V and B
[2008] FCWA 24
•28 FEBRUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: V and B [2008] FCWA 24
CORAM: CROOKS J
HEARD: 1, 2 & 9 NOVEMBER 2007
DELIVERED : 28 FEBRUARY 2008
FILE NO/S: PT 1580 of 2007
BETWEEN: V
Applicant/Father
AND
B
Respondent/Mother
Catchwords:
Relocation
Legislation:
Family Law Act 1975, s 60, s 61, s 65, s 69
Family Court Act 1997
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr S Jones
Respondent: Mrs E Brownlie
Solicitors:
Applicant: Mony De Kerloy
Respondent: Austen Brown Boog
Case(s) referred to in judgment(s):
Morgan and Miles [2007] FamCA 1230
1The dispute between [Jane B] (“the mother”) and [Ronald] (“the father”) concerns the parenting orders to be made for the child of their relationship, [Robert] born [in] October 2004 (‘Robert”). The father is proposing that [Robert] live with him in Perth. The mother is proposing that [Robert] live with her [ in the Eastern states].
Court’s jurisdiction
2In these proceedings the mother currently resides in [the Eastern states] with [Robert] and the father continues to reside in Western Australia. This was the position when the father first commenced proceedings in the Family Court on 29 March 2007.
3The question of whether this matter should be dealt with under the Family Law Act 1975 or the Family Court Act 1997 was first raised by his Honour Mr Monaghan on 8 May 2007 when hearing the father’s application for a recovery order seeking [Robert]’s return to Western Australia. His Honour proceeded on the basis that the matter would need to be dealt with under the Family Law Act 1975. Neither counsel made submissions to the contrary. Because there is reference to the provisions of both the Family Court Act 1997 and Family Law Act 1975 in a number of court documents, so that no questions arise as to the basis upon which the Court is exercising jurisdiction, I confirm I propose making the parenting orders in this matter under the provisions of the Family Law Act 1975. S 69ZJ of the Family Law Act 1975 extends the Court’s jurisdiction on matters between residents of different states with respect to parental responsibility.
Background
4The father is 26 years of age and the mother is 36 years of age. [Robert]is the only child of the parties.
5The mother and father commenced a relationship in early 2001.
6Although the mother and father could not agree as to when they lived together in a de facto relationship:
•the mother moved into the [V] family home [ in the suburbs of Perth] in 2001 and the father lived between [his family home] and his rural property [out of town] which he was then renovating ;
•the mother continued to live at [his family home] until December 2006 when she moved with [Robert] to [the rural property].
•the parties ceased living together on 27 February 2007 when the mother left [the rural property] with [Robert] when the father was absent. She stayed for a few days at a Perth motel until her father [Mr B] escorted the mother and [Robert] to [the Eastern states] where the mother’s parents live.
7On 29 March 2007, the father made application seeking orders for [Robert] to be returned to Perth and live with him. The mother opposed the recovery order and alleged abuse, violence and threatening behaviour towards her by the father which I deal with later in these reasons.
8On 13 April 2007 orders for telephone communication with [Robert] were made in favour of the father.
9On 15 May 2007 the Court refused the father’s application seeking [Robert]’s return to Perth and expedited the final hearing of the proceedings. Interim parenting orders were made for [Robert] to remain living with his mother with contact to the father and for the parties to undergo drug testing procedures arising from allegations of drug use.
10On 30 July 2007 the father drove to [the Eastern states] and spent about four days with [Robert] before returning to Perth. This was the last time the father spent with [Robert] before the trial.
The evidence
11The father gave evidence in support of his application. He was supported by his father [Mr V], his mother [Mrs V] and his sister [Brenda], all of whom were cross-examined on their affidavits.
12The mother travelled from [the Eastern states] for the trial accompanied by her parents [Mr and Mrs B] and were cross-examined on their affidavits filed to support the mother’s case.
Mother’s parenting proposals
13The mother seeks that the parties have equal shared parental responsibility of [Robert] and that he reside with her in [the Eastern states]. The mother says she has suitable accommodation arranged through a relative for herself and [Robert] [in the Eastern states], has the support of her parents and the opportunity for employment. The mother proposed that the father spend time with [Robert] during specified school holiday periods in [the Eastern states] which would extend to contact with the father in Perth once [Robert] reached 5 years of age. The mother also proposes ongoing telephone communication between [Robert] and the father and the provision of information relating to [Robert]’s schooling and health.
14The mother says that if I determined it was in [Robert]’s best interests for him to live in Perth she would return with him and seek to continue her role as principal caregiver for [Robert]. In the event [Robert] lives in Perth, the mother proposes that the father spend time with [Robert] from 5.00 pm Friday until 9.00 am Monday of each weekend until [Robert] commences kindergarten in 2009 from which time [Robert] spend two weekends out of every three weekly cycle with the father together with school holiday periods and special occasions.
Father’s parenting proposals
15The father proposes that [Robert] live at [the rural property] and be cared for by him. The father seeks alternative parenting orders dependent upon whether [Robert] is to live in [the Eastern states] or live in Perth. In the event [Robert] is to live with his mother in Perth, he seeks that [Robert] live with the parties on a seven day/night rotating period. The father says he would not move to [the Eastern states] if I determined that [Robert] should continue to live with his mother in [the Eastern states]. The father’s family, his business interests and his home are all in Perth and he wished to continue to reside in Perth.
The law
16Pursuant to s 60CA of the Family Law Act 1975 as amended (the “Act”) in deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration.
17For the purpose of determining what is in [Robert]’s best interests, I must consider the “primary” and “additional” considerations set out in s 60CC(2) and (3).
18The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
19I must also have regard to s 60B of the Act which sets out the objects of the Act dealing with children and the principles which underlie those objects.
20S 60B is as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
21I will consider other provisions of the Act relevant to this case when I deal with the particular matters pertaining to these parties.
Principles to be applied
22In Morgan and Miles [2007] FamCA 1230 (delivered 17 October 2007) the Full Court considered the principles to be applied in determining a parenting application when one party wishes to relocate following the Shared Parental Responsibility Amendments. Boland J said at paragraph 74 of her reasons:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
23At paragraph 80 her Honour further said:
“80.It follows from my exposition of the legislation, that earlier core principles:
–that the child’s best interests remain the paramount but not sole consideration;
–that a parent wishing to move does not need to demonstrate “compelling” reasons;
–that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests;
–the child’ best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.”
Conflicting evidence
24In this case there is conflicting evidence between the mother and father on many issues. I propose to deal with the evidence and make findings in relation to the issues of family violence, abuse, drug taking and alcohol abuse raised by the parties before considering what parenting orders will promote [Robert]’s best interests.
Mother’s allegations of family violence and abuse against the father
25As to her relationship generally with the father, the mother says in paragraph 1 of her affidavit sworn 18 April 2007:
“During our relationship, the father was very controlling, as he would control the finances and I was not allowed out of the house, except to pay bills and do shopping. I was isolated from my family and friends, as I was not allowed to socialise with them. The father would often get drunk, then he would verbally abuse me and cause property damage, such a punching hole in the walls or doors. I would get very frightened, to the point that I would vomit. Towards the end of the relationship, I had lost much of my self-confidence and as I was socially isolated, I had no support network in Western Australia. For a long time, I was too scared to leave because I feared that he would come after me.”
26The mother further says in her evidence:
(a)in 2002 when she was late picking up the father from a Tavern he put his fist through the windscreen of a vehicle. From this time, the mother thought about leaving the relationship;
(b)when she was pregnant the father suggested she abort the pregnancy;
(c)in 2003 the husband returned home from a night at the pub with two of his friends looking for the baseball bat or other weapon to take back to the pub;
(d)the parties’ de facto relationship ended in 2004 during her pregnancy when the father accused her of being unfaithful;
(e)the father was abusive when he was drunk and on one occasion the father said “if you try to leave, I will put both of you in a coma”;
(f)with reference to [Robert] going to a particular playgroup the father said “we can’t take him to playgroup in this area, because I belted up too many people here and it will come back on me”;
(g)in October 2006 when the father was to look after [Robert] whilst the mother went out, the father said words to the effect “you’ve fucked up my day, I was in the middle of work”. The father then attacked the mother in front of [Robert], ripping her hair, grabbing her by the arm and throwing her against the kitchen cupboards. The mother then thought about getting her own accommodation.
Final alleged incident of violence and circumstances of mother leaving [the rural property] with [Robert]
27The mother says an incident took place between the parties on 26 February 2007. The father smashed a dinner plate which resulted in the mother’s face being cut and she left [the rural property] the following day with [Robert] whilst the father was out. The mother says it was after the plate smashing incident that she decided not to “stick around” any longer and made arrangements to leave. The mother produced a photograph of the smashed plate which she claims she took just before she left.
Father’s response to mother’s allegations
28The father agrees he verbally abused the mother but says this occurred during arguments between the parties concerning the mother’s drug use. He admits these arguments were heated but says each of them “gave as good as we got”. The father says the mother sometimes “slammed objects around” and how during arguments she “used to stand right up close to me and point in my face”. The father denied that he ever caused damage to property and says the parties would generally make up a few days after such arguments and often after the mother had given an assurance to “quit the pot”. The father says that neither party touched the other in anger. He denies having every seen the mother vomiting following an argument or that she was afraid of him. He denies ever saying to the mother that he would “put her in a coma” or words to that effect.
29In relation to the incident where the mother alleges the father grabbed her and pulled her hair, the father says in paragraph 70 of his trial affidavit:
“When we were together, [Jane] and I had an altercation one day at the [his family home] property. I had stayed overnight. [Jane] had asked me to look after [Robert] while she went to the hairdressers. [Jane] seemed tense, and had said she was going to cancel her appointment. I asked her why, and she said, “you know why”, which I took to mean that she felt she needed to smoke marijuana. [Robert] and I were sitting on the couch and I ignored her. [Jane] was banging things in the kitchen and started yelling. She was beating her chest and clawed at her face. [Robert] started to cry, and I said, “keep your voice down, what are you doing?” I leant over the breakfast bar and grabbed her shoulders to try to stop her. [Jane] slumped to the floor crying. I did not intentionally touch her hair, or cause her to fall down. [Jane] went to the hairdresser. The hairdresser’s salon is around the corner from the [his family home] house, and the police station is around the opposite corner.”
30The father’s response to the plate breaking incident and the events leading to the parties’ separation are set out at paragraphs 35, 36 and 37 of his trial affidavit which I now repeat:
“35.The incident when I broke the plate occurred approximately 4 days before [Jane] left, not the day before she left. [Jane] and I argued. [Jane] had cooked pizza for tea. I had a dinner plate with a pizza that covered it entirely. [Jane] banged the garlic bread down on the counter, and I asked her what the matter was. She yelled that she couldn’t find her smoke. I had hidden it, because I was annoyed that she had promised me that she would stop smoking marijuana when she moved into [the rural property]. We started arguing, and [Jane] was yelling, so I told her it was in the bathroom. She walked out of the kitchen and sat on the lounge and went silent. The plate was in my hand, and I dropped it about 10cm onto the coffee table and sat back in my chair and said “I can’t handle this, I’ve had enough”. The plate broke. All of the pieces stayed on the table because the pizza was covering the plate. None of the pieces touched [Jane]. I did not break any other item. [Jane] started screaming that she hated me, my family, and my friends. It was at this stage that [Robert] came out of his room. [Jane] picked [Robert] up and sat on the lounge with him. I put him back to bed and went to bed myself.
36.The next morning I got up and went to work. Over the next days, [Jane] and I did not speak to each other. [Jane] did not come out of the bedroom whilst I was home, except to go out once to the [shopping centre]. She kept [Robert] close to her.
37.I came home from work on 27 February 2007 to discover that [Jane] and [Robert] had gone. Dad was there at the time. I was very upset and worried about what had happened to them. The gate was open, all the doors of the house were open, and [Jane]’s clothes, [Robert]’s clothes and photographs were missing. Pictures on the wall had been taken as had the kettle. I believe there would have been more than 1 carload missing. $1000 cash was missing from my bedroom drawer. After [Jane] left [the rural property], I looked through the house, and found an empty canister that smelled of marijuana in the top drawer in [Robert]’s room.”
Conclusions on mother’s allegations of violent controlling and abusive behaviour against the father
31Where there is conflict between the parties, I prefer the evidence of the father. I consider the father’s evidence to be far more believable than the evidence of the mother. The father in his evidence was prepared to make concessions against interest. For example, he conceded he over-reacted when he requested the police at [the Eastern states] to visit [Mrs B]’s home to do a welfare check on [Robert] when the mother was not at home with [Robert] at the time of one of his phone calls.
32I regard the mother’s evidence as unsatisfactory in relation to these allegations. I think she is capable of fabricating evidence if she thought it was to her advantage.
33Before turning to the allegations themselves, I wish to comment on the parties’ conflicting evidence as to the nature of their relationship from the time the mother moved with [Robert] to [the rural property] in December 2006.
34I do not accept the mother’s evidence that when she moved to [the rural property] in December 2006 the parties remained separated. The mother also denies she purchased furniture for use at [the rural property].
35[Brenda] says she was with the mother when the mother bought furniture for [the rural property] which supports the father’s evidence. I had no difficulty accepting the evidence of the father’s sister who I regarded as a fairly reliable witness. [Mr B] says that when he and his wife travelled to Perth in December 2006, the mother and the father were a “couple”. He says the mother told him she had purchased furniture to be used at [the rural property]. The mother’s parents left a card with money at the time they left [the rural property] to thank the parties for allowing them to stay at [the rural property].
36In October 2006, about two months before the mother’s parents arrived at [the rural property], the mother alleges the father ripped her hair, grabbed her by the arm and threw her against the kitchen cupboards.
37I do not accept, that the father assaulted the mother as she alleges or at all. On the mother’s version of events, this assault took place at a time when the parties were not living together. The mother did not seek any medical attention in relation to what she alleges was a serious injury caused by the father. She did not contact the police. She did not apply for a restraining order against the father and within a few months the mother moved in with the father at [the rural property]. I find it inconceivable that the mother would have continued to reside at [his family home] and then move in with the father at [the rural property] if she was fearful for her own safety or for the safety of [Robert].
38During his stay at [the rural property], [Mr B] and the father went out for drinks together and socialised. Mr Baker said that he had never seen the father hit the mother and he readily agreed that if he was aware of it happening, he would not have gone out and socialised with the father. In the father’s trial affidavit, he also gives evidence of the mother’s parents inviting him to stay at their house at [the Eastern states] for Christmas 2007 which was not denied in the evidence of either of the mother’s parents.
39[The father]’s mother and [sister Brenda] each gave evidence that they felt close to the mother who would confide in them about relationship problems with the father. [Brenda] says the mother never made any allegations to her about the father having hurt her in any way. [His mother] says the mother never said anything to her about being afraid of the father. Whilst [his mother] appeared quite fragile and nervous, I regarded her as an open and candid witness who was not out to present a false picture to the Court. [Mrs B] gave evidence that during her stay in Perth in December 2006 she noticed a bald patch on the mother’s head and when she asked the mother about this the mother replied “nothing”. I cannot believe the mother would not have told [Mrs B] about this serious assault well before her parents arrived at [the rural property] if the missing hair was caused by the father as the mother alleges. Whilst Christine described the father as someone who was in the habit of yelling and a person who could be loud and abusive, Christine also agreed that she had never witnessed the father being physically violent.
40The mother’s parents visited Perth each year following [Robert]’s birth staying at either [the rural property] or [his family home] for about six weeks on each visit. In addition to these visits the mother made a return visit to [the Eastern states] where she stayed for about three weeks at Christmas in 2005.
41Given this evidence, it is difficult to reconcile the mother’s claim that she was “isolated” from her own family.
42In this relationship, both parties used foul and abusive language toward one another, particularly during heated arguments. I accept the father’s evidence that each of them probably “gave as good as we got”. The father was no doubt quick to lose his temper but I do not regard the father as someone who would set out to injure or harm the mother.
43The final incident of alleged violence from the mother concerned the plate smashing incident which she says occurred the day before she left [the rural property]. The mother produced a photograph showing the smashed plate which she said caused a cut to her face. When asked during cross‑examination why she did not also take a photo of the cut to her face the mother answered “I don’t think I was thinking clearly”. I find this explanation unbelievable. A few days before the mother left she got an advance from Centrelink for $500 to put toward a bond for rental accommodation and was making plans to leave, such as calling a real estate agent to enquire about accommodation. Notwithstanding the alleged injury to her face, the mother again did not consult a doctor, did not contact the police and did not apply for a restraining order. Whilst this incident did neither party any credit, I do not believe the mother’s face was cut in the circumstances she alleges.
44In my view, the mother in all likelihood made up her mind to leave the father before the plate smashing incident and used this incident and her alleged fear of the father to justify her underhand behaviour. She knew that the father would not agree to her taking [Robert] away and she planned to leave him at a time when the father was absent.
Allegations of mother’s drug use
45The father alleges the conflict between the parties centred around the mother’s use of marijuana which would cause her to be irritable and defensive. The mother denied smoking marijuana at all and says she has never used any illegal drugs. The father’s evidence was supported by [Brenda] who told of the mother’s frequent drug use at [his family home]. [Mrs V] also told of the mother’s drug use during the parties’ relationship and says the mother gave her a “bong” as a gift and they smoked marijuana together from time to time.
46I do not regard the mother’s denial that she would use marijuana as credible. I accept that the mother’s use of marijuana was a source of conflict with the father.
47The mother underwent urine drug testing between April 2007 and October 2007. No cannabis presence was detected in any of the urine tests. The mother also underwent hair strand analysis from a sample of her hair taken on 13 June 2007 which did not detect any presence of the drug. Whilst the mother’s counsel acknowledged that a negative result of the hair strand analysis did not completely refute the use of or exposure to the drug, nonetheless, the tests do provide independent evidence of the mother having not used marijuana for the period covered by the tests. If the mother was to resume using marijuana, it would be a matter of concern as it has the potential to impact adversely on her parenting ability.
Mother’s allegations about father’s use of alcohol
48I accept the father’s evidence that since [Robert]’s birth, the father’s consumption has been kept to acceptable limits.
Primary considerations
49I turn now to the primary considerations which must be taken into account in determining what is in [Robert]’s best interests.
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
50Mrs Brownlie, counsel for the mother acknowledged there is a good relationship between [Robert] and the father. I accept that when the mother was living at [his family home], the father would spend time with [Robert] on most days every week and played a significant role in his care and upbringing from the time of his birth until the mother took him to [the Eastern states]. The mother, however, had the major role with [Robert]’s day to day care.
51There is no doubt that [Robert] will benefit by having an ongoing meaningful relationship with both of his parents.
52If the mother was to remain at [the Eastern states] with [Robert], the father will continue to reside in Perth, for reasons which I regard as strong. His business interests and family ties are all in Perth where the parties lived together before the mother’s departure. There will be a serious reduction in the close physical relationship that [Robert] enjoyed with the father prior to the mother leaving for [the Eastern states]. I am satisfied that the relationship between the father and [Robert] would suffer significantly if the mother continues to reside at [the Eastern states]. The visits by the father would be months apart and this is likely to adversely impact on the father’s ability to maintain a meaningful relationship with [Robert].
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
53I have dealt with the mother’s allegations of physical violence and abuse on the part of the father. Neither party alleged that the other had physically harmed [Robert]. [Robert] has, however, been exposed to the conflict between the parents and this doubt caused him distress. This reflects badly on both parties. Given the parties’ separation, however, [Robert] should no longer be exposed to this type of conflict between his parents which was characterised by shouting and the use of foul language. I am also not satisfied that contact with any member of the mother extended family and the father’s extended family would expose [Robert] to any risk of abuse, neglect or family violence.
Additional considerations
54I must now turn to the additional considerations.
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
55[Robert] is 3 years of age. There was no evidence led to suggest that his views have any relevance.
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
56I have previously expressed that [Robert] has a very good relationship with each of his parents, although it is likely that a stronger bond currently exists between [Robert] and his mother given the father’s limited physical contact with [Robert] since the mother left for [the Eastern states]. [Robert] also built up a good relationship with the father’s parents and his sister who had regular contact with [Robert] prior to him being removed from Western Australia. [Robert] would benefit from having a close and meaningful relationship with the members of the father’s family.
57I am also satisfied the mother’s parents have a close relationship with [Robert].
58In my view, the relationship between [Robert] and members of the father’s family would suffer if there is an absence of regular physical contact. Contact by telephone and or by electronic means is no substitute for frequent physical contact at [Robert]’s age. If [Robert] resides in Perth, the mother’s parents would still be able to maintain their good relationship with [Robert] by continuing their visits to Western Australia or by the mother visiting [the Eastern states] which occurred over Christmas 2005.
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
59The mother’s actions in removing [Robert] from Western Australia without the father’s knowledge had an enormous impact on the physical relationship that [Robert] has been able to enjoy with the father and his extended family. Since this occurred the time spent between [Robert] and the father, prior to the trial has been limited to daily visits over a period of four days. [Robert] has had no physical contact at all with any extended member of the father’s family. This was not a case where contact between the father and [Robert] was infrequent prior to the mother leaving Western Australia. When the mother stayed at [his family home], the father spent time with [Robert] on most days every week from the time of [Robert]’s birth and on every day since December 2006 when the mother moved into [the rural property]. I consider the mother’s conduct in removing [Robert] from Western Australia was unjustified in the circumstances and contrary to what was best for [Robert] by preventing the father from maintaining a close physical contact with [Robert]. The mother was focusing on her own needs and desires rather than those of [Robert] when she took him from Western Australia. If the mother was to remain in [the Eastern states], I have serious doubts about the mother’s willingness to facilitate and encourage a close and meaningful relationship between [Robert] and the father, particularly if ever the mother’s desires or priorities ever came into conflict with the father being able to obtain a close relationship with [Robert]. There is no evidence to suggest that the father is not willing to encourage a close and continuing relationship between [Robert] and the mother.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
60I have previously made reference to this consideration.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
61If the mother resides with [Robert] in [the Eastern states], the father will incur the costs of travelling from Perth to [the Eastern states] and accommodation expenses if he spends time with [Robert] at [the Eastern states]. [Robert] is not of an age where he could travel unaccompanied from [the Eastern states] to Perth. The mother proposes that the father be solely responsible for the costs of facilitating the father spending time with [Robert].
62The father’s financial circumstances are not clear. He operates a trucking business and receives income from leasing a truck. The father says that he earns approximately $4,000 per month in lease income from which his business related expenses must be paid. The father owns [the rural property] subject to a mortgage and also owns a number of vehicles. He has debts including a debt to the Australian Taxation Office which are being paid off. The father has paid approximately $25,000 in legal fees relating to these proceedings and has further costs to pay. Whilst there is insufficient evidence to enable me to get an accurate picture of the father’s financial position, I am satisfied he has the ability to raise funds needed for him to spend time with [Robert] in [the Eastern states]. I nonetheless accept that the funds available to the father and his commitments to running a business would limit the number of occasions the father could travel from Perth to [the Eastern states] to spend time with [Robert]. There is no evidence that the mother has any significant assets or income to assist in meeting the expenses involved with the father spending time with [Robert].
63If [Robert] lives mainly with the mother in Perth, then she will need proper child support from the father. The payments of $26 per month under the current assessment are inadequate and the mother should seek to have the assessment reviewed if an agreement could not be reached. The mother will also need funds to re-establish herself and [Robert] in Perth in respect of which the father has offered the mother $5,000.
(f)the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
64I propose to deal with these considerations together.
65I find that each of the parties can properly provide for [Robert]’s physical needs. Each of them can make proper arrangements for [Robert]’s accommodation and supervision, although if [Robert] lives with the mother in Perth she will need assistance to meet the costs of returning to Perth and setting up a home. The mother said she intends to work and given her past experience, I am satisfied she can find work either in Perth or [the Eastern states]. The arguments and conflict between the parties in [Robert]’s presence prior to their separation, suggest a failure on the part of both parties to appreciate the adverse impact such conflict may have on [Robert]’s emotional needs. If the mother resumes using marijuana as I find she did during significant periods of the parties’ relationship, then this has the potential to negatively impact on her ability to fully provide for [Robert]’s needs. There is no evidence to suggest that either party is unable to provide for [Robert]’s intellectual needs.
66The mother’s conduct in unilaterally removing [Robert] from [the rural property] in such an underhand manner demonstrates an irresponsible attitude to parenthood by drastically reducing the time the father could spend with [Robert] who had prior to the mother’s departure played a significant part in [Robert]’s care.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
67To the extent these considerations are relevant, they have been referred to in earlier parts of the judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
68I am not satisfied that any of the proposals advanced by the parties would be least likely to lead to the institution of further proceedings. Neither party led evidence to suggest this was as relevant consideration.
(m)any other fact or circumstance that the court thinks is relevant
69The mother was 19 when she came to Western Australia. She commenced employment at a boutique operated by [her aunt]. Since the mother’s arrival in Western Australia, some seventeen years ago, she has lived in Perth. The mother never had problems finding accommodation in Perth in the past and was able to find work. The mother told [Mrs B] on 24 February 2007 she was intending to leave [the rural property] and would move into rental accommodation in Perth. It appears that it was only after her father arrived that the mother decided to take [Robert] to [the Eastern states].
70The father made application for a recovery order which came on for hearing on 15 May 2007. The mother successfully opposed the father’s application by raising the then untested allegations of family violence, abuse and control of her by the father. Those allegations have now been tested and the father’s version of the events accepted. Had these findings been available for the hearing to return [Robert] to Perth pending the final hearing of the proceedings, I have little doubt that a recovery order would have been made to return [Robert] to Perth where the parties resided for their entire relationship.
Section 60C(4) & (4A)
71To the extent that these provisions are relevant, they have already been dealt with in the judgment.
Equal shared parental responsibility (Section 61DA)
72The parties agree that an order be made for [Robert]’s parents to have equal shared parental responsibility for [Robert]. If such an order is made, the mother and father will each be required to consult the other person on decisions about major long‑term issues in relation to [Robert] and make a genuine effort to come to a joint decision about that issue.
73I consider the making of this order to be in [Robert]’s bests interests.
74I am satisfied that [Robert] will benefit from the involvement of each of his parents when such decisions are made.
Equal time (Section 65DAA(1))
75Having determined that the mother and father should have equal shared parental responsibility, I must now consider whether [Robert] spending equal time with the mother and father would be in her best interests.
76In the event [Robert] is to reside with the mother in [the Eastern states], then [Robert] spending equal time with each of the parties is not practicable given that the father will remain in Perth. In the event [Robert] is to live in Perth, equal time is an available option. At trial, the father proposed that in the event [Robert] lives with the mother in Perth he should spend time with the parties on a seven day/night rotation basis. The mother, opposes these shared care arrangements and proposed the father spend time each weekend with [Robert] until 2009 with additional periods during holidays and on special occasions during the year.
Substantial and significant times with each parents (Section 65DAA(2))
77If I determine that it is not in [Robert]’s best interests for him to spend equal time with each of his parents, then I am obliged to consider making an order for [Robert] to spend substantial and significant time with each of his parents.
78In the event [Robert] is to reside with his mother in [the Eastern states] again, it is not reasonably practical. If [Robert] resides in Perth it is an available option.
Assessment of the parties’ competing proposals
Factors in favour of [Robert] residing in [the Eastern states]
79The mother’s parents and other extended family members live in [the Eastern states]. The mother can get support from her parents in [the Eastern states] who enjoy a close relationship with [Robert]. Whilst the mother has [her aunt] living in Perth, their relationship would appear to have broken down completely. The mother has had nothing to do with [her aunt] for many years and has never tried to rebuild this relationship.
80The mother has suitable accommodation for herself and [Robert] in [the Eastern states]. She can find work as a receptionist for which she is well experienced or perhaps other work.
81Until 2009 the mother proposes that [Robert] spend time with the father for three weeks during the New South Wales Christmas school holidays (between 10.00 am and 4.00 pm on each day of those holidays) and for one half of the two mid-year New South Wales school holidays. From [Robert]’s fifth birthday, the father may spend time with [Robert] in Perth or [the Eastern states].
82The mother wishes to reside in [the Eastern states] and to permit this would enable the mother to live where she chooses.
Factors in favour of [Robert] residing in Perth
83[Robert] was born in Perth and lived all of his life in Perth before being taken to [the Eastern states].
84Prior to the parties’ separation, [Robert] was residing in the care of both his parents. Whilst the mother was the main care provider, the father nonetheless spent time with [Robert] virtually every day and was significantly involved in his care, welfare and development.
85In the event [Robert] resides in Perth, he can maintain a close and meaningful relationship and have frequent physical contact with both of his parents.
86Living in Perth will also enable [Robert] to regularly spend time with members of the father’s family, particularly his sister and parents with whom [Robert] enjoys a close relationship.
87In Perth, [Robert] can spend equal or substantial and significant time with each of his parents which is not reasonably practicable if [Robert] lives with his mother in [the Eastern states].
Conclusion
Perth or [the Eastern states]
88I am satisfied that [Robert]’s interests are best served by him residing in Perth. This outcome will best fulfil the objects of the Act dealing with children. It will ensure that [Robert] can have the benefit of a meaningful relationship with both of his parents and for both of them to actively participate in [Robert]’s future.
89If [Robert]’s returns to reside in Perth, he will have frequent contact from a loving father and his large extended family which will benefit [Robert].
90[Robert] living in Perth should also not prevent the mother’s parents from having a meaningful involvement in [Robert]’s life as he grows up. They have visited Perth regularly since [Robert]’s birth and the mother has previously taken [Robert] to visit her family at [the Eastern states]. If [Robert] remains with his mother in [the Eastern states], it will have a huge impact on the amount of time [Robert] could spend with his father and the father’s extended family and the father’s relationship with [Robert] is likely to suffer significantly. This is particularly so given that [Robert] is not yet 4 years of age.
91Whilst I am satisfied, it is best for [Robert] that he live in Perth and have frequent contact with both parents, the mother must have sufficient funds to establish a home for herself in Perth. The father has offered $5,000 for this purpose. Whilst I was given no evidence as to how much the mother thinks she will need, I do not believe this sum will be sufficient to meet the mother’s travel costs, removal expenses and enable her to establish a rental home in Perth. I consider $10,000 to be more realistic which I am satisfied the father can raise.
Equal time or substantial and significant time
92I am not satisfied that [Robert]’s best interests are presently served by him spending equal time with each of his parents. The mother has been [Robert]’s principle caregiver from his birth. Through no fault of the father’s, his time with [Robert] since February 2007 has been limited to four days. Against this background, I have found that a stronger bond is likely to currently exist between [Robert] and his mother than between [Robert] and his father.
93The mother proposes that [Robert] spend time with his father each weekends from 5.00 pm Friday until 9.00 am Monday until [Robert] commences kindergarten in 2009 and otherwise live with her. I consider this to be in [Robert]’s best interests but not for the period proposed by the mother. This arrangement should continue for a period of six months after the mother’s return to Perth and thereafter [Robert] shall live with his mother on four days in each week and with his father on the remaining three days.
94The father’s proposals are that [Robert] reside with him at [the rural property] which is about one hour’s drive from Perth. Apart from the period of a few months when the parties lived at [the rural property], the mother’s home has always been in Perth. It is likely that the mother will have better employment opportunities in Perth and that she will want to live in Perth which I consider to be reasonable. The father says that he has some flexibility with his work hours and his family home is at [his family home]. He may have options available to him other than staying with [Robert] at [the rural property], if this was made impracticable by the shared parenting orders I intend to make.
95I do not intend to define that part of the week when [Robert] is to live with each of his parents but will give the parties liberty to relist the matter for orders defining the shared care arrangements if they are unable to agree.
96Notwithstanding the conflict experienced by the parties during their relationship, they have in the past shown a willingness to co-operate on matters concerning [Robert]’s wellbeing, particularly in terms of his accommodation. The parties have now lived separately for about 12 months. The father says that he has completed a parenting course which he found beneficial and the results of the drug testing procedures undertaken by the mother in [the Eastern states] proved negative. I consider the parties have the capacity to communicate with each other to resolve any difficulties that might arise as to implementing these shared care arrangements.
97Very little, if any, evidence was given and few submissions were made in relation to the time [Robert] will spend with each of the parties on Christmas Day and on other special occasions during the year. The orders I propose making for these special occasions are what I consider to be in [Robert]’s best interests.
98Subject to hearing from counsel, the orders I propose making are as follows:
Orders
1.The mother shall within 28 days of the father paying her the sum of $10,000, arrange to return [ROBERT] DAVID VOJVODICH born 21 October 2004 to Perth and thereafter the mother be restrained from moving his principal place of residence from Perth other than pursuant to an order of this Court or the written consent of the applicant father.
2.The mother be restrained from using the sum of $10,000 referred to in Order 1 hereof other than for the purpose of meeting her travel costs, removal expenses and costs of renting accommodation for herself in Perth.
3.In the event the mother fails to return [Robert] to Perth pursuant to Order 1 hereof, the mother make [Robert] available to the father at [the Eastern states] to enable the father to return [Robert] to Perth.
4.The parties have equal shared parental responsibility for the child.
5.[Robert] live with his parents in accordance with the following arrangements:
(a)for a period of six months following [Robert] being returned to Perth:
(i)with his father from 5.00 pm Friday until 9.00 am Monday of each weekend;
(ii)otherwise with the mother;
(b)after the expiration of the period of six months referred to in sub-paragraph (a) hereof:
(i)with the father for three days each week during school terms;
(ii)with his mother for the remaining four days each week during school terms;
(c)with each parent for one half of each midyear school holiday period;
(d)with each parent for one half of the Christmas school holiday period, with the halves to alternate between the first and second half commencing with the father in 2008;
(e)on [Robert]’s birthday on 21 October 2008 and in alternating years, he live with:
(i)his father from 9.00 am to 5.00 pm; and
(ii)his mother from 5.00 pm until 8.00 am the following day;
and on his birthday on 21 October 2009 and in alternating years, he live with:
(iii)his mother from 9.00 am to 5.00 pm; and
(iv)his father from 5.00 pm until 8.00 am the following day;
(d)with effect from 24 December 2008 and in alternating years, [Robert] live with:
(i)his father from 7.30 pm Christmas Eve until 3.00 pm on Christmas Day; and
(ii)his mother from 3.00 pm on Christmas Day until 5.00 pm on 26 December;
and in each other year commencing 2009 [Robert] live with:
(iii)his mother from 7.30 pm Christmas Eve until 3.00 pm on Christmas Day; and
(iv)his father from 3.00 pm on Christmas Day until 3.00 pm on 26 December;
(e)[Robert] spend Mother’s Day with his mother and Father’s Day with his father each year from 9.00 am to 5.00 pm;
(f)[Robert] spend from 8.00 am on his mother’s birthday to 8.00 am the following day in each year with his mother;
(g)[Robert] spend from 8.00 am on his father’s birthday to 8:00 am the following day in each year with his father;
(h)with each parent for one half of the Easter break;
(i)the general living arrangements are subject to these special occasion arrangements.
6.During periods when [Robert] is residing with either of his parents, the father and the mother facilitate and encourage communications with [Robert] as follows:
(a)telephone contact each alternate day;
(b)in such other ways and at such other times as agreed between his parents.
7.Each parent:
(a)authorise any educational institution [Robert] attends to provide to the other of them copies of all school reports and other material as they may require; and
(b)advise the other of any hospitalisation or other medical problem or treatment in relation to [Robert].
8.Each party keep the other informed of:
(a)their principal place of residence and of any change, or proposed change;
(b)the telephone number at their principal place of residence from time to time; and
(c)any current mobile telephone number for either of them.
9.There be liberty to apply in relation to implementation of these orders.
10.The applications otherwise be dismissed.
I certify that the preceding [98] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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