SD and T

[2008] FCWA 31

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SD and T [2008] FCWA 31

CORAM: PENNY J

HEARD: 15, 16 & 17 SEPTEMBER 2007

PUBLISHED : 14 MARCH 2008

FILE NO/S: PT 2454 of 2005

BETWEEN: SD

Applicant/Father

AND

T
Respondent/Mother

Catchwords:

Children's issues - relocation - wife wishing to relocate to country town - highly conflictual situation - one child living with each parent - wife allowed to relocate

Legislation:

Family Law Act 1975 - s 60B, s 60CA, s 60CC(2) and (3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Hooper

Respondent: Mr S Jones

Solicitors:

Applicant: GK Family Law

Respondent: Leach Legal

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

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

AMS v AIF;AIF v AMS (1999) FLC 92-852

Bolitho and Cohen (2005) FLC 93-224

M and M [2007] FCWA 47

Morgan & Miles (2007) FLC 93-343

U v U (2002) FLC 93-112

1The husband, [Mr DS], and the wife, [Ms T], live in [a South-west town]. There are two children of their relationship, [S] and [A] aged 10 and 6 years respectively.

2[Mr SD] and [Ms T] separated in April 2005, when [Ms T] decided she did not wish to continue in the relationship. Up until that time they had been a hardworking couple who loved their children and provided well for them. There had never been any concerns about the children or the manner in which they were raised, and there was certainly no involvement by the police or any other authorities in their lives.

3After separation this changed dramatically. The Police, the Department for Child Protection and the school each became involved with the family and their dispute. Matters were so serious that all of these agencies met in an attempt to develop a strategy to control [Mr SD] and [Ms T]’s behaviour, so as to protect the children.

4There is no doubt in my mind that the manner in which both [Mr SD] and [Ms T] have involved the children in the dispute between them is abusive and, in the case of [S], has caused him psychological damage.

5[S] now lives with [Mr SD], and [A] lives with [Ms T]. [Ms T]’s relationship with [S] since separation has been poor. This has resulted from her conduct towards him, which I will detail later, and [Mr SD]’s conduct in encouraging [S]’s “them and us” attitude.

6[A] has a reasonable relationship with [Mr SD], but [Ms T] has put a stop to overnight mid-week contact. In doing so, she says she is complying with [A]’s wishes and, in any event, [A] is, she says, tired after the mid-week sleepover. I have no doubt that she tells [Ms T] she does not want to go on mid-week overnight contact because she knows this is what she wants to hear. This puts [A] in a difficult position as she wants to please both parents.

7It is within this complex family dynamics that [Ms T] brings her application that she be able to relocate from [the current town in [the South-west town] with [A]. At trial she sought to relocate somewhere in the South West of Western Australia within a distance up to 400 kilometres from [the current town]. She now seeks orders that she be able to relocate to [a Regional centre].

8[Mr SD] opposes this application. He is not opposed to the children’s living arrangements remaining as they are, that is, that [S] live with him and [A] live with [Ms T], but only if [Ms T] and [A] remain in [the South-west town]. He says that if [A] is living in [the Regional centre] with [Ms T], the children will rarely see each other and this will not be in their best interests. Further, he says [Ms T]’s relation with [S] is not good and that [S] is unlikely to visit her in [the Regional centre].

9[Mr SD] says that for at least the next two years, when [S] will start at high school, [A] should remain in [the South-west town] so that she and [S] can attend the same school and at least see each other in that environment.

10[Ms T] says that if she is able to relocate, [A] should spend alternate weekends in [the South-west town] with [Mr SD] and [S] and [S] should spend the next and each alternate weekend with she and [A] in [the Regional centre]. She further states that [A] should spend time with [Mr SD] for four weeks of the school holidays each year, and by telephone on three occasions per week. [Mr SD] proposes that if [Ms T] remains residing in [the South-west town], [A] live with her. He proposes the children spend each weekend with each other and periods during the school holidays.

11At the cessation of the trial I reserved the issue of the wife’s relocation to enable the parties to have some counselling in [the area]. Neither party had attended counselling in the past, even though it was recommended by [Dr W], the court appointed expert. I had hoped that the parties might learn some skills so that they might make decisions in relation to their children themselves, rather than involving the rest of the community. I also suggested the parties forward to the Independent Children’s Lawyer a minute setting out their respective positions with the hope that some agreement might be reached through mediation with him.

12The parties were able to negotiate, in relation to the Christmas school holidays, the time both [Mr SD] and [Ms T] were to spend with the children. The wife’s time with [S] was to be subject to his wishes. [Ms T] advised that she intended to reside in [the Regional centre] over the school holidays. Her position as an employee of the [local day care centre] was no longer available. Her rental accommodation had been placed on the market for sale and she had no other rental accommodation. She had been offered a position in [the Regional centre] as a child care worker for the school holidays. She was able to find short-term accommodation in [the Regional centre] during that period and relocated with [A].

13As of January 2008 [Ms T]’s case was that she wished to relocate to [the Regional centre] permanently. She has employment, she is satisfied she will be able to find suitable accommodation for herself, [A] and [S] when he visits, and has obtained a place for [A] at [a local school].

14An Independent Children’s Lawyer was appointed to represent the children. The Independent Children’s Lawyer’s position after trial, and after [Ms T] had particularised her arrangements, was that the relocation of [Ms T] and [A] to [the Regional centre] was in the children’s best interests.

15On 1 February 2008 I made orders allowing [Ms T] to relocate to [the Regional centre] with [A]. These are my reasons.

The law in relation to children’s issues

16S 60B of the Family Law Act 1975 sets out the objects of Part VII, that is the part of the Act dealing with children, and the principles underlining the objects. S 60B states as follows:

“(1)The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

17S 60CA provides when deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration. S 60CC(2) and (3) sets out primary and additional considerations I must take into account when determining what is in the child’s best interests.

18In A v A: Relocation approach (2000) FLC 93-035 the Full Court set out the manner in which an application by a party to relocate with the children should be dealt with. The Full Court considered what binding principles of law had been established as a result of the High Court’s consideration of a matter involving the relocation of a child. In AMS v AIF; AIF v AMS (1999) FLC 92-852. The Full Court stated in A v A (supra):

“64. In our view, the following binding principles of law were established by a majority of the High Court in AMS v AIF ; AIF v AMS (supra):

•In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.

•In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence ''contrary to the proposition that the welfare of the child would be better promoted by'' maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gummow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).”

19The Full Court went on to set out the manner in which a relocation should be determined. The following matters had to be taken into account:

•The Court was to evaluate each of the proposals advanced by the parties.

•The Court cannot proceed to determine the issues in a way which separates the issue of relocation from the residence and best interests of the child.

•In determining a parenting case that involves relocation, there must an evaluation of the competing proposals by weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

•In determining which proposal best promotes the best interests of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975.

•The Court must consider the various matters then set out in s 68F(2).

•In determining a parenting case that involves a relocation, neither the applicant nor the respondent bears an onus of establishing that the proposed change best promotes the best interests of the child.

•It was important to take into account a party’s right to a freedom of movement.

20In Bolitho and Cohen (2005) FLC 93-224, the Full Court referred to the High Court decision in U v U (2002) FLC 93-112, and stated that this “ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A”. The Full Court at paragraph 72 in Bolitho and Cohen (supra) stated as follows:

“ …the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”

21Since the above decision there have been legislative changes to sections 60B and 68F of the Family Law Act 1975. There is an issue as to whether those legislative changes have impacted on the matters I must now take into account when dealing with such applications.

22In addition to the changes to the legislation referred to previously, there is additional legislation which is relevant to this application and must be taken into account.

23S 61DA of the Family Law Act 1975 states that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, except in cases of abuse and family violence.

24S 65DAA(1) states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether spending equal time is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each parent.

25S 65DAA(2) states that if there is an order for shared parental responsibility for the child and the Court does not make an order for equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parties would be in the best interests of the child, and whether it is reasonably practicable, and if it is, to consider making such an order.

26Richard Chisholm, in his paper “The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview” presented in May 2006, argues against the fact that the amendments to the Act have created a presumption against relocation, or that a proper application of the law, both before or after the amendments, would create a different result. He notes that there is nothing in the new legislation explicitly relating to relocation cases. The explanatory memorandum and other background documents do not make it clear that the amendments were intended to change relocation outcomes.

27Thackray CJ in M and M [2007] FCWA 47 commented:

“18 In enacting the 2006 amendments, Parliament has provided more guidance to the Court about the matters to be taken into account in discharging its fundamental task of establishing what is in the best interests of children. It has also directed the Court to consider certain possible outcomes before determining the outcome that best suits the needs of the individual children who are the subject of the proceedings. Had Parliament wanted to go further, it could have done so. Instead, it left the ultimate determination to the Judge hearing each case on its unique merits. To borrow the phrase of the Full Court in B & B, the Act still contemplates individual justice. Accordingly, my objective is to ensure I treat the best interests of [the children in this case] as the paramount consideration – i.e. what is best for them will be the final determinant.”

28In Morgan & Miles (2007) FLC 93-343, Boland J, when discussing whether different principles were to be applied in determining a parenting order after the amendments to the Act, stated as follows:

“72.There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.”

She went on to say:

“74.The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”

29I agree with these comments, but note that the amendments make it clear that there is emphasis on both parents having an input into their children to the maximum extent possible consistent with the children’s best interests.

Best interests considerations

Primary considerations

30Pursuant to s 60CC(2) the primary considerations when determining what is in a child’s best interests are the benefit to the child of having a meaningful relationship with both the child’s parents, and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. It is [Mr SD]’s case that if [Ms T] relocates to [the Regional centre] she will not develop a meaningful relationship with [S]. I shall deal later with the history of the wife’s interaction with [S] since separation, and the difficulties with that relationship. Up until the trial in October 2007 [S] had been spending some periods of time with [Ms T]. The orders allowing for the parties to spend time with the children made on 20 December 2007 allow for [S] to have up to a week at a time with [Ms T]. I do not have any evidence as to whether [S] did spend this time with her.

31[Mr SD] states that if [A] lives in [the Regional centre] he will not have a meaningful relationship with her and will not see her. I do not agree with this proposition. [A] has always attended for alternate weekend contact with [Mr SD]. She has not attended for overnight contact on Wednesdays since the beginning of 2007, but has often attended until 8.00 pm. [Ms T] has let [A] decide whether she wishes to go overnight on mid-week contact. It is not for [A] to be making that decision. I will deal with this issue later in this judgment.

32If [Ms T] was able to relocate to [the Regional centre], it may well be appropriate to make such an order on an interim basis only so as to ensure that [A] does spend regular time with [Mr SD], and that [Ms T] complies with orders.

33[Ms T] has stated that she will not relocate unless permission is given for [A] to relocate with her. Her proposal as to the time she would spend with [S] if she resided in [the South-west town] is that she would like to spend time with him fortnightly. She stated that she did not want to spend time with him weekly as she would find it too disruptive. If [Ms T] stayed in [the South-west town], I am not sure that her relationship with [S] would be better or more meaningful. She is not likely to see [S], for lengthy periods, more frequently than she now does.

The need to protect the child from physical or psychological harm

34I am satisfied that whether both children live in [the South-west town], or [A] lives in [the Regional centre], that neither child is going to suffer from physical harm. There is, however, a real prospect, wherever the children live, that if [Mr SD] and [Ms T] do not modify their behaviour, which I will describe at some length later in this judgment, the children will suffer from psychological harm. The conduct of both parties in relation to [S], in particular, has been shocking and has resulted in him suffering psychological harm and deep distress from time to time.

35The additional consideration, which I must consider when determining what is in the children’s best interests, are as follow.

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

36Since July 2005 [S] has mainly lived with [Mr SD]. [Ms T] attempted on a number of occasions between July and September to have him returned to her care. The effect of these attempts, which I shall detail later, caused significant distress to [S] and, I have no doubt, has impacted upon his desire to reside with [Mr SD].

37Only on one occasion has he said he wanted to live with [Ms T] and that was in the following circumstance. In September 2005, after having spent a weekend in [Ms T]’s care, [S] told [Mr M], a field officer with the Department for Community Development in [the South-west town], that he wished to live with [Ms T]. At this time [Mr M] described him in his report, which was exhibit “ICL.1” at the trial.

“He was extremely subdued. He would not give eye contact and he was nervous. He kept his head down and responded to questions in a monosyllabic, robotic manner. He continuously twisted a library bag cord around his fingers. He broke all the leads of his propelling pencil into small pieces… He said he had changed his mind and he wanted to live with his mother. He displayed no positive emotion when he said this and I felt the statement was rehearsed… I felt [S] was seriously traumatised after his weekend with his mother. I immediately made a referral to Department counselling psychologist [Ms O] to conduct an assessment.”

38Four days after this interview with [Mr M], [S] again spoke to him. He was described as being much improved in his attitude and demeanour, and told [Mr M] he wanted to stay with his father. When [S] was interviewed by [Dr W] at the commencement of 2006 he was firmly of the view that he wished to live with his father.

39[Dr W] was appointed Single Expert to report on the dynamics of this family and give advice as to the manner in which the matter could be resolved. He has interviewed [S] and [A] on at least two occasions. The last appointment was in April 2007. At this time [S] was increasingly focussed on negative aspects about his mother. At that time he stated that it was good living at his father’s because he did not get pushed around or shouted at. [S] eventually walked out of this interview with [Dr W], but before he did so, [Dr W] asked him what would be best for him. He stated that “all which is best for my family is mum to be out of the family”. He went on to say “I want a family that’s my sister, my dad and me, that’s all”.

40At the same time [A] was interviewed. She was aged six at this time. She indicated that she would like to move, although she did not know where she was moving to. She stated that wherever she was moving to there was a big under cover swimming pool and that was her favourite thing to do. She stated that she knew her father did not want her to move because he would never see her again.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

41[S] has a very close relationship with [Mr SD], but has a very poor relationship with [Ms T]. This poor relationship has come about as a result of [Ms T]’s conduct towards [S] and [Mr SD]’s involvement of [S] in the proceedings. Also of significant concern is the fact that [S] is exposed very regularly to [Mr SD]’s parents. [Mr SD]’s father, [V], was dismissive of [Ms T] and her abilities as a mother. He could say nothing good about her. When asked to give her a mark out of 10 for her parenting abilities, he gave her 0/10, and [Mr SD] 10/10. He finished his assessment by stating that if he lived for 200 years he never wanted to see her again. He described [Ms T] as having no respect and very rude. Given the manner in which [V] gave his evidence and the dynamics of the [SD] family group, I have no doubt that [V] voices his opinion of [Ms T] in front of [S]. This type of conduct is not in [S]’s best interests and does nothing to promote his relationship with his mother.

42After the parties separated in 2005 [Ms T]’s conduct in relation to [S] was inappropriate and caused him trauma. Upon separation the children first lived with [Ms T]. [Mr SD] reluctantly left the family home and lived with his parents, and agreed to a month long separation. A few weeks after the parties separated [Mr SD] moved back into the home and refused to leave. [Mr M] of the Department for Child Protection was attempting to mediate contact arrangements between the parties. On 10 May [Ms T] obtained an interim violence restraining order against [Mr SD] which had the effect of ensuring that he moved out of the family home and stayed with his parents.

43In July [Ms T] moved out of the former matrimonial home into a rental property in [the South-west town]. In July, after [Ms T] had moved out of the family home, [S] stated that he wished to return and live in [Mr SD]’s care. An incident occurred on 21 July when [S] was delivered to [Ms T]. [S] initially refused to go into [Ms T]’s home, but was finally taken inside by [Ms T]. Later that evening [S] and his bags were placed outside the house and [Ms T] locked the door. When [S] was locked outside [Ms T] told him that “you’re not my son anymore” and “I don’t want you”. [S] later recounted this incident to [Mr M] and was very upset about it. [Mr SD]’s parents collected him.

44On 26 July [Mr M] had a conversation with [Ms T] in which she demanded that [Mr M] effect the return of [S] to her care. [Mr M] suggested that [S] would return if [Ms T] gave him some positive encouragement and support. [Ms T] finally agreed with [Mr M] that [S] could stay with [Mr SD], but made the comment that “the little shit can stay there”. [Ms T] denies she made this comment, but I accept that it was said.

45Thereafter, on a number of occasions [Ms T] attempted to have [S] return to her care. Upon one occasion she attended at [Mr SD]’s sister’s home. [Ms T] demanded that [S] return to her care and he refused. She telephoned [the South-west town] police to ask them to ensure [S]’s return, but they refused to become involved. Over this period [S] was not attending school because he was frightened that [Ms T] would attend at the school and take him.

46On 27 July an incident occurred at the [local recreation centre], an after school care centre in which [Ms T] worked. [S] had agreed to attend the after school care with [Ms T] on that day on the condition he could be returned to [Mr SD]’s care afterwards. [S], instead, was taken by [Ms T] to her home. She then rang [the local] police requesting that they force [S] to stay with her. The police attended at [Ms T]’s home. [S] was running away down the driveway when they arrived, and then ran inside. [Ms T] eventually told the police to take [S] and return him to [Mr SD]’s care.

47On 29 August 2005 there was an incident at the school where [Ms T] attended in an effort to take [S] home with her. Apparently [Ms T] told the primary school principal, [Ms M], that she intended to have the police and friends present to drag [S] into the car. [S] refused to leave with [Ms T]. [Ms T] was initially calm; however, she became demanding and aggressive towards [S]. [Mr SD] then arrived and the principal was forced to take the parents into her office to resolve the matter. [Ms T] left without [S].

48On 30 August 2005 [Ms T] attended school 15 minutes early and collected [S] and took him to the [local recreation centre]. [Mr M] stated that he received a phone call from [Mr SD] about 20 minutes later. [Mr M] went to the recreation centre where two police officers were standing outside the entrance. [S] ran out of the centre and into the play area with [Ms T] running behind him. He was screaming he wanted to leave. [Ms T] seized him and then [S] proceeded to kick [Ms T]. [Ms T] took [S] back into the [recreation centre] and [Mr M] and the police officers attended inside. The police spoke to [S] and he calmed down.

49In September 2005 [S] returned to [Ms T]’s care for a time. Around this time [Mr M] wrote to both parents in an effort to calm the situation and to minimise disruption at the school, the recreation centre and at home. He also wished to minimise the involvement of the police, the Department and the school.

50In September 2005 [S] became concerned because he believed [Ms T] was to move to [another town] and would take he and [A] with her. An incident occurred at the school on 5 September 2005 whereby [S] refused to close the door when in [Ms T]’s car, nor put on his seat belt. Eventually, [Ms M], the principal, had to insist that [S] close the door.

51In September 2005 Family Court orders were varied to allow [S] to remain in the care of [Mr SD] and have supervised contact with [Ms T] each weekend. At that time [Mr SD] had filed a Notice of Child Abuse. On Monday 13 September 2005 [S] demonstrated the conduct referred to in paragraph 51 herein.

52On 13 September 2005 the principal told [Ms T] that she was not to attend at the school to collect the children. Subsequently [S] was interviewed by the police and [Mr M] about the incident that had happened at the [recreation centre].

53On 30 September 2005 [Ms T] visited [Mr SD]’s home without invitation. Present were [Mr SD]’s parents and sister. [Ms T] refused to go. The police were called, but they did not attend to forcibly remove [Ms T]. [Mr SD] suggested that the children go to Chicken Treat as a way of defusing the situation. [Ms T] went too. The police eventually visited Chicken Treat to see if the situation had calmed down.

54During 2006 and 2007 [Ms T]’s contact with [S] was spasmodic. In her evidence in chief at trial she was asked what contact she had had with [S] since May. She stated that he would ring her up sometimes and that she sometimes saw him at school. She said if there was nothing on she sometimes asked him if he wanted to join them.

55In evidence [Ms T] described how [S] had been banned from attending the recreation centre on two occasions in 2005 and on 19 March 2007. The second ban was still in place at the time of trial. She had not asked that the ban be removed even though she worked at the recreation centre. She stated in evidence that she had no control at all over [S]. It was then put to [Ms T] that she had seen [S] on a number of weekends in July and August. It appeared to me that she was trying to minimise the amount of contact that she had had with [S]. I was shocked to hear [Ms T] say that even if she continued to reside in [the South-west town], she only wished to see [S] once per fortnight.

56Even though [Ms T] has trained as a child care worker and works at after school and holiday care establishments, she has little or no idea how to maintain and promote her relationship with [S]. She agreed after an ADR conference that she would go to a Mums & Dads Forever course and to attend counselling. She has not done either. In my view, it is essential whether [Ms T] lives in [the South-west town] or in [the Regional centre] that she attends counselling so as to learn how to improve her relationship with [S].

(ii) other persons (including any grandparent or other relative of the child)

57Both [S] and [A] have a close relationship with [Mr SD]’s parents and with his other family members who live in [[the South-west town]. They see [Ms T]’s father from time to time and seem to have a good relationship with him.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

58Unfortunately, neither [Mr SD] or [Ms T] have, in the past, encouraged the other parent to have a close and loving relationship with the child in their care, although both would say that they have. One of the most disturbing pieces of evidence given at the trial was that given by [Mr SD]’s father, [V]. [V] and his wife live in [the South west town] and spend a lot of time with [S] and with [A], when she spends time with [Mr SD]. At trial he did not hold back in telling me what he thought of [Ms T]. If [V] was not able to hold back in Court, I have no doubt that he would not be able to hold back in his home environment and in [Mr SD]’s home, where he sees the children. This negative view of [Ms T] would constantly be reinforced to [S] and I have no doubt that this, along with [Ms T]’s conduct, results in his poor relationship with her.

59[Mr SD]’s opinion of [Ms T] is poor. When responding to a report prepared by [Dr W] he asked questions which contained statements along the lines of “can you honestly say [A] is better off residing with her mother when her mother is only interested pursuing her own teenage like lifestyle wishes…” [Dr W]’s opinion of whether the parties would promote the children’s relationship with the other parent was set out in paragraphs 40 and 41 of his report dated 22 March 2006:

“40.In my opinion, if both the children went to [Mr SD], the likely outcome would be that both children would stop seeing their mother within a couple of years due to the need to be loyal to the paternal family and align with the father’s wishes. I do not see that as being in [A]’s best interests.

“41I do not believe it is possible to put both children with [Ms T] and I do believe that there are quite major concerns that the same situation would happen should both children be placed with [Ms T]. Therefore I see the only possible way of ensuring that both parents maintain a relationship with the children, at least over the next while, is to require that contact take place.

60I agree with [Dr W]’s opinion.

(d) 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

61For the present time, [A] sees [Mr SD] each alternate weekend and on Wednesday evenings. She also spends time with him in the holidays. [S] only sees [Ms T] infrequently. [Mr SD] says that if [Ms T] is able to reside in [the Regional centre], then he will miss out on seeing [A] on the Wednesday night and at school. [S] will refuse to go and see [Ms T] at all, which means that [A] would only spend time with [S] on alternate weekends and for school holidays periods. In his opinion, this would not be in the best interests of [A].

62In my view, there is likely to be a lot less stress on the children if these parties live in separate towns. As stated previously, they will not have to be concerned about how they will relate to the other parent if they see them informally around the town. [S] will not have to be faced with the choices of whether he should go mid-week or on weekends to see his mother. [A] will not be in the dilemma of whether she should stay over or go home at 8 o’clock for macaroni night. There might even be a change in the attitude of the parties and it may contribution to them moving on and developing their own lives so that they will deal with each other in a less adversarial manner.

63If [Ms T] lives in [the Regional centre] there will be more travel involved. The drive between [the South-west town] and [the Regional centre] takes approximately 2.5 hours. It will mean that the alternate weekend contact would not start until well after school. The children would have to travel four to five hours on weekends to see each other and the other parent. While this arrangement is not perfect, there are children in the city who travel at least an hour each way to see the other parent on a contact weekend. I do not accept that the travel required by the children is so extensive that it will have a detrimental impact upon the children.

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

64[S] and [A] do not now live in the same household. [S] mainly sees [A] when she visits at [Mr SD]’s home and at school. There is no evidence of close interaction at school. [S] is 10 years and [A] 6 years. By ordering [Ms T] to attend counselling I am hoping that she will develop the skills to be able to improve her relationship with [S]. In addition, if [S] spends time with [Ms T] and [A] in an environment where he cannot immediately go back to his father if things do not go his way, this might be a good thing for him. It may help him improve his relationship with his mother. He will also be able to spend time with [A] outside of the environment, being the household of his father and his grandparents, which is so antagonistic towards [Ms T].

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

65I have previously set out the time required to travel between [the Regional centre] and [the South-west town]. In my view, it is not such a significant time that it will greatly impact upon the relationship that [A] and [S] will have with each of their parents. The parties’ conduct is likely to have a much greater impact. There is no reason why the children cannot regularly telephone the other party and keep in contact with them through that means of communication.

(f) 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

66I am satisfied that both [Mr SD] and [Ms T] are able to cope with the children’s physical and intellectual needs. I am not satisfied that at the moment either are capable of understanding the effect their conduct and their attitude to the other party has upon the children. I agree with the comment made by [Dr W] in his report attached to his affidavit sworn 24 May 2007 when he stated:

“50In my opinion, [S] is an at-risk child for self-esteem issues. He needs to be counselled but unfortunately he is so used to getting his way that he will do what he wants, rather than comply with a counselling process.”

67[S]’s attitude when interviewed by [Dr W] around this time was worrying. He walked out of the interview when pressed by [Dr W] as to the reasons for his poor opinion of his mother. [S] told [Dr W] that his mother was mean to his father, that she swore at him, threatened him and told lies about him. When asked about these things, [S] became increasingly upset and when asked about what lies she told, he was not able to answer.

68[S] had been attending counselling to cope with his parents’ separation and the manner in which their conduct was impacting upon him. [S] stopped seeing the counsellor because he wanted to. When explaining why he stopped, he said to [Dr W] “I stopped it because the counsellor caused a heap of trouble. I did everything she said and it still caused me a heap of trouble, so I just stopped going.” There is no evidence the counsellor caused any “trouble”. It is very worrying to see the autonomy given to [S] about matters he is clearly unable to deal with himself. I share the concerns of [Dr W] that there are not sufficient boundaries set for [S] in [Mr SD]’s residence. In my view, [Mr SD], and his family, are unable to hide their distress in relation to issues associated with the breakdown of the marriage and the children, and [S] is exposed to this.

69I have set out in some detail the manner in which [Ms T] has dealt with [S] since separation and how she played a significant part in the difficulties [S] now faces. She, too, has let [A] make decisions about the time she will spend with [Mr SD]. This is inappropriate at [A]’s age of 6. I have no doubt that [A] is well aware of her mother’s desires in relation to the time she spends with [Mr SD] and follows prompts from her.

70In relation to [Ms T]’s domestic circumstances, at the end of 2007 she lost her job in [the South-west town] because the after school care program was stopped. She also lost her rental accommodation as it was being sold. As a result of the property settlement, [Ms T] will be paid around $30,000. This sum is unlikely to be sufficient to allow her to purchase a home either in [the South-west town] or in [the Regional centre] and she will continue to be subject to the vagaries of the rental market.

71Just before the end of the year [Ms T] was able to obtain a job at a child care centre in [the Regional centre]. She is confident that she will be able to obtain rental accommodation. [The Regional centre] is a much bigger town than [the South-west town]. There will be many more opportunities for employment and rental accommodation in that town. [Ms T] does not have parental support in [the South west] as does [Mr SD]. In addition, [Ms T] has to reside in [the South west] and confront [Mr SD]’s family members, in particular his father, who has a very negative attitude towards her.

72I am satisfied that [Ms T] wishes to get employment and improve her opportunities. She has a better chance of doing both in [the Regional centre] than she does in [the South-west town].

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

73I have previously described the parties as being responsible parents and members of the community when they lived together. I have described in some detail their conduct since separation, which has been anything but responsible or in the children’s best interests. I am sure [Mr SD] provides [S] with a loving and protective environment, but he has not been able to encourage [S]’s relationship with [Ms T], and [S] has taken control of matters and situations where he should not. [Mr SD] has admitted to being unable at times to control his emotions in front of [S] and they have both cried together about issues. [S] was having counselling with [ a counsellor] at the [local] Hospital. This counselling was recommended by [Dr W]. [S] went to counselling on approximately four occasions and stated he did not want to go anymore. In evidence [Mr SD] stated that [S] thought [the counsellor] caused him “a heap of trouble”. There is no evidence that this occurred. I suspect that [S] was challenged in relation to some of his beliefs about his mother and he was not able to deal with this. [Mr SD] has admitted that he has discussed the situation between himself and [Ms T] with [S] at times and that he should not have done so. He denied that he is not able to set boundaries for [S] saying that he was strict on homework and manners. [Ms T] had some concerns because [S] was sleeping with [Mr SD]. It appears that was occurring for some time, but has not occurred recently.

74On one occasion when [S] was to go to his mother, he gave [S] instructions as to what to do if he did not wish to be there any longer. The instructions were to run to a friend’s house. [S] did this. [Mr SD] had difficulties appreciating that he had set the contact between [S] and [Ms T] up in such a manner that it was very likely to fail.

75I have stated previously that if [S] is in a position where the only contact he has with his mother is away from [the town], and therefore he has no ready “escape”, then the contact with [Ms T] may be more likely to be successful.

76I have previously described [Ms T]’s conduct, particularly in relation to [S], and the fact that she was happy to use the police, the Department for Child Protection and the school to force [S] to reside with her. She has allowed [A] to make decisions in relation to the time she spends with [Mr SD] which, given [A]’s desire to please both parties, must have put her in a very difficult situation.

77I am satisfied that she has appropriate arrangements in place for [A] in [the Regional centre] and that she is likely to be able to provide more stability for her in that situation than in [the South-west town], where she had no employment and no accommodation.

(j) any family violence involving the child or a member of the child’s family

and

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

78[Ms T] obtained an interim violence restraining order against [Mr SD] shortly after they separated for the purpose of getting him removed from the former matrimonial home. In my view, there is unlikely to be any family violence, either between the parties or any violence inflicted upon the children. Having said this, I am satisfied that [Ms T] has inappropriately dealt with [S] in the past and I have set out details of this.

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

79In my view, in this matter, it is essential that an order be made that is least likely to lead to the institution of further proceedings in relation to these children. If [Ms T] was forced to remain in [the South-west town], it is highly likely she would bring another application to relocate at some time in the future. [The South-west town] is a small country town with very limited facilities. [Mr SD] has most of his immediate family members living in the town and has been employed in the same position for many years. [Ms T]’s position is very different, she is in rental accommodation and shortly after the trial her job no longer existed. It is important that she has some security and stability for the future as this will impact upon the children. It would not be in [A]’s best interest to think that there is no security and that she and [Ms T] may move some time in the future.

80While I think it is preferable that [Ms T] have some stability and be able to establish herself in [the Regional centre], it is also essential that she understands that she must promote [A]’s relationship with [Mr SD], and that she has counselling to improve her own relationship with [S]. To ensure that both of these things happen, I did not make final orders, but made the order reviewable in 6 months’ time. [Ms T] is well aware of the consequences should she not comply with the orders made by me.

Conclusion

81In my view, it is appropriate that [A] continue to reside with [Ms T] and that [Ms T] be able to relocate to [the Regional centre]. I share the concerns of [Dr W] that if both children lived in one household it is highly likely they will be alienated from the other household within a few years. At the present time neither [Mr SD] nor [Ms T] is able to put aside their personal feelings and encourage the children’s relationship with the other parent. I would hope with counselling and the passing of time that this may change.

82If [Ms T] resides in [the Regional centre], about two and a half hours from [the South-west town], the contact the children will have with the parent with whom they do not reside will not be significantly different. I acknowledge that there will be no mid-week contact, but the alternate weekends and holiday contact which has existed will continue. There will be limited prospects for [S] to have short periods of time with his mother, but it may well be that given there is no ability to leave his mother’s home when things are not going his way, that he will develop a closer relationship with her.

83I am satisfied that the children will maintain their relationship with each other, which they have done up to now despite the appalling relationship between [Mr SD] and [Ms T], and the manner in which they have each conducted themselves.

84By allowing [Ms T] to relocate, in my view, there is less likelihood of further proceedings with the parties.

85It would be unfair to [Ms T] to insist that she remains in an environment where she has no parental support, no job and no certainty of rental accommodation. It would be difficult for her to provide a suitable environment for either of the children in that situation. I am satisfied that she will be able to do so in the [the Regional centre].

I certify that the preceding [ 85 ] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate