T and I
[2010] FCWA 9
•14 JANUARY 2010
[2010] FCWA 9
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | T and I [2010] FCWA 9 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 30 NOVEMBER, 1, 2, 3 & 7 DECEMBER 2009 |
| DELIVERED | : | 14 JANUARY 2010 |
| FILE NO/S | : | PTW 6623 of 2007 |
| BETWEEN | : T |
Applicant/Father
AND
I
Respondent/Mother
Catchwords:
CHILDREN - intrastate relocation to [the North-West], with whom a child lives, best
interests, equal shared parental responsibility, allegations of family violence
PROPERTY - superannuation split, s 75(2) factors, 30% differential from equal contributions
Legislation:
Family Law Act 1975 - s 60B, s 60CC, s 61DA, s 65DAA and s 75(2)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms T Farmer |
| Respondent | : | Mr M Hynes |
[2010] FCWA 9
Solicitors:
| Applicant | : | Equity Legal |
| Respondent | : | Martin Hynes Lawyers |
Case(s) referred to in judgment(s):
Kennon and Kennon (1997) FLC 92-757
Kowaliw and Kowaliw (1981) FLC 91-092
Marker and Marker (1998) FamCA 42
McCall and Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
Mulvaney and Lane (2009) FLC 93-404
Omacini and Omacini (2005) FLC 93-218
Sealey and Archer [2008] FamCAFC 142
Taylor and Barker (2007) FLC 93-345
Woollams and Woollams (2004) FLC 93-195
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1 [Mr T] (“the father”) and [Ms I] (“the mother”) are the parents of [Brian T] born
[in] March 2000 (nearly 10) and [Blair T] born [in] February 2006 (nearly 4). The father and the mother are unable to agree about the appropriate parenting arrangements for Brian and Blair and their difficulties are compounded by the fact that the mother seeks to relocate from [the southern suburbs], where both parties presently reside, to [a town] in the State’s North-West. Additionally, irrespective of whether the children are permitted to relocate to reside in the North-West, the parties are unable to agree as to whether they should equally share parental responsibility for the boys or, in the mother’s case, she should have sole parental responsibility.
2 Financial matters are also a source of disagreement between the parties which the Court has been asked to resolve.
3 By way of parenting orders the father seeks, firstly, that the parties have equal
shared parental responsibility for Brian and Blair, but that they live with the mother
primarily and spend time with him as follows:
(a) each alternate Thursday from close of school, for Brian, and from 2:00 pm for Blair, through to 5:30 pm on Sunday; and (b) each intervening Thursday from the close of school or 2:00 pm as may be appropriate until 7:00 pm.
4 During school holidays he proposes that the boys spend one half of the term
school holidays and two weeks of the Christmas holiday with him with the Christmas holidays structured so that in each alternate year the two weeks enable the father to spend time with the boys on Christmas Day. If the children are permitted to relocate then he seeks orders that provide for him to spend time with the children for the first half of each of the term school holidays and for a period of three weeks during the Christmas school holidays, again structured to include Christmas Day in each alternate year.
5 In each case he proposes there be telephone communication with the children on
a liberal basis and that he be properly informed about the children’s progress with all education, health care professionals or other parties dealing with the children on a professional basis and have the ability to participate in functions, sporting, education and social events organised by schools. He also seeks orders providing for the immediate notification of any significant injury or health problem suffered by either of the boys or hospitalisation required by either of them.
6 By way of a financial settlement he seeks orders that the property of the parties
be divided as to 60% thereof to the mother and 40% to him, with a similar superannuation split to adjust the joint superannuation entitlements of the parties in the same ratio.
7 The mother seeks orders that she have sole parental responsibility for the
children with the father spending time with the children, if they relocate, from the first Sunday of each term school holiday period until the final Wednesday of each school holiday period, ie; 10 days, and for two weeks in the Christmas school holidays structured so that the father has alternate Christmas time. She proposes liberal telephone communication between the father and the boys and she, like the father,
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seeks orders about the notification of significant medical issues and the provision of appropriate information regarding the children’s sport, school and other extra- curricular activities. If she is not permitted to relocate with the children then she seeks that the father spend time with the boys during school terms each alternate weekend from the conclusion of school Friday until 5:30 pm Sunday, seven days of the school term holidays and two weeks during the summer school holidays, split with one week at Christmas time and another week in January.
8 By way of a settlement of property she seeks that the property of the parties be
adjusted between them such that she receives 80% of the assets available for distribution, and the father 20%. Originally, she had opposed a superannuation splitting order, but during her counsel’s closing he suggested that she might now not resist such an order, particularly given the in specie division of some of the property of the parties that was agreed during the trial.
Background
9 The father is 36 years of age, having been born [in] February 1973, and the
mother is 34 years of age, having been born [in] July 1975. The parties met in about February 1996, with a relationship developing between them shortly after they met. They commenced living together in August 1996, or thereabouts, and were married on 2 March 1997. The parties finally separated on 10 January 2007, and during the course of the trial I made a divorce order. At the time the parties separated Brian was not yet seven and Blair was not yet one.
10 From April 2008 until trial the boys have spent time with the father in
accordance with orders made by the court on 4 April 2008. Those orders provided that
the boys spend time with the father:
(a)
During school terms on each alternate weekend from the close of school on Friday until 5:30 pm Sunday, extending to 5:30 pm Monday in the event of a public holiday or pupil free day, on the basis that the father collect Brian from school and the mother deliver Blair to his parents’ home for collection on a Friday. Additionally, the father collects Brian at 8:30 am each Thursday morning to take him to school and then has him from after school until 7:00 pm each Thursday with the mother delivering Blair to his parents’ home in the afternoon for the father to collect him from there, with both boys being collected from the father’s parents’ home at 7:00 pm each Thursday.
(b)
During school holidays the boys spend time with their father expressed to be for one half of the April, July and October school holidays from 9:00 am Sunday on the middle weekend to 5:30 pm on the last Sunday of each holiday period. (In practise, this may be slightly less than one half, but in any event is slightly more than the mother now proposes the father have) and for a period of two weeks during the summer school holidays to be taken consecutively with the dates to be agreed.
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(c) Handover during school holidays is to take place at the home of the father’s parents. (d) The orders further provided for the children to spend father’s day with the father and for telephone communication between the boys and the party with whom they are not residing.
11 The orders also dealt with some interim property issues, including orders for the
immediate sale of the former matrimonial home, which order was made by consent, and a further order that the mother have the exclusive use of the [motor vehicle] with an obligation to maintain the vehicle and keep it insured whilst the father was obliged to continue to pay the registration fees on the [motor vehicle] “for so long as it remains registered in his name”.
12 Since the parties’ separation, each of the parents have repartnered and it is very
much in the context of the mother having repartnered that she brings her application for relocation, as her partner, [Mr N] is currently employed on a fly–in/fly-out basis to the North-West.
The evidence
13 The father filed affidavits of himself (together with a Statement of Financial
Circumstances), his partner, [Ms S], and a labour market economist, [Mr M]. The mother filed an affidavit and Statement of Financial Circumstances for both herself and her partner, [Mr N].
14 The parties had obtained a report from their agreed single expert, [Dr W], a
Clinical and Forensic Psychologist, who frequently prepares single expert reports for the Court. Neither [Mr M] nor [Dr W] were required for cross-examination by either of the parties.
15 Each of the mother, the father and their respective partners were cross-examined.
Neither the father nor the mother were impressive witnesses. I formed the view that the father attempted to minimise his behaviours where they had a negative impact upon communication or the children, and the mother tended to exaggerate the negative aspects of the father’s behaviour and failed to recognise inappropriate behaviours in which she may have been engaged and the negative effects upon the children. On balance, however, between the parties the father was more likely to make concessions against his own interests than the mother. The father, when confronted with a proposition against his interests, was more likely to accept the proposition as being true, whilst the mother tended to reinforce her stance and, on occasions, embellish her evidence by further exaggeration.
16 In contrast to the parties each of their respective partners were most impressive
witnesses. Ms S was quite prepared to give evidence that was, in my finding, fairly balanced against the interests of both her partner, the father, and the mother and was generally forthright in her presentation and appropriate in her evidence. Similarly, Mr N was most impressive and I accept both Ms S and Mr N as witnesses of truth.
17 Of note, Mr N was prepared to make significant concessions in terms of what his
plans would be in the event that the mother was not permitted to relocate with the
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children. I formed the view that he had given the options far more logical and calm consideration than had the mother, who appeared to romanticise about and over state the advantages of relocating to the North-West and consequential social and other benefits, but had undertaken little by way of objective research or assessment.
18 Family violence is a factor that has to be considered in this matter, particularly in
the context of the parties’ competing claims over parental responsibility. The evidence about allegations of family violence was entirely unsatisfactory, with the notable exception of the observations made by Ms S, that each of the parties were as bad as the other in a disgraceful exhibition of behaviour at handover.
19 There was however one particular incident of violence which, on the face of it,
was significant, involving the mother’s hand being caught in the door of a car. However, the mother so embellished her version of events during the course of the trial that her credibility about the recounting of events over the whole incident was brought into question and not only as to the issue of family violence but overall.
Applicable Principles
20 This is a parenting case that falls into the category of cases involving a proposed relocation by one parent.
21 In Taylor and Barker (2007) FLC 93-345, the majority (Bryant CJ and Finn J) in the Full Court of the Family Court of Australia said, at paragraph 53:
“We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.”
22 The Court went on to refer to the order in which the Court should consider
whether equal or substantial and significant time is in the children’s best interests in
relocation cases:
“62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary considerations”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
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63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.”
23 However, as the Full Court has observed in Sealey and Archer [2008] FamCAFC 142, Taylor and Barker should not be read as suggesting that a trial judge should ignore the relocation proposal when making the necessary findings under s 60CC.
24 Prior to the 2006 amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006, the starting point for parenting cases which involved a relocation with the children by one parent, 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 & 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 obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
25 At paragraph 80 her Honour further said:
“It follows from my exposition of the legislation, that 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;- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and - the child’s best interests must be weighed and balanced with the
“right” of the proposed relocating parent’s freedom of movement,remain valid.”
26 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”.
27 In this case the parents are unable to agree as to whether they should share
parental responsibility. I must therefore make a determination about parental
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responsibility and consider the consequences that flow from that decision and, particularly in this case, whether the presumption in favour of equal parental responsibility applies, is negated or whether there are reasons that exist that such an order should or should not be made.
28 I must then also consider the consequences that flow from that finding. 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;”
29 I also note, in the context of a consideration of the consequences that may flow
from a determination that the parties should share parental responsibility equally, the decision of the Full Court of the Family Court of Australia in Rosa and Rosa [2009] FamCAFC 81 has been the subject of a successful appeal to the High Court of Australia, it would seem on the issue of “reasonable practicability”. A transcript of the proceedings before the High Court was available after the conclusion of evidence in this case and I circulated it to each counsel prior to concluding the matter, with an invitation to make any further submissions that they wish, having regard to the matters that were argued before the High Court. Of course it was difficult for counsel to argue speculatively given that the High Court is yet to publish its reasons for allowing the appeal. I considered deferring my decision in this case until the High Court of Australia published its reasons, however that would have added another layer of uncertainty to the arrangements for the parties and on balance, given the other factors, that are relevant to my decision in this case, I resolved not to do so.
The Law
30 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.
31 Section 60B provides:
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(1) [Object of Part] 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).
32 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.33 As I have remarked earlier, in this case I must also make a determination about
parental responsibility and, in particular, I have to make a determination as to whether or not the presumption that applies in favour of equal shared parental responsibility is negated or rebutted.
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34 The relevant section is s 61DA which provides as follows:
(1)
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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)
abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
35 If I am satisfied that I should make the order as sought by the father for equal
shared parental responsibility then I must also consider the obligations placed upon the Court by s 65DAA which requires me to then consider whether the children should spend equal time or substantial and significant time with each parent, although in this case that obligation is lessened given the respective positions of the parties, and in particular the orders sought by the father.
36 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
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(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) 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: (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
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(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.
37 In Taylor and Barker (supra) 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 the parents are to have equal shared parental responsibility.
38 The over-arching principle is that described in s 60CA, namely in deciding
whether to make a particular parenting order in relation to a child the Court must
regard the best interests of the child as the paramount consideration.39 Consideration of the relevant sections of the Family Law Act show in this case that a large number of the matters enumerated in the various sections to some degree overlap and to some extent, in this case, are not relevant. The core matters relevant to these proceedings are considered below. This includes the matters prescribed in s 60CC(4) which are directed to the extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent.
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Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
40 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 that there are three possible interpretations of
s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of 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 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 s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 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 sub-paragraph (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.
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…
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.”
41 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.
42 The position advanced by the mother at trial (at page 7 of her Papers for the
Judge) was:
“The children have a close, loving and meaningful relationship with both
of their parents.It is agreed that both children will benefit from an ongoing meaningful relationship with both of their parents.”
43 Similarly, the father’s case proceeded on a continuing meaningful relationship
and the importance of maintaining a meaningful relationship between each of the
parties and the children.44 As observed in Mulvaney and Lane (2009) FLC 93-404, the Court is not to discriminate between the maintenance of a relationship with one parent over the other, but rather to give a balanced consideration to the importance of maintaining a meaningful relationship between both of the parents equally.
45 In this case I can proceed comfortably on the agreed foundation of the parties
that it is to the boys’ benefit to have a meaningful relationship with each of the parties
and for that to be a continuing relationship which will offer continuing benefit.
(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
46 Each of the parties has behaved inappropriately in this case and unnecessarily
exposed the children to inappropriate manifestations of the dispute between them. At the commencement of the trial the applicant tendered into evidence two handwritten letters, one from Brian’s class teacher and another from the teacher’s aide.
47 Brian’s class teacher reported:
“On the morning of 15th October at approximately 9:45 am a visibly upset student [Brian T] came to see me in the classroom and broke down crying. When asked, what was the matter, he said his parents had had a big argument with lots of shouting and he was distressed and worried about it. He was visibly shaking with emotional impact. He certainly was in no condition to start the school day. I was concerned that others would upset him more by asking what was wrong. It was almost start time so I asked
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[Ms H] a class teacher aide to take [Brian] for a walk around the grounds and see if she could help him calm down and overcome his upset. This she did and they quietly returned about 20 minutes later. We kept a good eye on [Brian] all day and he seemed to be much better.”
48 The teacher’s aide reports as follows:
“On the first Thursday of Term 4 (15th October) [Brian] arrived at school quite distressed. He spoke to the class teacher and then I was asked by the class teacher to take him for a walk around the school grounds so he could settle down. He told me his dad had called around that morning because it was his day off to take his younger brother out for the day. His mother had apparently told [Brian’s] dad that she had already made arrangements to go out and that he could not take him. With that an argument erupted and the parents started yelling and [Brian] said he ran to his room. He said they were calling each other names and that this had upset him very much. We continued walking around until he had calmed down. We went back to class after about 20 minutes and both the teacher and I kept an eye on [Brian] during the rest of the day. I felt he had calmed down but he said he was still worried.”
49 On the day in question the father had called at the mother’s home early to pick
up Brian to take him to school, as was prescribed in the current orders. On that occasion he had asked whether Blair could come with him during the day as he had the day off. The father had, as was his want (in his estimation on no less than 300 previous occasions) sent an SMS text message to the mother asking if Blair could come. He had received no response.
50 When he arrived he was told that Blair would not be coming and that the mother would be “following the court order”.
51 The father’s evidence was that he told the mother that he was “disappointed”.
He claims to have spoken calmly and quietly to the mother and then departed with only Brian.
52 Regrettably, the father, whilst driving Brian to school chose this opportunity to
then vent his frustration about the mother’s refusal to allow Blair to come with him in front of, but not specifically to, Brian. Amongst other things he referred to Brian’s mother as a “fat lazy cow”. The father’s evidence was that Brian seemed to be okay when he got to the classroom.
53 The mother’s evidence was that whilst following the court order as she felt she
was obliged to do, she also had spoken calmly to the father in communicating that
refusal.54 The evidence of each of the parties in relation to what occurred that morning
compared with the teachers’ reports is completely inconsistent. Each of them claimed to have behaved appropriately (with the exception of the father’s acknowledgment of his totally inappropriate behaviour whilst driving to school with Brian in his vehicle). However, the mother having produced the correspondence, which was ultimately
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tendered by the father, presumably as evidence of Brian’s upset and what had caused it, then sought to distance herself from any suggestion of any argument or harsh words, as did the father.
55 There is little doubt that Brian was of the clear mind that there was an argument
between the parties and was clearly and objectively distressed by the parties’
behaviour.56 Regrettably, this episode, shortly prior to the commencement of the trial, is just
one of the many examples of appalling interaction between the parties, with scant
regard to the effect that their behaviour has on the children.57 Probably the most disturbing aspect of this incident is that the father agrees that
Brian was yelling at him to “shut up”, however, it would seem that the father took the opportunity to say to Brian that his “mother should be taking him to sports” and that she was “holding him back”. The father says he apologised to Brian for “going off a bit”, but despite his behaviour, which was manifestly inappropriate, he believed that it was the mother’s fault in that had she agreed to his request he would not have reacted and that it is her fault that this is still a problem three years after separation.
58 Another episode involved an argument between the parties over some clothing in
September 2007. Ms S’s evidence was that she remembered each of the parties arguing at each other and pushing each other. Ms S asked the mother to leave and took Brian inside. She advised the mother that she would call the police.
59 The mother’s version of these events is as follows in her affidavit:
“112. In August or September 2007 I went to [the fathers’] parents’ house where [he] was living and asked him for some of the children’s belongings. I was leaning against [his partner’s] car. [He] flew into a rage and started pushing me around. I fell to the ground. [He] threatened me yelling at me that I was trespassing and had no right to be there. 113. [His partner] was at the door of the house screaming at the husband to continue to kick me. [She] yelled that she was going to call the police and I was trespassing. [Brian] witnessed the incident. [The father] went to my car and started peeling a sticker off the back of the car. I got up and tried to push him aside. He chased me and threw me to the ground. I drove away leaving [Brian] behind.”
60 Ms S’s evidence was that she did not see the mother on the ground and she
denied categorically saying to kick her. Indeed, she says she went inside with Brian to
call the police and to shield Brian from the behaviour of his parents outside.61 I accept Ms S’s version of events which is also more consistent with that of the
father, who says of this incident that he had arrived at his parent’s home after the mother had arrived. Apparently, the mother had been told by Ms S that they did not have the clothes that the mother claimed they did. The father asked her to leave and
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there was a struggle whilst he was pulling her away whilst she held on to the front door. He accepts that during the course of the struggle between the parties the mother fell to the ground, however he denies kicking her.
62 The mother makes significant allegations of violence, dating from very early in
the parties’ relationship until 2007. They are denied by the father save and except for one particular incident which occurred on 30 March 2007. This is also the incident to which I refer in my findings as to credibility.
63 The mother, at page 106 of her trial affidavit, says:
“106. The only time the police have been involved was 30 March 2007 (Report Number XXXXX XX).
An argument occurred when [the husband] came to the former matrimonial home to collect a [vehicle]. After living with my parents for a month I had returned to the matrimonial home and [the husband] had commenced living at his parent’s property [in the southern suburbs]. I had asked [the husband] for the keys to the house, however he had refused to give them to me. I went to [his] friend’s car to get the house keys. [The husband] flew into a rage and tried to push me out of the way. I reached inside the car and [he] slammed the door shut and locked the door. My right hand was caught in the car door. I shouted at [Brian] to get the phone so I could call the police. [The husband] continued to load the [vehicle] onto a trailer. I screamed for help but no one came. I yelled at [Brian] to get the phone. [The husband] told Brian not to get the phone. After some time [Brian] got the phone and gave it to me. I called the police.
107. While I was waiting for the police the husband and I continued to argue. [The husband] approached me with a raised fist. I hit out at him cutting his face. [The husband] unlocked the car door and I ran to the house.
108. [The husband] told [Brian] that I was only faking.
109. The police arrived ([Constable C] and [Constable H], from the [local] Police Station). By the time the police arrived the husband’s parents were there. I spoke to [Constable H]. It was clear that [Constable H] knew both [the husband] and his parents. [Constable H] admitted to me that he knew [the husband] and his parents. I had bruises on both my hands. [The husband] showed the cut on his face to the police. I asked the police about a retraining order. They said I probably wouldn’t get a restraining order because I hit back however if I wanted to try I had to go on Monday to the [local] Court House. I asked the police to get from [the husband] the house keys. They asked [the husband] but he refused. The police asked [Brian] what happened and he said that
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he wasn’t sure and that his daddy had said that I’d faked the whole
thing.110. I attended upon my doctor [at (the local medical centre)]. I went to the [local] Court House on Monday and made an application for a restraining order. The magistrate did not make an interim order because I admit that I had struck and cut [the husband].
111. A hearing date was set for myself and [the husband] with respect to the restraining order matter. I spoke to [the husband] about what had happened. He expressed remorse however did say it was all my fault. [The husband] promised to get me money to help with the children. I was not confident that the court would help and I agreed to cancel the application for a restraining order.”
64 From the evidence of the parties it would appear that the father attended to
collect his [vehicles] from the former matrimonial home. To do so he had borrowed a utility belonging to a friend, behind which was a car trailer. When he arrived at the former matrimonial home the mother was not present. She arrived whilst the father was loading one of the vehicles, however, she then commenced to search through the utility motor vehicle cab. These facts appear to be common ground between the parties.
65 The father’s version of events is that he came back to the car, pressed down the
door locking latch and closed the door. He acknowledged that he used a fair degree of force to close the door and accepts that the mother’s hand was caught in the door, but that he did not immediately realise that was the situation. The mother, he accepts, was shouting out, however he did not pay any attention to what it was that she was saying and continued on with what he was doing. When he realised that her hand was stuck in the door he returned to the utility, unlocked the door and freed her. As he approached the utility to unlock the door the mother struck out at him and cut his face.
66 The mother’s version of events at trial were that she was on the driver’s side of
the door and that whilst her hands were in the doorframe the father used both hands to close the door onto her hand. He then used the keys of the utility to lock the door, whilst her hands were caught in the frame. The mother accepts that she must have been facing the inside of the motor vehicle when the door was closed for her fingers to have got caught. The difficulty with the mother’s version of events is how it was physically possible for the father to use two hands, as she asserts, to close the door on her hands given where she was standing such as to have both hands caught. Whilst it would be possible for the father to close the door and trap the mother’s fingers in the top of the doorframe as appeared to be the position as it was put to the father, the version of events given by the mother in her evidence was significantly different and less credible. Further, her version lacks credibility in that if it was accurate and if it was relayed to the police accurately, then it is unlikely that the police would have dismissed the matter out of hand as the mother appears to suggest that they did, and I do not accept the mother’s reasoning for the police inactivity in such circumstances as the mother would suggest. Significantly also, the mother’s version of events was not put to the father, nor did it accord with her affidavit evidence.
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67 There is no doubt that the parties had significant argument during the course of
which the mother’s fingers got caught at the top of the doorframe when the door was shut. I accept that when the father realised what had happened he acted to free the mother. Having regard to the relationship between the parties and its clear volatility, I accept the fact that the father heard the mother shouting, but ignored her call, no doubt thinking they were just argumentative statements. I accept that when he returned to the car to unlock the door that the mother lashed out as she says. In her version of events she had managed to free one hand to enable her to do so.
68 Brian witnessed this entire incident.
69 Behaviour such as this does the parties absolutely no credit whatsoever.
70 The difficulty with the position taken by the mother about the allegations of
violence is further compounded by the report of Dr W who, as I noted earlier, was not required for cross-examination, yet his recounting of the history as described to him by the parties, is in direct contrast and contradiction of the mother’s affidavit where she recounts episodes of violence early in the parties’ relationship and with paragraph 33 of his report:
“The parties dispute how volatile the relationship was. In considering the different situations [the husband] appeared to be somewhat of an avoider, whereas [the wife] wanted to deal with issues. When pursued,[the husband], from time to time would be reactive. The dynamic did not sound like domestic violence for control, more reactive interactions.” (And also at paragraph 19 where, “[The wife] explained that [the husband] would tend to walk off and she would scream after him and do things which made him angry. She recognised she was insecure but she said that particularly towards the end of the relationship [my emphasis] it did get violent”)
71 And again at paragraph 54:
“One aspect raised has been the domestic violence between the parents. The father disputes there was any violence other than an incident where the mother got her fingers stuck in the door of the car. As indicated earlier I would not necessarily see this as a domestic violence relationship although I would suspect there have been incidents which met the criteria for family violence. In my opinion issues are more of a reactive nature than of any genuine significant risk to any of the parties.”
72 Neither of the parties, it would seem, when confronted with a volatile situation
has either the strategy pattern or maturity to be able to step away from it and deal with matters appropriately, but more so when the children, but particularly Brian, has been present. Clearly, Brian has witnessed significant and numerous inappropriate interactions between his parents. The parties appear to do little to shield the children from their perception of the other and each has said inappropriate things about the other in the presence of the children. As the mother summed it up to Dr W, as reported in paragraph 37 of his report:
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“Basically when I asked [the wife] she said “We don’t get on. Nothing surprises me with what he’s doing. He doesn’t like me or what I do. We can’t talk and the kids are in the middle of all of this.”
73 She also said
“It’s easier not to talk. We don’t fight. Can’t even say hello or I’ll get upset over his tone of voice. I don’t see it getting any better. There’s so much hate. I don’t hate him. I want [him] to be happy. I want to be left alone. I want him to be there for the kids.”
74 It is plain that the parties still have a highly volatile and reactive relationship, the
disputation between them generally verbal or via SMS, although quite clearly can boil over as it did on 15 October this year. I have serious concerns about the parties’ level of maturity and their ability to protect the children from psychological harm.
75 I do note that the mother has attended the “Mums & Dads Forever” course. The
father has not yet done so, indicating that as yet they have not had the numbers in [the southern suburbs] to run such a course, although courses may have been available in the inner Perth metropolitan area. I accept as a matter of practicality it would have been difficult for the father to have attended such a course. To his credit he has undertaken the “Triple P Parenting Course”, but it is my finding that the parties could benefit from some further counselling I propose to order that they attend at [the local] Family Relationship Centre for such purpose and undertake such counselling as the Director or his or her nominee of the [local] Family Relationship Centre shall direct, or in the absence of a direction from the [local] Family Relationship Centre, then as the Director of Family Court Counselling and Consultancy Service shall direct.
76 I now turn to consider those of the additional considerations as prescribed under s 60CC (3) as are relevant to this matter.
(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;
77 Brian was interviewed by Dr W who reported on his wishes as follows:
“63. Beginning with [Brian], I found that he was the type of child who was able to express views reasonably clearly. When discussing issues such as current arrangements he indicated clearly that he wanted to keep seeing his father but was not interested in more time with his father. He spoke about wanting to change the day from Thursday to Wednesday and be dropped back at 4:30 pm. It was not clear from him as to why he would make that change however, as it was typical of a 9 year old, he also would like “dad to give mum tickets to [motorsports], cause mum has to pay”. Therefore he does have some sense of perceived unfairness. 64. With respect to [the North-West] he indicated that he wanted to go to[the North-West]. He said that he had been there and that it was
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“a nice place to go. There’d be work for mum. I don’t like the house the we’re living in”. He recognised that he would miss his friend at school and that he would miss the [motorsport] but felt that he would be able to do [other sports] and activities. When I asked him if he’d miss his father he said “No, I’ll see him every school holidays and half the Christmas holidays”.
65. I also formed the impression that both parents speak about relocation to [the North-West]. He said that his father speaks “a lot, he says it’s a bad place”. He also said that his mother had spoken about it being “a good place”.
66. In considering these views I also asked [Brian] about how well he is able to say what is on his mind to his parents. He said that with his father “Sometimes I agree”. He also indicated with his mother “Sometimes I said things to mum so she won’t get upset. Mostly I don’t”. Therefore there is the element that he may be pleasing his parents or particularly pleasing his mother who I perceive as his primary attachment figure. However, I would suspect that underpinning this is a desire to be with his mother.
67. [Blair’s] views are those of a very young boy. However, he was aware of the relocation to [the North-West]. He indicated he would like to go and live in [the North-West]. He calls [the North- West]“Port”. After he said he would like to live in [the North- West] I said “Now if you were to live in Port would you miss dad?” He said “Yes”. “Because you wouldn’t be able to see him in [the North-West] would you?” He said “Nup”. “So you would still want to live in [the North-West]?” He said “Yes and still live at dad’s house”. Therefore, in the magical thinking of a child of this age he sees himself as living in both houses still and has no concept of the reality.[my emphasis]
68. When asked about his general living arrangements he indicated he would like to live with his father more and also to live with his mother more. I take this to reflect that he has a good relationship with both parents and I cannot draw much out of his views.”
78 In answer to the question as to whether the wishes of the children had been influenced by any person, Dr W reported:
“I believe the children have had some influence by both sides. [Brian] is aligning with his mother and has an “adult” aspect to his views. However, he is aware his father has a negative view.”
79 Whilst in the circumstances I find that I could attach little weight to Brian’s
expressed views, they do give a further perspective on the parents; their inability to resolve adult issues between the adults without the unnecessary involvement of the children in discussion about adult matters and, I strongly suspect, in an attempt to get particularly Brian onside, the purpose for which could only be to bolster the view of
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one or other of the parents. The fact that such bolstering is required from a child, who should not be involved in the decision-making process, reflects poorly upon each of them.
(b) 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);
80 It is the common position of each of the parties that they have an attachment to each of their parents.
81 The children appear to enjoy positive relationships with Ms S and her two
daughters: [A], 18 years of age and [R], 16 years of age. Similarly they enjoy a positive relationship with Mr N and their half brother [Charlie] who was not yet six months old at trial.
82 Each of the parties clearly enjoy cordial relations with their respective parents
who have assisted their children, the father’s parents in handovers and the mother’s parents particularly in providing support for her in recent times when she has needed assistance managing as a consequence of ill health.
83 The mother’s parents reside in a [town nearby] and the father’s parents live in
close proximity to the parties in the southern suburbs. Mr N’s extended family live in
the southern suburban area.84 As to the nature of the relationship of the children with each of their parents, I have already made comment about that and make further comment below.
85 There is one aspect of the relationship between the boys and their parent’s
respective partners, however, about which comment should be made, not as criticism of them individually but rather as a caution, and to emphasise the need not to overly embrace the dispute between the parties.
86 The first involves Mr N, who took the boys to [an event] at the [sporting
complex] in January 2009. The father had asked to have the boys with him that day and the mother had refused, despite the family interest in such events and the knowledge that the father would be [busy]. Whilst at the event Brian apparently asked Mr N if he could go and see [his father] and Mr N refused permission, no doubt wishing to avoid any confrontation with the father. Whilst I understand Mr N’s motivation for his refusal, regrettably it sends the wrong message to the boys, namely, one of him being unsupportive of their relationship with the father.
87 Similarly, Ms S was critical of the mother having arranged Father’s Day gifts
from the boys, taking the position that such gifts should now come from within the father’s and her household, particularly as the mother had not done so in the past. Whilst I understand her position, it is entirely appropriate, indeed to be commended, that the mother arranged such gifts, as such actions send a very positive message to the
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boys of the mother promoting the relationship, rather than interfering in their
household, as seen by Ms S.88 I accept that both Mr N and Ms S have at times been placed in difficult positions
in their dealings with their partner’s former spouse and have acted with understandable
motivations of loyalty to, and concern for, their partner.
(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;
89 In a parenting case where relocation is proposed, this is a consideration that
assumes a great dealt of importance. I have had cause to reflect upon the maturity of the parties and have made some singularly uncomplimentary observations about their conduct and their ability to separate adult issues from the children.
90 I am left with grave reservations about the mother’s ability to promote a
relationship with the father if she is not in reasonably close physical proximity to the
father, or at all.91 Indeed, as noted by Dr W, there is a strange juxtaposition in the position taken
by the mother who, on the one hand, is not wanting to communicate with the father,
and on the other, wanting him to “be there for the kids”.92 Counsel for the mother, in his closing, made a very sage observation when he
reflected that the only evidence the Court needed to be satisfied about the mother’s willingness to support a relationship was Blair, who of course, was not yet one year of age at the time the parties separated and yet has undeniably developed a meaningful and close relationship with his father, one that Dr W certainly sees as developing.
93 Whilst counsel for the mother’s observation is a valid one, it must also be
viewed in the context of orders that have required contact between the father and the boys every week, and against a background of the father seeking more contact. The mother’s view has been that her obligation is only as defined by an order of this Court and whilst there have been a few occasions where the father has had more than the prescribed time with the boys, the mother’s view was that her obligation was only to provide as per the court orders. On the other hand, the mother says she has given further time voluntarily. However, to my finding, her position is this regard was somewhat opportunistic and I have difficulty in accepting her evidence that she did know that she could not give time beyond that prescribed in court orders. Indeed, her evidence was that unless the court ordered she would not give the father more time. I have no doubt that receiving more than 300 SMS requests for additional time, as the father acknowledged he had sent, would have caused the mother some significant irritation. However, I am also satisfied that it suited her purpose to hide behind the order rather than provide the father with extra time, particularly with Blair, when it may well have ultimately been to her benefit to do so, for example, recently, when she was unwell, the mother preferring to call upon her father for assistance.
94 On balance I conclude that the mother is unlikely to facilitate and encourage a close and continuing relationship between the children and their father.
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95 The father, on the other hand, whilst frustrated by the lack of flexibility by the
mother about arrangements with the boys, and has expressed that view in totally inappropriate ways, does not, in my finding wish to negate the relationship the boys have with the mother, but rather takes it as a “given”, proceeding as he does on the basis that she is and will remain the boys primary carer.
(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 (ii) any other child, or person (including any grandparent or other relative of the child) with whom he or she has been living;
96 Again, in cases involving a proposed relocation this consideration has an
obvious priority as inevitably, the change of circumstances arising from removing a child from a situation of living in close proximity to a parent to a situation where they are living remotely from that parent will inevitably impact upon the child, who loses the benefit of the frequent interaction with the parent “left behind”.
97 Dr W, in his report, summarised the position as follows:
“79. Relocation would consolidate the family unit between the mother,
her partner, the new baby and the two boys.80. Relocation would have quite a significant impact upon the father. I am sure he is likely to be quite devastated by the move and his relationship with the children is likely to be permanently and irreparably weakened, especially with the younger child [my emphasis]. Communication tools such as Skype and telephone contact would be beneficial in helping to promote the relationship but I am not sure that the parties have a level of cooperation and communication for that to be as viable as it should be. As stated earlier, the idea of block school holidays has its merits, but the father’s lifestyle is better suited to smaller regular doses than large single blocks.”
98 Having regard to Blair’s age the frequency of his spending time with his father would assume a greater significance than it may with Brian.
99 Given the concerns that I have already expressed about the dynamics of the
parties’ relationship and their willingness to promote relationships, I share Dr W’s concerns that the relationship between the father and the children is likely to be “permanently and irreparably weakened”.
100 Inevitably, if the children were to reside in the North-West, then also their
relationship with their respective grandparents would be disrupted, probably more so for the father’s parents than the mother’s, as there is likely to be ongoing communication between the mother and her parents which can involve the boys, particularly given the close relationship that she has with them.
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101 One positive aspect of the move, however, would be, as Dr W observed, to
consolidate the family unit between the mother, Mr N, the new baby and the two boys. Whilst I accept the fact that Mr N presents as somebody who has a clear understanding of the desirability of maintaining a relationship between the boys and their father and I accept, no desire to interfere in that relationship, given his immediate proposed continuation of two weeks on, one week off 12 hour shifts, even if relocation were permitted, I suspect his influence would wane and eventually the responsibility for maintaining a relationship would fall to the mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis;
102 In considering this aspect of the matter, it is useful to re-emphasise that the
direction to the Court is to look at the practical difficulty and expense of the child exercising his or her “right to maintain personal relations and direct contact with both parents on a regular basis”.
103 The emphasis is, of course, to underscore that it is Blair and Brian’s right to have
direct contact with each of their parents on a regular basis, and to maintain personal
relationships with them.104 It is of concern to me that the mother presented her case without any proper or due enquiry as to the likely cost of travel between the North-West and Perth.
105 In her Minute of Orders Sought she suggests that “to facilitate the husband’s
time with the children … the children shall fly to Perth after the relocation with the costs of the flights to be borne equally by the parties. Changeover shall occur at the Perth Airport unless otherwise agreed”.
106 In her evidence the mother suggested that the cheapest flight between the North-
West and Perth was $180 return. I expressed some doubts about that figure and it was later accepted by the mother that the cheapest currently available airfare between the North-West and Perth was about $180 each way, however, that fare quote did not factor in seasonal variations such as school holidays. The mother then advanced evidence that if they were to relocate to the North-West, [the company] would pay “$12,000 per year towards the children’s airfares”. The extravagance of this claim indicated to me that the mother had given little real thought to the practicalities of transport. No evidence was given by or on behalf of the company about any subsidy for family members’ airfares, nor did Mr N offer any evidence about such a subsidy or contribution. Further, Mr N does not work for that company. He is employed by another firm, who contracts his services to that company
107 The cost of travel between the North-West and Perth is likely to be a significant factor for these parties.
108 The mother does not presently work for an income and would be dependent upon Mr N’s continued willingness to contribute towards the costs of the boys’ fares.
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109 The father himself is not in a strong financial position. He was previously
employed as a [mechanic], but left that employment to purchase a [vehicle] and work as a contractor. Regrettably, the commencement of his new business as a [contractor], in partnership with Ms S, coincided with the global financial downturn and I accept that his disposable income has been reduced and is presently quite modest. However, the father is optimistic about an improvement. He has previously represented to the Child Support Agency that he anticipates being in a position to draw an income of $50,000 once the business is established. At present, the father’s child support assessment does not reflect his optimism as to his future income, but ultimately, when the father’s position stabilises financially, he will have a child support liability commensurate with his income and the additional burden of contributing to flights over and above his family’s day to day expenses.
110 Either way, the cost is going to be real and significant, and will effectively fall,
in part, on the shoulders of an individual who does not have a legal obligation to contribute to the support of the parties’ boys. Similarly, in the father’s situation, to the extent that he is dependent on Ms S, who has a more regular income than the father through employment, he would be in the same position.
(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;(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
111 I deal with these three considerations together because, firstly, I have touched
upon each of them to some degree earlier in these reasons, and secondly, because they
overlap significantly in the circumstances of this case.112 I have been critical of the parties’ level of maturity and their inability to behave appropriately in front of the children.
113 I also expressed concerns about their attitudes to the responsibility of
parenthood, and their capacity to provide for and protect the emotional and intellectual
needs of the children.114 During the course of the proceedings it became very apparent that Brian was
used by the parties as a messenger. Further, that Brian, in particular, has been inappropriately involved in the proceedings and has a greater knowledge of the
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mother’s plans and proposals involving relocation to the North-West than was
appropriate. Blair is also aware of the mother’s plans.115 Brian was first made aware of the mother’s intention to relocate in or about
December 2007. The mother explained this because she “talks to the children a lot”. When asked by counsel whether she talked to them “too much” she answered “Brian doesn’t like surprises”. After orders were made on 28 December 2007, restraining the mother from changing the place of residence of the children without leave of the Court, Brian was told. The mother’s evidence was that he was sad as he “would like to go” and as to why she told him - because “I don’t lie to my children”.
116 Brian clearly has been told about the availability of [specific sports] and other
activities that are available in the North-West, to an extent demonstrating, in my
finding, that the mother has little or no concept of what is appropriate.117 However, the position with the father is probably little better, with the children being made aware of his negative views of such a move.
118 The mother sees the benefits for the children living in the North-West as
“country upbringing, freedom, the bush and as promoting a better life for the children, space and community” with the availability of “specific sports”, all activities that are available to the children where they currently live.
119 She does not think the children will suffer for seeing their father less, expressing
it as “I think Blair would understand” and that she did not “think at his age it would be a problem maintaining a relationship with Blair”. Of the relationship the father enjoys with Brian, the mother thought it was “good – sometimes”, but she was unable to accept that he genuinely wanted to spend time with the children.
120 She acknowledges that her proposals facilitate the boys spending a maximum of
44 days with their father under the proposed orders, however, she expressed the view
that it “would be more if the father ever came to the North-West”.121 I have little confidence in the parties’ ability to negotiate additional time, given the history to which I have referred.
122 As mentioned, I have particular concerns about Brian being used as a messenger
for the parties. It transpired during the course of the evidence that there was some concern raised about Blair having particular food allergies. This concern was transmitted to the father via Brian. His view was that to that point, Blair had eaten whatever he had and there had been no difficulty, therefore he was going to continue doing what he had done in the past. He did not make any attempt to communicate with the mother by letter, SMS, telephone or otherwise. The father received my very direct criticism of him during the course of the trial when I asked how it was that he could send more than 300 SMS’s to seek additional time, but could not bring himself to send one when the issue might have life threatening consequences. The father, to his credit, acknowledged the criticism as appropriate.
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123 On one occasion, when Brian had been out bike riding, a bike had fallen on
Brian’s leg when he had a spill. Brian suffered a burn to his leg. The father was not told that Brian had burned himself, although the mother took Brian to the chemist.
124 When Brian next visited his father, the burn appeared to be not only significant,
but infected, so much so that the father took Brian to hospital. The wound was dressed and Brian was prescribed antibiotics for the infection. The position for the father was that he wrote to the mother advising her of, and enclosing the antibiotics, although the mother does not “recall” getting a letter, she thought that the father’s mother had told her about the antibiotics.
125 Photographs of the injury were admitted into evidence and they indicated a significant burn and a significant area of infection that had been untreated.
126 No explanation was given by the mother as to why she did not seek proper
medical attention for Brian and no indication was given as to any reason why she did not communicate the injury to the father, notwithstanding the common position that each of the parties have on their proposed Minutes that the communicate with each other about medical issues.
127 Similarly, an incident over Brian’s haircut did the father little credit. Brian had
had what might be described as a Mohawk haircut or styling. The father took particular offence at the styling of his hair and threatened to re-cut it when Brian was next with him. This prospect caused Brian significant distress and he indicated he was not going to go to his father’s unless his father promised not to have his hair cut. The father made that promise and then broke it.
128 Brian has problems with his teeth. The father has health insurance that would
assist in the cost of treatment. The father has spoken to Brian about getting his teeth fixed, but left it to be discussed through Brian, and to raise with the mother, rather than discussing with the mother with whom it should have been discussed. In a similar vein, the father learnt that Brian was undergoing counselling “only by rumour”. Recently “negotiations” about Brian undertaking some gym classes were conducted in a perfunctory manner by SMS.
129 The incidents that I have recorded above are examples that came out during the
course of the evidence and frankly do neither party any credit. My concern is that the lack of communication, which is already acute, will become more so if the mother has the benefit of a significant distance between herself and the father, but more so between the boys and their father.
any family violence involving the child or a member of the child’s family;
130 I have dealt with this consideration elsewhere when discussing the primary
considerations and will discuss it further when considering the question of parental
responsibility.whether it would be preferable to make the order that would be least likely
to lead to the institute of further proceedings in relation to the child; and
any other fact or circumstance that the court thinks is relevant;
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131 I will consider these two aspects of the matter in my general discussion of the evidence further in these reasons.
Is the presumption of equal shared parental responsibility negated or rebutted?
132 Of the two circumstances where presumption does not apply, the one that is
particularly relevant to my consideration in this case is that of family violence. Family
violence is defined for the purposes of Family Law Act, as follows:“Conduct, whether actual or threatened , by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about his or her personal wellbeing or safety.” [s4(1)]
133 The definition is very broad and certainly in this case there has been significant
misconduct as between the parties, however I have available to me the jointly commissioned opinion of Dr W as to the nature of the relationship and the nature of the inappropriate interactions between the parties.
134 I accept Dr W’s opinion that the exchanges between the parties have been reactive and that they are indicative of the different personalities of the parties.
135 Certainly, the children have been exposed, as I have indicated, to highly
inappropriate behaviour between their parents. However, there is an overarching mutuality about their behaviour and whilst the events of 30 March 2007, when the mother’s hand was caught in the door of the utility, seen out of its context and particularly on the mother’s version, would be violence of a significant nature, put into its context and my accepting that it was not intentional, it assumes a very different character. I do not accept the actions of the father were deliberate, they were at their highest, in my finding, careless and were not as described by the mother in her oral evidence. In any case, where the interaction between the presumption and family violence must be considered and given the very broad definition of family violence, there must of necessity be imported a question of degree. For whilst family violence and its interaction with the presumption as to shared parental responsibility may be in absolute terms, it does not eliminate the ability of the Court to determine that it remains in the best interest of the child for the child’s parents to have equal shared parental responsibility. It is only the presumption that is negated, not the Court’s ability to make a positive determination.
136 Similarly, the presumption may be rebutted by evidence and a finding that it is
not in the best interests of the child for the presumption to apply. Again, the Court’s ability to make a positive determination that is in the best interests of these children is not affected.
137 I am satisfied that it is in the best interests of Brian and Blair that their parents
equally share parental responsibility. To order that either party have sole parental responsibility in this case, in my view, would be a mistake as at the presently demonstrated levels of maturity and insight, it may well be perceived as a reward or victory for the individual rather than bearing any relationship to the welfare of the child.
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138 My determination in this regard will require the parties to positively
communicate between each other as to issues affecting the long term. I have considered earlier in these reasons the desirability of the parties receiving assistance in improving their communication and I would express the hope that the parties reading these reasons and hopefully reflecting upon how their behaviour in the past, and lack of communication, has the potential to cause significant harm. I encourage them to embrace the possibility of improving their communication.
139 There is no doubt that these children will benefit from an improved and
mandated level of communication between the parties. It is now for the parties to step outside themselves, consider their behaviour and attitudes objectively and, if necessary, with the help I have prescribed, take appropriate steps to act appropriately in the interests of their children.
Having equal or substantial and significant time
140 Having determined that the parties should equally share parental responsibility
for the boys I must now turn to consider the provisions of s 65DAA, and consider whether or not, in the circumstances, I should make orders for equal time or substantial and significant time to be spent as between the parties.
141 Subject to resolving the question of relocation, the only effective variation that is
being sought by the parties is that by the mother, to reduce the father’s time from what it now is to each alternate weekend and to limit the time that the father spends with the boys over the Christmas vacation.
142 No evidence was advanced as to why these variations would be beneficial. The
father seeks minor variations to the current orders and I will deal with those when
considering what orders I propose to make.143 Accordingly, I do not need to embark upon a detailed consideration of the provision of s 65DAA, given the positions of the parties and the state of the evidence.
Discussion and conclusion on child related matters
144 The concept of relocation in child related proceedings involves an inherent
tension between the right of an individual to reside where they choose and the
subrogation of that right to the best interests of the children.145 The mother need not show compelling reasons as to why she should be
permitted to move with the children, however, the Court must be satisfied that her
reasons are bona fide.146 I have reflected in these reasons upon the lack of insight by the parties. The
mother’s position in her evidence is that the father does not want her to move to the
North-West, at least in part, out of spite.147 The mother does not think that the children will suffer for seeing less of their
father, but does appear to have a somewhat over-romanticised view of her move. She
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was asked in her cross-examination as to what she would do if she was unhappy after a move. Her answer: “It won’t happen”, and then further “I don’t believe I will be unhappy there”.
148 Counsel for the father asked her whether she had given any thought to any
contingency plans to which the mother answered that she had “thought about it – but haven’t come up with a plan yet” and “I’ll cross that bridge when I come to it”. The mother sees Mr N as being “a father figure to the children”, but does not see him as being anymore than step-father. She doesn’t consider that would change with isolation from their father in terms of reduced physical contact.
149 I certainly accept that the mother is motivated in terms of her partner to move to
the North-West.
150 I should add that whilst the mother always spoke of “The North-West”, her
parties moved to the southern suburbs as the mother did not enjoy living in the city
and experienced some home sickness.195 After the move to the southern suburbs, the parties initially lived in rental
accommodation and then purchased the land [in the suburb], upon which the matrimonial home as built and where the parties resided until separation. Following separation, the father first lived in the home, then the mother and finally, the father, until he commenced to reside with Ms S and thereafter the home was occupied by a friend of the father’s until its sale.
196 The father continued to commute between the southern suburbs and
[the location] where he was employed, whilst the mother obtained employment in the southern suburban area, initially as an administrative assistant for an accountant, then for [a store]. She continued in full time employment until shortly before Brian’s birth, returning there to work part-time one year later. Similarly when Blair was born she took a year off from [the store] and returned thereafter on a part-time basis. Since separation the mother has commenced a TAFE course in business studies.
197 Throughout, the father earned a good income approaching $70,000 per year towards the end of the marriage.
198 Throughout, the mother was the primary carer of the parties’ children from the
date of their birth and, to a very large extent, the parties maintained what might be described as “traditional roles” with the mother discharging the role of homemaker and making a greater non financial contribution to the family, particularly through that role.
199 Each of the parties’ parents contributed in a minor way through gifts and the
provision of loans, which were repaid. The mother received a personal injury settlement during the marriage and applied the sum received of $29,855.20 to the purchase of a car, towards the household generally and the repayment of debt. Some of the funds were used to fund the family hobby of [motor sport].
200 The case as presented on the affidavits by the parties overall suggests that the
contributions between the parties throughout the marriage were equal and that is the
position adopted in closing by the father.201 Counsel for the mother sought to argue that contributions should be assessed at
55/45 weighted in favour of the mother, based on the principles referred to Kennon and Kennon (1997) FLC 92-757, given the allegations of violence made by the mother.
202 I have considered the parties’ evidence about the allegations of conduct during
the relationship earlier in these reasons and do not propose to repeat the same, save to observe that the conclusion I reached does not support any adjustment based upon such an argument.
203 Overall the parties contributed all their respective earnings and energies to the
household. The father’s financial contribution was significantly greater than the
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mother’s, but came at a cost of long working hours, which then increased the
homemaker and parental contribution burden on the mother.204 The parties shared some of the household chores, and the father contributed his
skills and time toward the family hobby of motor sports in which both the parties and particularly Brian were involved. Brian has his own [car] which the parties agree is to be retained for his benefit.
205 I find that the contributions made during the course of the relationship are equal
and there is nothing in the post separation contributions of either of the parties, where the father has continued a financial contribution, and the mother continued a parenting contribution, is such as to alter that finding.
Section 75(2)
206 I deal with each of the matters prescribed for the purpose of s 75(2), as are relevant to this matter:
The age and state of health of each of the parties
207 Both the parties appear to be in reasonable health, although the mother has had a
history of some depressive illness, neither of the parties disclose any long term continuing health issues that are likely to affect the general wellbeing and earning capacity.
The father is now 36 years of age and the mother 34 years of age.
The income property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
208 Each of the parties has a capacity for gainful employment, although the mother
has recently given birth to her child with Mr N. The mother does not have any formal qualifications and has previously worked in employment that did not require such qualifications. Since the parties separated she has moved to improve her qualifications, having undertaken business studies at TAFE.
209 The father is a qualified mechanic with a significant work history in that
industry.
210 Post separation, the father commenced his own business in partnership with Ms
S as a contactor. The father’s aspirations for the business are that long term his financial position will be better than that when he was working for wages.
211 The mother asserts that the father has deliberately reduced his income through giving up wages employment and entering into a partnership with Ms S.
212 I am not satisfied that the father’s actions were intended or motivated by a
minimisation of income. Indeed, the representations that he made to the Child Support Agency about his future income, were optimistic, and with the effects of the global financial crisis they turned out to be significantly over optimistic. However, the father
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is now confident of the security of a growing income through his move to self
employment.213 I also accept that the income earned by the father previously involved a
significant commitment to overtime, on-call work and weekend work, as well as a significant commute. I do not find it was unreasonable for the father to make the decision that he did, nor do I consider that he should have foreseen the global financial crisis and its immediate domestic consequences.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
214 It is the common position of the parties that their two boys will reside primarily
with the mother.
Where the parties have separated or divorced the standard of living that, in all the the cohabitation
circumstances, is reasonable, and
215 I deal with these two matters together as largely, in the circumstances of the
parties, they overlap, as each of the parties has entered into another relationship and
each of the parties has a financial involvement with the partner.216 The father has a very specific involvement with Ms S through the joint purchase
of the property, the accepting of joint commitments in the creation of a partnership for the business and a joint responsibility with respect to the liabilities assumed for the creation of that business.
217 To date, the father has been significantly dependent upon the certainty of Ms S’s
income through her part-time employment, in being able to make the business
decisions that he and Ms S have made.218 The mother is in a relationship with Mr N who, through his employment, is in receipt of an income estimated at $153,000 per annum.
219 Mr N and the mother have a child together, Charlie, and Mr N has a legal
responsibility to support both the mother and the child, having regard to the nature of
their relationship.The need to protect a party who wishes to continue that party’s role as a parent
220 As I have mentioned earlier, the mother has and will continue to have the
primary responsibility for Brian and Blair and she shares with Mr N the responsibility
for their child, Charlie. The mother wishes to continue in that role.The terms of any order made or proposed to be made under s 79 in relation to the property of the parties
221 It is the common position of the parties that there should be a greater settlement
upon the mother than the father. The father proposes a 20% differential, the mother
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proposes a 60% differential. Either way, the mother’s position will be immediately superior in terms of resources settled upon her from the assets acquired by the parties during their relationship and the subject matter of these proceedings. However, neither proposal places any greater burden on either of the parties as all the property to be distributed between the parties is presently available in specie or in cash and the superannuation resources are to be split between the parties.
222 Accordingly, the orders that I propose to make in this matter will not impact
upon either of the parties’ day to day commitments through the placing of any
additional financial burden upon either of them.Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage
223 During the course of these proceedings the mother has made much about what
she has seen as the father’s attitude to child support, particularly through the change in
his employment, to which I have referred above.224 The matter has been considered by a delegate of the Registrar of Child Support
for the purposes of Part 6A of the Child Support (Assessment) Act, an as I have remarked, the father, in fact, had over estimated his financial position “significantly”, from which the mother derived the benefit of an additional payment of child support.
225 Prior to the change in the father’s employment, he was paying child support
initially slightly under $1,000 a month and thereafter slightly over, as well as meeting
other liabilities to preserve the assets of the marriage.226 I do not find that the father has shirked his child support responsibilities as the
mother would have me find. I do note, however, that the father’s circumstances appear to be improving, particularly with the securing of an open-ended and favourable [contract]. It would seem that his financial expectations from that contract are yet to be reflected in his child support assessment and no doubt, that is a matter that the mother will take up with the Child Support Registrar, as is her right, in the event that the appropriate rate of child support cannot be agreed between the parties.
Conclusion as to s 75(2)
227 As noted earlier in these reasons, it is the common position between the parties
that there should be a differential between them, with a loading in the mother’s favour.
The father concedes a 20% differential, the mother seeks a 60% differential.228 I am not satisfied that the adjustment in these circumstances that should be made
is as great as the mother seeks. The mother is now in a relationship which she sees as open-ended and secure, where she has financial security for herself. The mother has a history of working and is studying to improve her position overall.
229 The mother will continue as the primary carer for the children and will have the
primary day to day obligation to meet their needs, subject to an appropriate rate of child support being paid. Whilst I have no doubt that some of the responsibility
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ultimately will fall to Mr N’s generosity, he has no legal obligation to contribute to the support of the parties’ children. In a similar vein of course, the father has the security of his relationship with Ms S.
230 The asset pool in this case is a modest one. The mother does not have the independent earning capacity that the father has.
231 On balance I am satisfied that a differential of 20% is not sufficient, but a
differential of 60% is excessive. I am satisfied that there should be an adjustment of 15% (that is a differential of 30%) in favour of the mother, having regard to the relevant factors as I have set out above.
Conclusion
232 For the reasons I have given above, I have included in the asset pool the monies
removed from the mother at separation as an add-back, together with the non contentious add-backs and I have allowed the personal loan liability of $15,000. The net pool of assets therefore available for distribution between the parties, excluding superannuation, is $240,287. 65% of that sum equates to $156,187 rounded up to the nearest whole dollar.
233 The mother retains the following assets:
[Her Vehicle] 11,900
Her furniture 6,570 Her jewellery 9,624
The proceeds of the sale of shares 54,433 Her contribution to the Single Expert’s report from the
proceeds of sale of the home 2,310 The post separation withdrawal to be added back 13,000
Total: $104,361
234 A balance of $51,826, from the proceeds of sale of the home must therefore be paid to the mother to achieve the outcome I have decided.
235 I propose to split the superannuation in the same proportions, particularly having
regard to the fact that the father is more likely to be able to rebuild his superannuation resource than is the mother. Further, I have regard to the significant portion of the pool that is comprised in superannuation and the relatively modest amount of cash that the father will have access to as a consequence of my proposed orders. To modify the superannuation split to the father by reducing the percentage split to the mother and increasing the cash payment to the mother would, in my finding, be inequitable. As was noted by Thackray AJ (as he then was) in Woollams and Woollams (2004) FLC 93-195, and considering a similar problem his Honour observed”
“This creates a dilemma for the Court since the asset pool in this case is such that almost inevitably the husband’s share of the property will largely comprise superannuation entitlements, whereas the wife’s share will be
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made up by assets that are readily available. It was just such a dilemma that the superannuation amendments to the Family Law Act were designed to address.”
236 In determining a just and equitable outcome overall in this matter, I also find that
were there to be any greater percentage adjustment in favour of the mother, that the result, having regard to the size of the pool, would be inequitable, particularly having regard to the limited amount of liquid assets available for distribution between the parties.
PROPOSED ORDERS
Property orders
1. The balance of the proceeds of sale of the former matrimonial home be divided between the father and the mother such that the mother shall receive $51,826 thereof and the father the balance.
2. The mother shall retain as her sole property free of claim by the father:
• the [motor vehicle]; • her furnishings and effects; • her jewellery; and • the proceeds of the sale of the [shares] 3. The father shall transfer to the mother the registered ownership of the [motor vehicle] with the mother to bear any charges applicable thereto.
4. The father shall retain as his sole property free of claim by the mother the motor vehicles registered [XXXXX ] and [XXXXX ];
• the [utility]; • the car shell and car trailer; • his tools; • Quad bike; • [Memorabilia]; • model cars; • his furnishings and effects; • his jewellery free of claim by the mother. 5. Each party shall retain their separate bank accounts and discharge their several debts without calling upon the other to contribute thereto.
6. There be a superannuation splitting order to effect an adjustment in the total superannuation entitlements of the parties such that the mother will be entitled to 65% thereof and the father the balance, with orders to be made giving effect to this proposed order as drafted by the father’s counsel and approved by the father’s superannuation funds or such of them which shall be affected thereby.
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7. Liberty to the parties and any effected superannuation trustee to apply for consequential orders.
8. That the father shall hold the [car] on trust for the sole benefit of the child Brian, until such time as Brian shall be lawfully entitled to hold the legal title thereto.
Parenting Orders:
1. That the mother be restrained and an injunction is hereby ordered restraining her from changing the principal place of residence for the children of the parties, BRIAN T born [in] March 2000 and BLAIR T born [in] February 2006 (“the children”) from the [the southern suburbs] without the father’s written consent.
2. That the parties do equally share parental responsibility for the children.
3. The children shall reside with the mother and spend time with the father as
follows:
A Each alternate Thursday from directly after school, in the case of Brian, and 2:00 pm in the case of Blair until 5:30 pm Sunday, with the father to collect the child Blair form the mother’s home or day care as the case may be, with the mother to notify the father if Blair is attending day care, and the mother to collect the children from the father’s home on the Sunday. B Each intervening Thursday from directly after school with Brian and 2:00 pm with Blair (from the mother’s home or day care as the case may be, with the mother to notify the father of Blair is at day care) until 7:00 pm with the father to collect the children at the commencement and return them to the mother’s home at the conclusion. C During the April, July and October school holidays from 9:00 am on the Sunday falling on the middle weekend thereof until 5:30 pm on the last Sunday of each such holiday period. D In the Christmas school holidays, for a period of two consecutive weeks commencing 4:00 pm Christmas Eve in odd numbered years, and 4:00 pm on 27 December in even numbered years and concluding at 6:00 pm on the last day thereof, with the father to collect and return the children from and to the mother’s home. E On father’s day in each year from 9:00 am until 5:30 pm in the event that the children are not otherwise spending time with the father, provided however that the father’s time with the children shall be suspended on mother’s day in each year from 9:00 am until 5:30 pm in the event that the children would otherwise be spending time with him. 4 The parties shall each facilitate and permit regular telephone contact with the parent with whom the children are not residing or spending time with.
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5 The parties shall each have liberty to liaise with and discuss the children’s progress and welfare with all educational and health care professionals and be entitled to receive directly from them all medical and school reports and communications and attend at and participate in functions organised by any school, educational or sporting event in which the children are participating.
6 The parties shall each immediately notify the other of any major illness or injury suffered by the children or either of them whilst in their respective care.
7 The parties and each of them are restrained and an injunction is hereby ordered restraining them and each of them from removing the children from the State of Western Australia without the consent of the other, which consent shall not be unreasonably withheld.
8 That as soon as is practicable the parties shall attend upon the Director of the Family Relationship Centre The southern suburbs and undertake such counselling as the Director or his or her nominee shall direct, or in the absence of a direction from the [local] Family Relationship Centre, then as the Director or her nominee of Family Court Counselling and Consultancy Service shall direct
9 To assist in the assessment of the counselling required by the parties the parties shall provide a copy of this judgment to the [local] Director of the Family Relationship Centre.
10 That the application and response do otherwise stand dismissed.
I certify that the preceding [236] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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