or a day on which the children would not ordinarily attend school on a Monday;
(Page 7) (ii)
for one evening per week on an overnight basis on the non-contact weekend;
(iii) for one half of all school holidays.
c) Other contact, regardless of wife's location:
(i) unlimited telephone contact; (ii) from 9.00 am to 5.00 pm Mother's Day; (iii) for a reasonable period of time on special occasions, such as the children's birthday, Christmas and Easter. d) As otherwise agreed between the parties. 4. Alternative proposal:
a) In the event that the wife remains living in Western Australia and the husband's residency application is unsuccessful: (i) the children reside with the wife and she have the sole responsibility for the children's day to day care, welfare and development;
(ii) the children have reasonable contact with the husband defined to include:
[A] each alternate weekend from 5.00 pm Friday until before school Monday, or before school Tuesday in the event of contact falling on a long weekend or a day on which the children would not ordinarily attend school on a Monday; [B] In the intervening week from 5.00 pm Thursday until the commencement of school Friday; [C] for the first half of all school holiday periods, defined as follows: (i) for the three term
school holidays, from 5.00
pm on the day the school
(Page 8)
term concludes until 5.00
pm the middle Saturday;
(ii) for the Christmas school holidays, for a period of 31/2 weeks, at dates as agreed between the parties, but in the event that there is no agreement, then for a period of 31/2 weeks
following the husband's Christmas Day contact.
(iii) liberal telephone contact, which includes at
least three calls per week;
(iv) from 9.00 am until5.00 pm on Father's Day;
(v) for a reasonable period of time on special occasions, such as the children's and the father's birthday;
(vi) For Christmas:
(a) in 2006, from 4.00 pm Christmas Eve until 2.00 pm
Christmas Day and alternating each year thereafter; (b) in 2007, from 2.00 pm Christmas Day until 6.00 pm Boxing Day and alternating each year thereafter.
b)
In the event that the wife's application to relocate is successful:
(i)
The wife not be permitted to relocate until 21 January 2007;
(ii)
Pending relocation, the husband have contact with the children:
(Page 9)
[A] each alternate weekend from 5pm Friday
to 6pm Sunday;[B] for one half of the term school holidays,
the first half unless otherwise agreed;[C]
from the Saturday immediately following the conclusion of the 2006 school year until 5pm 21 January 2007 (with the wife to have contact during this period from 2pm Christmas Day until 5pm Boxing day);
(ii)
Upon the wife relocating the husband have reasonable contact
with the children defined to include:
[A] during term holidays, from the day following the conclusion of the school term until the Saturday prior to the commencement of the new school term,
[B] for the Christmas school holidays:
(i)
in 2006, from the 23rd December until the 23rd January;
(ii)
in 2007, from the 27th December until the 27th January;
[C]
upon the husband giving the wife 21 days written notice, the husband can have contact in [the town] with the children on weekends he is there for a period of not more than three consecutive weekends from the conclusion of school Friday until the commencement of school Monday;
[D]
liberal telephone contact at least three times per week, initiated by the children;
[E] liberal letter, email and webcam contact
(if available);(Page 10) [F] as otherwise agreed between the parties. (iii) To facilitate the school holiday contact in
paragraph 4(b)(ii)[A] & [B] the husband shall arrange for the children's flights and shall provide the wife with the flight itinerary and details not less than 7 days prior to the date of departure;
(iii)sic The husband shall give the wife not less than 21 days written notice in the event that he is not able to exercise school holiday contact on any occasion;
(iv) The costs of the children's and the husband's flights and accommodation costs (if applicable) are initially to be met by the husband, without prejudicing his right to claim to offset these costs against his child support liability as a legitimate cost of exercising contact with the children;
c)
The wife shall keep the husband informed at all times of:
(i)
the residential address where she is living, a landline number, who the occupants of the home are and what the arrangements for the children are;
(ii)
the school at which the children are attending;
(iii)
any significant issue concerning the children's education, care, welfare and development, including but not limited to any emergency medical treatment which is required and any hospitalisations;
d)
The wife will authorise the school/s at which the children attend from time to release all information concerning the children's progress and development to the husband, as well as the provision of school reports, school notices and any other information that is routinely distributed to parents;
(Page 11) e)
The husband have liberty to attend at the children's school for special events, including assemblies, sports days and any other event a parent is usually invited to attend;
(f)
The wife shall give the children privacy during telephone, email and webcam contact;
(g)
The wife be restrained and an injunction be granted restraining her from changing the children's principal place of residence from outside of [the town], accept for the Perth Metropolitan Area, without the written consent of the husband.”
The case for each of the parties
14 The wife’s case, in a nutshell, may be summarised as follows:
(a) For all of their lives she has been the primary caregiver to the children; (b) Her reasons for wanting to relocate to [the town in the Eastern states] are legitimate; (c) She wishes to relocate to [the town] to be closer to her family. She feels isolated in Perth in that she has no support, friends or family.
15 The crux of the husband’s case is that he opposes the relocation because:
(a) he does not accept that the wife’s motives for wanting to move are legitimate and sees her real motive as being to distance the children from him; and (b) the children do not want to move from Perth.
16 I will discuss all of these matters later in these reasons for judgment when I deal with the s 68F(2) factors.
General principles re residence applications
17 These proceedings fall to be determined pursuant to Part VII of the Family Law Act 1975. Section 60B sets out the object of that Part and the principles underlying it as follows:
“60B (1) The object of this Part is 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,
(Page 12)
concerning the care, welfare and development of their
children.(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and (c) parents share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children.”
18 Sec. 65E provides that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration. I wish to make it clear to each of the parties that this consideration is the one which is foremost in my mind when arriving at a decision in this matter. Sec. 68F(2) sets out those matters which the Court must consider in determining what is in the best interests of a child. I will shortly consider each of those matters, or such of them as I consider relevant to this case.
19 The inter-relationship between Sections 60B, 65E and 68F(2) has recently been explained by the Full Court of the Family Court in B & B; Family Law Reform Act 1995 (1997) FLC 92-755 at 84219 - 84220. The Court described the inter-relationship in the following terms:
“9.51 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.
(Page 13)
9.52 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.9.53 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 (l) “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.
9.54 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 (l) 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.
9.55 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
(Page 14)
substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
9.56 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.
9.57 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 Mallett (1984) FLC ¶91-507; (1984) 156 CLR 605, and ZP v PS (1994) FLC ¶92-480; (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.
9.58 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.”
Other principles – relocation cases
20 The principles applying to relocation cases were analysed by Moore J in a judgment delivered on 3 August 2004 being the case of Driscoll v Valentine [2004] FamCA 705. It is an analysis that I do not feel I can improve upon and I therefore set it out in full as follows:
“66. The High Court has examined issues involving the restraint of movement of a parent: AMS v AIF (1999)
(Page 15)
199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756 where the Court was concerned with interstate movement and in U v U (2002) FLC 93-112; (2002) 29 Fam LR 74 with international movement. The Full Court of this Court undertook an extensive analysis of the considerations that might properly effect the outcome of a case where relocation is proposed in B and B; Family Law Reform Act1995 (1997) FLC 92- 755; 21 Fam LR 676 and they set down guidelines for decision making in A v A: Relocation approach (2000) FLC 93-035; 26 Fam LR 382.
67. As part of a wider and far reaching discussion in B and B their Honours said this:
‘9.66 The interests of the children may be affected by proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the residence parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child's best interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps in a long-term way. If that had an adverse impact upon the children's best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children's best interests.
Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the
(Page 16)
best interests of the children; the wishes and desires of
the parent per se give way to that.’68. There followed the High Court decision in AMS v AIF - a case in which the trial Judge had restrained the mother from changing the children’s place of residence from Western Australia to the Northern Territory, upheld by the Full Court of the Supreme Court of Western Australia, but the High Court allowed her appeal and remitted the matter for rehearing on the basis that the trial Judge had placed an unacceptable burden upon her to show compelling reasons why it was in the interests of the children to move. Kirby J, with whom Gleeson CJ, McHugh and Gummow JJ agreed on this point, concluded that the trial Judge erred in requiring the mother to demonstrate compelling reasons to justify the relocation. His Honour said at CLR 224-6; FLC 86,050- 1; Fam LR 806-7 (endnotes omitted):
“192. First, to impose upon a custodial (or residence) parent the obligation to demonstrate ‘compelling reasons’ to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate ‘compelling reasons’ imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.
193. Whilst a proposal to take a child to a place where it would be exposed to risks and dangers might, in a particular case, warrant a need for ‘compelling reasons’, such seems scarcely applicable for relocation within Australia. In the latter case, the attention of the decision-maker should ordinarily be to the possibility of
(Page 17)
formulating different arrangements for access and
contact which would meet that child's welfare…194. Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the ‘paramount’ consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration.
… practical consequences for the access to, and contact with, the father necessarily required a reconsideration of the issue of the residence of the child on the footing that the mother was to relocate to the Northern Territory. It required consideration in that context, of the acceptability of the alternative proposals which she advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child's rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate. …” 69. The Full Court (Nicholson CJ, Ellis and Coleman JJ) returned to the issue of relocation in the decision of A v A where they dealt with an appeal against an order that had restrained a mother of a 9 year old girl from taking the child to live with her in Portugal. The father made no claim that the child should live with him in Sydney and all contact between the father and the child had been suspended at the time of the hearing before the Full Court. The trial judge concluded the child should remain living in Australia. The appeal was allowed and remitted for rehearing. But the Court took the opportunity to examine binding principles of law established by the High Court in AMS v AIF and their
(Page 18)
Honours went on to establish guidelines as to the matters that ought to be considered in a case where relocation is proposed:
‘(i) In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas, the following principles apply:
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration. · A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'." · The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
· It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
(Page 19)
·
The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display
three stages of analysis and:1. A court will identify the relevant competing proposals;
2. For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way. · Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. 3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard
to the following issues:(Page 20)
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of
movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater
(Page 21)
significance and how those relevant matters
balance out.· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
70. In the later decision of U v U the High Court again considered relocation, on this occasion in an international context. In the majority judgement (Gummow and Callinan JJ, with whom the Chief Justice, McHugh and Hayne JJ agreed) discussed, amongst other things, the right of freedom of movement of a parent though that must defer to the expressed paramount consideration (para 89 majority judgment), the welfare of the child if that were to be adversely affected by a movement of a parent and it was recognised (para 91) that
‘contact with both parents is desirable and important but so, too, is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship’ and ‘It is unlikely that many of such situations will admit of perfect solutions.’ ”
21 Before applying the law to the facts of this case, I wish to convey to the parties that I have to make a very difficult decision. If I permit the wife to relocate, I have no doubt that will cause significant distress to the husband. If I do not permit her to relocate, the wife has made it quite clear that she will continue living in Perth with the children. If I made orders that resulted in that being the case, I have no doubt that for the foreseeable future that will condemn her to a life of unhappiness. This is obvious from the third report of the single expert, Joanne Thorpe, who reported as follows:
“Both [CJR] and [RAR] discussed their perceptions of their mother and they described her as being very unhappy. They told me that she often ‘just looks really sad’ and that recently she was crying. [CJR] and [RAR] then spent some time telling me about how they try and comfort their mother.”
In her second report, she said:
(Page 22)“[RAR] told me that he loves his mother and that he wants to continue to live with her. He says they have fun together and he feels loved by her.
[CJR] and [RAR] were asked what they would like to change about their mother and they both immediately answered ‘that she be happy’. They explained that their mother appeared very unhappy and the only thing that will make her happy is to move to [the Eastern states]. I asked if there was anything that could happen in Perth that would make her happy, such as making new friends or finding work and they both were adamant that only moving to [the Eastern states] would change her mood. [CJR] stated, ‘Even if she got really good friends here she wont be happy’.”
22 I trust that each of the parties will realise that I cannot fulfil the aspirations and emotional needs of both of them.
The children’s best interests
23 I now turn to a consideration of the s 68F(2) factors. The wishes of the children are an important consideration in this case. There have been three reports prepared by the single expert. In her first report she said as follows:
“[RAR] and [CJR] are aware that their mother wishes to relocate to [the Eastern states], because ‘Mum’s family and best friend are there’. [CJR] had some positive attitudes towards living in [the Estern states] again. She told me that ‘travelling by plane is fun and she might get to visit Dreamworld and the best thing is I can rip up my school clothes and not have to wear a tie’. [CJR] lamented the fact that she enjoys gymnastics and she believes there are no gymnastic facilities in [the town].
[CJR] stated, ‘I have some good memories from there’ and [RAR] immediately interjected stating ‘We have good memories from here too’. [RAR] was unable to thin of anything positive about leaving Perth. He stated, ‘It’s much better here, I’ve got more friends and we live near the bush and have a big house’. However he also stated, ‘but I’ll go anywhere as long as Dad comes too’. When I suggested that if he relocated he would get to enjoy holidays with his father and be able to email and telephone him at any time, [RAR] appeared serious and determined when he answered ‘I don’t want that; I want him in the same city as us’. [RAR] also
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stated, ‘As long as Dad goes, I’ll go, otherwise I wont be very
happy’.
[RAR] appeared to be mindful of the implications of all of his
comments and he was keen to be even handed towards both of
his parents. [CJR] told me that her father has a girlfriend and
[RAR] immediately stated that that wasn’t true. Eventually he
admitted that it was true and then made me promise I
wouldn’t tell his mother. (At that time I knew that Ms [R]
was quite aware of this person). This led [CJR] to tell me that
he was concerned about ‘keeping secrets’. She explained that
she had told her father that she did not want him to share
secrets with them.
Overall the children described strong attachment to both of
their parents.
Neither child wishes to move away from their father, although
[RAR] appears to be more resolved about this issue. He isadamant that he wants to be in the same city as his father.”
| 24 | In her second report, she stated as follows: “[CJR] and [RAR] also understand that their mother will go to [the Eastern states] without them if they opt to remain with their father. Their mother has told them she will not stay in Perth and if they want to continue to be with her, then they must relocate also. [CJR] stated, ‘Mum will go without us – I wish we could be cut in half. I just wish they’d stop fighting and I could rewind my whole life’. The children appear to have accepted that for them there really are no choices. They appeared to have reconciled to the idea that they will be moving after the school year concludes.” |
She went on to say:
“[CJR] and [RAR] expressed their dismay that they are in a position that may require them to loose (sic) touch with one of their parents. They understand that their mother will relocate to [the Eastern states] without them if they do not go with her. I formed the opinion that the idea that they relocate with their mother or loose (sic) her, has largely determined their position. They have resided with their mother throughout their lives, while their father has worked outside of the home and they wish to continue living with their mother. They have both had to adjust to major changes in their lives, firstly by having their father move out of the family home and then to
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learning that he has a new partner. They have witnessed their mother’s distress over various events and it may be that they feel they have limited options.
[RAR] and [CJR] clearly have strong attachments to both parents as demonstrated during my visits when I observed them relating to their parents in a relaxed and cheerful way. They are confident and outgoing, playful and affectionate with both parents. They do not appear to be afraid of either parent in any way.
Both children do appear to be afraid for their parents and afraid that their parents may suffer because of their choices or actions. For example when I suggested that they confide in one or other parent, they rolled their yes and one of them stated, ‘no way, that would lead to big trouble’. Despite these limitations, they seem to have excellent relationships with both parents and with the father’s extended family. Indeed the father’s sister is the person they both would choose to confide in if they had problems. [CJR] and [RAR] have the support of the school social worker which they have taken advantage of at least weekly.”
In her third report she stated:
1) The children’s current position is in regards to where
they want to live and with whom.
[CJR] and [RAR] both stated that they wish to remain living
in Perth.
They stated that the present arrangement is working well,
although they explained that the handovers are unhappy and
tense as the parents are clearly hostile towards each other.
They stated that their father usually says ‘hello’ to their
mother, but she doesn’t reply and evidently it is clear to them
that their parents have little positive regard for each other.
[CJR] and [RAR] stated that they continue to be mindful
about speaking about each parent to the other. They stated
that both parents talk with them about the other and make
negative comments about each of their families, which the
children find distressing.
[RAR] stated that he wished to reside with his father when he
was old enough to make up his own mind. He stated that he
believed he could make his own decision when he was
approximately 13 and he asked me if this was correct. He also
(Page 25)told me that his father has told him that he does not wish [RAR] and [CJR] to be separated and so [RAR] concluded ‘So that means I can’t go to dad until I’m 16’. [RAR] and [CJR] then volunteered that they wished they could spend half f their time with each parent. They came to the conclusion that their preferred option would be to spend six months of each year with their mother and six months with their father, while spending alternate weekends with the other parent. [RAR] thought that spending the first six months with his mother would ensure that he was with her for Mothers Day and that he was with his father for Fathers Day. This idea seemed to be very satisfying for both [RAR] and [CJR].
When I asked how they expected their parents would feel about this idea, they stated that they understood that their mother would be sad. ‘It would be best to tell her on the Friday before we go to Dad’s, because she’ll be miserable when she hears and if she’s miserable then we’ll be miserable’. [RAR] also stated, ‘as long as she gets told later so that she can be happy for as long as possible’.
[CJR] and [RAR] stated that they believed their father would
be happy with this arrangement.”
25 The wishes of the children, having regard to their spontaneity to Mrs Thorpe and their ages, are important. Having re-read the reports I conclude that the children have not really contemplated life without their mother and are acutely aware of her unhappiness at being in Perth. They are in an unenviable position but, nevertheless, seem to be managing well. I agree with the submission of counsel for the wife that the most important report is the second report. It was at the time of that report that the children mistakenly believed that the mother would go to [the Eastern states] without them if they offered to remain with their father. Faced with that mistaken reality, the conclusion of Joanne Thorpe is important. Although I have already set out that conclusion in these reasons for judgment, I feel it is worth repeating and it is as follows:
“[CJR] and [RAR] also understand that their mother will go to [the Eastern states] without them if they opt to remain with their father. Their mother has told them she will not stay in Perth and if they want to continue to be with her, then they must relocate also. [CJR] stated, ‘Mum will go without us – I
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wish we could be cut in half. I just wish they’d stop fighting
are no choices. They appeared to have reconciled to the idea that they will be moving after the school year concludes.”
and I could rewind my whole life’.
26 It seems tolerably clear to me that it was not within the contemplation of the children that they would be separated from their mother. When it came to the crunch and the children thought their mother would go to [the Eastern states] without them, they were reconciled to the idea that they would be moving with their mother.
27 The other reservation I have about accepting the children’s wishes is that it comes through loud and clear from the single expert’s reports that they are trying to satisfy the needs of each of their parents, including their emotional needs, and putting them in front of their own. It is, however, a credit to the parties that they appear to be such well-adjusted and lovely children.
28 I believe it appropriate at this point in these reasons for judgment to make some findings concerning the wife’s motives for relocating to [the Eastern states]. In my view, the husband’s assertion that it is to alienate him from the children is not supported by the evidence. He had overnight contact every second weekend from shortly after the date of separation. As I have already indicated in these reasons for judgment I accept why overnight contact ceased in May 2005. The wife has set out in her affidavit of evidence the additional contact she has offered which was not seriously challenged by the husband. The husband essentially relies upon the orders sought by the wife in various applications she has made. I do not regard that as a valid reason for finding in favour of alienation. The parties often take positions in the course of litigation which are negotiable to a considerable extent.
29 In support of his theory that the wife was trying to distance the children from him, he made considerable reference to the lack of a relationship between the wife and her sister and her parents. His assertions were not supported by any other evidence.
30 On the other hand the wife’s mother and father and her sister all travelled from [the Eastern states] to support her case. They emphatically denied any rifts in the family. I find that there is nothing untoward in the relationship between the wife and her sister and parents.
| (Page 27) |
31 In her second report the single expert reported that the wife
had told her:
“She would like to relocate to [the Eastern states] where, with family support, she will be able to return to study and eventually find employment. She is concerned about the impending legislation which will require her to find employment now that [CJR] has turned 8 years of age.”
This seems to me to be an entirely reasonable explanation for her wish to move when added to what appears to be her total lack of support in Western Australia.
32 I should add that submissions were made that when the wife last moved to [the Eastern states] and [the Eastern states] it was not close to her parents. I accept as entirely reasonable her explanation that she contemplated that her parents would move to [the Eastern states] within a couple of years and she saw no point in being close to her parents for those couple of years and then having to relocate the children to [the Eastern states] later. I accept that the wife’s sister and mother were entirely credible witnesses. If the wife is trying to alienate the children from their father she has been spectacularly unsuccessful which becomes obvious when one reads the three reports of Joanne Thorpe. In my view, the totality of the evidence establishes that the wife has encouraged the children to have a good relationship with their father and will continue to do so.
33 I am required to take into account the nature of the relationship of the children with each of their parents and with other persons. As is amply evidenced from the reports of the single expert, the children enjoy a close and loving relationship with each parent. They also enjoy a good relationship with the husband’s extended family. Their relationship with the wife’s extended family is perhaps not as good but that is because of lack of opportunity.
34 I next have to take into account the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent. I have no expert evidence as to the likely effect. What I do have, however, is the fact that the children during their short lives have experienced a number of relocations, apparently without any ill effect. Furthermore, as appears from the reports of the single expert, they are very resilient children and are progressing exceedingly well notwithstanding the various relocations and the dispute between
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their parents in which they are involved. Furthermore, they will be relocating to a place of which they have memories and where they have some friends.
35 I am required to take into account the practical difficulty and expense of the children having contact with their father and whether that difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.
36 I am satisfied that the orders I propose to make, which will appear at the conclusion of these reasons for judgment, and the benefits of modern communications will not substantially affect the children’s right to have personal relationships and direct contact with their father. It is true that contact will change and accept the submission of counsel for the wife that the close relationship will be retained but there will have to be a “reconfiguration” of emotional needs.
37 I accept that there will be some expense with respect to contact. It would not, however, seem to be insurmountable as the husband is in receipt of an income of approximately $53,000 per year, according to his affidavit, and he will be able to make an application for a reduction in child support due to the cost of contact. As I understand the evidence of the wife, she fully accepts there should be such a reduction.
38 I am required to take into account the capacity of each parent or of any other person to provide for the needs of the children, including emotional and intellectual needs. I have always regarded this as being allied to the requirement that I take into account the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
39 I am satisfied that there is nothing to separate the parties insofar as providing for the emotional and intellectual needs of the children are concerned. It was put to the wife that she would be in financial strife in supporting the children. In my view, there is no basis for that because of the following:
(a)
the commitment of her parents to contribute to her needs;
(b)
the fact that she would be residing in her parents’ household; and
(c)
her desire to complete appropriate training and obtain employment.
(Page 29) 40 Equally, I do not think there is anything to separate the parents as far as their attitude to the children and the responsibilities of parenthood are concerned. Each of the parties is somewhat lacking in this regard in that they appear to be at loggerheads at times of changeovers. Although not a reason for permitting relocation, this will be significantly reduced, if not entirely reduced, which is a good thing as appears from the expert’s report, it is causing obvious distress to the children.
41 In my opinion, there are no other sub-sections of s 68F(2) that I need to take into account, nor are there any other facts and circumstances that I consider relevant.
Proposed orders
1. All previous parenting orders in respect of the children be and are hereby discharged.
2. The children, [RAR], born August 1994 and [CJR], born November 1997 reside with the wife and she be responsible for their day-to-day care, welfare and development save and except when they are having contact with their father when he should have that responsibility..
3. The wife be at liberty to change the children’s usual place of residence from the Perth metropolitan area to [the Eastern states].
4. Pending relocation, the husband have contact with the children:
(a) each alternate weekend from 5 pm Friday to 6 pm Sunday; (b) for one half of the term school holidays, the first half unless otherwise agreed; (c) from the Saturday immediately following the conclusion of the 2006 school year until 5 pm 21 January 2007 (with the wife to have contact during this period from 2 pm Christmas Day until 5 pm Boxing Day). 5. Upon the wife relocating the husband have reasonable contact with the children defined to include:
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during term holidays, from the day following the conclusion of the school term until the Saturday prior to the commencement of the new school term,
(b) for the Christmas school holidays: •
in 2006, from the 23rd December until the 23rd January;
•
in 2007, from the 27th December until the 27th January;
(c)
upon the husband giving the wife 21 days written notice, the husband can have contact in [the Eastern states] with the children on weekends he is there for a period of not more than three consecutive weekends from the conclusion of school Friday until the commencement of school Monday;
(d)
liberal telephone contact at least three times per week, initiated by the children;
(e)
liberal letter, email and webcam contact (if available);
(f) as otherwise agreed between the parties. 6.
To facilitate the school holiday contact in paragraph 4(b)(ii)[A] & [B] the husband shall arrange for the children's flights and shall provide the wife with the flight itinerary and details not less than 7 days prior to the date of departure.
7.
The husband shall give the wife not less than 21 days written notice in the event that he is not able to exercise school holiday contact on any occasion.
8.
The costs of the children's and the husband's flights and accommodation costs (if applicable) are initially to be met by the husband, without prejudicing his right to claim to offset these costs against his child support liability as a legitimate cost of exercising contact with the children.
9.
The wife shall keep the husband informed at all times of:
(a)
the residential address where she is living, a landline number, who the occupants of the
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home are and what the arrangements for the
children are;
(b) the school at which the children are attending; (c) any significant issue concerning the children's education, care, welfare and development, including but not limited to any emergency medical treatment which is required and any hospitalisations; 10. The wife will authorise the school/s at which the children attend from time to release all information concerning the children's progress and development to the husband, as well as the provision of school reports, school notices and any other information that is routinely distributed to parents;
11. The husband have liberty to attend at the children's school for special events, including assemblies, sports days and any other event a parent is usually invited to attend;
12. The wife shall give the children privacy during telephone, email and webcam contact;
42 I do not propose to make an order in terms of paragraph 4(g) of the husband’s minute. Such are the vagaries of life that to make such an order may well not be in the best interests of the children. I will, however, make a further order that:
13. The wife be restrained and an injunction be granted restraining her from changing the children’s principal place of residence from outside [the Eastern states] without first giving the husband 28 days notice in writing.
43 Upon publication of these reasons for judgment, I will hear counsel with respect to:
(a) the timing of the wife’s move to [the Eastern states]; (b) the orders I propose to make; and (c)
any other matters arising out of these reasons for judgment.
(Page 32) I certify that the preceding [43] paragraphs are a true copy
of the reasons for
judgment delivered by this Honourable Court
Associate
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