EDDON and EDDON

[2012] FCWA 104

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: EDDON and EDDON [2012] FCWA 104

CORAM: THACKRAY CJ

HEARD: 4 - 7 SEPTEMBER 2012

DELIVERED : 6 NOVEMBER 2012

FILE NO/S: PTW 7107 of 2011

BETWEEN: THOMAS EDDON

Applicant

AND

SANDRA EDDON
Respondent

Catchwords:

CHILDREN – Presumption of equal shared parental responsibility rebutted by family violence - more appropriate for parent “on the ground” to have sole parental responsibility provided the other parent is consulted about major issues.
RELOCATION– Application to remove young child to United Kingdom – desirable for young child to spend some time with father who despite past behaviour has many good qualities and has a good relationship with the child - removal permitted to allow mother to recover her emotional health following an abusive relationship

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Reportable

Representation:

Counsel:

Applicant: Mr S Jones

Respondent: Mr M Nicholls QC

Solicitors:

Applicant: Rattigan Kearney & Bochat

Respondent: Kavanagh Lawyers

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

Champness & Hanson (2009) FLC 93-407

Marsden & Winch (No. 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Mulvaney & Lane (2009) FLC 93-404

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1I am required to determine a dispute between [Sandra Eddon] (“the mother”) and [Thomas Eddon] (“the father”) in relation to their two year old son, [Samuel].

2The mother wishes to relocate to the United Kingdom with Samuel to live near her family, while the father wants Samuel to remain in Western Australia. It is agreed Samuel will primarily live with the mother whether he resides in the UK or in Australia.

Brief background

3The father, aged 36, was born in Western Australia and is an apprentice mechanical fitter. The mother, aged 40, was born in England and is a full-time parent. She has permanent resident status in Australia, but remains a citizen of the UK.

4The mother and father were married in the UK in July 2006. Samuel, who is their only child, was born in February 2010. He has both Australian and British passports.

5The parties last lived together in January 2011 when they were visiting the mother’s family in the UK; however, it was only later in that year, after the father had returned to Australia, that the mother advised of her intention not to resume their relationship.

6Both parents have rental accommodation south of Perth. Samuel lives with the mother and has done so since the separation.

Orders sought by the mother

7The orders sought by the mother were contained in her Papers for the Judge filed on 28 August 2012. She seeks sole parental responsibility and permission to relocate Samuel to the UK within 28 days of the date of the relocation order.

8The mother puts forward a detailed regime for the father to spend time with Samuel, increasing in duration as he matures. She is agreeable to the father’s child support payments being invested in an account to help meet the costs of the travel associated with her proposed contact arrangements.

9The mother sought a variety of other orders, including one involving the making of “mirror orders” in the UK to ensure the contact arrangements are enforceable.

Order sought by the father

10The orders sought by the father were contained in a Minute filed on 29 August 2012. He proposed equal shared parental responsibility and that Samuel live with the mother.

11If the mother’s relocation application is dismissed, the father proposes that Samuel spend time with him around his anticipated “fly-in fly-out” roster. If the roster is two weeks on, two weeks off, then the father wants Samuel to spend 7 days with him during each of his 14 days home. If the roster is three weeks on, three weeks off, then he proposes he have 10 days with Samuel during each of his 21 days home. If he is not working on a fly-in, fly-out basis, he wants Samuel every weekend from 5.00 pm Friday until 5.00 pm Sunday and each Wednesday from 5.00 pm to 7.30 pm.

12If the relocation application succeeds, the father proposes that he spend time with Samuel each year for two periods of two weeks in the UK and two periods of two weeks in Australia. This would be on the basis that the cost of the father’s travel to the UK would be shared equally, but the mother would be required to meet the cost of her travel to Australia. The father also proposes “liberal telephone, email and Skype contact…on at least two occasions each week”.

Credibility

13The mother was a quietly spoken, reserved and mildly anxious witness. She was articulate and seemingly of above average intelligence. Although I considered her affidavit evidence was sometimes overstated, I felt she did not embellish her oral evidence; was honest when she said she could not recall; and tried to give her evidence carefully, particularly in relation to the contentious issues associated with the father’s behaviour.

14Whilst I accept that on a few occasions there was a clear discrepancy in her affidavit evidence (for example confusing the events of 20 and 21 August 2010), overall I found her to be credible. Her physical affect when describing the father’s abusive conduct towards her was congruent with her testimony. She presented as someone who had, in fact, suffered quite severe abuse of the nature she described.

15The father was also well-spoken and seemed of above average intelligence. He presented throughout as a polite and mild mannered man. However, I was not persuaded he was an entirely credible witness. In particular I was not able to accept his evidence about his treatment of the mother or his involvement in Samuel’s care during the small part of the boy’s life in which they lived together. Were it not for the secret recordings to which I will later refer, I am convinced the father would have continued to deny emphatically all of the mother’s allegations about his abuse of her.

Chronology

16The father grew up in Western Australia. His parents separated when he was four years old, but they have remained on amicable terms, and have both since repartnered.

17The father left school in Year 12 to start an apprenticeship as a carpenter. At around the same time, he went to live with his father (who he has since learned is not his biological father). After completing his apprenticeship, the father worked around Australia and in the UK. He has since commenced a second apprenticeship with a view to finding work in the oil and gas industry.

18The mother grew up in the UK in an intact family, which gives every appearance of being harmonious and united. The mother was a happy, confident and athletic young woman, who was described as a “tomboy” when younger. She was also artistic and creative and graduated from university in 1997 with an Honours degree in Art and Design.

19The mother met an Australian in the UK in 2000 and followed him to Australia. Their relationship ended during a visit home to her family, but she elected to return to Australia, where she met the father in Broome in 2004. They commenced living together in October 2004.

20In June 2005, the mother and father travelled to the UK, where they lived with the mother’s parents until March 2007, interspersed with periods of international travel.

21In October 2005, the mother discovered she was pregnant, but had a termination at the father’s insistence. The father proposed to the mother shortly after the termination. They were married in July 2006, with the father attending to most of the wedding arrangements.

22The mother and father arrived back in Australia in May 2007, after spending two months holidaying en route. After a very short stay in Perth, they took up residence in Cairns, where the father’s brother and his wife lived. They remained in Cairns until December 2008, when they had another month long holiday with the mother’s family in the UK.

23They had planned, on their return to Australia, to move to [far north Queensland], where the father’s brother and his wife had moved to take up new work. However, their own work and accommodation plans in far north Queensland fell through and they instead moved to [Mandurah], south of Perth, to live with the father’s mother and her husband.

24In April 2009, the couple moved into their own accommodation in [Forrest Street], Mandurah. Shortly thereafter the mother fell pregnant again, but did not inform the father until late June or early July 2009. Their relationship again deteriorated and the mother went home to the UK to see her parents for a month in October 2009.

25In December 2009, or January 2010, just before the birth of the baby, the mother and father moved into another rental home in Mandurah.

26Samuel was born [in February 2010]. The mother’s parents came out to WA at this time and spent two months with them and the new baby. However, their relationship deteriorated even further after the parents’ departure.

27On 3 September 2010, the mother and Samuel moved out of the home. They stayed with a woman the mother had not previously met. After a week, the mother moved back into the home, but then went on a holiday to the UK with Samuel in November 2010.

28The father joined the mother at her parents’ home in the UK in December 2010, before returning to Australia on 11 January 2011. The mother and Samuel were booked to follow a few weeks later, but failed to do so. After a number of tickets back to WA were cancelled, the mother eventually told the father she was not coming back.

29The father then initiated Hague Convention proceedings to secure Samuel’s return. Those were settled in December 2011, with the mother agreeing to return with Samuel. The mother’s father accompanied them here on 28 December 2011.

30The father initiated the present proceedings on the day the mother arrived back in WA. Interim orders were made on 6 January 2012 for the father to spend supervised time with Samuel on two days a week for four hours. On 20 March 2012, orders were made for the father to have unsupervised time. The visits were extended on 2 May 2012 to include overnight stays. In June 2012, Dr Phil Watts was appointed as the single expert. The matter proceeded to trial in September 2012, and judgment was reserved.

The father’s abuse of the mother

31The mother’s case largely revolves around her claim that the father’s sustained abusive behaviour has transformed her from a strong, confident, independent woman into a “nervous wreck” who needs the support of her family. After late production of secret tape recordings that the mother made after Samuel was born, the father now acknowledges his conduct was “shameful” and says he is “disgusted” by his own behaviour. However, he denies he behaved as badly as the mother describes, partially blames her for his behaviour and does not acknowledge that her emotional condition is as debilitating as she alleges.

32Warning signs about the father’s propensity for abuse emerged early in the relationship. I accept the mother’s evidence that, in October 2004, the father forced her face into a mattress during a holiday at his sister’ home in Port Hedland, the dispute having erupted over who was to control the air-conditioner during the night.

33There was another, alcohol inflamed incident, at a nightclub in Thailand in 2005. The parties gave differing accounts, and it impossible to determine what really happened. I suspect neither gave an entirely accurate story, as both were inebriated. However, it appears the evening only turned ugly when the father became angry when he saw the mother dancing “provocatively” with another man.

34As earlier noted, the mother’s first pregnancy was terminated in 2005. I find this occurred largely as a result of the father’s insistence that the time was not right to have a baby and because of his threat to end their relationship. Although the father says it was a joint decision, he was the driving force, as he wanted financial stability before starting a family. The mother still carries strong feelings of regret about this event.

35There was a further incident during a holiday in Africa in 2006, but again alcohol was involved and I am unable to determine what happened. However, it seems more likely than not that the father had the mother on the ground and pulled her hair during the episode.

36There was another incident on the parties’ wedding night. The father became angry with hotel staff when he found their room had been double booked. He created a scene which caused the mother to become upset.

37I accept the mother’s evidence that, while living in Cairns, the father regularly lost his temper with her, usually when he was drunk – which was likely to have been a regular occurrence. I accept he called her names such as “fucking bitch”, “whore”, “mole” and “cunt’. Although the father denied using these words, the tape recordings suggest he was not telling the truth. I find that the vitriol he directed toward the mother during much of their relationship was of far higher intensity than he was prepared to concede.

38On their return to Australia after their holiday in the US and Canada in May 2007, the father had a falling out with his own family because he believed his brother had been given preferential financial treatment. It is likely the father continued to hold feelings of resentment about this for longer than he now concedes. In fact, despite denials, it is probable this still remains a “sore point”.

39The father returned to Australia after their Christmas 2008 holiday with a strong desire to work in the mining industry, which he thought would give him the secure financial base he craved. When his plans collapsed, he became frustrated and resentful, especially having to return to live with his mother after many years of independence. There also seemed to me much greater tension in the father’s relationship with his mother than he acknowledges, and my impression of the father’s mother was that she may not be easy to live with.

40In any event, there was a marked change in the father’s behaviour at this time. Although he had always drunk too much, he had been hard working and resourceful. However, on his return to WA, he refused to look for work, routinely drank to excess and often stayed in bed until late afternoon. He also often argued with his mother and became even more abusive towards his wife. When coming to bed after a night’s drinking, the father would wake his wife by pushing and shoving and swearing at her. He repeatedly told her to leave and blamed her for them having to live with his mother.

41After the mother and father moved into their own home, the father shared with the mother his negative feelings about his childhood, including his parents’ separation; the confrontations he had with his mother and her second husband, and also about discovering his father was not his biological father.

42Neither party was working when they moved into their rental accommodation in 2009. The father claims he underwent a career change, and says he undertook a variety of courses in 2009. He said the mother’s denials of these claims were “just a nonsense”. The mother said she wished the father would bring some much needed money into the home by using his carpentry skills; however, he stayed at home, becoming a “recluse”, until late April 2010 when he undertook some courses for a few weeks.

43There was no cross-examination of either party about these claims, but it would have been the father who had the certificates that could have thrown light on the issue. I note also that in the tape recording made on 13 March 2010, the father said to the mother:

I want a job in the oil and gas industry. I need to do some courses I don’t know which ones but I just want to do it. OK. That’s what I want to do. In two years time you can’t have a crack at me because I’ve done nothing…OK.

44These remarks, and others in the same recording, provide support for the proposition that the father had done nothing since moving into Forrest Street, nearly a year earlier. I was also inclined to accept that the father said things like, “I won’t get a job to support a child I never wanted” and that he would not seek work until the mother left the relationship. I also accept that the father demanded the mother look for work, both while she was pregnant and after the birth.

45A few months after moving into Forrest Street, when the mother must have been in the early stages of pregnancy, the father locked her out of the house for some hours in the cold. The father said she left the house voluntarily and that the door locked automatically behind her. I doubt the latter part of his account, and I do not accept he then went to bed not realising she could not get back inside. I consider it more likely that he heard and saw the mother pleading to be allowed back in, but he refused. The mother eventually had to break the glass panel.

46I accept that the mother was apprehensive about telling the father when she fell pregnant with Samuel because she feared he would insist on another termination. I also accept that the father was very annoyed when she finally told him. However, as the mother acknowledged, there were times when the father was “positive” about the pregnancy, which he announced with satisfaction and happiness to his family and others. This did not prevent the father from telling the mother in private that she should look for work because she was the one who had got them into their “situation” by becoming pregnant.

47Although the mother greatly enjoyed living in Australia, and saw her future here, she became much more ambivalent during her pregnancy, given the deterioration in the relationship. At one stage during her pregnancy, the father’s niece and nephew came to stay for the night. I accept that the father’s conduct on that occasion was so bad that the nephew, aged 9, said words to the effect, “Uncle [Thomas] please leave Aunty [Sandra] alone”.

48During the mother’s pregnancy, the father’s mother once turned up at Forrest Street very late at night, possibly as late as midnight. She was upset because she had been having little or no contact with the couple (because they didn’t want to see her). She was especially upset because she knew her daughter-in-law was pregnant and she wanted to give her a gift before she (the father’s mother) left for an extended overseas holiday the following morning.

49The mother says her mother-in-law was “heavily intoxicated” and that she refused to leave, instead staying outside the house:

for two hours banging wildly on our doors and windows, and at one point shouted at me words to the effect of “[Sandra] would you treat your own mother like this”. I just sat in the corner of our back bedroom holding my tummy and humming songs as I did not want to put any further stress on my baby.

50The mother claims the father told his mother she was drunk and asked her to leave, but he now denies his mother was “intoxicated at all”. His mother acknowledged in oral evidence that she had consumed two glasses of wine, but said it was low strength and watered down. I find it likely she had drunk much more than she now recalls, which would explain why she would turn up so late at night, without invitation, and then refuse to leave. Even on her own admission, having been denied entry, she then sat in her car for 20 minutes prior to again endeavouring to obtain entry to a home in which she was clearly not welcome.

51The mother says that during this period “it became an almost nightly occurrence of [the father] ranting at me from the sofa, telling me how useless I was, and saying words to the effect of “you got what you wanted” and “why don’t you get a job now””. The father admitted there were occasional “verbal arguments”, but denied “ranting at [the mother] from the sofa or anything of that nature”. This denial came prior to the production of the recordings, which established beyond doubt that the father had engaged in prolonged rants. In his oral evidence, the father had to admit he would “rant on like a complete idiot – a complete fool”.

52The mother also claimed there were at least 10 occasions when the father “would force me into the sexual intercourse even though I made it obvious to him that I was not a willing participant”. The father said he was greatly hurt by this “malicious allegation”, and denied having ever had non-consensual sex. It is impossible to determine the truth, but I accept, given the dynamic, that the mother felt she had made it clear she did not want to have sex, but that the father had probably persuaded himself this was not the case.

53In October 2009, the mother returned to the UK for a month while she was pregnant. She was in doubt whether she should return, especially when the father made clear it was a matter of indifference to him whether she came back or not. However, the mother was still very much in love and craved a happy family life, hoping the father’s attitude would change upon the birth of their child. She returned to Australia and they then moved into a new rental home when she was about eight months pregnant.

54I am satisfied the father was much more supportive of the mother at the time of Samuel’s birth than she now recalls. It is, however, unsurprising that the mother would not recall the detail of what happened during what was a traumatic birth, which ended in an emergency caesarean. I am also satisfied the father gave the impression to others that he was supportive of the mother during her pregnancy. Her incapacity to recognise this was, in my view, likely to have been based on the fact that, when they were alone, he was not as supportive.

55The father’s conduct improved when the mother’s parents stayed with them at the time of Samuel’s birth. The parents liked the father and they got on well together. The mother had not, at this point, told them about the abuse she had been experiencing.

56The father’s behaviour deteriorated after the mother’s parents left. The mother said he “continued to drink, abuse me and swear at me, and did not help with daily chores, such as feeding, changing or bathing [Samuel]”. The father denied not assisting with the chores and denied being abusive. These denials came before the recordings were produced showing that, by not later than 13 March 2010 (i.e. when Samuel was just a few weeks old), the father was abusing the mother, and accusing her of planning to “just fuck off back to England with my son”. I accept the abuse commenced before 13 March 2010, which is why the mother started making the recordings.

57I accept that, on some occasions, the mother was holding Samuel when the father was ranting at her. I also consider it highly probable, given the size and layout of the home, that there would have been many, many occasions when Samuel would have heard the loud tirades against his mother. Notwithstanding his age, this must have been upsetting for the baby.

58The mother moved into a separate bedroom, probably at the time the father started his course at the end of April 2010. She shared the room with Samuel. The father says the mother told him she had moved into another room because she was concerned that his “tossing and turning at night would harm Samuel who was increasingly sleeping in bed with us”. The father says he was “confused and saddened by her decision”. Had the father reflected on how he had been behaving, he may not have been so confused.

59The father claims the mother started restricting his involvement with Samuel in activities such as bathing, feeding and changing (although just a few paragraphs later he described his extensive involvement in the baby’s care). I am not persuaded the father was ever greatly involved in caring for Samuel’s physical needs. I accept, however, that the mother was very protective of the baby, which is not uncommon, and in this case entirely appropriate, given the father was drinking to excess and behaving badly.

60I also accept it was of great concern to the mother that the father would often come into her room at night and wake the baby. I accept the father did not intend to upset Samuel or even wake him, but instead wanted to be with him, hold him and rub his chin on his face – albeit probably in a lachrymose, inebriated state.

61The mother did what she could to protect Samuel from the appalling tension in the home. She took him to regular activities with other children. The father did not accompany Samuel on these activities, save it seems for one visit to the Baby Gym.

62In July 2010, the father threw an Allen key at the mother. He admits he threw the key, but denies it was thrown at the mother and whilst she was holding Samuel. Given the father’s lack of credibility, I was inclined to accept the mother’s assertion. Certainly, the photo provided establishes that the key was thrown with force, leaving a clear indent in the wall.

63On 9 July 2010, the father engaged in another rant, which was captured in one of the recordings. After making derogatory remarks about the mother’s family, whom he described inter alia as “the fucking bleeding heart mob”, the father said to the mother (bearing in mind she was the primary carer of his five month old son):

Fuck off…you’re a fucking idiot [Sandra]…you play these fucking games…well I’m up for it as you can tell I helped my [indistinct] all night long and typical [Sandra] [indistinct]… fucking moods [indistinct] huh… you want to [indistinct] your fucking moods on me [Sandra] you’ll get them back tenfold and you do every night bitch…[indistinct]

…

Get used to it, its only July [Sandra]… this won’t stop til December when your mum comes out again… to let know you only get 2 or 3 months a year… well you know… you will have to put up with another 4 months of shit shit… you wanted it… you wanted this fucking crap… I didn’t ask for it… I didn’t ask for this… no…no fucking way…

….

My life is hell… absolute hell. I’ve had enough… I’ve had a gutful… I really have… I’m gonna start [indistinct]… be happy and positive… and then I will just be able to walk away with my head held high [indistinct] wallow in shit in your life [Sandra]… you can find some bikey fucking bogan down here or Rockingham or go back to England and find a fucking whinging whining pom.. absolutely loving you

64During the course of the quarrel that ensued, the mother asked whether, if she argued with him, the father would throw his beer at her “like last Friday”, to which he responded, without denying this is what had, in fact, occurred.

65There was a further recording of a rant on 20 August 2010, in which the father called the mother a “fucking bitch”, a “stupid mole” and “a fucking loser” who couldn’t “fucking succeed in anything”. He told the mother she was a “carbon copy” of his own sister (who was presumably unaware of his unflattering opinion when she gave evidence on his behalf).

66In the same rant, the father denigrated the mother for her alleged lack of success in life, and the time it had taken her to finish her degree, at a “fucking crap ass university out in the fucking middle of nowhere in fucking tombsville”. In the course of this tirade, the father described the way he might later explain to Samuel his own difficult life which he would contrast with the mother’s “bunch of fucking cherries” upbringing. He said that when he had explained things to Samuel, the boy would be able to say to him:

Dad you had a hard fucking life at that age and the same fucking age mummy was getting nursed along you were putting up with divorce after divorce after fucking suicide attempt after fucking trouble after trouble and you still managed to get a trade and you [indistinct] for fifteen years and now look at you dad have a look at you, you now have a successful career in the mining industry and the oil and gas industry I respect you Dad…what’s he gonna say to Mum?…oh yeah mum thanks for doing my washing I really appreciate you wiping my butt when I was a baby…you know I really want to follow my mum’s footsteps.

67It is now common ground the mother sustained a cut lip on 20 August 2010, the day of this rant. The husband says this was an accident that occurred while they were playing with Samuel. The mother’s version is more likely to be true, namely that the father grabbed her by the chin, said words to the effect of, “look at me you fucking bitch”, and in the process held her face so tightly that her lip was cut. When the mother remonstrated, he replied, “well you shouldn’t have moved your fucking face”.

68On the following day, 21 August 2010, the mother says the father said to her words to the effect, “I know now why fathers kill their children to get back at their wives”. The mother alleges this was said in a “really threatening and menacing way and from this point on I was terrified of what [the father] might do to [Samuel]”. The father denies making any threat, but says he made a comment after seeing a television news story about a man who killed his children. He recalls saying something like, “the man must have been in such a desperate state to commit such an act”, but that he said nothing to condone the murders. The father did not lead any evidence to prove any such story was broadcast that day. Furthermore, the likelihood he made his remark in a threatening way, and not in polite conversation in front of the television, is increased not only by what he said to the mother the previous day (as set out above) but by the fact that on this day, 21 August 2010, he was recorded saying to the mother:

Get the fuck out of this room. I don’t want you here. Fuck off. Go on, fuck off. You evil fucking wench. Die while you’re at it, die, go on fucking die…it’s all the same…die.

69I accept that the mother was genuinely alarmed by the father’s behaviour around this time. She had spoken at length with someone at Legal Aid on 19 August 2010 and then spoke with them twice again on the following day. Whilst she was criticised in cross-examination for having apparently not taken any action following the alleged threat on 21 August 2010, her text message sent to her brother at this time establishes she already had an appointment to see a Legal Aid lawyer early in the following week.

70The mother had also been seeking accommodation in a women’s refuge from as early as 16 August 2010, and was prepared to move into a refuge when a place was offered on 2 September 2010. However, a woman she had befriended found her accommodation with her own mother. I am quite satisfied she would not have left what should have been the security of her home to live in a refuge, or with a stranger, were it not for the fact that she entertained serious concerns about her safety and that of her child.

71I am not in the slightest persuaded that the mother’s actions at this time were part of some grand scheme to secure permission to return to the UK. Nor am I satisfied that her decision to return to the father a week later was any indication she had overreacted. On the contrary, I am satisfied she returned, in part, because the father has promised to reform, but mainly because she was embarrassed to be imposing on the woman who had given her sanctuary, and because she had no family or friends in Australia with whom she could stay.

72The fact the mother’s complaints about the father’s behaviour are not a recent invention is established from many sources, including what she told her doctor on 30 August 2010. It should also be recorded that the Legal Aid lawyer’s notes of her interview on 2 September 2010 were in these terms:

[She] is ready to leave – [other party] has been making threats - …Once she is in a refuge she may consider taking out a VRO…DV has affected son – not feeding well, difficulty settling down properly – [other party] bangs doors – wakes up sleeping son – invade both their personal space. Client prefer refuge accommodation.

73The documents also established that the mother made 21 telephone calls to domestic violence helplines and Legal Aid between 16 August 2010 and 13 September 2010.

74On 30 September 2010 the father once again prevented the mother from entering her own home. During this incident the mother sent a text to the father’s sister advising she was proposing to call the police. In the course of the messages that passed back and forth, the father’s sister said to the mother, “I won’t say a thing I know how scary he can be I am always here for you. x”. The father’s sister unconvincingly endeavoured to explain this comment in her evidence by saying that she knew how her brother could “become very passionate about particular points at times”, but that she never meant he would harm the mother, and therefore regretted her choice of words.

75When the mother was planning to go to the UK with Samuel for a holiday in November 2010, it was also planned the father would accompany them. The father says he changed his plans because he had secured two weeks work which had the potential to lead to future employment. The father did not take his wife and son to the airport, although the new arrangements meant he would not be seeing them for nearly a month. He said in his affidavit that his eventual arrival at the mother’s parents’ home was delayed “due to heavy snow but, thankfully, I arrived in time for [the mother’s] birthday and for Christmas”. It only emerged later in the evidence that he spent 10 days holidaying in Asia on the way to the UK, notwithstanding their financial position and his desire to spend as much time with his baby son as possible.

76The father’s recollection is that he and the mother were happy together when they were in the UK during this visit, whereas the mother recalls things were tense, albeit the father acted “like he always did with my family, as if nothing had happened between us”. I consider both parties accurately conveyed how they felt at the time.

77The mother was meant to follow the father back to WA on 1 February after his departure on 11 January 2011. The mother then postponed her departure on a number of occasions, rebooking her flights each time. I do not accept she had planned all along to stay in the UK. I accept that despite plane tickets and taxis having been booked, she could not bring herself to leave her family. The father says he was upset the mother had not returned, especially as he expected Samuel would be home for his first birthday. He mentioned in his affidavit that he had sent birthday presents for Samuel, but did not mention that one of the mother’s brothers had offered to pay for him to travel to the UK for Samuel’s birthday.

78I accept that while the mother remained in the UK, the couple sometimes exchanged pleasant messages and had amicable discussions; however, not all of their interactions were of that nature. The mother was also genuinely apologetic for not having returned to WA, and felt guilty about keeping Samuel from his father.

79In May 2011, the father stopped the mother’s access to their bank account. At the end of August 2011, the mother informed the father that she planned to rent a property in the UK, whereupon the father initiated the Hague Convention proceedings.

80The father gave various undertakings to the English court as part of the arrangement for the mother’s return. These involved him moving out of the home in Mandurah and making it available for the mother, as well as providing a roadworthy vehicle. The father very properly ensured the home was in good condition for the mother and Samuel, and also ensured there was food in the house, which was a decent and voluntary gesture. I accept the vehicle he provided was not roadworthy, as the tyres were bald and the brakes dangerous, but I do not consider there was any malevolence involved. The father had only recently returned to Australia and had expended significant funds in securing Samuel’s return. He would not have had funds to provide a more reliable vehicle.

The parties’ extended families

81The mother’s primary reason for wishing to return to the UK is to have the support of her family to help her recover from the emotional collapse she suffered at the father’s hands. The father’s opposition to her application is aimed at ensuring not only that he continues to see Samuel regularly, but also for Samuel to be able to enjoy the company of his family.

82Given the obvious importance of the family links I intend to detail them first.

The mother’s family

83The maternal grandparents live in a village in Sussex, where they have resided for many years. They have been married for 43 years.

84The grandmother is 61. She is a social worker (and former playgroup supervisor), but gave up work this year to come to Australia to support her daughter. The grandfather is 65. He was previously an engineer, but is now a self-employed gardener.

85The maternal grandparents have three children, [Stewart] aged 43, Sandra (the mother in these proceedings) aged 40 and [Jim] aged 33 years. Stewart has recently emigrated to the USA with his wife and their twin boys, aged six. Jim is unmarried and works as a television producer in London.

86The mother has other relatives in the UK. Her grandmother lives not far from her parents. She also has cousins, described by her mother as “virtual orphans”, who are closely connected with the family. One of the cousins has a child just a little younger than Samuel.

The father’s family

87The paternal grandmother is 63 and has lived for many years south of Perth. She has been married to her present (third) husband for 16 years. The husband’s father is 65, and is a public servant. He and his wife live in a northern suburb of Perth. The paternal grandparents and their spouses enjoy a cordial relationship and socialise together from time to time.

88The father has two siblings, namely his brother, [Chad], who is 38, and lives in far north Queensland, and his sister, [Kristen], who is 34 and lives in Mandurah. Chad and his wife are expecting their first child. Kristen and her husband have two children, [Kaitlyn], aged 11, and [Cayden], aged 9.

The proposed arrangements for Samuel

89The mother obtained rental accommodation toward the end of her stay in the UK in 2011. The property is in a quiet street in a village about a 10 minute drive from her parent’s home.

90The mother’s parents, who are fairly well off, have continued to meet the £750 per month rent while the mother has been back in Australia. The mother will move back into this property if she is permitted to relocate. It is available for so long as she wishes. The mother’s father attends to any necessary maintenance. The lady next door and her young child became friends with the mother while they were living there last year.

91The mother would return to work once Samuel has settled into his new home. He would attend a pre-school about 200 metres from the home of the grandparents and later a primary school which is about 500 metres away. The grandparents would be available to help in getting Samuel to and from school, and babysitting him. Samuel attended the local Toddler Group in 2011. He was also enrolled in the swimming club and play centre. He met many local children and went on play dates at their homes.

92The mother’s brother, Stewart, plans to return home to Sussex most weekends to spend time with the mother and Samuel, as he did when they were there in 2011. He had a good relationship with Samuel, and often took him to parks and playgrounds. He stayed with the mother and Samuel each weekend when the mother obtained her own accommodation. He was in almost daily telephone contact with his sister, and often spoke with Samuel by telephone when they were in the UK.

93In the event the mother was required to remain in Australia she would have to continue to fund private rental accommodation. She has no family support in Australia. Although she has friends, there is no evidence of the capacity of any of them to provide her with the assistance her parents would provide to her in the UK.

94The father proposes to have Samuel with him at the times I mentioned earlier. His plans are uncertain because his future work and roster are unknown. It seems, however, that he will be likely to be working on a fly-in, fly-out basis, so there will be extended times when he is not able to see Samuel, interspersed with times when he could see a great deal of him. His roster would almost inevitably not permit him to have a stable visiting routine arranged around Samuel’s schooling. The possibility of him ultimately finding work in the oil and gas industry anywhere other than Australia was not explored in the evidence.

Applicable law

95The proceedings are governed by the Family Law Act1975 (Cth) (“the Act”). Importantly, the Act makes Samuel’s best interests the paramount consideration.

96In deciding what orders will best promote Samuel’s best interests, I must be guided by the objects of the legislation and the principles underlying them. The objects provision makes clear that children’s best interests are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

97The principles underlying those objects are that, except when it would be contrary to the children’s best interests:

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

98The Act also requires me to apply a presumption that it is in Samuel’s best interests for his parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either parent has engaged in child abuse or family violence (as defined in the Act). This presumption may be rebutted by evidence that it would not be in Samuel’s best interests for the parents to share parental responsibility.

99Importantly, the presumption concerns only the allocation of parental responsibility, and does not govern the time Samuel will spend with each parent. However, if I did decide to make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time with each parent, or substantial and significant time with the “non-residential” parent, would be in Samuel’s best interests. If either of those alternatives is in Samuel’s best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.

100In determining what is in Samuel’s best interests, I must consider the matters referred to in s 60CC of the Act. These comprise two “primary considerations” and many “additional considerations”. I am also required to consider the matters in s 60CC(4), which relate to the extent to which the parents have fulfilled their responsibilities as a parent. Recent amendments made to s 60CC do not apply as these proceedings started before the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth).

101The dichotomy between the “primary” and “additional” considerations has been discussed in many judgments of the Full Court which have considered the significance of Parliament having described just two of the factors as being the “primary” considerations. In Marsden & Winch (No. 3) [2007] FamCA 1364 the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said (at [77]):

The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

102Similar views were expressed in Champness & Hanson (2009) FLC 93-407 at 83,502 [101] - [103] and Mulvaney & Lane (2009) FLC 93-404 at 83,450 [84].

103I also respectfully adopt this analysis by the Hon Professor Richard Chisholm in a paper entitled “The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview”:

It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.

104It is within this legal framework that I must determine whether Samuel should live in the UK or in Australia, and the time he should spend with his father.

The primary considerations

105I propose to discuss the primary considerations first, given their obvious importance.

The benefit to the child of having a meaningful relationship with both of the child’s parents

106This factor needs to be assessed in light of the first of the stated objects of the Act, namely that of “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.

107It must also be assessed in light of two of the underlying principles, namely that, except when it is or would be contrary to a child’s best interests (my emphasis added):

•children have the right to know and be cared for by both their parents…, and

•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

108Although this provision has been given a prominent position, the term “meaningful relationship” is not defined in the Act. However, I accept that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” and that “meaningful” is “a qualitative adjective, not a strictly quantitative one”: see Mazorski v Albright (2007) 37 Fam LR 518 at 526.

109In my view, it would be in Samuel’s best interest to have a meaningful relationship with both parents. Although I have serious reservations concerning the father’s past conduct, I am satisfied he now has a commitment to the welfare of his son. Importantly, I find they have developed a very good relationship since Samuel’s return to Australia. The mother has acknowledged this, and wishes to promote that relationship because she believes it would be good for Samuel.

110I accept that the father’s ability to maintain a relationship with Samuel will be seriously compromised if Samuel leaves Australia. The boy is only very young and, given the financial positions of the parents, there could, at best, be only occasional visits. However, Samuel’s capacity to retain some form of relationship with his father will be enhanced by telephone and especially by Skype, which will become an increasingly useful means of communication as Samuel rapidly matures.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

111I find that the father’s abuse of the mother would have had an adverse impact on Samuel, both by being exposed to the abuse directly and by the impairment of the mother’s capacity to care for him to the extent of her ability. The mother did what she could to protect Samuel from the abuse, while at the same time trying to save her marriage. In my view, she was justified in removing Samuel from the home and then later keeping him in the UK where both she and Samuel would be safe.

112It is impossible to predict whether Samuel will be exposed to such abusive conduct by his father in the future. The difficulty with a person who is prepared to conduct himself in the way the father did in one relationship is that he may do so again in other relationships. In this regard it is noted that the father has recently commenced another relationship, although his girlfriend has not yet met Samuel and was not called as a witness. I draw no adverse inference about her not having been produced as a witness, but it remains a matter of concern whether the pattern of behaviour will be repeated.

113It is most encouraging that the father seems to have conducted himself well since the mother has returned to Australia. In particular, it is promising that he has communicated well with the mother in the communication book they have used to exchange information. I agree with Dr Watts that the content of the book does great credit to both parents, as it was very child focused and each treated the other with respect. I am not yet persuaded, however, that the father’s apparently much improved attitude to the mother will continue once the spotlight of these proceedings has been removed.

114The father’s capacity to continue to behave in an appropriate way is also likely to be connected with his ability to keep his drinking under control. I am satisfied he had a longstanding alcohol problem and it is clear he behaved particularly poorly when under the influence of alcohol. There is at least the prospect of further exposure of Samuel to poor conduct in the event the father were to become inebriated whilst he has Samuel in his care.

The additional considerations

Any views expressed by the child

115This factor is not relevant as Samuel is only two years old.

The nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative)

116Samuel has always lived with his mother. They have a very close relationship and, although not the subject of assessment, Dr Watts considered Samuel’s attachment to his mother was secure.

117Samuel has not lived with his father for significant periods, but nevertheless they now have a good relationship. Samuel looks forward to spending time with his father and enjoys his time. In my view, however, his relationship with his father must be of a different quality to that he enjoys with his mother, who has been his almost constant carer.

118I accept Samuel gets on well with all his grandparents and their spouses. All are keen to spend time with Samuel and to maintain or build a close relationship with him.

119Although the mother’s parents live in the UK, they have had greater involvement with Samuel than have the father’s parents, who have been able to see him only occasionally. Thus, for example, the mother’s parents were here for his birth in February 2010. He then lived with them when the mother went home to the UK from November 2010 until the mother obtained her own accommodation in September 2011. They then saw Samuel daily until the mother returned to WA in late December 2011. Since then, one or both of the maternal grandparents have lived with Samuel.

120All this is in stark contrast with Samuel’s involvement with members of the father’s family, which has been quite limited for a variety of reasons, including that the father did not want to encourage his mother to have regular contact, even when the couple were living together. Samuel has only been able to commence building a relationship with the father’s family since January this year.

121In my view, the relationship Samuel presently has with his mother’s parents is of greater importance to him than the relationship with his father’s parents, largely but not entirely because of the fact that they have spent so much more time living with him.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

122An important part of the father’s case was his assertion that the mother could not be relied upon to promote Samuel’s relationship with him because of her apprehension about him and because of her past conduct in stopping him from seeing his son.

123Whilst acknowledging the father’s concerns, I do not consider they are well-founded. The mother is strongly focussed on Samuel’s best interests, and accepts that it would ideally be good for him to have a relationship with his father. In my view, the fact Samuel was able to build a relationship with his father after his return from the UK speaks volumes not only of the father’s capacity to establish such a relationship, but also of the mother’s capacity to facilitate and encourage it. The resumption of the relationship could have been extremely problematic had it not been for her support, given the age of the child.

124I observe also that the mother did try to promote communication between Samuel and the father when she was in the UK, albeit his very young age made this difficult. It should also be recorded that when the mother first left the father in September 2010, she took Samuel home two days later for Fathers Day, and gave the father a gift from Samuel.

125I was greatly impressed by the mother’s parents. Although they have legitimate concerns about the father’s treatment of their daughter, they did not appear to have a negative view of the importance of his relationship with Samuel. I anticipate they would leave the mother to make her own decisions about Samuel, but I am satisfied they would not stand in the way of her encouraging an ongoing relationship between father and son.

126In this context it is noteworthy that the maternal grandmother described her first impressions of the father as being a “pleasant and likeable” person, and said she had no concerns about him when he lived in their home from 2005 to 2007. In fact she described him as a “delight” to have in the house. She also said she felt the father could offer Samuel “a lot, if he can get his act together, which he has”.

127The grandfather described the father as “a nice, hard working guy [who] got on well with all the family”. The mother’s brother, Stewart, described the father as “likeable and easy going”.

128The fact the mother’s family are able to see the father’s many good features assists in persuading me they will encourage Samuel’s relationship with him.

129The likelihood of the father being willing to promote a relationship between Samuel and the mother is of somewhat less importance, given that Samuel will be living with the mother. However, the way the father has conducted himself since the mother came back to Australia gives reason to hope that he will be supportive of their relationship in the future. Nevertheless, I have reservations on this topic, given the content of some of the father’s rants against the mother, which reveal the potential for him to try to drag Samuel into disputes. In this context I accept the wisdom in the submission made by Queens Counsel for the mother when he cautioned against the tendency of courts to be overly optimistic about the likelihood of significant change in character and behaviour.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or from any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

130This is a most significant matter, since if the mother’s application is successful the father will be largely removed from Samuel’s life, save at best for infrequent visits. Given Samuel has a good relationship with his father, and that his father has much to offer, I accept it would ideally be desirable for them to be able to build on that relationship.

131Removal of Samuel from Australia will also mean removal of him from the company of his paternal grandparents and their partners. While extremely upsetting for them, it is not a matter of overriding concern, since moving to the UK will allow Samuel to maintain closer links with his maternal grandparents, who have been a larger part of his life. Furthermore, consideration of the history would lead to a greater degree of optimism that the mother will remain on good terms with her family than would be the case with the father.

132Nevertheless, the removal of Samuel from Australia, and hence the company of his father, is a significant factor pointing against the mother being permitted to relocate.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

133This is a significant factor, although little attention was paid at trial to the practical issues.

134There was no evidence of the cost of air travel or of the cost to the father of obtaining accommodation or a car whilst in the UK. His uncontested assertion was that the cost would be about $5,500 for each visit, which he said he could not afford twice a year, and in fact doubted he could afford once a year. There was no evidence that the mother had any friends in Perth with whom she could stay if she were to come back here to facilitate a visit. Nor was there evidence of the age at which Samuel might be able to travel unaccompanied.

135Nevertheless, each party put forward proposals about how the father could have contact and communication with Samuel if the relocation was permitted. The mother’s plan was based on an assumption that the child support of $200 a week, which she is currently receiving, would be set aside to meet the costs of contact. It was only at the end of the trial that it emerged that the $200 per week is being paid pursuant to an order, or undertaking, in the English proceedings. Clearly that could only have been intended to deal with the short term, and it would have been anticipated that the child support would be determined in accordance with Australian law if Samuel remains here.

136The father’s enquiries indicate that his child support obligation will only be about $65 per week, whilst on his current income of about $50,000 per annum. He did, however, volunteer that he would pay $100 per week, which is presumably affordable as he has been paying $200 per week. His income will increase over the remaining years of his apprenticeship, and hence his child support will also increase. His expectation is that he will obtain very well paid employment at the end of his apprenticeship. Although his income will depend on whether he is working on or offshore, his estimation is that he will earn in the region of $200,000 per annum, which would fund a lot of travel.

137The father has no capital, and there was no indication his parents were likely to be able to offer any assistance with meeting costs associated with travel to the UK, or meeting costs of Samuel’s travel to Australia. Similarly, the mother is not likely to be in a position to offer any assistance other than by forgoing child support payments, since any income she earns in the UK will be required to meet her own living expenses and those of Samuel, including her rent of £750 per month.

138The mother’s parents are comfortably off and likely to continue to be so until they retire. However, it is unlikely they will continue to have income from employment for more than a few years. In any event, they have no obligation to do more than what they have already done to assist their daughter coming out of an abusive marriage. My sense, however, is that they – or perhaps even their sons - might provide some assistance voluntarily, since they are decent people and keen to promote Samuel’s welfare.

139All of these difficulties mean that, until the father obtains well paid work, there are going to be problems in Samuel retaining contact with his father other than by Skype and telephone, and very occasional visits. This is a matter of concern given that telephone contact for a child of this age would be unsatisfactory and even Skype problematic. There is also the concern arising from the evidence of Dr Watts about the potential for anger on the part of Samuel if denied the company of a father whom he can only see via Skype. I am satisfied, however, that the mother’s parenting skills, and the support she would receive from her parents, would ameliorate this to a significant extent.

The capacity of each of the child’s parents, and others (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

140The father concedes that the mother is a “great mother”. Save for concerns about her emotional wellbeing, there is no doubt she can attend to Samuel’s needs.

141Although I was inclined to accept the evidence of Dr Watts that the mother does not suffer from post traumatic stress disorder (as the mother’s psychologist believes) the fact is that she does suffer from serious anxiety. Dr Watts correctly said that the difference of opinion between him and the mother’s psychologist was only a matter of degree, and that the mother not only needs the counselling she is presently receiving, but needs treatment on an ongoing basis in order to deal with her anxieties.

142In assessing the evidence concerning the mother’s emotional state, it needs to be appreciated that Dr Watts saw the mother only once, some months after she returned to Australia. During the time she has been here, the mother has always had one, and sometimes both, of her parents living with her. The mother’s psychologist first saw her on 17 February 2012 and has seen her on a number of occasions since. She too has only ever been able to observe the mother while she has had the support of a parent living with her. This is a matter of some significance, given that the mother is strongly attached to her parents and finds considerable comfort in having them nearby during what have been very difficult times.

143The fact the mother’s parents recognise she now strongly relies upon their support is evidenced by the fact that both have come out to Australia to be with her over an extended period, albeit this cannot continue. Her mother has given up her career as a social worker and her father has given up his business to provide support.

144In my view, the mother would “get by” in providing for Samuel’s basic needs if she was required to remain in Australia. This would be very difficult for her at many levels, including financially, since she would have no family available to babysit Samuel if she were to return to work. However, there is no prospect of the mother being able to provide the level of care and attention to Samuel’s emotional needs that she would be able provide if she were living near her family and having the level of support she would receive from them. Indeed, as Dr Watts warned, there is the serious possibility that she would slip into depression and be unavailable to attend to Samuel’s emotional needs to such an extent that his attachment to her could be damaged.

145There is no way that any of the experts, and therefore the Court, can predict whether the mother will be able to maintain even the level of functioning she has currently achieved. Her predisposition to slip into a far worse state is demonstrated by the evidence given by her mother about the state in which she presented when she came back to the UK – i.e. having lost a worrying amount of weight, and having become “a nervous wreck” who was involuntarily shaking, rocking on the floor and crying, and unable to eat or sleep.

146I accept the mother’s evidence that when she returned to the UK she “immediately felt more confidence and secure with my family around me for support and felt I was better able to provide for [Samuel’s] emotional needs”. The obvious improvement in her wellbeing was observed by the woman with whom she stayed in September 2010 when she first left the father. The lady in question had then observed her to be “almost a pathetic person [who] did not appear to have any self confidence”. However, in February 2012 she:

could not help but notice how much [Sandra’s] appearance had improved from when I had seen her last in late 2010. [Sandra] did not have the dark shadows around her eyes and she looked much healthier and stronger. [Sandra] also appeared to me to be much more confident that she had been during the week she sent in my house in September 2010.

147The maternal grandmother agreed the mother had improved by the time she came back to Perth, but said she had not regained her former confidence. I accept her evidence.

148The father’s capacity to attend to Samuel’s needs is somewhat less important than the mother’s capacity, given he acknowledges that Samuel should primarily be cared for by the mother. I do not have any doubt about his capacity to provide for Samuel’s physical and intellectual needs, but I consider there is a question mark over his capacity to deal with his emotional needs, given the father’s troubled personality revealed in the recordings. Whilst the father claims he is now drinking much less, I am not yet convinced that he would not revert to alcohol as a means of coping, which would lead to a reduction in his capacity to provide for Samuel’s needs.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

149The fact Samuel is not yet three years old is of obvious importance, given the impact his age will have on his capacity to maintain a long distance relationship.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

150The mother has always demonstrated an exemplary attitude to her responsibilities as a parent. The fact she may have been “over-protective” is not to be taken as a criticism, given there was much to be protected against. The mother has also demonstrated a good attitude by encouraging Samuel’s relationship with the father after her return to Australia, notwithstanding the concerns she felt about his behaviour.

151The father in my view, until recent times, has demonstrated a poor attitude to the responsibilities of parenthood. His sustained abuse of the mother of his child was indefensible. The father now, probably genuinely, expresses regret and embarrassment, albeit seeking to minimise his behaviour and to, some extent, blame the mother. The mother was right to express concerns about the impact of his behaviour on their child. She was also right to be concerned about his refusal to exert himself to earn an income to support the family when she was pregnant.

152I accept the father has done much in more recent times to demonstrate his desire to become a better parent. He has attended the Mums and Dads Forever program and also a parenting course. He is prepared to attend any other courses recommended, including an anger management course of the sort mentioned by Dr Watts. He is now working assiduously to obtain further qualifications with a view to securing a high income which I am sure he would wish to share with Samuel. The way in which the father wrote in the communication book, and the way in which he has conducted himself since the mother returned to Australia, are also most commendable.

Any family violence involving the child or a member of the child’s family

153There were acts of violence. The mother’s lip was cut. She was hit by a flying shoe when pregnant. Her meal was knocked to the floor. She had beer thrown on her. She was spat on. But, from her perspective, it was the verbal cruelty that was worst of all, and especially the threat of future violence, particularly that directed at Samuel.

Any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person

154There are no family violence orders.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

155Notwithstanding the problems in their relationship, my impression is that this couple are less likely than others to come back before the Court. They are intelligent and have shown a capacity in the communication book to sort some matters out for themselves. In any event, I consider this factor to be of less significance than others discussed.

Any other fact or circumstance that the court thinks is relevant

156The mother has not entered into another relationship and I did not gain the impression she was overly anxious to do so. The father has entered into a new relationship, but the woman involved has not yet met Samuel. The father is a presentable, intelligent, well-spoken young man, and there is no reason to anticipate he would form a relationship with anybody who was not suitable to have contact with Samuel.

Discussion

157The Act requires the allocation of parental responsibility to be considered first, as resolution of that issue has consequences for how the Court then deals with other matters. This order of dealing with the issues might appear odd in an international relocation case, since it may be entirely appropriate for parents to share parental responsibility if they live nearby and see the child often, but inappropriate if one parent is permitted to relocate to the other side of the world, with the other parent thereafter seeing the child only infrequently.

158The mother wants sole parental responsibility. The father wants it to be shared. The presumption in favour of shared parental responsibility does not apply because of the father’s violence. That does not mean that shared parental responsibility might not be in Samuel’s best interest. But, Dr Watts considers that while the parents have been able to resolve day-to-day issues, he would be concerned about them resolving major long-term issues.

159I am satisfied the mother would seek to involve the father in any important decisions about Samuel, even if she were given sole parental responsibility. I also consider it likely the father would try to assist the mother to make the best decision for Samuel. However, as I have determined that the mother should be permitted to relocate to the UK with Samuel, she will be the parent “on the ground” who will be more familiar with local education and health systems, and other local factors that may be important in making decisions. There is also the possibility of logistical difficulties in obtaining the father’s consent in an emergency.

160Furthermore, there is no doubt in my mind that any decision the mother would make for Samuel would be the right one for him. I therefore propose to make an order that she have sole parental responsibility, but with the rider that she is to consult whenever practicable with the father before making an important decision about Samuel.

161I turn now to the contentious and difficult issue of the planned relocation. As Queens Counsel for the mother submitted, this involves a choice between the least worst alternative, since neither of the proposed outcomes is in any way satisfactory.

162Queens Counsel for the mother also submitted, as I had myself thought during the trial, that anyone untrained in the law, sitting in the back of the court, would be surprised to learn there was any possible outcome other than that the mother would be given permission to go home to the UK to be cared for by her family whilst recovering from the abuse she had suffered. Counsel properly recognised, however, that the matter fell to be determined not by what would be considered to be the proper outcome by a person sitting in the back of the Court, but rather by application of the Act. Hopefully for the good government of our society the fair-minded observer in the back of the Court would consider the outcome mandated by the law to be the proper result.

163The choices are stark. In the event the mother relocates, Samuel will be effectively denied a meaningful relationship with his father, at the least for some years until his father can afford to see him more regularly. If the mother is not permitted to relocate, she will not be able to provide for her own, and hence her son’s emotional needs, in the way she could if she had the support of her family nearby. In the event she is denied that support, there is a serious risk she will fall into a state of depression, leading to the likelihood of a damaged attachment with her child. This would be extremely damaging to Samuel in the long term. In my view this factor is of far greater importance than the “significant, but not severe grief” that Dr Watts anticipated would occur if Samuel was not able to see his father regularly. This is especially so in light of what Dr Watts described as Samuel’s “robust temperament”.

164It is not the function of this Court to punish bad behaviour, but it is the function of this Court to deal with the consequences of it insofar as it impacts upon a child. Whilst it is an entirely unsatisfactory for Samuel to be removed from the company of a father who I consider has much to offer to him, the physical and emotional health of the child’s primary carer is a matter of the utmost importance.

165Whilst the outcome is difficult, it is also clear, namely that the mother should be permitted to return to her homeland to enjoy the company and support of her family while she seeks to recover from the abuse she has suffered.

166Although not a factor I need to take into account, there is potential for the outcome of cases such as the present to have a salutary impact on the behaviour of other parents. Unless the best interests of the child demand otherwise, it cannot reasonably be expected that one party to a relationship can behave in an abominable fashion, cause severe emotional harm to the other party, and then insist that they continue to live nearby so that they can continue to have a close relationship with their child. The strong emphasis given by our law to the importance of protection from violence would be undermined if any different message were conveyed.

167Notwithstanding his past conduct, it is impossible not to feel some sympathy for the father who I consider not only has gained some appreciation of the consequences of his behaviour, but wants to do the best he can for his son. His behaviour has been much improved, and he should be commended for that. But, unfortunately, as was put to him in cross-examination, it is a case of “too little, too late”. The damage has been done. All the father can do now, which I am satisfied he wants to do, is to make amends. It is not too late for him to be a good father, but he will have to achieve that by allowing the mother time to recover, which I am persuaded she can only do if she is permitted to go home.

Orders

168I propose to make orders largely in the terms proposed by the mother. I do not propose to make any orders requiring the mother to contribute directly to the costs of travel given that I am not satisfied she has the capacity to comply with such an order and given no binding obligation could be imposed on her parents to provide any greater level of support than that which they have already provided. I nevertheless remain hopeful they may find their way clear over the next few years to make some contribution to Samuel being able to see his father more often than he might if the father had to fund the cost of all the visits.

169The orders I intend to make are set out below. I note the mother proposed each party pay their own costs which seems appropriate but I will make no orders dealing with costs in case either party wishes to be heard on that topic.

Residence and relocation

1. The child, SAMUEL EDDON born [in] February 2010 (“the child”) live with the mother.

2. The mother have liberty to permanently relocate the child to the United Kingdom within 28 days of the date of this order (“the departure date”).

3. The father spend time with the child every weekend and at such other times to be agreed between the parties until the departure date.

Parental responsibility

4.The mother and father each have sole parental responsibility for the child’s day-to-day care and welfare when the child is living with them.

5.The mother have sole parental responsibility for the child, provided that when practicable she first consult with the father before making a decision about major long-term issues.

Spend Time

6. The father spend time with the child in the United Kingdom and Australia as follows:

7. 2012

(a) In 2012, in England during the English Christmas School Holidays (generally 21 December - 6 January, but subject to variation) for a period of 10 days subject to the first day of contact being from 10.00am to 4.00pm and overnight thereafter.

(b) The Father’s time with the child be suspended from 2.00pm Christmas Day to 2.00pm Boxing Day.

(c) The mother have liberty to contact the father and the child by telephone once every day during the contact period with the father.

8. 4 year cycle

(a) In 2013 and every year thereafter for a four year period as follows:

In England during the English Easter School holidays (generally 30 March to 16 April but subject to variation) for a period of 10 days subject to the first day of contact being from 10am to 4pm and overnight thereafter,

and/ or at the option of the father

In England during the English Christmas School Holidays for a period of 10 days subject to the first day of contact being from 10.00am to 4.00pm and overnight thereafter.

In Australia during the English Summer School Holidays (generally 20 July to 1 September but subject to variation) for a period of 21 days subject to the first day of contact being from 10.00am to 4.00pm and overnight thereafter.

9. 10 year cycle

(a) In 2017 and every alternate year thereafter for a ten year period as follows:

In England during the English Easter School holidays for a period of 10 days,

And/ or at the option of the father

In England during the English Christmas School Holidays for a period of 10 days.

In Australia during the English Summer School Holidays for a period of 21 days.

(b) In 2018 and each intervening year thereafter as follows:

In England during the English Easter School holidays for a period of 10 days,

And/ or at the option of the father

In England during the English Summer School Holidays for a period of 21 days.

In Australia during the English Christmas School Holidays for a period of 10 days.

Christmas and New Year

10. The time with the father per paragraph 7 to 9 inclusive above be continuous save and except the mother spend time with the child from 2.00pm Christmas Eve to 2.00pm Boxing Day in England and Australia.

Birthdays; Fathers Day and Mothers Day

11. The parties have liberal telephone, email and Skype contact with the child on his birthday and on the parents’ birthdays and Fathers Day and Mothers Day (in Australia and England).

Holiday contact/payment

12.The parties AGREE:

(a) That any current or future obligation the father may have to pay child support to the mother (currently $200 per week) be paid fortnightly into a joint interest bearing account (“the account”.)

(b)The funds in the account be utilised in each calendar year in the following order of priority:

(i)The payment of the father’s return economy airfares to England to spend time with the child;

(ii) The payment of the child’s return economy airfares to Australia to spend time with the father; and

(iii) The mother’s return economy airfares to Australia for the purposes of accompanying the child to Australia and back.

(iv) With any excess funds in one calendar year to be rolled over to the following year and funds to be distributed in the same order of priority.

(c)That both parties will do all acts necessary to establish the account; and

(d)The mother otherwise do all acts necessary to waive her entitlement to child support.

13. The father’s time with the child per paragraphs 7-9 inclusive, above, be agreed in writing at least 28 days in advance.

14. The travelling party (the father when spending time in England/the mother when the child travels to Australia) purchase the child’s return airfares from the funds in the account.

15. The child to travel accompanied by a family member until he reaches 12 years of age.

16. On the child reaching the age of 12 the child to travel unaccompanied. In the event either parent wishes to accompany the child after the child attains the age of 12 years, that parent to pay his/her travel return airfares.

Handover

17. Handover in England to be at the home of the mother’s parent in Sussex unless otherwise agreed.

18. Handover in Australia to occur at the father’s home or if not suitable as otherwise agreed by the parties.

Telephone, email and Skype communication

19. The father to have liberal telephone, email and Skype communication, and have liberty to apply for further definition of this order.

Other time

20. The father to spend time with the child as otherwise may be agreed between the parties

Medical Issues

21. In the event that the child suffers any significant injury or illness, the parent with whom the child is with at that time inform the other parent without delay of the nature of the injury or illness and the name, address and telephone number of any health professional upon whom the child has attended.

Consent Authority

22. The parties authorise all relevant organisations, agencies and individuals, including but not limited to medical practitioners and school authorities, to provide the other parent with reports and/or relevant information regarding the child’s activities, development, health, education and other relevant issues.

23. Each parent to keep the other advised of their current residential address and particularly within 7 days of change of same.

24. The mother or her representative do all acts necessary in a timely manner to authorise the child’s pre-school, and schools to provide the father with details of the child’s academic, sporting and artistic reports, certificates of merit and other information relevant to the child’s schooling.

Child's place of residence

25. The respondent mother be prevented by injunction and an injunction be granted preventing her from changing the child’s principal place of residence from outside the United Kingdom.

Education

26. The mother consult the father on the choice of school for the child.

27. Each parent is entitled to attend school assemblies and other school and sporting activities organised for the child regardless of who the child is spending time with.

Injunctions

28. Without admission the parties be restrained by injunction from:

(a) Denigrating the other parent or any other significant person in the child’s life or permitting or encouraging any other person to so do in the presence of the child; and

(b) Discussing Court events with the child.

Other Orders

29. The mother have leave to depart the Commonwealth of Australia with the child from the departure date.

30. All previous orders be discharged.

31. The Australian Federal Police be requested to remove the child’s name from the airport watch list operating at all international ports in Australia.

32. The mother provide the Australian Federal Police with a sealed copy of this order.

33. The Principal Registrar be requested forthwith to return the child’s passport to the mother.

34. If required by either parent, within 28 days of the date of this order, the mother and the father separately instruct solicitors in England to apply to the High Court of England and Wales for a contact order pursuant to section 8 of the Children Act 1989 and/or the Court’s inherent jurisdiction with respect to children, in terms of the orders detailed in paragraphs 1 to 20 inclusive (above) which details the time the child will spend with the father and consequential costs and directions, the costs of such application to be shared equally between the mother and father ("the Mirror Orders).

35. Henceforth the mother and father sign all documents and do all things necessary in a timely manner to obtain the Mirror Orders.

36. In the event either party fails to fulfil their obligations in a timely manner in relation to the Mirror Orders (“the defaulting party”), the defaulting party to pay his/her legal costs and the legal costs of the other party necessary to obtain the Mirror Orders.

37. The father’s Form 1 filed 28 December 2011 and the mother’s Form 1A and filed 27 January 2012 otherwise be dismissed.

38. There be liberty to apply on short notice.

I certify that the preceding [169] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate