CHILDRENResidenceBest interests of the child by eg1pt23

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									CHILDREN\Residence\Best interests of the child
JURISDICTION:
         FAMILY COURT OF WESTERN AUSTRALIA


ACT:           FAMILY COURT ACT 1997


LOCATION:      PERTH


CITATION:      E and H [2004] FCWA 166


CORAM:         TOLCON J


HEARD:         23, 24 NOVEMBER 2004


DELIVERED:     24 NOVEMBER 2004


PUBLISHED:     2 DECEMBER 2004


FILE NO/S:     PT 5990 of 1998


BETWEEN:       E
                   Applicant/Father


                   AND


                   H
                   Respondent/Mother
Catchwords:
Child - Best interests - Residence - Relocation
Legislation:
Family Court Act 1997 s 66, s 90, s 166
Category: Not Reportable


Representation:
Counsel:
    Applicant:              Mr Castiglione, QC
    Respondent:             Self Represented Litigant


    Separate Representative: Mr Pacy


Solicitors:
    Applicant:              Georgiou Vertannes
    Respondent:             Self Represented


    Separate Representative: Pacy Solicitors



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


M and M (1989) FLC 91-979




1          The proceedings before the Court relate to K E-H born April
       1997 now aged 7 years and herein referred to as K.
2           K’s parents are the applicant/father, Mr E and the
       respondent/mother Ms H.
3   On 11 June 1999 the following consent orders were made:
      “It is the intention of the parties that these proceedings shall
      be reviewed in 12 months’ time and in the interim the
      following orders shall apply:
      By consent and until further order:
      1.      K reside with the respondent.
      2.      The respondent have the sole responsibility for K’s
              day to day care, welfare and development.
      3.      The respondent and applicant share the joint long
              term care, welfare and responsibility.
      4.      The applicant shall have contact with K as follows:
              (i)      regular telephone contact to commence
                       when K is able to communicate verbally;
              (ii)     each alternate Saturday from 9:00 am until
                       7:00 pm;
              (iii)    in one of the intervening weeks on the
                       Wednesday from 5:00 pm until 7:00 pm and
                       in the other intervening week on the Sunday
                       from 7:45 am until 2:00 pm;
              (iv)     if K’s birthday does not fall during a contact
                       period, from 2:00 pm until 7:00 pm on this
                       day;
              (v)      if K’s birthday does fall during a contact
                       period, contact shall conclude at 4:00 pm on
                       this day;
              (vi)     Christmas Day from 8:00 am until 2:00 pm;
              (vii)    Easter Sunday from 8:00 am until 2:00 pm
              (viii)   Fathers Day from 12:00 noon until 7:00 pm;
              (ix)     contact be suspended on Mothers Day;
              (x)      if the following dates fall during a contact
                       period, contact shall conclude at 4:00 pm on
                       these occasions:
              23 January, 30 January, 2 June, 14 August
              (xi)     if the applicant’s birthday (11 August) does
                       not fall during a contact period, on that day
                       from 9:00 am until 1:00 pm
      (xii)   such other times as agreed between the
              parties.
5.    The applicant shall collect K at the commencement
      of each contact period and return her at the
      conclusion of the contact period with the respondent
      to notify the applicant at least 7 days in advance if
      she will be at a location other than her residence
      (within metropolitan area).
6.    All periods of contact shall take place at the
      applicant’s residence and be supervised by either or
      both of the applicant’s parents at all times or any
      other adult provided that the respondent consents to
      this adult.
7.    The applicant shall not leave K in the sole care of
      another person/s during a contact visit without the
      respondent’s prior consent.
8.    The applicant provide the respondent with his
      contact telephone number and advise of any change
      to this number within 48 hours of the change
      occurring.
9.    All handovers shall take place outside the
      respondent’s home or outside the relevant location.
10.   The applicant be restrained by injunction from
      removing K from:
      (i)     the respondent’s care, except during agreed
              contact times; or
      (ii)    the Perth Metropolitan Area without the
              respondent’s written consent
11.   The Family Court Counselling Service be directed
      to supervise these orders for a period of 12 months.
12.   The applicant commence a Parenting Course
      specifically aimed at children under 4 years,
      approved by the respondent within 90 days of the
      date of these orders and provide proof that he has
      completed this course to the satisfaction of the
      course co-ordinator.
13.   Contact be suspended during periods that the
      applicant is unavailable to exercise contact,
                  including but not limited to work commitments,
                  travel and sporting activities.
           14.    If the applicant does not arrive to collect the child
                  within 15 minutes of the time agreed without
                  providing a reasonable explanation, the respondent
                  shall be able to leave her residence if necessary, to
                  meet other commitments.
           15.    The Amended Forms 8 and 8A of the parties be
                  dismissed and all orders previously made be
                  discharged.”


4       On 14 February 2000 the following orders were made:
           “1.    Until further order of the Court, paragraph 6 of the
                  consent orders made herein on 11 June 1999 be
                  suspended.
           2.     Until further order of the Court, all periods of
                  contact with K be supervised by either or both of the
                  parents of the applicant or by any of the persons
                  named in paragraph 6 of the applicant’s affidavit,
                  sworn 8 January 2000at all times.
           3.     Dr David Lord be appointed as Court Expert to
                  examine and assess the said child and prepare and
                  submit to the Court a report.
           …….
           9.     The supervision team of the Family Court
                  Counselling Service be requested to prepare,
                  publish and distribute a report in relation to contact
                  with the said child pursuant to paragraph 11 of the
                  said consent orders of 11 June 1999, such report be
                  prepared by no later than 14 April 2000.”
           …..”


5       Dr Lord did not prepare a report because the matter settled.
    On 22 March 2000 the following consent orders were made:
           “1.    Until further Order of the Court, paragraphs 2 to 9
                  of the Orders made herein on 14 February 2000 be
                  suspended.
     2.     The conciliation conference and directions hearing
            scheduled for 11.30 am and 2.l5 pm on 28 April
            2000 respectively, be vacated.
     3.     Until further order, paragraphs 4 and 7 of the Orders
            made herein on 11 June 1999 be varied, such that
            the Father shall have contact with K without
            supervision as set out in the Proposed Agreement
            dated 14 March 2000 annexed hereto.
     4.     The Form 8 Application of the Applicant filed 29
            February 2000 be otherwise dismissed.
     5.     The substantive proceedings be adjourned generally
            until after the parties have attended the counselling
            conference on 5 September 2000 with liberty to
            apply.
     6.     This matter be removed from the Active Pending
            Cases list.”
Proposed Agreement
     The parties agree that -
     3.1    the father will provide the child with her own place
            to sleep and her own toiletries and clothes;
     3.2    the father will take the child to any ongoing extra-
            curricula commitments that may occur on contact
            time;
     3.3    the father have contact with the child on alternate
            weeks from 9:00 am Saturday to 4:00 pm Sunday
            commencing Saturday 25 March 2000;
     3.4    the child spend Father’s day and Mother’s Day with
            the respective parents from 7.00 pm Saturday to
            4.00 pm Sunday, regardless of the alternate
            weekend regime;
     3.5    the father have contact at Easter from 7.00 pm
            Thursday to 5.00 pm Saturday;
     3.6    the father have contact at Christmas as follows:
            .        on 2000 and alternate years thereafter from
                     7.00 pm Christmas Eve to 1.00 pm
                     Christmas Day; and
                 .      in 2001 and alternate years thereafter from
                        1.00 pm Christmas Day to 10.00 am Boxing
                        Day;
          3.7    the father be able to take the child to visit his
                 sister’s family in Rockingham on contact;
          3.8    the mother will provide the father with a medical
                 certificate if the child is too ill to attend contact;
          3.9    there will be no verbal communication between the
                 parties at contact handover. Any communication
                 will by way of a “Communication Book” that the
                 father will buy and provide and that will accompany
                 the child back and forth on contact;
          3.10   if the father is not available for contact there will be
                 no make up time but he will be able to pick the child
                 up at a later time;
          3.11   the father is able to leave the child with family
                 members or friends if unforeseen circumstances
                 arise on contact on condition that it is not longer
                 than 4 hours and that he notify the mother of the
                 relevant telephone number;
          3.12   they review the above regime in 6 months at a
                 further counselling conference at 9.00 am Tuesday 5
                 September 2000.


6       On 23 February 2004 the applicant filed his Form 3
    Application seeking a variation of the above orders and on 24
    March 2004 the respondent filed her Form 3A Response.
7       On 15 March 2004 the following orders were made
          “1     Until further order of the Court and not by consent,
                 the Respondent, be restrained and an injunction is
                 hereby granted restraining her from removing the
                 child K from
                 (a)    the Applicant;
                 (b)    the Applicant’s parents and,
                 (c)    the child’s school
                 2      The Respondent have contact with the child
                        as follows:
    (a)    from after school until 700pm on Tuesday
           and Thursday; and,
    (b)    from 10.00 am to 6.00 pm on Saturday.


3   The Respondent have telephone contact with the
    said child on a daily basis between 6.00pm and
    6.30pm, with the Respondent to initiate the call.
4   The paternal Grandparents to deliver the child to
    contact and collect the child at the conclusion of
    contact, with such contact to take place in
    Rockingham and be supervised by either Mother
    Hen or Anglicare, or any other facility with the
    consent of the Applicant.
5   The cost of such supervision be met by the
    Applicant.
6   Without admission, the Respondent be restrained
    and an injunction is hereby granted restraining her
    from consuming any prohibited drug or substance
    whilst the child is in her care, and in any case for a
    period of 48 hours prior to the child being in her
    care.
7   The Applicant be restrained and an injunction is
    hereby granted restraining him from removing the
    child from the Commonwealth of Australia.
8   The Applicant have leave to tender the subpoena
    files presently with the Registry, being from WA
    Police Department, Department for Community
    Development and the respective schools, and for the
    purpose of such tender that the Applicant’s
    solicitors furnish to the Respondent’s solicitors no
    later than close of Registry on 23 March 2004 with
    a schedule setting out with particularity the
    documents relied upon and to which the Court will
    be referred to.
9   Within 7 days from the date hereof, the Applicant
    file and serve a Form 66 Notice of Risk of Child
    Abuse.
           10     The Applicant have leave to file and serve a further
                  affidavit in response to the Respondent’s affidavit
                  material.
           11     Particulars of the obligations created by this order
                  and the consequences that may follow if it is
                  contravened are set out in the annexure.
           12     The said application otherwise be transferred to the
                  Family Court of Western Australia.
           13     The children be separately represented at the further
                  hearing of these proceedings and the Director, Legal
                  Aid Western Australia be requested to arrange for
                  such representation.
           14     The solicitors for the parties shall within 7 days
                  provide to the Solicitor in Charge, Assignments
                  Section, Legal Aid Western Australia, copies of the
                  affidavits and other documents relevant to these
                  proceedings, save for any affidavits or other
                  documents that the Court has previously supplied to
                  Legal Aid Western Australia.


           15     The question of contribution by the parties to the
                  costs of the Child Representative be reserved.
           16     Each party who is not in receipt of legal aid in
                  relation to these proceedings shall within 21 days
                  from the date hereof provide a sworn Form 17 to the
                  Solicitor in Charge, Assignments Section of Legal
                  Aid WA.”


8        On 23 March 2004 the applicant filed Notice of Child Abuse
    alleging:
        “K is living in a house with her mother who has been charged
        with possession of prohibited drugs with intent to sell or
        supply, and the welfare of the child is jeopardized, as she is
        being exposed and man continually be exposed to drug use
        and/or drug trafficking by her mother and/or other members of
        the mother’s household/circle of friends, and she is also
        exposed to verbal threats and possible physical abuse by the
        mother and/or other people in the mother’s household/circle of
        friends including the mother’s former partner.”
9    On 25 March 2004 the following orders were made:
       “1.    In the event that Mother Hen is unable to supervise
              the contact as previously ordered, contact is to take
              place between the respondent and the child K on
              Saturday, 27 March 2004 at a named park or other
              such venue as may be agreed between the parties.
       2.     Pursuant to paragraph 1 hereof, the paternal
              grandparents be in the vicinity of the contact but not
              immediately proximate and the applicant is not to be
              present during the contact period.
       ..”
10   On 31 March 2004 the following orders were made:
       “……
       2.     Until further order of the court –
              (a)    K reside with the paternal grandparents and
                     with the applicant father when he is in
                     Western Australia at the paternal
                     grandparents’ home;
              (b)    In the event the respondent mother is unable
                     to exercise contact in the local area, then the
                     contact provided for in paragraph 2(a) of the
                     orders made on 15 march 2004 be
                     suspended and the contact provided in
                     paragraph 2(b) of the said orders be
                     extended to 10am to 7pm on Saturday;
              (c)    In the event contact does occur pursuant to
                     paragraph 2(a) of the orders of 15 March
                     2004 the respondent mother provide the
                     child with dinner and ensure she is bathed
                     and ready for bed at the conclusion of the
                     contact;
              (d)    Contact provided for in paragraph 2(a) of the
                     orders of 15 March 2004 be extended during
                     school holiday periods to 10am to 7pm with
                     such contact to be able to occur in the town
                     or Perth;
              (e)    Paragraph 4       of   the    said   orders   be
                     discharged;
                   (f)     The contact provided for in these orders and
                           the orders made on 15 March 2004 be
                           supervised by Mother Hen at the expense of
                           the applicant father;
                   (g)     The time of commencement and conclusion
                           of contact not include time spent by the
                           Mother Hen contact supervisor and the child
                           travelling to and from scheduled contact;
                   (h)     The parties and the child representative have
                           liberty to apply in relation to the
                           implementation of these orders.
                   …”
11        In addition to the above orders, on 31 March 2004 an order
     was made that Cris De Rooster, Clinical and Forensic Psychologist
     be appointed Court Expert. On 2 July 2004 he published his report.
     In his summary at pages 17 and 18 Mr De Rooster stated:
         “Both parents want residency of K. The main concerns in this
         family matter are:
         .      The father’s concerns where raised when the mother
                was charged to be in possession of illegal drugs,
                neglecting K, not seeing to it that she attends school
                regularly and left in the care of the mother’s older
                children.
         .      The mother is concerned about the father’s lack of
                ability to properly parent K and may act inappropriately
                towards her.
         This assessment could not substantiate the mother’s concerns.
         The father was found a caring and dedicated parent who does
         what is best for K. He has always been involved in her life,
         upbringing and development. This assessment indicates that
         the father acted appropriately by raising his concerns whilst K
         was in the mother’s care and subsequently K was safely and
         appropriately placed in his parents care. The impact of this
         move has been very positive as can be seen in her academic
         improvement. The paternal grandparents took good and
         appropriate care of K.
         This assessment substantiated the father’s concerns. The
         mother was not adequately or appropriately taking care of K
         and neglected her. When she was involved with her previous
          de facto. Her world was characterized with psychological
          dysfunction, ie dysfunctional and destructive relationship with
          her de facto impacting on her well-being, this in turn
          impacting significantly and creating dysfunctional interactions
          in the family and children. The mother herself experienced a
          traumatic childhood and traumatic experiences over the past 9
          years, she has experienced physical illness and depression and
          at the same time, she had to care for between two and six
          children. More recently, she has been involved with illegal
          drugs. The mother’s situation became intolerable for the
          children, so much so that the older children could not bear it
          any more and decided to leave the family home to live with
          the mother’s family. Feedback from the school and subpoena
          material at the court and this assessment indicates that K was
          neglected (severely), did not regularly attend school, was not
          well cared for and would often have been left to fend for
          herself. Interventions and assistance given by different
          organizations to the mother did not better or change the
          mother’s situation over the years. During this assessment and
          probably over the last few months the mother’s situation has
          improved, she only cares for her two youngest children, as the
          older children do not live with her.
          This assessment indicated that K’s best interest will be served
          to live with the father as the risks to reside permanently with
          the mother outweigh the benefits in the medium and long
          term. Regular unsupervised contact visits to the mother was
          suggested given what is practically possible as the father may
          reside primarily overseas. For now it was suggested K
          remains living with the paternal grandparents till she
          completes this year at school and the father can make
          appropriate arrangements for her future care.”
          (See also his Supplementary Report dated 7 September 2004 ).


12        The respondent did not appear at the hearing. On the first day
     I adjourned the proceedings until 2.15 pm. The respondent did not
     appear. The Separate Representative informed me that he had
     written to the respondent informing her of the hearing date. The
     respondent had appeared at the court on a prior occasion and would
     have been aware of the hearing date. The respondent has been
     given every opportunity of being present and accordingly I propose
     dealing with the matter in her absence. For the purposes of these
     proceedings I propose referring to the respondent’s Form 3A
     Response and her affidavit sworn 23 March 2004 and the affidavit
     of the respondent’s sister sworn 23 April 2004.
Orders sought at trial
13        At the commencement of the trial, counsel for the applicant
     prepared a minute of orders sought, as did the Separate
     Representative. As a result of exchanges which took place between
     myself and counsel, they were able to reach agreement on the
     proposed orders, which are as follows:
            “1.     All previous orders in relation to K be discharged as
                    from the conclusion of the 2004 school year.
            2.      As from l7 December 2004 the said child reside
                    with the father and he be solely responsible for her
                    day to day and long term care, welfare and
                    development.
            3.      The father be at liberty to relocate the child from
                    Perth to overseas.
            4.      The requirement for the mother to consent to the
                    issue of an Australian Passport for the said child be
                    dispensed with, and in the event it is required, a
                    Registrar of the Family Court of Western Australia
                    be appointed to sign an application for the issue of a
                    passport for the said child in the name of the
                    mother.
            5.      The mother have contact with the child -
                    (a)    During the school holidays at the end of
                           Terms 1, 2 and 3 each year (or such other
                           school term arrangement which exists at the
                           Australian International School overseas),
                           on the following basis:
                    i.     The father arrange and meet the expenses
                           associated with travel by the child to and
                           from Perth:
                    ii.    The father ensure the child is collected from
                           the airport by either or both of the paternal
                           grandparents or other responsible adult who
                           is known to the child;
                    iii.   The mother have contact during the first 10
                           days of the holiday period:
1.     For the first two consecutive days from 9.00
       a.m. to 5.00 p.m. such contact to be
       supervised by Mother Hen;
2.     For the next two consecutive days there be
       no contact;
3.     For the next two consecutive days from 9.00
       a.m. on the first day to 5.00 p.m. on the
       second day;
4.     For the next day there be no contact; and
5.     For the next two consecutive days from 9.00
       a.m. on the first day to 5.00 p.m. on the
       second day, with Mother Hen to supervise
       the last 6 hours of that period.


(b)    During the Australian Summer School
       Holidays, on the following basis:
i.     The father arrange and meet the expenses
       associated with travel by the child to and
       from Perth;
ii.    The father ensure the child is collected from
       the airport by either or both of the paternal
       grandparents or other responsible adult who
       is known to the child;
iii.   During the 2004/05 summer holidays:


1.     from 9.00 a.m. to 5.00 p.m. on 21, 23 and 28
       December 2004, such contact to be
       supervised by Mother Hen; and
2.     from 9.00 am to 5.00 p.m. on 25 December
       2004 with the father to deliver and collect
       the child from the mother’s residence.
iv.    Commencing 2005/06 the mother have
       contact over a 23 day period of the holidays
       over the summer each year:
1.     For the first two consecutive days from 9.00
       a.m. to 5.00 p.m. such contact to be
       supervised by Mother Hen;
     2.     For the next one day there be no contact;
     3.     Thereafter on a four day/night cycle with the
            child being with the mother from 9.00 a.m.
            on the first day to 9.00 a.m. on the fourth
            day and with the paternal grandparents from
            9.00 am, on the fourth day to 9.00 a.m. on
            the first day of the next cycle; and
     4.     Mother Hen supervise the last 6 hours of the
            last day of contact between the child and the
            mother.
     (c)    The father meet all costs associated with the
            Mother Hen supervision as provided for in
            these orders.
     (d)    The overnight contact provided for in these
            orders be subject to the Mother Hen
            supervisor have no concerns at the
            conclusion of the supervised contact period.
     (e)    By telephone on a minimum of one occasion
            each week with the father to be responsible
            for all costs associated with such calls and
            ensure that the child has liberal access to a
            telephone with international dialing
            facilities. The mother to keep the father
            informed of a landline telephone number at
            which the mother may be reached for the
            purposes of telephone contact.
6.   In the event the mother is sentenced to a term of
     imprisonment in relation to criminal charges current
     pending against her, contact provided for in these
     orders, other than telephone contact, be suspended
     during such imprisonment.
7.   The father provide to the mother:
     a.     Copies of all school reports, notices,
            certificates and other documents from the
            child’s school or relating to the child’s
            schooling, at no less than 6 monthly
            intervals; and
     b.     Information, copies of reports. certificates
            and documents relating to the child’s
                           medical, dental or any other health issues,
                           including informing the mother of the name
                           and contact details of any medical
                           practitioner, hospital, clinic or health
                           professional, the child attends.


            8.      Either parent or the Child Representative have
                    liberty to apply, on an urgent basis, in relation to the
                    implementation of the contact provisions in these
                    orders.
            9.      The proceedings be otherwise dismissed.”


14        Counsel for the applicant, although agreeing with all of the
     orders as sought by the Separate Representative, in addition sought
     various restraining orders as follows:
            1.      The mother be restrained and an injunction be
                    granted restraining her from -
                    .      using drugs or other illicit substances during
                           any contact period
                    .      allowing any other person to use drugs or
                           other illicit substances at her premises
                           during contact periods or in the presence or
                           vicinity of the child
            2.      If during any contact period the mother becomes
                    aware of any illegal activities occurring at her
                    premises, including but not limited to those referred
                    to previously, she shall immediately remove the
                    child from those premises and the illegal activity.
15        I indicated to counsel that I was not prepared to make those
     orders because of the difficulty of enforcing them. I appreciate the
     applicant’s concern, however, I will be making an order that the
     matter can be brought back before the Court on an urgent basis.
     The mother is well aware of the concerns of all in relation to this
     matter.
By way of background
16        The Parties -
            .       Commenced cohabitation in 1995
       .      Separated in 1996, prior to the birth of K
       .      K is the only child of the relationship
       .      Have an acrimonious relationship.


17   The Applicant -
       .      Born August 1965 and is aged 39 years
       .      Petrophysicist by occupation and currently resides
              overseas and proposes to remain there for a further
              two years
       .      Parents reside in Perth, with whom he keeps in
              regular contact
       .      Holds real estate in Western Australia and regards
              Western Australia as his domicile.




18   The Respondent -
       .      Born August 1964 and is aged 40 years
       .      Is not in employment and cares for her two younger
              children
       .      Has six surviving          children       from   various
              relationships –
              .        M born January 1989 now aged 15 years
              .        A born June 1990 now aged 14 years
              .        B January 1994 now aged 10 years .
                       K
              .        D born September 2000 now aged 4 years
              .        B born June 2002 now aged 2 years.
                       Her husband died in December 1994 and
                       some weeks after his death she lost a 3-1/2
                       years old child in a fire believed to have
                       been started by his siblings (see paragraph
                       36 of her affidavit sworn 23 March 2004)
       .      Former de facto partner, is the father of the two
              younger children. Her relationship with him was
                      not a happy one (see paragraphs 41 to 44 of her
                      affidavit)
            .         Her relationship with the applicant was not a happy
                      one (see paragraph 6 of her affidavit).


19         This is indeed a sad case, where the evidence satisfied me that
     the respondent mother -
            .         had an unhappy childhood
            .         had lost a husband and young child
            .         was unable to adequately care for her older children,
                      resulting in their leaving their mother
            .         after the death of her husband, had a number of
                      unhappy relationships
            .         was not providing adequately for the care of K and
                      that it was appropriate to make interim orders
                      placing the child in the care of her paternal
                      grandparents.
20        I do not propose referring to the evidence relied upon by the
     applicant and separate representative in detail as I have read the
     affidavits relied upon and am familiar with the relevant
     circumstances. Further, no useful purpose is served by my
     referring to the material. In relation to the concerns that one might
     have with respect to the mother having unsupervised contact, I am
     aware of the decision of the High Court in M and M (1989) FLC
     91-979 and in particular the passage regarding the need for a court
     to achieve a proper balance as to contact and unsupervised contact
     and to assess the risk that might be afforded to the child. In the
     present case I have taken those matters into consideration and I am
     grateful for the Separate Representative’s submissions in that
     regard.
Significant Persons
21        The significant persons in the life of K are
            (a)       The applicant
            (b)       The respondent
            (c)       The paternal grandparents
            (d)       K’s siblings
22        I agree with Mr De Rooster’s assessment of the applicant and
     respondent and it requires no further comment from me. Due to ill
     health, the paternal grandparents are not in a position to care for K
     on a full time basis, but they are prepared to care for her for short
     periods and to facilitate contact between K and her mother. Since
     K has resided with the paternal grandparents, her general outlook
     has improved considerably, as has her progress at school.
23        It would appear from the evidence that K has limited contact
     with her elder siblings and likewise with the younger siblings. I
     have had the benefit of reading the supervisor’s reports in that
     regard and I note that there has been a change in the child’s attitude
     to her siblings. Nevertheless, K should continue to be acquainted
     with her siblings. The fact that she has lived separately from them
     now for some considerable period of time is a matter of which I am
     well aware and I do not accept the evidence which supports that it
     has been to K’s detriment to be separated from her siblings.
Parenting
24         Mr De Rooster makes reference to parenting. The evidence
     satisfies me that the applicant has a more structured parenting style
     from that of the respondent. In that regard, I am aware of the
     comments made by Mr De Rooster that K will benefit in having
     regular contact with her mother.
25       I now turn to the relevant provisions of the Family Court Act
     1997:
            66.     (1) ... to ensure that children receive adequate and
                    proper parenting to help them achieve their full
                    potential, and to ensure that parents fulfil their
                    duties, and meet their responsibilities, concerning
                    the care, welfare and development of their children.


                    (2) The principles underlying these objects are
                    that, except when it is or would be contrary to a
                    child’s best interests:
                    (a)     children have the right to know and be cared
                            for by both their parents, regardless of
                            whether their parents are married, separated,
                            have never married or have never lived
                            together; and
                    (b)     children have a right of contact, on a regular
                            basis, with both their parents and with other
                            people significant to their care, welfare and
                            development; and
                    (c)     parents share duties and responsibilities
                            concerning the care, welfare and
                            development of their children; and
                    (d)     parents should agree about the future
                            parenting of their children.
          90. 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 AND consider the
          matters set out in Section 166.
26         I have considered all of the factors in this matter. I do not
     propose referring to each and every matter. I am satisfied that K
     has a good relationship with her parents and that any orders I make
     should ensure that this relationship be maintained. I am satisfied
     that the applicant is fully in tune with the child’s needs and in
     particular her financial and emotional needs. I am satisfied that
     should the child reside with him, the applicant will facilitate
     contact between K and her mother and siblings.
27        I am not satisfied that the mother is in tune with the child’s
     emotional and financial needs and there is ample evidence which
     causes me concern in that regard. Currently the child resides with
     her paternal grandparents. The proposals are that the child now
     reside with the father he completes his employment overseas. He
     has the means to provide adequately for the child and to attend to
     the child’s schooling. The child is familiar with the applicant’s
     environment as she has travelled there on a number of occasions
     and resided with her father.
28        Should the child reside with her father, she will be separated
     for fairly lengthy periods of time from her mother, siblings and
     other relatives who reside in Australia. In that regard, her school
     holidays will, in the main, be spent in Australia so that she can
     maintain her relationship with those significant people in her life.
29        Although there will not be an order, counsel for the father has
     indicated that once the child is able to operate a computer and if
     there are appropriate facilities in Perth, the father would encourage
     the child to communicate with her relatives in Western Australia by
     way of email. Apart from that, the child will have regular contact
     with her siblings and the mother will be fully informed of her
     progress overseas.
30        I am satisfied that the father would provide proper schooling
     and the like for K and would honour his obligations to this Court
     whilst K resides overseas.
31         On the other hand, the mother has had an unfortunate life.
     Currently her life is in a state of flux, as a result of the many
     allegations which have been made against her. I have been
     informed that she is likely to be involved in criminal proceedings,
     that her elder children have left her home and whilst residing with
     her, K was a child at risk, educationally and otherwise. I accept
     that the child has a good relationship with her mother, but when I
     balance the applicant father’s proposals with those of the mother,
     quite clearly the applicant’s proposals are superior.
32        Hopefully, the orders that I make will put an end to the
     lengthy Court proceedings between the parties and they will work
     towards the interests of this child.
33        When I consider all the factors that I must and having regard
     to what is in the best interests of this child, it is clearly in her best
     interests that K reside with her father and it would be appropriate
     in the special circumstances of this case that, once the school year
     and the holidays are over, the child be permitted to relocate from
     Perth to reside with the father overseas.


I certify that the preceding [33] paragraphs are a true copy of the reasons
                                     for
              judgment delivered by this Honourable Court




                                Associate

								
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