Carver & Hahn

[2014] FamCA 470

FAMILY COURT OF AUSTRALIA

CARVER & HAHN [2014] FamCA 470

FAMILY LAW – CHILDREN – Interim – Request to live in Canada pending trial refused – Very young child – Significant disputed evidence – Permission to travel internationally for limited periods pending final hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Carver

RESPONDENT: Mr Hahn

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1549 of 2013

DATE DELIVERED: 2 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Susan Snyder

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the wife’s application for permission to remove M born … 2011 to Canada pending final hearing of all parenting issues is refused.

2. That notwithstanding paragraph 1, the wife be permitted to travel internationally to Canada with the child M born … 2011 during the following periods:

   (a)For one period of six weeks at any time from 18 July 2014; and

   (b)For one period of up to two calendar months from late November 2014.

3. That for the purposes of paragraph 2, the wife give the husband, through his solicitors, seven days notice of her intended departure dates.

4. That save for the times referred to in paragraph 2, BY CONSENT the husband spend time with M in Australia as follows:

   (a)From 5.00pm Sunday until 6.00pm on Tuesday;

   (b)From 12 noon until 6.30pm each alternate Thursday commencing 10 July 2014; and

   (c)From 10.30am until 6.30pm each alternate Saturday commencing 17 July 2014.

5. If M is in Canada, the husband spend such time with M as may be agreed between the parties.

6. That the application filed 2 April 2014 and the response filed 23 June 2014 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carver & Hahn 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 MELBOURNE

FILE NUMBER: MLC 1549 of 2013

Ms Carver

Applicant

And

Mr Hahn

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Pending the ultimate determination by this Court about the future residence of M (aged 32 months) (“the child”), Ms Carver (“the wife”) wants to return to live in her native country, Canada.  Mr Hahn (“the husband”) proposes that the wife and the child only travel to Canada for short periods and not to live there permanently even pending the final parenting dispute.  The Independent Children’s Lawyer supports the husband’s position.

2. These reasons concern the interim dispute between the husband and the wife.  There is an unusual background that requires some explanation.

3. The wife is a Canadian citizen and the husband an Australian.  They are still young.  They met in September 2008 and both belong to an Orthodox Judaic community.  Prior to their marriage which occurred in October 2010, they carried on their relationship travelling between Canada, Australia and Israel. 

4. They were married in City A, Canada and lived in City B, Canada and in 2011, the child was born.

5. In October 2012, the family came to Australia with return tickets to City A booked for January 2013.  In December 2012, the wife took the child back to Canada and why that happened will be the subject of future proceedings.  The husband consented to the wife travelling with the child back to Canada in December 2012 planning to follow in January 2013.  By January 2013, the wife had determined not to return to Australia.  It was the wife’s position that the 2012 trip to Australia was not to be permanent but rather for a trial period.

6. When the wife refused to return to Australia, an application was made under the Convention on the Civil Aspects of International Child Abduction otherwise known as The Hague Convention.  The case came before Kruzick J in the Superior Court of Justice in City B.  It was brought on quickly as the regulations required. 

7. In the hearing before Kruzick J, the wife submitted that the child was not habitually resident in Australia.  She submitted that even if the court found otherwise, the removal from Australia had been with the husband’s consent.  She also submitted that ordering the child to return to Australia would expose her to a grave risk of harm or otherwise place the child in an intolerable situation.  Kruzick J rejected those arguments and ordered the wife to return to Australia with the child and she complied. 

8. I have the benefit of the judgment of Kruzick J.  His Honour said that the spirit and the purpose of the Convention required the Australian Court should assume control over the process and that is exactly what happened.

9. Kruzick J examined the various authorities arising from the Convention and found that the child was habitually resident in Australia.  His Honour found that there was no convincing evidence put by the wife of the husband consenting to the child remaining in City B nor that there was a grave risk of harm or exposure to an intolerable situation for the child.  His Honour was conscious of the allegations by the wife of having suffered severe abuse at the hands of the husband during the short marriage and that it was the assertion of the wife that the abusive behaviour was the catalyst for the breakdown of the marriage.  His Honour noted that the allegations were very recent but that there was no indication of harm evident at the point that the wife left Australia.  In any event, his Honour found that with the safeguards and undertakings of the husband which he intended to order, the “defence” of grave risk or otherwise intolerable situation would not be made out. 

10. Against the judgment of Kruzick J, the wife appealed and just over one month later, the Court of Appeal for City B rejected the wife’s argument and delivered its reasons.  Blair, Juriansz and Tulloch JJA referred to the reasons of Kruzick J and said that the appeal was not a rehearing and therefore their Honours had to give the trial judge’s findings considerable deference.  They found no palpable or overriding error.  They said the Court was conscious of the fact that there was evidence on both sides, the weight of which was a matter for the trial judge.  Thus, they found no error of law and the wife had to return to Australia.

11. Kruzick J ordered the mother’s return on 1 March 2013.  Two days later, the husband was arrested by Canadian Police and charged with what appears to be four serious assaults relating to the wife.  Whilst the prosecution of those matters appears to have been beset with difficulties, it was agreed by all parties that the trial of those charges is at least listed to commence in December 2014 and the wife will be a witness. 

12. In the context of all of those matters, the wife now seeks to be able to return with the child to Canada.  The husband acknowledged that she could go to Canada from an agreed date in August 2014 for five weeks and then from late November 2014 to the week commencing 5 January 2015.  It was the husband’s case that he will have to be in City A during the second of those periods because of the criminal trial.

13. The hearing before me was conducted on the documents filed by the parties and the submissions of counsel.  I had the benefit of an Independent Children’s Lawyer who appeared by counsel. 

14. It is trite to say that in such a limited hearing, I am not able to make any significant findings of fact on controversial and untested evidence.  Here, two examples of controversial facts will suffice to explain the dilemma.  First, the husband says that the wife told him during their relationship that she had been sexually abused by her brothers.  The wife denies any such events occurred.  Secondly, the wife says that the husband was sexually and otherwise physically violent to her in their relationship.  It is clear from all of the affidavit material and the submissions put on behalf of the parties that without that evidence being critically analysed and tested, it is impossible to tell which version is true.  Both parties attended upon a psychiatrist Dr W who said that there appeared to be an extraordinary difference in terms of the accounts of events and it was his view that one of the parties was lying “in the extreme”.  I return to that statement below.  Whilst Dr W was unable to discern the truth, it was also not his responsibility to do so.  The findings of fact are matters for the Court but his observation showed the complexity of the dispute in the context of the mental health of the parties that he was examining. 

15. The husband submitted that there was evidence of a risk to the child by returning to Canada because of the possibility of contact with the family whom he said were the subject of the wife’s complaints about the monstrosities that had been perpetrated on her as a child.  However, as observed by counsel for the wife, the husband had agreed to the mother returning to Canada before and indeed, there was no suggestion of the wife not being protective as a parent.  Against that background however, Dr W raised concerns about the parenting of both parties depending upon the findings about truthfulness.  The allegations of each parent are serious and the Court must be cautious about findings upon which determinations have to be made even on an interim basis. 

16. The wife submitted that even if the husband was acquitted of the charges against him, she would return to Australia for the purposes of any family law proceeding.  Whilst that statement might be self-serving and might be expected of someone wishing to be seen in a good light, there are three matters that give me some comfort about its foundation.  First, the wife has already experienced the swiftness of the Canadian court concerning the Hague application.  A repeat of that would seem unlikely as the issue was clearly determined by that court.  Secondly, there has not been any suggestion of the wife not complying with court orders.  There is certainly some complaint about the wife’s lack of responsiveness to advice by one of the experts to whom I shall refer but that is hardly a complaint about her compliance with orders.  Thirdly, the child is still very young and before settling into school life as well as community life, my view is that adjustments can still be made much more easily than if she was more than five years of age.  One would hope that this Court can resolve the issues well before the child’s fifth birthday.

17. Even against those matters, it must also be said that there is the peculiar timing of the husband being charged just after the wife was ordered to return to Australia.  In addition, counsel for the husband pointed to the wife’s apparent distain for the husband’s involvement in decision-making by enrolling the child in a Canadian nursery.  The husband was not consulted about that arrangement.  Whilst counsel for the husband described this as an indication of the arrogant attitude of the wife, my view that it is a matter better tested at trial having regard to the circumstances under which the enrolling took place.

18. There is another issue which creates some degree of difficulty as well.  There is no doubt that the wife came to Australia initially with the husband on a visa.  There is clear evidence of an extension of that visa but just what would happen if no further extension was made remains to be seen.  I return to that evidence when I turn to the affidavit of Ms Hung below.

19. Despite the fact that this is an interim hearing, the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply. The Court does not make parenting orders in a vacuum. It must consider the evidence placed before it by the parties but also to take into account and be guided by the provisions of s 60B of the Act. The principles are that the welfare of the child is the paramount consideration but the very use of that word means that it is not the only consideration. The guiding hand of parliament can be seen in s 60B which includes that when working out what is in the best interests of a child, the Court must consider the benefit to a child of having a meaningful involvement in the lives of both parents as well as other matters relating to the protection of the child and further ensuring that the child receives adequate and proper parenting to achieve full potential. The principles underlying those objects in s 60B include such things as the child having a right to know and be cared for by both parents as well as spending time with both parents. Parents are encouraged to jointly share duties and responsibilities but in the circumstances of a case such as this, the parties cannot even be in the same room together and it is a specific condition of the husband’s bail that he not come into contact with the wife.

20. In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court observed that the procedure for making interim parenting orders is an abridged process where the scope of the inquiry is significantly curtailed. The Court observed that where findings of fact could not be made, the Court should not be drawn into issues relating to the merits of the substantive case which required findings to be made and where those findings were not possible. Despite the truncated hearing and the paucity of evidence, the Court still had to make a determination based on the best interests of the child. Thus, in Goode (supra), the Full Court indicated that the Court should:

    ·   Identify the competing proposals;

    ·   Identify the issues in dispute;

    ·   Identify any agreed or uncontested relevant facts;

    · Consider the matters in s 60CC that are relevant and if possible, make findings.

21. The only issue the Court here has to decide is whether there should be a relocation of the child until the trial of the proceedings in this Court or as the husband put it, for there to be two discrete periods which would cover the time until early January 2015. The husband’s position was criticised by counsel for the wife because it assumed that the criminal trial would commence in December and no real consideration was given to the question of when it would finish. That may be a problem because it seemed common ground that the final parenting trial could not proceed until the criminal proceedings had been concluded. There had been an argument before Macmillan J earlier in 2014 about the prospect of the husband giving evidence under the cover of a s 128 certificate under the Evidence Act 1995 (Cth) but her Honour did not find favour with that approach. Neither party now argues anything about that issue.

22. I therefore turn to the evidence of the parties so far as I can see that it is relevant to this determination.  Each party relied on a number of affidavits and in some respects, some of those matters are not relevant to the determination here. 

23. In her first affidavit filed in April 2013, the wife said that the child was a Canadian citizen and held a Canadian passport.  She argued that she had been primarily responsible for the child’s care since birth and apart from the ten weeks that had been spent in Australia, the child’s whole life had been spent in City A.  That situation obviously changed with the decision of the Canadian trial judge and subsequently the Canadian Court of Appeal.  Needless to say however, as I understand the wife’s case, she will always argue that the visit to Australia was a trial period and Canada was still her home.  That may become relevant on the question of who ultimately becomes the carer of the child and if in the case of the wife, whether the care is appropriate in Australia or in Canada.  Similarly, if the husband is successful, what sort of relationship the child would have with her mother if she maintains or carries out her return to Canada.  There are a whole series of questions that have to be contemplated by a court in respect of the proposals of the parties.

24. The wife’s affidavit went on to say that she was an assistant in the education sector in City A at the time of the marriage and the husband was working in education programs.  The marriage changed all of that because soon after, the wife became pregnant with the child.  The wife deposed to the fact that the husband’s role in the child’s life was modest.

25. The wife set out various examples of her perception of the husband’s parenting capacity and as well as his parental responsibility.  I can clearly make no findings of fact on those matters.

26. In her affidavit, the wife set out an extensive array of allegations under the heading of “Family Violence”.  As is now apparent, these allegations formed the basis of the wife’s complaint to the Canadian authorities in 2013.  The truth of these allegations will become the subject of not only scrutiny by the Canadian criminal courts but presumably, ultimately in this Court where the standard of proof is significantly different.  The addendum to Dr W’s report again highlights the stark nature of the complaints.

27. In her evidence, the wife said that the husband was a marijuana user and she pointed to a plastic bag found by her in April 2013.  The husband’s response to that was to simply say he was unaware of what the bag was and the only thing that he could think of was an Argentinian tea known as “Mate”.  This was evidence put before the Court by the wife on the basis of allegations of drug usage.  Bearing in mind the denial by the husband, it is another matter about which no finding of fact can be made. 

28. The wife turned her attention to the question of Australia.  She observed that she had few friends here and they were not close.  She noted that she had no established and trusted medical practitioner or counsellor in Australia as she had back in Canada.  Money was also a problem because she had no job or means of earning an income.  She noted that she was completely reliant upon a lump sum given to her by the husband in April and as her subsequent evidence indicated, that is now gone.

29. The wife set out the opportunities that she had for the child in Canada and leaving aside the allegation of the husband about the wife’s brothers, I am not sure that there is any significant argument about the circumstances under which the wife would otherwise live there.  The husband clearly did not have any concerns about the wife going to Canada for up to five weeks which was evident from his proposal.

30. In his evidence in reply to that affidavit, bearing in mind that it was a year ago, the husband said that he often involved himself in the caring role with the child but again, that was a factual issue about which I cannot make a finding because it was significantly disputed by the wife.  In his evidence he said that he had never subjected the wife to family violence and that he denied every one of her allegations.  He said that all sexual intimacy was consensual but he objected to giving detailed responses because the issues were the subject of the Canadian Criminal Court hearing.

31. The husband then went on to say that the wife did have friends in Australia and could participate in the local community but it seems to me that even if that is a contentious issue, it is hardly relevant to the question of where the wife wanted to be.  It is clear that she was in Australia for a very limited period of time and she still sees Canada as her home.

32. It is at this point that I again refer to the evidence of Dr W.  Dr W is a psychiatrist who examined both parents.  Having heard the various accounts of the matters to which I have just referred, Dr W concluded that one of the parties logically, was suffering from significant psychopathology and personality defects.  That has to be seen in the context of his earlier observations at least about the wife.  The husband had said that he had real concerns about the psychological stability of the wife.  This came out of the issue about the abuse by the wife’s brother.  The husband said he did not accept her current denials but that he believed she had been placed under great pressure by her family to deny the allegations.  Dr W said that on the history available to him, there was no evidence of a problem of a psychiatric nature in the wife.  Dr W said that psychiatric disorder did not appear to be a significant factor in regard to the wife’s ability to be an appropriate caregiver.  That obviously has to be read in the context of the allegations by the husband.

1. In May 2013, the wife responded to the husband’s affidavit comprehensively.  She said that she and the child were staying in Australia on visitor’s visas that were then expected to expire in July 2013.  Now, almost a year later, she is still here on the same visiting visa.  The wife referred to the affidavit of Lena Hung.  Ms Hung is a solicitor who is an accredited specialist in immigration law.  She gave the wife advice.  In February 2014, Ms Hung said that because the wife had stayed for almost 12 months, she might have difficulties applying for a further stay.  She said the reviewing authorities would assess the application critically to ascertain genuineness of the wife’s intentions to remain as a visitor.  It does not take much imagination to understand that the wife can hardly continue to claim that she is a visitor.  Ms Hung advised that an extension could only be granted in exceptional circumstances and she gave some examples.  Whatever may be the application by the wife to the relevant department, it is clear that she is very much in the hands of the department.  It may be that events overtake these court proceedings.  When the wife swore her affidavit in May 2013, she said that she believed that the child was too young to be spending overnight time with the husband away from her care.  That brings into sharp focus the views expressed by psychologist Dr C who only weeks after that affidavit was sworn, made some observations about what should occur between the child and her relationship with her father. 

2. The evidence would seem to suggest that there has been consistent daytime contact until very recently when the child began to go overnight with her father and the husband has now had six periods of time overnight. 

3. In her affidavit sworn in April 2014, the wife said that she was proposing the introduction of overnight time and what she described as extended time.  That was criticised by counsel for the husband on the basis that the wife had not accepted the recommendations of Dr C in July 2013.  I find that no criticism of the wife was warranted having regard to that evidence.

4. The evidence of Dr C was as follows.

5. Dr C is a psychologist specialising in forensic and clinical psychology and a Regulation 7 family consultant.  She was instructed by the parties arising out of a consent order made by the Court on 30 May 2013.  She was appointed as the single expert to prepare a written family report for the purposes of these proceedings.  There were a number of concerns, if not criticisms, about Dr C’s report.  Before dealing with those, it is important to point out that Dr C read the same material that is now read in evidence. 

6. Dr C observed the husband and whilst having no doubts about his love for the child as well as his commitment to her, did not see the depth of concern that she expected in the father of a child who was facing the prospect of that child relocating.  Counsel for the husband said that Dr C had to look at these parties as coming from a very closed community.  I am not in a position to make any such finding but in any event, all of this can be subject of cross-examination at the trial. 

7. Dr C took notes of the parties’ respective positions about what gave rise to the dispute and said that she found the wife to be more believable in the sense that there seemed to be less inconsistencies in her reports, demeanour and the “interplay” between those.  Added to that was the feeling that Dr C had that the wife’s desire and reasons for relocation back to City A appeared more heartfelt that the behaviour of the husband.  I have some difficulties with those observations because they are not elaborately set out and they are clearly just feelings.  Not only do I take into account the observations made by counsel for the husband about the nature of his client’s community but also the fact that the wife has a very limited connection with Australia and clearly wants to return to her native Canada.  Dr C thought that the husband’s comments written by him on the internet did not sit well with his descriptions to her.  The wife had given evidence about these comments which included remarks about drug usage and the like.  Those comments too seem inconsistent with living in a very closed community. 

8. Dr C thought that the wife’s emotions were consistent with her stated desires to return to Canada and that those desires appeared “rooted” in a genuine loneliness and despair. 

9. The opinions of Dr C are subjective and can be tested.  A major criticism of Dr C was that she had “entered the fray” by making findings of fact when that was not her task.  Counsel for the Independent Children’s Lawyer joined in that criticism.  I make no finding on the basis that her opinions about the child are infected by her loss of objectivity by “entering the fray”.  That is a matter for trial.

10. Most importantly and less controversial was the statement by Dr C that the child continues to spend day time with the husband.  Her observations were that that was successful.  In July 2013 Dr C suggested that overnight could be considered as well as an extension of the husband’s daytime contact.  The recommendation said that if that worked, a second overnight could then be considered along with fortnightly weekend contact.  All of these opinions were qualified by such statements as that the times should be “considered” and that they were “ideas”.  It is clear from the evidence of the wife that she did not consider the child was ready and so, months after that report, the situation had not altered.

11. In anticipation of the current hearing, the parties saw Dr C again.  Dr C did a second report dated 4 June 2014 which was attached to the affidavit of the husband but it was common ground that it should be read into the evidence.

12. Dr C said that this report was to be read in conjunction with her July 2013 report and that this one was designed to assist the Court in determining “where [the child] should reside” and “how much time she should spend with each parent”.  The report went on to say that it also again addressed the issue of the mother’s proposed relocation back to Canada.

13. Dr C said that the husband’s “preference” was still for the child to remain in Australia but that he understood that the wife wanted to leave and that it was his preference that if that was to occur, the child was not to go until she was cognitively old enough to be able to maintain a relationship.  For his part, the husband determined that that should be when the child was six years of age.

14. Dr C said that the wife had not changed her position and that her preference was to return to Canada in June 2014 but that she had no problems about the husband visiting the child in Canada.  In relation to the overnight time, Dr C noted that the wife was open to it.

15. In relation to the overnights, Dr C seemed to me to equivocate somewhat from her July 2013 report.  She commenced her recommendations by saying that they remained “pretty much the same” as the first report save that the overnights had not advanced to what she had anticipated in July 2013.  Dr C said that “given” that the child had struggled with the introduction of overnight time initially, she was recommending that if the wife went to Canada, the break between the times that the child saw her father should be no more than six weeks.  I drew the inference from that statement that Dr C is of the view that the child has the cognitive ability to understand what is happening to her and is comfortable with her father but that the relationship would be in jeopardy after an absence of about six weeks.  Each of the recommendations seemed to be hesitant.  For example in paragraph 52 of her report appears the qualification that if the child is still struggling a little, then it would be prudent to go backwards to one night per week and to continue that for a period of three months and then start again and reintroduce the two consecutive nights. 

16. In my view, there is little comfort for the Court in these recommendations.  None of the recommendations seem to be founded in fact and that is understandable because the child has not had significant time in the absence of her mother.  Nothing in the report seems to suggest that the opinions are supported by any particular research as to the age and cognitive developments of a particular child.  Dr C in my view is hazarding a guess as to what the child will cope with in relation to each parent with the hope that if that is unsuccessful, the parties will have the common sense approach of backing away and changing to a different course.  Having regard to the nature of the allegations between the parties and the particularly strident views expressed by Dr W about one of these people being a liar, I have little confidence that a flexible arrangement will work.  Dr C made her position very clear when she said that it was difficult to make absolute recommendations in the circumstances saying that the issue should be revisited again to see how the child was going.  With that course of action, I agree.

17. In relation to the immediate issue of an interim relocation which Dr C clearly understood (paragraph 53) was the issue before the Court, Dr C said that in an ideal world it would be better to wait until the child was a little older so that she could better manage a long distance relationship.  In Dr C’s view, that was at around seven years of age.  That is 3½ years away.  On any view, the husband is acknowledging that the child can be away for at least five weeks from him without damage to his relationship with her.

18. Dr C said that given the advances over the past 10 months and the fact that by early August 2014, the child should be managing two consecutive overnights “quite well”, she could be managing a long distance relationship and a relocation to Canada providing that the time between visits was initially very short and ideally, no more than six weeks to two months leading up to a three month gap at a “real stretch”.  This “real stretch” was “potentially asking for trouble” although Dr C thought that the child might still manage it.

19. The evidence is somewhat confusing but doing the best I can, Dr C’s opinion is, as the child grows older, she will manage bigger gaps but is not capable of that at the moment.  To a large extent, those gaps are going to be dictated by the capacity of the wife to come back to Australia as much as the requirement that the husband attend Canada for the criminal trial.  I agree with counsel for the wife that there is no guarantee when the criminal trial will commence nor indeed what the outcome will be.  Because the parties have desired to deal with that issue first as a result of its consequences, I consider that the holiday approach taken by the husband is as problematic as is the wife’s approach of returning and establishing herself in Canada.  The case therefore is finely balanced.  Little comfort can be drawn by either party or indeed the Court from the evidence of the single expert witness.

20. There is little prospect of the relationship between the parties improving particularly whilst the criminal proceedings are pending.  The antipathy between the parties is palpable.  It seems to extend beyond the parties themselves.  One simple example is the evidence of the wife in relation to some photographs that she found torn up on the front doorstep of the husband’s home when she took the child there.  She said she was quite distressed by what she saw and she photographed the evidence which shows her wedding photo torn in half along with other photographs of a personal nature.  The husband’s response seemed oddly inconsistent with that of a person concerned for the welfare of his child who was to be handed over at that particular spot.  To simply deny the allegation saying that it was just the cleaner putting out the rubbish seems glib.  An apology for the fact that it was not more delicately done might have been more appropriate.  The husband’s position was simply to deny that the wife was being harassed which was the inference that I suspect the wife would have the Court draw.  In my view, if it was accidental, knowing that the child was about to be handed over to the husband, the rubbish concept was insensitive and it is that issue that the husband seems to have ignored.

21. The wife also relied upon the evidence of her mother but it did not advance things.  The maternal grandmother said that while she had concerns about the relationship, it was only well after the events that her daughter told her of the serious violence problems.  The maternal grandmother indicated that she would provide the wife with emotional support as well as very significant financial support but that she could not stay in Australia indefinitely because of other commitments.  That evidence is unsurprising and not particularly helpful in this interim dispute.

22. The wife also relied on an affidavit by Ms D filed in May 2013 which was really more directed to the longer term position of whether or not the parties were going to be living in Australia as a permanent arrangement.  The other matters do not assist me in this interim determination.

23. Ms E is an acquaintance of the wife whose affidavit was filed in May 2014.  In July 2013, she attended a social function and sat across the table from the husband’s step-father whose conversation was interpreted by the witness as being in relation to the wife and her family.  The conversation if understood correctly, was hardly complimentary of the wife but again, this evidence does not assist me in this interim determination. 

24. I have already referred to the evidence of Dr W.  His evidence showed that neither party had any psychiatric disorder but that was very much qualified by his view as earlier indicated depending upon the findings of fact.

25. In this very limited hearing, the competing proposals of the parties are very clear.  Each proposal takes into account some gap in time between visits.  Even the husband’s proposal that the wife spend time at the end of 2014 and early 2015 in Canada where he will presumably be present because of his criminal trial obligations, would still have left the wife caring for the child with the most significant period of time depending upon what arrangements the parties make between themselves.  Just how those arrangements will work and what overnight time will be successful, remains to be seen because even Dr C was uncertain as to how the child would cope.  To change the overnight arrangements and then change the environment to Canada seems to me to be also fraught with some difficulty.

26. The issue for determination therefore is very limited.  Should the relocation arrangement now be put in place with an assumption that the whole thing needs to be reviewed as soon as possible after the criminal trial or should there be an ongoing fluctuating arrangement depending upon when the criminal trial occurs?

27. The facts upon which the Court can make a determination are that the wife has been the major carer of the child.  The time during which the parties lived in Australia up until when separation occurred was extremely limited.  The wife may have friends in Australia but there are limitations upon the use to which those friendships can be put.  The wife has the bulk of her family who are significantly involved in her religious culture in Canada.  I can therefore confidently find that the major support systems for the wife are in Canada.  The wife’s evidence about her relationship with the husband and more importantly his extended family here in Australia would indicate that there is little support now that the relationship has come to an end.  Indeed, there is antipathy.

28. It is significant in my view that there is no evidence from the single expert witness about the child’s cognitive developments relating to her understanding of her environment and her adaptation to change.  There is little doubt that the relationship between the child and the husband has made significant advances but I am not sure that I can conclude from Dr C’s evidence that it will be significantly damaged between now and January 2015 by the wife moving back to Canada if the husband makes a visit back there prior to his criminal trial in December.  Nothing in the evidence indicates an incapacity on the parties to travel and the wife’s mother indicated that she could ensure the wife is adequately financed.  As earlier indicated, the wife knows that the hearing is to take place in Australia and she has an obligation to return and if she does not, then the consequences are self-evident.

29. The parties have agreed on an arrangement which has been very successful and the evidence of Dr C suggests that gaps are no longer going to damage that progress.  The husband seems to have similar confidence because he agreed for the wife to be away for five weeks.

30. Thus, this is very much a balancing of the various proposals.

31. Before turning to the matters in s 60CC of the Act, the pathway requires the Court to consider s 61DA. That requires the Court to apply a presumption about parental responsibility. Because of the difficulties in making any findings of any substance, it should not be applied here because of the interim nature of the hearing and the paucity of the evidence.

32. Section 60CC sets out a series of mandatory considerations. The primary considerations are set out in s 60CC(2). They are to consider the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm, from abuse, neglect or family violence. On the evidence, no determination can be made about the latter issues. In respect of the meaningful relationship, Dr C’s evidence would suggest that there is currently a very strong relationship between the husband and the child but the importance of that is that there is a capacity to continue into overnights as well as gaps of some substance. The additional considerations in s 60CC must also be considered.

33. The child is too young to have a view about what should happen to her.  Her views about the place she should live are therefore not relevant.

34. Questions of parental capacity, parental responsibility and family violence are all interlinked in this case.  The husband has an application before the Court that the child live with him.  It was not suggested that (on an interim basis) the current arrangement about the wife having the primary responsibilities for the child should be altered.  The parents cannot make decisions together and although counsel for the husband criticised the wife for the unilateral action in relation to the nursery in Canada, that evidence too needs to be tested as to exactly what the wife was doing.

35. The issues of financial support are very much disputed.  No findings of fact can be made in relation to them.

36. The nature of the child’s relationship with each of the parents might be open to argument but I do have evidence which on its face appears to be in conflict.  It is conceivable that it is not.  The husband’s evidence is that the child is well settled in his household and he has no difficulties caring for her.  His affidavit says little about routine and how he manages the child bearing in mind that he is living in his family’s home.  The wife said that there were difficulties after the child’s time with the husband but she too did not elaborate significantly.  The inference I have drawn from all of that evidence is that despite the problems that may very well be occurring in the wife’s household after the contact visits, the transition on the next occasion is uncontroversial.  The wife gave evidence specifically about the fact that when she attended at the front door of the husband’s home and the child heard his voice, she ran to him.  The nature of the child’s relationship is therefore different with each parent. 

37. On the evidence, I can conclude that it is the wife who is taking the major responsibilities at the moment and that the husband is still developing his time.

1. The fundamental point to be considered in s 60CC is the impact on the child of any orders that might be made. Dr C’s evidence still seems very much guesswork. Because I do not know what arrangements the husband would make to travel prior to his trial, nor what the wife would do to travel if the husband was unable to go, the evidence leaves a vacuum if I accept Dr C’s view that the maximum contact gap is between six weeks and two months before damage is being done to the relationship between the child and the husband. That tips the balance in favour of the husband’s proposal but that is on the assumption that the trial of the criminal matter starts in December and is completed fairly quickly thereafter. If it was not, I would reconsider the position entirely and ask Dr C to be more precise as to what the impact would be by the end of 2014 if the child did go to live with the wife in Canada and the gaps were longer than two months. That certainly seems to have been within Dr C’s contemplation because she suggested that there be a further report in 2015. It may be that it has to be brought forward more quickly and with much more focus on the issue of the impact of the various scenarios.

2. On the evidence before me therefore I find that it is in the best interests of the child that the husband’s proposal be accepted in terms of the time gaps but I see no reason why the wife should not be allowed to immediately return to Canada and then the overnight extensions can be contemplated upon her return.  This first hearing date before a judge has been fixed in a few weeks time and it seems important that the wife be at that hearing so that these issues can be canvassed.  It therefore makes sense for the wife to leave now notwithstanding that the husband was contemplating (and the wife had agreed) to a build-up of time virtually straight away.

3. Orders are therefore as set out at the start of these reasons.

I certify that the preceding Seventy Two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 July 2014.

Associate: 

Date:  2 July 2014