T and M
[2006] FCWA 108
•27 OCTOBER 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | [The Regional Centre] |
| CITATION: | T and M [2006] FCWA 108 |
| CORAM: | THACKRAY J |
| HEARD: | 30, 31 MAY, 1, 2 & 30 JUNE 2006 & WRITTEN |
SUBMISSIONS
| DELIVERED: | 27 OCTOBER 2006 |
| FILE NO/S: | PT 3958 of 2005 |
| BETWEEN: | T Applicant/Mother |
| AND | |
| M Respondent/Father | |
| Catchwords: |
Children - residence - proposed relocation [intrastate] - effect of statutory amendments
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Legislation:
Family Law Amendment (Shared Parental Responsibility) Act 2006 Family Law Act 1975, s 60B, s 60CA, s 60CC, s 65DAA, s 60DAE Category: Not Reportable
Representation:
Counsel:
| Applicant: | Ms B Lane |
| Respondent: | Mr S Moncrieff |
Solicitors:
Applicant:
Respondent:
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160
B & B Family Law Reform Act 1995 (1997) FLC 92-755
C and G [2006] FCWA 57
Cotton & Cotton (1983) FLC 91-330
U v U (2002) 211 CLR 238
Walls and Robinson (2006) FLC 93-251
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1 [Ms T] wants to take the three children of her marriage to
[Mr M] to live in [the regional centre]. [Mr M] wants them to stay
in [the home town], ideally living with him, but otherwise with[Ms T].
Orders sought
2 [The mother]’s proposed orders were set out in her Papers for the Judge. If she is allowed to move to [the regional centre], she suggests the boys spend half of all school holidays with [the father]. (In fact, at trial she offered slightly more time.) In addition, she was agreeable to [the father] spending extra time with the boys if he comes to visit [the regional centre]. If she is required to remain in [the home town], [the mother] wants contact to continue in accordance with the current arrangements.
3 [The father]’s proposed orders were contained in his Minute filed in May 2006. He put forward a variety of alternative proposals. His primary proposal is for the boys to live with him in [the home town] and for them to see [the mother] regularly. If the boys are to remain living with [the mother] in [the home town], he wants them to spend time with him whenever he is not away working. If [the mother] is permitted to relocate to [the regional centre], [the father] wants the boys to stay with him for most of the school holidays.
Brief background
4 [The father] is 39 years of age. He is employed as one of two [managers] of a [business] working in rotation out of [the home town]. [The father] was born in [the regional centre] and spent his childhood, and part of his adult life, in and around that town.
5 [The mother] is 32 years of age. She has had a variety of jobs, but at the time of trial was working on a part-time basis, five days a week, doing [clerical and sales work].
6 [The father] and [the mother] commenced their relationship in 1993. They were married in 1996. They met in Perth, but spent some time in [the home town] before moving back to the city. They ended up living in [the regional centre] in 1997, before moving to [the home town] in 2002.
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| 7 | [The father] and [the mother] separated in December 2004. [The father] has not re-partnered, but [the mother] soon commenced living with [Mr S]. [Mr S] also grew up in [the regional centre]. He was working as a [labourer] at the time of the trial. |
| 8 | There are three children of the marriage, [J] and [B], both born in 1996, and [C], born in March 2000. The boys have mainly lived with [the mother] since separation, but have had fairly regular contact with [the father] when he has been home from [his employment]. |
| 9 | The trial was conducted in [the home town] over four days in May/June 2006. The hearing took longer than anticipated and the matter was adjourned part-heard, with the trial being completed in Perth at the end of June 2006. |
Applicable law
10 The trial was concluded immediately prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Nevertheless, the substantive provisions of that Act apply to this case. Both counsel made helpful written submissions concerning the impact of the amendments on “relocation” cases.
11 Section 60CA of the Family Law Act 1975 makes clear that I am required to treat the best interests of the children as the paramount consideration. In doing so, I will be guided by the objects of Part VII of that Act and the principles underlying those objects. 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
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ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
12 These objects are somewhat more comprehensive than the previously stated single object of Part VII. Prior to the recent amendments, s 60B(1) provided:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
13 The first of the new objects of Part VII is far from novel. It echoes two of the guiding principles which were previously to be found in s 60B(2) of the Act, namely:
“(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”
14 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the stated objectives of the law relating to children. In B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this, in speaking of the 1995 amendments:
“It is clear that many of the aims of the Reform Act are long- term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
15 Notwithstanding the changes of emphasis and terminology enacted in 1995, the Full Court was in no doubt about the core task of Judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
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“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub- section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
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Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet (1984) FLC 91-507; (1984) 156 CLR 605, and ZP v PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical
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and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
16 It will be noted that the Full Court made many references to
s 65E in the above citation from B & B. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in Part VII. In my view, most, if not all, of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the recent amendments. In particular, it remains the case that s 60CA, the successor of s 65E, “defines the essential issue”.
17 On this occasion, Parliament has given legislative voice to what was already in practice a (rebuttable) presumption that responsibility for decision making about children should be shared equally between parents. It has provided more guidance to the Court about the matters to be taken into account in discharging its fundamental task of establishing what is in the best interests of children. It has also directed the Court, save in limited circumstances, to consider certain possible outcomes before determining the outcome that best suits the needs of the individual children who are the subject of the proceedings. Had Parliament wanted to go further, it could have done so. Instead, it left the ultimate determination to the Judge hearing each individual case on its unique merits. To borrow the phrase of the Full Court in B & B,
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the Act still contemplates individual justice. Accordingly, my objective in deciding this case is to ensure I treat the best interests of [J], [B] and [C] as the paramount consideration – i.e. what is best for them will be the final determinant.
18 Section 60CC sets out the matters I must take into account in determining what is in their best interests. Section 60CC(2) details what are described as the “primary considerations” and s 60CC(3) details “additional considerations” to be taken into account in determining what is in the children’s best interests. This dichotomy between “primary” and “additional” considerations has also been introduced into the legislation by the recent amendments.
19 There is, as yet, no guidance from the Full Court as to the way in which respect is to be paid to the intention of Parliament in specifying two factors as being the “primary” considerations. In preparing my reasons, I have had the benefit of reading a paper prepared by the Honourable Richard Chisholm, following his recent retirement from judicial office. The paper, entitled ‘The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview’, was delivered in May 2006. I do not propose to set out here what I respectfully regard as being the learned author’s compelling analysis of the appropriate treatment of the division between “primary” and “additional” considerations. I adopt his summary of the significance of some of the considerations being characterised as “primary”.
“Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.
…[T]he primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.
If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of Part VII, what orders are most
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likely to serve the best interests of the children who are the
subject of the proceedings.”
20 It is also worth observing, as Professor Chisholm did in his recent presentation at the 12th National Family Law Conference in Perth, that Parliament must surely have made a considered decision when electing to describe the second raft of factors to be taken into account as “additional”, rather than “secondary”. The latter word might have been expected to be employed to describe the factors appearing in the Act immediately after the “primary” factors. The use of the word “secondary” would have made clear that these factors were “next below” or “depending on or supplementing what is primary”, but this was not the word chosen. Parliament elected instead to use “additional” – which means precisely that – something that is to be added to what has already been stated.
Preliminary observations
21 [The mother] made a very good impression in the witness box. Indeed, it was difficult to reconcile her remarkably “prim and proper” demeanour with her self-confessed past conduct. She gave her evidence with considerable eloquence and appeared to be of above average intelligence. The answers she gave during a penetrating cross-examination suggested she was a mature young woman, with much common sense and a focus on the best interests of her children.
22 [The father] also made a generally good impression. Although he presented as a rather “ocker” type of fellow, I felt he was of somewhat gentler character than his appearance suggested. He also seemed an intelligent man, although not as articulate as [the mother]. He gave every impression of being deeply attached to his sons and very concerned about being separated from them any more than he has been to date.
23 I found it difficult to determine issues of credibility, as I did not find either party to be an entirely reliable witness – although I thought [the mother] probably came closer to the truth more often. In the course of these reasons I will be required to make a number of findings of fact. Many of those “facts” have not been proven beyond all doubt, but only on the balance of probabilities. I therefore apologise in advance to both parties for those instances where I “get it wrong”. I have done my best on the evidence available. There is, nevertheless, one thing about which I am sure. Both parties were unfairly critical of the other – neither was as bad as portrayed.
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| 24 | I consider [the mother] and [the father] are both fundamentally decent people. It seemed many of their criticisms of each other really stemmed from their problems with drugs and alcohol during the marriage. Their ongoing criticism relating to the post-separation period related to the type of issues that are common in many relationship breakdowns. These include: | |||||||||
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| 25 | [The mother] and [the father] were not assisted in overcoming these problems by initially agreeing to very vague contact arrangements, which increased rather than lessened the opportunity for dispute. The voluminous and acrimonious correspondence between the respective solicitors also appears not to have helped. Matters seem to have been exacerbated by the fact that each parent was too ready to believe everything the boys had to say about what was being done and said in the home of the other parent. | |||||||||
| 26 | [Mr S] presented as a reasonably straight young man, but I gained the impression he can be quite belligerent. I had some serious doubts in relation to his credibility, especially about the confrontations he has had with [the father]. He gave a rather one- sided version of their interactions and initially failed to mention those parts of conversations in which he antagonised [the father]. | |||||||||
| 27 | A most unfortunate element of the family dynamics has been the conflict that has emerged between [the father] and [Mr S]. The overall impression I gained was of two grown men, much more interested in asserting machismo than shielding young boys from conflict. Each of them blames the other, but each needs to take responsibility for their own actions. I consider [the father] has been so keen to demonstrate his dislike for [Mr S] that he has sometimes overlooked the impact on the boys of being exposed to | |||||||||
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| adult quarrels. On the other hand, I consider [Mr S] has not been sensitive to how difficult it has been for [the father] to see him usurping the role he previously enjoyed in the boys’ lives. Both [the father] and [Mr S] need to appreciate that the other is probably not going to disappear any time soon. They can either continue behaving as they have been – or they can make a fresh start, recognising that they both hold important keys to the good start in life for the boys, which I am sure is their common goal. | ||||||||||
| 28 | I do not intend to make any comments regarding the witnesses [Ms M] and [Mr D]. Although there was much controversy about what they had to say and what others had to say about them, I considered there was sufficient evidence to allow me to make my decision without having to make findings. This is fortunate, since although much of their evidence seemed to be given truthfully, there were a number of instances where I was unable to determine whether they were telling the truth. I nevertheless consider [Mr D] should be commended for attempting to remain even-handed, notwithstanding the serious allegations made against him. |
Parental responsibility
29 [The mother] and [the father] both sought orders that they have shared responsibility for what was called the children’s “long term care, welfare and development”, prior to the legislative amendments. Translated into the language of the Act in its amended form, [the mother] and [the father] agree they should have equal shared parental responsibility – at least for “major-long term issues”. In these circumstances, it is unnecessary to consider the application of the presumption of equal shared parental responsibility now to be found in the Act.
30 The parties each sought an order that they have sole parental responsibility for what was previously called the children’s “day- to-day care, welfare and development”. Neither sought to limit that responsibility to the time the children are in their care. In this regard, I am not sure the form of proposed orders matched the parties’ intentions. In any event, s 65DAE now provides that if a child is spending time with a parent pursuant to an order, that order is not taken to require that parent to consult with the other parent about decisions that are made in relation to the children, other than major-long-term issues – unless the order specifically says so. There was nothing in the evidence to suggest it would be appropriate to permit one parent to have authority for making day- to-day decisions concerning the children when the children are in
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the care of the other parent. I therefore consider there is no reason
to make an order varying the effect of s 65DAE.31 As I propose to make an order for equal shared parental responsibility, the provisions of s 65DAA are triggered. I am therefore obliged to consider whether or not the children spending equal time with each of their parents would be in their best interests and “reasonably practicable”. If I decide not to make an order for the children to spend equal time with each of the parents, I must consider whether or not it would be in the children’s best interests to spend “substantial and significant time” with each of them and, if so, whether such an order would be “reasonably practicable”.
32 Section 65DAA(3) makes clear that a child only spends “substantial and significant time” with a parent if that time includes days that do not fall on weekends or holidays and the time is such as to:
• allow that parent to be involved in the child’s daily routine; • allow that parent to be involved in occasions and events that are of particular significance to the child; and • allow the child to be involved in occasions and events that are of special significance to the parent. 33 Notwithstanding these are matters the Court is now expressly required to consider as a result of the legislative amendments, the fundamental question remains what form of orders is most likely to promote the best interests of the children. If the relocation of one parent is the outcome most likely to promote the best interests of the children, then it would ordinarily not be “reasonably practicable” for the children to spend equal time or “substantial and significant time” with both parents – unless the parent who would otherwise be left behind decides to move as well, or is ordered to do so.
34 I am unaware of any case where a Court has made an order requiring the non-resident parent to move with the resident parent, so as to ensure the children remained in close proximity to both parents. (See the review in McConvill, J; Mills, E, ‘A Theory of Injustice: the Flip Side of the Relocation Coin in Australia’, (2004) International Family Law, 99.) On the other hand, I am unaware of any case where a Court has been asked to make such an order. The possibility of making such an order was not canvassed before me, and it is therefore inappropriate to do more than note there are likely to be impediments to such orders being made, including
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constitutional concerns. (See for example various dicta of members of the High Court in AMS v AIF (1999) 199 CLR 160 at [45], [48], [87], [88], [103], [104], [191], and [213]. See also remarks made by the Full Court of the Family Court of Australia in B & B (supra) at [10.62] and [10.64].)
35 The inability (or reluctance) of the Court to make an order requiring the non-resident parent to relocate with the resident parent should not be allowed to obscure the fact that there is more than one way children can continue to live in close proximity to both parents. By the very nature of relocation disputes, one parent has a strong desire to stay in the current locality and the other parent has a strong desire not to do so. The desires of one must inevitably give way to the desires of the other. There is nothing in the legislation which indicates there should be any presumption in favour of both parents residing in the current location. The clear thrust of the legislation is that it is ordinarily desirable for both parents to retain meaningful involvement in their children’s lives and for each parent to spend as much time with their children as is reasonably practicable. This can be usually achieved wherever the children happen to be living, especially when the relocation is within Australia. (See in this regard the remarks of Gaudron J in U v U (2002) 211 CLR 238 at [35] and Hayne J in the same case at [175].)
36 In making these observations, I accept that in the “typical” case, there may be strong reasons to require one parent to remain in the area in which they have previously been living. However, this is not because there is any presumption in favour of the current geographical location, but rather because it will often be in the best interests of a child not to disturb their existing circumstances – for example, because the children are well settled in a local community and happy in their school. In other cases, there may be countervailing factors, or these types of factors may not apply at all – for example, in the recent matter of C and G [2006] FCWA 57, I was required to deal with a relocation application that was filed within a matter of days of the arrival of both parents in Perth.
37 The purpose of this discussion is to indicate that when considering making orders that will allow the parents to spend equal or “substantial and significant” time with the children, I am not bound to do so in the context of a mindset that this can only occur in [the home town]. It could just as easily occur if both parents moved to [the regional centre]. If it is the children’s best interests, I can make an order that permits [the mother] to move to
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[the regional centre], but at the same time make an order for [the father] to have equal or “substantial and significant” time with the children. It will then be a matter for him to decide if he wants to avail himself of the benefit of the Court’s order by moving to [the regional centre], which presumably he would do if he considered that otherwise he would be denied meaningful involvement in his children’s lives.
The primary considerations
38 I turn now to the primary considerations to be taken into account in determining which of the competing arrangements would be most likely to promote the boys’ best interests.
The benefit to the child of having a meaningful relationship with both of the child’s parents
39 Before considering the evidence relevant to this factor, it is appropriate to reflect on the language Parliament has used in describing this, the first of the primary considerations to be taken into account.
40 It is appropriate to begin by recording that judges of the Family Court have long considered the relationships children have with their parents to be of utmost importance in determining their best interests. For example, in Cotton & Cotton (1983) FLC 91- 330, Nygh J said, at 78,252-253 (my emphasis added):
“The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration, which is in my view the one and only principle to be applied. It means that in each case the Court must make an independent investigation of what the welfare of the child requires, and the Court is not very much assisted by recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions into presumptions which can only be displaced by evidence to the contrary.
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated. It is a trite observation that the parties to
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a marriage may divorce one the, but they can never divorce themselves from their children. In that sense, the parties remain tied to one the, at least, until those children can stand on their own two feet which may not necessarily occur at 18 years of age or 21 years of age.
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child – it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.”
41 I consider the observations of Nygh J to be most instructive when considering the meaning to be given to this factor. The focus of the provision is not on the “meaningful relationship”, but on the “Benefit to the child” of such a relationship. As Professor Chisholm has said in the paper cited above, the amendments to the Act do not indicate that “the maintaining of the relationship is an end in itself”.
42 I find that the boys have a close and loving relationship with both their parents. They have maintained that relationship with [the father] since separation, even though they have not spent a great deal of time with him. I consider there would be much benefit to them in having an ongoing meaningful relationship with him, as well as with [the mother]. Parliament has indicated that this must be a “primary consideration” in reaching my decision. I would, in any event, have placed much weight upon it.
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| 43 | The significant weight I intend to give to this factor is not in any way conclusive of the outcome. Apart from anything else, I am not persuaded that children are prevented from having a meaningful relationship with their parents if they see them only during school holidays. I do not consider it can be reasonably argued, for example, that the many children from rural and remote locations who attend boarding schools are denied a “meaningful relationship” with their parents. Many children over the years have attended boarding schools of the type to be found in [the regional centre] and other major provincial centres. Whatever advantages or disadvantages may be associated with attending such schools, I have not seen any evidence to suggest that enforced absence from both parents during school term time has a negative impact on children’s relationships with their parents. On the contrary, it might fairly be argued it has a beneficial effect, since children sent away to school no longer take the presence of their parents for granted. |
| 44 | In making these observations, I am acutely conscious that it is unsafe to generalise when dealing with the lives and wellbeing of children. It is particularly important to recognise that what might be true of a child of 13 years of age is unlikely to be true of a very much younger child. In the present case, [C] is only six years of age. Even for his older brothers, a school term is a long time. I accept it would be harder for the boys to have a meaningful relationship with their father if they only saw him during school holidays. |
| 45 | I was referred in the written submissions to comments made by Carmody J in his impressively researched decision of Walls and Robinson (2006) FLC 93-251, where his Honour said at 80,270:– |
“Realistically, pre-teenage children cannot maintain a meaningful relationship with the absent parent and parents cannot adequately fulfil his or her duties and properly meet the responsibilities concerning the care, welfare and development of their children, without spending substantial periods of time with them on a regular basis.”
46 Informed minds can differ on such matters and the statement abounds with terminology that requires subjective interpretation. Nevertheless, I am not persuaded that his Honour’s remark, quoted in isolation, holds true as a blanket proposition.
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The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
47 Neither parent would knowingly expose the children to physical or psychological harm. However, whatever may have been their practices when living together, I am satisfied [the father] has much more relaxed boundaries for the boys than [the mother]. As a result, I consider there is slightly greater potential for them to be exposed to harm when in his care. I thought it possible there was some truth in the suggestion (allegedly made by the children) that sometimes the boys are the ones looking after their father, rather than vice versa. I suspect this may be so because [the father] occasionally drinks too much alcohol.
48 Although some of the matters that troubled [the mother] did not appear to be of great moment, the combination of them suggested she has grounds for some concern about the safety of the children when they are with their father. Although I was not necessarily convinced each and every one of the following happened, I am satisfied a number of them did – and are the sort of thing [the father] might do when he has the children in the future:
• taking the boys out on the open water in a [boat], albeit close to land, without life jackets (on a day when [the father] himself thought it might be a “bit rough”); • driving contrary to the road rules, sometimes after drinking and sometimes with the children in unsafe positions in the vehicle; • sleeping-in and allowing the children access to a swimming pool unsupervised; • turning up drunk (or at the very least heavily hung-over) at the start of a contact visit; • allowing the children to view inappropriate movies. 49 I recognise that during the marriage, [the mother] also engaged in some of the sort of behaviour about which she now complains. Although I consider [the father] was likely always to have been the greater risk taker, I am nevertheless satisfied now they have separated that [the mother] is less likely than [the father] to behave in this way.
50 [The father] is going to have extended periods of time with the children, regardless of the outcome of the proceedings. I therefore
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do not regard this factor as being of much moment in deciding whether the boys go to [the regional centre] or remain in [the home town], but I consider it does have relevance to the issue of whether it is appropriate for them to spend equal or substantial and significant time with [the father]. Its relevance is not so much because of the risk of serious harm, but because these matters are indicative of [the father]’s overly relaxed boundaries for the children. I consider [the mother] is more likely to provide them with a stable and disciplined upbringing if she has them living with her most of the time.
Additional considerations
51 I turn now to discuss the “additional considerations” I am required to take into account.
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;
52 The children were not formally interviewed and I therefore have no independent record of their views. I would not place much weight on what the boys have said to either of their parents. I consider the boys are likely to be highly conflicted in their views. It nevertheless seems to me likely, even from [the father]’s own evidence, that they have a preference to remain living with their mother and would want to accompany her if she moved to [the regional centre]. However, they also love their father and would miss seeing so much of him. Although they would be sad about seeing their father less frequently, I do not consider this in itself would have any lasting effect – especially if he kept in touch by telephone and saw as much of them as his work and finances permit. I also suspect that they would want him to follow them to [the regional centre] if I permitted their mother to move.
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);
53 The nature of children’s relationships with their parents and others is the product of countless interactions. The way in which parents have decided to nurture and care for their children has an inevitable effect upon the nature and quality of relationships within the family.
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Relationship with parents
54 There was a great deal of dispute about which parent was more actively involved in the care of the children prior to the separation. I was not convinced either party provided an accurate representation and I consider the truth lay somewhere between the competing versions. What cannot be in doubt is that for significant amounts of time, [the mother] was caring for the children alone, whilst [the father] was away working, earning a living to support them. I am satisfied that when he came home, he took on a fair share of (at least) supervision of the children and basic childcare. I am not satisfied that he became the primary carer as claimed. Nor was I satisfied that [the mother] socialised to the extent claimed, but I accept when [the father] did come home she often took the opportunity to have a social life she found difficult to enjoy when he was away.
55 It is also noteworthy that when [the father] moved to [the regional centre] in 1997 and, again, when he moved to [the home town] in 2002, he went ahead of the rest of the family. [The mother] remained behind caring for the boys – on the second occasion they were apart for more than three months.
56 [The father] has continued to work in the [industry] since separation. This involves him being away from his [home base] for extended periods on a frequent basis. He has had relatively limited contact with the boys, who have predominantly been cared for by [the mother].
57 As a consequence of the way in which the children have been raised, I consider it is reasonable to assume that they would perceive [the mother] as the constant parent in their lives. They have never been used to living away from her, save for the relatively short periods of contact they have enjoyed with their father.
58 Notwithstanding the undoubted closeness of their relationship with [the mother], I accept that the boys also have a close and loving relationship with [the father]. I gained the impression they miss him when he is away and enjoy many of the outings he arranges for them when he is home.
Relationship with [Mr S]
59 The boys also seem to have a good relationship with [Mr S]. He has been living with their mother since soon after the separation. It seems the boys fell into the habit of called him
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“Dad” at an extraordinarily early stage of their association (albeit at
a time when they were not seeing a great deal of [the father]).
[Mr S] appears to have taken an appropriate interest in the boys’
sport and education. Although I am satisfied the children have a
good relationship with him, I was not persuaded it was as close or
as important as the one they have with both their mother and their
father.Relationship with grandparents and other relatives
60 I was not satisfied that the children have had enough to do with their grandparents for them to have a particularly close relationship. I am therefore not influenced in coming to my decision by [the mother]’s assertion that it would be good for the boys to live in [the regional centre], because they would be closer to their grandparents in Perth. (I understand [the father]’s father lives in [the regional centre], but there is no suggestion from either party that the children will have anything to do with him.)
61 [The mother] also relied on the proximity to [the regional centre] of [the father]’s sister and her son as being the factor to support her application. [The father]’s sister used to live in [the regional centre], but she now lives in [a coastal town], which is quite some distance from [the regional centre]. I was not satisfied that the children have an especially close relationship with their aunt or cousin. In any event I consider it highly unlikely that they would see any more of them if they moved to [the regional centre].
62 The reason for [the mother]’s planned move to [the regional centre] is to be closer to [Mr S]’s father; however, there is no evidence to indicate that the children have any relationship of significance with him.
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;
63 I am satisfied that immediately following the separation, the parties demonstrated a willingness to cooperate in maintaining good relationships with the children. Matters were somewhat “up in the air” at that time because of a variety of factors – for example, it was not necessarily clear the separation was final. [The mother] also did not have adequate housing. I am satisfied that around this time, the parties agreed they would share the care of the children until matters settled down; however, I do not accept that there was
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an arrangement on a long-term basis that [the mother] would look
after them only when [the father] was [away at work].64 Whatever they might have agreed about the boys’ accommodation at the time, there were initially signs of both parties trying to work together to make things easier for the children – one example was their cooperation over arrangements to celebrate [C]’s birthday. Another was [the mother] inviting [the father] to dinner after she commenced her association with [Mr S]. Whilst I understand why he declined to attend, the offer was there.
65 Regrettably, relationships appeared to deteriorate rapidly after [the mother] commenced her association with [Mr S]. Although there were some good reasons why [the father] stopped having regular contact with the boys at around that time, I am satisfied he was upset by the fact that the man had moved into [the mother]’s home and was in close association with his children. Things do not appear to have got better over time – see for example how [the father] responded to the gift of the photos and also the inappropriate remark he wrote in the school reading card.
66 Although strong submissions were made on [the father]’s behalf to suggest that [the mother] had been difficult about contact arrangements, I was not satisfied there was a firm basis for many of those submissions. It is true that from time to time, [the father] did not obtain telephone contact and direct contact that he wanted to have with the children; however, there was often a legitimate reason for this. Matters were exacerbated by the fact that the parties agreed to a very poorly worded contact order, which left open much room for disagreement. In other instances, both parties relied upon clear entitlements they had pursuant to orders with a view to frustrating the desires of the other party. Whilst it would have been desirable to see more cooperation, it is difficult to criticise parents when they merely exercise rights conferred by a Court order – for example, in relation to the giving of notice prior to contact visits.
67 I consider the major impediment to promoting better relationships is the degree of hostility that exists between [Mr S] and [the father]. [The father] has, for example, called [Mr S] a “slimy little mother-fucker”. [Mr S] has also abused and riled [the father]. I am particularly concerned that [Mr S] was quick to agree with the proposition put to him by [the father]’s counsel that he regarded [the father] as being like his father, namely “a broken- down alcoholic – with nothing to offer the children”. Whilst it may
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possibly be the case that [the father] sometimes drinks more than he should, [Mr S] was a long way from the mark in thinking that [the father] has nothing to offer his children.
68 Any concerns that I have about the willingness of [the mother] to facilitate and encourage a close and continuing relationship between the children and [the father] is matched by concerns about [the father]’s willingness to do the same for [the mother], at least whilst she remains living with [Mr S]. The most important thing from the children’s perspective will be to ensure that they exercise whatever contact is ultimately ordered, whether or not they are living in [the regional centre] or [the home town]. I consider that if the orders are clearly defined, there is a good prospect that contact will occur as intended, provided each party honours their obligations in relation to matters such as giving required notice.
69 The process of ensuring the boys retain good relationships with both parents will be assisted if the parents themselves (and [Mr S]) make the effort to try to wipe the slate clean after these proceedings are concluded. They have many unresolved hurts. These regrettably will have been exacerbated by the way in which the trial was conducted and may well be further exacerbated by remarks I have felt obliged to make in explaining my decision. However, the adults cannot keep behaving as they have been for the next decade or so, without it having an adverse impact on their children. Each needs to learn to respect the other, regardless of their perceived failings, and appreciate they are the only parents the boys are ever going to have.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
70 Although [the father]’s advisors said in his Papers for the Judge that the boys would be distressed if they did not see their mother for any length of time, this was not consistent with what [the father] had to say in his affidavit. His affidavit indicated he did not consider there would be much impact on the boys if she relocated to [the regional centre] without them. He believed that, “in time, the boys would be comfortable knowing that they would see their mother each holiday”. I consider separation from [the
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mother] for regular long periods would cause the children, especially young [C], real upset, since they have been used to her being around them for all of their lives. Nevertheless, I am satisfied that if [the father] was available to look after them, he would provide them with a loving environment and do all within his capacity to ease any anxiety they might feel.
71 I have already said I consider the boys would be sad about seeing their father less frequently if they moved to [the regional centre], but I do not consider this would have any lasting effect – so long as he keeps in regular touch by telephone and sees them during school holidays. They have been used to spending fairly lengthy periods of time apart for much of their lives. I nevertheless consider that it would be desirable for [C] in particular if there could be more frequent contact than would be possible if [the father] remained behind in [the home town], while [the mother] went to [the regional centre]. Without such frequency of contact, there is a greater possibility of [C] feeling somewhat apprehensive when the time comes for him to spend an extended period of time away from his mother.
72 The boys all seem to be doing well in their current school and have friends around [the home town]. If [the mother] is successful in her application, they will have to change schools and will no longer have regular contact with their friends and classmates. Although this will be a major upheaval, I am not persuaded that such changes in the children’s circumstances would be of lasting significance. We live in a fairly mobile society. Children routinely leave schools and communities and settle satisfactorily into a new environment. I consider in this Court of specialist jurisdiction, I can take judicial notice of the fact that whilst there are many long- term residents in [the home town], there is also a substantial transient population. I consider it would be not at all uncommon for children to live in the town for a few years, as these boys have done, and then move on.
73 The disruption associated with the move to [the regional centre] is likely to be eased to some extent by virtue of the fact that the family lived there until about four years ago and they have retained some contacts in the town. I appreciate that the boys, especially [C], were very young when they last lived there, but there is an ongoing family connection with [the regional centre]. This would assist them to rekindle old friendships and make new ones.
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| The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; | |
| 74 | I am satisfied there would be considerable practical difficulty and expense associated with the children exercising contact in the event they moved to [the regional centre] and [the father] remained in [the home town]. The distance between the two towns is such that weekend contact is not feasible. There is no direct air service. The only way contact would be likely to occur outside school holidays would be if [the father] came to [the regional centre] for a longer stay between [trips]. |
| 75 | If [the father] remains in his present work, there is no way he could have as much school holiday contact as he seeks, or possibly even as much as [the mother] is offering. Although there is some flexibility in his work, there is not a great deal. [The father] has been able to swap some [trips] with the other [manager] on an ad hoc basis to date, but this has occurred only occasionally. It is likely to be much more problematic if the flexibility is needed every school holidays. |
| 76 | [The mother] proposes that she drive the boys … to Perth airport at the beginning and end of each contact period at her expense. She would also pay half of the cost of return air travel between Perth and [the home town] for each school holiday. The petrol would cost $150 for each journey and the cost of a one way airfare from Perth to [the home town] for one child would be between $120 to $350 (according to [the mother]). [The father] says the cost for the three boys could be much higher, especially in the peak season. Whatever the expense, the airfares would eat into the financial benefits I accept will be associated with [the mother] moving to [the regional centre]. The expense could perhaps be reduced if the trip for summer holiday contact was made by road, albeit I accept it is a long and arduous journey. |
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;
(Page 26)77 I am satisfied both parents have the capacity to
make adequate arrangements for most aspects of the physical care of the children. [The mother] has the advantage, in that she works only part-time, lives in town full-time and has assistance from [Mr S]. On the other hand, [the father] would be unable to care for the children without paid help if he remained in his present employment. He is capable of providing for the children’s physical needs when he is at home – for example, he is a very good cook.
78 [The father] works away for 10 or 11 days at a time and then has a similar amount of time at home. Although he says he is prepared to give up his employment if he has the care of the children, I consider it would be difficult for him to afford to do so. If he remained living in [the home town], he would need to have full-time employment to be able to afford the high cost of rent and provide for the children’s needs. He would be reliant upon others to assist in the supervision of the children when he was at work.
79 [The father] originally proposed his mother come to [the home town] to help with the children, but this arrangement must have fallen through. In his affidavit he set out arrangements for a nanny who would come to the home at 6.30 am every workday. He would then need to make arrangements for the children to be collected from school, or alternatively he proposed placing them in after-school care.
80 One of the primary physical needs of any child is for adequate accommodation. The financial capacity of a parent to provide such accommodation is therefore a very significant matter in determining what is in the best interests of a child. I accept that not only is accommodation in [the home town] more expensive than in [the regional centre], but it is also exceedingly difficult to find. [The father] conceded that the cost of living in [the home town] was higher than in [the regional centre]. He also acknowledged that house prices in [the home town] are “fairly high on the average”. The evidence suggests, however, that accommodation in [the home town] is a lot more expensive than in [the regional centre]. [The father] said that when he was seeking suitable accommodation for the children, he looked at two houses at the lower end of the market, which were for sale at prices ranging from $360,000 to $380,000. The parties previously owned a home in [the regional centre], which has sold recently for only $200,000. [The mother] says this home would have been suitable for the
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children – and indeed the family lived in that house when they were in [the regional centre]. There is no evidence to suggest there is accommodation available in [the home town] at anywhere near that price. Rent tends to reflect property value, and accordingly I accept rent in [the home town] is also going to be much higher than in [the regional centre].
81 There were numerous references in the evidence to the difficulties that the parties have had in obtaining accommodation in [the home town]. The most telling piece of evidence was that [the father] was living in a caravan at the time of trial, notwithstanding he was pursuing an application for residence. He had been unable to find any rental accommodation over a period of months. There was even a stage in the latter half of 2005 when [the father] was unable to have contact with the children because of his inability to obtain suitable accommodation.
82 I was informed at the time of the closing addresses that I could proceed on the assumption that [the father] had finally found a two- bedroom home (in the same part of [the home town] in which the parties previously lived in a “donga”). There was no indication as to how much this would cost and for how long it might be available. The fact that [the father] has only been able to obtain a two-bedroom home for himself and three young boys is a further indication of the difficulties that exist in obtaining suitable accommodation in [the home town].
83 The parties were not wealthy at the beginning of these proceedings and they have since expended a great deal on legal costs. I was informed that [the father] was expecting to receive only $54,000 from the proceeds of sale of the home in [the regional centre], of which $29,000 would be needed for legal costs. He has outstanding and contingent taxation liabilities that will leave him virtually penniless. After payment of her legal expenses, [the mother] was expecting to have $52,000, from which she would discharge a $16,000 loan. Obviously neither party has sufficient to buy a home outright. Each would need to borrow funds to purchase accommodation, assuming anything suitable could be found. The higher the price of the home, the greater the mortgage, the less funds left over to provide for the children’s daily needs.
84 [The mother] has worked [in a variety of occupations], as well as in her present occupation. She is a presentable and intelligent young woman and I consider will be able to continue to find employment in [the home town]. [Mr S] is working as a [labourer]
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and has worked as a trades assistant for a local [builder]. It is likely he will also be able to continue to work in [the home town], as there is a state-wide labour shortage. Nevertheless, [the mother] and [Mr S] have three young children to maintain (with the help of [the father]’s child support). They live in a town where the cost of living is high. I consider it is legitimate for them to want to provide long-term stability and security for themselves and the children by acquiring a home of their own, rather than having to pay for high priced, hard-to-find, rental accommodation. Assuming there is employment for them in [the regional centre], which I consider is likely in the current economic climate, it is clearly much more affordable for them to live in [the regional centre] than in [the home town], whether they buy a home or continue to rent. I consider this is a very important factor in coming to a decision.
85 [The father] also wants to acquire a home of his own. He has to pay fairly substantial child support and has very little capital on which to build. He too would find it more affordable to acquire accommodation in [the regional centre] than [the home town]. The difficulty for [the father] in moving to [the regional centre] is that he has a very well-paid [manager’s] job in [the home town]. Whilst there are a lot of [other businesses] working out of [the regional centre] and [nearby town], I accepted [the father]’s evidence that it would be difficult for him to obtain a position as a [manager] and, if he did so, it would probably not be as well-paid as his current job. [The father] may be able to find work in [the regional centre] as [an assistant], as he has done in the past; however, I accept that he is not getting any younger and may find such work difficult. [The father] very properly acknowledged that he would probably be able to find some other kind of employment in [the regional centre], although I accept it would not be as well- paid as his current work.
86 There was a suggestion put to [the father] in the course of cross-examination that the owners of his [business operation] might be planning to move it to [a northern town], in which case he would have to move home anyway. There was no evidence to support this proposition, although I did note that [the father] hesitated somewhat before saying that he would “probably not” move [further north] in the event his [business operation] changed [location].
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Intellectual needs
87 Both parents are intelligent and committed to their children’s education. I am satisfied both can provide for the children’s intellectual needs.
Emotional needs
88 [The father] conceded that [the mother] is a good mother, who takes good care of the children. She is sensitive to the boys’ emotional needs, having been used to looking after them most of their lives, and often in [the father]’s absence. [The mother] appeared fairly “child focussed”. For example, although she was criticised for not “wanting” the children on Christmas Day 2005, I consider she was genuine when she said (before bursting into tears) that she was willing to forgo her time because she felt Christmas Day was for the children and she did not want it spoiled by an unpleasant handover in the middle of the day.
89 I gained the impression [the mother] is likely to provide the children with a stable home, with appropriate boundaries. I suspect that the lifestyle she would provide would be somewhat more conducive to the children’s emotional needs than that likely to be provided by [the father]. Nevertheless, I am satisfied [the father] would provide for the children’s most basic emotional need – which is to feel loved and wanted.
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;
90 The most important issue to be considered under this factor is the maturity of the children. As a generality, I accept older children are better able to cope with lengthy separation from a parent than are younger children. Apart from other considerations, older children are more proficient in keeping in touch by letter, cards, email, telephone, etc. The twins are 10 and [C] is six years of age. They are therefore still comparatively young and telephone contact is likely to be the only form of meaningful contact for some time to come. This would, however, be an acceptable means of communication, as they are all old enough to communicate well over the telephone.
91 The only other “characteristic” of the children I need mention is that they have all had some problems with their health. The most worrying time was when [J] was diagnosed with a [serious illness]
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in February 2002. There were many concerns for his health for an extended period of time, which involved a long stay in Perth. Happily, [J] appears to be doing very well and hopefully there will no recurrence of his illness. In the event there was a further problem, both parents would do everything possible to ensure that he received the best treatment.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
92 I consider both parents generally have an excellent attitude to the children. They love and cherish them and would not knowingly do them any harm. However, I consider that both have demonstrated, at times, a poor attitude to the responsibilities of parenthood. I say this because of their use of drugs and over- consumption of alcohol, which would inevitably have had some impact on the way they cared for the children.
93 I consider it fairly likely that [the mother] was truthful in saying she had not been involved in drugs prior to meeting [the father]. He certainly admits that it was he who introduced her to some of the “harder” drugs they took, including LSD and opium. [The father] also conceded that [the mother] was the party to the marriage who was much more anxious they curtail their consumption of alcohol.
94 Both parties (and [Mr S], who was also a user) claim they had not taken drugs for more than a year prior to the trial. Each of them said they were prepared to consent to an order for hair strand analysis, which could show whether or not they had consumed drugs in the months leading up to the test. This testing did not end up being pursued. I am fairly well satisfied that the parties have either refrained from drug use in recent times or, at the very least, have consumed many less drugs than they have done in the past. I have somewhat greater confidence in [the mother]’s ability to remain away from drugs in the future. My intuition suggests that both [the father] and [Mr S] might once again be attracted to drugs if the circumstances were right.
95 Although it was, in effect, argued that [the father]’s history of payment of child support reflected on his attitude to the responsibilities of parenthood, it appeared that he had paid pretty much what he had been assessed to pay and his history of arrears was not anywhere near as bad as portrayed.
Any family violence involving the child or a member of the child’s family;
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96 The parties’ relationship was volatile and I
consider both of them behaved badly from time to time. This included [the father] throwing a knife in [the mother]’s direction when they were living in [the regional centre] and regularly throwing knives into the kitchen table, often when the children were present.
97 In the course of cross-examination, it was made to appear that [the mother] had given contradictory evidence about the extent of [the father]’s violence. I consider this was somewhat unfair, as counsel failed to put to her relevant portions of her affidavit which, read as a whole, showed she had not in fact contradicted herself in the way portrayed. Although any violence is serious, the violence between the parties was at the low end of the spectrum. [The father] has no convictions for violent offences and I do not consider he is by nature a violent man. He has, however, allowed his temper to get the better of him on many occasions, but so has [the mother].
98 There has been no violence between the parties since separation, and there is no reason to anticipate there is likely to be any in the future. Although their behaviour during the marriage was less than satisfactory, I doubt that it would be repeated in future relationships, provided both refrained from excessive consumption of alcohol and drug use, which I suspect was the major cause of their problems when they were together.
Any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
99 [The mother] and [Mr S] both obtained interim Restraining Orders against [the father] on an ex parte basis. I am a little uncertain on this point, but I understand neither order had been made final. The precipitating factor in [the mother] seeking her restraining order was her belief that [the father] had left a recording of a song with sinister lyrics on the answering machine. I do not intend to go into this issue, which occupied a lot of time at hearing, other than to say that [the mother] did not make a full disclosure of all the relevant facts to the Magistrate who made the order. In particular, she did not disclose that [J] already had his own copy of the CD in question. I do, accept, however, that [the mother] genuinely believed that [the father] had left the message on the machine. In those circumstances, she was entitled to be concerned
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about any message that might have been intended to be conveyed
to the children.Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
100 It is generally preferable to make the order least likely to lead to the institution of further proceedings; however, it is often difficult to predict which order that is likely to be. I do not consider it is possible in this case to make a prediction. It is therefore not a factor of significance.
Any other fact or circumstance that the court thinks is relevant
101 I consider I can take judicial notice of the fact that [the regional centre] is a much larger town than [the home town] and has a greater range of services and activities. Its “proximity” to Perth allows a further range of services and activities to be more easily accessed than from [the home town]. On the other hand, there is much to recommend [the home town]. It is an attractive place, with a laid-back feel, which appeals to tourists and residents alike. It also has very pleasant weather for at least part of the year. It has five year secondary education available to all local students. Although there are not as many services as in [the regional centre], it is nevertheless a large town by Western Australian standards and has an adequate range of services.
Section 60CC(4) factors
102 The Act in its amended form requires me to consider a variety of other matters set out in s 60CC(4). The provision is lengthy and I do not intend to repeat it here. I have considered the matters set out in the subsection and, in giving my reasons, have already alluded to those matters I consider of significance. Whilst there is room for improvement, I am not satisfied that either party has made out their case that the other party has failed to fulfil their responsibilities as a parent.
Conclusions
103 It will be apparent from a number of the findings I have made that whilst I have much respect for [the father] as a father, I consider the best interests of the children are more likely to be promoted in the event they live most of the time with [the mother].
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| 104 | I have given consideration to the children spending equal time with [the father], as I am required to do; however, I am not satisfied that arrangement would best promote the children’s interests. Apart from anything else, it would be a very complicated arrangement, taking into account the nature of [the father]’s current employment. It would be likely to lead to further disputation between them. | |||||
| 105 | I have also considered the children spending “substantial and significant” time with [the father]. I have determined that while the parties remain living in [the home town] and while [he is not away on business], [the father] should have the opportunity to spend all weekends from Friday afternoon to Monday morning, and one afternoon a week after school with the boys. I am not satisfied, however, it is in the boys’ best interests for them to spend week nights with him, other than during school holiday periods. He should, however, be able to attend all functions at the children’s school and take part in their education, cultural and sporting activities in the same way as [the mother]. He should also be able to spend up to half of the school holidays with the children. | |||||
| 106 | I have found the “relocation” aspect of this case exceptionally difficult, as there is much merit in the propositions advanced by both parties. On the one hand, I consider that the long-term security and stability of the family as a whole would be promoted in the event [the mother] was permitted to move to [the regional centre], where the cost of housing is substantially cheaper and where the cost of living is somewhat cheaper than in [the home town]. If the family remains in [the home town], it will not only be very difficult for them to purchase accommodation, but it may also be exceedingly difficult to retain affordable rental accommodation. | |||||
| 107 | On the other hand, [the father] has legitimate reasons for wishing to remain in [the home town] and for arguing that it would be in the boys’ best interests to do so. It is where the children have lived for the last few years. It is also where [the father] has very well-paid employment, which allows him not only to pay child support, but also to pay off some of the liabilities for which he has assumed responsibility following the breakdown of the marriage. I consider he was justified in believing that it will take him at least one more year of working in his current job to get his finances back into some kind of order. I acknowledge that he gave evidence of being able to borrow money from his mother to pay these debts if he had to give up his current work, but I was not entirely convinced | |||||
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| that this money would be forthcoming. In any event, [the father] said he would have to repay his mother. | ||||||
| 108 | I consider that the children are likely to have a good outcome whether or not they are living in [the home town] or in [the regional centre]. It is important for them that they continue to enjoy a relationship with both of their parents – but I consider it is even more important for their parents to learn ways of cooperating more effectively. [The father] and [Mr S] in particular need to refrain from engaging in the sort of behaviour described in the evidence. | |||||
| 109 | I had considered, when I first read the affidavits, that it might be in the best interests of the boys if [the father] and [the mother] lived in separate towns, because of the level of acrimony that exists. However, having had the opportunity to assess the parties and [Mr S], I now consider it would be better, if possible, for the boys to live in the same town as both of their parents. [The regional centre] is a much larger town than [the home town] and the opportunity for the parties to run into each other, going about their normal day to day life, would be somewhat less than in [the home town]. Nevertheless, regardless of where they live, there will be occasions when they do see each other by accident or design. I consider it is imperative, in the best interests of the children, that all parties commence behaving in a civilised fashion. | |||||
| 110 | In the final analysis, I see the outcome of the proceedings as being very much based on financial considerations. The major legitimate reason for [the mother] wanting to live in [the regional centre] is the cheaper availability of housing. The major reason for [the father] wanting to stay in [the home town] is because he has financial problems and can earn more money working there. Any order I make will not prevent [the father] from continuing to have the same contact he presently has with the children, since there is no legal impediment to him moving to wherever the children live. In fact, he could end up with better contact if he obtained different employment. On the other hand, his current financial position is so bleak that I consider it likely he would feel constrained to remain in [the home town] for at least the year in order to put money together to assist in discharging the liabilities for which he is responsible. | |||||
| 111 | At the conclusion of the hearing, I suggested to the parties that they might give consideration to an outcome where [the mother] was required to stay in [the home town] until the end of 2007, and then be permitted to move to [the regional centre]. I gather this | |||||
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| proposition was acceptable to one of the parties, but not the other. I made the suggestion because I considered at the time it was a reasonable compromise between the legitimate economic aspirations of both parents. After giving the matter much further thought, I remain of the view that this would be the most appropriate outcome. I intend to make orders accordingly. | ||||||
| 112 | [The mother] and [Mr S] will have to manage for the year or so in [the home town], paying high rent and watching property prices increase (unless they can find a way to obtain a home in [the regional centre] and negatively gear whilst waiting to move to that town). [The father] will have an opportunity to put some money together, but will know that at the end of 2007 he has a choice to make. He will either remain in [the home town] so as to earn a high income or he will reduce his financial expectations and move to [the regional centre], where accommodation and the cost of living are cheaper. The added – and important – advantage of this delay is that the boys will be more than one year older when the move occurs. [C] will then be approaching 8 years of age. Whilst this is still very young, he would be better able to cope with longer periods of separation from his father than he could if the move were to occur immediately, as [the mother] wishes. | |||||
| 113 | If [the father] decides to move to [the regional centre] when [the mother] and the children move, and he is in “normal” employment, he should have contact for the whole of each second weekend from Friday afternoon to Monday morning, half of the school holidays and two afternoon/early evening visits during the period between weekend visits. | |||||
| 114 | If [the father] elects to remain in [the home town] after [the mother] relocates, I consider he should have the sort of contact that [the mother] proposed at trial – which includes half of the Christmas school holidays and somewhat more than one half of the midyear holidays. This is not dissimilar to the contact [the father] proposed [the mother] could have if she moved to [the regional centre] without the boys. I acknowledge there will be difficulties in structuring such a proposal around [the father]’s work commitments. The order should go on to provide that if [the father] later elects to move to [the regional centre], he will have the sort of contact I have outlined above. By this means, it will be made clear that it is [the father], and not the Court, who will decide whether or not to have more substantial and regular contact with the children. | |||||
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| 115 | There should be regular telephone contact (once a week if the parties are living in the same town and twice a week if they are in different towns), with the costs being shared equally. The contact should be for up to five minutes for each child. I recognise this sounds short, but it is a fairly long conversation for young boys. The telephone contact order needs to be structured with some flexibility to ensure that the contact in fact happens, without tying everybody down to be in a certain place at specific times. I would need persuasion that I should not make an order that would require both parties to obtain a landline number, if practicable, so as to reduce the costs of telephone contact. Each party should be able to send a text message to the other in the event the attempt at telephone contact is unsuccessful. The obligation would then be on the other party to return the call, rather than making the other parent try again. | |||||
| 116 | [The mother] mentioned in her evidence the availability to [the father] of a computer and internet access. I take it she has a proposal for [the father] to be able to keep in contact with the children by email. This too should be reflected in the orders. | |||||
| 117 | I will invite the parties to attempt to agree a Minute of Orders to give effect to these reasons. I do not expect them to take a great deal of time, or to expend much on legal costs, in doing so. In the event that they are unable to agree the finetuning of the contact arrangements, I will hear further brief submissions and make my decision. As it may assist in resolving any dispute, I can say, subject to hearing further submissions, that: | |||||
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| 118 | [The father] was somewhat uncertain what he would do if the children were permitted to move to [the regional centre]. He said that he might go [overseas]. It may be, therefore, that the parties should not spend too much time at present trying to agree detailed contact arrangements that will occur once [the mother] moves to [the regional centre]. Interim orders could be made to cover contact until then and the matter could be relisted before me late | |||||
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| next year, when [the father] has made up his mind what he is going to do. | ||||||
| 119 | I also consider it highly desirable that the parties try to link up with one of the major agencies, such as Centrecare, which has offices in [the home town] and [the regional centre], so that they can use mediation to resolve issues in future, rather than engaging solicitors to exchange sometimes inflammatory, sometimes inaccurate and always expensive, correspondence. I note also that one of the proposed new Family Relationship Centres will be located in [the regional centre]. This could prove to be a valuable resource for the parties in attempting to resolve matters cheaply and privately. |
Conduct of solicitors
120 I was concerned in hearing the evidence about what had transpired at the hearing of [the father]’s application for return of funds that [the mother] removed from the business account. I was troubled that [the mother]’s solicitor may have failed to discharge her duty as an officer of the Court. The Court, of course, expects legal practitioners to be fully frank when responding to questions from the bench.
121 Written submissions were made on behalf of the solicitor in relation to this issue, after I indicated I was considering making an adverse finding. The submissions properly conceded that the answers the solicitor provided to the learned Magistrate were given “in a clumsy way” and “could have been plainer”. After giving the matter considerable thought, I do not propose to make any adverse finding, nor do I propose referring the matter to the relevant disciplinary body. I have not alluded to this matter in dealing with the substantive issue, as I did not consider [the mother]’s part in the process impinged on her as a mother, nor was I satisfied that it added anything to my view about her credibility.
122 For the sake of balance, I should also note that [the father]’s solicitor acknowledges she initially saw both [the mother] and [the father] together and gave them some “preliminary general advice” before then acting for [the father]. Whilst I acknowledge there may be special considerations in small towns with few solicitors, it is in my view undesirable for parties who will potentially be in conflict to be advised by one legal practitioner, especially if the practitioner then elects to act for one of them.
ENDNOTE: One of the changes made by the recent amendments to the
Family Law Act 1975 was (yet the) alteration to the terminology used in
(Page 38)
describing the time children spend with their parents. The old expressions – if one can so describe words introduced only 11 years ago – “residence” and “contact” have been replaced by other formulations. I propose using the new form of words in pronouncing my orders; however, I find them too unwieldy to employ when attempting to give reasons. Therefore, for ease of comprehension, I have continued to use the words “residence” and “contact”, rather than engaging in the verbal gymnastics that would otherwise be required.
I certify that the preceding [122] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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