Walker & Walker
[2013] FCWA 85
•21 AUGUST 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WALKER and WALKER [2013] FCWA 85
CORAM: THACKRAY CJ
HEARD: 12-14 AUGUST 2013
DELIVERED : 21 AUGUST 2013
FILE NO/S: PTW 334 of 2013
BETWEEN: MRS WALKER
Applicant
AND
MR WALKER
Respondent
Catchwords:
CHILDREN – PARENTAL RESPONSIBILITY – Parents agree there should be order for equal shared parental responsibility – Proviso proposed by mother not accepted – Mother can apply to vary orders if father refuses to participate in decision making following relocation.
CHILDREN – RELOCATION – Application by mother to relocate to Melbourne – Parents facing possible bankruptcy and mother has high paid employment in Melbourne – Concerns about the eldest child’s psychological health – Possibility of mother relocating to Melbourne without the children – Children to be cared for in Melbourne by an au pair when mother travels for work – Children accustomed to frequent electronic communication with both parents – Father previously consented to children relocating – Relocation permitted – Children to spend school holiday time with father and time during long weekends – Mother to meet most of the costs of visits to see father.
Legislation:
Family Law Act 1975 (Cth), s 60CC, s 61DA(1), s 61DA(4)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Ms Farmer
Respondent: Mr Berry
Solicitors:
Applicant: Butlers
Respondent: Carr & Co
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I am required to decide the future care of [Brandon] (nearly 10) and [Alistair] (7). Their mother wants the boys to live in [Melbourne] where she has secured a high paying job. Their father opposes the move, despite previously agreeing to it.
2The mother has been the boys’ primary caregiver, but the father spends regular time with them, and would like to start an equal shared care arrangement next year.
The parties and their relationship
3The father is aged 42 years and is employed as a service manager. He is presently considering two job offers; one with his current employer in [suburb P] and another in [suburb F], both better paid than his present position.
4The mother is aged 41 years. She has recently taken up a position in Melbourne as the Executive Director of the [XYZ] Association ([XYZ]).
5The parties were married in November 2000. Soon after, they established a business, which became a member of XYZ, the industry organisation. The parties ran the business together and were directors of the company through which it was operated.
6Brandon and Alistair were born in 2003 and 2006 respectively. The parents continued to run the business, while managing the children with help from family, a day care centre, nannies and, finally, an au pair engaged just before the couple separated.
7There were problems in the marriage and in the business. These were exacerbated by the hailstorm in 2010, which damaged their business premises. The company was placed in liquidation in 2012, owing a great deal of money, including a large amount to family.
8The father left their home in [suburb R] in August 2012. He took up residence with his parents nearby, while the mother and children remained in the home.
Relevant background
9The father concedes that the mother has been the children’s primary caregiver and has been responsible for managing issues concerning their supervision, health and education.
10Although the mother returned to work within weeks of Brandon’s birth, she was able to care for him because she either worked from home or took him to the business premises. The father helped out as required.
11Brandon was put in day care in 2005, but did not cope well. Both parents believe something awful happened there one day in 2006, as Brandon was in a “dissociative” state when collected. Since then, he has been seeing a psychologist and, more recently, a psychiatrist.
12Brandon was removed from day care and a nanny was engaged to assist in his care. After Alistair was born, the boys were cared for by the nanny until just before the separation, when the mother hired an au pair, who remained with the family until May 2013.
13The ongoing need for help with childcare arose not only from the parents’ business commitments, but also because of travel associated with work the mother had commenced doing for XYZ. In 2007, she became a “[demonstrator]” with XYZ. This involved her attending [an annual event], which the father also attended. However, in 2009, the mother became a “[regional demonstrator]”, which required her to travel a few more times each year, albeit for fairly short periods. On these occasions, the father remained at home with the children, although it seems they were mainly cared for by the nanny and the maternal grandmother who often came to stay when the mother was away.
14In September 2011, Brandon was being babysat by his paternal grandmother. During the evening, she lost patience with Brandon and hurt him. Both parents were very upset, although the father says his mother had not been briefed about Brandon’s challenging behaviour. In any event, at the mother’s insistence, the grandmother visited Brandon’s psychologist, who found her to be “unbelievably remorseful”. The psychologist concluded the boys were safe with the grandmother and felt it would “disadvantage [Brandon]” to be denied contact with her.
15In 2011, Brandon was referred to the Child and Adolescent Mental Health Service (“CAMHS”) and commenced seeing the psychiatrist, Dr M, who prescribed Fluoxetine (sometimes known as Prozac) to deal with his anxiety problems.
16In November 2011, the parties commenced attending counselling, following an incident in bed that is described in the mother’s affidavit. Later that same month, they had a serious argument, during which the father told the mother to get out. The mother refused and called the police, who issued the father with a 24 hour exclusion order. The father denies he denigrated the mother and the children on this day in the way she alleges. Although I was inclined to believe her version was probably the more accurate, the only thing about which I am certain is that children were upset and Brandon ended up in a dissociated state. The father acknowledged he had denigrated the mother in the children’s presence on other occasions.
17Notwithstanding the unhappiness in the marriage, the mother’s career flourished, as she took on more roles with XYZ, primarily in [Victoria] where most of its Australian members are based. In November 2010, the mother was elected to the Board of Directors of XYZ Asia Pacific. In May 2012, she resigned from that board and, in the following month, was elected to the International Board of Directors of XYZ in [the United States].
18In May 2012, the same month in which the company was liquidated, the mother commenced seeing [Dr S], who prescribed medication to deal with her significant depression. The father too had problems, which had been primarily manifested by excessive consumption of alcohol. He accepts he became aggressive when he was drinking, and he saw a counsellor and a psychologist to deal with his problems.
19After the parties’ business collapsed, the mother began subcontracting for XYZ and other businesses in Melbourne, as similar opportunities within the industry were not available in Perth. This work required her to travel to Melbourne about one week in every three.
20The week before the parties separated, the father asked the mother by email whether she would “consider moving to [Melbourne] if [he] moved as well’ (not in the same house)?”
21She responded by saying:
potentially – I’d have to crunch some numbers. It certainly wouldn’t hurt me (obviously it would be great for me), but I’d be concerned about your support there and the boys?
...it will settle down! At the moment I’m contracting to those that know me, as I get established it should be easier to find opportunities anywhere.
22The father replied, asking “Or Brisbane?? [short flight from Melbourne]”, to which the mother responded:
same …let me think about the ramifications…(not that I haven’t tried to find a solution a thousand times!)
I have no desire to have the boys away from you while we are all a positive influence on them I will do what it takes to support and encourage them and you – even if that means midnight flights!
23The father replied:
I’m just thinking aloud, get your concerns. If life is about the journey then Perth is a bit dry at times.
24The full context for this exchange did not emerge clearly, but the mother gave evidence that she had been offered various positions, of which four were in Australia. She said she did not accept them because they did not allow the flexible hours she needed to care for the children. Nevertheless, in October 2012, the mother asked the father a number of times whether he would agree to the children relocating, but her requests were ignored.
25In the meantime, the mother had obtained an interim violence restraining order, which was made final on 11 September 2012 when the father did not object. The order allowed communication between the parents by text message or email “to make arrangements to spend time with or communicate with [the children]” but otherwise communication was permitted only through lawyers or to comply with parenting orders.
26Notwithstanding the mother having sought the restraining order, the parents continued to exchange appropriate messages about the children. However, on 11 September 2012 (the day the order became final), the father emailed the mother asking that his name be removed from the social contact list for parents at the school. The mother responded:
Are you sure – you have school dad friends that may want to touch base if you have the children – play dates etc … in future.
27The father replied:
I have absolutely no desire to ever socialise, have play dates, etc with anyone from [suburb R] ever. New start and new friends for me.
28At trial, the father said he was angry and embarrassed that some parents knew about the restraining order, but recalled having his name reinstated on the list earlier this year, although this was probably the official contact list and not the list available to parents. In any event, the father agreed he has not arranged any play dates during the times he has had the boys, nor have the boys been invited to any play dates while they have been staying with him.
29Initially after the separation, the father saw the children only for short periods. Although the mother encouraged him to have more time with them, the father said he felt unable to spend extended time with the boys because they reminded him of their mother. However, in October 2012, he started spending time with the boys each alternate weekend.
30On 23 November 2012, the mother sent an email to the father formally requesting permission to relocate to Melbourne. On 26 November 2012, the father contacted the Executive Director of XYZ and told him that if he offered the mother a permanent position he would be responsible for destroying the family.
31On 14 December 2012, XYZ offered the mother a permanent consultant position, based in Melbourne. The income was to be $60,000 per annum for a 16 hour week. At the same time, XYZ offered the mother a permanent full-time position, provided she could relocate within three months. It seems her primary role was to be the oversight of XYZ’s then Executive Director, who was thought not to be performing satisfactorily.
32The letter of offer from XYZ mentioned travel requirements, although I was unable to determine whether these were associated with the consulting position or the full-time job. In any event, the letter mentioned overseas travel of up to eight days each quarter and a further nine days each quarter interstate (the latter for no more than three day blocks).
33[In January 2013], the mother commenced these proceedings, seeking permission to relocate to Melbourne. At the same time as she filed her application, she filed a Notice of Risk of Abuse, as she was obliged to do, given her allegations about the father’s past conduct.
34The father was served with these documents on [the next day]. Two days later, he sent a text message to the mother saying:
I don’t want to waste more money with a lawyer unless needed. If u need to go to [Melbourne] that bad, then fine. I don’t have the energy to deal with this anymore. You win. Have it your way, I give up trying to do what I thought was the right thing as a father. Just sends the docs and I will sign whatever.
35The following day, the father emailed the mother, seeking confirmation she had received the text. The email said:
Please confirm you received my last text yesterday, as stated I would prefer to keep lawyers out and keep money and mental energy to a minimum. I am happy to sign whatever you need to move forward.
With your permission Please keep me posted when appropriate regarding moving date, etc. there are a few items like photos and a few items from shed I would like before you start packing.
I have no desire to make this difficult for you. I only please ask you to keep in mind how difficult this would be for you if I was moving to [Melbourne] with the boys and how this would leave a massive hole in your heart, as this is what I am feeling and now facing. Your perceived perception is I don’t care much about the boys, which could be nothing further than how I feel. I get why you want to leave and start fresh from us and our past, it has been horrible life filled with so much pain and destruction to say the least over the last 4 years. I never started out intentionally to make it end like this.
You owe me nothing, just please keep in mind amid all these new exciting changes for you the hole in my heart left by the absence of the boys. I wasn’t always like this [Christine], I hope you might believe that one day.
36On the same day, the father sent the mother another text message as follows:
[Christine] can you please confirm you have received my last text and email. They come with a way forward for you. I am very anxious and sad and hope this does not come off as harassment because it is not meant to be. I hope to hear some communication from you soon…
37The mother gave no evidence of responding to these communications.
38[In February 2013], the Executive Director of XYZ resigned. The mother was then offered his position and she accepted it, on the understanding the father had agreed to her relocation. The mother then informed her contractors she was unable to take on further work.
39[In February 2013], the father withdrew his consent to the relocation; however, [six days later], the mother was formally appointed as Executive Director of XYZ on a salary of $150,000 per annum (with all relocation costs met). The Executive Director is responsible for overseeing operations in the Asia Pacific and is required to be based in Melbourne. XYZ has, however, agreed to the mother temporarily working from Perth, on the basis that she spends about one week in every three in Melbourne. The mother is required to meet her own costs of travelling between Perth and Melbourne while she awaits the outcome of these proceedings. She claims, and I accept, that her position will be terminated in the event she cannot move to Melbourne by the end of September 2013.
40[In late February 2013], the father filed a response, opposing the relocation and making proposals for the care of the children, which involved him having the children each alternate weekend and one night in the intervening week, plus half of the school holidays. [In March 2013], the father significantly amended his claim when he filed a Minute of Orders, proposing an equal shared care arrangement with effect from January 2014.
41[In March 2013], an order was made expediting the matter to trial and appointing Simon Burke as the Single Expert. An order was also made allowing the father to care for the children when the mother travels, so long as they are not left with the paternal grandmother.
42Since the making of this order, the children have been living with the father and his parents during the mother’s absences. On at least one occasion, the father breached the order about the children being left in the care of his mother. He excuses this by saying there was no need for the order, given what had previously been said by Brandon’s psychologist. The mother has now agreed (reluctantly she says) to the removal of the injunction about the grandmother. The grandmother declined to give evidence when I offered an opportunity for her to do so.
43On 10 May 2013, the father sent the mother a text, making what appears to be a threat relating to issues arising from the liquidation of the business, which he cryptically said might “assist in resolving the relocation issue”. By this I understood him to mean that the matter would be resolved in a way that would prevent the mother from taking up her position in Melbourne. In reply, the mother sent an email which caused the Independent Children’s Lawyer to express concern about her anxiety levels. The mother accepted she had overreacted, albeit her lawyer drew attention at the time to the considerable stresses she had been experiencing.
44On 30 May 2013, the Single Expert published his report. As will be noted later, he recorded that both boys were opposed to moving to Melbourne. Brandon in particular expressed strong objections. Nevertheless, on 10 June 2013, the father sent the mother a text saying, “If I agree to kids relocating would you talk to me on the phone”, to which the mother responded, “please go through the normal channels”. On the same day, after (temporarily) dispensing with the services of his solicitor, the father emailed the mother, making a proposal. The email read, in part (errors in the original):
I thought I would email you why I have asked for you to talk on the phone to me. As you may image I feel very anxious about the children relocating to [Melbourne]., As acknowledge by you, it will be more difficult to maintain a relationship opposed to if they were in Perth. It would help me immensely if I could at times, simply pick up the phone and ask how the kids are going etc, how is [Brandon] really going?. I am very concerned about how [Brandon] will go.
My proposal (which I will email officially to [the Independent Children's Lawyer] and yourself) to you is a “yes” to [Melbourne] if we can just work thru my concerns about [Brandon], more short visits in first 12months, ongoing open constructive communication about the children with yourself and a few small things. Children are free to move back to Perth if they whish too, regardless of your job or partner, so Im suggesting if [Brandon] at 13 is still not enjoying [Melbourne] and wants to move back to Perth he can. I have raised a few of these with your mum today and she has agreed to few things which may help a little.
I don’t believe I’m asking to much considering it is yourself that is removing the children (said with no aggression or sarcasm). Remember in relocation, it’s a win/loose, and im the looser in this scenario, so how about you cut me a little slack now and again? even if I will remain a looser, drunk on minimum wage forever, I still will remain the boys father forever regardless of how much you hate or despise me for who I am.
45The mother responded, noting that the Independent Children’s Lawyer was not available until after the mother returned from the USA on 1 July 2013. She instead proposed a meeting at her solicitor’s office to “work through proposed parenting orders and a plan for transition that has significant contact”. Amongst other conciliatory remarks, the mother said:
Nothing and no one replaces their Father – don’t forget that I fought hard for us – through your worst. I am not running off to [Melbourne] because of you or because of a new partner – I am heading to [Melbourne] for their future and mine, to rebuild for the many years to come … I am not going to [Melbourne] to exclude you, rather going there to create a future using the skills I have, so I can slow down in years to come. I will ensure the boys always have you. I will also insist that you participate in that – that bit is your job not mine – and I will always provide the opportunity.
46The meeting with the mother’s solicitor did not eventuate as, at the last moment, the father changed his mind and proceeded with his opposition to the relocation.
The mother’s proposals
47If permitted to relocate to Melbourne, the mother wants to live in [suburb G], where she has identified a number of suitable rental properties, including one in the same street as the school she wants the children to attend. She has chosen suburb G because of its proximity to her workplace and because of the reputation of the school. The mother would drop the children at school and otherwise care for them with the assistance of the au pair, who has been engaged on the basis she is prepared to relocate with the family. The Single Expert mentioned that Brandon spoke very favourably of the au pair, and there is no evidence to suggest that Alistair does not get on well with her.
48The mother has formed a relationship with a longstanding male friend who lives in Melbourne, but this is not the reason for her wishing to move there. He met the children during their recent visit to Melbourne, but they are unaware of the romantic attachment. The mother does not have current plans to live with her friend. The father knows the man and has no concerns about him. Indeed, in a refreshingly pleasant exchange of messages, the father said, “who our kids are exposed to is really, really important and [Craig] is a loverley [sic] guy, I wish you both the best”. The mother responded, “Thank you for taking a positive approach to my happiness. It’s appreciated”.
49The mother claims that if she cannot move to Melbourne she will be unable to find work in Perth at anything like her current income of $150,000 per annum. In that event, she says she will have to leave her home which she rents for $550 per week. It is common ground the rent is below market, but the mother has been paying off significant arrears that accrued. The rent was meant to have been increased to $650 per week, and in fact, could go as high as $750. Although the mother spoke of having to move to an outer suburb if she stayed in Perth, I consider it more likely she would try to remain close enough to suburb R to ensure continuity of schooling for the boys. The school is prepared to allow them to remain even if they no longer live in the catchment area.
50If permitted to relocate, the mother proposes the boys spend time with the father:
(a)for not less than 10 days during school term holiday periods;
(b)for one half of the Christmas school holidays;
(c)for further times as agreed between the parties.
51In a late amendment of her application, the mother proposed that in the first year following the move to Melbourne, the children would also spend time with the father on no less than one occasion each school term (to coincide with a long weekend if possible).
52The mother will meet the cost of flights for the children four times a year and is prepared to consider contributing to additional flights. She proposes that an adult accompany them until they can travel alone, and appeared prepared to meet the costs of this, if required.
53If not permitted to relocate, the mother proposes the children live with her and spend time with the father:
(a)from after school Friday until the start of school on Monday each alternate week;
(b)each alternate Tuesday from after school until the start of school on Wednesday;
(c)half of all school holidays including the Christmas holidays.
54The mother puts forward no proposals for the time she would spend with the children if she decided to relocate without them. This is significant as she does not rule out the possibility she might relocate, even if she could not take the children.
The father’s proposals
55The father says he will live with his parents in suburb R until next January, when he will have discharged his legal costs. He then hopes to rent in [nearby suburbs] at a cost of between $430 and $500 per week. He would care for the children with the help of a nanny, although he agreed another option might be to use the mother’s au pair. The plan to move out of his parents’ home was not mentioned in his affidavit, even though it was filed only shortly before trial. On the contrary, perusal of the affidavit suggests that his plan then was to remain with his parents (see in particular paragraphs 75, 76 and 154 to 156).
56If the mother is not permitted to relocate, the father proposes the children initially remain with the mother and spend time with him as follows:
(a)from after school on Tuesday until the start of school on Wednesday each alternate week;
(b)from after school on Friday until the commencement of school on Monday in each intervening week, extending through to Tuesdays on long weekends;
(c)further times as agreed.
57With effect from January 2014, the father proposes a week-about arrangement, on the basis the boys would spend time each Wednesday with the non-resident parent.
58If the mother is permitted to relocate, the father proposes the children spend time with him as follows (with the mother meeting all the travel costs):
(a)for not less than seven days prior to the proposed departure;
(b)all of the Term 1, 2 and 3 school holidays;
(c)half of the Christmas school holidays;
(d)further times as agreed.
59The father also puts forward proposals about the mother’s time with the children if she relocates without them. These are the mirror of his proposals for the time he would have with the children if the mother was permitted to relocate with them.
60The father makes no proposals about the time he would spend with the children if they relocated and he followed them, since he rules this out as a possibility.
Areas of agreement
61Both parents initially sought equal shared parental responsibility, which would give them an equal say in making decisions about major long-term issues. However, at the end of the trial, the mother modified her position slightly, as I will mention later.
62It is agreed the boys will have liberal communication with both parents. The mother has purchased an iPad for each of them, which they routinely use to Skype or have Facetime with their father. They also communicate with their mother by these means.
63The parents each agree that times such as Christmas, Easter and birthdays will be shared, although the details would depend on where everyone is living.
Credibility and impressions of the parents
64Both parents impressed me with their desire to do the best for Brandon and Alistair. Each gave their evidence in a thoughtful and frank way and I was left in no doubt that each wanted the best outcome for their sons. I carefully read their many texts and emails and noted that they were often able to relate in a respectful and even affectionate fashion, focussing on their children’s needs. Even when they sometimes descended into recrimination and abuse, they continued to rejoice in their shared love of their children. This left me with some hope that, whatever the outcome, they will find a way to work cooperatively for the boys’ benefit.
65The mother is a highly organised and focussed individual who seems to approach her role as a parent in a similar fashion to the way she handles her professional life. She sets goals and then works hard to achieve them. She has a capacity to “spin” things in a positive light, seemingly suppressing any concerns about issues such as the children being left with a paid carer while she travels. I accept that, in reality, she may not be so confident and may just be putting on a brave face to secure the outcome she wishes to achieve. Although suffering from anxiety and depression, for which she is now medicated, the mother seemed to have some inner strength. I was inclined to think she will do better in the future than she has in the past, provided her career is not derailed.
66Although I accept there was substance in many of the mother’s criticisms, I thought she was inclined to be a little harsh on the father and attributed motives for his behaviour when a more benevolent interpretation was available. This propensity may, of course, have been accentuated by her desire to succeed in this litigation. I also accept there was evidence that she does recognise the father’s qualities, especially the depth of his feelings for his sons. Overall, I thought her evidence was reliable, save for her tendency to overstate her case.
67The father appears to have struggled with the breakdown of the relationship to a greater extent than has the mother. In the early stages, he could not separate his feelings about the mother from his feelings about matters concerning the children. While he readily makes major concessions about the mother and her parenting capacity, he still has ongoing anger about matters arising from their relationship and the way they separated. His negative feelings sometimes stand in the way of ensuring the cooperative parenting arrangement that would be best for the children.
68The father has also struggled in deciding what is best for the children in relation to the relocation. He properly feels he has a great deal to offer and is very keen to remain a regular part of their lives. Yet he also sees the potential advantages arising out of the move to Melbourne, not the least of which is that he knows the mother will be happier living there. Although his words might sometimes suggest otherwise, I consider it would make the father happy to see the mother happy, as he said in one of his messages to her.
69The father has realised he needs assistance to help deal with his strong emotions at this difficult time and has therefore recently engaged a counsellor. He is in the early stages of his work with the counsellor and recognises this is a process he will need to pursue. This is likely to be particularly necessary in the event the boys move to Melbourne.
Will either parent move to Melbourne if unsuccessful in their application?
70It is important to consider the likely response of each parent if they are unsuccessful in their primary application to the Court. This is a difficult exercise, since it was arguably not in their interest to be frank when confronted about this in cross-examination.
71The mother was pressed on whether she would move to Melbourne in the event she was unsuccessful in obtaining permission to take the children with her. She found it impossible to respond in a clear way, observing that she was being asked to make a choice about whether she would provide financially for her children or have them living with her. She said she was unable to answer the question, even though she had agonised over it with her lawyers and her family. At one point, she said that the primary reason for taking the job in Melbourne was to “put a roof over the children’s head”, which she said was a very strong “motivator”.
72Given the mother’s strong desire to extract the family from its financial difficulty, and given the importance of her career to her, I have formed the view that there is a real possibility she would move to Melbourne even if she could not take the children with her. The mother would justify this in her own mind by making sure she came back to see the children as often as possible and by taking comfort in the fact that she was looking after the financial security of the family. In taking such a drastic step, the mother would also be holding out hope that the father would relent and let the children go, which is a possibility given his conflicted views on the subject and the children’s attachment to their mother.
73I may be wrong in thinking there is more than a theoretical possibility of the mother going without the children, but I intend to proceed on the basis that rejecting her application will not, in fact, guarantee that the boys will stay close to both parents and thus be able to continue to spend regular time with both of them. I also proceed on the basis that it would not be practicable for the mother to continue her present work arrangement, since the travel is too expensive and in any event it is unacceptable to XYZ.
74The father’s own evidence would support the proposition that there is more than a remote chance the mother would move without the children. His stated opinion is that the mother’s “first priority is her work and career, rather than the children and what is best for them”. He also said that the mother “is of the view that what is best for her is automatically best for the children [and she] seems to place more emphasis on working to financially provide for the children, rather than spending actual time with the children”. I accept that this is one way of looking at the evidence, although another way would be seeing the mother working hard to balance her career and family commitments out of financial necessity.
75I also need to consider whether to accept the father’s assertion that he would not move, even if the children were permitted to relocate. His reasoning is that the last couple of years have made him appreciate the importance of family and friends, of whom he has none in Melbourne. However, as counsel for the mother pointed out, the most important members of his family – i.e. his two sons – would be in Melbourne if permission was given for them to relocate.
76Given that, at one stage, the father contemplated moving to the Eastern States, and given his acknowledgement there is plenty of work in his field in Melbourne, I am unable to rule out the possibility that he would move if the children were to relocate. The motivating factor would be that he would miss the children terribly. It must also be said that it would be easier for him to move interstate than it would be for many people. His work contract here has ended. He has skills that would be likely to lead to work in Melbourne. He has not repartnered. He does not own property and has plans to move residence in just a few months’ time.
77Nevertheless, my impression is that the prospect of the father moving to Melbourne is a less likely outcome than him remaining in Perth, much as he would miss the children. The father seemed, at times at least, to be fairly obstinate, and inclined to deal with the mother on the basis that once she has made her bed, she had to lie in it (as he once said in a message to her). Having been dragged through an expensive court case, it may be expecting too much to hope that the father would accept the outcome and move to Melbourne, especially if he thought that might make it easier for the mother to juggle her career and family obligations.
78I therefore intend to proceed on the basis that:
(a)if the relocation is refused there is more than a theoretical prospect that the mother will move without the children; and
(b)if the relocation is allowed, it is more likely than not that the father will not follow the children to Melbourne.
79Accordingly, on either scenario, there is no guarantee the children will continue to spend regular time with both of their parents.
The law
80These proceedings are governed by the Family Law Act1975 (Cth) (“the Act”), which makes the best interests of Brandon and Alistair the paramount consideration.
81In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
82In determining what is in the children’s best interests, I must consider the matters in s 60CC, which are divided into “primary considerations” and “additional considerations”.
83All of the recent amendments to s 60CC apply as the proceedings were started after the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures)Act 2011 (Cth). Therefore, I am obliged to give greater weight to the second of the “primary considerations” (the need to protect the children from harm) than to the first (the benefit to children of having a meaningful relationship with both parents).
84Section 61DA(1) requires me to apply a presumption that it is in the children’s best interests for their parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, s 61DA(4) provides that this presumption may be rebutted by evidence that it would not be in the children’s best interests for the parents to have shared parental responsibility.
85Importantly, the presumption concerns only the allocation of parental responsibility, and does not govern the time the children will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, substantial and significant time with each parent, would be in the children’s best interests. If either alternative is in the children’s best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.
86The dichotomy between the “primary” and “additional” considerations has been considered in judgments of the Full Court which have discussed the significance of Parliament having described just two of the s 60CC factors as being “primary” considerations. Those judgments essentially adopt the following analysis of the Honourable Professor Richard Chisholm in “The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview” Family Court Judges’ Conference, Adelaide, 26 May 2006, p 10:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
87It is within the legal framework discussed above that I must determine this case.
The primary considerations
88I will deal with the primary considerations first.
The benefit to the children of having a meaningful relationship with both of the children’s parents
89There would be great benefit to the boys to have a good relationship with both parents. I accept the mother has been their primary carer, but the father has played an important part in their lives and has much to offer them.
90I accept a meaningful relationship would be more easily achieved if the parents lived nearby and the boys could see each of them regularly. However, given:
•the depth of the bond already existing between the boys and each parent;
•their ages; and
•their capacity to communicate electronically,
I consider they will have a meaningful relationship with both parents even if they live a considerable distance apart and spend time with one parent only during school holidays.
91The Single Expert expects that the boys’ “strong connection” with their father can be maintained, even if they relocate to Melbourne. Although he considered that the boys would initially be “upset and quite angry about the prospect of moving to [Victoria]”, his opinion was that the relocation would “not adversely impact on the children’s relationship with their father”, provided they spend time with him on a regular basis as proposed.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
92Although the children have been exposed to conflict between their parents, which would have caused them harm, they are unlikely in the future to be exposed to abuse, neglect or family violence.
93I agree with the Single Expert that the children’s “positive view of the paternal grandmother and their willingness and desire to spend time with her” indicate that they are not at any risk of abuse while in her care. Brandon told the Single Expert that he enjoyed going to her house and said “we get spoilt” when they visit. The 2011 incident seems to have been a “one off”, likely sparked by Brandon’s difficult behaviour.
94Although the Act now provides that greater weight is to be given to the second of the primary considerations, it is not a significant factor in the present case.
The additional considerations
95I turn now to the “additional considerations”.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
96The Single Expert interviewed the children twice. The first time was in April 2013 and the second was during the trial. The second interview was required after the mother gave oral evidence that both children now hold a more positive view about Melbourne.
97The children had not been to Melbourne before the first interview, but the mother took them there in June 2013, during which time they met some of her friends, including her boyfriend. The boys did not mention the boyfriend as being of any significance, but mentioned his brother who has a major Lego collection.
98When he was first interviewed, Brandon expressed a strong preference to stay in Perth. He said “all my friends are here” and told the Single Expert “it would definitely bother me if I had to go to [Melbourne]”. He went so far as to say, “I would hate myself for the rest of my life” if he moved to Melbourne. When the Single Expert suggested to Brandon he might live in Melbourne for a year and then make a decision, Brandon said that he would still want to come back to Perth.
99Brandon also had a preference to spend regular time with his father. He acknowledged he knew this was what his father wanted, but stressed to the Single Expert that he wanted it also. Brandon understood that it would be harder for his mother if she had to stay in Perth and travel to Melbourne for work, but said he wanted to spend more time with his father.
100When first interviewed, Alistair expressed a desire to “stay with Dad” and spend time with his mother. Alistair also said that he would “miss Perth a lot” if he relocated to Melbourne. He said that “whatever happens I would like to spend as much time with each parent as possible”, but when asked whether he had a preference of spending slightly more time with one parent than with the other Alistair said he would like to spend “a little more time with Dad”. When asked about living in Melbourne with his mother and spending more time with his father than he was currently, but with larger gaps in between, Alistair said “I don’t like that”.
101In assessing the weight to be given to the boys’ views, I note it seems Brandon has a tendency to express his opinions in strong terms. His psychiatrist said he can be very “direct” and sees things as “black or white”. Brandon also told the Single Expert that he has “a seriously bad temper”. The Single Expert felt that Alistair demonstrated “a slightly greater maturity than his older brother”. He observed that Alistair was “much less emotionally charged” than Brandon and remained open to the possibility that, notwithstanding his stated desire, he might like living in Melbourne better after he had spent time there.
102The Single Expert felt that neither parent had unduly influenced the boys, although he thought each had placed some pressure on them. I was inclined to think the father’s pressure would not have been quite as subtle as the mother’s, and that he would have been unable to shield the boys from his distress about the possibility of them moving to “the other side of the country” – an accurate expression which he used on a number of occasions.
103The boys’ views, but especially Brandon’s, had mellowed by the time they next saw the Single Expert. The children were unaware they might see Mr Burke again, until I flagged the issue on the first day of the trial and the mother then mentioned the possibility to them. Notwithstanding having had almost no notice of the interview, the children were relaxed, and even excited to see Mr Burke again. Both told him they had enjoyed their trip to Melbourne. Both still wanted to spend regular time with each parent. Alistair still did not want to leave Perth, but this time made a point of saying he did not think Perth was significantly better than Melbourne. One thing he mentioned as favouring Perth was that it was “quieter”.
104Alistair made clear that his real wish was for his parents to stop fighting and get back together. But if one parent was living in Melbourne and the other in Perth, he did not know which he would most prefer to live with. As a solution, he said he would spend six months with one and then six months with the other. If he had to live in Perth with his father, and see his mother during holidays and twice each term, that would be “OK”, but he would not be entirely happy. He expressed precisely the same opinion if the arrangement was reversed – i.e. it would be “OK” if he was to live in Melbourne with his mother and see his father only during holidays and twice a term.
105At another point in the interview, Alistair was asked how he would feel about living with his father and visiting his mother. In response, Alistair said he would not like that because he would miss his mum and barely be with her. As the Single Expert pointed out, it is difficult for Alistair to comprehend being away from either parent for a long period, but the Single Expert felt that he would be able to cope with this as he gets older.
106Brandon’s comments to the Single Expert during this second interview made clear that he could now see himself living in Melbourne, although he would still want to see his father regularly. He was not able to express a preference between living in Melbourne with his mother and seeing his father irregularly or living in Perth with his father and seeing his mother irregularly – both of which options he considered would be “fine”. While he could see himself being apart from one parent for a month at a time, he felt it would be “tougher” for Alistair because he was a lot younger. He also felt that both parents would be fine because they could speak to the children every night by means of various electronic gadgets.
107Surprisingly, the Single Expert did not appear to recognise the substantial shift in Brandon’s stated views from the time of his first interview. The Single Expert therefore failed to explore with Brandon what had caused his apparent change of heart. Nevertheless, the Single Expert said that the boys did not appear to have been unduly influenced by either parent, although his stated reason for so concluding was that they were not prepared to distinguish between either parent or either set of proposed arrangements. This could, of course, mean that both parents had placed the boys under pressure or that one had imposed so much pressure that the boys did not feel free to state their real view. However, from the way they expressed their views, the Single Expert was probably justified in concluding that the boys’ stated opinions accurately reflected their true feelings.
108Interestingly, given his earlier statement about the comparative level of maturity of the boys, the Single Expert said, after interviewing the boys a second time, that Brandon would find it easier than Alistair to adjust to either arrangement. Again this reflects the extent to which Brandon appears to have swung around to acceptance of the possibility of moving to Melbourne.
109In assessing the weight to be given to the boys’ views, it is important to record the opinion expressed by the Single Expert that “children often do not want to change and until they experience it, it is difficult to know how they will feel about the change”.
110The only other matter of importance arising out of the second set of interviews was that Brandon volunteered that the new au pair was “great”. He liked “mucking about” with her and he said she helped him do his homework, although his mother helped him more. The Single Expert did not speak with Alistair about his views concerning the au pair (and I note this was not within his terms of reference).
(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);
111Brandon and Alistair have a close and loving relationship with both parents. Both parents have been involved in caring for them in the past, although I accept the mother has had the greater responsibility. There were a few snippets of evidence, including some from the father, which made me suspect that the children are somewhat more emotionally dependent on their mother than on their father. This would not be entirely surprising given the history of care giving and the different parenting styles.
112The evidence also suggests that the children have good relationships with their extended family on both sides. The maternal grandmother in particular has been involved in their care and the boys have also been seeing more of their paternal grandparents in recent times. The mother gave oral evidence that the boys have recently expressed some concerns about the extent to which the paternal grandparents yell at each other when they are staying with them. She said this corresponded with them expressing concerns about going back to the paternal grandparents’ home. The father acknowledged that there had been some reluctance on the part of the boys to attend for contact visits leading up to the trial.
(c)the extent to which each child’s parent has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
113Prior to the separation, the parents arranged time with the children around their commitments in the business. This appears to have been a mutually acceptable arrangement and involved the mother taking the lead in the care of the children and organising their lives.
114After dealing with his personal problems in the weeks following separation, the father commenced spending regular time with the boys and has taken up all opportunities to communicate with them. The mother has continued to have primary care of the children and communicated with them to the extent practicable when they have been with the father. She has had to spend a lot of time away from them since obtaining work in Melbourne, but she plans for her absence with almost military precision (see Exhibit 26).
115The mother continues to take the lead in making decisions about the children. The father would, I think, put this down in part to the mother being a very “pushy” person, who does not think he has much to offer. However, he readily concedes that she makes good decisions for the children and is therefore always prepared to trust her judgment – save for her desire to take the children to Melbourne.
(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
116The mother has done everything she can to provide for the children during what has been a tough period. The father has paid $97 per week by way of self assessed child support. He says he has kept his income at a lower level than what he could have earned, not to avoid child support but in case he becomes bankrupt. The mother has been content to receive this payment without seeking a formal assessment of child support.
117The father says he will pay more than $97 per week if the mother remains in Perth, but has not made up his mind whether he would pay more if the mother moved to Melbourne. He said he might consider putting any extra money for the children into an education fund.
118The great tragedy of the present dispute is that tens of thousands of dollars have been spent on legal fees which could have been spent on the children or in discharging some of the family’s many debts. Nevertheless, I accept that both parents consider that money well spent in trying to achieve the outcome they consider best for the children.
(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;
119This is clearly a significant matter given that:
•if an order is made allowing the relocation, both parties propose that the children’s time with the father will be largely restricted to school holidays (unless the father changes his mind and moves to Melbourne);
•if an order is made refusing the relocation, there is a possibility the children will not see the mother regularly if she elects to continue in her present job.
120All of the scenarios (including both parents remaining in Perth) cause me to have concerns for these two boys. There are a number of “early warning” signs suggesting that there may be a hard road ahead for Brandon and Alistair, regardless of the order I make. While it is very encouraging that Brandon appears ready to be discharged from the care of his psychiatrist, the fact remains that he needed psychiatric intervention in the first place. Although Alistair has not required such intervention, his life to date has also not been an easy one and his future will obviously be affected by some of the less satisfactory aspects of the family dynamic.
121I consider that ongoing, lengthy separation from the mother would be quite problematic for both children. Although they have been used to her coming and going, her absences have been for fairly short periods. When she is at home, she has been their primary carer and they would have become accustomed to her making arrangements for them.
122I am less concerned about the impact on Brandon of the proposed move to Melbourne now that I have the benefit of the Single Expert’s updated report and Dr M’s evidence. Brandon appears to be making very good progress and although he does not cope well with change, he is also showing some signs of resilience and an ability to deal with new challenges, especially when given adequate preparation, which his mother is able to provide. In this context I should record I had no reason to doubt the mother’s evidence that Brandon has talked of changing schools and staying down a year to help him with his school performance, and that he has been changing his friendship group at school and has a new set of friends.
123I accept that Brandon will miss his father if he is not seeing him regularly, but there is some reason to anticipate that he will be able to cope with this, especially if the father gives him encouragement. He would be especially thrilled if his father decided that he would follow the family to Melbourne in the event the mother’s application for relocation succeeded.
124Alistair is still very young and he will miss his father greatly if he does not see him regularly. Again, however, with sensitive handling from the father, and with the benefit of daily electronic communication, I consider he will adapt to the change. The father acknowledges that Alistair is “fairly sociable and makes new friends easily”.
125Although the father understandably expresses concerns about the impact of a major change in the boys’ circumstances, the parents originally planned to remove the children from Perth and move down south. I recognise that the move would have been with both parents, but it would nevertheless have been a big change. Both parents anticipated the boys would cope with that change. I note also that the Single Expert said that “usually with relocation the impacts are short term issues, until the children establish new friendship networks”.
126I also take account of the fact that there is more than a mere possibility that the boys would have to move to a new residence if the mother is forced to stay in Perth. While the mother does have many skills and experience, I accept that she will not obtain work in Perth that is paid anywhere near as well as she is being paid in Melbourne. Her new job can be seen as the culmination of many years of work and building up contacts in a specialised field. There is no similar opening in Perth and if the mother loses her job she may well have to look for a cheaper home. This would cause some disruption to the boys, although I recognise it may not necessarily involve them having to change schools as the mother suggested it would.
127A move to Melbourne would also mean that the boys would be likely to see less of their grandparents and other relatives who live in WA. I consider it probable, however, that the maternal grandmother will spend some time staying in Melbourne when the mother travels away for more than just a day or two. The grandmother is not a young woman and may have health difficulties, but she nevertheless flew to Melbourne very recently to see a show and would have the assistance of the au pair in supervising the children during the mother’s absence. As the father has only four weeks’ annual leave, it would also be possible that the boys would get to see quite a lot of the paternal grandparents and other relatives in WA during holiday visits to Perth, since the father would be likely to have to go to work during the day.
(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;
128This is an issue of significance given the distance between Perth and Melbourne. The mother will fund the costs of at least four trips each year, which will not be a great expense to her because she earns frequent flyer points from her overseas travel. The costs of an accompanying person also need to be considered, at least in the short to medium term. However, the mother is paid well and the father is about to receive a significant increase in income, so he could also make some contribution to the expense. If he does not have to accommodate the children other than during holidays, he may also be able to stay with his parents a little longer to help get himself back on his feet financially and put aside some funds to cover the costs of seeing the children more often than just during holidays.
129The distance between Perth and Melbourne means that a trip over a weekend is going to be somewhat rushed and tiring. Such trips would need to be taken on a long weekend. It would be ideal if the mother was able to arrange with the school for the boys to take a day off on one or both sides of the weekend to accommodate a longer stay.
130There is no difficulty in the children having regular electronic communication with both parents because they are proficient with the use of the necessary “gadgets” and already have regular communication with the parent with whom they are not living.
(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;
131Although the mother has had primary responsibility in the past, both parents are capable of dealing with the children’s needs. The mother is well advanced in planning for the settlement of the children in Melbourne if that is permitted. The father is less well advanced in planning for how he would care for the children if the mother went to Melbourne without the children, or if a shared care arrangement was implemented in January 2014.
(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;
132This factor is of relevance given the ages of the children and the problems Brandon has had in the past. I consider, however, that the children will cope with a change if change occurs, provided they are adequately prepared for it. The mother’s evidence suggested she prepares the children for things in a way that would be reassuring for them. Her capacity to put a positive “spin” on most things is likely to be reassuring to the boys, especially if, as the mother says, Brandon regards her as his “rock”.
133Although it is only one small example, I was concerned about the possible additional stress on the boys of coming to the Court on almost no notice to be interviewed again by the Single Expert. However, the mother had prepared them for this in a sensible way in the short time available and the interviews proceeded without any upset, notwithstanding the disruption that had been involved in their daily routine. One further indication of capacity to deal with change is that a new au pair has come into the home in quite recent times and appears to have been very well accepted.
134Although Dr M’s evidence did not support the mother’s assertion that arrangements had been made for Brandon to be referred to the equivalent of CAHMS in Melbourne, I have no doubt the mother would seek appropriate medical intervention if it was needed. It seems that Brandon’s need for medical intervention may be decreasing and that he may be ready to be placed in the care of a GP rather than a mental health professional. He has not seen Dr M for some months and his inability to continue to see her if he moved to Melbourne is not an important consideration in light of the evidence given by Dr M.
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
135This factor is not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
136Both parents have demonstrated a good attitude to the responsibilities of parenthood.
(j)any family violence involving the child or a member of the child’s family;
137Although the mother was concerned about family violence during the relationship, she says this does not have any impact on the ability of either party to parent the children. I do not consider it necessary to make any finding about the extent of the alleged 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;
138There is a violence restraining order in place, but this does not prevent the parties from communicating with each other by text message or email about matters concerning the children. Nor would the order prevent them coming into contact with each other when complying with parenting orders. The mother says she has no concerns that the father would behave inappropriately toward her in public, but feels uncomfortable being alone with him “behind closed doors”, although she has no fears for her physical safety.
139I doubt that the orders proposed by either party are inconsistent with the terms of the existing restraining order, but to the extent of any inconsistency the terms of my proposed orders will prevail. In any event, I doubt the mother would seek a further restraining order when the present one expires next year.
(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;
140It is usually preferable to make the order least likely to lead to further proceedings, but the difficulty always is determining what that order might be. In the event that the mother is prevented from relocating the children to Melbourne it is possible she would renew that effort later when the children are older – especially if she was to go ahead without the children. Similarly, if the children go to Melbourne, they may in time express a strong desire to return to Perth to live with their father. The possibility of further proceedings cannot be ruled out and I therefore do not consider this factor to be of significance.
(m)any other fact or circumstance that the court thinks is relevant
141The mother does not have any family in Melbourne and she will be reliant upon an au pair or other paid helper to provide care for the children during the times she is not available to care for them. This would not be a factor of great significance in the event that the care was needed only before or after school. However, the mother’s employment involves her in travel both overseas and interstate. I accept that, in her new role, the interstate travel is likely to be for only a day or one night, and may sometimes be able to be delegated to a staff member. International travel is more problematic, as she will not be able to delegate and will be away for longer (for about five days at a time, four times a year). The annual event is now less of a problem as henceforth it will always be held in Melbourne.
142The mother has experience in hiring and retaining nannies and has engaged two satisfactory au pairs. She will have considerable notice of any international travel and a degree of control over interstate travel. Apart from paid help, she already has a network of friends in Melbourne and impressed me as likely to expand that network as the children settle into a new school. There is also the option of her mother being available on some occasions to travel to Melbourne to help out.
143While I can foresee problems for the mother in managing the care arrangements, she is an exceptionally resourceful person who would be unlikely to put in place any arrangement that jeopardised the children. It is also noteworthy that she is, in most respects, her “own boss” and has been able to step into her new role and seemingly make a good fist of it while working largely from Perth. This would indicate that, in an emergency, the mother would be likely to be able to pull out of an arrangement if was not practicable for her to be away from the children. The mother’s present working arrangements are also some indication of her stated capacity to work from home, which will be useful when the children are unwell or there is some short term problem with the au pair.
144The parties’ financial position is also a factor to be considered. I accept that if the mother is not able to earn a high income, there is a prospect of her being bankrupted. It would appear that the father accepted bankruptcy was a potential outcome of their failed business, since he gave evidence of having kept his income below the level at which a bankrupt would be required to make a contribution to their bankrupt estate.
145The mother has, to date, been able to make arrangements to keep creditors at bay, but this is because she has been able to work with XYZ and others in Victoria to earn a good income to cover her living costs, as well as discharging debt. There is also an understandable desire on the mother’s part to repay the very substantial amount of money her mother advanced to help with the business. The father has taken on some (lesser) responsibility for payment of the creditors, but disputes that the couple are personally liable for as much of the debt as the mother claims. He too would like to repay his family the large amount they are owed.
146The mother is fearful of becoming bankrupt as she has been involved in business since leaving university and wants to be able to retain an ABN number and the capacity to serve as a company director. While I accept she may not be a director of XYZ (notwithstanding her belief she is for some purposes), this is somewhat of a red herring as the mother feels she can keep her creditors happy while she is earning $150,000 per annum and will therefore not be bankrupt. The problem will arise if she loses her current job and cannot secure a job with enough income to allow her to reduce her exposure to debt. In that event, if she was to be made bankrupt, her incapacity to be a consultant, run a business or be a company director would be potentially quite limiting on her ability to earn an income. It would also potentially make it much more difficult to obtain rental accommodation and would also prevent her from borrowing. All of these matters have the potential to impact upon the lifestyle of the children and especially on the mother’s psychological wellbeing.
Parental responsibility
147I must first deal with parental responsibility, because the determination of that issue dictates the “pathway” I am required to follow in complying with the Act.
148The parents originally agreed they should have equal shared parental responsibility; however, the mother amended her application during trial, to take account of the father’s statement that he would find it difficult to deal with her about long term issues if she was successful in taking the children to Melbourne. His preference, in that event, would be for the mother to make whatever decisions she wanted to make about education and other matters. The amendment made by the mother would give her permission to make any decisions concerning the children if the father declines to participate in the decision making process.
149I consider it would be in the children’s best interests for the parents to have equal shared parental responsibility. I hope that if the children do relocate, the father will overcome his distress and continue to participate in decision making, even if that continues to be by way of accepting that the mother’s decisions are likely to be the best for the children. I therefore do not propose to include the “escape clause” proposed by the mother in her amended application. If the father refuses to take part in decision making, and this causes the mother any difficulty, she can make an application to vary the order. Such an application could be made in Melbourne to minimise inconvenience and expense to the mother.
Time sharing arrangements and the relocation
150Having decided to make an order for equal shared parental responsibility, the Act requires me to consider the equal shared care and significant and substantial time options as mentioned in my earlier discussion of the law.
151I am not satisfied that an equal shared care arrangement is in the boys’ best interest. Notwithstanding both parents can provide for their needs and that from time to time they are able to engage in appropriate communication, their methods of parenting differ significantly and they have also shown a capacity to engage in recrimination and disputation. This would make it difficult in my view for them to manage a fully shared care arrangement.
152The father complained in his oral evidence about the mother wanting him to “parent the children her way”. He referred, for example, to an email she sent him about the boys’ recent reluctance to go on contact visits, which he felt represented an instruction to him about “how to parent her way” notwithstanding he acknowledged it appeared to have “some genuine content”. When it was pointed out that the mother had stressed in the email that she was not suggesting that the boys’ reluctance had anything to do with him, the father responded by saying “I am not interested, with all due respect, in her view”. He said the mother could have saved herself from receiving his insulting reply by not writing to him and not contacting him. He said that it was his new counsellor’s view that it would be best he not communicate with the mother, and again reiterated he was not interested in her views. He went so far as to say that he would not even want to hear from the mother if the boys were having problems at school, since communication with her was not good for his “mental health”. He would instead prefer to hear about such problems from the boys direct or from the school.
153Although the father’s evidence on this issue was probably reflective of his bitterness arising out of the mother’s desire to take the children “to the other side of the country”, his relationship with the mother is such that it would stand in the way of an effective shared parenting arrangement. It is one thing to hope the parents would be able to manage the very occasional decisions needed about major long-term issues concerning the children, but quite another for them to deal with the regular communication that would be needed if each of them had equal responsibility for their day-to-day living arrangements.
154My consideration of all of the evidence, including some of the text messages the children themselves have sent, also leads me to have concerns about the boys playing one parent off against the other if there was an equal shared care arrangement. The potential for that to occur will, of course, arise regardless of the way in which their care is shared, however, in my view their welfare is likely to be promoted if they have an appreciation that they have one regular home and another home which they visit either regularly (if the parents live nearby) or during school holidays (if the parents live a long way apart). In fact, there is even the possibility that an arrangement where they predominantly live in one home during school terms, and visit the other parent during school holidays may have some advantages, as it would free them from the potential conflict and stresses associated with moving regularly between two homes of parents who have quite different approaches to parenting. As the father himself said in cross-examination, if the mother lived in Melbourne and he lived in Perth, the mother would be “able to look after the boys how she wants to and does not need to communicate how that would work – she could get up each day and do what she wants to”. He could do the same if they came to stay with him during holidays.
155In determining that an equal shared care arrangement would not be in the children’s best interests, I also take account of the fact that the mother has been their primary caregiver and has shown considerable ability in organising the children’s lives, notwithstanding the other demands on her time. While the father is capable of meeting their needs, the mother impressed me as having greater capacity to manage the dual demands of work and family.
156I also note that when the father first responded to the mother’s application he did not seek equal shared care. I also gained the impression that even when he amended his application in March 2013, he did not pursue the claim with vigour. The Single Expert was left with the impression he was not seeking more time with the children. Furthermore, the father’s trial affidavit did not give any detail about he would manage such an arrangement.
157As I have found that an equal shared care arrangement would not be in the children’s best interests, it is strictly unnecessary to consider whether or not it would be reasonably practicable. However, I accept such an arrangement would be practicable if the children were living near to each parent but clearly impracticable in the event they lived in different states.
158Moving then to a substantial and significant time arrangement, I am satisfied that such an arrangement would be in the children’s best interests as it would allow regular contact with both parents during school terms and holiday times. Both parents’ proposals constitute a substantial and significant time arrangement, provided they are living in the same state.
159Again, however, the substantial and significant time arrangement is only practicable if the parents live in close proximity. As I have determined the children’s interests will be best served by moving to Melbourne with the mother, it will not be practicable for there to be a substantial and significant time arrangement unless the father also relocates. If he was to relocate, then I consider the proposals he made for time with the children if both parties remained in Perth would be appropriate (see paragraph 56 above).
160In arriving at my decision, I have taken account of the fact that the father has twice conceded that the children should be permitted to go to Melbourne with the mother. Whilst I accept that those concessions were made under some pressure (not the least of which was the stress and cost of these proceedings and what I accept was a genuine desire on his part for the mother to be happy) I do not consider that the father would have made the concessions had he thought the arrangement would be seriously detrimental to his children.
161In coming to my decision, I have also taken some account of what the boys have more recently said to the Single Expert concerning the move to Melbourne. Consideration of their comments over the two interviews lends weight to the mother’s belief that their views “wax and wane”. The mother knows the boys have the capacity to engage in quite defiant behaviour. The fact she steadfastly proposes taking them to Melbourne leads me to conclude that she genuinely expects she is going to be able to manage the move without great upset to them. In this context, it was noteworthy that the mother said she would not have gone through years of therapy with Brandon, only to do something she expected would cause him harm.
162I have also taken into account the fact that the boys have a long history of being looked after by different paid carers. They have become accustomed to not spending time with both parents, and in the period following separation have had experience of spending time being cared for by neither parent. The prospect of spending time in Melbourne with an au pair, while their mother undertakes occasional travel, is not as daunting as it might have been.
163Given the mother will be the primary caregiver, her psychological wellbeing is very important, since it has the potential to impact on the wellbeing of the children. Although her psychiatrist was of the view that her depression has not impacted on her ability to “parent” the children, I consider there is a prospect of her condition deteriorating if she is forced to give up her job, given the likely adverse economic consequences. I accept the same could be said of the father if he elected to remain here without the children, or found himself forced into a move to Melbourne. Whilst further deterioration in his psychological wellbeing also has the potential to impact negatively on the children, it is of slightly lesser significance than the health of their primary caregiver.
Orders
164I invite the parties to consider their positions in light of these reasons. Hopefully they will be able to agree the terms of a Minute which can take into account any decision the father may now wish to make about his own relocation to Melbourne. In the event agreement cannot be reached, each party can provide their own Minute of Proposed Orders to give effect to my judgment and I will determine the final form of orders in chambers.
165If the father elects to remain in Western Australia the only area of controversy seems to be whether he will have the children for all the term holidays or for only 12 days. My view is he should have the children for all of those holidays but ensure they are back in Melbourne two days before they have to start school. They would leave Melbourne on the first day of the holidays (not the afternoon school finishes).
166In the meantime the only order I make is as follows:-
The mother be at liberty to remove the children from Western Australia to live in Victoria effective from 2 October 2013.
167The current school term in WA ends on 27 September 2013. The school holidays in Victoria start a week earlier and the children would be due to commence the new term in Melbourne on 8 October 2013. Arrangements are currently in place for the children to live with the father up until about 6 September 2013, while the mother is working in Melbourne. I am uncertain about the mother’s travel arrangements for the rest of September, but the chances are she will have to return to Melbourne before the end of the month.
168It would be best for the parents to sort out what is to happen with the children pending their departure for Melbourne, but they should remain in Perth until 2 October 2013, and spend the Queens Birthday long weekend with the father. If the parents cannot agree the children’s care for the rest of September, I propose that the time be spent equally between both homes. This will give the children an opportunity to spend more time with their father and his family in the period leading up to their departure. The children should travel to Melbourne on or about 2 October 2013 to move into the home which the mother is likely to have found for them by then. This will give them time to settle down before starting school the following week.
169There are no long weekends in the final school term, but I expect the mother will be able to negotiate an arrangement with the school to let the children take a Friday and Monday off to visit their father for an extended weekend in say the middle of November. The father would also hopefully be able to travel to Melbourne to see the children over a weekend during the final term this year, or alternatively arrange for them to come back to Perth for another weekend.
170The school year in Victoria finishes on 20 December 2013. As this will be the children’s first Christmas away from their father, I consider they should spend Christmas with him and his family this year, on the basis they will spend it with the mother next year. The prospect of spending time with their father this Christmas will potentially be helpful in assisting the children to deal with the upset associated with moving to Melbourne and not being able to spend regular time with their father.
171Given that the mother receives extensive frequent flyer points and given her own proposals, I consider it appropriate she meets the costs of the children’s travel to and from Perth on four occasions each year (plus one more visit each term for the first 12 months). After the first 12 months, I consider the mid term visit should continue but the parents should each pay one half of the costs of the children’s travel for that visit, and the father can pay for the costs of an additional visit each term if he so chooses.
172I consider the costs of any accompanying person should be shared equally, unless the mother is coming home to WA in which case she can pay for her own ticket. If the father wants to see the children in Melbourne, he can meet his own costs of travel. In arriving at this decision, I note that the mother is likely to be paying much more than half the costs of caring for the children, including the costs of the au pair. I also take account of the fact that both of the father’s current job offers are likely to involve him earning $80,000 per annum or more (a significant increase from his current income of $64,000 per annum).
I certify that the preceding [172] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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