Burton and Churchin and Anor

FAMILY COURT OF AUSTRALIA

BURTON & CHURCHIN AND ANOR

[2013] FamCA 597

FAMILY LAW – CHILDREN – Best interests – International relocation – Where the child’s father is deceased and the mother has minimal involvement in the child’s life – Where neither party was a “parent” – Where the child currently lives in Australia with the step-mother and half-sister – Nature of the child’s relationships and the capacity of the parties – Where the child’s primary attachment is currently to the step-mother but where the expert recommends that the Court should be cautious due to the fragmentation and lack of integration of the child’s relationships – Where the step-sister has a poor relationship with the French family – Where the teenage step-sister has significant health issues – Whether it is in the child’s best interests to live with her paternal aunt in France – The ability of each party to promote the child’s relationship with the other party – Where it is in the child’s best interests for the paternal aunt to have sole parental responsibility and for the child to live with her – Where the child should maintain weekly contact with her family in Australia and spend time with the step-mother and half-sister in school holiday periods.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60B(1); s 60B(2); s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 61B; s 61C

Aldridge & Keaton (2009) FLC 93-421
Cowley v Mendoza (2010) 43 Fam LR 436
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Ms Burton

1st RESPONDENT:

Ms Churchin

2nd RESPONDENT:

Ms Myers

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

3338

2011

DATE DELIVERED:

16 August 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

29, 30, 31 January 2013 & 1 February 2013 & 1 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell, SC

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Ms Ward

SOLICITOR FOR THE 1^ST RESPONDENT:

Delaney Lawyers

FOR THE 2^NDRESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

That the following parenting orders are made in relation to the child C (“the child”) born on … 2003.

Parental responsibility

That Ms Churchin (“the aunt”) have sole parental responsibility for the child.

Relocation

That the aunt be permitted to relocate the child’s residence to France.

Live with

That the child live with the aunt.

Spend time

That the aunt do all things to ensure that the child maintains contact with her sister D, Ms Burton (“the step-mother”) and Ms J Myers (“the grandmother”).
That the child spend time and communicate with D and the step-mother as follows:-
(a)       By telephone and/or Skype at least once per week;
(b)In 2013 in France as agreed between the aunt and the step-mother and failing agreement, during the Christmas school holiday period, commencing on the first day of the school holiday period and concluding one (1) clear day prior to school recommencing;
(c)       In 2014 as follows:-
(i)In France, during the April school holiday period commencing on the first day of the school holiday period and concluding one (1) clear day prior to school recommencing;
(ii)In France, during the July school holiday period for a period of four (4) weeks commencing on the first day of the school holiday period;
(iii)In Australia, during the October school holiday period leaving France on the first day of the school holiday period and returning to France two (2) clear days prior to school recommencing.
(d)       Thereafter as follows:-
(i)In Australia, during the April school holiday period leaving France on the first day of the school holiday period and returning to France two (2) clear days prior to school recommencing;
(ii)In Australia, during the July school holiday period for four (4) weeks leaving France on the first day of the school holiday period;
(iii)In Australia, during the October school holiday period in even numbered years leaving France on the first day of the school holiday period and returning to France two (2) clear days prior to school recommencing;
(iv)In Australia, during the Christmas holiday period in odd numbered years leaving France on the first day of the school holiday period and returning to France two (2) clear days prior to school recommencing;
(v)Such further or other times as may be arranged between the aunt and the step-mother from time to time.

Costs

That the cost of travel for the child referred to in orders 6(b), (c) and (d) be met by the aunt.
That for the purpose of the child spending time with her sister D in 2013 and 2014, the costs of D’s economy air flights to and from France be met by the aunt.

Communication and time with maternal grandmother

That whilst the child is living in France, the child communicate with the grandmother as follows:-
(a) By telephone and/or Skype at least once per month;
(b) By letters, cards and gifts;
(c)For the purpose of the above, the aunt and the grandmother shall keep each other informed of their current residential and email addresses and contact numbers and advise the other of any changes to these details.
That whilst the child is in Australia, the child communicate and spend time with the grandmother as follows:-
(a) By telephone and/or Skype at least once per month;
(b) By letters, cards and gifts;
(c)In person for a minimum of two (2) hours at least once per trip to Australia, such time to be supervised by the person who has the day to day care of the child;
(d)For the purpose of the above, the person who has the day to day care of the child be at liberty to absent themselves if they form the view that supervision is no longer required.
(e)For the purpose of the above, the step-mother and the grandmother shall keep each other informed of their current residential and email addresses and telephone contact numbers and advise the other of any changes to these details.

English

That the aunt do all such things as may be necessary to ensure that the child maintains fluency in spoken and written English.

School and Health

That the aunt and the step mother, from time to time, share with each other, information regarding the health, emotional well-being, extra-curricular activities or schooling of the child received by them during the time the child is in their care.
That the aunt and the step-mother shall keep each other informed of their current residential and email addresses and telephone contact numbers and notify each other of any changes to these details within three (3) days of any such change occurring.
That the aunt and the step-mother will notify the other promptly at the first available instance of any serious illness or injury suffered by the child.
That the aunt shall authorise any school that the child attends to provide any information that the step-mother and Ms Myers (“the mother”) may reasonably require about the child’s progress at such institution or any other notices relating to activities at the child’s school.
That the aunt do all such things, give all such directions and sign all such documents as may be necessary to ensure the step-mother and the mother are entitled to receive school newsletters as well as newsletters from sporting or other extra-curricular activities in which the child may from time to time be involved in and that the step-mother and the mother shall be entitled to receive school photographs in respect of sporting or other extra-curricular activities in which the child may from time to time be involved in.

Communication

That the aunt and the step-mother do all such things as may be necessary to ensure that the child may communicate with the other, D and any member of the maternal family at all such reasonable times as the child may reasonably request when she is spending time with any party and in order to facilitate this the aunt and the step-mother shall ensure the child has available to her a working telephone service and is instructed in the use of such service should the need arise.

Courtesy

That the aunt and the step-mother are restrained from denigrating the other (including the mother) and they shall use all reasonable endeavours to ensure that no other person denigrates any party in the presence or hearing of the child.

Counselling

That the aunt arrange a counsellor for the child in France and provide to the counsellor a copy of Dr K’s report.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burton & Churchin and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3338 of 2011

Ms Burton

Applicant

And

Ms Churchin

1^stRespondent

And

Ms Myers

2^nd Respondent

REASONS FOR JUDGMENT

The parties in these proceedings are Ms Burton, Ms Churchin and Ms Myers. For convenience I shall refer to them as “the step-mother”, “the aunt” and “the mother”.
They have been unable to resolve their dispute about the parenting arrangements for the child C (“the child”) who was born in 2003.
Pursuant to orders of this Court, the child had been living in the care of her father in Sydney until … May 2011. Tragically, on that day while she was at home, she discovered that her father had died. The child had been spending little time with her mother and it is common ground that her mother was in no position to assume her care. Her mother had been at her father’s residence on the evening before he died, apparently from a drug overdose.
The Department of Family and Community Services became involved. An arrangement, which it was anticipated would be temporary, was put in place under which the child came into the care of her father’s former wife, the step-mother.
The father’s extended family reside in France. There was an agreement between the step-mother and the aunt that after a short period the child would live with her aunt in France. Subsequently however, Ms Burton formed the view that the best interests of the child would be served by residing with her and the child’s half sister D in Sydney. D is 16 years of age. The step-mother has declined to arrange for the child to move to France to live with her aunt.
It had been anticipated that the child’s mother would continue to involve herself in these proceedings. But the mother failed to make an appearance at the hearing. During most of the hearing, Ms Myer’s mother, Ms J Myers, sat in the courtroom and observed the proceedings.

Applications

(At the time these Reasons were sent electronically to the parties at 5.35 pm on 16 August 2013 paragraph 7 was in the following incorrect form. This was replaced by forwarding (the same evening) the Judgment including paragraphs 7A, 7B and 7C which are to replace original paragraph 7)

The applicant step-mother seeks orders to the following effect:
·That she have sole parental responsibility for the child;
·That the child live with her;
·That the child spend time with the aunt in France as follows:
(a)Telephone and/or Skype contact once per week;
(b)Each year for the whole of the child’s July school holidays;
(c)For four weeks in each Christmas school holiday period;
·That the child spend time with the aunt and/or other members of the child’s paternal family in Australia during school holiday periods as agreed between the parties and failing agreement for not more than two weeks upon the aunt providing the step-mother with no less than 28 days written notice;
·That the step-mother provide the mother with a report about the child’s welfare at least once in each two months or in the event that the step-mother does not know the whereabouts of the mother, such report is to be provided to the child’s maternal grandmother Ms J Myers; and
·That the child spend time with the mother as agreed between the step-mother and the mother, such time to be supervised.

7.A.The applicant step-mother seeks orders to the following effect should the child live in Australia:
·That she have sole parental responsibility for the child;
·That the child live with her;
·That the child spend time with the aunt in France as follows:
(d)Telephone and/or Skype contact once per week;
(e)Each year for the whole of the child’s July school holidays;
(f)For four weeks in each Christmas school holiday period;

·That the child spend time with the aunt and/or other members of the child’s paternal family in Australia during school holiday periods as agreed between the step-mother and the aunt and failing agreement for not more than two weeks upon the aunt providing the step-mother with no less than 28 days written notice;
·That the step-mother authorise any school that the child attends to provide relevant information that the aunt and the mother may reasonably require about the child’s progress at school;
·That the step-mother ensure that the aunt and the mother are entitled to receive school newsletters about activities in which the child may from time to time be involved as well as school photographs.

7.B. In the event that the child is to live with the aunt in France the step-mother sought orders to the following effect:
·That the child spend time and communicate with D and the step-mother as follows:-
(a)By telephone and/or Skype at least once per week on Sunday night 6.00 pm Sydney time, 7.00 pm during daylight saving period (October to April);
(b)For a period of three (3) weeks in Australia commencing on the first day of the French school holiday period commencing December 2013 and thereafter each alternate year;
(c)In the Christmas period (except Christmas Day) for a period of two (2) weeks in France in 2014 and each alternate year thereafter;
(d)For a period of three weeks every July commencing July 2014, on the first day of the French school holiday period, with the step-mother to give the aunt twenty-eight (28) days written notice about whether this time is to be spent in Australia or France;
(e)That the child spend time with the step-mother and/or D in France during school holiday periods as agreed between the step-mother and the aunt and failing agreement for a period of not more than two (2) weeks upon the step-mother providing the aunt with no less than twenty-eight (28) days written notice.

·That the aunt ensure the child maintains fluency in spoken and written English;
·That the aunt shall authorise any school that the child attends to provide relevant information that the step-mother and the mother may reasonably require about the child’s progress at such institution or any other notices relating to activities at the child’s school;
·That the aunt ensure that the step-mother and the mother are entitled to receive school newsletters about activities in which the child may from time to time be involved as well as school photographs.

7.C.   The step-mother also sought orders to the following effect whether the child was to reside in France or Australia:
·That whilst the child is in Australia, the child communicate and spend time with her maternal grandmother as follows:
(a)       By telephone and/or Skype at least once per month;
(b)       By letters, cards and gifts;
(c)In person for a minimum of two hours at least once per trip to Australia, such time to be supervised by the person who has the day to day care of the child;
(d)For the purpose of the above, the person who has the day to day care of the child be at liberty to absent themselves if they form the view supervision is no longer required;

·That the step-mother and the aunt share with each other information regarding the health, emotional well-being, extra-curricular activities or schooling of the child received by them during the time the child is in their care;
·That the aunt and the step-mother shall keep each other informed of their current residential and email address and telephone contact numbers and notify the other of any changes to these details within seven (7) days of any such change occurring;
·That the aunt and the step-mother do all such things as may be necessary to ensure that the child may communicate with the other, D and any member of the maternal family at all such reasonable times as the child may reasonably request when she is spending time with any party and in order to facilitate this each party shall ensure the child has available to her a working telephone service and is instructed in the use of such service should the need arise;
·That the aunt and the step-mother will notify the other promptly at the first available instance of any serious illness or injury suffered by the child;
·That the aunt and the step-mother be restrained from denigrating the other party (including the mother) in the presence or hearing of the child.

The aunt agrees that orders be made in the form as sought by the Independent Children’s Lawyer. The Independent Children’s Lawyer seeks orders to the following effect:
·That the aunt have sole parental responsibility for the child;
·That the aunt forthwith be permitted to relocate the child’s residence to France;
·That the child live with her aunt;
·That the aunt ensure that the child maintains contact with D, the step-mother and her maternal grandmother Ms J Myers;
·That the child spend time and communicate with D and the step-mother:
(a)By telephone and/or Skype at least once per week;
(b)During school holiday periods initially in France during most available school holiday periods for the first twelve months and subsequently in Australia or France during most of the available school holiday periods;
·That specified costs of travel between the two countries be paid by the aunt;
·That the child communicate with her maternal grandmother as specified;
·That the aunt ensure that the child maintains fluency in spoken and written English;
·That relevant school and medical information be shared;
·That the aunt and step-mother ensure that the child may communicate broadly with D and other members of the maternal family at all reasonable times;
·That the aunt and step-mother notify the other promptly of any serious illness or injury suffered by the child; and
·That appropriate non-denigration orders be made.

Background

The step-mother, the aunt and the mother are 41 years, 48 years and 33 years of age respectively.
The step-mother and the father met in France in 1989.
In 1994 the step-mother and the father married in the United States of America. After their marriage they lived in the South Pacific region.
They came to live in Australia in 1996.
In 1997 their child, D, was born.
In 1999 the aunt, her husband and the paternal grandfather travelled to Sydney for D's christening.
On 7 April 1999 the step-mother and the father separated.
In July 1999 the step-mother rented a townhouse for D and herself in Suburb M. The father vacated the home in Suburb A and purchased a four bedroom house in Suburb M.
In 2000 the step-mother commenced proceedings in this Court seeking orders in relation to property settlement and child support. They had an informal parenting arrangement.

In August 2000 D commenced pre-school at the French school.
In 2001 the father met the mother and commenced a relationship with her. The step-mother purchased a two bedroom unit in Suburb K and moved there with D.
On 6 March 2001 the step-mother and father divorced.
In July 2002 the step-mother commenced a relationship with Mr V.
At approximately this time the step-mother noticed that the father’s lifestyle had changed radically. He had lots of parties and his alcohol consumption increased significantly.
In mid 2003 D and the step-mother moved in to Mr V’s house in Suburb Y.
In July 2003 the father took D to France with him for a holiday.
In September 2003 the child C was born. In October 2003 the father telephoned the step-mother and informed her that he had another daughter, C.
On 1 October 2003 final parenting orders in relation to D were made by consent by this Court. The orders included orders for the father and step-mother to have joint parental responsibility of, and to share equally in the care of, D.
In November 2003 the paternal grandparents travelled to Sydney and met the child for the first time.
In late 2003 the step-mother met the child. At that time D saw her sister between two and three times a week every week when she spent time with her father.
In 2005 the father and Ms Myers ended their relationship.
In July 2005 the father took D to France with him for a holiday.
In April 2006 D informed the step-mother that she woke up and saw her father and the mother sleeping naked on the downstairs lounge. Following that incident D stopped spending regular overnight time with her father and instead visited him on the weekends.
In July 2006 the aunt, her husband and their children travelled to Australia to visit the father, D and C. They met C for the first time.
In 16 October 2006 the father failed to collect D from school. After being unable to contact the father the step-mother contacted police and asked them to attend the father’s apartment. The police found the father in his apartment with a cut ear, a large blood stain on the carpet and a kitchen knife beside it. Mr H was present and the mother had been involved. The child C was asleep in the apartment.
The father and step-mother subsequently agreed for the father to spend time with the child D for a few hours on Monday, Tuesday and Wednesday, with no overnight time.
In late October 2006 the father was the victim of a criminal act by Mr H and another woman, Ms T. The mother was also involved.
The step-mother and father subsequently agreed for the father to drop C at the step-mother's home every Saturday at approximately lunch time and to pick C up at approximately 5.00 pm. The father and step-mother agreed for the father to spend no time with D.
On 19 December 2006 final parenting orders were made by consent in this Court for the child C's care. The orders provided for the father to have sole parental responsibility for the child and for the childe to live with him and spend day time only with the mother.
In 2007 the child D was diagnosed with Glandular Fever.
In January 2007 C travelled to France unaccompanied and spent three weeks at her paternal grandparents’ home.
In March 2007 Mr V and the step-mother married.
In April 2007 D recommenced seeing her father firstly spending Saturday afternoons at his apartment with C and then increasing to overnight time.
In June 2007 the father and the children C and D travelled to France for a holiday.
On 15 August 2007 C commenced school at the X School at Suburb M.
In June and August 2008 the father and the children D and C travelled to France for a holiday.
In July and December 2009 the father and the children travelled to France for a holiday.
In early 2010 the child D told her step-mother that she thought that the father and the mother had resumed their relationship.
In June 2010 the step-mother notified the father about her concerns about his lifestyle and the risk she thought the mother posed to him.
In June 2010 the child D woke up complaining about excruciating and stabbing pain. Her symptoms continued for several months. The child D, the step-mother, Mr V and Mr V's two daughters travelled to France for a holiday.
In June 2010 the father and C also travelled to France for a holiday.
In August 2010 D became ill. She attended the Children's Hospital. The child D ceased face to face and telephone contact with her father.
In September 2010 D reported numbness in both arms.
In October 2010 the child D was admitted to the Children's Hospital emergency department after reporting acute pain in both her arms, legs and hips. Approximately two weeks later D was discharged from the Children's Hospital in a wheelchair.
In November 2010 the child D telephoned her paternal grandmother in France and informed her that the mother was back in her father’s life and about her father's lifestyle, and drug use.
The child D was complaining that she could not eat solid food. In mid-November 2010 D was again admitted to the Children's Hospital. She was discharged after approximately eight days.
In December 2010 the father and C travelled to France for a holiday.
In January 2011 the step-mother and C travelled to New Caledonia for a holiday. The step-mother made arrangements with D’s school, Z School, for D to be home-schooled.
In February 2011 the child D's condition improved and the step-mother enrolled her in Distance Education. She completed one term. By the commencement of the second term of school in 2011 D had returned to school at Z School full time.
In May 2011 the father died. The child C awoke to find her father dead. She sent SMS messages to D but the step-mother was not aware of this until she collected D from school at 3.10 pm. The step-mother immediately arranged for the police and ambulance to attend. C returned home with the step-mother. The mother was named as a person of interest in the father’s death.
On 1 June 2011 the Department of Family and Community Services placed C in the step-mother’s care. The next day a provisional apprehended domestic violence order was made to protect the step-mother, her husband and C from the mother. Subsequently there was an agreement between the step-mother and the aunt that after a short period C would live in France with the step-mother and her family. The step-mother commenced Court proceedings seeking interim Orders for C to live with her and for sole parental responsibility. On 7 June 2011 this Court made interim orders to this effect and also restraining the mother from approaching or contacting C, D or the step-mother.
On 22 June 2011 interim consent orders were made permitting C to travel to France with her aunt for the period 17 July to 15 August 2011.
On 29 June 2011 the step-mother filed an Amended Application seeking final orders for C to live with her aunt in France.
In July 2011 C travelled to France with her aunt.
In August 2011 the step-mother received a copy of the aunt’s Placement Assessment undertaken by the Department of Family and Community Services as part of the necessary requirements for C to live in France
In mid-August 2011 the child C returned to Australia. The step-mother changed her mind about C going to France to live, having formed the view that it would be in C's best interests to remain living in Australia.
On 15 August 2011 the aunt commenced to make weekly maintenance payments for C of $230 per week.
On 8 September 2011 the step-mother and her husband Mr V separated.
On 28 September 2011 the step-mother advised the aunt by email that she had decided that it would be preferable for the child C to remain living in Australia.
On 11 October 2011 the step-mother filed an Amended Application seeking final orders for C to remain living with her. On 31 October 2011 the aunt ceased making maintenance payments for C.
On 13 October 2011 C commenced counselling with SS Service.
On 30 November 2011 the mother filed a Response seeking that C live with her.
On 3 January 2012 C travelled to France to visit her father's family.
On 26 January 2012 the child C returned to Australia. C attended dinner with her aunt and uncle P and their friends and said that she wanted to remain living in Sydney.
On 31 January 2012 C commenced school at Z School.
Early in 2012 a coronial inquest into the death of the father was listed for callover at the Coroner’s Court, Glebe.
On 14 February 2012 C was due to commence counselling at CC Service.
In April 2012 the aunt, her husband P and their two youngest children travelled to Sydney and spent four days with C. The aunt invited the child D to spend time with them but she declined.
On 27 April 2012 Dr K interviewed the step-mother, the aunt, her husband and their two youngest children, the mother, D and C for the preparation of his report as Chapter 15 single expert.
On 15 June 2012 the mother’s solicitors served a Notice of Ceasing to Act in these proceedings.
On 22 June 2012 C travelled to France to visit her father's family, returning to Australia on 14 July 2012.
On 14 August 2012 the step-mother's solicitors forwarded a letter to the mother informing her that the step-mother was prepared to arrange for supervised contact between C and her. No response was received.
In October 2012 C received a cardboard box containing gifts and two letters from her mother.
On 7 December 2012 C travelled with her step-mother and D to France to spend time with their extended families.
On 13 January 2013 the children C and D returned to Australia.
Between 29 January and 1 February 2013 these proceedings were heard with submissions having been made on 1 March 2013.
On 1 Febraury 2013 the aunt proposed to the step-mother that C attend a family dinner with the aunt and members of her family who were then in Sydney.
The step-mother agreed with the proposal and facilitated C’s attendance at the family dinner.
The aunt also included the dinner invitation to both the step-mother and D.
Due to circumstances unrelated to these proceedings involving the sudden death of a parent of a close friend of the child D, D was unable to attend and the step-mother was also unable to attend. In the circumstances, neither party sought to draw any inference from that situation.
By email dated 9 February 2013, the step-mother informed the aunt of C’s ongoing physiotherapy treatment and also confirmed that she, C and D were moving residence in the immediate future.
By email dated 10 February 2013 the aunt confirmed receipt of the said email from the step-mother and thanked her for the provision of such information.
On 13 February 2013 the step-mother wrote to the Principal of Z School, withdrawing a previous objection she had raised to the provision of information to the aunt and requesting that all relevant information, with respect to C, be provided to the aunt in future.
On 14 June 103 orders were made by consent which permitted a holiday by C in France from 22 June to 14 July 2013.

Credit

Ms Burton

The step-mother Ms Burton was responsive in her answers to questions and most cooperative in the process of cross-examination. She made concessions from time to time where appropriate.
I did not have any sense that she was being evasive.
I regard her as a witness of the truth.

Ms Churchin

The paternal aunt Ms Churchin’s first language is French. She gave most of her evidence in English although occasionally resorted to assistance from the French interpreters.
She was responsive, forthcoming and very articulate. She demonstrated a capacity for sophistication of thought and considerable sensitivity. Ms Churchin made concessions where appropriate.
I regard Ms Churchin as a truthful witness.

Mrs U

Mrs U is the mother of the paternal aunt. Mrs U gave her evidence in the French language. She was clear and responsive in her answers to questions. I regard Mrs U as a truthful witness.

Mr P Churchin

Mr Churchin is the husband of the paternal aunt. He gave most of his evidence in English although he resorted to the French language from time to time.
Mr Churchin was responsive in his answers to questions. He made appropriate concessions.
It is the case that he did not disclose until very recently to his wife the fact that he had been aware of the father’s drug taking for some time. He said that he did not disclose this to his wife because the father had informed him about this matter in confidence and he felt that it was appropriate to respect that confidence. Mr Churchin was criticised for this and it was suggested that this matter affected his credibility. This is not a view to which I am persuaded.
I regard Mr Churchin as a witness of the truth.

Submissions

Independent Child Lawyer

The submissions on behalf of the Independent Child Lawyer were to the following effect.
Clearly both the step-mother and the aunt will be able to provide the child with competent care, a stable and loving household, and a good education.
In considering the differences between the parties the Court would examine the ability of each party to promote the child C’s relationship with the other party. This is particularly difficult where there is such a large geographic distance between their residences. The child had an extremely close relationship with her father prior to his death and her links with her French relatives are very important.
The links with the mother’s extended family are difficult because of the failure by the mother to participate in these proceedings. Dr K was overwhelmed by the strength of the connection between the child and her mother observed by him during the course of the interview. Unfortunately for the child, notwithstanding that close connection and notwithstanding a very positive report for the mother by Dr K, she was not able to participate in these proceedings. It would appear from police records that the mother continues to associate with criminals so that life for her might even have deteriorated since the time of the father’s death. Whilst Dr K might have been optimistic about the possibilities about the mother’s future participation in the child’s life, this has not come to pass. The Court could not have any confidence or make any orders based on the expectation that the mother will gain control of her life and that she will commence to participate in the child’s life in a way which would be helpful.
The mother’s involvement in the child’s life would have to be extremely closely monitored. On the one hand Dr K talked about there being some advantages for the child in having a relationship with her mother because of their extremely strong connection and the mother being the child’s only surviving parent. On the other hand Dr K expressed his concern that if the mother was to reconnect with the child and hold out any hope for the child living with her, or invite her to do so, the child would be ready to accept this which would put the child at an extremely grave risk given the mother’s difficulties with drugs, criminality and the like. Dr K referred to the mother’s letter sent to the child and highlighted the risks for the child of the on/off button being pressed by her mother.
Any communication with the mother and her family would have to be managed extremely carefully. The most this could involve would be brief meetings in a public place with either the step-mother or the aunt determining whether it was safe for the child to be left alone or whether supervision would be required.
The difficulties which each of the parties face is really because of the conduct of the father. There were difficulties in his relationship with the child D. The French family say that whilst in France a very different image of the father was presented to them. That was that of a responsible and caring father. They did not see him involved in drugs or that side of him which was clearly in play in Australia. D’s distancing herself from her father was completely understandable in the circumstances of her illness and her anger at the paternal family. The reaction which she has had to them has been in effect to cut them off.
That highlights the problem for the child C if she remains in that household. How in the face of her much loved sister and her fractured relationship with their father’s family, would C be able to maintain her very important relationship with her father’s family? That is really the critical factor.
The evidence which is troubling about this is what has occurred while the child has been in the step-mother’s care. Firstly, there was the email communication from the step-mother to the children’s school, Z School, instructing the school not to provide information to the aunt nor to the mother. This would have been reasonable in the case of the mother, but certainly not in the case of the aunt. Secondly, on the night of the concert performance by the child, the step-mother refused to permit the aunt and her family to attend in the audience because the child was anxious and did not want that to happen.
It is concerning that if the child puts up opposition to going to France, given the step-mother’s approach to these matters, the opportunity for the child to go to France might not come about.
There was also the example of the photograph album of the French family having been given to the child when she was there. Rather than bring the album with her to Sydney, the child preferred to leave it there so that she could look at the photos there. All these matters are troubling, within that household, about how the child would maintain her relationship with her French family.
Dr K talked about the depth of resources within the aunt’s family, that she and her husband were a parental team, that there were numerous other family adult members available, that I in particular had a good relationship with the step-mother and with D, that there were adults involved that provided a depth of parenting for C.
Dr K spoke about the risks for the child in the future. He described the fragmentation that she appears to suffer from in that she deals with what is in front of her at the time. This appears to have been developed by her as a defence mechanism helping her deal with her father and his death. He spoke also of a real risk that she will model D’s rejection of the paternal family. Dr K was concerned that she is a child who is particularly vulnerable to going off the rails very suddenly even though she might do so after doing very well for several years. She will need strong parental figures to deal with that because it might be extremely difficult. That is where the strength and the resources available within the paternal family are particularly important.
Dr K also spoke of the parenting style of the aunt and her husband. He referred to the authorative parenting stance, that there was more likely to be a no-nonsense approach. For example, “you are getting on the plane to Australia” without there being much room for movement around such direction. In view of the geography and the difficulty of time occurring, if there are problems it would be important for the parent with whom the child lived to be able to make the direction. The Court would have a lot more confidence about this occurring in the aunt’s household than that of the step-mother.
In terms of the motivation within the French family to support the child in maintaining her relationships in Australia they have an investment in rekindling their relationships with the child D. When one looks on the other side, one sees in D, an adolescent who still has a very serious illness to overcome, who views the paternal family with all the black and white emotions of adolescence and a step-mother who, not surprisingly, given her child’s illness, is very sensitive to that and very supportive of her child. The child D changed her surname from that of her father to that of her step-mother within a very short time of her father’s death. There is a team of the step-mother and D and, while this can have its strengths, Dr K was concerned about the level of immaturity in D and how this might come to influence the child C, particularly with her relationships with the paternal family.

It remains unclear whether or not there will be a reconnection by D with her French family. If it does not happen and C was to live in Australia with D and her step-mother, this would present as a very high risk that C will model her sister’s behaviour and lose her relationship with her paternal family.
The step-mother views the gains in her health which the child D has made as being very significant. Yet D is still confined by her illness and mobility. This is a concern in relation to the capacity of the step-mother to meet C’s needs when one considers the level of resources which have to be directed towards D’s needs. In these circumstances, this compares poorly with the resources available from numerous family members in the paternal family. The child D is unable to go up and down stairs other than on her bottom, she has atrophy in her hand and she has difficulty with water. These matters are ongoing and would present any person with a most challenging parenting task ahead of them. This is relevant to the overall capacities and resources between the two households and the views of Dr K about the depth of resources within the French family.
The first visit by D and the step-mother upon commencement of orders should happen in France in accordance with Dr K’s recommendations. This would spare the child C any grief in having to leave D and the step-mother in Australia.
Any delay in the child transitioning to France after the time of judgment and orders would not be in her interests.
The step-mother and the aunt agree that parental responsibility should be placed in the party with whom the child is to live.
Some of the considerations under s 60CC of the Act refer to parents. Neither the step-mother nor the aunt are the child’s parent. But the structure of s 60CC is relevant to the Court’s consideration of how to determine what is in the child’s best interests.
The key matters are the nature of the relationships and the capacities of the parties.
In relation to the child’s expressed view that she wanted to remain living in Australia with the step-mother and D, this should be viewed in the light of the evidence of Dr K about the fragmentation which the child experiences. This is that what it is in front of her and what she is dealing with at the present time is essentially all that she can manage. Other things are put away. In such circumstances it would be extraordinary for the child to express a different view. In any event, the Court must look at the matter more broadly than simply the child’s views, bearing in mind that this is a child who has suffered from a great deal of loss. Placing her now, before she faces the challenges of puberty and adolescence, in a household which would best be able to take her into the future is really the task of this Court.
There would no doubt be grief for the child in leaving D and the step-mother in Australia. This would be difficult. But in terms of the child’s best long term prospects, it is necessary to weigh the short term grief against long term opportunities. Having said this, the paternal family is a family with whom the child has been used to spending periods over the whole of her life. These periods included a month after the death of her father which by all accounts went extremely well.

The Aunt

The submissions on behalf of the aunt were to the following effect.
The aunt agreed with orders as proposed by the Independent Child Lawyer. Following the father’s death both the aunt and the step-mother had to assume a new role in relation to the child. Each agrees that until the father’s death they had little contact with one another. Suddenly they found that they had to negotiate with one another, with the police and with the Department of Families and Community Services. Clearly this was difficult.
The parties agree about the father’s capacity to charm and deflect from those aspects of his life which he preferred to keep secret. The father’s ability to charm and deflect had some effect on the step-mother. But the greatest impact was on his family in France. They were largely dependent on his self report.
In October 2006 there were the two occasions on which he was the victim of criminal acts. The mother was involved with each of these very serious crimes. At the time of these events and until recently the aunt did not have anything like the information now available about those events. The aunt was not aware of the incident when the child D awoke her father and the mother on the lounge. In relation to the crimes, the father informed his relatives in France that he was robbed and assaulted. They understood that the man responsible was in prison. The aunt informed the Court that she thought she knew all the circumstances about those matters. Now she understands that the father did not tell her about all the details.
These events led to a fracture of the relationship between the father and the child D. The step-mother, however, indicated that that fracture was repaired over time. Contact between D and her father resumed and was relatively trouble free for quite a period.
The step-mother being in Sydney (and presumably through the child D) had a more accurate picture of the circumstances in the father’s household than did the members of the paternal family in France.
In late 2010 D made the telephone call to her paternal grandmother in France raising her concerns about drugs at her father’s house and about her intention to change her name to adopt her mother’s surname. Later in 2010 the step-mother sent an email to the paternal grandmother raising concerns about drugs and prostitution by the father. The response of the paternal grandmother and family in France needs to be considered in context. The paternal grandmother spoke to the father. He was charming and dismissive. The family was aware that D was suffering from a complicated medical condition. They also understood that the father’s relationship with the step-mother was strained and they held onto the hope that they would shortly see D in France in the absence of her father and that they would be able to speak with her about the matters raised at that time. Also, when the father was in France, he appeared to be appropriate with the child C.
The aunt’s husband conceded that when the father was in France he informed the husband about his drug use at parties. This was not necessarily predictive of a parent who would put his child at risk. Only after the father’s death did the aunt become aware of the father having made this concession.
This all suggests that in the period up to the father’s death the breach in the child D’s relationship with the paternal family in France was not irreparable.
The first of the s 60CC(2) and (3) factors is meaningful relationship, that is the child C having a meaningful relationship with her mother. The mother has not participated in these proceedings for months and is not before the Court. She has not seen the child since the Dr K interview in April 2012. Her failure to participate in the proceedings demonstrates for the child that her mother does not have a capacity to participate in a meaningful relationship with the child. In these circumstances the Court could not be confident that the mother would ever be able to participate in such a relationship. To make a start the mother would have to demonstrate some stability in her own life. The orders proposed by the ICL and supported by the mother contemplate the possibility that the mother might develop some stability but only in terms of being able to use the maternal grandmother as some sort of conduit between the child and her mother.
In relation to the child’s views the aunt adopts the submissions by the ICL.
So far as the willingness and ability of each of the parties to facilitate and encourage a close and loving relationship between the child C and the other, the risk to the child if she stays in Australia is that she would be the only person in the Sydney household with the father’s surname and she is well aware of that fact. She would also be the only person in the Sydney household who would have regular contact, visits and discussions with the paternal family. She has already been exposed to conflicts of loyalty between the Sydney and French families as illustrated by her dilemma concerning the photo album. The Court cannot have any confidence that the situation for the child in being exposed to a conflict of loyalties has actually changed or improved since Dr K’s assessment.
The next relevant consideration is the likely effect of any change in the child’s circumstances including likely effect on her of any separation from the step-mother and particularly from the child D. Dr K said that the child would be distressed, but that this would be able to be overcome in the long term. Dr K had some concerns about the relationship between the children D and C because of the significance with which D as an adolescent plays in the mindset of C. So whilst there would undoubtedly be a short term cost to C in being separated from D, in the long term Dr K clearly had the view that C would be able to cope, she would have the assistance of the family in France, and that the separation was regrettably necessary to enable C to continue to be able to have a relationship with her family in France as well as in Sydney.
In relation to the capacity of each of the aunt and the step-mother to provide for the needs of the child, the Court would have no hesitation in finding that each party can fulfil this adequately. Clearly the step-mother has taken on the responsibility for meeting these needs in the circumstances after the father’s death. But the issue identified by Dr K relates to the capacity for meeting the child’s emotional needs over time. Dr K has a concern that the child will take on the partisan view of the family in France which D currently holds. It is a concern that the child will see D, the step-mother and herself as a subset and that the child will be unable to express to the Australian family how much she values the French family.
Regarding the step-mother’s capacity to meet the emotional needs of the child D the concert incident is an example of the difficulties which the child C would face. Dr K notes that the step-mother’s parenting model is collaborative with D and this is inappropriate given D’s age and her difficult and complicated health situation. Dr K noted that the aunt would be more likely to handle the situation differently if C expressed reservations about seeing the family in Sydney. He said that the aunt would be more likely to find a way constructively to convince the child to undertake the contact.
Dr K’s primary concern was that if the child remained living in Sydney she would eventually lose contact with the paternal family. His secondary concern was that, given the child’s early developmental disruption, there is a potential that she will go off track in a huge way. Taking account of both those concerns, Dr K preferred the option of the child living with the paternal family in France.
Essentially there were five reasons for this. Firstly, the greater parenting resources are available in France. Secondly, Dr K observed that the aunt and her husband function well as a team and provide a strong and loving environment for their own children. The Court could be confident that they would do the same for the child. Thirdly, they have an authoritative parenting style which is preferable to the collaborative parenting style of the step-mother and the child D. Fourthly, the French family have a strong incentive to remain in contact with D which would give the Court some confidence about their capacity and their willingness to ensure that C stays in contact with D. Fifthly, Dr K noted that the child has a degree of confidence in the aunt as an adult figure based upon the evidence that the aunt gave about the child having a discussion with her during her recent holiday in which she asked the aunt “what happens if a mummy remarries, does she still love the children she has?”. That was eloquent evidence that the child has this degree of confidence in her aunt and that this little girl who has coped so far with the tragedies in her life by withdrawing and fragmenting to an extent will have a secure base in France to start exploring some of the long term impacts that she must have as a consequence of her early life.
So far as parental responsibility was concerned all parties agree that whoever the child lives with should have sole parental responsibility for her.
Dr K’s report and evidence should be considered in its entirety. He did say that if the Court found that the cases of the step-mother and aunt were fairly evenly balanced then the long term benefits for the child of a move to France would mean that it would not be in her interests to leave her in Sydney.
The child needs final orders that will settle the question of where she is to live as soon as possible. Because in the meantime she is exposed to the partisan view within the step-mother’s household and it is doubtful that she will be resilient enough to resist this view.
The first spend time period with the step-mother and D should, as Dr K recommended, take place in France rather than in Australia for the reasons recommended by Dr K.

The Step-Mother

The submissions on behalf of the step-mother were to the following effect.
The part played in the child’s life prior to May 2011 by her mother remains somewhat unclear. It would appear from the history given by the mother to Dr K and his observations of the child and her mother that the mother played a much more significant and substantial role in the child’s care than was ever the subject of any concession or admission by the father or was known by others.
Dr K reported that the mother’s involvement in the child’s care was significantly greater than had been known to the step-mother and to the French family. Irrespective of the role played by the mother in the child’s early life it would be clear that for some periods of time the child was clearly at risk in her father’s care. It is open to safely conclude that that care had been chaotic and certainly could not be regarded as stable for long periods of time.
Unfortunately during trials there tends to be a focus on events over time in circumstances where there is an attempt to divine how people might act in the future.
Now when all the knowledge is available, it clearly demonstrates that each of the parties could in the past have done more. But at the end of the day the Court would not draw any conclusions from their past conduct as being any indication that they would not do the right thing in the future in relation to the child’s care.
As a consequence of her father’s tragic death the child lost her major carer. There is an inquest to be held into his death. There is no point in speculating about what the outcome might be. The child had experienced fragmentation and a lack of integration because of her experience of relationships with significant others in her life whilst in the care of her father. Dr K expanded upon this fragmentation and disintegration in relation to the child and how it now presents itself in her connection with others. Implicit in that conclusion is also the undercurrent of the instability in her life until May 2011. What has happened since that date however is that she has benefited from a regular and consistent parenting regime as a consequence of residing in the care of the step-mother for nearly 21 months. The child has effectively been parented alone by the step-mother with minimal assistance. She is described by all with whom she has substantial contact as a happy, stable and settled child. Those persons include not just the French family but also the school teachers including the school principal and the school counsellor.
What the Court is faced with is a decision between two very competent and very capable people who will offer the best that they can for the child into the future. Whatever the problems the focus of the cross examination of the step-mother, they appear to revolve around three or four very isolated incidents. They need to be contextualised in the history of significant and substantial care. And against the background that contact between the child and the French family has occurred on every occasion for which it has been arranged. Despite difficulties in arranging for Skype communication, the aunt concedes that this has happened regularly and without complaint. The one arrangement in relation to travel which was problematic had nothing to do with any act or omission by the step-mother but rather something to do with the nanny, Ms A. So whilst the child has resided in the care of the step-mother problems that can arise with maintaining an international relationship have not arisen in this case. Contact has occurred.
Dr K identified that the child’s mother was the person to whom she had, at the time of his interview, her primary attachment. The child could not have seen her mother after May 2011 other than when she saw Dr K in April 2012. In that 12 month period she was able to sustain her relationship and her connection with her mother. Twelve months has now lapsed since Dr K’s interviews and there is no reason to surmise so far as the child is concerned that their relationship has been in any way diminished.
Since April 2012 the mother has played no part in the proceedings. Speculating about why, or whether she will be appearing on the scene are entirely different considerations. Speculating about why she has not taken part in the proceedings does not mean that the Court could not be comfortably satisfied that she would not take part in the child’s future life. The reason for that is that it is apparent that she has wandered in and out of the child’s life in the past. She has sought to remain connected by sending the child the letter, therefore one cannot say with any certainty that the mother will not seek to engage in a relationship with the child in the future. Nor does it mean that for the child her mother is any less a significant figure.
Despite the tragedies that the child has endured we know with certainty that an end decision whereby the child lives in France will carry with it grief and loss for her. Dr K opines that such grieving might be anywhere from six to 18 months duration. We do not know how the child will deal with it and we do not really know how the French family will respond to it. Dr K said that the child will need counselling if she goes to France, if she stays in Australia she will not need counselling. She will not suffer any grief or any sense of loss. Dr K said that if the Court found that it was hard to find a difference between these two, then it would be better not to put the child through it.
There is no doubt that these are two outstanding applicants for care. The step-mother contends in this case with its unique features what is in the child’s best interest is not answered by posing the usual question which of the two applicants have to offer the child. Rather, the Court would have at the forefront of its mind what does the child have to lose by going to France or staying in Australia. When the question is framed that way, it is not so much a choice between two excellent parents but an examination of what the loss is for the child.
The objects are articulated in s 60B(1)(a). Ensuring that children have the benefit of both their parents having a meaningful involvement in their lives is most relevant. This is particularly so where the Court is dealing with a child who has already lost one parent, and on a decision relocating the child to France will almost certainly lose contact with her only surviving parent. The principles underlying the objects which have more significance in this case are those at s 60B(2)(a) and (b). That is a child’s right to know and be cared for by their parents and to spend time on a regular basis with, and communicate with on a regular basis, their parents.

Posing the question the step-mother suggests as the way to determine what is in the child’s best interests comfortably addresses the objects and principles of Part VII and demonstrates that a move to France would not be in the child’s best interests.
One of the tensions in a case such as this as identified in s 60CC(2) is that between protection and maintaining a meaningful relationship between a child and a parent. In the child’s case that meaningful relationship can only occur if the child remains in Australia because it requires actions by two parties. Firstly, it requires action by either the step-mother or the aunt to facilitate it and secondly, by the mother to pursue it. One can only imagine the difficulties the mother would encounter in trying to maintain a relationship with the child if the child was living in France. True it is that Dr K said that the potential for wandering in and out of the child’s life is not necessarily a good thing for the child but this was tempered by his evidence that it was important that the child remain connected to her mother and that she not grow up with an idealised image of her mother. Such attention is not resolved by removing the opportunity. Such opportunity would be removed if the child was living in France.
It is not suggested that the Court should give much weight to the child’s views. But what is the most important of the child’s views is the child’s earnest and heartfelt desire to maintain a relationship with her mother.
Actions speak louder than words when Dr K talks about his observation of the child melting into her mother’s arms. This is the most powerful evidence about the child’s views.
In relation to willingness and ability of each of the parties to facilitate and encourage a continuing relationship between the child and the other party the step-mother was criticised for the aunt and her family not being able to attend in the audience at the concert and concerning the letter to Z School. The concert incident should be seen in the context of the clearly significant and substantial parenting role played by the step-mother. A one off incident would not cause the Court concern. In relation to the Z School letter Dr K was not very concerned about the letter to Z School. He thought it was an example of the step-mother feeling a need for some control at the time. He thought that if the step-mother had the security of the long term care of the child, matters such as the aunt being involved in the schooling including being provided with information from the school would not meet resistance by the step-mother.
Insight is an important consideration in the determination of who might be the appropriate parent. The step-mother has now informed the school that the aunt should be included on the school register.
Some criticism can properly be directed to the French family for discontinuing provision of financial assistance for the child. There is no evidence of the French family intending to arrange any form of contact between the mother or the maternal grandparents and the child. And this also raises the concern about how they would do it in the future. On the other hand, the step-mother has reached out and contacted both the mother and the maternal grandmother.
When Dr K was asked which of the aunt and the step-mother held a more balanced view of the mother, Dr K said they were both very similar as they both viewed the mother as the person who had led the father into drugs and bad behaviour. But the difference was the step-mother had a more natural sort of empathy with the mother because both of them had been women in this role of dealing with the father. So the step-mother has not only demonstrated a willingness to keep the mother in the child’s life, but she has also taken positive and concrete steps to do so. The Court would be comfortable that the step-mother would be likely to continue to do so whereas the Court would have reservations about whether the French family would do so.
The aunt contends in her affidavit that the child is at risk in Australia from the mother yet contends that nevertheless she would facilitate a relationship between the child and her mother should the mother come to France. With respect, that is naive. The mother who has been unable to participate in these proceedings in Australia is most unlikely to be able to go to France for this purpose. In January 2012 the aunt informed Family Consultant Manager that she would not want the child to have any contact with her mother. So there is therefore the willingness by the step-mother to ensure there is a relationship and the evidence of her attempt to do so.
In relation to the likely effect of any changes in the child’s circumstances including her separation either from her mother or the step-mother or D, Dr K now says the child’s primary attachment is probably to the step-mother. Dr K said the most desirable outcome would be to ensure no disruption to that primary attachment. The child has already sustained a significant disruption of her attachment to her mother. The French proposal would clearly disrupt the child’s attachment to the step-mother. Dr K referred to the consequences as being significant loss for the child. Dr K said he thought she would experience loss of the step-mother and D acutely. He said she would be very distressed. She would also feel the loss of a positive household, she started to construct a picture of the future which is about being in that household. Dr K said she would be likely to suffer grief for somewhere between six and 18 months.
By staying in Australia there would be no need for her to start at a new school where she knows no-one or to have counselling. Dr K refers to interviews he had with the psychologist Ms O, the Principal of Z School and the child’s teacher Ms L. All report a happy, settled child who is doing well, a child who has a relationship with everybody who is important to her life. A relationship with her family in France, a relationship with the maternal family in Australia through her maternal grandmother, a relationship with D, her relationship with step-mother and a potential for a relationship with her mother.
The child has never had more than approximately four weeks in France. How well she would cope or settle in is a matter for speculation. There is a significant difference between going to a place on holiday and permanently, especially when she would have to start all over again with friendships, schools and, more importantly, establishing an attachment.
In relation to the practical difficulty and expense of the child spending time with those with whom it would be in her interest to maintain personal relations, this presents major difficulties. Firstly, whether the distance itself will create a problem in relation to maintaining contact. The step-mother has facilitated contact and she has made the effort to ensure that contact has gone smoothly. Secondly, the French family say that the absence of a relationship between D and the family is a signpost for the future – that contact between the child and them will wither and die. But the Court would not be concerned about that for the following reasons. Everyone concerned is hopeful that with the completion of these proceedings, settlement of those relationships will regenerate. It is the step-mother who travels to France, not the French family travelling to Australia. The step-mother goes to see both her family and also to maintain good relations with Ms I and Mr I. Even if the worst case was to arise, there would still be a relationship with the French family through Ms I and Mr I. All the submissions on behalf of the aunt ignore that relationship entirely. It was submitted on behalf of the aunt that it might be all too difficult because D does not have a relationship with her French family. That is equally true should the child be in France because she would be the only one in that family who would be maintaining contact with the family in Australia. As Dr K identified, the attraction of new friends and new opportunities in France might make it not attractive for the child to want to maintain relationships in Australia. Therefore the risks exist both ways.
The distance itself renders involvement of the parties problematic. The step-mother travels to France and nobody suggests that they will not make the arrangements work. But if the child was in France it would make it almost impossible for the mother and grandmother to engage the child in any form of relationship other than talking over the telephone. This would be no relationship at all.
There are also legal considerations concerning maintaining relationships. If the child goes to France and the aunt has sole parental responsibility, it would be very difficult for the mother to litigate an outcome. Such litigation would almost certainly have to be undertaken in a French court and this would almost certainly be the end of her ability to engage with the child.
In relation to the capacity of the parties to provide for the child’s needs and the attitude of them to her and to responsibilities of parenthood, Dr K places great store on the depth of parental reserve in the French family. He does not adequately explain his about face given that that depth of reserve must have existed in April 2012 when his recommendation clearly was that if the mother was unable to care for the child and there were no risks to the child in a physical sense, the child should remain in Australia. There is no doubt that in France there is an extended family that does not exist in Australia. That is there are more siblings and more adults in France. But at the end of the day in being cross-examined by the ICL about his preference, he said he thought things have become clearer with regard to the mother. He has put clearly in his report that if the mother proved more functional he would have voted for Australia because of the ability to maintain the attachment relationship. But he said he had come to the conclusion that that was not either neutral or leaning slightly towards France because of the benefit of an ocean between the child and the mother’s potential sort of acute idealistic connection. Clearly for Dr K it was a finely balanced thing.
Yes, an ocean might provide that benefit, but it carries with it the detriment of inability to maintain any form of meaningful relationship between the child and her mother. He said he would favour France partly because of the depth of the resources in the aunt’s family and extended family. In that setting the child is likely to maintain a broader connection with D and the step-mother. This must be tempered by the risks of losing on either side. Dr K said he has a relative concern about the step-mother’s household that things could get smaller rather than bigger, that the child could end up allied with D and the step-mother and disconnected from the French family. Dr K also agreed that it is possible to become lost in a big family. He said he agreed with the broader statement that the step-mother’s household is a very positive one.
Dr K also said that part of his concern is that children with early developmental disruption can really go off the rails in a big way suddenly even if they have three or four years of great school reports. Dr K said he could see a depth of resilience in the French household and the extended family in France which could put a safety net beneath the child. If it was the case that the child was to go off the rails one could only speculate whether or not the aunt or her extended family might be able to, or be available to care for the child. Dr K agreed that there is no evidence of the aunt ever having had to cope or deal with such an event or indeed such a disruption to her life or her family’s life. But we do know that in relation to dealing with a child afflicted with a difficult illness that the step-mother was able to step up to the mark and has as a matter of record been able to do what was necessary with all its necessary requirements both physical and emotional.
Another consideration is cultural heritage. The child has two cultures. The step-mother can offer the child both cultures by virtue of her own French heritage, her connection to France and her Australian heritage. That is not available from the aunt.
So when the Court looks at what the child has to lose, this overwhelmingly demonstrates by virtue of the grief and loss she will suffer and the loss of relationship to her mother and her sister that in this finally balanced decision this calls for the child to remain in Australia.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
The present case is different from most cases involving the determination of arrangements in relation to children. Most of those cases have involved a contest between the natural parents, or between at least one of the natural parents and another person. In the present case, while the mother is a party to the proceedings, in reality she did not appear at the hearing and cannot be regarded in any way as a serious contestant. Accordingly, the real contest is between the step-mother and the aunt, neither of whom is a parent of the child.
Although much of the statutory language refers to “parent” or “parents”, in my view, most of the structure involved in the relevant sections of Part VII is useful and appropriate in assisting the Court to determine what arrangements will serve the best interests of the child. I note that the Full Court has given guidance about the appropriateness of consideration by courts to the various matters in s 60CC(2) and (3) of the Act when one or more of the parties to the proceedings is not a parent of the relevant child or children.
For example, in Mulvany & Lane (2009) FLC 93-404, May & Thackray JJ stated at page 85,518 as follows:
78. In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a).
And in Aldridge & Keaton (2009) FLC 93-421, the Full Court agreed with comments by Finn J, also in Mulvany (above), at pages 83,825 and 83,826 as follows:
76. Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This is not relevant in the present case because tragically the child’s father is deceased.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In commenting on “relocation cases” of which the present case is one, Murphy J said in Cowley v Mendoza (2010) 43 Fam LR 436 at p 443 as follows:
A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
With respect, I agree.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, there is a contest between the step-mother and the aunt for the sole parental responsibility for the child. To their credit, they have agreed that sole parental responsibility should be ordered in favour of the party with whom the Court decides the child should live.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

Sub-section 60CC(3)(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

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

On the basis of even the limited material before the Court concerning the mother’s criminal involvement, the Court would have to have a concern that for the child to be in the unsupervised care of her mother would involve the real possibility that the child could be exposed to violence, particularly from some of the mother’s criminal associates.
The step-mother did say that the child had said that the aunt’s husband P screams a lot even at the children. She said that the child had said in January 2012 that P screamed at her and pulled her arm.
Dr K said that he thought a possible explanation for this could be that the aunt’s husband is somewhat authoritative and that the child’s perception of this was aggressive. Dr K said that the aunt’s husband spoke to him quite warmly about the child and the impression Dr K had was that P had a “natural affinity to care for [the child]” and that he had a genuine feeling of warmth for her.
In my view this is not a case where the Court would be concerned that the child would be exposed to violence in the households of the step-mother or the aunt.

Sub-section 60CC(3)(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;

This is not relevant.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

In my view this consideration would more likely require that an order be made for the child to live with her aunt in France. This is because in my view the aunt and her family would be more likely to be able to achieve a continuing relationship between the child and her sister and step-mother in Australia than vice versa. This is for the reason that as Dr K has observed, given the breakdown in the relationship between D and the French family there is a considerable risk that in time, it will become just too difficult for the child to be able to maintain her relationship with her French family if she was to live in Australia with the step-mother and D.
If this was to occur, it might well be that the aunt would commence enforcement proceedings in this Court.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The step-mother lives with the child and D in a three bedroom rented home in Sydney. The child has her own bedroom.
The child commenced attending Z School in 2012. She participates in various extra-curricular activities including tennis, team sports, artistic gymnastics and art. She also attends drama classes on Sundays. The child appears to be quite settled at Z School and the step-mother proposes that she would continue at that school. The child likes Z School. She has made friends and has a group to sit with at lunchtime. She does not see D at school because the junior and senior schools are separate.
The aunt lives in a seven bedroom home at a town in south western France, where her family have been living for generations. Her home is two houses from that of her parents. The child has her own bedroom. In the expectation that the child would be coming to live with the aunt and her family, she and her husband arranged for a self-contained studio to be constructed in their backyard. Their eldest daughter has moved into the studio to make space in the main home for the child’s accommodation. They also purchased a nine-seat motor vehicle so that the whole family could travel together.
The aunt proposes to enrol the child at the local primary school where her two youngest children RR and MM attend.
The aunt said that a nearby International School would also be available for the child’s enrolment. This is a bi-lingual primary school which offers syllabuses in both French and English.
The father has left his (not insubstantial) estate to the children D and C in equal shares. He appointed as the administrator of his estate his brother Mr U.

The child D’s illness

In 2007 D had glandular fever. In June 2010 she experienced excruciating pain, then constant fatigue, dizziness and sensitive skin.
In August she started a course of “multi disciplinary” treatment at the pain clinic at the Children’s Hospital.
In September D’s arms became numb and she lost mobility in both hands. She subsequently attended the emergency department at the Children’s Hospital. On 13 October 2010 D was admitted to the Hospital. She was diagnosed as suffering from “widespread regional pain, post traumatic stress disorder and conversion disorder”. She was unable to walk and had to use a wheelchair. Both her hands had closed into fists and were paralysed. She had to be spoon fed.
D was discharged on 29 October 2010 with a regime of physiotherapy and occupational therapy to be undertaken and a referral to the Children and Adolescent Mental Health Team because her illness was thought to be neuropathic and possibly a conversion syndrome.
D was again admitted to hospital between 18 and 26 November 2010.
By February 2011 D was starting to improve and she returned to school full time at the commencement of second term in 2011.
She still has significant problems with clawing of her left hand. She is unable to go up and down stairs other than on her buttocks. Dr K thought that her school attendance tended to indicate that things are not getting worse for her. He said that most sufferers eventually get better. He thought that her prognosis was good but that her condition would probably continue into her 20’s.

Discussion

Primary Considerations

As indicated above, the first of the primary considerations in s 60CC(2) of the Act is the benefit to the child of having a meaningful relationship with her mother. For the reasons referred to above, I also have the view that the primary considerations also extend to both the step-mother and the aunt for the reason that clearly the child has a close relationship with each of them.
At the time of preparing his report Dr K had a much more favourable view of the mother than has been able to be supported in the light of all the evidence. Indeed he initially recommended that if the risks associated with the mother were found by the Court to be low, then she should have sole parental responsibility for the child and that the child should live with her mother. It is clear that this view was heavily influenced by the very close attachment and unique relationship which Dr K assessed the child to have with her mother. But Dr K accepted that the failure of the mother to have appeared at the hearing made it clear to him that her level of dysfunction was more likely to be ongoing than momentary.
It is clear that the child has a meaningful relationship with both the step-mother and the aunt. I shall refer to this again below.
The second of the primary considerations is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.
The mother had some involvement in the two incidents in 2006 during which the father was the victim of criminal acts. She was present at his home on the evening before he died. As indicated above, she has continued to mix with criminals.
An aspect of the mother’s failure to appear at Court is that she has not made herself available to dispel any of the suspicions about her own behaviour and that of the persons with whom she associates.
Unfortunately, in my view, it has become fairly clear that the mother is unlikely to be able to make herself available to develop a meaningful relationship with the child, much as it would seem the child would welcome this. As learned senior counsel for the aunt observed, the mother has not seen the child since Dr K’s interview in April 2012. But, having said this, it will be in the child’s best interests for the Court to put in place appropriate orders to enable the child to keep contact with her maternal grandmother and her mother if the mother is able to engage with such arrangements.
Accordingly, the Court is entitled to take a very cautious approach to ensure that the child is not exposed to risk in any measures which might be put in place to endeavour to enable a relationship between the child and her mother in future.
There is no question that each of the step-mother and the aunt has a very close and loving relationship with the child. Each would be more than capable of providing for the child’s needs. This is clearly also the opinion of Dr K. And the Court will have to endeavour to put in place orders to ensure that the child will continue to have a meaningful relationship with both the step-mother and the aunt.
Those matters which would tend to favour placement of the child with her aunt and family in France include the following.
The child would be in the primary care of an aunt and family who love her dearly and who are more than capable of providing for her needs not only in the short term but also in the long term. The aunt is an impressive person who has a record of great success in raising five children, three of whom are now adults, and each studying at tertiary level for entry into various professions.
As learned senior counsel for the aunt submitted, Dr K noted that the child has some confidence in the aunt as an adult figure to whom she can turn for advice and reassurance.
In France, the child would also have the benefit of the connection with and influence of, not only her cousins, but all the other members of her extended family in France. These connections would be likely to influence the manner in which the child further develops in a very positive way and would be expected to provide strong support for the child not only over the next few years but for the longer term.
Dr K referred to the real risk based on the child’s fractured parenting at a young age that she might well suddenly “go off the rails”. As indicated above, he said that the strong authoritative parenting style inherent in the team approach by the aunt and her husband and supported by the extended family members would be likely to place a “safety net” beneath the child. Dr K thought that in such circumstances, their parenting style would be of more benefit to the child than the more collaborative / negotiating style used by the step-mother and D.
Dr K said that the presence and importance in the aunt’s household of a male model in the form of her husband was relevant, although not his primary concern. This was because he said single mothers can raise strong children. But Dr K said that what would be significant for the child in this regard would be the inevitability that she would be hearing about her father as a person who had difficulties and used male aggression and coercion. So the presence of a strong non-coercive male would be helpful.
Dr K thought that the aunt and her family would promote the child’s connection with the step-mother and D and that wanting to repair their relationship with D would be an additional incentive. He was less confident that if the child was living in Australia that she would retain her connection with the aunt and French family. If this was not to occur, then the child would lose her meaningful relationship with her aunt, and all the opportunities which flow to her from this.
In this regard it is troubling that D has rejected the aunt and most of the French family. I have also referred to the step-mother’s instructions to the girls’ school not to provide information to the aunt as well as to the step-mother refusing to support the aunt and her family members attending the child’s concert.
On the other hand, some optimism can be gleaned from the fact that the step-mother has been active in returning with the girls to visit their families in France, as well as the other positive measures she has taken since the child has come into her care.
Dr K also said that to the extent that the child might start to resist visiting Australia once she became settled down in France, the aunt’s parenting style would be more likely to find a way to enable the child to come to Australia. That is, her more authoritative style would be more likely to ensure that the child embarked on the flight rather than enter into a negotiation. He did not think that the step-mother would be nearly as effective in achieving the child’s getting on the aircraft because of the step-mother’s more collaborative style of parenting. Dr K also had the view that the aunt would adhere to court orders which required the child to spend time with the step-mother and D in Australia.
Dr K did not think that the child would lose her relationships with the step-mother and D if she was to live in France.
Australian cultural matters could be experienced by the child particularly when she was on holiday with the step-mother and D in Australia.
Dr K thought that a danger about the child living in France might be that she could create an idealised view of her mother. But Dr K said that he thought that the aunt would be able to assist the child in thinking this through, no doubt by reminding the child of some of her mother’s vulnerable behaviour.
The French family can preserve a sense of the father for the child.
On the other hand, those matters which would tend to favour continuation of the child’s residence with the step-mother and sister in Australia are as follows.
The very competent parenting by the step-mother, her love for, and devotion to the child, and the stable home she has provided for the child.
The child has expressed the view to Dr K and to the step-mother and D that she would prefer to live with them in Australia rather than to live with her aunt and her family in France.
The child’s closest and most loving relationship is with her sister D, who is living in Australia. D is the person with whom the child is able to share a history of her own parenting and the important place of their father in the girls’ lives.
It would be more likely for the child to be able to have opportunity to maintain and further develop her relationship with her mother in Australia.
The child is settled in Australia both in her immediate family situation and at school and that she has a supportive group of friends. Dr K said that the child has now formed an attachment relationship with the step-mother and that she would feel an acute sense of loss and distress if she was required to leave residence in the household of the step-mother and D and move to France.
Dr K said that in France the child could remain in a somewhat inhibited state for up to 18 months, because it might take such a period for her to complete an attachment to the aunt.

Conclusion

As indicated above, in his report Dr K had the clear view that the option most in the child’s best interests was likely to be a placement in which her mother would have a significant role as parent or co-parent. In the light of the mother not having appeared at the hearing however, Dr K reconsidered that view. Dr K thought that the mother’s failure to appear was a strong indication that she was experiencing ongoing personal dysfunction. Dr K regarded this as particularly significant because the court proceedings required the mother to play an important role at this time in the child’s life and she has not been able to do so.
In my view the mother has made it abundantly clear that the Court could not have any confidence in her as being a person in whom the Court could properly place any responsibility for the child. The mother’s failure to avail herself of the opportunity offered by the step-mother of time with the child and her failure to appear at the Court hearing, point to the unlikelihood that the mother would be likely to avail herself of much opportunity to participate in the child’s life.
In my view, the prospect of the mother playing some role, and being available for a relationship, with the child was an important plank in the case advocated on behalf of the step-mother. In my view the Court must also remain mindful that even if, contrary to current indications, the mother was able to be available for some relationship with the child, there would also be apparent risks involved so far as the safety of the child is concerned. This is why Dr K thought that to place an ocean between the child and her mother might assist in the long-term development of the child because it would remove any possibility of the child running away to endeavour to pursue a relationship with her mother, with all the attendant risks for the child in such a course.
Dr K said that if the mother was to drop in and out of the child’s life, this could constitute a serious risk if it was not carefully managed by strong adults. He said that if this was not contained, and the child became pulled in various directions in her attachments, the risk for the child could be that she might run off to live with her mother in unstable circumstances.
Also Dr K said that because her development has been disintegrated, she would derive great benefit from a stable home because this would be likely to integrate that disintegration. He said that if she was to remain in a fragmented world, that is with a mother who is coming and going, once in adulthood she would find it difficult to remain in a consistent relationship.
I accept that the child has expressed the view that she would prefer to live with the step-mother and D. But as Dr K has said, the child tends to live her life in the present and would be expected to express such a view. In this regard I also note that Dr K said that both the aunt and the step-mother reported to the Department of Family and Community Services workers that originally the child accepted the news that she was to live with the aunt’s family in France without objection and that she engaged positively in planning for her new life in France when she spent time there in mid-2011.
So far as the child’s relationship with D is concerned, clearly the maintenance and further development of this relationship is high in the order of those things which are in the child’s best interests. In a perfect world, one would prefer to have siblings residing together. But Dr K had the view that the relationship between the sisters would well survive them not living together. He thought that regular visits together with frequent Skype and other electronic communication would be sufficient to ensure their relationship. Dr K also thought that there were aspects to this relationship which were somewhat unrealistic and immature. For instance, he thought that D playing a “little mother” role towards the child was inappropriate and that the child thinking that D would always be available and that they would always be living together even when she was 40 was a fantasy. I accept these views and I also note that there is an age difference of more than six years between the sisters. It would therefore appear likely that D inevitably will become less available for the child over the next few years.
In relation to the sense of loss, grieving and distress which Dr K thought would be acute for the child if she was removed from living with the step-mother and D, one would of course prefer for this not to have to occur. In fact, Dr K said that if the merits of the competing cases were finely balanced then he would not recommend such a course. I must say that, upon a consideration of the totality of the evidence in these proceedings, I do not have the view that the merits of the proposals by each of the aunt and the step-mother are finely balanced.
In my view, what is on offer in France for the child would more than balance the disadvantages and the losses when compared with requiring the child to remain living in Australia. As I have said, in my view, there is a clear difference.

Firstly, there is a difference between the parenting styles of the aunt and her husband compared with that of the step-mother.
Dr K said that he regarded there to be a depth and richness to the aunt’s parenting skills which were above those of the step-mother. This is not to be critical of the step-mother because she is also highly skilled as a parent, particularly having very capably attended to the demanding challenges associated with management of her daughter D’s medical situation. I must say Dr K’s view in this regard about the aunt coincided with my own sense about her outstanding capacity as a parent. Dr K said that she impressed him as being able to bring considerable balance and regularity to the management of her family’s needs. He also thought that she had a sensitive understanding of the child’s particular needs and enjoyed a relationship with the child in which the latter had the confidence to discuss with her the most intimate of matters.
The record of the aunt and her husband in successfully parenting their own children is impressive.
Dr K indicated that he had two main concerns about the child continuing to live with the step-mother and D. Firstly, he said that there was a real risk that the child might lose contact with her paternal family because she is vulnerable to simply following D and in effect shutting them out. Because of the richness and substance that the French family offers, and particularly their connection and support as the years go on, this would be a significant loss for the child.
Secondly, as indicated above, Dr K said that as a child who has experienced early developmental disintegration, the child is at risk of going off the tracks. He said that therefore the greater the parental reserves the better and that there are more reserves in the aunt’s family. He said that the aunt and her husband function well as a parenting team. He also said that they have a stronger, authoritative parenting stance compared with that of the step-mother and D who are raising the child in a parenting team which is a bit immature. Dr K had the clear view that the aunt had a higher level of parenting skills and capacity than did the step-mother. He said that at a practical level, the aunt was able to describe her arrangements for the care of her present children in a hands on and detailed way, which gave him confidence that she knew how to do this. He also thought that she had a good sense of balance because also she was able to organise time for her husband. So Dr K thought that the aunt parented in a sustainable and child-focused manner.
In relation to the grief and distress which would be likely to be caused to the child in moving to France, Dr K offered the following thoughts. The aunt and extended family would provide a strong and loving environment for the child and respect for her relationship with the step-mother and D and that they would be able to facilitate this. Because of the child’s history of developmental disruption, she would be likely to have the resilience to deal with the change. Her response would be more likely to be sadness rather than aggressive or self-destructive behaviours. It would be important for the child to understand that the step-mother and D were still going to be in her life and he said that the regular Skype and routines would be important. Dr K also thought that an appropriate program of counselling in France would be of considerable assistance to the child in managing her distress and grief.
In relation to opportunity for the child to maintain some relationship with her mother, Dr K did not think it would be too hard for the child to have some contact with her mother if the child was in France. He thought that an arrangement through the child’s maternal grandmother could be appropriate. Dr K thought that although the step-mother had a more natural empathy for the mother, both the step-mother and the aunt had shown respect for the mother / child relationship and Dr K thought that both would create space for the child to endeavour to have a relationship with her mother. In any event, given the mother’s behaviour, it was unlikely that even if the child was living in Australia, her mother would be available for regular contact.
Dr K’s ultimate conclusion was that it would be in the child’s best interests to live with her aunt and her family in France. His reasons were broadly four-fold. Firstly, the mother has shown herself to be not functional and therefore there would be less need for the child to be in Australia than he had thought earlier. Secondly, there is a depth of resources in the aunt’s family and extended family in France and that in that setting the child would be likely to maintain a broader connection with family. Dr K had a concern that although the step-mother’s household in many respects is a great household, things would be likely to get smaller for the child there rather than larger. He also thought that there was considerable risk in that the child, in that household, would be likely to lose her relationship with the French family. Finally, as indicated above, Dr K was concerned about the risk to the child of really going off the rails suddenly and that there was a resilience in the French household which would be likely to better meet her needs in such a situation compared with the step-mother’s household.
I have no hesitation in accepting Dr K’s ultimate conclusion because it accords with my own.
In an ideal world it would make good sense not to separate the sisters. But, in my view, the Court must take a comprehensive and longer term view of what the best interests of the child require.
The aunt and her family can offer the child the opportunity to grow up in their large, loving family of which her father had been a part. The aunt and her husband have an impressive record as parents and have provided great opportunities for their children which they also wish to do for the child. And I am satisfied that they are committed to supporting the close and meaningful relationships between the child, her sister D and the step-mother.
For all the above reasons, in my view, the best interests of the child will be served by the relocation of her residence to France with her aunt.
Having determined this, it will be very important to put in place orders which will provide for appropriate opportunity for the child to communicate with, and spend time with D and the step-mother. I have noted Dr K’s recommendations in this regard. I consider these recommendations to be properly reflected in the proposed orders by the ICL.

I certify that the preceding three hundred and seventy-six (376) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 16 August 2013.

Associate:

Date: 16 August 2013

[2013] FamCA 597

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