CLARK & MCCALL - [2011] FamCAFC 194

FAMILY COURT OF AUSTRALIA

CLARK & MCCALL

[2011] FamCAFC 194

FAMILY LAW – APPEAL – CHILDREN – with whom a child should live – appeal against orders made by a Federal Magistrate that provided for the child to live with the father in Australia once the mother moved to Canada – where the Full Court found that the Federal Magistrate’s decision was within the proper exercise of his discretion – no appealable error established – appeal dismissed.

FAMILY LAW – COSTS – no order for costs in relation to the appeal.

Family Law Act 1975 (Cth)

Bennett v Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Lovell v Lovell (1950) 81 CLR 513
Robertson & Sento [2009] FamCAFC 49
U v U (2002) 211 CLR 238

APPELLANT:

Ms Clark

RESPONDENT:

Mr McCall

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

4776

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

27 September 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May & Austin JJ

HEARING DATE:

11 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2010

LOWER COURT MNC:

[2010] FMCAfam 1443

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Carew

SOLICITOR FOR THE APPELLANT:

D A Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Cooper, Cooper Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal is dismissed.
There be no order for costs in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 4 of 2011
File Number: BRC 4776 of 2007

Ms Clark

Appellant

And

Mr McCall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 23 December 2010 Riethmuller FM pronounced parenting orders affecting the child of the appellant mother and respondent father. Essentially, the orders reversed the child’s residence, causing the child to live with the father rather than the mother.
That change was of some moment, given the mother’s expressed intention to live with her new husband in Canada, leaving the Court with a stark choice between ordering the child to live with the mother in Canada or with the father in Australia.
The mother appealed against all of the Court’s orders, contending various errors of law and fact vitiated the Court’s determination. The respondent father and the Independent Children’s Lawyer opposed the appeal and sought to maintain the Federal Magistrate’s orders.

Short history

The parties commenced a relationship in June 2004 when the mother, whose family of origin are Sri Lankan, was studying in Australia. The father was born in Australia and works in education. The parties separated in December 2005.
During the course of their relationship, the child, G, was born in Australia in April 2005 (“the child”). At the time of judgment the child was aged 5 years. He is now aged 6 years.
The mother and child departed Australia for Dubai in October 2005 to make plans for the parties’ marriage in December 2005. The relationship disintegrated and the marriage plans were abandoned.
The mother and child thereafter lived in Dubai, Sri Lanka, and Canada. Their places of residence were influenced by the maternal grandparents’ place of residence, the mother’s commencement of a relationship with her current husband in early 2008 and subsequent marriage to him in Sri Lanka in January 2009, and the loss of her employment in Dubai in April 2009. The mother relocated with the child from Dubai to live with her husband in Canada in April 2009.
After the parties’ relationship ended in late 2005, parenting proceedings were instituted by the father in the Federal Magistrates Court of Australia in April 2007, and in December 2007 the Court made orders providing for the child to live with the mother in Dubai.
The father appealed against those orders, but the appeal was not determined until May 2009, by which time the mother and child were in Canada. The appeal was successful and the dispute was remitted for re-hearing.
Pending such re-hearing, the Court made fresh interim parenting orders in August 2009, which provided for the child to spend time with the father in Australia, commencing in September 2009. Further interim orders were made in October 2009 providing for the child to spend time with the father in Australia in early November 2009.
The interim orders were not faithfully implemented and so the father travelled to Canada in November 2009 to enforce the orders. His efforts resulted in the return of the child with him to Australia from Canada in November 2009. The mother and her husband also travelled to Australia at that time.
The fresh trial was conducted before the Court in late November 2009, but further evidence was taken in July 2010 following the mother’s successful application to re-open her case to address the issue of her entitlement to reside in Canada. Submissions were completed in September 2010 and the Federal Magistrate pronounced orders and delivered reasons on 23 December 2010. (His Honour’s orders are more fully explained later in paragraphs 26 to 27 of these reasons.)
The mother and child remained living in Australia from November 2009 until the judgment was delivered in December 2010, since which time the child has lived with the father. We were informed, as an agreed fact, the mother made good on her promise to depart for Canada some time shortly after the judgment.
The mother’s appeal against the Federal Magistrate’s orders was filed on 20 January 2011 and subsequently amended on 1 July 2011.

Reasons of the federal magistrate

The Federal Magistrate correctly recited the law to be applied and the reasoning process to be followed in determining proper parenting orders for the child.
His Honour noted at paragraphs 18 to 19 and again at paragraphs 240 to 241 of his reasons, the reasons why the parties should be allocated equal parental responsibility for the child, which order is not the subject of criticism, although still formally the subject of appeal.
It became readily apparent from the parenting proposals of the parties and the Independent Children’s Lawyer that the central issue for determination was whether the child would be required to live with the mother in Canada or with the father in Australia, although his Honour realised that was not the only issue to consider.
The Federal Magistrate decided the central issue would be heavily influenced by his findings about two conflicting considerations – being the mother’s inability to place the child’s needs for preservation of a meaningful relationship with the father above her own needs, on the one hand, and on the other, the emotional harm that might be caused to the child by removing his residence from the mother, with whom he had the primary attachment, to live with the father.
It was accepted as a fact by his Honour at paragraph 184 of his reasons that the child was primarily attached to the mother. His Honour heeded and carefully evaluated the evidence of the Family Consultant concerning the child’s primary attachment to the mother and the effects upon the child of changing his residence from the mother to the father. In particular, his Honour accepted the evidence of the Family Consultant in relation to the following:
a)The child coping adequately with an arrangement under which he would live with the father and spend time with the mother periodically and communicate with her by webcam (paragraph 67);
b)The child having the potential to adjust and “move forward very well, no matter who he lives with” (paragraph 69);
c)The need to balance very carefully considerations of the child’s primary attachment and the “risk indicators for pathological development” related to loss of his relationship with the father (paragraph 69);
d)The child being “fine wherever he is” (paragraph 69);
e)The child not having “long-term functionality issues if he lives with dad” (paragraph 69);
f)The risk to the child of emotional disturbance in his teenage years if he is deprived of a relationship with the father (paragraph 69); and
g)The concern regarding the “mum’s capacity to truly embrace dad as really significant to [the child]” (paragraph 71).
His Honour reached a conclusion that the mother would not promote the child’s relationship with the father. The extent to which his Honour was convinced of the fact could hardly be doubted, because it was repeatedly expressed in the following paragraphs from his reasons for judgment:
145.… the mother will, at best, do nothing more than meet the minimum level of technical compliance with orders, and then only if that is necessary to avoid further intervention … At worst she will attempt to thwart the orders if they do not suit her …
…
193. I am not persuaded that the mother will actively foster and facilitate relationships with the father or his family …
194.I find that the mother does not accept the importance of the father’s role in the child’s life and would prefer him to drop out of her and [the child’s] life.
…
209.… I am not persuaded that the mother will do more than the minimum to comply with the words of the orders (sufficiently to avoid contravention proceedings). On balance I have formed the view that she will subtly undermine the father’s parenting authority, importance, and relevance in [the child’s] eyes …
Ultimately, there were a number of reasons for that conclusion. The more important of the reasons included the mother’s request of the father to stay out of the lives of herself and the child, her deliberate omission of paternity details from the child’s birth certificate, her causing international relocations with the child without the knowledge of the father, even in breach of existing parenting orders, designed to minimise interaction between the child and father, and her permitting the child to refer to her husband in lieu of the father by the epithet “Dada”, which confused the child about his paternity and undermined the father’s role in the child’s life.
The Federal Magistrate also found at paragraph 126 of his reasons that the mother failed to recognise the adverse implications her conduct held for the child’s life. The mother’s lack of insight into the importance of the child’s relationship with the father weighed particularly heavily in his Honour’s mind.
Unlike his perception of the Family Consultant’s opinion, his Honour was unconvinced the mother would comply with orders of the Court if the child lived with her in Canada (at paragraph 226). His Honour was also unconvinced the father, through his own efforts, would be able to ensure that the child’s relationship with him survived in those circumstances (at paragraph 210).
Given the conclusion that the child would probably lose his relationship with the father if he lived with the mother in Canada, the Federal Magistrate carefully considered the countervailing consideration of how the child would adjust to a parenting arrangement under which he lived with the father in Australia. His Honour was satisfied (at paragraph 224) that the father would handle that change for the child “in an adept and caring way”. He specifically noted (at paragraph 86) the mother’s submission that the father was untested in the role of primary carer for the child, but rejected the mother’s concerns on the evidence, finding (at paragraph 88) that the father was able to fulfil that role.
The Federal Magistrate determined, (at paragraph 256) that the child should live with the father in Australia, as that was the only way the child would likely retain his meaningful relationships with both parents.
Consonant with his reasons, his Honour made orders to the following effect:
a)All former parenting orders were discharged upon the mother moving to Canada (Order 1);
b)The parties have equal shared parental responsibility for the child (Orders 2 and 14);
c)Upon the mother moving to Canada, the child live with the father (Order 3(a)), and spend time with the mother during school holiday periods (Order 3(b)), with provision made for changeovers (Order 6);
d)Whilst living with the father the child would communicate regularly with the mother via audio/visual internet connection (Order 3(c)), and when spending time with the mother the child would communicate regularly with the father by telephone (Order 4).
His Honour also made a series of restrictive and mandatory injunctions (Orders 5, 7, 8, 9, 10, 11, 12, and 13). Although none of those orders were the subject of specific complaint, they were still the subject of appeal.
There are some slight, but ultimately immaterial, differences between the orders pronounced by the Federal Magistrate and the orders in their engrossed form. The parties and Independent Children’s Lawyer all understood that the latter orders were the orders by which they were bound. We were informed the changes in both syntax and format to the original orders were made when it was confirmed to his Honour after the delivery of judgment that the mother was then still residing in Australia but still intended returning to Canada. No issue was taken about the changes made to the orders.
The orders made by the Court were consistent with the orders proposed by both the father and the Independent Children’s Lawyer. Clearly, they were not the orders proposed by the mother.

Grounds of appeal

The mother articulated some 10 grounds of appeal in her Amended Notice of Appeal. None were abandoned and all were argued sequentially, which is the manner in which they are now considered.

Ground 1

This ground asserted:
The Federal Magistrate erred in failing to give sufficient weight to the impact on the child of breaching the child’s primary attachment to his mother.
It was submitted, correctly by the mother’s counsel, that the evidence revealed the primary attachment of the child was to the mother. It was then submitted that this primary attachment for a child of a young age is of such significance that this factor must “trump” all others (mother’s written submissions, paragraphs 21 to 30).
In support of the argument, counsel for the mother referred to various parts of the evidence given by the two Family Consultants appointed in the litigation – Ms W and Ms L.
The opinion of Ms W that a change of residency would “almost certainly be a traumatic situation for [the child]” was expressed in paragraph 95 of her report prepared on 11 October 2009, at which time she had seen neither the mother nor the child, and which was acknowledged by her at paragraphs 12, 73 and 74 to be a “severe limitation” upon the validity of her report. Ms W expressly noted in her report:
100.The question that needs to be considered is ‘what impact would such a move [the mooted change of residence from mother to father] have upon [the mother], and then consequently, upon [the child]’. The writer is unable to comment upon this question at this time, and would need first to make a full family assessment, including the mother, [the child] and his step father …”. (original emphasis)
Ms W was not cross examined and having regard to the self-imposed caveat upon her opinions, her evidence does not assist the mother’s appeal.
Ms L prepared two reports, dated 23 November 2009 and 18 July 2010, upon which evidence she was cross examined. The Federal Magistrate generally accepted her evidence (at paragraph 64 of his reasons).
The portions of Ms L’s evidence relied upon by the mother to support this ground collectively refer to the child’s primary attachment to the mother and the anxiety the child could suffer through separation from her.
However, reliance upon selected portions of the evidence would be unwise because there were other aspects of the evidence given by Ms L which cast a different light upon the dilemma confronted by the Court.
For example, evidence was given by Ms L in her reports about the father responding to the child in a consistently positive way, the settlement and happiness of the child in the company of the father, the spontaneous affection shown by the child to the father, the child’s level of attachment with the father, her concern about the mother’s exclusion of the father from the child’s life if the child was to live overseas with the mother, and her conclusion that “[the child] could live with either party and cope with block time with the other; providing this was consistent and managed well” (Family Report, 18 July 2010, paragraph 8.18). That ultimate conclusion was expressed in full knowledge of the mother’s stated intention to relocate to Canada irrespective of the outcome of the proceedings, and was an opinion expressly accepted by his Honour at paragraphs 64 to 65 of his reasons.
The oral evidence given by Ms L in cross examination, quoted and relied upon by his Honour in his reasons at paragraphs 64 to 71, tended to confirm and elaborate the contents of her reports.
Ms L was alive to the principal issues, being the child’s primary attachment to the mother and the prospect the mother would impede the retention of a meaningful relationship between the child and father.
In cross examination, Ms L keenly agreed they were the key issues in the case, necessitating a balance of the confidence one could have in the mother supporting the relationship between the child and father if the child lived with the mother against the disruption of the child’s primary attachment to the mother if the child lived with the father.
On that precise issue, the following evidence emerges from the cross examination of Ms L:
a)“[H]e [the child] is attached to both of them now and they’re both significant. But obviously his primary attachment is with mum, there’s no dispute about that. But he is at an age now where that is not as significant as it has been in the last five years” (Transcript, 29 July 2010, p 93);
b)In response to a question about whether the child’s primary attachment with the mother would “sway the day” in the face of a conclusion being reached by the Court that both parents would “do an equally good job at being supportive of the child’s relationship with the other”, Ms L candidly said “Yes” (Transcript, 29 July 2010, p 93); and
c)When speaking of the prospect of the child’s exposure to parental conflict and the lack of continuity in his parental arrangements if he were to remain living with the mother, Ms L said:
... the risks that that propose to him are greater than his disruption at age five from the primary attachment, providing he has consistent relationship and communication in time [sic]. In terms of long term potential damage, the conflict and the disruption will do greater damage than the disruption of the primary attachment. (Transcript, 29 July 2010, p 94)
It was plainly the Family Consultant’s opinion that, if the mother was as likely as the father to support the child’s relationship with the other parent, then the child’s primary attachment with the mother would justify the retention of his residence with her. However, in the event of the mother’s failure to abide orders and promote the child’s relationship with the father, the child’s emotional stability was more threatened if he remained living with the mother than if he lived with the father.
Ms L also poignantly observed at the conclusion of her second report at paragraph 8.21 that the success of a parenting regime under which the child lived with one party and spent time with the other “will be influenced by the determination of the mother’s commitment and capacity to embrace the father in [the child’s] life”. The Court ultimately formed an adverse view about such commitment and capacity on the part of the mother.

A balanced appraisal of Ms L’s evidence leads to a conclusion that she was open-minded about whether the child lived with the mother in Canada or with the father in Australia, and perhaps even favoured the latter option. She clearly contemplated that the Court should determine the issue of the mother’s likely compliance with Court orders. It could not persuasively be said that her evidence favoured retention of the child’s residence with the mother.
The mother’s counsel submitted that the Federal Magistrate erroneously elevated the “potential harm” of the child’s future loss of a relationship with the father as a more important consideration than the “immediate harm” of the child’s loss of primary attachment to the mother. The following portions of his Honour’s reasons were germane to that submission:
70.In summary, it appears that there is a very low risk of [the child] developing a pathology, regardless of which parent he lives with, although the impacts upon him of not having a good relationship with the father are serious, particularly in the longer term, and the potential loss of the opportunity to live with his mother significant. Both parents appear able to provide for all of the basic parenting needs.
…
214.In this case I have noted the relatively young age of the child. I also note that for his whole life his mother has been his primary carer. There is no doubt that any change of primary carer would cause a significant sense of loss or grief to the child.
…
253.Ultimately, whilst the relevant considerations in this case cover a large range of factors, the central issue is largely a balance between the immediate harm, and possible long term harm of changing the child’s resident parent from the mother to the father and the potential long term harm of the child’s relationship with the father not developing appropriately in the future due to the attitude and conduct of the mother, if the child were to remain in her care as a result of a relocation to Canada.
In general terms, it is a necessary implication from the outcome that the prospective future harm prevailed over the immediate harm, but the conclusion was not so simply reached. The decision involved a balance of the two conflicting considerations.
His Honour was conscious that the child’s loss of his relationship with the father if he remained living with the mother in Canada was conjectural. Although his Honour referred to the prospect as “possible” and “potential”, the repercussions of the risk were regarded as “serious” (see paragraphs 70 and 253 of the reasons for judgment). It is trite to observe that a slight risk of serious harm may be more worrying than a substantial chance of slight harm. As to the competing harm suffered through removal from his primary carer, no doubt his Honour was also conscious of the Family Consultant’s evidence that, although the child would be disturbed by removal from the mother, his primary attachment to her was not now so significant.
The Court’s decision about the reversal of the child’s residence was one that was well supported by the Family Consultant’s evidence. Describing the reversal of the child’s residence as a “breach” of the child’s primary attachment to the mother does not lend any more weight to the mother’s appeal. His Honour was acutely aware of the child’s primary attachment to the mother, since he accepted the evidence of Ms L on that issue and weighed that consideration in his determination.
The mother’s submissions fall short of establishing that the weight attributed by the Federal Magistrate to that consideration was so deficient as to amount to a wrongful exercise of discretion by his Honour (see Lovell v Lovell (1950) 81 CLR 513 at 533).
This ground of appeal fails.

Ground 1A

This ground asserted:
The Federal Magistrate erred in finding “that the father has a good relationship with the child says more about his ability to foster that relationship and the capacity of the child than anything about the mother”.
In support of this submission the mother relied upon her own evidence and the evidence given by Ms L.
The mother’s counsel referred to Ms L’s confirmation in cross examination that the child was “extremely bonded” to the father, but that comment was made in November 2009 and only in response to the mother’s apparently incongruous assertion that “dad hasn’t kept in touch [with the child] much in between visits [with the child]” (Transcript, 26 November 2009, p 81).
Ms L later agreed with the question posed to her by the mother’s counsel in cross examination that the child “currently has a good bond” with the father, and volunteered for that to be the case “there’s obviously been facilitation [by the mother] of that bond”. Ms L also agreed with the proposition that the development of a strong bond between the child and father could not have occurred but for the mother “making some positive approach to [the child] having a relationship with his father” (see Transcript, 26 November 2009, p 83-88).
The mother’s counsel also drew attention to the father’s admissions to the Federal Magistrate (in paragraphs 17 and 19(b) of his written submissions, dated 2 December 2010) that the bond between him and the child “has been given some degree of support by the mother”, and that the child was “well-adjusted” who had been raised by the mother “very well thus far”. Although not mentioned by the mother’s counsel in submissions, the father also importantly submitted to his Honour in paragraph 17 of those submissions that “[a]spects of [the mother’s] (un)willingness to foster a relationship between [the child] and the father are criticised”.
For her part, the mother adduced evidence in her affidavit filed on 3 October 2007 of the efforts she made to facilitate the child’s relationship with the father up until that time. Her efforts were generally confined to speaking positively of the father to the child and her retention of photographs of the father on her home computer. Curiously, the mother made no reference to similar or other efforts on her part to promote the child’s relationship with the father in evidence filed by her more recently than 2007.
The facts revealed at trial overwhelmed both the mother’s historical evidence and the isolated quotes attributed to the Family Consultant.
The Federal Magistrate catalogued a range of examples which clearly demonstrated the mother’s unwillingness or incapacity to promote the retention of a meaningful relationship between the child and the father, which included the mother deliberately omitting the child’s paternity details on his birth certificate, directing the father to stay out of the lives of she and the child, relocating internationally with the child without notice to the father, permitting the child to refer to her husband rather than the father as “Dada”, and altering the surname used by the child without notice to the father.
The mother relocated with the child from Dubai to Sri Lanka in July 2006 and then obtained a Sri Lankan birth certificate for the child in September 2006, which omitted identifying paternity details. The mother admitted in cross examination that she did not tell the father of her intention to procure a Sri Lankan birth certificate at that time. Her explanation for omission of the father’s paternity details was that she was advised to do so, because the parties were not married and the father was not Sri Lankan. However, the mother also asserted she lodged the child’s Australian birth certificate with the application for the Sri Lankan birth certificate (see Transcript, 26 November 2009, p 22).
The only suggested reason for the need to hold a Sri Lankan birth certificate for the child was the proof it afforded of his Sri Lankan citizenship. During the trial in November 2009 the mother conceded there was no evidence before the Court of the child’s entitlement to live permanently in Sri Lanka (Transcript, 25 November 2009, p 47), but upon resumption of the trial the following day the Court was informed of the existence of the birth certificate and the Sri Lankan passport the mother had obtained for the child (see Transcript, 26 November 2009, p 2-19).
Although the mother explained she obtained the Sri Lankan passport only as a consequence of the father’s temporary retention of the child’s Australian passport in April 2007, that reason is difficult to reconcile with her procurement of the child’s Sri Lankan birth certificate to establish Sri Lankan citizenship long before in September 2006, at a time when she was already in possession of the child’s Australian passport.
The mother was impelled to concede that the Sri Lankan passport she procured for the child disclosed his surname as “Clark” rather than “McCall”, as did the certificate the mother obtained for the child under the Sri Lankan Citizenship Act. The change of the child’s surname on his Sri Lankan passport and citizenship document was consistent with the father noticing in December 2008 the child’s use of the mother’s surname in preference to the father’s surname, and the child’s confusion when corrected by the father. As noted by his Honour at paragraphs 157 to 158 of his reasons, such a name change could only have occurred at the direction or with the acquiescence of the mother.
Although the mother’s counsel submitted on appeal that her evidence at trial cured or precluded the adverse inference drawn by the Federal Magistrate about the circumstances of the mother’s procurement of the birth certificate and passport, such submission ignores the fact that the mother’s evidence was uncorroborated and found unpersuasive by the Court. His Honour expressly stated and explained the lack of confidence in the accuracy of the mother’s evidence.
The mother’s procurement of the child’s Sri Lankan passport in September 2006 occurred contemporaneously with her realisation that the parties would not reconcile and telling the father in an email dated 26 September 2006:
I can take care of [the child] on my own. He’ll be my responsibility, so please stay out of our lives. When he is of age, he may come and see you. Till then, please leave us alone.
The contemporaneity of the mother’s realisation that the parties’ relationship was irretrievable, her relocation with the child from Dubai to Sri Lanka in the company of the maternal grandparents, her procurement of the child’s Sri Lankan birth certificate omitting paternity details, and her request of the father to stay out of their lives were striking features of the case. Those events all occurred in the period between July and September 2006.
The mother conceded that the father commenced proceedings under the Hague Convention in August 2006 for recovery of the child but, because she was not then restrained, she returned to Dubai with the child in January 2007. Her move back to Dubai was facilitated by relatives and government officials and was achieved without notice to the father. Thereafter, the mother frequently travelled internationally with the child to Oman, Sri Lanka, and India until she acquired in mid 2007 a visa permitting her stay in Dubai for three years. The Federal Magistrate found at paragraph 112 of his reasons that the mother “did not always advise the father of her travel at an appropriate time”. The accuracy of that finding was really incontrovertible.
The father commenced proceedings in the Federal Magistrates Court in April 2007. Although the Federal Magistrate found at paragraph 111 of his reasons that the mother initially did not intend to return to Australia with the child for trial, she did subsequently submit to the jurisdiction and attend the trial, which resulted in orders being made in December 2007, providing for the child to live with her in Dubai and for the child to spend time with the father in Dubai.
His Honour was generally critical of the mother’s attitude to the implementation of those orders. The mother’s counsel contended in this appeal that the mother’s perception about the traumatic implementation of those orders was reasonable and that the Federal Magistrate unfairly failed to accept her evidence on that issue. Even if that is so, the mother took no issue with his Honour’s finding (at paragraph 122 of his reasons) that she unilaterally decided in April 2009 the child was not ready for the amount of time due to be spent with the father under the orders, and did not therefore implement them.
It was in April 2009 that the mother moved with the child to Canada to live with her husband, whom she had married in Sri Lanka only a few months before. The mother alleged in cross examination that the child was not up to coping with “long overnights” with the father in Canada. (Transcript, 26 November 2009, p 60-61)
It is common ground the mother informed the father of her marriage only after it occurred and solicited the father’s consent for her and the child to move to Canada, which consent the father refused. The mother moved with the child to Canada irrespective and told the father of the relocation afterwards. The mother then advised the father of her intention to seek variation of the orders made in December 2007 because she was aware the relocation to Canada was in breach of those orders.
The mother’s counsel contended, without dissent, that the child spent time with the father in Canada for six days in July 2009. However, the interim parenting orders made by the Court in August and October 2009 were not the subject of compliance by the mother. That necessitated the father’s enforcement of the orders in Canada and enabled his return to Australia with the child in November 2009 in readiness for the fresh trial that was ordered following conclusion of the successful appeal in May 2009.
The mother’s counsel submitted that the Federal Magistrate took an unreasonably dim view of her non-compliance with the orders made in October 2009 in light of the then prevailing circumstances. After moving to Canada in April 2009 the mother lodged an application for a Canadian permanent residency visa, which application was pending during the remainder of 2009. The mother explained that her departure from Canada to Australia would cause annulment of her visa application, which she was obviously anxious to avoid. Even if the mother’s explanation was wholly reasonable, her decision to remain in Canada undoubtedly did tend to frustrate the parenting orders and compromise the trial date, as his Honour found at paragraphs 135 to 136 of his reasons.
The father admitted he had no issue with the child referring to him by the name “Thathi”, which it was agreed was a Sinhalese word meaning “father”, but the father made it equally plain that he objected to the mother’s husband being referred to as “Daddy” or “Dada” in circumstances where the child became confused as to his paternity as a consequence. That the child did become confused is beyond doubt. Ms L reported at paragraphs 8.10 to 8.14 and 8.50 of her first report prepared on 29 November 2009 that the child did not appreciate that the father was in fact his biological father.
The mother’s husband alleged in cross examination that he and the mother made efforts to eradicate the child’s confusion, inferentially admitting they were aware of it, but their alleged efforts were obviously futile (Transcript, 26 November 2009, p 14). It was not until the child had been living back in Australia for some time having frequent interaction with the father that he came to realise the paternal relationship with the father.
It could not be said that the findings of fact discussed above were erroneous. In light of those permissible findings of fact it was well open to his Honour to find that the existence and retention of a meaningful relationship between the child and father was a testament to the respective capacities of the child and father, rather than that of the mother. The preponderance of evidence supported such a finding.
This ground of appeal fails.

Ground 2

This ground asserted:
The Federal Magistrate erred in circumstances where the trial magistrate found that the mother would comply with court orders and that the father did have a meaningful relationship with the child the decision was clearly wrong.
We take this ground to mean that his Honour’s decision to reverse the child’s residence was clearly wrong, given his Honour’s findings that the child had a meaningful relationship with the father and that the mother would comply with orders requiring her to ensure that the child spent time with the father.
The contention that his Honour’s decision was “clearly wrong” hinges entirely upon the accuracy of the two findings of fact attributed to his Honour. It is necessary to firstly examine the correctness of those findings and then consider whether the ultimate decision really is clearly wrong in the face of such findings.
The mother’s counsel contended his Honour found that “the mother would comply with court orders”, but that is not a completely accurate summation of the Federal Magistrate’s conclusions.
His Honour actually found:
145.… the mother will, at best, do nothing more than meet the minimum level of technical compliance with orders, and then only if that is necessary to avoid further intervention … At worst she will attempt to thwart the orders if they do not suit her …
His Honour was also:
209.… not persuaded that the mother will do more than the minimum to comply with the words of the orders (sufficiently to avoid contravention proceedings) …
It is reasonably clear the Federal Magistrate expected little more than perfunctory adherence to orders by the mother, at best, and possibly even deliberate disobedience if the orders did not suit her.
Even in the face of assumed compliance with the orders, his Honour was satisfied the mother would not faithfully promote the child’s relationship with the father. The mother’s counsel conceded such a finding was made by his Honour because it forms the basis of the following ground of appeal. His Honour expressly concluded at paragraph 209 of his reasons that the mother would subtly undermine the father’s parenting authority, importance, and relevance. It is really immaterial whether that outcome would be achieved intentionally or inadvertently by the mother.
As would be readily apparent, impairment or even destruction of the child’s relationship with the father would eventually result from such conduct by the mother, even if she complied with orders requiring the child to spend time with the father during the course of the deterioration. Accordingly, there is an obvious distinction between mere compliance with court orders and faithful promotion of a child’s relationship with the other parent. The former may be a guide to the latter, but not necessarily so.
The foundation for his Honour’s prediction for the eventual deterioration of the child’s relationship with the father was present from at least two pieces of evidence given by the Family Consultant.
In November 2009 the mother saw a poster in Ms L’s office which evoked discussion between them. The mother frowned and disagreed with the suggestion that a residential parent should encourage a child to embrace “visitation with the other parent” and “provide positive commentary” to the child (Family Report, 29 November 2009, paragraphs 8.26 and 9.29). The mother explained in cross examination that she considered the poster carried some other meaning, implying her comments had been misunderstood, but Ms L rejected the notion of misinterpretation, and so apparently did his Honour (see Transcript, 26 November 2009, p 51 and p 85). The Federal Magistrate made specific mention of that interchange to infer the mother’s lack of insight into why the child would benefit from interaction with the father (reasons for judgment paragraph 218).
Ms L also reported the mother’s comments, made as recently as July 2010, alleging the child “hate[s] going back and forth” and “hates” visiting the father (Family Report, 18 July 2010, paragraph 3.27). It is easy to envisage how the mother, living with the child in Canada, might quickly become discouraged from ensuring the child’s interaction with the father in Australia if she genuinely perceived the child’s opposition to it.

It is undeniably true the child had a meaningful relationship with the father at the time of trial, despite the mother’s reluctance to admit it to the Family Consultant. The evidence proves it, and the mother’s legal representative invited the Family Consultant to confirm the strength of their bond during her cross examination. However, the critical question was whether that relationship would remain the case if the child continued to live with the mother in Canada.
Having regard to the probable unwillingness or incapacity of the mother to promote and retain the child’s relationship with the father, it is really immaterial that the mother might comply with court orders until the relationship corroded or failed. On the findings of fact open to and made by the Federal Magistrate, the determination to make orders reversing the child’s residence was not “clearly wrong”. The determination was certainly open.
This ground of appeal fails.

Ground 2A

This ground asserted:
The Federal Magistrate erred in finding that the [mother] would not facilitate the relationship between the child and the father.
The mother’s counsel described this as the crucial ground of the appeal. She contended the Federal Magistrate’s finding on the issue was against the weight of evidence.
The evidence relied upon by the mother to support this submission is largely that relied upon in support of Grounds 1 and 1A concerning the mother’s alleged support of the bond that exists between the child and father, which has already been addressed as an unbalanced appraisal of the available evidence. In addition to what we said in that context, we make the following further observations.
Although the mother’s counsel submitted at paragraph 37 of her written submissions, that the mother facilitated the child spending time with the father following separation in the period between December 2005 and June 2006, when no orders were in existence, that was at a time when the mother was attempting to persuade the father to reconcile their relationship. When it became obvious to the mother they would not reconcile, she relocated with the child to Sri Lanka in July 2006 without providing contact details to the father, desiring that he no longer be part of their lives.
The mother’s counsel complained that the Federal Magistrate reached erroneous or unfair findings of fact on other issues which had deleterious consequences for the mother’s case. The complaint related, in particular, to the mother’s decision to relocate with the child to Canada rather than Australia in April 2009 when her employment in Dubai terminated, and her desire to change the child’s school enrolment once back in Australia after November 2009.
It is unnecessary to deal with the specific evidence to which the mother’s counsel referred, as it is sufficient to acknowledge the validity of the submission that perhaps his Honour did judge the mother too harshly on the evidence concerning those specific issues. However, the validity of that argument does not sustain the appeal. The mother’s argument related only to the weight of evidence. As the father submitted, the accumulation of evidence on other issues already addressed in these reasons justified the Federal Magistrate’s finding about the mother’s unwillingness or incapacity to facilitate the child’s relationship with the father. His Honour’s finding on that issue was not incongruous, and was consistent with the Independent Children’s Lawyer’s submissions about the evidence.
The final submission of the mother’s counsel (contained in paragraph 40 of her written submissions) was that the mother’s failure to facilitate the relationship between the child and the father, as found by his Honour, was a “dismal failure”, inferentially because of the finding about the strength of the relationship between the child and the father. That may be so, but the failure of the mother’s conduct up until the time of trial to cause deterioration of the child’s relationship with the father is no warrant to conclude that the mother’s past and predicted future conduct are immaterial to the Court’s determination.
The mother acknowledged that the Federal Magistrate found:
234.… When viewing the matter as a whole, it is not a case of [the mother’s] direct alienation of the father, but one of devaluing his role …
As already mentioned, it is really immaterial whether the failure by one parent to promote the child’s relationship with the other parent is deliberate or inadvertent. The same result is apt to occur. Arguably it is more insidious when the conduct is inadvertent, because it may be more difficult for an insightless parent to refrain from unintentional conduct than it would be for a vindictive parent to abstain from turpitude.
It was open on the evidence for the Federal Magistrate to find the mother devalued the father’s role in the child’s life. It is unpersuasive that the mother’s conduct had not yet achieved deterioration of the child’s relationship with the father. That was a potential outcome. In circumstances where there was clear benefit to the child in having a meaningful relationship with the father, those considerations were highly influential under both ss 60CC(2)(a) and 60CC(3)(c) of the Family Law Act 1975 (Cth) (“the Act”) in determining the child’s best interests.
This ground of appeal fails.

Ground 3

This ground asserted:
The Federal Magistrate erred in the event that the trial magistrate was correct in his findings as to the mother’s likely future inability to promote the relationship between the father and the child, an interim order permitting the mother to take the child to Canada should have been made and a review in twelve months.
We take this contention to mean that his Honour ought have made interim parenting orders providing for the child to live with the mother in Canada for a finite period of 12 months to test the mother’s commitment to compliance with orders requiring her to ensure the child spent time with the father over that period.
The prospect of trialling interim orders of that type was raised by the Family Consultant in cross examination, apparently in a flippant way. In any event, the idea was quickly abandoned. The Family Consultant said the only way of being sure about the mother’s commitment to retention of the child’s relationship with the father would be by way of a “longitudinal study”, for which she plainly did not advocate. The Federal Magistrate was clearly against an adjournment of the proceedings on an interim basis and the mother conceded that such a proposal was also opposed by the parties, including herself.
Suffice to say, it does not now sit well for the mother to retrospectively resile from her tactical conduct of the case because she is dissatisfied with the result. She may now regret her decision then to oppose such an outcome, but that is not a proper basis for the Court’s decision to be impugned. Revealingly, the mother’s counsel made no submission other than that adjournment of the proceedings on interim orders for 12 months should have been “considered” by his Honour in light of the Family Consultant’s momentary rumination.
His Honour was not of course bound by the polarised proposals of the parties (see U v U (2002) 211 CLR 238 at 255, 258, 260, 284-285). It was open to make the parenting orders his Honour considered reflected the best interests of the child, even if that did entail trialling interim orders for a period of 12 months.
It may be that his Honour did consider and reject the idea of interim orders. But whether he did or not, a fair appraisal of the circumstances probably did not warrant adjournment of the proceedings on the basis of interim orders. In any event, it could not be fairly said that his Honour’s decision not to take that course was an improper exercise of discretion.
This ground of appeal fails.

Ground 4

This ground asserted:
The Federal Magistrate erred in drawing inferences not available on the evidence.
The Amended Notice of Appeal did not particularise the allegedly unavailable inferences.
In her written submissions, the mother’s counsel referred to only a single inference to which objection was taken, which was his Honour’s statement:
245.… where a parent says that they are desperate to move but will stay if their child cannot move, reflects very positively on the parent and the parent’s capacity to put their child’s needs first.
The Federal Magistrate made that observation in the context of considering orders for “equal time” or “substantial and significant time”, as his Honour was enjoined to do by s 65DAA of the Act following upon his allocation of equal shared parental responsibility.
The mother’s counsel contended that his Honour inferred the mother did not put the child’s needs before her own because of her decision to return to Canada, and further, it was unfair of the Federal Magistrate to do so in circumstances where she was married to a Canadian, who worked in Canada and had no right of residency in Australia, and to whom she was pregnant.
It is plausible that the Federal Magistrate did think adversely of the mother by reason of her insistence upon return to Canada after the trial, even without the child, knowing the child was primarily attached to her. Even so, that would not compromise the Court’s decision.
Firstly, it was beyond doubt the mother expressed an unequivocal intention to return to Canada, with or without the child.
Secondly, her evidence on that issue was accepted as truthful and accurate, and so it was an established fact.
Thirdly, the fact was then relevant and used only to answer the question whether the child could live for “equal” time with both parents or spend “substantial and significant” time with the non-residential parent. Clearly that was impossible if the mother lived in Canada and the father lived in Australia. The mother’s motivations for the decision to return to Canada were quite irrelevant to that issue.
Fourthly, whilst the Federal Magistrate may have thought ill of the mother for her attitude, the mother has not demonstrated that it affected his decision in any way.
This ground of appeal fails.

Ground 5

This ground asserted:
The Federal Magistrate erred in making findings not available on the evidence.
Again, the Amended Notice of Appeal did not particularise the allegedly unavailable findings, which were, however, revealed in the written submissions of the mother’s counsel.
At the outset, it is instructive to observe the difference between findings of fact which are not available and those that are available, even if on a fragile evidential footing.
The first challenged finding was that “the mother could have chosen to live in Australia, and that her husband was likely to have been able to move to Australia if he so desired” (reasons for judgment paragraph 42).
The finding was available because:
a)It was common ground the mother and child both had a right of residence in Australia at the time of trial, even though the mother contended she had valid reasons for preferring Canada; and
b)The evidence about the mother’s husband’s possible international relocation to Dubai and Australia was really limited to the undesirability of his move away from Canada because of the unlikelihood of him obtaining comparable employment. Even though the Federal Magistrate recognised at paragraph 242 of his reasons that the mother’s husband had no existing right of residence in Australia, there was no evidence the husband was precluded from relocating to Australia and applying for residence with the mother and child.
The second challenged finding was that the mother’s emotional issues “were more about not being told what to do, so much as not coping” (reasons for judgment paragraph 92).
The finding was available because, as his Honour correctly observed (at paragraphs 91 to 92 of his reasons), there was no evidence about the cause of the mother’s emotional distress other than that provided by Ms L, and his Honour legitimately accepted her evidence on the point. In any event, the mother’s emotional distress apparently played no part in the Court’s determination about the parenting orders.
The third challenged finding was “[i]f one were to accept that the past is the best guide to the future then there is a real possibility that at some time in the not too distant future [the mother’s] attitude to Canada may be the same as her attitude to Australia” (reasons for judgment paragraph 229).
Indeed, his Honour was speculating, as the mother’s counsel submitted was the case. However, the whole premise of Part VII of the Act is an inquiry into the probable and possible future consequences of making certain parenting orders.
At the relevant point in the judgment, his Honour was assessing, simply as “any other fact or circumstance” pursuant to s 60CC(3)(m) of the Act, the future stability of the child with the mother in Canada against the future stability of the child with the father in Australia (reasons for judgment paragraphs 227 to 230).
His Honour was not bound to find as a probable fact that the mother and the child would thereafter live in settled harmony in Canada with her husband just because the mother said and believed so. His Honour was entitled to consider the recent history of the mother, which entailed frequent movement between Australia, Dubai, Sri Lanka, Oman, India, and Canada, and the fact that the mother’s only connection with Canada was the residence there of her husband and one sibling. His Honour merely foresaw there was a real “possibility” of future upheaval for the child in Canada, and properly recognised the caution that should attend such a consideration, accepting that the mother’s marriage would likely endure.
The fourth challenged finding was the absence of “child focussed stability in the mother’s care”, for which three examples were provided by his Honour at paragraph 212 of his reasons. The observation was made by his Honour in the context of assessment of the mother’s capacity to meet the needs of the child, pursuant to s 60CC(3)(f) of the Act.
We are persuaded by the submissions of the mother’s counsel that the three examples provided by his Honour in the reasons are relatively harsh assessments of the mother’s conduct. Nevertheless, it could not be said that the assessments were not available or open on the evidence.
In any event, neither the conclusion about the absence of “child focussed stability” with the mother, nor the facts said to exemplify it, were considerations shown to have materially influenced the result. When it came time to pronounce the outcome of his Honour’s deliberations, the reasons record:
253.Ultimately, whilst the relevant considerations in this case cover a large range of factors, the central issue is largely a balance between the immediate harm, and possible long term harm of changing the child’s resident parent from the mother to the father and the potential long term harm of the child’s relationship with the father not developing appropriately in the future due to the attitude and conduct of the mother, if the child were to remain in her care as a result of a relocation to Canada.
This ground of appeal fails.

Ground 6

This ground asserted:
The Federal Magistrate erred in taking into account irrelevant matters.
The written submissions of the mother’s counsel at paragraphs 54 to 59 quoted several observations made by the Federal Magistrate in his reasons which were the subject of complaint by the mother. It is unnecessary to consider the quotes individually, since the mother’s counsel conceded the observations merely “leave[s] open the question of what influence such comments had upon the ultimate decision”.
If an appellant asserts reliance by a trial judge upon extraneous or irrelevant considerations, the appellant must do more than identify the extraneous or irrelevant considerations – the appellant must demonstrate that such considerations “really affected the decision” under appeal (per Latham CJ Lovell v Lovell at 519).
By admitting uncertainty as to whether the quoted observations influenced the Federal Magistrate’s decision, the mother necessarily failed to sustain this ground of appeal.

Ground 7

This ground asserted:
The Federal Magistrate erred in failing to take into account relevant matters.
The mother’s counsel’s written submissions contended that the Federal Magistrate gave no consideration to one relevant matter, namely the impact upon the child of being deprived of his relationship with his half-sibling, soon to be born to the mother and her husband.
In fact, his Honour expressly referred to the issue as a consideration under ss 60CC(3)(b) and 60CC(3)(m) of the Act and weighed the cost to the child of growing up apart from his half-sibling. His Honour afforded the matter significant weight, recognising that:
185.… This is a matter that requires careful consideration as sibling bonds usually last a lifetime, not just throughout childhood.
…
231.… Relationships with siblings are always of importance and a significant factor to take into account. That relationship will be fundamentally different if [the child] grows up in a different household, although there is a real likelihood that this could also result with respect to paternal half siblings in the future if he lives in Canada.
There was no more the Federal Magistrate could conceivably have done. His Honour recognised the issue, reposed weight in it as a material consideration, and implicitly factored it into deliberations.
This ground of appeal fails.

Ground 8

This ground asserted:
The Federal Magistrate erred in failing to give adequate reasons.
The mother’s counsel’s written submissions contended the father was an “untested primary carer” about whom the Federal Magistrate was satisfied at paragraph 88 “is entirely able to provide high quality care for [the child] on a full time basis”. Without having developed the argument orally, we infer the mother contended the Federal Magistrate did not adequately explain why a favourable conclusion was reached about the father’s parenting capacity when he was an untested primary carer.
Although it was pointed out the father was in a new relationship and had no children other than the child, the same was true for the mother, being that she was in a new relationship and had no other children (although she was pregnant to her new husband).
His Honour recognised the mother’s assertion the father was an untested primary carer, but that argument was apparently only grounded on an alleged unfamiliarity of the child with the father and the father’s conflicting commitment to full time employment.
As to the first issue, his Honour found at paragraph 189 of his reasons that the relationship between the child and father had developed considerably in the period between November 2009 and July 2010 to the point the child enjoyed a “solid and meaningful relationship with the father”. That finding was not the subject of challenge.
As to the second issue, his Honour commented upon the flexibility of the father’s employment as a university lecturer and the parental support he enjoyed from his spouse, from which it was concluded the father could adequately care for the child (see paragraph 88 of his Honour’s reasons).
Those considerations aside, neither party contended the other was unable to capably provide for the child’s physical or intellectual needs. In its absence as an issue of significance at trial, it is a hollow complaint on appeal to assert the father had never cared for the child whilst he was ill, and that there was no basis to find the father could provide proper care for the child on a full time basis. The Federal Magistrate’s reasons on that issue were brief but sufficient and reflected the relative insignificance of the issue at trial.
Almost the entire focus of the trial was upon the quality of the child’s relationships with the parties and the prospect of those relationships being compromised by the child living in one household or the other. The case was effectively contested over the parties’ capacity to provide for the emotional needs of the child.

On that issue his Honour found at paragraph 190 of his reasons that the father would cater to the child’s emotional needs by facilitating, “in an insightful and fulsome way”, the child’s relationships with the mother and her extended family. That finding was not the subject of challenge either.
By comparison, his Honour found at paragraphs 190, 193 and 194 of his reasons that the mother did not have a parenting capacity comparable to the father’s. Although that finding was challenged by the mother under Grounds 1A, 2A, and 3, the failure of those grounds has already been explained.
The Court’s reasons may explain the orders it makes either expressly or by necessary implication (see Bennett v Bennett (1991) FLC 92-191 at 78,267; Robertson & Sento [2009] FamCAFC 49 at [26]-[27]). There is little doubt his Honour’s reasons in this case explain the orders by a combination of express findings and necessary implications.
This ground of appeal fails.

Conclusion

It is recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are principles underlying the objects of Part VII of the Act (see U v U at 285-286).
There were no allegations of abuse or family violence raised in this case and the Federal Magistrate concluded that the child would likely lose his important, significant, and valuable relationship with the father if he lived with the mother in Canada. The veracity of that conclusion was attacked on appeal, but the reliability of predictions about domestic, marital, and social arrangements are matters upon which minds will inevitably and legitimately differ. The exercise of looking to, and making orders for, the future is peculiarly a discretionary one (see U v U at 262). The ability of this Court on appeal to predict the future with such certainty so as to allow the trial judge’s predictions to be treated as clearly wrong must be very limited (see Gronow v Gronow (1979) 144 CLR 513 at 518).
Conceivably the Federal Magistrate could have reached a decision to retain the child’s residence with the mother, having regard to his primary attachment to her. However, the evidence in parenting cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. For that reason the appellate court must exercise restraint in its intervention (see CDJ v VAJ (1998) 197 CLR 172 at 219, 230-232, 244).
His Honour reached a decision which was well within a proper exercise of discretion on the available evidence and accordingly the appeal must be dismissed.

Costs

In the event of dismissal of the appeal, the father and Independent Children’s Lawyer both sought costs orders against the mother. The mother resisted such orders, proposing there be no order as to costs in that event.
The parties agreed to determination of the question of costs on the strength of their submissions, there being no evidence available to prove the parties’ financial circumstances.
The ordinary principle is that each party to proceedings under the Act should bear his or her own costs, although the Court is entitled to make such orders as to costs that the circumstances justify in accordance with the provisions of s 117 of the Act.
The father and Independent Children’s Lawyer understandably asked for their costs if the appeal was dismissed. In the case of the Independent Children’s Lawyer, it is a requirement that an order for costs be sought.
The mother opposed costs orders on two bases, being her meagre financial circumstances and the merit of her appeal.
It was submitted the mother is unemployed, and has been for some time. It was contended that, whilst she lived in Australia between November 2009 and December 2010 awaiting the trial and judgment, the mother was reliant upon her husband and family for financial support. It was implied the mother would suffer financial hardship should she be ordered to pay costs. The mother was not in receipt of a grant of legal aid and there was no suggestion her solicitor or counsel was acting pro bono publico.
It was also submitted that the mother’s appeal had merit and was not a vexatious attempt to set aside the trial judgment. The mother’s counsel made some sound submissions, but those arguments could not sustain the appeal, which was unsuccessful.
Other than as stated, no other considerations under s 117(2A) of the Act were addressed by the parties.
In view of the nature of the appeal, that some of the grounds were not without some merit, and the mother’s financial circumstances, we conclude that there should be no orders for costs.

I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May & Austin JJ) delivered on 27 September 2011.

Associate:

Date: 27 September 2011