WAKEFIELD & WAKEFIELD

[2017] FCCA 1997

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAKEFIELD & WAKEFIELD [2017] FCCA 1997

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking recovery order that mother return children to Sydney from Western Australia – mother seeking interim order that children live with her in Western Australia – proposed recovery order not made – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 67U, 67V

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Vontek & Vontek [2017] FamCAFC 28

Applicant: MR WAKEFIELD

Respondent: MS WAKEFIELD

File Number: PAC 2188 of 2017

Judgment of: Judge Newbrun

Hearing date: 16 June 2017

Date of Last Submission: 16 June 2017

Delivered at: Parramatta

Delivered on: 22 August 2017

REPRESENTATION

Solicitors for the Applicant: Wilsons Solicitors

Solicitors for the Respondent: Self-represented

ORDERS PENDING FURTHER ORDER

1. That the children X born (omitted) 2009, and Y born (omitted) 2011 (“the children”) live with the mother in (omitted), Western Australia.

2. The father’s proposed recovery order that the mother cause the children to be returned to the father in Sydney is dismissed.

3. The children shall spend time with the father as follows:

   (a)for the whole of the Western Australia shorter school holiday periods;

   (b)for half of the Western Australia Christmas school holiday periods; failing agreement between the parties, in odd numbered years the children shall spend time with the father from the first Monday of those holidays to the Monday three weeks later, and in even numbered years from 7 January to the Friday before school resumes.

   (c)at other times as agreed between the parties in writing.

4. That all changeovers occur at Sydney or Perth domestic airports at the entry or exit gate (as the case may be) with each party to make arrangements for the children to travel unaccompanied on the airline, with the cost of the children’s airline travel to be shared equally.

5. When the children are in the care of the mother, the children shall communicate with the father, including Facetime, any day between 5PM and 5:30PM Western Australia time.

6. When the children are in the care of the father, the children shall communicate with the mother, including Facetime, any day between 5PM and 5:30PM Western Australia time.

7. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including landline and mobile) and advise the other party of any changes to these details within 14 days of such change occurring.

8. That the father ensure that the mother is kept informed of:

   (a)any medical problems or illnesses suffered by the children while in the father’s care;

   (b)any medication that has been prescribed for the children;

   (c)any social, school or religious functions which the children are to attend;

   (d)the details of any other people who reside with the children.

9. That the mother ensure that the father is kept informed of:

   (a)any medical problems or illnesses suffered by the children while in the mother’s care;

   (b)any medication that has been prescribed for the children;

   (c)any social, school or religious functions which the children are to attend;

   (d)the details of any other people who reside with the children.

10. Pursuant to s62G(2) of the Family Law Act 1975 the parties and the children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia for the purposes of the preparation of a Family Report.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2188 of 2017

MR WAKEFIELD

Applicant

And

MS WAKEFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the hearing both of the father’s recovery order application that the mother return the children of the relationship to the father in Sydney, and the mother’s interim application that children be permitted to live with her in (omitted), Western Australia.

2. The children are X, born (omitted) 2009, and Y, born (omitted) 2011.

3. The mother and the children left Sydney and travelled to (omitted), WA, on about (omitted) 2017, to take up residence with the maternal grandmother. The parties, including the children, used to live at (omitted) in Sydney.

Material relied upon by parties

1. The Applicant Father relies on the following documents:

   a)Initiating Application filed 5 May 2017;

   b)Notice of Risk, filed  5 May 2017;

   c)Affidavits of father filed 5 May and 26 May 2017;

   d)Subpoenaed documents from the mother’s GP in WA being exhibit A.

2. The Respondent Mother relies on the following documents:

   a)Response filed 23 May 2017;

   b)Affidavits of mother filed 23 May and 14 June 2017;

   c)Affidavit of the maternal grandmother filed 14 June 2017; and

   d)Notice of Risk, filed 23 May 2017.

Parties’ proposals

1. The father’s proposals were set out in his document headed “Orders proposed by father” and relied upon at the interim hearing. That document sought orders, inter alia, that the mother do all things to deliver the children to the departure gate at Perth Airport for a flight previously booked by the father for the children (and communicated to the mother); the father do all things to collect the children from Sydney airport upon the conclusion of the flight; the children live with the father; the children spend time with the mother during specific times of the New South Wales school holidays, and at other times as agreed between the parties in writing; and other ancillary proposed interim parenting orders.

2. The mother’s Response (with some amendments made by the mother at the interim hearing) seeks interim orders, inter alia, that the children live with the mother in (omitted), Western Australia; that the father spend time with the children during the whole of the Western Australia shorter school holidays, and half of the longer Western Australia Christmas school holidays; when the children are in the care of the mother that the children communicate with the father, including Face time, at certain periods; and other ancillary proposed interim parenting orders.

Agreed or undisputed relevant facts (unless stated otherwise)

1. The mother was born on (omitted) 1988, and is aged 29 years. The father was born on (omitted) 1974, and is aged 43 years.

2. The father is employed by (employer omitted), at the (omitted), at (omitted). He works Monday to Saturday from 7am to 3pm.

3. The parties commenced cohabitation in 2006 and married in (omitted) 2007.

4. The family have resided in (omitted) since 2005. The children have been attending (omitted) Public School in (omitted), close to the family home.

5. During the parties’ relationship, the mother was a stay at home parent caring for the children, the father being in paid employment. The father states his hours of work are 7AM to 3PM Monday to Saturday.

6. The mother has suffered from mood difficulties in the past. These difficulties, according to the medical records in evidence, and discussed below, appear to have escalated at least from sometime in 2015, and especially escalated in about mid-February 2017 with the mother telling the father at that time that she wanted to go to a hospital to get help.

7. Accordingly, the mother and the father attended the (omitted) Hospital’s mental health care unit on about 19 February 2017. The mother gave a history to hospital staff, inter alia, of experiencing random anxiety attacks in 2015. She also reported depressed mood, with low energy levels, increased irritability, poor sleep. The mother’s GP had been previously encouraging the mother to obtain psychological help but the mother had not been following through with such advice; the mother stated that this was due to her anxiety in getting out and going to places. The mother told hospital staff on 19 February 2017 that “she wanted to follow-through this time as she really wants help.”

8. On about 28 March 2017 the mother told the father, inter alia, that their relationship was not working; the maternal grandmother was coming over to Sydney from Western Australia; the mother was planning on returning with the maternal grandmother to Western Australia; and she wanted to take the children. The father expressed his opposition to the mother taking the children to Western Australia to live and told the mother that the children would be better off staying with him in Sydney.

9. The parties separated on about 2 April 2017.

10. The mother alleges that, on about 2 April 2017, after the father told her and the maternal grandmother that he would arrange for the paternal grandfather to get some paperwork (which ultimately was a form of parenting plan) drawn up for the parties to sign, she felt the only option available to her to be able to take the children to Western Australia was to sign this paperwork and so she agreed to sign it. According to the father, the mother agreed, in the presence of the maternal grandmother, to the children being returned to the father at the end of the school holidays in late April 2017.

11. On 2 April 2017 the paternal grandfather brought the children to see the mother and the mother spent some time with them, with the children being very excited to be going to the maternal grandmother’s home in Western Australia.

12. On 2 April 2017 the father asked the maternal grandmother to take the mother with her that day and return on 4 April 2017 to pick up the children.

13. On Monday evening 3 April 2017, the father emailed the proposed parenting plan to the mother for further consideration. Later that evening, the maternal grandmother and the father had a conversation. In that conversation, inter alia, the maternal grandmother told the father that she was concerned about “some of the future details”. The father told the maternal grandmother that the proposed parenting plan was a temporary arrangement to cover things until the holidays were over and the parties could sort out further arrangements.

14. The parties signed a parenting plan on 4 April 2017 prepared by the father’s solicitors. At that time and thereafter the mother has been legally unrepresented. The parenting plan provided, inter alia, that the mother was proposing to travel with the children by air from Sydney to Western Australia, so as to spend block holiday time with the children over the forthcoming NSW school holiday period. The plan provided that the mother would collect the children from the father on 4 April 2017, and the children would then remain in the mother’s care until 23 April 2017, when the mother would return the children to the care of the father at Sydney airport on 23 April 2017.

15. The plan further provided that in the event that the mother did not return to the former matrimonial home after 23 April 2017, and pending the parties entering into further parenting arrangements regarding the children, the children would continue to live with the father.

16. The plan further provided that in the event that the mother returned to Sydney (from Western Australia), the parties would use their best endeavours to agree on parenting arrangements regarding who the children would live with, spent time with and communicate, including the parents attending a family dispute resolution or mediation should they not be able to reach agreement themselves.

17. On 4 April 2017, after the plan was signed by the parties, the children were reunited with the mother and they were very happy and excited to see her and to be going on a plane to the maternal grandmother’s home.

18. The mother travelled with the children to (omitted) in Western Australia on about 5 April 2017, and has remained there with the children since that time.

19. On 20 April 2017, the parties had a telephone conversation. Inter alia, towards the end of that conversation, the mother told the father that she wanted the children to remain living with her in Western Australia, and offered to the father that he could spend all school holidays and half of the Christmas school holidays with them. She informed him that the children didn’t want to return to Sydney. The father reminded the mother of their parenting plan providing for the children to be returned to Sydney. The father asserts that the child Y told him on the evening of 20 April 2017 that he wanted to return home. The father asserts that the mother at this time said to him that this child did want to return but that she did not want to allow this to occur because she did not want the children to be split up.

20. The children have been attending the (omitted) High School since the beginning of term 2, 2017.

21. The child Y attends the school and is in kindergarten; he goes to school 2 days one week, and 3 days the other week. He has been enrolled in a speech therapy class which is twice each week. According to the mother he is enjoying school. Annexed to the mother’s second Affidavit is a copy letter from this child’s school teacher stating that the child has settled in well to the classroom; he has made many friends within the school and socially is doing very well; he is an avid learner and a role model to his peers; and he is a pleasure to teach.

22. The maternal grandmother states that Y is in a small class of about 14 students, so there is plenty of one on one teaching.

23. The child X is in year 2 at the school. Annexed to the mother’s second Affidavit is a signed letter dated 14 June 2017 from the school principal and X’s class teacher stating that the child had settled in quickly to the class; she is a well-mannered member of the classroom and is well liked by her peers; she has made friendships easily with children across the early years class groups; and she is achieving at the expected year level in literacy and numeracy.

24. The mother asserts that the child X has made lots of friends who she has play dates with on some days after school, as everyone lives close by, however the mother walks her there.

25. (omitted) is a country town located about 500 km (omitted) of Perth. The town has a population of about 450 people, it is a mainly farming community, although there is a mine nearby.

26. The paternal grandparents live at (omitted). They have been involved historically in the lives of the children and have provided support to the parties.

27. Besides the maternal grandmother, the mother’s brother resides in (omitted). The children have 4 cousins living in (omitted). According to the mother, the children spend almost every weekend at the maternal grandmother’s house with their four cousins which they love, as they are basically the same age.

28. The children have paternal cousins in Sydney with whom they are close. Historically, they have spent regular time with them.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

3. Of this, the Full Court in Eaby said at 80,332:

   “As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

8. 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: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

12. As to relevant legal principle relating to recovery applications, the court refers to s67U of the Act providing that, “In proceedings for a recovery order, the court may, subject to section 67U, make such recovery order as it thinks proper”, and section 67V of the Act, providing that, “In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” The court also refers to relevant legal principle, in relation to relocation applications, set out in the recent decision of the Full Court of the Family Court of Australia in Vontek & Vontek [2017] FamCAFC 28.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The children have a meaningful relationship with each parent and would benefit from a continuance of those relationships.

2. The Court’s distinct impression, from the material presently before the Court, is that during the parties’ relationship, the mother was the children’s primary carer (although on occasions, but it would appear not for significant periods, particularly since 2015, the mother may well have been incapacitated to some extent in caring for the children by reason of her mood related difficulties); the mother was a stay at home parent, and the father worked in paid employment. Again, in this context, it is noted that the father asserts that he works Monday 7AM to Saturday 3PM.

3. Whilst the father asserts, on the one hand, that he assumed the majority of the parenting responsibilities, by reason of the mother’s alleged difficulties in parenting the children, and that “often” the mother required him to leave work to take care of children, on the other hand, he asserts that he would try to do as much as possible “outside of my work hours, particularly over the past 4 years”.  As to this asserted 4 year period, the tendered medical material before the Court does not clearly support this assertion, and refers to the mother experiencing a worsening of mood related difficulties since 2015.

4. Further, there appears to be a dispute between the parties as to the extent to which the mother’s care of the children (and maintenance of the family home) was adversely affected by the mother’s mental health issues, particularly in the latter stages of the relationship. For example, the mother alleges that she cleaned the house (disputed by the father), with the father coming home from work and spending “the rest of the day and into the night playing (omitted) on his computer” which “was also a typical weekend activity” which left the mother to “also mow the lawns”. In this context, it is not without relevance that the father refers to the mother, in 2017, picking up the children from after school on Mondays to Thursdays, and he does not dispute that the mother cooked meals for herself and the children and most of the time for the father.

5. The Court does not overlook the fact that the mother does appear to acknowledge her difficulties and frustration in parenting the child Y at times (and see the text messages passing between the parties and annexed to the father’s latter Affidavit), and she does refer to what she describes as her anxiety condition getting worse, although she contends that the father’s very controlling behaviour contributed to this occurring (and see the subpoenaed material tendered in this context, discussed briefly below), which is denied by the father.

6. Despite the mother’s apparent difficulties at times in parenting the child Y, including mood disturbances in the family home, it would appear that by the time the mother left for Western Australia with the children in in early April 2017, her meaningful relationship with the children had not been adversely affected.

7. The Court recognises, at this interim stage, that the ability of the father to spend regular time with the children will be significantly compromised should the mother remain living with the children in (omitted).

8. At this interim stage, should the children continue to live with the mother in (omitted), and spend time with the father during the whole of each of the shorter school holiday periods, and half of the Christmas school holiday periods, together with regular telephone contact, there is a significant prospect that the children’s meaningful relationship with the father can be maintained.

9. Should the Court make the recovery order sought by the father, requiring the mother to cause the children to be returned to the father’s care in Sydney, noting the mother’s intention to remain in (omitted) irrespective of the Court’s decision in this context, there is a significant risk that the children’s meaningful relationship with the mother will be detrimentally affected; again, in this context, the court refers to its comments above as to the court’s distinct impression that the mother was the children’s primary carer during the relationship. Further, in this context, the Court infers from the whole of the mother’s evidence that she desires to remain living in (omitted) by reason of the emotional health benefits that she contends will enure to herself by reason of her family and friendship supports available in (omitted).

10. Further in this context, the Court notes that the mother continues to remain a stay at home parent to the children in (omitted), being available at all relevant times to meet the children’s care needs (and in this context, the Court notes that the mother, for her part, contends that because of the father’s work hours “which make him unable to take the children to school”, she believes the children are better off staying with her in (omitted) where she “can be there for them on a day-to-day basis”). However, should the recovery order be made, and the children return to the father’s primary care in Sydney, the paternal grandparents will necessarily be required to significantly assist the father in the care of the children, noting the father’s usual work hours from Monday 7AM to Saturday 3PM.

11. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father asserts that he has concerns regarding the well-being of the children in the mother’s long term care. His concerns relate to the mother’s alleged inability to fulfil her parenting duties to the children (citing a decline over the previous 4 years), without the full-time support of the maternal grandmother or another person; her psychiatric condition and lack of insight into this condition, including her failure to follow up on treatment in relation to her psychiatric condition in the past; her inability to tolerate and handle the child Y; the child Y’s lack of one on one education support in Western Australia, where he attends school on average two or three days a week, bearing in mind this child’s difficulty with speech and the need for the earliest possible intervention; and the mother’s propensity to commit acts of violence in the hearing and presence of the children.

2. The father asserts, inter alia, the mother’s difficulties in getting the children to school.

3. He refers to her heavy smoking. He refers to the assistance from the paternal grandparents in caring for the children in this context.

4. The father asserts that the child X likes to spend her time indoors and outdoors, however the child Y is a very active little boy and likes to get out of the house and runabout. He believes the child Y is too active for the mother to handle.

5. The father asserts that the mother says very little and has difficulty in communicating with other people.

6. The father asserts that in early 2017, the mother was extremely angry at the children and the father for no apparent reason, and at one point observed the children to be hiding under X’s computer table. The father asserts that the mother had been yelling and screaming abusive language towards himself and the children.

7. The father asserts that the mother had damaged the family home in certain respects in the hearing and presence of the children and which had escalated in the months of at least February 2017.

8. The father asserts that the mother in early 2017 had a temper rage, including throwing things, in the hearing and presence of the children. The father asserts that at this time he packed some of the children’s clothes and belongings and relocated with the children to the paternal grandparent’s home. As the father arrived at the paternal grandparent’s home with the children, the maternal grandmother telephoned the father asking what was going on. The father returned to the family home to be with the mother.

9. Whilst with the mother, the father asserts that he had a conversation with the mother when the mother told him that she had to go to the hospital to get help. The mother asked the father to take her to the (omitted) Hospital. The father took the mother to the mental health section of that hospital. He sat with the mother and was present when the mother gave her history to hospital staff. The mother was discharged from that hospital’s mental health care unit later that day with a list of people to see. (At the mention of this interim hearing on 22 August 2017 the father’s counsel conceded that the father’s affidavit references to the mother attending the (omitted) Hospital in late March 2017 appeared to be incorrect and that the relevant admission to hospital was on 19 February 2017, consistent with the tabbed documents tendered in evidence in exhibit A.)

10. The father states that he is aware that the mother consulted a specialist on (omitted), and he changed the mother’s medication.

11. The father refers to the mother’s postnatal depression which appears to have settled down by the time the child Y was one year old. He states that the family doctor, Dr C, prescribed the mother anti-depressant medication which the father believed the mother had taken for the past two years. The father asserts the mother had told him that Dr C had prescribed medication for depression and suggested she get some help. The father asserts that, as far as he is aware, the mother has not sought any specialist treatment prior to her hospitalisation at the (omitted) Hospital Mental Health Unit in March 2017.

12. The father asserts that the mother said to him following her attendance at the above mental health unit that she would seek help and follow through with it but that she wanted the children back home. The father states that he agreed provided the mother was going to do it.

13. The father asserts that the mother attended at least one appointment following her attendance at (omitted) Hospital Mental Health Unit. He asserts a number of appointments were cancelled.

14. The father asserts that the paternal grandparents are available to assist him in looking after the children should he be precluded because of his work commitments. The father asserts that his work location at (omitted) is a 20 to 30 minute drive from the (omitted) Public School. He states that the paternal grandparent’s home at (omitted) is only a 10 to 15 minute drive from (omitted), and a 15 to 20 minute drive from his work location.

15. The father asserts that he requires that the children be returned to him forthwith so that they can continue with their schooling, as both children were thriving living with the father at (omitted), and spending time with the paternal grandparents and extended family.

16. The father refers to numerous text messages passing between the parties in late 2015, 2016, and in the first quarter of 2017. He states that certain of these text messages causes concern regarding the health of the children if they were to remain in the long term care of the mother.

17. In certain of these text messages, inter alia, the mother expresses significant frustration and emotional disturbance in dealing with aspects of the child Y’s behaviour, including his tantrums and his hitting the mother.

18. In a text message in late March 2017, the mother refers to her recent attendance at hospital and her realisation that she couldn’t get through “the anxiety” by herself without counselling. The mother states that she did not attend to counselling earlier because she thought she could get through it by herself again. The father, for his part, expresses to the mother his concern that the mother will again fail to address her emotional issues.

19. The maternal grandmother’s affidavit was sworn on 14 June 2017. She states that she is employed in the local (employer omitted) in (omitted), for 4 to 5 days a week.

20. The maternal grandmother states that the children and the mother have been living with herself and her partner, Mr N, in (omitted) since 5 April 2017. She states that they all live in a four-bedroom, two bathroom property in (omitted), about 100m from the school.

21. The maternal grandmother states that on 24 April 2017 her partner suffered a major heart attack and had to be flown to Perth for surgery. The maternal grandmother accompanied him. This left the mother and the children remaining in her home in (omitted). The maternal grandmother asserts that in the four weeks that she and her partner were in Perth, the mother enrolled the children in school, met the teachers and school principal, kept the maternal grandmother’s house clean, did the shopping, walked the children to and from school every day, and met some of the other mothers and did not seem to have any problems while she was not there.

22. The maternal grandmother asserts that whilst she will always be there to support the mother, she does not interfere with her parenting which the mother seems quite capable of doing herself.

23. The maternal grandmother states that the mother and herself share cleaning and cooking duties. She states that the mother has been a great help caring for the maternal grandmother’s partner in making his meals while he recovers at home.

24. The maternal grandmother states that the mother has seen their local doctor, who has kept the mother on the same medication. The mother takes this medication daily. The maternal grandmother states that she believes that the stress of the parties’ marriage breakdown made the mother’s anxiety worse but now that she is away from the stress, the mother seems happier and more relaxed. She states that the mother made an appointment with a therapist in (omitted), Western Australia, on 25 July 2017, which was the first appointment the therapist had available.

25. The maternal grandmother states that for the 2 ½ months that the mother has lived with her, she has never seen the mother lose her temper. She states that the mother is like a different person to the one the father describes in his Affidavit.

26. The maternal grandmother states that (omitted) is a lovely small community with all the locals very friendly and helpful. She states that the children are settled at school and at home (which is also the assertion of the mother). They have lots to do such as visiting the park, the beach, and their friends and cousins who also live in (omitted). They both joined the local Youth Club which is run once a week for 6 to 10 year olds and they love it. They are never short of something to do.

27. The maternal grandmother states that she does not believe that the children are at any risk whatsoever should they be permitted to remain in the mother’s care in (omitted).

28. The mother, in her Affidavit filed 23 May 2017, asserts that now that she has moved out of the family home her anxiety has decreased markedly and her self-confidence is improving. She states that she does not believe the children are at any risk in staying with her in (omitted), and she is much happier, and she has the emotional support from her family and friends which she never had before.

29. The mother, in her affidavit filed 14 June 2017, asserts that her family supports in (omitted) have assisted her in getting her confidence back slowly. She contends that moving back to Sydney, where she would have no support at all, would not be good for herself, as she believes this would increase her anxiety, and which in turn would not be good for the children.

30. The mother states she has been to see the local doctor in (omitted) to discuss her treatment and ask about her mental health plan, and also about seeing a therapist. She states that she still suffers from anxiety but to a lesser degree. Her anxiety no longer stops her from getting out of the house. She still takes her medication every day and she has made an appointment with a therapist, Ms H, in (omitted), Western Australia, on 25 July 2017.

31. The tendered (see the particular tabbed documents) health treatment records pertaining to the mother, exhibit A, and being documents from the mother’s new GP in (omitted), near (omitted), referred to a consultation between the GP and the mother on 20 April 2017.

32. That consultation records the mother’s coming over from “the East” and refers to a “hassle with husband”. It refers to the maternal grandmother being “here” together with the mother’s brother. The mother stated as being happy “to be here”. The notes refer to the mother’s history of depression with anxiety. It refers to “an EPC done 29 February 2017 for psychologist. Should be valid still. As done in the ES.” The mother is to “come and check with Ms C that the paperwork is valid.” A diagnosis is made of depression, with depression being stated as the reason for the visit to the doctor. The clinical notes record a prescription of Lexapro being made to the mother, one tablet daily as directed.

33. The tendered records from exhibit A include a four-page hospital record from, it would appear, the (omitted) Hospital, and relating to the previously discussed admission of the mother to that hospital’s mental health care unit on about 19 February 2017. Under the heading “Current functioning and supports”, in relation to the mother, it is stated that the mother has poor functioning currently due to worsening of anxiety and depression. The notes state that the mother goes to pick up the children from their school, however she sits in her car so she wouldn’t have to face anyone. It records the mother as taking 2.5 mg of Diazepam before going to pick up the children due to her anxiety. Under the heading “Current parental/carer status”, the notes record the mother as being in “an active parental or carer role to dependent children”. The notes record the mother as identifying the children as the “only aspect” of her life going well currently. The mother states that both children are well behaved and doing well in school. During the assessment, the father stated that the children have been witness to the mother’s anger outbursts. The mental health assessment records the mother as not having current thoughts or plans of suicide; not having current thoughts or plans about hurting others; not having delusions which are likely to create anger, fear or entitlement. It refers to “nil perceptual abnormalities, alert, oriented to time, person and place, intact insight and adequate judgement”.

34. The diagnosis is stated as “Provisional Depressive Episode.” A further history is recorded to include the mother presenting with a 1.5 year history of, inter alia, deteriorating mood, relationship conflicts, and a three month history of anger outbursts, and “presenting with the father seeking help”. The clinical notes record a FACS notification.

35. The material presently before the Court suggests that the mother has suffered from worsening anxiety (and panic attacks) over at least the last 1.5 years and which on occasions may well have had some impact upon her parenting capacity. The mother appears to have failed to take appropriate steps to adequately treat that condition until about February 2017 when, at a time when she was particularly unwell, she voluntarily attended the (omitted) seeking help. She has since sought mental health treatment, including ingesting prescription medication and organising consultations with a therapist. She has sought and obtained family support for her condition through relocating with the children to (omitted), Western Australia, to live in the maternal grandmother’s home there.

36. The material presently before the Court suggests that the mother’s new extended family environment in (omitted) has assisted her significantly in alleviating her anxiety condition, and she is improving. The material suggests that the mother is coping in parenting the children and the children are well in (omitted).

37. At this interim stage, on the evidence presently before the Court, the Court is not satisfied that there presently exists an unacceptable risk of harm to the children in remaining in the mother’s primary care in (omitted). Nor is the Court satisfied at this interim stage, that there is a need to protect the children from the risk of abuse, neglect or family violence whilst remaining in the mother’s primary care in (omitted).

1. It is not without relevance, in this context, that the father proposes that should the mother return to the (omitted) or (omitted) areas, whereby she resided in reasonable close proximity to the children’s former school, he would be prepared to allow equal time between the parties, including on weekly cycles or on set days of the week.

Section 60CC(3) - Additional Considerations

(a) any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The father asserts that on 20 April 2017 the mother told him that the children did not want to return from (omitted).

2. The father also asserts that when he spoke to the child Y on 20 April 2017, that child expressed a wish to the father to return home. The father further asserts that the mother had acknowledged this to be the case but she did not want to split the children up. At this interim stage, and noting the tender age of the children, the Court does not place significant weight on their alleged views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties would appear to have taken such opportunities, and further, the Court refers to its discussion above under the meaningful relationship primary consideration in relation to the parties’ care of the children during the relationship.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Both parties would appear to have fulfilled such obligations, noting that the father was the breadwinner during the relationship.  

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

1. See the discussion above under the meaningful relationship primary consideration.

(f) The capacity of each of the child’s parents; and 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

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(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

1. The Court refers to its discussion above under the primary considerations.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

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

1. The Court refers to its discussion above under the primary considerations.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(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.

1. These are interim proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

1. The court acknowledges that the children have spent their lives, until April 2017 in (omitted), attending school there, including the presence of the father and his parents and extended family; the relocation to (omitted) is a significant change to their past lives. At least at this interim stage, there is a significant geographical impediment to the children seeing the father, in particular, regularly.

2. On the other hand, the mother (again, the court’s distinct impression being that the mother has been the children’s primary carer, as discussed above) has taken steps to improve and address her mood related difficulties by, inter alia, relocating to (omitted) to obtain the support of close extended family, and which to date appears to have produced positive benefits both for herself and indirectly the children. The children appear to have settled in well to (omitted) both at school and are enjoying being with their extended family members.

Equal Shared Parental responsibility: section 61DA(1) and (2)

1. Neither party seeks an interim order relating to parental responsibility.

2. At this interim stage, should the children remain residing with mother in (omitted), an equal time arrangement, or an order for substantial and significant time for the children to spend with the father, would not be practicable nor in the best interests of the children.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the children to make the following interim orders:

   (1)That the children X born (omitted) 2009, and Y born (omitted) 2011 (“the children”) live with the mother in (omitted), Western Australia.

   (2)The father’s proposed recovery order that the mother cause the children to be returned to the father in Sydney is dismissed.

   (3)The children shall spend time with the father as follows:

   (a)for the whole of the Western Australia shorter school holiday periods;

   (b)for half of the Western Australia Christmas school holiday periods; failing agreement between the parties, in odd numbered years the children shall spend time with the father from the first Monday of those holidays to the Monday three weeks later, and in even numbered years from 7 January to the Friday before school resumes.

   (c)at other times as agreed between the parties in writing.

   (4)That all changeovers occur at Sydney or Perth domestic airports at the entry or exit gate (as the case may be) with each party to make arrangements for the children to travel unaccompanied on the airline, with the cost of the children’s airline travel to be shared equally.

   (5)When the children are in the care of the mother, the children shall communicate with the father, including Facetime, any day between 5PM and 5:30PM Western Australia time.

   (6)When the children are in the care of the father, the children shall communicate with the mother, including Facetime, any day between 5PM and 5:30PM Western Australia time.

   (7)That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including landline and mobile) and advise the other party of any changes to these details within 14 days of such change occurring.

   (8)That the father ensure that the mother is kept informed of:

   (a)any medical problems or illnesses suffered by the children while in the father’s care;

   (b)any medication that has been prescribed for the children;

   (c)any social, school or religious functions which the children are to attend;

   (d)the details of any other people who reside with the children.

   (9)That the mother ensure that the father is kept informed of:

   (a)any medical problems or illnesses suffered by the children while in the mother’s care;

   (b)any medication that has been prescribed for the children;

   (c)any social, school or religious functions which the children are to attend;

   (d)the details of any other people who reside with the children.

   (10)Pursuant to s62G(2) of the Family Law Act 1975 the parties and the children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia for the purposes of the preparation of a Family Report.

I certify that the preceding one-hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 23 August 2017