Vera and Vera

FAMILY COURT OF AUSTRALIA

VERA & VERA

[2008] FamCA 160

FAMILY LAW – CHILDREN - Best interests and views

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Vera

RESPONDENT:

Mr Vera

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

FILE NUMBER:

WOC

157

2007

DATE DELIVERED:

18 February 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

11-12 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

COUNSEL FOR THE RESPONDENT:

Ms Rees

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes

Orders

The husband and wife have equal shared parental responsibility for the children H born … March 1993 and F born … May 1996.
The children live with the husband.
The children spend time with the wife (unless otherwise agreed) as follows:
(a)For all but two weeks of the Christmas school holiday period. Those two weeks are to alternate with the children to live with their father during the first two weeks of such holidays in even numbered years and the last two weeks in odd numbered years.
(b)From the Monday immediately following the last day of school term in each of the short school holidays until the Friday immediately before the first day of the next term, such time to include travelling time between Darwin and Broome and Canberra, such that the children have a weekend in the father’s care at each end of the holiday period.
(c)By telephone, email or other electronic communication at any reasonable time.
(d)In any period when the wife is present in the Kimberley area as agreed between the parties.
In these orders “school holiday periods” shall mean school holiday periods at the schools attended by the children in Western Australia.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Vera & Vera is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 157 of 2007

Mrs Vera

Applicant

And

Mr Vera

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application to the Court for orders varying the place of living of each of two children presently living with the mother and the orders sought by the father are sought on his case to give effect to the views of a child aged nearly 15 years and a child aged nearly 12 years and for other reasons. The father says that if effect is given to those views the children will live with him in the Kimberley region in Western Australia and they will spend time with the mother for the most significant part of the school holidays.
The mother opposes the orders sought and says in the alternative that both children should reside with her and spend significant time with the father in the school holidays and that the views of the children if found in the terms asserted by the father (which as to the youngest child is in issue) should not in their interests be given effect or alternately only with respect to the older child.

Background Facts

The father was born in 1959 and is now aged 48 years and presently resides in the Kimberley region in Western Australia.
The mother was born in 1963 in the United Kingdom and is now aged 44 years and resides in southern coastal New South Wales.
The parties married in February 1982.
Of the marriage there are three children. The first was A born in June 1989 and now adult. The second child H was born in March 1993 and came into the parties’ care in August 1993 and was formally adopted by them in February 1994. The third child F was born in May 1996.
The parties separated in January 2001.
The parties divorced in August 2002.
In late 2002 the father met his current partner Ms S and they commenced living together from November 2002.
In December 2002 the mother moved to southern coastal New South Wales. The father says he agreed to this relocation on the basis that it would be temporary but the mother says there was no temporal limitation on the move.
I accept that the father thought the arrangement was one in which the children were likely to return after a period.
In early 2003 the father purchased a small property approximately 20 kilometres from the mother’s home in outer Perth in Western Australia and her place of employment from which the mother was then on leave without pay.
In early 2003 the mother married Mr P. The mother took up residence and continues to reside in southern coastal New South Wales.
In 2003 the parties entered into a parenting plan which provided for the children to travel to Western Australia during school holiday periods to spend time with the father. The father was to have approximately one week during school holidays with the children but three weeks during the Christmas school holiday period. The terms were drafted in the form of a proposed consent order but it was never made although it seems the arrangements with some flexibility were largely adhered to.
In September 2003 the father wrote to the mother urging her return to Western Australia in view of the availability of the closely located cottages and the available schools. He expressed concern at her non return.
In July 2004 the father undertook employment in the Kimberley region of Western Australia.
Throughout the separation the father has provided child support in accordance with a Child Support Agency (“CSA”) assessment and in addition paid the costs of the flights for the children to have contact amounting he says to about $20,000.00 per annum.
In August 2005 the mother separated from Mr P but continued to reside in southern coastal New South Wales.
In September 2005 the mother requested that the father assist in the payment of school fees and he provided the mother with $4,000 toward that purpose in addition to his CSA commitments. The mother gave the same amount to an African charity.
In early 2006 the mother entered into a new relationship with Mr H but apparently they did not live together and the relationship is now terminated although the wife in evidence said that they remained friends.
In early 2006 the mother arranged for the younger children to repeat a year at school. She did not consult the father in advance of making that decision.
In December 2006 the children travelled to the Kimberley region to spend Christmas holidays with their father.
The mother who was pregnant gave birth to a stillborn child and telephoned the father and insisted that the children be returned so that they might grieve with her.
On 16 January 2007 the father made application to the local magistrate and sought orders that the younger children remain with him and the mother commenced proceedings in New South Wales seeking orders for the return of the children. Those proceedings merged into the present proceedings before the Court.
On 17 January 2007 A, the eldest of the parties’ three children and now adult, returned to New South Wales.
On 24 January 2007 the Nowra Court made a recovery order for the children and the children were returned to the mother.
On 28 February 2007 Judicial Registrar Loughnan ordered that the children reside with the mother pending further order of the Court and an order for the appointment of an Independent Children’s Lawyer is made.
On 21 August 2007 a report was prepared by the Family Consultant, Dr F which recommends that the children live with the father.

The Issues

What are the children’s views and what weight if any should the Court give to the having regard to other matters affecting their welfare and otherwise to be considered under the provisions of the Act?
With whom should the children live?
What time should they spend with the parent with whom they do not live?

Credit

I accept the husband as a believable witness. He usually directly answered questions. He made concessions against interest. Where he might have been inaccurate he quickly admitted that he might be wrong. He was open to reasonable propositions as to how things might have been done by him better whilst giving reasonable explanations of why he did what he did. His tenor was one that was thoughtful and believable and he demonstrated a capacity to look at things from the point of view of others.
The wife gave non responsive answers. She sought to make speeches. She gave evidence not asked for. She would not concede anything much against her interest and had difficulty in finding good things to say about the father. She could not accept that her conduct was in any way lacking in a proper appreciation of the father’s role and the involvement he ought to have with his children. She did not deny that H wanted to live with her father and that it was a continuing wish although she said that from her point of view the wish was not sufficiently justified by reasons adequate for her. One got the impression having regard to the totality of the evidence that she could never find reasons for that decision which were acceptable to her.

The Mother

The mother does not presently work. She derives income from payments under a Commonwealth Scheme for the encouragement of the establishment of new enterprises. Benefits paid under that scheme are similar to those payable for unemployment. She and the children otherwise receive support from the father’s payments under the Child Support Scheme and from additional payments made by him. The mother has previously been employed as a teacher and gave no evidence of seeking employment.
The mother has been undertaking since the still birth of her child treatment for the alleviation of depression. She also suffers from a blood clotting disorder and takes blood thinning tablets and aspirin for the like purpose. She has indicated that she recently considered stopping taking the anti depressants she presently takes but has decided inter alia because of the stress of the current proceedings to continue with them. She takes blood pressure medication. She says she intends to start a business but otherwise devotes herself to the care of the children. She is described by the father as someone who is interested in giving the children opportunities in extra curricular activities and encourages them. She has engaged in teaching the children a second language which the father concedes is helpful in understanding foreign languages. He does not share the mother’s apparent passion for it.

The Father

The father is employed as a Manager for a community-based organisation.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
There appears no issue between the parents that the parents should have equal shared parental responsibility.
There appears to be no issue between the parents that in the circumstances of their present living it is not reasonably practicable for the parents to spend equal time with the children and I agree and I also consider that having regard to their respective places of residence it is not reasonably practicable for the children to spend substantial and significant time with each of the parents.
The parties in their proposed orders tendered at the conclusion of the evidence were not far apart on the time that the children should spend with the non resident parent.
As to residence the wife proposes in the alternative that:
a)The children both reside with her, alternatively,
b)That H reside with the father and that F reside with her.
The Independent Children’s Lawyer proposes that either both children reside with the father, the position he strongly argues for or if the court is not minded to do that, that both children live with the mother.
The father proposes that both children reside with him.
There appears no issue that H has expressed a view to live with her father.
There appears no issue that F for a time at least expressed a view to live with her sister H and her father but there is an issue as to whether she has maintained that view during the last week.
There is an issue between the parents on the weight to be given to the views of the children and the extent to which they should be given effect having regard to other matters for consideration under the Act.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

These children have a meaningful relationship with both parents and that relationship will continue upon the making of the orders herein.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother has exposed the children to her opinions about her own needs and how their moving to Western Australia would impact on her.
The children have been placed under prolonged psychological pressure. At the time when the mother gave birth to her stillborn child she appeared to have been very focussed on her own needs at that time and openly expressed the view that the children should have been with her to support her and help her grieve. She demonstrated minimal insight into the impact of this upon the children.

The mother appears to be using the children to meet her own emotional needs and although she is capable of taking care of their physical needs she does not appear to be able to focus on their psychological and emotional needs over her own. It is likely that the children find this burdensome and there are indications that A is very burdened by this.
A is leaving home this year to go overseas for a nine month holiday and whilst it is unlikely that H (if she remained in her mother’s care) would be so burdened by this given the different nature of the mother’s relationship with F and H it is possible that F will become burdened by it.

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

Both children expressed views as to where they should be placed.
H is described by the Family Consultant as intelligent, quietly confident and well spoken. She is by common accord of all the parties doing well at school. She expressed resentment at being required to repeat a year at school when her mother made a unilateral decision for her to do that. The child’s assessment was that the mother’s reason namely “their social development” was secondary at least in H’s mind to her desire to retain the children at school for a longer period.
H expressed clearly that she had given consideration to the effect of her views to live with her father. She noted “I will miss my friends but I’ll email them.” H reported that she had made her feelings clear to both her parents about going to live with her father.
In discussing her reasons for the decision she states that “she feels closer to her father”, that she can “talk” to him and “be understood by him”.
H reports that she has always missed her father and believes that her mother has made it hard for her to see her father.
H in expressing concern at the mother’s apparent emotional dependence on her children expresses her resentment at the mother “always making us feel bad for her”.
H reported that when she told her mother that she did not wish to return to her home in January her mother said words to the effect “you are killing me ... you are stupid and don’t know what you want”.
H expresses the view that she can have her own opinion and talk more openly with her father than her mother. She is reported as saying “With Mum and [A] I have to watch what I say.”
H reported that her mother and A told her that her mother would be “poor” if she and F went to live with the father.
H expressed the view that she would see her extended family much more if she lived with her father. She identifies A as always expressing her mother’s view and said “It is really stressful because [A] takes Mum’s side”.
Notwithstanding the views expressed clearly above she took the position that she would like to see her mother for more than one half of the school holidays which is the time that presently she spends with her father. She expressed no negative view about the travel for this purpose.
H maturely acknowledged that her mother would be upset if she and F went to live with their father but that her mother would still talk to her. She believes that F would have a hard time with her mother being upset.
In an argument for the move proposed H said “I don’t want to be yelled at for the rest of the year. I just can’t do it. I have to leave the house all the time and go to friends’ places or for long walks. It is not just Mum it is [A] too.”
She said of F: “[F] hasn’t said anything about wanting to live with Dad (to [the mother]) since we came back because she saw what’s happening to me.”
The Family Consultant expressed the view in the witness box that such was the strength of H’s views that if she were not going to be permitted to go there would likely be an act of disobedience.
F was also seen by the Family Consultant. Her opening comment was that she did not know what she wanted but then robustly said “that’s crap, I know what I want I want to go with [H]. I know [H] will go no matter what and I want to be with [H].”
She reported that her mother “will be really sad but she’s sad a lot anyway”.
The child said that in the changed circumstances she would “miss Mum and [A] a lot. She went on to say that her mother “would be probably quite upset” if she were to live with her father.
F reported that she “loves the school in [the Kimberley area]”. She said that she would be in year 6 at that school and then said “Mum made me repeat year four but my work was near the top of the class”. She said “I did not want to but I kind of got used to it”.
F reports to the Consultant that she was sporty and loved the outdoors and could swim all year round in the Kimberley region. She indicated that she will be able to attend all other sporting activities she enjoys with the addition of having available her father to teach her horse riding. She announced with pride “Dad knows so much about horses and I want him to teach me too”.

F did not express negative views about travel between her parents’ homes.
F reported that her mother “is a pensioner” and that she had told her “She gets child pay for me and [H] from the Government. She said that dad used to send her money for us for food and stuff but I am not sure if he still is”. She went on to say “Mum could get a job, she is good at lots of stuff”.
The views of the children are being expressed to the Consultant clearly and maturely. The Counsellor observes that it appears that H had been expressing her views for an even longer period of time and she concludes that both girls want to live with their father and spend time with their mother.
The view is said by the Counsellor to be expressed notwithstanding their exposure by their mother to her needs and how the moving might impact on her. The children’s views have been expressed notwithstanding that this conduct of the mother is said to have placed them under prolonged psychological pressure.
The father was cross examined about conversations he had had with the children. F had repeated up to a week before the hearing affirmations of her continued desire to live with the father. I accept the father’s evidence.
The father was contacted a few days before the hearing by A who is aligned with the mother’s position and told him that F had changed her mind and had asked her to help her tell her father.
F spoke with the father and did not tell him that she did not want to live with him but did express the view that it would be good if he could live nearby. I accept the father’s evidence that this was the conversation. This expression of view by the child is treated by me with extreme caution. I think it likely that it was a reaction to the psychological pressure building up as the hearing approached and a desire on the part of the child to be seen to do something which would placate A and her mother rather than a genuine expression of her view.
The father says that if F had formed the view that she did not want to live with him she would have said so. He reports that she is a direct child and does not mince words. This is consistent with her conversation with the Consultant and the forthrightness with which she expressed her views. It is noted also that at this time A has made a decision to go overseas and was reported earlier as saying to the Consultant that she might not go if the children were with their father because “Mum would have no one”.
With both her trip and that cancellation prospect possible I have reservations in any event about the conversation between A and her father accurately recording statements being made by F passing as they did through a filter which was affected by A’s own desires and interests and alignments.
In all I have concluded that the view of the children is to live with their father and spend time with their mother. I have concluded that that view is maturely formed. It is my view that it is a view strongly expressed. It is a view which has been maintained on the evidence for more than a year and maintained notwithstanding pressure which I believe the children have been subject to, to express different views.
(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)
H has a close relationship with her father evidence for which can be found in her own words as to her capacity to communicate with him and express her own opinions to him. The Consultant observed that both children respond well to the father’s style of parenting and have shared interest with him. They both feel confident that their father will support their ongoing relationship with their mother. They express the view that their mother has restricted the time that they can spend with their father.
H and F whilst recognising that their decisions would make their mother sad and that they would miss her if she continued to live in New South Wales nevertheless maintain their position but express the view that they would like to spend more time with the mother than they presently do with the father.
It was observed by the Consultant that there was noticeable tension between H and A, her older sister, and that on observation the mother spent time with F and that there was little interaction between the mother and H.
It is noted by the Consultant that H and F have developed an increasing resentment towards their mother about the limitations imposed on them spending sufficient time with their father since separation and about the manner in which their move to New South Wales became permanent. She notes that the mother lacks insight into the closeness between the children and their father and the importance the children place on their relationship with him. The children also have borne some resentment of the mother at her decision to repeat the children at school when it was not warranted on academic results.
By contrast when the children were with the father and his partner both were spontaneously affectionate with the father and his partner.
It is likely that upon the children taking up residence with the father their contact with A would be less than if they continued to reside with the mother. Although A is to attend University and would live away from her mother’s home the evidence is that she would return to her mother’s home on a regular basis.
The father says that in the event that the children reside with him they will have more frequent contact with his extended family. A number of the mother’s family members live in Western Australia and the father gave evidence of his willingness to foster a relationship with them also.
The mother in answer says that should the children live with her they will still see her family members when they come to New South Wales and that in any event given that most of them live in Perth the opportunities would not be significant in number given the father resides in the Kimberley region for them to see either extended family should they reside with him. She also says that during the period of cohabitation of the parties in Western Australia contact with some of that family was not frequent.
I find that the children are more likely to have a relationship with that extended family should they reside with the father given the mother’s comment to the Consultant that “blood was not everything” when talking of her relationship with her family but find that the difference in contact does not weigh heavily in my decision.
(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
The parents each propose that contact with the other parent continue during school holidays and that there be telephone contact in addition.
It was the father who first proposed that there be more contact with the mother in the event that the children live with him than is presently provided by the mother to the father.
The mother has in the past fostered the relationship with the father although it is noted that phone calls to the father are less frequently now made from her home telephone than hitherto. This seems to be as a result of angst arising from the father’s application to the Magistrates Court without notice. An act which he readily concedes should have been better handled.
Notwithstanding that occurrence the mother has done her best to assist in the provision of contact with the father including providing extra days from time to time when necessary and even offering her home as a place in which the father could have contact on his arriving in New South Wales.
This of course has to be set in marked contradistinction to her removal of the children from Western Australia in the first place and her decision to make such removal permanent which clearly indicates that she believed that fostering that relationship in a close ongoing way must necessarily be placed much lower in priority to satisfying her own wishes and needs.
The father’s purchase of property located near the property in which the mother had resided in Perth and to which he expected her to return betokens a greater capacity to understand the desirability of these children having a close relationship with each parent. It is unfortunate indeed that it was not possible for the children to have the benefit of his preparedness to recognise that fact in that very real way because of the desires of the mother to move permanently.
Because of the father’s greater understanding of the needs of the children to have contact with both parents I am satisfied that he would more readily foster an ongoing relationship with the mother than the mother would be motivated to foster such a relationship with the father.
(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
There is no doubt that the change in the children’s place of residence will have an effect in that it will part them from their mother and more frequent association with their sister A. It will part them from their friends. The Consultant has reported that both children express an understanding of that fact. They say in relation to their friends that yes they will miss them as they will their mother and sister but they will be able to see them on holidays and keep in touch by email and telephone. The mother has indicated that if she felt that the children had made a decision to permanently reside in the Kimberley area that notwithstanding her dislike of the idea she would consider relocating herself to the Kimberley area “if the children needed her”.
I find that these changes will not have an adverse effect on the children such as would be of decisive insight in a decision for them to live with their father.
Much has been said about the effect on the children of an interruption to their schooling.
The local schools cater for all subjects in the Western Australian School curriculum. It is the fact however that many of the school subjects are taught by distance education. It was suggested that “common sense” should dictate that it is inferior.
Evidence was given however that the results of a recent matriculation year at the Kimberley region high school were that something like 21 of 23 students were admitted to tertiary education in their first choice of subject.
I can find that there is in an academic sense no detriment by reason of distance education rather than having face to face teachers in a class room. It seems that the classes are small and the supervisors and availability of modern technology in teaching do not create education of an inferior quality judging by the academic results. In any event H is described as a well above average student. It is also suggested that F is a student of some ability. In any case both children will have the assistance of their father who himself has undergone a number of courses in tertiary education to assist them with their studies.
It is suggested that the children will miss their extra curricular activities but the evidence was that of their many such activities it was only Irish Dancing and language which were not available. The mother will be able to provide support for any continuing study of language which the children desire to undertake during their school holidays and no doubt otherwise by communication with the children via the internet. Whilst Irish Dancing is not available belly dancing is and the evidence is that one of the children had already expressed some interest in undertaking lessons in that Terpsichorean endeavour.
A change to their father’s care will importantly give to these children real expression to their closeness to him and the relationship with him previously described. It will hopefully end the resentment that they feel for their mother’s actions as they perceive them in denying to them the continued presence of their father since separation and this will be good for the children’s relationship with their mother. It will afford them a place where they can grow up hopefully without the imposition of responsibilities on them which are inappropriate for them to bear as has appeared to be the case with A.
It is said by the wife that a change of place of residence of these children to the Kimberley region would involve a change from a safe to unsafe environment. She has sought to assert that whilst the children can ride their bicycles and walk unaccompanied in the streets of her village and locality they will not be able to do the same in the Kimberley region. The wife concedes that she has not been to the Kimberley region and the only evidence I have is that of the husband and his partner. The husband says that the Kimberley region during the wet season often has an increased population of indigenous people coming from outstations and that occasionally particularly if there are funerals there can also be public fighting. But he says he can and does live safely in the Kimberley region. The children he says will be able to ride their bicycles in the Kimberley region and the mother has not hitherto complained about the children’s safety whilst living in the Kimberley region. I accept the husband’s evidence as to the safety of the Kimberley region and I do not find any compelling reason to support the proposition that their place of residence should not be changed because of it.
(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
Whatever decision I was to make in this case there would be difficulty and expense of the child spending time with the parent with whom they were not living.
I am comforted however by the father’s assertion that in the event that the mother is unable reasonably to contribute to the costs of the airfares for them to journey to New South Wales to see their mother and their sister that he will continue to meet that cost. Having seen the father I am of the view that he would do that. He has met that cost in the past.
The father reasonably expresses however the view that there should be nothing to stop the mother gaining income and making a contribution of a significant amount toward that cost in the future.
(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
On the evidence I find that each of the children’s parents can meet the physical and intellectual needs of these children. I believe that the capacity of the father to meet their emotional needs is superior given that the mother has placed priority in the past on her own emotional needs rather than theirs. The relationship between the children and the father’s partner appears on the evidence to be relaxed and she has offered to assist the father in the care of the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I find that both these children are mature for their age. The mother has had two partners since separation from the father. Neither of the relationships has been particularly long term. The father’s relationship with his present partner seems to be enduring. There appears a likelihood of greater stability in the father’s care. H is Asian by race. There is evidence of the mother facilitating travel to Asia for the child. I am confident that both parents will enable the child should she express such a wish to appropriately relate to her ethnic origins.
(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
Neither child is an Aboriginal child or a Torres Strait Islander child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I find that the mother’s removal from Western Australia was in the pursuit of her own needs and demonstrated scant regard to the responsibilities of parenthood. Her view that all matters should be open to the children including the discussions of this litigation and the effect it might have on her demonstrated the like regard. Her burdening A with responsibility she should not have had to undertake was in my view in the same category. She has exposed the children to a wide variety of experiences in their extra curricular activities and has provided them with the experience of overseas travel. She appears somewhat remote from H. She has not given F’s and H’s views the respect and consideration that they deserve.
One particular example of this was when she refused them the opportunity to say goodbye to their father and his partner after this court made a decision that they should be placed in her care pending the determination of this matter.
The father apart from his peremptory application to a Magistrate at a time of what he described as “chaos” has patiently hoped for some change in the mother’s insistence on living in New South Wales. His purchase of a property located so that the children might more freely pass between his household and that of the mother in Western Australia demonstrated an understanding of responsible parenting. His continued funding of the children’s costs demonstrated the like care as did his continued payment of child support.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any such violence.
(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
There is no evidence of family violence.
(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
In my view the orders made are least likely to lead to further proceedings since they will accord with the views of the children which have been expressed by them in a reasoned and mature way and consistently over a significant period of time. A failure to make such an order may well lead to the children disobeying the existing orders.

Section 60CC(4) & (4A)

Since the parties’ separation the mother has failed to facilitate the father in participating in decisions of importance in relation to the children by taking decision in relation to the children without consultation for them to repeat a year at school.
Following the separation the mother did not consider the father’s participation in the decision to make the residence of the children in New South Wales a permanent placement. She simply made the decision and informed him of it.
Although the mother has since the parties separated and she came to reside in New South Wales provided a facility for the children to communicate with the father during holidays and otherwise by phone her support for that telephone communication from her home land line has deteriorated and most of the communication has had to emanate from the father or from a mobile phone provided to H by him.
Her unilateral decision to relocate to New South Wales in pursuit of her needs and desires demonstrated a failure to take into account the needs of the children to give effect to a closer ongoing relationship with their father and afford them the facility of spending either equal or real and substantial time with their father.

The mother has however afforded the father the opportunity for seeing the children during school holidays and has offered the use of her home to him for the purpose of residing with them for a time in New South Wales.
The father’s obligation to support the children financially has been more than fully met.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

The parties agree that they should have equal shared parental responsibility for these children.

Section 65DAA / Section 65DAA(5)

A consideration of the children spending equal time with each parent is, in the joint view of the parties, and having regard to their present places of domicile, not reasonably practicable.
The parties live in different states: the father in the Kimberley region in Western Australia and the mother in the southern coast of New South Wales and movement is on any basis expensive.
I find that it is not in the interests of these children since such a provision would not be practicable having regard to their needs for a settled environment and settled educational arrangements following their move.
Having regard to the present place of dwelling of each of the parents such a regime would not be consistent with the views of the children.
For those reasons it is not given those facts in the best interests of these children at this time to spend equal time with each parent.
For the same reasons it is not reasonably practicable for these children to spend substantial and significant time with each of the parents.
I accordingly decline to make such orders.
For these reasons I make the orders set forth above.

I certify that the preceding one-hundred and thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 18 February 2008

[2008] FamCA 160

18 February 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness