T and T

[2004] FCWA 113

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: T and T [2004] FCWA 113

CORAM: PENNY J

HEARD: 18, 19, 20 & 21 MAY 2004

DELIVERED: 18 AUGUST 2004

FILE NO/S: PT 108 of 2004

BETWEEN: T Applicant/Mother

AND T Respondent/Father

Catchwords:

Children's issues - residence - relocation - contact

Legislation:

Family Law Act 1975 - s 68F

(Page 2 )

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr T O'Sullivan

Respondent : Mr F Castiglione SC

Solicitors:

Applicant : O'Sullivan Davies

Respondent : E Wiese & Assoc

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

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

AMS v AIF (1999) FLC 92-852

1Before separation the parties were farmers on a property in the mid-west of Western Australia. The wife was a Canadian national, who had visited Australia for a few months in 1994 and then came to live in Australia in September 1995 when she became engaged to the husband. They were married January 1996 in Perth. There are two children of the marriage, O aged 5 years and R aged 2 years 10 months. The parties separated on 29 October 2003 and the wife moved with the two children to live nearby at a home owned by her parents. The husband remained on the farm.

2In January 2004 the wife decided she wanted to leave the area with the children and reside in Perth. The husband opposed this and brought an application restraining the wife from leaving the area and seeking residence of the two children. In January 2004 an

(Page 3 )

order was made that the children reside with the wife from Monday morning to Friday 5.00 pm each week and that they reside with the husband on the farm from 5.00 pm Friday to Monday morning each week.

The law

3 In the decision of A v A: Relocation Approach (2000) FLC 93-

035, the Full Court took the opportunity to state what it perceived were the binding principles of law established by the High Court in AMS v AIF (1999) FLC 92-852. They were as follows:

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

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

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

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

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

• The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

• It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act

1975 (Cth). The wording of s 68F(2) makes clear that

the Court must consider the various matters set out in

(a)-(l) of that subsection.

• The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.

• It is to be expected that reasons for decision will display three stages of analysis and:

1. A court will identify the relevant competing proposals;

2. For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;

• As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph

9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

• The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

• Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.

• The process of evaluating the proposals must have regard to the following issues:

a) None of the parties bears an onus:

• In determining a parenting case that involves a proposal to relocate the residence of a child,

(Page 5 )

neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b) The importance of a party's right to freedom of movement:

• In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.

• In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the rig ht of the child to know and have physical contact with both its parents.

c) Matters of weight should be explained:

• In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss. 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

Competing proposals

• In a parenting case that involves a proposal to relocate the residence of a child, no s ingle factor should determine the issue of which proposal is preferred by a court."

4It is the wife's case that the children should continue to reside with her as she has been the principal care-giver for the children since their birth. She says she should be able to relocate to Perth as there are more opportunities for her, both socially and economically in Perth. She proposes the husband has contact three out of four weekends, exercised in either Perth or in his country town, and also during school holidays.

5The wife's alternate proposal is that if the she is not able to relocate to Perth, then the children should reside with her in in the country town and have contact with the husband.

6The husband says that the children should reside with him as he has been involved with the children's care since their birth, that he has a close relationship with them and can provide a stable environment on the farm. He proposes that if the children reside with him and if the wife lives in Perth, she have contact alternate weekends and during school holidays.

Background and history of the parties and the marriage

7 The parties first met when the husband visited Canada in

1991. In 1994 the wife spent two months in Australia and spent some time at the husband's family's station, The wife then spent time with the husband in Australia and Canada in 1994. In May

1995 the husband sent the wife an engagement ring by mail and she

agreed to return to Australia and arrived in September 1995. They married in 1996. After their marriage the parties lived in a transportable home at the husband's sister's property in Western Australia. The husband was working long hours and the wife worked three days a week at a resort near Perth. The parties travelled to Canada in December 1996, returning in February 1997.

8In April 1997 the parties moved onto the farm. This is a cattle and sheep farm. Initially the parties lived in the shearing shed. The wife's parents then came for a visit from Canada and provided monies for the parties to buy a transportable home which was placed on the farm. In March 1998 they moved into that home.

9The wife and her parents are very close. Apart from a visit in September 1997, the wife's parents visited the parties on the farm from December 1998 to February/March 1999. The husband and wife visited them in Canada in July and August 2000. They visited the husband and wife in Australia from January 2001 to April

2001. On that visit they purchased a house in which they could

reside when they were visiting the husband and wife. They also visited in January 2002 to April 2002. They arrived after the breakdown of the marriage on 4 December 2003 and have remained living with the wife in the country town since that time.

10 The child O was born on 15 November 1998 and R on 6

October 2001.

11 The parties travelled to Canada, leaving in the middle of June

2003 and returning in August 2003. The marriage was unhappy

before the parties left and it did not improve during the time away. They separated on 28 October 2003 when the husband said the marriage was over and asked the wife to leave the farm. Shortly before the separation the husband's sister had been employed by the husband to work on the farm. She was living in the wife's parents' house. She was asked to vacate the home to allow the wife and children to reside in it. The wife moved into the home on 29

October 2003 and the children joined her on 31 October 2003.

12 Initially, the wife refused to allow the husband to have contact with the children on the farm overnight and, in particular, she was concerned about the influence upon the children of his sister.His sister is interested in "new age" thinking. The wife was very concerned about her beliefs and the influence she may have on the children, as after separation she went to live on the farm with the husband. The wife allowed the husband to have contact two days per week, but not overnight. She stated that she would consider overnight contact if his sister left the farm. She did so on 10

December 2003, however, the wife still did not allow overnight

contact until such time as proceedings were instituted in court.

13 In January 2004 the wife decided that there was no future for her in the country town. The wife told the husband that she was going to Perth with her parents to look into accommodation options. On 7 January 2004 the husband took the children for day time contact. He arrived back at the wife's place without the children. At that time the husband made it clear that he wanted the

(Page 8 )

wife to stay in town with the children. He stated that he would not be returning the children to the wife that evening and he would take proceedings in the local Court the following day, which he did. On

9 January 2004 the wife, on a without admission basis, consented

to a temporary injunction that she not change the principal place of residence of the children to any place outside the country town.

14 The matter came back before the Court on 22 January 2004.

Orders were made programming the matter in relation to both the

children's issues and property, and orders were made by consent that the children reside with the wife from Monday morning to Friday at 5.00 pm and with the husband from 5.00 pm on Friday until Monday morning.

Section 68F factors

15 In determining with whom and where the children should reside in the context of a relocation application, the children's best interests are to be my paramount, but not sole, consideration. In determining what is in the children's best interests I need to take into account the factors set out in s 68F of the Family Law Act. Factors relevant to this matter are as follows:

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

16 The children are aged 5½ years and 2½ years and are too young to express any wishes in relation to this matter.

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

17 The children have a close relationship with the wife and the husband. They also appear to have a good relationship with the wife's parents with whom they have now been resid ing for five days a week since December 2003.

18 The children have a close relationship with the husband's extended family and with his sister.

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

(i) either of his or her parents; or

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

19 Since separation the children have mainly resided with the wife. From 31 October 2003 to 22 January 2004 the only overnight contact the husband had during that period was for two nights over the Christmas period. From 12 to 22 January 2004 the wife allowed the husband day-time contact to the children each day, but refused to let them stay overnight. Since 22 January 2004 the husband has had contact each weekend overnight.

20 The husband conceded that during the marriage the wife was the primary care-giver to the children. While he saw the children during the day and was involved in reading to O in the evenings, the wife was, however, mainly responsible for the children's care, including taking the children to playgroup and kindergarten, attending to their medical appointments and swimming lessons.

21 The husband was involved with the children when his work schedule permitted. The children would drive with him in the ute and on the tractor. When the husband went to town to pick up supplies, O would sometimes go with him.

22 I am satisfied that if the children resided primarily with the husband that they would miss the wife and the close relationship they have with her, even if they have weekend contact with her. If the children continue to reside with the wife in the country town there would be little change in the contact the children now have with the husband, nor the quality of their relationship with him.

23 If the children resided with the wife in Perth, on the wife's proposal they would see the husband three weekends out of four and during school holidays. Currently they reside with the husband each weekend. While the time the children would spend with the husband would be reduced in those circumstances, in my view, it would not be sufficient to disrupt the very close relationship they have with him.

(Page 10)

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

24 Should the children reside with the wife in the country town there is no reason why the husband cannot have regular and frequent contact. Should the children reside with the husband and the wife continues to reside in the area there is no reason why she cannot have regular and frequent contact with the children. If the wife resides in Perth with the children she proposes that the husband have contact from Friday afternoon to Sunday afternoon for three out of four weekends during school term, and half of the Easter, July and October school holidays, as well as half the Christmas holidays. The husband proposes that if the wife resides with the children in Perth, he have contact each alternate weekend and for the whole of Easter, July and October school holidays each year and four weeks in the Christmas school holidays. Both parties agree there should be other contact for special occasions. If the children were living with the wife in Perth, the husband's contact would not be as frequent as it has been from January until now, however, I am satisfied that the children would be able to have regular contact with the husband, sufficient for them to be able to maintain the good relationship they have with him. Whether the contact is effected in Perth or on the farm, I am satisfied the arrangements the husband would make would be appropriate. The husband's preference is for the children to exercise contact on the farm as it has been their home. This will require them to be travelling for over three hours each way for contact to be effected in that environment. Although this is not ideal, in my view, there will not be any detriment to the children.

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

25 The wife says the husband does not have the capacity to care for the children's physical needs because:

•he will not be diligent in caring for the children on the farm, which is a dangerous environment, and

•his work hours will not allow him to properly supervise the children.

26 The children are now aged 5½ and 2 years 10 months. The wife says she has "severe concerns" about the children as there is dangerous machinery and a pool on the farm. She says the time the husband has to put into duties on the farm will affect his ability to properly supervise the children in this dangerous environment. In addition, apart from working, the husband has drinks at 5.00 pm with the workers and other visitors to the farm in the shearing shed and does not come to the house until about 7.30 or 8.00 pm, further reducing the time he can spend with the children. The wife concedes that the children have not in the past been injured on the farm. O, in fact, broke her leg playing at a friend's home shortly before the trial.

27 In response to these criticisms by the wife the husband says that he would restructure his work on the farm so that he could care for the children. He says that much of the farm work is done by contractors, including the shearing, weed and insect control spraying and mulesing of the sheep and lamb marking. He employs his sister, five days a week and she performs various farm duties. The husband says that all he is required to look after is the cropping of approximately 100 acres each year for hay, super spreading, hay baling and keep the water up to the stock. He says his work is simplified by the fact that the shearing work is done over a period of two days when he employs additional labour. He also employs someone to do fencing and other farm chores.

28 The husband says that the arrangements he will make will leave him with time to be able to properly supervise the children, and if he is unable to do so, then his sister or a neighbour, would be able to care for the children.

29 If the children resided with the husband on the farm I am satisfied that he would be able to make proper arrangements for the care of the children, either personally or with the assistance of his sister and a neighbour. The wife herself concedes that the husband is a careful and attentive father and would do anything to protect the welfare and safety of the children. Since the children have been going on contact, both for weekends and for extended periods, there has been no indication other than the children have been well cared for on the farm by the husband.

30 There has been no challenge by the husband to the wife's capacity to care for the children either in Perth or in the country town, however, she says her capacity to properly care for the

children would be compromised if she was forced to reside in the country town.

31 The husband and wife have lived in the area for almost seven years. The wife has made friends in the area, but says they are acquaintances rather than close friends, and she feels she has little support in the area. She says that she finds it difficult to get on with her life in the town and there are no proper work or study opportunities for her there. Now that the wife is not involved with the farm there is nothing to keep her there. Her parents are staying with her to keep her company and although they own a house in the town, they have no other connection to it.

32 The wife would like to undertake further study and her aim is to get back into her career in hotel management, initially on a part- time basis and later on a full-time basis. She says her arrangements for work will depend on whether the children are in her care. Before the wife came to Australia she worked in the hospitality industry. She had worked for eight years in the hotel business. During the marriage, before the children were born, she worked part-time at a resort near Perth. She now lives in a small town and there are no real work options of the type in the hospitality industry which the wife has worked in previously.

33 I can understand the wife now wishing to move to Perth. I have no doubt that there are greater employment, education and social opportunities in the city for her. I accept that her capacity to care for the children if she is to continue to reside in the country town may well be compromised as a result of her frustration at being unable to access the facilities available in the city. I accept that there is no reason for the wife to reside there other than for the children to be in close proximity to the husband.

34 The husband says that the wife's desire to reside in Perth is the first part of a two step process. He says that the next step will be for her to relocate to Canada. In my view, whether the wife at some time in the future wishes to make an application to reside with the children in Canada is not relevant to the present application before me. I accept the wife's evidence that, while in the future, she cannot rule out wanting to go back to Canada, her present intention is to relocate to Perth and set up home in that city. Any application by her in the future, if the children continue to

(Page 13)

reside with her, to relocate to Canada will be dealt with on its merits, as will this application.

35 The husband has the capacity to provide the children with a stable environment on the farm. This will mean they will not have to change schools or their home environment as will be necessary if the children are able to relocate to Perth with the wife.

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

36 The wife's refusal to allow the husband to have overnight contact from the time the parties separated at the end of October until a court order on 22 January 2004 was an irresponsible act which could have had a negative affect on the children's relationship with the husband. The wife said in evidence that when the parties separated initially the husband saw the children on most days, a situation she described as "ping pong back and forward". She conced es the husband wanted the children to stay overnight, but she was resolute in refusing him overnight contact. She says that initially she was concerned about his sisters involvement with the children and the fact that she was living on the farm. She conc edes that she told the husband that if the sister was not living there the children could stay overnight. On 10 December 2003 the sister left the farm and resided elsewhere. The wife still refused to let the children stay overnight. The wife said she did not let the children go at that time because she did not want to start an overnight routine. The wife accepts that her conduct in refusing to let the children go overnight was unreasonable.

37 Apart from being unreasonable in relation to contact, the wife agrees that she has been in breach of court orders which stated that the husband was to have first option of caring for the children should she be unavailable to look after them.

38 In February 2004 the wife came to Perth with her father to look for alternate accommodation. She did not offer the husband the option of looking after the children who remained with her mother. Not long before trial O broke her leg and the wife stayed in hospital with her overnight. Not only did the wife not tell the husband that O was injured that night, but she did not offer the husband the option to care for R, who spent the night with her parents. The husband lives only 10 minutes by car from the wife's parents' residence.

39 This conduct by the wife reflects badly on her attitude to the responsibilities of parenthood. She accepted the children had an

excellent relationship with their father. In her own words she had no complaints about him as a father. According to her, he was careful and attentive and would do anything to protect the welfare and safety of the children. Her father conceded that the husband is a "good bloke" and gets on exceptionally well with the children.

40 The wife in her evidence talks about the husband's desire to "control" her. There can be no greater example of the wife exerting control of the husband's contact and relationship with the children than occurred from November 2003 to January 2004 when she refused overnight contact. Her decision not to tell the husband of O's broken leg yet again showed a lack of respect for his role as her father and his ability to provide support for O over a difficult time for her. She was clearly in breach of the orders when she failed to advise him that R would be available if he was able to care for him. These actions of the wife must have been extremely frustrating for the husband. To his credit he has acted responsibly in the face of the wife's negative attitude to him and to her father's poor attitude to him.

41 Her father agreed that despite the fact that the husband is "a good bloke" and gets on extremely well with the children, he refused to let him park in the driveway of his property when he was collecting the children. Instead, he insisted that he park on the road or verge and collect the children from that point. He said that he decided to do this after reading the husband's first affidavit. He could see nothing wrong with this conduct, although it had the potential to negatively impact on the children's relationship with the husband.

42 As to the husband, he has demonstrated an appropriate attitude to the children and the responsibilities of parenthood. The wife in her affidavit for trial and Papers for the Judge criticises the husband for terminating the marriage and not provid ing her with any notice of this. I find this criticism extraordinary. The wife accepts that she has been very unhappy in the marriage for some time. The parties went to Canada shortly before the separation. I accept the evidence of the couple who acted as caretakers on the farm when the husband and wife and went to Canada between June and September 2003. The caretaker stated that upon her return from Canada the wife confirmed that she had not wanted to return and she wanted to leave the husband prior to going to Canada. She said that she did not love him and had not for a long time. The reality was that this was an unhappy marriage. I do not accept the husband was irresponsible in bringing it to an end.

The Husband’s sister

43 The wife has made an issue as to whether the children should have contact with the husband's sister. The wife says that she is a member of a cult, is involved in new age beliefs and the children are at risk of being adversely influenced by her if she comes into contact with them. The evidence in relation to her is as follows:

• She is the husband's sister.

• She was previously married .

• She has two children, two boys and two girls.

•In 2002 she separated, the two girls reside with the husband’s sister and the two boys resid e with her ex husband.

•In October 2003 she relocated where she had been residing with the children to the country town near her brothers farm. She and her children resided at the wife's parents' home until the husband and wife separated.

•In October 2003 she was employed by the husband, without the wife's knowledge, to work on the farm.

•When the wife moved to her parents' home nearby, the sister moved with her two girls to live on the farm with the husband.

•On 10 December 2003 the sister moved from the farm to live in alternate accommodation in the area as the wife was refusing to let the children stay at the farm overnight while she resided there.

•The sister was involved with a channelor on four or five occasions in 2002. A counsellor would take on the identity of "Won". She was looking for answers in relation to difficulties surrounding her marriage, childhood and the medical condition of her daughter.

• The sister has also:

- done a Reiki course

- attended a meditation course

- attended a meeting with a pranic healer

- completed basic and advanced pranic healing courses

- collected books on personal and spiritual development

- used crystals and put them outside when there was a full moon

(Page 16)

- put stones in the bed and in her bra

44 Her husband became concerned at her conduct and began looking for someone who could assist him in changing her attitudes and beliefs. Her husband located a person in America who said that he could de-programme her from being involved with a cult. Her husband brought this person out from America at a cost of

$17,000. Over three days her husband, the person from America, a member of her family and friends attempted to resolve the issues. At the end of that time the sister was unchanged in her beliefs.

45 In additio n to the above evidence given in relation to the sisters’ new age beliefs, the following evidence was also given. The wife confirmed that before the parties separated she got on well with the sister. The sisters’ evidence, which was not challenged by the wife, was that prior to separation the wife had said to the sister and to a counsellor, that she considered the allegation that the sister was involved in a cult to be a joke. The wife confirmed that in 2002 the sister stayed at the house for 1½ months and did some work on the farm. During that time the wife went to the house to visit her. At that time she had candles around the house and was burning incense. She had books on self awareness. She also had a yoga mat on the floor, which the wife thought was strange. The wife believed she was a member of a cult ETM (Extra Terrestrial Earth Mission). There is no evidence other than the wife's belief to support this proposition. The wife confirmed that she first met her in 1994 and that her contact with her was unremarkable. As a mother, in her view she looked after the children fairly well. She described her as a caring and hard working person. She said that she had concerns about the sisters’ daughter, but could not say what they were. She confirmed she had not seen her act inappropriately with her own children.

46 The evidence of the sisters’husband was that the wife became interested in new age culture in the lead up to the breakdown of his marriage. He confirmed she was interested in crystals and put them outside when there was a full moon. She also put stones, called "ruins", in the bed. She was also using "angel cards" and consulted with a channelor. She would record the sessions and play them later. The sisters’husband brought a person from America in an effort to de-programme her. This was unsuccessful. He produced various journals and notes used by her when she was living with him.

47 In cross-examination sisters’ husband confirmed that he and his wife had proceedings in the Family Court, but not in relation to issues involving the children. He was hurt by the breakdown of the marriage. He stated that his wife was not an unsuitable person to be around his children and she was not a bad mother, although he made the comment that "there could be issues somewhere along the line". He stated that he was concerned about his two daughters who had been living with their mother since October 2002, although he confirmed that both children were both well adjusted and there was nothing to show they had been adversely influenced by their mother's beliefs. He also stated that his sons aged 15 and

16, who resided with him, see their mother regularly and get on

well with her. He has no concerns about the boys when they go to visit their mother.

48 He described her as a pleasant, kind, hard working, thoughtful person. He stated that she would never harm her children in any way.

49 Having seen her give evidence I do not accept that the wife should have any concerns about her involvement with the children. She has not been involved with channelling since 2002. She obviously has some ideas which would be considered to be "unusual", but not necessarily damaging to others. Various documents were tendered in evidence on behalf of the wife in an effort to establish that the beliefs of the husband’s sister were dangerous. There is nothing in those that could be considered dangerous. The philosophy espoused in these documents seem to be a mixture of self enlightenment and Christian beliefs.

50 From the evidence of both the husband and the husband’s sister, it is clear that she has been very involved with the children when they have been exercising contact with the husband. There is no evidence that the children have been adversely affected by contact. Indeed, her own girls have not been affected by living with her, neither have her two sons who have spent periods of holidays on contact with her.

51 The wife has made the conduct of the husband’s sister a significant issue for this trial, when before the parties separated, she considered her conduct to be unusual, but had a pleasant and warm relationship with her. The children, on the evidence, are

(Page 18)

not at risk from her. There is no reason why she should not be present when the children are in the husband's care.

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

52 The husband says that an order that the children reside with him would be least likely to lead to the institution of further proceedings as he has no intention to relocate from the farm. On the other hand he says the fact that the wife acknowledges that she may, at some time in the future, wish to relocate to Canada means that the children, if they reside with her, may well be the subject of further application in future to relocate overseas. I am satisfied that the wife's application to relocate to Perth is not part of a "two step process". She has made appropriate and proper arrangements for the setting up of a new home in Perth. Her parents have returned to Canada for the purpose of obtaining either a one year or five year visa in order that they can come back to Australia and assist their daughter. I accept that the wife intends to re-establish herself in Perth and obtain some employment in her field of expertise in the future. The wife stated, honestly, she could not rule out that she may wish to relocate to Canada at some time in the future. This evidence, in my view, does not make her unstable, nor does it mean that such an application is likely.

Conclusions on residence

53 This matter is, in my view, finely balanced. The children have a close relationship with both the husband and wife, although on balance I accept that the wife's role as the primary care-giver for the children has been a significant one. In my view, the evidence of a friend of the wife for 4½ years and whose evidence was largely unchallenged by the husband, sets out in detail the extent of the wife's role with the children and their reliance on her. It also sets out in some detail the husband's role while the parties resided together. The relevant paragraphs are as follows:

"8 Over the past 2 years or so, the mother and I have become closer friends and we would see each other about twice a week.

9On many occasions I saw the husband we would have a chat or discussion and invariably it we discussed (sic) his plans for the farm or he also talked about his sisters. Rarely did he talk about the mother or the children.

(Page 19)

10 My husband, has helped her husband on the farm from time to time over the past 2 years and I was with him at the farm regularly.

11 I witnessed the husband work hard on the farm. He was very focused on his farm work.

12 There always seemed to be a lot of people working for the husband or organizing things for him.

14 When I visited the farm, the husband was usually occupied with some form of farm activity. In the farm house, he also spent long periods on the telephone and seemed preoccupied with business matters.

16 The mother was clearly the parent who had the far greater responsibility for the children whenever I was in their company.

18 I have seen the mother as a very attentive mother who gives the children a lot of encouragement.

19 She spent a lot of time with them in social activities with the children (sic) that I have witnessed including get- togethers with other mums and their children, beach outings and shopping trips with the children.

20 O was very excited when she accompanied her mother on the once a week trip for her swimming lesson which involved a 120km round trip.

23 During the period from 2001 to 2003 I was there many evenings to pick up my husband from the farm and I observed it was usual that the mother and the children were waiting for the husband to come home from his work on the farm. The mother would make it a special time of the day and the children would get excited.

25 From my observations there is clearly great affection between the children and their father but on the very many occasions I have been with them including at the farm he has only had limited time with them. The mother has been the parent who has had to carry the responsibility for their care.

26 When R was about 6 months he developed ear problems.

He continued to have problems thereafter. There were many occasions both at my home and at the farm where I saw him in a very distressed state and in pain from the

(Page 20)

ear problems. It was the mother who cared for him and comforted him.

54 This evidence shows that the role of a primary care-giver is not just being available for the children or to organise physical supervision of them as the husband can do. The wife has been responsible not only for their physical care, transport, medical attendances and treatment and other appointments for the children, but has also been involved with the children's social activities. This has involved making friends with other women who also have children and socialising with those people and their children in an informal environment. The husband's contact has mainly been on weekends where he has not had to juggle the day to day activities of the farm and the children's educational and other social activities. The husband has had holiday contact with the children, but this has mostly been in a situation where he himself was on holidays and he has organised activities away from the farm with the children. Dealing with the children and their variety of activities and the farm on a day to day basis is a different situation. In my view, the wife, either in Perth or in the country town, is best able to fulfil the role of primary care-giver for the children and has proven that she can do so.

55 While I have criticised the wife's conduct in failing to allow the husband to have overnight contact upon separation, since the contact in January was ordered the wife has generally complied with those orders and the husband has been able to have proper contact to the children. I am satisfied that in either the country town or Perth that the wife would provide the husband with contact and would comply with the court orders.

56 If the children reside with the wife in the country town they can have frequent and regular contact with the husband. Should the wife reside in Perth, I am satisfied that there is no practical difficulty and expense of the husband having contact other than having to drive significant distances to exercise it.

57 In my view, the children should reside with the wife in Perth.

There are clearly not the employment opportunities available for the wife in the small country town that there are in Perth. She has no connection to the area now that she is no longer living on the farm. Her parents have a home in the town only for the purposes of seeing her when they visit from Canada.I am satisfied the arrangements made for the children in Perth are appropriate. I am

(Page 21)

also satisfied that they can maintain their close relationship with the husband in that environment.

I certify that the preceding [57] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate