S and R
[2009] FCWA 153
•3 DECEMBER 2009
[2009] FCWA 153
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | S and R [2009] FCWA 153 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 21 & 22 OCTOBER 2009 |
| DELIVERED | : | 3 DECEMBER 2009 |
| FILE NO/S | : | PTW 5343 of 2002 |
| BETWEEN | : | S Applicant/Mother |
| AND | ||
| R Respondent/Father | ||
| Catchwords: |
FAMILY LAW - with whom a child lives - interstate relocation - best interests of a child
Legislation:
Family Law Act 1975 s 60B, s 60CA, s 60CC(4), s 65DAA
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr B Kearney |
| Respondent | : | Ms S Vincent |
Solicitors:
| Applicant | : | Rattigan Kearney & Bochat |
| Respondent | : | Siobhan M Vincent |
[2009] FCWA 153
Case(s) referred to in judgment(s):
McCall and Clark [2009] FamCAFC 92 Morgan and Miles [2007] FamCA 1230 Taylor and Barker (2007) FLC 93-345
[2009] FCWA 153
1 [Ms S] and [Mr R] are the parents of two children, [Lyle] born [in] February 2001 (now 8½) and [Ken] born [in] January 2003 (now 6½).
2 The mother asks that I make orders providing for Lyle and Ken to live with her
and that she be permitted to relocate the children’s residence from Western Australia to [the Eastern states], particularly at present [the capital city]. She proposes that the children then spend time with the father for the whole of each school term holiday and for four weeks during the summer school holidays and further, that they have the ability to communicate with their father by telephone, email and post.
3 The father opposes the orders sought and seeks to maintain the current
arrangements for the children which provide for a week about arrangement. In the alternative, in the event the mother decides to move to the Eastern states without the children he proposes that the children live with him and spend time regularly with the mother.
4 The mother was adamant that if I did not make orders permitting her to relocate the boys to the Eastern states then she herself would remain in Western Australia.
5 Although I must consider all available options in determining this matter, it
becomes clear on the position of each of the parties and their respective relationships that the only two realistic and realistically available options are either the mother is permitted to relocate to the Eastern states with the boys, or the current arrangements remain.
Background
6 The father is 40 years of age and the mother 34 years of age. They commenced
living together in February 1997 and were married in January 2001. The marriage was a short one and the parties finally separated on 15 September 2003 and a divorce order was made on 22 December 2005.
7 At the time of the parties’ separation Lyle was two and Ken was only 8½ months
of age.
8 At the commencement of their relationship the father was employed in
the [defence forces] and the mother as a receptionist. The father’s time in the defence forces was spent [away from home], in [the Eastern states] and living in [the southern metro area of Perth]. After the birth of the boys the parties remained in [the suburbs] without further relocation, although during that period the father was posted to [the operation] and spent “significant proportions of [his] time [away from home]”.
9 At the time the parties separated the father had applied for a discharge from the
defence forces as he says it was taking a toll on the parties’ marriage and although his discharge from the forces came into effect in 2004, the father records that attempts to resolve the problems in the marriage failed.
10 Each of the parties has remarried. The mother met her current husband, Donald
S (“Donald”), in early 2006. At the time she was working in civilian employment at [the office]. Donald was employed in the [defence forces]. He presently holds [rank].
[2009] FCWA 153
The mother and Donald were married [in] September 2007. In early February 2009, Donald received news from [his employers] that he was to be posted to [the Eastern states].
11 Donald has relocated to his current posting [in the Eastern states] and he currently resides in the accommodation made available to him at [that location].
12 The mother is currently working part-time at [a] Police Station as a customer
service officer. She has assistance from her parents in caring for the children before
and after school and to cover any times that she is unavailable.13 The father has employment as a [government employee]. For a short period
following his discharge from the forces he worked at a mine site and thereafter
commenced work with the department in November 2004.14 The father met his current partner, Kellyanne (“Kelly”), in March 2006. They became engaged in August 2007 and married in February 2008.
15 Kelly has two children herself of a former relationship, namely Elaine born [in] May 1992, and Helena born [in] September 1993.
16 The girls have adopted the father’s surname and have no communication with
their biological father and he is presently restrained from any direct or indirect contact
with either of them.17 Kelly is employed as an administration manager with [a company] on a full-time
basis. She actively assists in the care of Lyle and Ken when they are with the father
and has arranged her work hours such that she is able to do so.18 The father himself, although working what appears to be an extremely
complicated roster at [his workplace], has been able to negotiate his time with his employer such that he is able to be available for almost all of the time that the boys live in his household.
19 Donald, it would appear, also has some children of a prior relationship. No
direct evidence was led about Donald’s children and indeed it was only in answer to a question from me during the course of the proceedings, about a passing reference to a daughter of Donald’s, that any information was given to me about the existence of a broader family for Donald and nothing was offered in detail. From the bar table I was given to understand that all of Donald’s children are now adult and apparently not relevant in the mind of the mother, or Donald, for the purpose of these proceedings.
20 Whilst I draw no adverse inference against the mother and Donald for the
absence of any mention about Donald’s children, I found it odd that in a parenting case no information was given about Donald’s broader family or any interaction they have with the parties’ boys.
[2009] FCWA 153
Background to the current arrangements
21 Shortly after the parties’ separation agreement was reached that the father would
spend time with the boys each alternate weekend. An application for consent orders
was filed on 24 September 2003. The orders provided as follows:[The orders were originally numbered 19 to 23 in the proposed orders as the orders
also provided for the resolution of financial matters between the parties].
“19. That the husband and the wife have joint parental responsibility for the children and the wife has residential responsibility for the children. 20. That the husband will have regular and unconditional contact with the children:
(a) on every other weekend; (b) half of all school holidays to be rotated first half second half alternately regardless if the child has started or is attending school at the time; (c) every other long weekend; (d) Christmas Day and birthdays will be spent at the current contact parent’s residence and will be picked up the following day at 10:00 am by the receiving parent and returned by 2:00 pm the following day unless that day should fall in the normal handover days. 21. That parental responsibility for all major decisions (such as residence, schooling, medical treatment, sport, social club activities, religion) affecting the children will be shared between the wife and husband. The parties shall notify and agree in writing before any major decisions affecting the children are carried out. Each party will respond quickly and be motivated solely by the welfare of the children in relation to major decision. 22. That the residential parent and contact parent in whose care the children are in has the power necessary to make decisions over the day to day care of the children (such as diet, clothing, homework, discipline and emergencies) [sic]. 23. The husband and the wife have agreed that neither party will remove the children of the marriage from the metropolitan area of Perth Western Australia without the written consent of either party [sic].”
22 Although the orders that embodied the agreement reached between the parties
about parenting provided for the boys to spend half of all school holidays with the father, he, in fact, did not have the boys spend time with him during school holiday periods until 2006. I accept that he did so out of respect for the mother’s concerns about the boys being able to cope with an extended period of time away from their mother and also, the mother’s issues with being able to spend that much time away from the boys. It is to his credit, in my finding, that he was prepared to stand back
[2009] FCWA 153
from his “entitlements” under the orders until such time as he could be confident that
the boys would not be adversely affected by him spending that time with them.23 In February 2007 the mother and father had further consent orders made which
had the effect of continuing joint parental responsibility, as previously agreed, however with the children living with the mother and spending time with the father. The time they spent with the father was defined to include each second weekend from Friday until Monday except when Monday was a public holiday, then staying through until Tuesday, together with one half of all school holidays with provision being made for special days such as Father’s Day, Mother’s Day, Easter and Christmas. Additionally, the boys spent every Wednesday night with their father.
24 The parties again particularly noted in those orders:
“That parental responsibility for all major decisions (such as residence, schooling, sport, social clubs, religion and medical treatment) affecting the children will be shared between the mother and the father. The parties shall notify and agree in writing before any major decisions affecting the children are carried out. Each party will respond quickly and be motivated solely by the welfare of the children in relation to major decisions.”
25 Some five months later, in July 2007, the mother filed an application seeking
orders as follows:
1. Father will spend time with the children Lyle and Ken each alternate weekend from 6:00 pm Friday to 8:30 am Monday.
2. Drop-off and pickup will be the responsibility of the father.
3. Father is to deliver the children to school or child care on Mondays no later than 10 minutes prior to the commencement of school, or to child care/vacation care where necessary but not before 8:30 am. In the event of a public holiday on the Monday of the father’s weekend, he is to deliver the children to school on Tuesday no later than 10 minutes prior to the commencement of school, or to child care/vacation care where necessary but not before 8:30 am.
4. Should the father not be able to make arrangements to allow him to meet the proposed timings then he will forfeit the Sunday evenings and drop the children to the primary residence by no later than 6:30 pm on Sunday evening.
5. Half of all school holidays, to be rotated first half/second half alternately, children must be returned to mother’s residence by the Saturday 5:00 pm prior to the Monday of school commencement.
6. Christmas Day, birthdays and Easter alternating each year, commencing with the father having the children Christmas 2007, mother having Lyle’s birthday 2007 and mother having Ken’s birthday 2008.
26 It was then noted that the mother intended that:
[2009] FCWA 153
“Other existing orders dated 26 September 2003 will remain in force.”
27 This notation refers to the order that was embodied in the orders of February
2007 to which I have referred and, additionally (and also included in the February 2007 orders) provision as to responsibility for day to day decisions and that neither party removes the children from the Metropolitan area of Perth Western Australia without the written consent of either party.
28 The father responded seeking orders that provided effectively for week about
time with each of the parents. Orders were ultimately made on 7 November 2007, by
consent, which provided as follows:1. The orders made in these proceedings 26 September 2003 insofar as they relate to children’s issue only, be discharged.
2. The orders made in these proceedings on 14 February 2007 be discharged.
3. The mother and the father share the joint parental responsibility for the two children of the marriage.
4. All major determinations made regarding the long term welfare of the children are to be made by written agreement between both parents.
5. The children shall reside with the mother as follows:
(a) From the commencement of the school year until the completion of the school year for each alternate week from after school Wednesday until the commencement at school the following Wednesday, commencing 17 October 2007; (b) For the second half of the 2007/2008 Christmas school holiday period and each alternate Christmas school holiday period thereafter; (c) For the first half to the 2008/2009 Christmas school holiday period and each alternate year thereafter; (d) From 12:00 noon on Mother’s day until the commencement of school the following day each year should the children not be resident with the mother on that day; (e) From Good Friday until Easter Monday in 2008 and each alternate year thereafter. 6. The children live with their father as follows:
(a)
From the commencement of the school year until the completion of the school year for each alternate week from after school Wednesday until the commencement of school the following Wednesday, commencing 24th day of October 2007
[2009] FCWA 153
(b) For the first half of the 2007/2008 Christmas school holiday period and each alternate Christmas school holiday period thereafter; (c) For the second half of the 2008/2009 Christmas school holiday period and each alternate year thereafter; (d) From 12.00 noon on father's day until the commencement of school the following day each year should the children not be resident with the father on that day; (e) From Good Friday until Easter Monday 2009 and each alternate year thereafter, the father undertaking not to feed the children meat on Good Friday. 7. For the purposes of calculating the Christmas school holiday period, such period shall be calculated to include any public holidays or pupil free days which may be fall [sic] at the commencement or conclusion of the Christmas holiday period and such that the first and second half of the holiday period shall be defined so as to include an equal number of nights with each parent.
8. The parent with whom the children are resident from time to time shall have the responsibility for the day-to-day care and welfare of the children, during those periods.
9. During periods whilst the children are resident with one parent, the non-resident parent, at that time, shall have telephone contact with the children on weekdays between 7.00pm and 8.00pm and between 11.00am and 8.00pm on weekends, the weekend days being defined to be Saturday, Sunday and any day gazetted as a Public Holiday.
10. In the event of agreement between the parties, the parties can amend the above arrangements by confirming thoseagreement [sic] in writing, from time to time.
11. Each of the parties be restrained by injunction from:
(a) altering the children's principal place of residence from the Perth Metropolitan Area; (b) removing either of the children from the State of Western Australia; or (c) changing either of the children's educational and/or sporting arrangements; without the written consent of the other parent. 12. Neither parent shall take the children out of the Perth Metropolitan Area for a holiday unless:
(a)
the holiday period commences and ends within the period of time during which the children would ordinarily reside with that parent;
(b) a general itinerary is provided to the other parent.
[2009] FCWA 153
13. The party with whom the children are resident from time to time shall exert all reasonable effort, insofar as is practicable, to take the children to their extra-curricular activities, extra-curricular activities being defined as sporting fixtures and programmes for academic extension.
14. Each of the parties shall exert their best endeavours to ensure that the children shall attend counselling, if required, with a counsellor of the parents' choice, to assist them in the transition to the current residence arrangement and thereafter in accordance with the counsellor's recommendations.
15. The father be restrained by injunction from denigrating the Catholic religion in the presence of the children.
16. Each parent shall collect the children at the commencement of the respective residence period.
18. The hearing date allocated for the trial of these proceedings being 13 December 2007 and 17 December 2007 be vacated.
29 The proceedings were otherwise adjourned generally with liberty to both parties
to seek a relisting thereof in the month of May 2008 by a letter to the Case Coordinator. It appears that the intention of the adjournment was to facilitate a review of the arrangements after they had been given a six month period of operation, if such review was required.
30 No such review was sought.
| The evidence |
31 The mother and Donald had filed an affidavit and each of them were cross-
examined. The mother also filed an affidavit by her mother in support of her
application. Her mother, [Mrs A], was not required for cross-examination.32 The father filed affidavits of himself, his partner Kelly, [Mr I], [Ms W], [Ms LW], [Mr N] and [Ms R].
33 Additionally, two witnesses were to attend under subpoena, namely [Mr CR],
[a work supervisor], and [Ms M], the Principal of the boys’ school, [in the suburb]. With the consent of the mother a statement prepared from Ms M was accepted as her evidence and the witnesses, Ms W, Ms LW, Mr N and Ms R were not required to be available for cross-examination.
34 The father, his partner Kelly, Mr I and Mr CR were cross-examined.
35 Additionally, documents had been subpoenaed from [the boys’] School and they were admitted into evidence by consent.
36 The case for the mother was run from a particularly negative premise. In her
affidavit evidence the mother focuses upon how she considered, and still considers, the
care arrangements for the children to be disruptive.
[2009] FCWA 153
37 Initially, she referred to the fact that the Wednesday evening arrangement was,
in her opinion, disruptive and with reference to the week about arrangement commencing in late 2007, the mother’s position is described in her affidavit in these terms:
“32. Almost immediately there were problems with the arrangement. 33. In the first week the children were living with the respondent the respondent told me that Lyle suffered from night terrors. Lyle was too sick to attend school on Friday and the Monday of that first week with the respondent and the respondent did not take Ken to school. 34. I attempted to speak to the respondent about these matters. I was told by the respondent that “it’s none of your business – when the children are with me I will do what I want”. 35. Despite my misgivings about the arrangement I agreed to it remaining in place for a trial period. 36. It was intended the matter be reviewed after six months.”
38 As to the father’s parenting generally the applicant says in paragraph 24 of her
affidavit:
“Both children had been enrolled at [the Primary School] and Kindergarten respectfully [sic]. I was responsible for all of the children’s school fees. The respondent had said to me “you can put the children into whatever school you want as long as you pay for it”. This was an example of the respondent’s attitude towards the parenting of the children.”
39 The uncontested evidence of the father was that he did not believe the children
should necessarily attend a private school, but was prepared to support the mother’s
choice, although not financially.40 There were aspects of the mother’s evidence where she, in my finding, openly
misrepresented factual matters and I will refer to these in particular later in these
reasons.41 I found the mother to be rather mean spirited in her presentation. Some of the
matters where she clearly misrepresented the position were relatively trivial and even if accepted as fact, were not of any great substance in the overall scheme of the evidence. However, they did impact on her credibility. I ultimately formed the view that any support that she gave to the father’s active involvement in the boys’ parenting was a veneer intended to cover her true feelings, namely that any problem arising from the arrangements was the fault of the father, or his partner. Overall I found her evidence to be less reliable than that of the father.
42 The mother also gave evidence that she had made no enquiries of her partner,
Donald, about the possibility of him transferring to Perth. If this is a correct factual
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representation, then I find for her to have adopted such a position somewhat
extraordinary.43 The mother’s partner, Donald, presented as someone who was very keen to
impress, however, his presentation during his evidence left me with the impression that I was observing a stage performance rather than someone who was trying to demonstrate who they truly were.
44 Donald overstated his position and in particular I found his evidence about his
“contract” with the [defence forces] be entirely unsatisfactory and quite misleading. Donald represented that he has a “contract” with the [forces]. I enquired of him as to the nature of his contract. In answer, Donald stated:
“To uphold the service and conditions of the [the defence forces] and
protect the interests of the country.”
45 and that his contract was ongoing, in other words, it was the contract of his employment with the defence forces.
46 He was not subject to a specific closed end or conditional contract, for example,
in return of service for a retention bonus payment. I also found his evidence about the options that were available to him in the forces in terms of postings to be unconvincing and I was left with the overall impression that I never quite heard the full story and no separate or independent evidence was led from anybody authorised to speak on behalf of the defence forces.
47 The father presented as a significant contrast to the mother. I found him to be
strongly and genuinely motivated and open and frank in his presentation. Similarly, his partner, Kelly, presented as a genuine and caring individual who was prepared to make appropriate concessions and was willing to accept responsibility for things that she could have done better.
48 Mr I was a former family friend. It was suggested by the mother in her evidence
that she and Mr I had fallen out after he had urinated on the family couch. Despite the fact that some five years later Mr I was chosen by the parties to be Lyle’s godfather, the allegation about urinating on the couch struck me as still being an issue for the mother, given her presentation of the evidence about it. Given that this was an event that had occurred, if it did, some five years before Lyle’s birth, I was surprised that the mother chose to make the issue of it that she did, however it reinforced my impression of the mother and also suggested she was someone who was unforgiving.
49 Mr I, who was also an [officer in the defence forces who is currently serving],
was able to give some evidence about [service] policy to do with compassionate postings. As an officer he is a divisional senior and has initial responsibility for making recommendations up the chain of command for transfers where they affect the [staff] under his charge. I pointed out to counsel for the father that I could not accept Mr I’s evidence as being on behalf of the forces and that the same would only have value insofar as it related to his own experience in managing [staff] for whom he was responsible. That being said, Mr I’s evidence did point to one of the deficiencies in the presentation of the wife’s case about the full exploration of the options that may
[2009] FCWA 153
have been available to Donald upon being advised of his posting. I found Mr I
generally to be an impressive witness.50 Mr CR, [a departmental supervisor], gave evidence about the rostering of [staff].
There were limitations about the evidence he was able to give, however, he produced for inspection the detailed and complex rosters and spoke of the difficulties and complexities of arranging leave within the [department] given the ongoing and necessary obligation for adequate staffing.
51 Mr CR had been asked by counsel for the father to do an overlay of the father’s
rostered leave entitlements with the Eastern states school holidays. Mr CR indicated that there were only two occasions on which the father’s rostered leave coincided with the Eastern states school holidays over the next seven years. Although Mr CR did not know the particulars of the workings of the father’s roster, he was aware that the father had been able to manage a negotiated roster that gave him very close to time off for the duration of the period that the boys were with him.
52 Overall, I was significantly more impressed with the father and his witnesses
than I was by the mother and her partner and, unless I otherwise specify in these reasons, where there is a conflict between the evidence of the mother and her witnesses and the father and his witnesses, I prefer the evidence of the father and his witnesses.
The applicable principles
53 This is a parenting case that falls into the category of cases involving a proposed
relocation with the children by one parent. Prior to the 2006 amendments introduced by the Family Law Amendment (Shared Parenting Responsibility) Act 2006, the starting point for such cases was a consideration of the core principles that had developed from a series of cases as summarised by Boland J in her judgment in Morgan and Miles [2007] FamCA 1230. In discussing whether different principles were to apply following the amendments to the Act, her Honour said at paragraph 74 of her reasons:
“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 to obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
54 At paragraph 80 her Honour further said:
“It follows from my exposition of the legislation that the earlier core
principles:
- that the child’s best interests remain the paramount but not sole
consideration;- that a parent wishing to move does not need to demonstrate
“compelling” reasons;
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- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; - the child’s best interests must be weighed and balanced with the
“right” of the proposed relocating parent’s freedom of movement,remain valid.”
55 Relocation cases are simply cases that involve the court making a parenting
order where one of the parties proposes to relocate with the consequential impracticalities that inevitably arise in terms of the physical contact between the children and the parent “left behind”.
56 In this case the parents have previously agreed that they should share parental
responsibility. I interpret the orders that have been made in the past to mean that the
parties equally share parental responsibility.57 Given this, I must then also consider the consequences that flow from that
agreement. As observed by the Full Court in McCall and Clark [2009] FamCAFC 92:
“69. However, it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a) whether equal time (or substantial and significant time) with both parents would be in the child’s best interests; (b) consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5); and then (c) consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so …”
The Law
58 Section 60B of the Family Law Act 1975 sets out the objects and the principles underlying those objects that must be applied by the court determining parenting cases.
59 Section 60B provides:
(1) [Object of Part]
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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 (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) [Principles underlying object]
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).
60 Section 60CC sets out how a court is to determine what is in a child’s best
interests and further prescribes that I must, under s 60CC(4), consider the extent to
which each parent has fulfilled or failed to fulfil their responsibilities as a parent.61 As I mentioned earlier, this application proceeds on a premise of the acceptance of equal shared parental responsibility.
62 Section 65DAA requires the court to consider whether children should spend
equal time or substantial and significant time with each parent in circumstances where
the children’s parents are to have equal shared parental responsibility.
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63 Section 65DAA provides as follows:
Equal time
(1)
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)
consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)
consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)
if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents. (3) [Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
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(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. (4) [Subsection (3) does not limit other matters to which court can
have regard]Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant.
64 In Taylor and Barker (2007) FLC 93-345, comment was made by the Full Court about the approach to be taken in relocation cases and the need to give separate and real consideration to the children spending equal, or substantial and significant, time with each parent as a requirement of the amended Family Law Act, in cases where parents have equal shared parental responsibility, such as the case before me.
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65 However, if I conclude that the relocation should not be permitted, then a
separate consideration of the need to provide either equal or substantial and significant time becomes irrelevant as the current orders would continue which already make that provision.
66 Consideration of the relevant sections of the Family Law Act show in this case that a large number of the matters that are enumerated in the various sections to some degree overlap and to some extent, in this case, are not relevant.
67 The overarching principle is that prescribed in s 60CA, namely that in deciding
whether to make a particular parenting order in relation to a child, a court must regard
the best interests of the child as the paramount consideration.68 Fortunately, in this case, the issue of the need to protect either of the children
from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence, does not arise. Considerations that are relevant to Aboriginal or Torres Straight Islander children also do not apply.
69 In this case, the boys have not expressed an opinion to which weight could be
attached given their age and the absence of any properly structured enquiry as to their
wishes in the matter.70 The core matters relevant in these proceedings are considered below.
71 A consideration of these core matters will also of necessity involve a
consideration of the matters prescribed in s 60CC(4), which are directed to the extent
to which each parent has fulfilled or failed to fulfil responsibilities as a parent.
• the benefit to the child of having a meaningful relationship with both of the child’s parents.
72 This expression has recently been the subject of consideration by the Full Court
of the Family Court in McCall and Clark (supra) where the Full Court considered how a Court is to determine the benefit to a child of having a meaningful relationship with both of the child’s parents. The Full Court said this:
“118 It appears to us there are three possible interpretations of
s 60CC(2)(a):
(a)
one interpretation is that the legislation requires a court to consider the benefit of the child having a meaningful relationship with both of the child’s parents by examination of the evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)
a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children
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in having a meaningful relationship with both of their
parents (“the presumption approach”); and
(c) the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). 119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in section 60CC(2)(a) is “the prospective approach” although depending upon factual circumstances the present relationship approach may also be relevant. We note however that section 60CC(3)(b) requires a Court to explore existing relationships between a child and his or her parents and other persons including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in subparagraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
… 122. In reaching these conclusions we also consider the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship.”
73 There is no suggestion in this case that the children do not have a meaningful
relationship with each of their parents, nor is there any suggestion that there is not a benefit flowing to the children through them having such a meaningful relationship with their parents.
74 Despite reservations now advanced by the mother (to which I will refer later in
these reasons), the very nature of the consent orders that have been made between the parties in the past, particularly as to equal shared parental responsibility and as to the children spending now equal time with the parents, of themselves indicate that both parents hold the view that there is benefit to the boys in having not only a qualitative, but also a quantitative, relationship with each of the parents that is meaningful. It was also a common position in the parties’ written submissions that it was a benefit to the children to have a meaningful relationship with each of their parents and counsel for each of the parties, in the preparation of their written submissions, advanced that proposition, appropriately, on a prospective basis.
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75 Of the relevant factors in this case, the central issues are the ability and
willingness of each of the parties to promote a meaningful relationship with the other,
and the nature of the relationships the children have with relevant people.
• the nature of the relationship of the child with:
(i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
76 As I have just found (and as agreed between the parties), each of the children
have a meaningful relationship with each parent and it is to their benefit. All the evidence suggests that the children have an excellent relationship with each of their parents.
77 Similarly, the undisputed evidence is that the children enjoy a warm and loving
relationship with each of their respective grandparents. In the father’s case, his parents have been married for 45 years and have 14 grandchildren ranging in ages of between 21 years and 6 years of age, with the parties’ children, Lyle and Ken, being the youngest. They maintain regular contact with their paternal grandparents and have the opportunity of exposure to a broader extended family.
78 The undisputed evidence is that the children enjoy a close and loving
relationship with their maternal grandparents who live, presently, geographically close to the children. The mother’s parents have been married since 1966 and remain together. The mother is the youngest and only female child of her parents and her parents have overall seven grandchildren including Lyle and Ken.
79 The mother’s parents have made a significant commitment to assisting the
mother with care arrangements for the children and have proposed that they would move to Sydney to assist the mother in her care of the children in the event that she is permitted to take the children with her, although the mother was uncertain as to whether they would follow her and Donald upon and to any subsequent posting.
80 I do not doubt that the children share a loving and close relationship with their maternal grandparents.
81 Additionally, the boys have formed relationships with each of their parents’ new partners. Of his relationship with the boys, Donald says:
“7. I met [Lyle and Ken]early in the relationship and I believe that I
got on well with them from the beginning.8. Both boys were open and friendly and over time I believe the boys learned to trust and respect me.”
82 The mother describes the boys’ relationship with Donald in the following terms in her affidavit at paragraph 50:
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“[Donald] has formed a very warm and loving relationship with [Lyle and
Ken].”
83 The boys have also had the opportunity of forming a relationship with the
father’s partner, Kelly. Significantly, as part of the household of the father and Kelly there are also Kelly’s two girls, Elaine and Helena. The uncontested evidence, particularly of the witnesses who were not sought to be cross-examined, was that the boys, Kelly, Elaine and Helena all have a close, supportive and loving relationship.
84 Prior to introducing the boys to a blended family, the father and Kelly arranged
counselling sessions to assist the transition of the family and have been able to work cooperatively towards strategies managing the four children of their household. Kelly’s evidence about the developing and warm relationship between Helena, Elaine and the boys was not challenged. In her affidavit she describes examples of the nature of the relationship between the four children in the following terms:
“38. From early times in our relationship the four children used to spend time together and became very close. For example, on many occasions the girls would ask us to be allowed to take the boys for a walk to the local park. They would play in the playground there for a time and then bring the boys home. If [Ken] became tired, one of the girls would piggy-back him. Whether the girls were going to the local store, the local deli or to the local park they would always want to take the boys. 39. The girls’ friends also showed consideration for the boys. For example, [Ellen’s] then boyfriend [Tom] is a [special arts student] and a very talented artist. Upon learning that [Lyle] loves the Simpsons he drew him a picture of the cartoon family. On other occasions when [Helena’s] friend [Alex] has visited, both girls have taken the boys into the swimming pool and spent large amounts of time playing with them there. ... 43. When we went [north] in March the girls and boys joined up as teams as I was to have the week off from house chores. They had decided this between themselves. [Helena] and [Lyle] were a team and [Ken] and [Elaine] were a team. They worked together to wash and dry dishes and keep the camp tidy.”
85 I also accept Kelly’s evidence that the boys have been welcomed as part of her
extended family.
86 The mother has, regrettably, viewed the relationship between the boys and Kelly, in particular, as a threat.
87 The several examples that emerged during the course of the proceedings of the
mother’s attitude to Kelly and her misperception of her involvement in events cast serious doubts over the mother’s ability to separate her own issues from the welfare of the children.
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88 At the end of the fourth school term in December 2008, the father and Kelly had
provided each of the boys with a bunch of notes which included contact details for the boys to give their friends so that they could arrange play dates during the school holidays whilst the boys were residing at their father’s. Although none of the notes survived to be admitted in evidence, the notes included Kelly’s telephone number.
89 The mother took significant offence at the inclusion of her number, despite the
explanation by the father in an email to the mother that “the reason [Kelly’s] name is
on the note is because I am uncontactable so they have to ring [Kelly]”.90 The mother’s responses by email included the following:
“The next time your wife decides to organise play dates for our boys, she is to identify herself as the stepmother. A note was given to me by one of the mothers and they couldn’t believe that [Kelly] would do such a thing, when I read the note, it didn’t at all say she was the stepmother instead made out to be their mother.”
and further, in another email later on 1 December 2008:
“Have you even read the fucking letters, I bet you haven’t, because I wasn’t the one who pointed it out, if the note wasn’t shown to me, I wouldn’t have even known about it … read the fucking note before you mouth off to me … you don’t even know what [Kelly] does with our boys … that note didn’t say she was the stepmother, I now have the notes.”
91 In my finding the inclusion of Kelly’s contact telephone number on the notes
was not only appropriate, but also sensible to ensure play dates could be arranged for the boys, particularly given the nature of the father’s work where he was not easily available by telephone to make the arrangements. The mother’s response was inappropriate and disproportionate.
92 Similarly, there was an episode involving the boys inviting Kelly to participate in a careers day at school. In her affidavit Kelly describes the events as follows:
“35.2 In May 2008 [Lyle] asked me if I would go to his careers day at school and present a talk on the firm where she worked and the activities of a [mining] company. He was very excited at that prospect. [Lyle] had visited my office on a number of occasions and quite often he and [Ken] asked if they could come in during the school holidays. They have become familiar with the other office personnel and are fascinated when any of the geologists take the time to show them various collections of rock samples. As a result, I had collected pictures of mine sites, rock samples and a display of safety gear including boots, hats and overalls which I thought would interest the children. At the time [Mr R] advised [Ms S] about this event. … When [Ms S] found out about my participation she reacted strongly, for example, she texted me on a number of occasions stating “I can’t believe I’m reduced to begging – please
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don’t go”. I advised in response that she would have to deal with
[Mr R] on that issue.”
93 In her evidence it was apparent that the mother considered it entirely
inappropriate for Kelly to be involved and if she were to have been involved it should have been with her agreement and permission. As against that proposition however, the mother had organised for Donald to be involved in a careers presentation and she did not consider it necessary to seek permission or approval from the father.
94 It became increasingly apparent during the course of the trial that the mother
somehow views herself as holding a superior or preferred position to that of the father,
an aspect of her presentation which I will consider further in these reasons.95 To her credit the mother did send an email to Kelly apologising in the following terms on 5 March 2008:
“Hi [Kelly]
I hope you don't mind but I wanted to take this opportunity to email you and explain a few things.
First I want to apologise to you if I have caused you any grief over this past 12mths, that has never been my intention.
This is not excuses but explanations and I hope that you can understand things a little better after this email.
It has been so hard for me dealing with losing the boys for a whole week seen [sic] as though I have been their primary care giver for such a long time, it also hurts and I am sure [Mr R] has told you, that you get spend [sic] the exact amount of time with my boys as I do and I am their mother, I raised them for 6 years. I hope you understand that its [sic] not a personal attack against you I just want to be honest with you.
I am losing out and [Mr R] is gaining it just all seems a little unfair.
I still have a lot of separation anxiety issues to deal with and in time I am sure everything will be okay.
I just want what's best for the boys and I guess spending equal time with both parents is a good thing in the long run, I just have to cope that you are apart of my boys life to [sic].
I love my boys more then anything [Kelly], and I will do anything so they have a happy life, and with me and [Mr R] fighting and bickering cant be a good them or for any of us, so someone had to make it stop and I guess that had to be me.
I am sorry for everything and I hope with this explanation will give you some idea what I have been through and what I am still experiencing. Hopefully the psych will put everything into perspective for me.
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I just didn't want you think that I am a bad person.
Have a great day.”
96 However, four months later the mother emailed the father in the following terms:
“[Mr R] you have to understand I am their mother, I gave birth them [sic] pretty much raised them by myself, because you were never around, to busy going out with your mates. You once said to me that when they are babies you didn't want anything to do with them, but when they grow you want to be in there life, OMG can you imagine how that made me feel, and to think that you were right, you didn't have to do any of the hard work, but reek all the benefits, I was a single mother working full time. Remember it was your choice not have weeks about when there were babies.......
[Mr R] I am begging you please give me my boys back, I cant do this, it wont get any easier for me, I need them, you don't know what I am going thru, PLEASE CHANGE YOUR MIND [MR R] PLEASE, I WILL DO ANYTHING, I need them back with me, please [Mr R] I miss them soooo much .... [Kelly] just rang me telling how wonderful [Lyle] is doing in his homework......do you know how much that hurts me, that should me doing
his homework not [Kelly], don't get me wrong I am grateful for [Kellys] [sic] efforts with [Lyle], but that's my job. I love them sooo much [Mr R] more then you can imagine, you new how much I wanted children, you didn't even care if we had them or not, why are you taking them away from me..........please [Mr R]
or can we change the arrangement, can I maybe have them an extra couple of days, please [Mr R], I have given you this 12mths please give me something in return ..........”
97 These emails served only to reinforce the concerns I have and the conclusions I
have reached about the mother’s inability to separate her needs from those of her
children, to which I will refer further in these reasons.
• 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
98 This factor is probably the most significant in this case and also involves a
consideration of the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent and their attitudes to the children and the responsibilities of parenthood. Inevitably, in circumstances where a relocation is proposed these three factors will be central to the decision and overlap.
99 The mother proposes that if she is successful with her application that she would
relocate in January to enable the boys to start the 2010 school year at [the local
school].100 She goes on to observe in the following paragraph of her affidavit:
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“65. The child [Lyle] continues to struggle at school. Generally his behaviour on handover days is quite poor. He swears in class, he has been in trouble for fighting and has anger issues. He has temper tantrums and has had to visit the Principal’s office in the past term.”
101 She goes on to comment in paragraphs 68 and 69:
“68. Even if I am not permitted to relocate it is my view that the current arrangement for the week about time is not working in the best interests of the children. 69. The children were used to being in my primary care but since the week about arrangement has been in place the children have had various problems in adjusting to it and it is my view that [Lyle’s] problems at school are caused by the effect the shared care arrangement has had on him.”
102 I accept that the father has taken an active interest in the boys’ schooling and in
2007 wrote to the principal enquiring about issues to do with Lyle’s behaviour that had been raised by the mother, about which he had not been otherwise aware. In an email dated 10 May 2007, the school Principal wrote to the father in which she included the following relevant to the boy’s behaviour:
“I have informed both [Ms S] (Lyles’] teacher) and [Ms G] (Kens’] teacher) to keep you fully informed of any issues that may arise. Yes, there were some behavioural issues with [Lyle] last term but these have been resolved. The boys’ classrooms teachers are in the best position to inform you of their progress. Would you like them to phone you?”
103 [Ms S], [Lyles’] class teacher, subsequently wrote to the father in July 2007:
“[Lyle] began the year, as some children do, by pushing the boundaries to see how far he would get. The main concern was serious and play fighting as well as inappropriate language. [Lyle] was not alone with this behaviour.”
104 She goes on in her letter to talk of Lyle in very positive terms and then adding:
“The only negative thing I can say about [Lyle] at this stage is he often gets into trouble for talking at quiet listening times. More often than not he is simply talking to his friends about his great ideas and imaginative stories. Sometimes [Lyle] needs to be reminded to follow instructions such as stopping play to get ready for another activity.
105 In June 2009 [Ms W] reported as to the boys’ school conduct:
“I was [Lyle R’s] Year 1 teacher in 2008. I am currently [Ken R’s] Year 1
teacher.
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[Lyle] and [Ken] are active and confident young men. They both have a great sense of humour and like to have fun. They are generally well behaved but like all young boys they have times when their behaviour slips. [Lyle] made great improvements academically and behaviour-wise over the year. [Ken] has developed academically and he is working on improving his concentration in class. Both boys are generally happy in the classroom and are keen learners; they participate in joining with others.
Overall I believe that [Lyle] and [Ken] are average young boys who are developing academically, socially and behaviourally.”
106 The boys’ school reports would appear to support Ms W’s conclusions that the boys are making sound academic and personal development progress at school.
107 Contained in the school file was a list of various misdemeanours committed by
Lyle in 2009 and whilst it seems that Lyle had somewhat of a sticky patch between 9 June 2009 and 1 July 2009, when poor behaviour was recorded on six occasions, there have otherwise been significant gaps between his reportable behaviour. Of the nine reported incidents only two occurred on a Wednesday.
108 Ken it would seem does not experience the same level of behavioural concerns
which may simply reflect that the boys have different personalities as one would
expect.109 Certainly, the parents have sought appropriate involvement in dealing with
Lyle’s behavioural issues, for example, involving the school social worker, [Ms S], in
2008.110 Amongst other things Ms S reported that during her meeting with the mother on
23 July 2008:
“[Mrs S] expressed personal difficulties with the 50/50 custody arrangement. She stated that she missed [Lyle] and [Ken] very much. She identified her partner, parents and other informal support persons as helpful. [Mrs S] stated that the separation and particularly the custody arrangements had negatively impacted upon her psycho, social and physical wellbeing. She stated she was seeing a psychologist for these issues. I offered some additional psycho social strategies to consider.
[Mrs S] stated there was animosity between herself and [Kelly]. I formed the belief that the conflict appeared to be primarily around parenting and the mothering role particularly on access of the custody weeks.
Both parties agreed that the school social worker could see [Lyle] on an ad hoc basis with a focus on behaviour and education within the classroom setting.”
111 The involvement of the social worker was brought about through the initial
written referral of Ms W. Both parents are to be recognised for their appropriate
involvement in the process.
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112 There is however another troubling aspect about the school records. On what
appears to be Ken’s kindergarten enrolment form the mother’s details are set out in full, including her name, religion, address, home phone, employer, occupation, business phone, mobile phone. On the father’s particulars his first and surname appears and nothing else.
113 The father is not included as an emergency contact person. Similarly, on a data
collection form for the school the occupation group of the male parent/guardian is
marked as “N/A” whereas the mother has completed hers.114 Whilst I accept that the father may not be a full supporter of the boys having a
religious education, I accept that he has appropriately communicated with the school and been involved. I do not ignore the fact that the payment of fees is an issue between the parties and that the father does not contribute, however not to record the father as an emergency contact or provide any of his telephone numbers, particularly when the children are living with him for 50% of school term time, is not, in my assessment, demonstrative of responsible parenting on the mother’s behalf.
115 Another aspect about the mother’s concerns about the children’s stability and
behavioural issues arise from the expectation of both the mother and Donald that the [current] posting is likely to be only for three years and thereafter could be followed by postings to other [diverse] places within Australia … although unlikely, on the evidence of Donald, Perth.
116 It is unlikely that any issues either of the boys have with behaviour problems
would improve with the potentially regular disruption of their schooling and social connections attached to their schooling, that may occur as a result of employment with the Defence Force, which Donald contemplates will continue until his retirement.
117 There are one or two other issues that arose during the course of the proceedings
which I consider particularly relevant to the consideration of this application.
Telephone calls to the boys by the mother
118 The father has no objection to the mother telephoning the boys during times that
they are in his care. He does however make a complaint that the mother uses these opportunities to undermine or otherwise disrupt his time with the boys and at the same time distract and upset them.
119 By way of example, the parties took what I consider to be a cooperative
approach to whether or not the boys would be taken to the Royal Show. There was communication between the parties and it was agreed that the father would take the boys to the Royal Show in 2009.
120 The mother’s response, however, was inappropriate in that in telephone
communication with the boys she indicated that she would take them to Adventure World. The father’s evidence is that whilst on the phone with the mother Lyle then logged onto the Adventure World website and was going through the various rides with the mother. The focus then became not a cooperative decision about the boys enjoying the Royal Show and then separately an event with the mother, but rather the
[2009] FCWA 153
creation of a distraction from what should have been a pleasant event and an outing, going to the show, then to be followed with an outing when the children returned to their mother.
121 Of note, the mother at the time of trial had not taken the boys to Adventure
World and although I accept that the weather has not been warm enough to do so such that the boys could enjoy the water rides, the time lag simply serves to underscore the absolute lack of need for the mother to have involved Lyle in the discussion that she did.
122 The father complains that the mother will frequently telephone the boys and say
that there is a “surprise” for them when they return to her home. Needless to say the boys’ curiosity is aroused and I accept that on some occasions they have become distressed to the point where they are begging their mother to tell them what the surprise is. It is my view that the mother was seeking to undermine the time the children were spending with their father.
123 In a similar vein the mother told the boys, during a telephone call when living
with their father, that they would be going to the movies upon their return. Some time was then expended with Lyle on the Internet running through the various movies to determine with their mother which film the boys would see. Again, a disruption and the degree of involvement was unnecessary.
Easter 2009
124 Other examples were given during the course of the trial, however one of the
most significant in my finding related to the events surrounding Easter of 2008 and
2009.125 Under the provision of the Consent Orders the mother was due to have Easter
2008. She was hospitalised on Maundy Thursday and over the Easter weekend. She, appropriately, contacted the father and asked him to look after the boys, which he did, and I accept the evidence of the father in this regard. The father had booked to take the boys to [a resort] from 8 to 14 April 2009, which included Easter. He says the arrangements had to be made more than 12 months in advance to secure accommodation. He was entitled to make those arrangements given the orders provided that he have Easter for 2009.
126 On 17 March 2009, the father emailed the mother about an issue to do with
Ken’s school work. In the email he referred to a note received from the school about some difficulties that Ken was experiencing and remedial steps that had been suggested by the teacher. He also raised an issue about Lyle’s “processing disorder” that had been the subject of an earlier auditory report.
127 The father took the opportunity to remind the mother that he would be taking the
boys to [the resort] from the 8th to 14th which included Easter and set out a rough
itinerary, including mentioning that they would be visiting his sister in [the region].
128 The mother’s response was as follows:
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“I’m sorry [Mr R] I would like to remind you that the boys are with me this year for Easter, you had the boys over Easter last year and at the time you said I could have them this year; you never said anything to me about [the resort].
[Lyle] hasn’t got a processing disorder that was diagnosed last year. The report determined he doesn’t have one his current behaviour is something totally different which I am looking into.
Why the sudden interest in Lyle and Ken’s education, it seem [sic] all a little convenient to me.”
129 In response to that email the father wrote to the mother reminding her of the Consent Orders and the provision for Easter. He goes on to say:
“Last year the boys were at my house as you were in hospital. I would remind you that I worked the entire Easter and [Kelly] looked after the boys. From memory you either picked them up that day or [Donald] brought them in to see you. I booked this trip more than 12 months ago as we had to book it then to get in as it is always sold out over Easter and as this is what I am doing for my 40th birthday and have other friends going.
I find it extremely unlikely that I said you could have Easter this year.”
130 The email then went on to consider some further issues regarding informing the
school about the enquiries that had been made about Lyle and his auditory processing
problems.131 There are two features that emerge from the exchange. Firstly, the mother’s
assumption that because the father was available to care for the boys at short notice when she was hospitalised he had forfeited the right to have Easter in 2009. I accept there was no agreement to that effect, particularly given that the booking had been made greater than 12 months previously. Secondly, the expressed distrust of the father in his raising of appropriate matters to do with the children’s education. I expect and understand that to some degree the distrust arises in the context of the mother wishing to relocate to Sydney, however there is also a negative undercurrent in terms of her perception of the father having any meaningful role in the boys’ lives. Rather than accepting it for what it is, the mother chooses to paint it as “window dressing”.
Extra-curricular activities
132 One of the differences that exists between the parties is that the father is
passionate about sport, the mother is not so. The parties have previously agreed that the involvement of the children in extra-curricular activities should not be undertaken unless there is agreement between the parties and that agreement is confirmed in writing. Such an agreement between them is entirely appropriate.
133 The mother complains that the father has enrolled the children in Auskick
without discussion and the mother’s consent. The father disputes that and says there was discussion and agreement in 2008 about enrolment of the boys in 2009 and it was too late at the time to enrol them in the 2008 season.
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134 In contrast, the father complains that the mother has enrolled the children in
activities without his consent, but particularly in modelling and soccer. The mother denies enrolling the children in modelling and denies enrolling the children in soccer without the father’s agreement.
135 I find that the mother deliberately misrepresented the situation to the Court about these matters, and needlessly so.
136 Unfortunately, her misrepresentations were found out and emails were tendered
into evidence. In particular, the mother sent an email to the father on 3 September
2009 in the following terms:“Hey [Mr R]
The casting agency just called me and few [sic] people are interested in the boys.
[Ken] has been selected for two commercials one with … and other one
with … he has also been selected for a mini series called …….
Lyle has been selected for [a clothing company] for their catalogue and
…….., he has also been selected for the same mini series.I should know by the end of the week, if they get chosen for casting or an audition.
Howe great is that…[Lyle] might get his wish after all………”
137 There is nothing wrong with the enthusiasm expressed by the mother in the
email, the issue is her own failure to abide by the agreement, about which she accuses
the father of breaching.138 Similarly with the boys playing soccer. On 23 April 2007, the mother emailed the father in the following terms:
“Hey [Mr R]
I just wanted to let you know that [Lyle] has a good chance of joining the [local] Soccer Club, we are taking him to training this Thursday nite [sic] to see if he can join the team, if he can he has a game this Sunday so you or [Kelly] will have to bring him down, to my understanding this is in the consent orders.”
139 The father responded:
“That will be fine, but don’t book him in for another sport over my
weekend.”
140 The mother then responds:
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“Thank you but it’s not just over your weekend he’ll have games every
weekend … so it can’t be helped sorry.”
141 This is just the sort of activity that the parties had agreed they would not commit
to without the prior agreement of the other. What is of concern to me about these incidents is that they underscore and are indicative of the position that the mother adopts that her “position” or role with the children is somehow superior to that of the father and that his relationship with the children and, more importantly, the children’s relationship with him, is subordinate to the children’s relationship with her. They are also indicative of the mother having a disregard for the relationship between the children and their father.
142 Further examples of the wife’s inappropriate behaviour involve the mother
attending at school and telephoning the school during the week that the boys spend with their father. The father’s perception is that the mother is “white-anting” or otherwise interfering with the time the boys spend with him and such contacts have a destabilising effect on the boys. Whether the boys are destabilised or otherwise by such contacts, they are indicative of the mother’s inability to separate her needs from those of the children and the contacts are made, in my finding, to satisfy her needs and could be perceived as being likely to have some destabilising effect on the boys. They also indicate in my finding a failure in the mother to recognise the security that the boys have in their relationship with their father.
• the capacity of:
(i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and
intellectual needs
143 To a very large extent, I have already considered matters that are relevant to this
factor. Of particular concern to me, however, is the mother’s apparent inability to separate her own emotional needs from those of the children and where she has taken steps to transpose those needs onto the children. As I have outlined above, I am not satisfied that there is any benefit to the children in her doing so, indeed, the children’s confidence in their relationship with their father could be undermined.
144 To that extent, and to the extent to which I have referred to matters relevant to
this heading earlier in this judgment, I do have some concerns about the mother’s ability to meet the children’s emotional needs, purely because she cannot separate her own emotional needs it would seem from those of the children.
145 I otherwise had no concerns about any adult who is significant in the lives of
these children being unable to properly foster the children’s emotional and intellectual needs and I particularly include in such a consideration the parties’ respective partners and the children’s respective grandparents.
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• the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
146 As would be expected in a case involving a proposed relocation, this factor
would be a matter that would require separate and detailed consideration, as clearly the proposal by the mother to relocate would significantly impact on the children’s ability to maintain direct contact with their father, in the event that the mother was permitted to relocate. However, given the decision I have reached in this matter, I do not need to give these matters separate consideration.
Conclusion
147 Whilst I do not find that the mother’s application lacks bona fides, I do find that
the mother has overstated the position insofar as the need for Donald’s accepting the
posting to [the Eastern states].148 It is not without some significance in my finding that Donald had in fact
requested a discharge from the [forces] prior to the posting being offered. He had presented his application for a discharge prior to the collapse of the world financial markets. He was optimistic of obtaining employment in the private sector in human resource management.
149 He withdrew his discharge as a result of the change in economic circumstances and was then advised that he would be posted to the Eastern states.
150 It forms part of the mother’s case that she represents that he needed the posting to further his promotion opportunities in the [defence forces].
151 Donald is a [senior officer] with a category of [a management team]. He is not
yet in “the zone” to be considered for promotion ….. He still has at least one course to undertake and even on his best estimate the earliest time that he could be appointed [to a higher level] would be 2013, assuming he was appointed over and above other applicants in the first year that he was in “the zone”, ie: eligible for a appointment.
152 Donald now does not contemplate leaving the [forces] until he is due for
retirement, which he states is at age 55 (although that is not a compulsory retirement
age) or at least five years.153 Were Donald to now apply for a discharge he could serve out his discharge
period in Western Australia. It appears that notwithstanding the improving economic climate that Donald has not reconsidered his option of a discharge. That of course is a choice that is up to him and no criticism can be made of him for making prudent choices, having regard to the prevailing economic circumstances and the reality of him obtaining employment in the private sector. What is of concern is the way in which it has been represented and the presentation of Donald in terms of his “contract” which could be construed as being quite misleading.
[2009] FCWA 153
154 Overall, I am not satisfied that the mother will promote a relationship between
the children and the father and that the opportunities available to her with the benefit of distance will facilitate her further attempts to erode that relationship, a situation in my finding that would not be in the best interests of the boys.
155 There have clearly been difficulties in the past and I accept that at times the
father has adopted a posture of “his rights” in his desire to achieve a situation where the parents share not only responsibility for the children, but also the children share their time with each of their parents. He has, in support of that ambition and with the support of his now partner, made decisions, for example, as to where they have purchased their house, to achieve a balance between the needs of Kelly’s children and the father’s children.
156 The father proposes that if the mother wishes to move to the
Eastern states in any event, then he is happy for the boys to live with him and spend school holiday time with their mother in the Eastern states. The mother is adamant that she would not move and I accept she would not.
157 I accept that it is not practical for the father to move, as to do so would cause a
significant disruption to the children’s broader relationships, Kelly’s family and the secure and certain employment that he has been able to arrange to accommodate the care arrangements for the boys.
158 Further, were the boys to move to the Eastern states I am not satisfied, given the
concerns about behavioural issues that have already been raised by the school, that they would necessarily cope well with the inevitable disruption to their education and social environment, with the prospect of the same having to be repeated in three year’s time.
159 The effect of my decision, however, is not to completely isolate Donald from the
family as he is able, through the facilities of the [defence forces], to have six return trips to Perth paid for by the [force] per year, he has leave with the [forces] and subject to any “reduced activity period” affecting his particular posting, is more likely to be available to spend time in Western Australia at Christmas time. Further, Donald gave evidence of accommodation through the [forces] being available at low or no cost for times when the wife and the boys visit.
160 How such an arrangement would fit with any commitments or obligations
Donald has with other members of his family I do not know as no evidence was presented about this topic.
161 On balance therefore and for the reasons I have given I propose that the application by the mother be dismissed.
162 I also propose to order that the parties each attend a “Mums & Dads Forever”
course. I consider it appropriate that each of the parties’ partners also attend but, of
course, I cannot order them to do so.
[2009] FCWA 153
Proposed order
1. The parties do each attend a “Mums & Dads Forever” course, as soon as practicable.
2. The application filed by the mother on 26 March 2009 otherwise stand dismissed.
I certify that the preceding [162] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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