S and J

[2005] FCWA 120

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: [REGIONAL CENTRE]

CITATION: S and J [2005] FCWA 120

CORAM: PENNY J

HEARD: 13 & 14 SEPTEMBER 2005

DELIVERED: 18 NOVEMBER 2005

FILE NO/S: PT 3132 of 2001

BETWEEN: S

Applicant/Husband

AND J

Respondent/Wife

Catchwords:

Children's issues - residence - contact - application to relocate - relocation not allowed

Legislation:

Family Law Act 1975 - s 68F

(Page 2 )

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr P Gazia

Respondent : Self Represented Litigant

Solicitors:

Applicant : Paul Gazia

Respondent : Self Represented Litigant

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

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

D and SV (2003) FLC 93-137

1The husband and wife in these proceedings separated while living in [a regional centre] in May or June of 1999. Upon their separation the children [M], now aged 11 years, and [L], aged 10 years, resided with the husband and have continued to reside mainly with him. The wife initially had contact on weekends. In May 2001 orders were made by consent whereby the wife had contact overnight on Monday night each alternate week, and from after school Friday until the commencement of school on Tuesday in the alternate week. She also had contact for half the school holidays.

2The husband now seeks to relocate with the children with the children to the [eastern states], thereby reducing significantly the contact the wife will be able to have with the children. The

husband came from [the eastern states] to live in [the north west of Western Australia] before the children were born. He and the wife had a block of land in [the eastern states], which they subsequently sold. He says it has always been his intention to return to [the eastern states] where his extended family members reside. He has been able to come to an arrangement with his present employer to transfer his employment to the [the eastern states]. He says it will be beneficial for himself and the child ren to reside in that area as he will be near his family members, have secure employment and there will be more opportunities for the children, particularly in terms of their education.

3The wife opposes the children's relocation and seeks orders that they now reside primarily with her and the husband have contact in the same terms and conditions as that presently enjoyed by her.

The law

4In A v A: Relocation Approach (2000) FLC 93-035 the Full Court summarised the manner in which matters involving a relocation should be determined. The Full Court stated at p

87,551:

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

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

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

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

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

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· 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."

5The Court went on to state that even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with and access to the other parent. The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges on those interests it must give way.

6In D and SV (2003) FLC 93-137 at p 78,282 the Full Court contrasted intrastate relocation cases with interstate or overseas relocations. In that case the mother sought to relocation 115 kilometres from Melbourne with the three boys the subject of the proceedings. The Court noted:

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

…

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

Competing proposals

7The husband proposes the children reside with him in [the eastern states] and have personal contact with the wife twice per year, during the mid -year school holidays, and for half of the Christmas school holidays. If the children are unable to relocate to [the eastern states] the husband proposes to continue to reside in [the north west of Western Australia] with the children and for the wife to have the same contact as she now has.

8The wife proposes the children reside with her in [the north west of Western

Australia] and have the same contact with the husband as they now have with her.

Section 68F(2) factors

9S 68F(2) of the Family Law Act 1975sets out the matters I must take into account when determining what is in the best interests of the children. I will consider each of the relevant factors in the context of how the competing proposals of the parties impact upon them.

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

10 The husband says that both [M] and [L] are looking forward to going to [the eastern states] and making new friends. He concedes that while [M] was quite positive about moving, [L] was hesitant and said he would miss his friends and the mother.

11 The wife says [M] had stated to her that he would have better educational opportunities in [the eastern states], but when questioned by her, each child said they would not mind if they remained in [the north west of Western Australia]. In relation to the wife's proposals that the children now reside with her, I do not have any evidence as to the wishes of the children, save that the wife stated that the children have told her they would like to spend more time with each parent.

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

12 The children have a very good relationship with the husband.

His extended family reside in [the eastern states]. His parents live in [the eastern states], about three hours from [where he proposes to live], and his sister lives about two hours from [that town]. The children do not appear to have a close relationship with them. The children have not seen the husband's parents for approximately 18 months, but they have telephone contact with them. If the children resided in [the eastern states], they would be able to have a closer relationship with the husband's extended family.

13 The children have a very close relationship with the wife and with her partner, [F]. The wife's brother, [GJ], resides in [the north west of Western Australia] and the children see him regularly. The wife has a large group of friends in [the north west of Western Australia]. The children see those friends and their children frequently.

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

(i) either of his or her parents; or

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

14 The relocation will result in a dramatic decrease in the time the children spend with the wife. Presently they spend approximately 40% of their time with her. In addition, because [the north west of Western Australia] is a small town, the wife frequently sees the children when they are in the husband's care, especially at sporting commitments. I have no doubt that the children, if they relocated to [the eastern states], would miss the contact they have with the wife and [F] and the other friends and relatives of the wife and [F], who they see very regularly on contact. The children are used to the wife coaching their sporting teams and regularly watching them compete in a number of sporting activities. The wife is also involved in the children's schooling and attends assemblies, functions and religious activities at the school. Should they relocate to [the eastern states] they will be deprived of that involvement of the wife.

15 If the children continued to reside in [the north west of Western Australia] with the husband, they would continue to have the same contact with the wife, [F] and other friends and relations they have enjoyed in the past.

16 If the children resided with the wife and had contact with the husband, I am sure the children would miss him; however, they would continue to see him every few days, as they have the wife, and spend approximately 40% of their time with him. This would enable the husband to continue to have involvement in the children's recreational and sporting activities, and some input into their education.

17 The husband accepts that in the [ town where he proposes to live] area he knows nobody and initially he and the children would have no friends or support in that immediate area, his family living some hours away. This will be very difficult for the children.

18 The husband says that one of the advantages of the move to [the selected town] will be to give the children a choice of educational institutions they can attend. He says the schools the children are likely to attend would provide a better standard of education than the high school in [the north west of Western

Australia]. The children presently attend [a catholic primary school] in [the north west of Western Australia], a private Catholic school. [M] is in year 6 and [L] in year 5. In [the north west of Western Australia] there is only one high school [in the area], and that is a state school. The husband says the high school does not have a good reputation either academically or for the conduct of some of the students. He says he would prefer the children to be educated away from that environment. He is considering, if able to relocate, sending the children to either a [ Lutheran College] or the [Anglican College] for their high school education. He says he will make the final decision about their schooling when he arrives in [the town]. In the meantime, he wants both boys to attend the

[primary school]. He has had contact with the school principal and has a prospectus from the school. He thinks it will be in the children's best interests to be able to access educational services away from the [the north west of Western Australia] area.

19 The wife does not concede that there are problems associated with the education provided at the [local] High School, and has affidavit evidence from women whose children currently attend the school saying that they are satisfied with the standard of education provided.

20 I cannot make any finding on the information provid ed to me as to whether there are problems with the education provided at the [local] High School. However, these children have been educated in the private Catholic school system to date. If it was available, I have no doubt that both parents would want the children to have a private school education in high school. In my view, it is likely that the private schools in the [new town in the eastern states] will provide more pastoral care and a greater range of extracurricular activities than the state school [in northwest Western Australia]. The children will benefit from being given a choice of education environments in the [new town] area which is not available to them in [the north west of Western Australia].

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

21 Should the children relocate to [the eastern states], it will be difficult for the wife to have regular contact with the children and it will be expensive. The husband proposes the wife have contact in

(Page 8 )

Perth, or Melbourne if the wife visits that city, for the mid -year holidays in July and for half of the Summer school holidays. Initially he stated that he was not prepared to pay or contribute towards the costs of the children's airfares. At trial, he stated he would be prepared to pay for one flight for the boys to travel to Melbourne at Christmas time, and would be willing to pay half of the cost for the children to travel to Perth mid -year. In closing, his counsel stated that he would pay for the flights for the Christmas and mid -year school holiday period.

22 The husband proposes the wife have contact in [the eastern states]. The wife says that her financial position is such that she would not be able travel frequently to [the eastern states] to see the children. In my view, the practical consequence of a relocation is that the wife would only see the children two or three times per year, although she would have telephone and email contact.

23 If the children reside in [the north west of Western Australia] and live with either the husband or the wife, they will continue to have frequent contact with either parent.

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

24 Each of the parties has made complaints about the capacity of the other parent to care for the children.

Husband's complaints

25 The complaints the husband makes about the wife's capacity to care for the children are as follows:

•She has not paid child support or made a proper contribution to the children's expenses since separation;

•She is not always at home when the children are at her home for contact; and

•She denigrates the husband to the children when they are in her care.

Child support

26 The wife became bankrupt after the parties separated. In 2001 she made some contributions towards the children's private school fees, but has not made any contributions to those fees since that time. Although she agreed at one stage to contribute towards the children's private medical insurance cover, she has not paid any of those premiums. The husband has made a number of applications

to have the wife assessed by the Child Support Agency to pay child support. An assessment was issued, effective from 1 January 2005, requiring the wife to pay child support in the sum of $100 per month. The husband says the wife is in arrears with these payments in the sum of $200 - $300. The wife denies that this is the case. The wife believes the husband has been vindictive in seeking to have her contribute to the children's living expenses. I do not accept that the husband's motives in pursuing child support are vindictive. Both parents should be providing for the children's financial support.

Wife's lack of supervision of the children

27 The husband alleges that on a number of occasions the children have not been looked after by the wife, but have been cared for by [F], or other friends. The wife accepted that around the time the parties separated she was involved in a number of activities including her business, sport, and community activities, includin g being [involved in business associations] in [the north west of Western Australia]. At that time there may have been occasions when [F] cared for the children when the wife was unable to do so.

28 In 2000 when the wife had contact with the children over the Christmas holiday period she left them with a relative while she travelled to Victoria with [F].

29 While these incidents may be regrettable, they occurred many years ago. It is my impression that the children are now largely cared for by the wife. Even if they spent an hour or two from time to time in the care of [F], I can see no problem with that.

Does the wife denigrate the husband to the children?

30 The wife denies that this occurs, although it is clear from her affidavit material and evidence that she does not have a good opinion of the husband. I accept the evidence of the husband that the children complain to him about the negative comments the wife makes about him to them. This type of conduct is certainly not in the best interests of the children.

Wife's complaints

31 The wife has a number of complaints about the husband's ability to care for the children. In particular, she states that:

•He does not attend to the children's homework commitments and therefore they will not maximise their educational potential in his care; and

•In [the eastern states] the husband will have not supports to assist with the care of the children and will use day care.

Children's homework

32 The wife has attached as annexure "J" to her affidavit, [M]'s school diary which indicates that his homework has not always been done. In August 2005 the teacher stated that he failed to hand in his reading activity for the past three weeks and had not filled in his reading log. In September 2005 the teacher stated that he had failed to hand in an assignment which was set as homework for the last week. This was one of a number of pieces of work [M] had not done and he was to spend his lunch time completing the work. I accept the husband is either not able to get [M] to complete his homework or does not check whether he has done it. If [M] is to succeed at school it is essential, particularly as he gets older, that he does do his homework and is properly supervised in relation to it. It is clear from the school reports that [M] is at times easily distracted and needs to be kept on task.

The husband's supports in [the eastern states]

33 The husband acknowledges that he will not have any friends or relations in the immediate area of [the new town] if he is able to relocate there. He says that his employer has agreed to him having flexible work hours, but acknowledges there may be times when he will have to use a day care centre, or after school care facility, if he has to work later than school hours.

34 The husband works as an electrical/fire system technician. On occasions he is contacted out of work hours when there are problems with security systems. He says that mostly he does not have to attend the callouts, but gives assistance over the phone. If he was living in [the eastern states] he is hopeful he would not have to be called out in evenings and out of work hours. If he was there, there would be no-one he could call on to look after the children.

35 If the husband is able to relocate to [the eastern states], I have some concerns about whether he will be able to care for the children without any family or community support. Both children are very involved in sport and I anticipate this would continue in the [new town]. If they are playing different sports at different

venues at the same time the husband is going to have little support to be able to accommodate both activities of the children.

36 For a year he will have one of the boys in high school and one in primary school. The children will have different activities at different times and at different places. The start and finish time of the schools may be different, and with few supports he will find it difficult to provide supervision for the children.

37 If the children reside in [the north west of Western Australia] the husband will always have the support of the wife and [F] to assist him with the care of the children if either he is called out in the evening or to transport the children to and from sport or other recreational activities.

38 If the children resided with the husband in [the new town] they are going to be removed from a community where they are known and loved by many, to a community where they will know no-one. Although I am sure the children will make friends after a time, as will the husband, this will take time. They will be deprived of the social opportunities they have in [the north west of Western Australia] to mix with other families, not only at sporting events, but at social events as well.

39 On a positive note, both parents have much to offer the children. The husband is obviously capable of caring for the children's physical and emotional needs, and I am sure he is closely bonded to them. They were only 5 years and 4 years old when he commenced to be their primary caregiver. He has been the person who has provided for their financial needs since separation.

40 The wife has the capacity to care for the children's physical, emotional and intellectual needs, and is able to provide a happy home life for them.

(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

41 Not relevant.

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

(i)	being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)	being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed towards, or may affect, another person;
42	Not relevant.
(h)	the	attitude to the child, and to the responsibilities of

parenthood, demonstrated by each of the child's parents;

43 The wife criticises the husband for wishing to take the children from a situation where they have very frequent contact with her to live in [the eastern states]. In her view, this relocation is proposed by him for his own benefit and not for the child ren. The husband perceives that there are advantages for the children and for himself in the move to [the eastern states]. He has lived in [the north west of Western Australia] for many years and he does not want to stay in the town and wishes to return to [the eastern states] where he has family. His perception is that there would be more opportunities open to the children in an area not as remote as [the north west of Western Australia]. I accept that this would be the case. The husband is now in a position where he has been offered a job in the area in which he wishes to reside. He would like to take the children now so they can become established in the area before they commence high school. In my view, he has been responsible in the manner in which he has considered the move and the arrangements that he has put in place.

44 Since separation the husband has been mainly responsible for the children's care. He has had to juggle his work responsibilities and his obligation to be the primary caregiver for the children. He has made a much greater financial contribution to the children's wellbeing than has the wife.

45 In my view, there were times not long after the parties separated, where the wife's priorities were other than the children. She had a number of interests and community activities which took her away from the home when the children were there. She went on a holiday to Victoria when the children were young and left them with somebody else. Her financial commitment to the children has been minimal, save for when the children have been in

her care. She is now, however, committed to the children and says that she is better able to care for them than the husband.

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

and

(j) any family violence order that applies to the child or a member of the child's family;

46 There are no relevant incidents involving family violence which would impact upon these children.

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

47 While in my view it is always preferable to make an order least likely to lead to the institution of further proceedings, this is not a relevant factor in this matter.

Conclusions on residence

48 As so often happens with relocation applications, this matter is finely balanced. There are advantages for the children in both situations, but, in my opinion, the children should reside with the husband in [the north west of Western Australia]. I have come to this conclusion taking into account the following matters. The husband's attitude to the responsibilities of parenthood has been exemplary. He has been the primary caregiver for the children for six years and he has been mostly responsible for their financial support. He has had to juggle his work commitments around his commitments to the children. With the wife's support he has been able to provide a happy and stable environment for the children.

49 In the early years after the parties separated, the wife was busy with other activities and was not always available for the children. In addition, her history of bankruptcy and her reluctance to pay child support means there is some doubt about whether she has the financial capacity to provide for the children as their primary caregiver.

50 The wife does not have a good opinion of the husband. I have found that she does on occasion denigrate him to the children. This is not in their best interests and as a result of this behaviour I am not convinced that she will promote the children's relationship with the husband if they reside primarily in her care.

51 The husband should not be able to relocate to [the eastern states] with the children because of the unique access the children have to both parents in [the north west of Western Australia], and to extended family members and friends. In [the north west of Western Australia] both parents can and do have regular involvement with the children's sporting, social and educational activities. The children are able to see the wife, the non-resident parent, every few days. Although the husband and wife have had difficulties in their relationship over the years, mainly they are able to be civil to each other in front of the children when they meet.

52 If the children moved [to the eastern states], their personal contact with the wife would be limited to approximately three times per year. In my opinion, the children, particularly [L], would miss the wife terribly. The husband has no social or other supports in the [new town]. The children will go from a situation where they are known and loved by many to being solely dependent for their emotional and physical support upon the husband.

53 In the husband's employment he could, on occasions, be called out after hours and at night. There will be no fall back position for him for the children's care in that situation.

54 Although the husband says he will have flexible work hours in [the new town], without family or other community supports he is going to find it difficult to be able to provide the same level of support that the children currently get as a result of having both parents who are interested in their sporting, social and educational activities. The husband may have to resort to day care or after care, something the children are not used to, and something that would not be available to [M] after he finishes primary school.

55 If the husband continues to reside in [the north west of Western Australia] with the children, the wife will be able to continue her involvement with the children's educational support and be able to ensure that [M] is encouraged in relation to his homework. I am not satisfied that the husband's attitude in relation to homework is appropriate or that he takes this responsibility seriously. It will be to [M]'s benefit to have the wife oversee his educational development.

56 I realise that in determining that the children are to reside with the husband in [the north west of Western Australia] I will be forcing him to live in a environment in which he does not want to be, and in doing so, I am restricting his freedom of movement. However, in these circumstances, in my view, it is in the children's

best interests, at least for the next few years, that they benefit from frequent contact and support with both parents.

Icertify that the preceding [56] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate