RA and MY
[2009] FCWA 56
•20 MAY 2009
[2009] FCWA 56
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | RA and MY [2009] FCWA 56 |
| CORAM | : | PENNY J |
| HEARD | : | 19 AUGUST 2008 & 10 FEBRUARY 2009 |
| DELIVERED | : | 20 MAY 2009 |
| FILE NO/S | : | PT 6224 of 2006 |
| BETWEEN | : RA |
Applicant/Mother
AND
MY
Respondent/Father
Catchwords:
Children's issues - shared care - husband's application to relocate to [Asia] with children
Legislation:
Family Law Act 1975 - s 68
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr M Rynne |
| Respondent | : | Mr J Hedges |
Solicitors:
| Applicant | : | Leach Legal |
[2009] FCWA 56
| Respondent | : | O'Sullivan Davies |
Case(s) referred to in judgment(s):
A v A Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Bolitho and Cohen (2005) FLC 93-224
M and M [2007] FCWA 47
U v U (2002) FLC 93-112
[2009] FCWA 56
1 This matter first came on for hearing in August 2008. The main issue in dispute
between the parties was whether the four children of the marriage, [D], born [in] November 1992, [F], born [in] June 1995, [A] and [U], twins, born [in] June 1999, should be able to relocate to [Asia] with their father. The wife opposed the relocation and sought orders that the children remain living in Perth and share their time equally between the parties on a week about basis.
2 At the end of the first day negotiations took place between the parties. I was told
the matter had been resolved. This was not the case. The parties attended mediation in January of this year and were not able to resolve the issue. The matter came back to me for hearing in February this year. At that time the position of each of the parties in respect of the children had changed. They both agreed that [D] would finish his TEE year this year in Perth and attend university in Perth thereafter. [F] now wants to attend boarding school in [Asia] commencing in August this year. She will be in year 10. Both the husband and the wife are agreeable to [F] attending boarding school in [Asia] subject to her wishes.
3 The husband now says that he does not wish to relocate with the twins this year,
but would like to relocate with them to [Asia] next year. If he does not relocate he anticipates moving to a location closer to where the wife lives in order that the children may eventually attend [the local] High School.
4 It now appears this family is going to be split no matter what order I make. The
wife says that the twins have a closer relationship with [D] than they do with [F] and would benefit by being closer to him in Perth. If they lived in [Asia] [F] would be in boarding school and the twins would not see much of her. She says it is in their best interests to stay in Perth.
5 The husband and wife are both from [Asia]. They moved with the children to
live in Australia in 2002. Their extended family members all live in [Asia] and they have business interests in [Asia]. The husband wishes to relocate to [Asia] to be closer to his business interest, but also to expose the children to their [Asia]n culture, extended family members and the [Asia]n language. He says it will be in the children’s best interests if this occurred.
Background of the parties and their relationship
6 The husband and wife were both born in [Asia]. The husband is aged 57 and the
wife will be 50 years this year. They were married in 1991. The wife was raised as a Christian and attended a Christian school in [Asia]. The husband was raised as a Muslim. The wife converted to Islam prior to meeting the husband.
7 The parties decided they would leave [Asia] and initially applied for a business
visa to move to Indonesia, but later felt Australia would be more appropriate and would provide a better environment in which to raise their children. In 2002 the parties were successful in their application to immigrate to Australia under the Business Migration Scheme. By the time the parties left they had four children and employed maids and a driver to assist them with the household activities in [Asia].
[2009] FCWA 56
8 Upon arriving in Australia the parties resided [in the northern suburbs] and the
children attended schools and kindergartens in that area. The husband commenced [a business]. This was closed down seven months later. The parties then commenced a business known as [AHF] Pty Ltd. The husband travelled not only to [Asia], but to other countries in an attempt to establish that business. The wife returned to [Asia] without the children from time to time. The parties separated in November 2005. Subsequently the husband took the children to [Asia] and the wife also spent time in [Asia]. While they were both in that country they were divorced. Initially the wife had some difficulty seeing the children, but subsequently that issue was resolved through solicitors in [Asia].
9 The wife returned to Australia in March 2006 and the husband and children returned the following month.
10 Between April and November 2006 the children resided with the husband and saw the wife each alternate weekend.
11 The wife commenced proceedings in November 2006 as there were no orders in
place for the time she should spend with the children and she was concerned that her
ability to see the children was subject to the husband's consent.12 In 2007 the husband and wife had a dispute about whether the children should
attend [a nominated school] or some other school. The husband wanted to enrol the children at the [nominated school], but the wife disagreed. In February 2007 an order was made restraining the husband from enrolling the children at the [nominated school]. On 19 March 2007 orders were made that the children spend five days each fortnight with the wife and half the school holidays.
13 In January 2008 the wife moved to a house she built on vacant land
[in the southern suburbs]. This land was purchased by the parties during the marriage. The twins have spent five days a fortnight with the wife and half the school holidays. [D] and [F], who attend school in the northern suburbs, spend time with the wife subject to their wishes, as each of them have commitments and friends on the other side of Perth.
14 In May 2007 the husband proposed relocating with the children to [Asia].
The law in relation to children’s issues
15 S 60B of the Family Law Act 1975 sets out the objects of Part VII, that is the part of the Act dealing with children, and the principles underlining the objects. S 60B states as follows:
“(1) The objects of this Part are to ensure that the best interests of
children are met by:
(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; and
[2009] FCWA 56
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (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.
(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly 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; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
16 S 60CA provides when deciding whether to make a particular parenting
order in relation to a child, I must regard the best interests of the child as the paramount consideration. S 60CC(2) and (3) sets out primary and additional considerations I must take into account when determining what is in the child’s best interests.
17 In A v A: Relocation Approach (2000) FLC 93-035 the Full Court set out the manner in which an application by a party to relocate with the children should be dealt with. The Full Court considered what binding principles of law had been established as a result of the High Court’s consideration of a matter involving the relocation of a child, in AMS v AIF; AIF v AMS (1999) FLC 92-852. The Full Court stated in A v A (supra):
“64. In our view, the following binding principles of law were established
by a majority of the High Court in AMS v AIF; AIF v AMS (supra):
[2009] FCWA 56
• In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration. • In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence ''contrary to the proposition that the welfare of the child would be better promoted by'' maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gummow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).” 18 The Full Court went on to set out the manner in which a relocation
should be determined. The following matters had to be taken into account:
• The Court was to evaluate each of the proposals advanced by the parties. • The Court cannot proceed to determine the issues in a way which separates the issue of relocation from the residence and best interests of the child. • In determining a parenting case that involves relocation, there must an evaluation of the competing proposals by weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests. • In determining which proposal best promotes the best interests of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975. • The Court must consider the various matters then set out in s 68F(2). • In determining a parenting case that involves a relocation, neither the applicant nor the respondent bears an onus of establishing that the proposed change best promotes the best interests of the child. • It was important to take into account a party’s right to a freedom of movement. 19 In Bolitho and Cohen (2005) FLC 93-224, the Full Court referred to the
High Court decision in U v U (2002) FLC 93-112, and stated that this “ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A”. The Full Court at paragraph 72 in Bolitho and Cohen (supra) stated as follows:
“ …the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
20 Since the above decision there have been legislative changes to
sections 60B and 68F of the Family Law Act 1975. There is an issue as to whether those legislative changes have impacted on the matters I must now take into account when dealing with such applications.
[2009] FCWA 56
21 In addition to the changes to the legislation referred to previously, there
is additional legislation which is relevant to this application and must be taken into
account.22 S 61DA of the Family Law Act 1975 states that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, except in cases of abuse and family violence.
23 S 65DAA(1) states that if a parenting order provides that a child’s
parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether spending equal time is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each parent.
24 S 65DAA(2) states that if there is an order for equal shared parental
responsibility for the child and the Court does not make an order for equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parties would be in the best interests of the child, and whether it is reasonably practicable, and if it is, to consider making such an order.
25 Richard Chisholm, in his paper “The Family Law Amendment (Shared
Parental Responsibility) Act 2006: An Overview” presented in May 2006, argues against the fact that the amendments to the Act have created a presumption against relocation, or that a proper application of the law, both before or after the amendments, would create a different result. He notes that there is nothing in the new legislation explicitly relating to relocation cases. The explanatory memorandum and other background documents do not make it clear that the amendments were intended to change relocation outcomes.
26 Thackray CJ in M and M [2007] FCWA 47 commented:
“18 In enacting the 2006 amendments, Parliament has provided more guidance to the Court about the matters to be taken into account in discharging its fundamental task of establishing what is in the best interests of children. It has also directed the Court to consider certain possible outcomes before determining the outcome that best suits the needs of the individual children who are the subject of the proceedings. Had Parliament wanted to go further, it could have done so. Instead, it left the ultimate determination to the Judge hearing each case on its unique merits. To borrow the phrase of the Full Court in B & B, the Act still contemplates individual justice. Accordingly, my objective is to ensure I treat the best interests of [the children in this case] as the paramount consideration – i.e. what is best for them will be the final determinant.”
27 In Morgan & Miles (2007) FLC 93-343 Boland J, when discussing whether different principles were to be applied in determining a parenting order after the amendments to the Act, stated as follows:
[2009] FCWA 56
“72. There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.”
She went on to say:
“74. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
28 I agree with these comments, but note that the amendments make it
clear that there is emphasis on both parents having an input into their children to the
maximum extent possible consistent with the children’s best interests.
Section 60CC considerations
29 When determining what is in the children’s best interests I must take into
account the matters set out in s 60CC of the Family Law Act 1975. The primary
considerations which I must take into account are:
(a) the benefit of the children having a meaningful relationship with both of their parents; and (b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
30 I am satisfied that the children are not going to be exposed to abuse, neglect or family violence whether they reside in [Asia] or in Perth.
31 The wife says it will be difficult for her to have a meaningful relationship with
the children if they live in [Asia]. There are a number of factors which she said will negatively impact upon this relationship if they live in [Asia]. The first is the husband’s poor opinion of her and the other is the fact that he is unlikely to encourage the children to have a relationship with her should they reside in [Asia]. I will consider both these factors when I consider the additional considerations.
32 The additional considerations I must take into account relevant to these proceedings are as follows:
[2009] FCWA 56
| (a) | any views expressed by the child and 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; |
33 Both [D] and [F] have made up their own minds about the place in which they
wish to reside. Both parents are happy to facilitate their wishes. The children were interviewed by [a clinical psychologist] in July 2007. They were asked whether they wished to reside in Perth or in [Asia]. At that time the children were living predominantly with the husband and all stated they wished to reside with their father in [Asia]. It was thought by [the clinical psychologist] that the husband had influenced the children, directly or indirectly, to indicate a preference for living in [Asia]. This was not said as a criticism of the husband, but [the clinical psychologist] felt his influence had occurred as a result of the children residing with him and knowing that it was his wish to reside in [Asia].
34 The husband, in his affidavit filed shortly before the trial, stated that he had not
questioned the twins about their wishes in relation to the relocation. He said that the twins had told him that they want to live in [Asia], but it was his belief they really did not have a strong position one way or the other. He thought they were influenced by their older sister, [F], who was quite strong in her wish to reside in [Asia].
35 The wife says that she had spoken to the twins about their views in relation to
relocating to [Asia] and they have said they want to stay living in Perth and want to go for holidays to Kuala Lumpur. In the wife’s opinion, [F] is attempting to influence the younger children to say they wish to live in [Asia].
| (b) | the nature of the relationship of the child with: | |
|
36 All four children have a good relationship with each of their parents. The
children have mainly resided with the husband since separation. This has not been the preferred position of the wife, who has wanted a week about arrangement so that the children spend equal time with each of their parents. The wife lives on the other side of Perth from the husband. [F] and [D] reside mainly with the husband as they attend school in that area. They each spend some weekends with the wife. The twins spend five days per fortnight with the wife and half the school holidays.
(ii) other persons (including any grandparent or other relative of the child);
37 The wife’s siblings and their children live in [Asia]. The wife’s mother resides
in [Asia] in a house provided by the husband. The husband's extended family members reside in [Asia]. The children have many relatives in [Asia]. The twins have not been able to maintain their close relationship with their cousins as the wife has refused to allow the husband to take the twins to [Asia] since the parties separated. She was concerned the husband would not return them to Australia.
38 The twins have a good relationship with both [D] and [F]. They will be separated from one of their siblings next year.
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| (c) | 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; |
39 The wife says the husband has made it difficult for her to see the children either
when they were in [Asia] or in Perth. It is true that the husband has restricted the wife’s contact to the children and has attempted to dictate to her the manner in which she can live her life when the children reside with her. It is obvious that he is bitter about the circumstances of the breakdown of the marriage. He has referred to the wife in correspondence to her as “scum”. He stated in evidence this still remained his opinion. In his opinion she was “cheating, lying and prostituting herself in every respect” when he sent an email to her in 2008.
40 The parties separated on 15 November 2005. In the husband's affidavit he stated
he was in [Asia] at the time this separation occurred. In evidence he confirmed that he was, in fact, in Perth. The husband travelled to [Asia] with all four children after separation as had been pre-arranged. Before the husband left the parties signed an agreement in relation to the children and property settlement. Subsequently, the terms of that agreement were not complied with by either party.
41 The wife travelled to [Asia] in December 2005. The wife says it was difficult
for her to speak to the children in [Asia] or have frequent contact with them. During the time the parties were in [Asia] they were divorced. Some negotiations took place in [Asia] between solicitors for the husband and the wife and the children then stayed with the wife in [Asia] each alternate weekend. The wife returned to Perth in March 2006 and the husband in April 2006. Between April 2006 and November 2006 the wife had the children with her each alternate weekend. The husband provided to the wife parenting guidelines, upon which he sought her agreement. The wife refused to sign or be bound by these guidelines. The husband and wife are both of the Muslim religion, but the wife does not practice the faith. The husband does and the children are brought up in a Muslim household when they reside with him.
42 It is clear that the husband has a poor opinion of the wife. Fortunately, the
children have managed to maintain their good relationship with the wife despite his
attitudes and opinion.43 The wife has encouraged the children to have a good relationship with the
husband and I am satisfied that she will continue to do so whether the children reside
in Perth or [Asia].
| (d) | the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: | |||
|
44 After this year the children will not all live together. Either the twins and [D]
will live in Perth, or the twins and [F] will live in [Asia]. If the twins reside in [Asia]
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they will be immersed in the [Asia]n culture and language. The twins do not speak [the language] and have lived most of their life in Australia. Both the wife and husband have numerous extended family members in [Asia]. The wife acknowledges that the children very much enjoyed their time in [Asia] in the last Christmas holidays where they had exposure to grandparents, aunties, uncles and cousins. It appears that the wife gets on well with the husband's family and vice versa.
45 The wife does not want to live in [Asia], but she has numerous family members
in [Asia] with whom she could stay if the children resided there. I am satisfied that if the children resided in [Asia] the wife would be able to see them in [Asia] reasonably frequently. She is not in employment and has not applied for a job since separation. She has the capacity to visit the children frequently if they lived in [Asia].
46 If the children resided in Australia the husband would spend most of his time in
Australia, although because of his business interests he would frequently travel to [Asia]. The children would be able to spend significant times with each parent and [D], and be able to spend school holidays periods in [Asia].
| (e) | 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; |
47 If the children resided in [Asia] they would not be able to see the wife as
frequently as they do now, however, I am satisfied that the wife would be able to, and would, travel to [Asia] frequently to see the children during term time and during school holidays.
48 If the children resided in Perth, there would be no practical difficulty and
expense in them spending significant periods of time with each of their parents. The husband anticipates selling the home on the north side of Perth and moving to an area close to where the wife resides, which would make the contact between the husband and wife easier than it is now.
| (f) | the capacity of: | |||
|
to provide for the needs of the child, including emotional and intellectual needs;
49 I am satisfied that both parents have the capacity to care for the children whether
it is in [Asia] or in Perth. The wife does not criticise the husband's ability to care for the children, other than his negative view of her which she says impacts upon the children’s ability to have a good relationship with her. I am satisfied that he does have a poor opinion of her, but despite this the children have a good relationship with their mother and, since the court orders were made, have spent significant and substantial time with her.
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(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
50 The parents have each made a complaint about the children occasionally being
late for school or being unsupervised. None of these complaints are serious and, as stated previously, I am satisfied that they have both been responsible parents. The wife says that the husband has not paid appropriate sums of child support. That issue is being determined by the State Administrative Appeals Tribunal.
| (l) | 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; |
51 I am satisfied once an order is made the husband and wife will comply with the
terms of the orders. It is important to give the twins some certainty, at least in the
short term.
Conclusions
2009
52 It has been agreed between the parties that [D] and the twins will remain in Perth
for 2009. The parties have agreed that [F] should be able to attend boarding school in [Asia] if she is accepted and she wishes to go. The wife seeks an order that the twins should spend week about with her and the husband. In the circumstances as set out above I can see no reason why that should not occur, as long as the parties are able to ensure that the children attend school and their extracurricular activities. There have been complaints by the husband that the wife did not take the children to their extracurricular activities. At the time of the second hearing the children were not undertaking any activities outside of the school environment. I do not want the children’s ability to partake in such activities prejudiced by a week about arrangement. In this regard it is appropriate that one parent has the option to pick an out of school activity for the children for summer and the other parent must ensure that the children attend such activity. The other parent may choose an activity for winter.
2010
53 It is clear [F] wishes to spend time in [Asia]. At the moment she anticipates
boarding. There are certainly advantages to the twins in spending time in [Asia]. They will have exposure to extended family members and the [Asian] culture and language. Both their parents are [Asian] nationals. The husband and wife have business interests in [Asia]. They are currently in dispute in relation to those business interests. The husband frequently attends [Asia] now for business purposes. The wife also attends [Asia] from time to time. The wife accepted that while she does not want to live in [Asia], she could visit the children frequently if they lived there.
54 Normally, if children were allowed to live in a different country away from one
parent, you would expect the relationship with the parent with whom they are not living to suffer greatly by way of the tyranny of distance. I am satisfied that this will
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not occur in this matter. The parties have come and gone from [Asia] regularly in the six years they have been residing in Australia. They both have most of their extended family members there. The older children have spent a significant portion of their lives in the [Asia]n environment exposed to the culture and extended family members. The twins have not had the advantage of this experience.
55 If the children resided in [Asia] with the husband they would see [F] when she is
home from boarding school. They could spend significant time with the wife any time she visited [Asia]. If the wife was to spend time in [Asia] and the twins lived there it would be appropriate for the twins to reside with her for whatever time she spends there, but not for a period of time so that the wife spends more than 50% of the year with the children. I would anticipate that the wife would visit [Asia] perhaps for a week or two at a time. If this occurred the children could reside with her for the entirety of the time that she is in [Asia].
56 This is a situation where the children would benefit from spending equal time
with each of their parents. This is able to occur if they live in Perth. If they lived in [Asia] they could spend equal time with each party as well. There are other advantages in the twins residing in [Asia], at least for a period of two years. They have not had the experience of living in the [Asian] culture, or in a country which is predominantly Muslim. The wife has no objection to the twins being raised in the Muslim religion, although she did object to them attending a Muslim school in Perth. It is an ideal time for the children to be exposed to this environment while they are in primary school. They will have the added benefit of also being able to have frequent contact with the wife and the husband's extended family members. The wife will be able to visit them in [Asia] frequently and the children will holiday in Perth.
57 The wife has expressed some concerns about whether the husband would return
the children or comply with orders once the children reside in [Asia]. [The country] is not a Hague Convention country. My observations of the husband were that he was not intent on the children residing in [Asia] at all costs, nor did he wish to do so to deprive the children of contact with their mother. His desire was that they should be exposed to their [Asian] culture. He has agreed [D] should remain in Perth and continue with his studies. I would anticipate that he would reside with the wife at this time. I do not get the impression that the husband would refuse to let the twins come back to Australia, where they have very strong bonds and close friends.
58 In my view, it would be appropriate for the children, and in their best interests,
to live in [Asia] with the husband and spend up to equal time with the wife in Perth and [Asia]. This could be achieved by the wife attending in [Asia] during the school term and by the children spending time in Perth with the wife and [D]. This arrangement should continue for a period of two years, after which the children should be interviewed again about their wishes in respect of living in either [Asia] or Perth, and the matter then be reviewed.
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I certify that the preceding [58] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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