Farleigh and Wills and Ors

[2011] FamCA 431

FAMILY COURT OF AUSTRALIA

FARLEIGH & WILLS  AND ORS [2011] FamCA 431

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks to relocate with the child to Canada – Where the father and the paternal grandparents as intervenors, seek orders that the child remain in Australia – Where the ICL seeks order that the mother and the child relocate to Canada, but not immediately – Where parties consent to shared parental responsibility – Where relocation would not be in the best interests of the child – Where equal time order not in the best interests of the child or reasonably practicable – Where father’s work commitments mean that he is away for a significant time at sea  –Where substantial and significant time order is appropriate – Where child is to live with the mother and spend substantial and significant time with the father and spend limited weekend and holiday time with the paternal grandparents.

Family Law Act 1975 (Cth) s 60B, 60CC, s 65D(1), s 65DAA.

AMS and AIF (1999) 199 CLR 160; [1999] HCA 26
MRR and GR (2010) 263 ALR 368
U and U (2002) 211 CLR 238; [2002] HCA 36

APPLICANT: Ms Farleigh

RESPONDENT: Mr Wills Jnr

INTERVENORS: Mr Wills Snr and Mrs Wills

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7638 of 2010

DATE DELIVERED: 9 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12, 13, 14 & 15 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Hogg & Reid

COUNSEL FOR THE RESPONDENT: Mr Hutchings

SOLICITOR FOR THE RESPONDENT: Gadens Lawyers

COUNSEL FOR THE INTERVENORS: Ms Smallwood

SOLICITOR FOR THE INTERVENORS: Schetzer Constantinou

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Connell

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

Orders

1. That the husband and the wife have equal shared parental responsibility for the child T (the child) born ... January 2007.

2. That the child live with the wife.

3. That until the child commences school and during times when the husband is not rostered to work, he spend time with the child as follows:

   (a)from the conclusion of daycare (or 9 am if not a daycare day) on Wednesday until 7 pm on the following Friday in the first of a two week cycle; and

   (b)from the conclusion of daycare on the Wednesday until 7 pm on the following Sunday in the second week of the two week cycle.

4. That during the times that the husband is rostered to work as set out in paragraph 3, the paternal grandparents spend time with the child during each alternate weekend from 4 pm on Friday until 7pm on Saturday.

5. That once the child commences attending school, and during times when the husband is not rostered to work, he spend time with the child as follows:

   (a)from the conclusion of school on Wednesday until 7 pm on the following Friday in the first of a two week cycle;

   (b)from the conclusion of school on the Wednesday until 7 pm on the following Sunday in the second week of the two week cycle; and

   (c)for one half of all school holidays including the long summer holidays by agreement and failing agreement, during the one half or so much of it as coincides with the husband not being rostered to work.

6. That during the times that the husband is rostered to work as set out in paragraph 5 (a) and (b), the paternal grandparents spend time with the child during each alternate weekend from 4 pm on Friday until 7pm on Saturday and for the purposes of paragraph 5(c), at such times during the school term holidays and long summer holidays as may be agreed between the parties.

7. For the purposes of these orders, the various cycles referred to in paragraphs 3 and 5 shall be suspended during all school term holidays and the long summer holidays and they shall resume at the conclusion of the holiday periods as if there had been no interruption.

8. That upon the husband and wife agreeing about the wife being able to take the child to Canada each year for holidays, paragraphs 3 to 6 hereof are suspended.

9. That if the husband and wife cannot agree upon what periods the wife can remove the child from the Commonwealth of Australia for holidays to Canada, paragraphs 3 to 6 are suspended for up to 3 periods of 21 days each year nominated by the wife only 1 of which must coincide with the Victorian School holiday periods but the other 2 periods shall not coincide with the time that the husband is not rostered to work.

10. That all extant applications be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7638  of 2010

Ms Farleigh

Applicant

And

Mr Wills Jnr

Respondent

And

Mr Wills Snr and Mrs Wills
2^nd Respondents

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting dispute about T (the child) born in January 2007. He is an only child. The striking feature of the dispute is that his parents and grandparetns love the child very much and have his interests very close to their hearts. The child’s love and affection for them is equally very strong.

2. The problem is that the child’s mother wants to go home to Canada to live with him. Permitting the child to go to Canada would substantially alter his way of life now and in the future. The case was made so much more difficult by the fact that the child’s mother is not only his primary attachment figure but she is also the unchallenged parent expected to provide not only a residence for the child but also his daily care particularly in the regular absences of the husband whilst working at sea.

3. Despite that and because of the undoubted closeness of the parties to the child and for reasons which I hope will be clear below, it is not in the child’s best interests that he live in Canada.

4. In respect of financial issues, the parties reached agreement and at their request, I made orders to which they consented. I was satisfied in making the orders that they were just and equitable.

5. This case is about balancing the various proposals and working out what is best for the child.  The wife’s natural desires are part of that assessment. 

6. I have referred to the parties as husband and wife throughout these reasons notwithstanding they are now divorced.  I do so for my own convenience. 

7. Notwithstanding the divorce, the relationship between the husband and wife as parents is unusually good.  They respect each other, they communicate with each other and have the interest of the child close to heart.  They just can not agree where the child will live in the future.   

8. The husband is a sailor whose absence is and always has been, significant.  Despite his absences, he has an excellent relationship with the child and has shown himself to be a responsible, caring parent.  Some, if not much, of the credit for that relationship between father and son must be given to the wife. 

9. The wife had a happy childhood with her parents.  When she was sixteen, her mother died of cancer and perhaps insensitively, her father remarried very quickly.  The wife and her older sister did not like their step-mother and an estrangement with their father occurred which unfortunately, has continued today.  Shortly after that remarriage, the wife left home and moved to Calgary where she was supported by her older sister.  She had some counselling in her early 20s but did not find it particularly helpful.  She had a job, formed friendships and engaged in a relationship.

Background

1. In the context of that background, she met the husband whilst working in the Mediterranean where they were both working on a cruise ship that travelled around the world.  …  In the following year, their contract having ended, they met up in New Zealand and travelled around that country and also Australia on holidays. 

2. The husband and the wife commenced their relationship in 2001 aboard a cruise ship and then began living together in Melbourne in late 2002.  They travelled to Canada in 2004 and were married there in September 2004.  The very fact that they were married there indicates that the wife still had an affinity with her country of origin.  Cross-examination by various counsel of the wife tended to focus on her absence from her former home and her lack of friends there.  For reasons which I will set out below, I reject any suggestion that she has lost her affinity with Canada.

3. The husband and wife travelled to Canada in April 2006 and again in August 2008 and subsequent to a rift arising in the marriage, the wife has been to Canada alone. 

4. The husband and wife separated in July 2009 when the husband moved to live with his parents.  The wife remained in the matrimonial home.  In September 2009, the wife returned to full time employment and the child began attending Day Care five days per week.  Before the separation, the child spent considerable time with his grandparents who collected him from day care and then bathed and fed him.  They cared for him until bed time.  That situation continued after separation and they cared for the child at various times.  He has a very close relationship with them.  When the husband’s ship berthed at Melbourne, the grandparents took the child there to visit him for an hour or so.  Hence, the position of the grandparents in wanting to continue to see the child at least on a weekly basis.

5. Much was made of the absence of strong and frequent family connections between the wife and her Canadian relationships.  The depth of the wife’s Canadian friendships was also analysed.  The duration of the wife’s absence from Canada was carefully scrutinized presumably to show she either lacked genuineness to move or to highlight that there was nothing of substance to move to.  Much of that was irrelevant because Canada is the place of the wife’s birth and childhood.  I am satisfied that she wants to go home.  No one should criticise her stance about wanting to do so.

The proposals

1. The wife’s proposal was that she be allowed to move the child to live in Canada on the basis that she would return with him to Australia annually and make arrangements at flexible times, if the husband and the grandparents came to Canada.  In the alternative, her proposal was that should she not be able to move the child to Canada, similar arrangements to those that currently exist, should continue. 

2. The husband’s position was that the child remain in Australia and that when he was not at sea, the child remain in his care from the conclusion of day care on a Wednesday until 7.00 pm on the following Friday in the first of two weeks and from the conclusion of day care on the Wednesday until 7.00 pm on the following Sunday in the second week.  He also proposed that he spend three hours with the child on every Monday and Tuesday from 4.00 pm until 7.00 pm.

3. The grandparents intervened in the proceedings as parties in their own right.  They sought orders that the child spend time with them every week from 4.00 pm on Friday until 7.00 pm on Sunday when the husband was at sea.  Consequently, they oppose the move to Canada. 

4. Until the conclusion of the hearing the independent children’s lawyer reserved her position.  At the conclusion however, she submitted that the appropriate order was that the wife be permitted to take the child to Canada in 12 months time.  Thereafter, a variety of arrangements would follow. 

Credibility

1. I heard the evidence of the husband and the wife as well as each of the grandparents.  Each was subjected to probing and careful cross-examination.  There were very few factual issues in dispute.  I would not and could not make a general finding that I preferred the evidence of one parent over the other.  Each gave honest and plausible answers.  Each made appropriate concessions where necessary.  The position of the grandparents is similar although I am not as complimentary of them as I am of the parents.

2. One sad but not unusual aspect of this case is that the relationship between the wife and the grandparents has completely disintegrated.  I accept the wife’s evidence that until separation, she felt part of a caring and loving family even if she felt at times that they were intrusive.  The separation ended that.  The wife’s position was that she felt rejected when the husband’s lawyers wrote a letter referring to possible legal action by the grandparents if their relationship with the child was altered.  That letter and its surrounding circumstances, were carefully scrutinised.  I am satisfied that the letter was not written at the behest of the grandparents but their approach to the wife after separation did bring about what is now a perfunctory relationship.  It may be that it all happened accidentally but it did happen.  That exacerbated the wife’s feeling of isolation to the extent that she felt that she was no longer a member of the family.  She had no family in Australia to provide her with support.  Added to those difficulties was the fact that the various friends of the husband and wife were more connected to the husband.  Although it was suggested that the wife had chosen that position, I find it is quite understandable that she felt separated from those friends.  All indications are that the friends were encouraging but the wife felt uncomfortable about continuing the friendship.

The end of the marriage

1. The breakdown of the marriage also occurred in the context of the husband’s employment where there were significant absences at sea.  I accept the wife saw herself as having lost a husband, a family and friends despite having a sound job with good work colleagues.  All of this led to the wife’s decision to seek to go to Canada.

The agreement about Canada and Australia

1. One controversial issue in these parenting proceedings was whether there had been an agreement that the husband and wife would live in Australia for eight years followed by a period of eight years in Canada.  That was the wife’s position.  The husband conceded there had been discussion but maintained it was never a concluded agreement beyond the eight years in Australia.  I accept that the discussion did take place and that it was the understanding between the parties that they would move to Canada after the conclusion of the eight year period in Australia.

2. It was the wife’s evidence that she was unhappy in Australia even prior to the marriage.  She conceded that the husband had been equivocal about how long they were to be in Australia and she pressed him for a firm commitment which he gave.  It was to be for eight years.  She said she then pressed further and asked for a commitment to return to Canada beyond that time.  That seemed the logical corollary of the agreement about the eight years in Australia but I am not convinced agreement was reached about the duration of time they were to stay in Canada.

3. Counsel for the husband put to the wife that subsequent to these discussions, they purchased a house and then renovated it.  He put to her that there was no talk of going back to Canada in 2006 which was the year prior to the birth of the child.  He further put to her that there was no discussion immediately after the child’s birth.  The wife’s evidence was unequivocal.  There was discussion centring on the fact that she was unhappy particularly about the fact that the husband wanted to spend time with his parents.  When he was cross-examined, the husband conceded that the wife had not wanted to stay in Melbourne and that she had raised the subject of moving to Canada.  The parties even looked at housing in Canada and made inquiries about employment for the husband in his profession.  At paragraph 51 of the husband’s trial affidavit, he said that following separation, the wife told him that she would never move to Canada and that it came as quite a shock when he received a letter from the solicitor for the wife indicating that was her desire.  That was not an accurate statement.  In cross-examination, the husband conceded that with the background to which I have referred, the wife’s statement did not come as a complete shock at all.  All of this enables me to find that there was a commitment by the husband but, that alone cannot regulate the determination of what is best for the child.  The agreement between the parties shows that the wife had always maintained her Canadian roots.

4. My earlier remark about the grandparents was intended to indicate their powerful presence in the lives of the husband and wife as well as the child and, perhaps sadly, it dominated these proceedings.  Counsel for the grandparents cross-examined the wife about what her connections were with Canada.  A map of Canada was produced along with an aide-memoir showing the various distances and travel times for the various people that the wife had nominated as her family and friends in Canada.  It was put to the wife that she had not lived in Canada for 13 years and by inference therefore, had no connection there but the wife’s response was that Canada was still her home. 

5. The focus of attention in these proceedings was on the nature of the relationships between the child and both his parents as well as the grandparents but also upon the impact on the child if the wife was required to stay in Australia to care for him.  The child’s best interests are the paramount but not the only, consideration.

The evidence of the grandparents

1. The grandparents’ position in respect of the wife was that she had been welcomed into their family from the outset of the relationship with the husband.  They described their love for the wife as being unconditional and that she was treated as a daughter.  They produced cards from the wife reflecting the warmth of the relationship that the wife had with them.  They set out their role in caring for the child to indicate that they cooperated with and worked well with, the wife.  Subsequent to separation when the wife went to Canada for extended periods without the child, they assisted in his care.  They had detailed in their affidavit, the number of days they had spent with the child subsequent to separation.  Whilst there was some inaccuracy in those details, the evidence highlighted the extent of their involvement in the life of the child.

2. Notwithstanding the position of the grandparents in saying that things could go back to normal if the wife remained in Australia with the child, it is hard to get over the fact that in their evidence, they were critical of the wife for refusing their assistance such as by preferring to put the child in childcare.  That tended to ignore the wife’s unchallenged evidence that the child was an only child who benefited from interaction with other children.

3. The grandparents’ view was that any mistrust the wife may have of them could easily be overcome.  Whilst I accept that that may be so in time, I accept the wife’s position that she feels distant from them now.  It is important to analyse that.

4. Although there was ample evidence of the significant involvement of the grandparents with the wife prior to separation, there was certainly discussion between husband and wife in which she expressed concerns about the grandparents’ intrusion.  In the various discussions between the husband and wife about her desire to live in Canada, a position was adopted that they would not tell the grandparents.  The husband said that there was nothing finite or agreed and as such, there was no point in raising it with his parents.  I find that that is not the case.  He knew the problems that would arise by raising the move.

Separation

1. When the parties separated, much of their focus appears to have been upon financial issues notwithstanding the very modest assets that they had.  Commendably, they engaged in a collaborative law process.  During the hearing, I expressed surprise that, with the simplicity of the financial position, this collaborative process took over a year and did not resolve anything.  That delay ended in litigation and the parties having to engage lawyers.  That was disappointing and exacerbated the parenting dispute that emerged after the financial solution was found.

2. As the collaborative process was coming to an end, the solicitors for the husband wrote to the solicitors for the wife indicating that if the wife endeavoured to alter the position of the time between the child and the grandparents, they would seek their own legal advice.  This was a highly controversial statement.  The husband denied he gave his solicitors those instructions and it was certainly nothing to do with the grandparents.  Following the letter, there was a meeting between the wife and the grandparents and they told her they distanced themselves from the statement.  I heard each of the relevant versions of what occurred and am satisfied that the discussion was cordial and frank but I find that the grandparents’ position was that they were insistent that their time with the child not be altered.

3. The wife’s evidence was that subsequent to the meeting which ended in “hugs” all round, the communication between she and the grandparents was largely by email and text message.  Whilst the grandmother conceded that was so, she pointed to the fact that that was the wife’s preferred method of communication.  I find that the wife did feel abandoned.

The husband

1. It was the wife’s view that the husband could organize his work life and career so that he could live in Canada or take a position that would enable him to go to Canada as part of his employment.

2. The husband impressed me as an honest man who had considered each of the proposals about changing his own working life.  He thought a move to Canada not practicable at the moment because, leaving aside family commitments, his corporate employer required him to have an Australian home port and they would not fly him to Canada.  He acknowledged the company had offices all over the world but that “flagships” were managed from Melbourne.  He had worked on a variety of shipping assignments but for his career advancement, he had to pursue the path he was following.  Ultimately, he wanted to be a ship’s pilot.  He was carefully probed as to what he could do but from a financial position, a change would not make much difference nor would it give him more time on-shore.

The grandmother

1. When the grandmother gave evidence, she said that there was no reason to suspect that things could not go back to what they were but it was clear that she had not made the move to fix the broken relationship with the wife.  Whilst everyone in this case was an adult, my view was that the grandparents should have taken a much more proactive role to support the wife.  They should have stepped back a little to allow for the sensitivities of how the wife was feeling.  Notwithstanding their very significant role in the life of the child to that point in time, the breakdown of the relationship between the husband and the wife meant that things would have to change for the child but the grandparents did not seem to accept that.  That was highlighted by the fact that they were parties to the litigation and gave instructions for the wife to be cross-examined.  It was further highlighted by the fact that the grandparents sought orders to see the child on a weekly basis.  If there was no difficulty in the relationship, those orders would clearly have not have been necessary. 

The grandfather

1. When cross-examined, the grandfather indicated that he would accept fortnightly visits when the husband was at sea.  In cases where one parent is absent, grandparents sometimes step in to ensure the parental line is not forgotten by the child.  Here however, the grandparents were focussing on their own relationship with the child.  The position of the grandparents was one of reluctance to alter their role in the life of the child.  Accordingly, I have reservations about whether the relationship between themselves and the wife can be as easily mended as the grandparents would have me accept.

The wife

1. A very significant part of any parenting capacity is the capacity of the wife to cope with being required to remain in Australia for the sake of the child where she currently feels isolated and as she described it, she felt she was serving a prison sentence.  I have no doubt that the wife is unhappy but it is not impacting upon the life of the child nor do I find that it is likely to in the future.  I turn then to the evidence much of which was about that.

Dr n

1. In November 2010, the wife sought assistance from counselling/psychologist Dr N.  The referral to Dr N came about as a result of a benefit that the employers of the wife provided to staff. 

2. The wife saw Dr N in November and at the hearing before me, had seen him some nine times for just under an hour on each occasion.

3. Dr N has impressive counselling qualifications but I do not accept that he has the capacity to diagnose clinical depression nor any other form of mental illness.  I do not accept that he has provided the wife with a diagnosis or for that matter a prognosis of what might occur.

4. Dr N’s method of dealing with his clients was to allow them to take the lead and talk whilst he listened.  He adopted a counselling approach did not normally use questionnaires.  He made assessments of his clients’ needs as he went along and only made and kept, cursory observations after each visit.  No detailed notes were kept of specific discussions.  This caused some questions because of the assessment by Dr N on 31 January 2011 when he said:

   It is my strong belief that she would endure a great deal of psychological despair if denied the opportunity to return home to Canada where she would be expected to thrive personally and professionally.  Should she be confined to Australia I would be concerned that she would be vulnerable to developing an Adjustment Disorder with Mixed Anxiety and Depressed Mood as outlined in the Diagnostic and Statistical Manual of Mental Disorders.  I would also be concerned about the potential negative emotional effects on [the child] if his mother is confined to Australia against her wishes by parenting arrangements.

5. By 31 January 2011, Dr N had had four consultations with the wife and no suggestions of vulnerability appeared in the cursory observations which he made at the end of his counselling sessions.  No comprehensive history appears to have been taken by Dr N at least observable from his notes.  Importantly, no strategies or plan were in place about how to deal with the possibility of the wife remaining in Australia.  Dr N said that in his work with the wife, he felt no basis to give the wife a diagnosis.

6. Dr N observed a change in the wife from happiness to tearfulness on a regular basis when the topic of her staying in Melbourne was raised.  Encroaching on that subject led her to distress.  In his view, Dr N thought that the wife’s despair came about from a combination of emotional suffering and behavioural change manifested as feelings of being dejected, depressed, low mood and home sickness.  He then said that the wife was vulnerable although he thought that that was hard to quantify.

7. Dr N’s solution was for ongoing counselling and contact with the wife’s Canadian “loved ones”.  Importantly, he thought that there was no reason to think that the wife’s parenting would be diminished although she could be affected if she was emotionally upset. 

8. Three considerations arise out of that evidence.  First, counselling was seen as being helpful.  Secondly, contact with Canada but not necessarily living there was seen as helpful.  Thirdly, the wife’s distress at not living in Canada would not necessarily adversely affect her role with the child.

9. It is interesting to note that when Dr N wrote a letter on 31 January 2011, no indication had been recorded by him of any vulnerability despite the fact that he conceded that each occasion he had seen the wife dissolve into tears.  It was only when the wife sought his professional opinion for court purposes that Dr N wrote his concerns about her vulnerability.  Having regard to his observations of the manifestations of the wife’s feelings, I do not accept as at 31 January 2011, the wife’s position was vulnerable in the sense of being unable to parent the child. 

10. Dr N conceded that the validity of his views about the wife’s capacity to cope with staying in Australia depended upon the accuracy of the history he had been given.  Accuracy is also dependent upon comprehensiveness.  I am not satisfied that Dr N was in a position after such a short period and with limited instructions, to make an assessment that the wife would not cope if she was required to stay here in Australia. 

11. Dr N was at pains to point out that the worry of the wife about being able to move to Canada was not her only problem but it was certainly the central one.  The wife led the discussions with Dr N and his approach was a contemplative one.  He did not have time to suggest strategies but even if he had, it seems that it most likely would have meant more counselling.  He certainly did not recommend medical treatment.

12. On the evidence therefore, I could not find that the wife’s parenting even distressed though she may have been, would adversely affect the child if he remained in Australia with her.  I accept without any hesitation her unhappiness in being required to stay but she is sufficiently focused, strong-willed and resilient never to let her standard of parenting drop.

Ms K

1. Ms K is the wife’s cousin.  There is a significant age difference between them but it is clear that they have a positive and close relationship.  Ms K lives in Canada.  She confirmed that after the husband and wife separated, the wife expressed her unhappiness at remaining in Australia and her feelings of loneliness and isolation.  She said the wife told her she wanted to return to Canada to be close to her family and support network.  In April/May 2009, Ms K spoke to the wife in Canada and talked about feeling trapped in Melbourne.  Having regard to the timing of the conversation, I am not surprised the wife said she was not happy about her circumstances.

2. Ms K was an honest witness.  She would have a limited role in the life of the wife and the child in Canada but one which would no doubt be important.  That could continue from afar by electronic means and by periodic visits. 

Ms H

1. Ms H is a close friend of the wife who lives in Canada.  They have kept in touch whilst the wife has been in Australia.  She is sufficiently close to the wife to have been a financial supporter by investing money in a small business conducted by the wife for which no return or demand has been made.

2. Ms H said similar things about being supportive of the wife.  I find her to be genuine.  She will have a role in the wife’s life but she could not be a person whom the wife could rely on for daily physical help with the child.  Her role would be an emotionally supportive one.

The evidence of the family consultant

1. Mr S is a family consultant with 23 years experience in the Family Court of Australia.  He holds professional qualifications in social work.  He prepared a family report and interviewed the parties.  He was required for cross-examination. 

2. A family consultant is a witness much the same as any other with expert opinions.  To be able to properly express an opinion as an expert, the witness must be qualified, set out the facts upon which the opinion is given and refer to supportive research if it forms the basis of the opinion so expressed.  Mr S did all of that.  All parties accepted his expertise.  Importantly, I accept the evidence of Mr S.

3. In his evidence, the family consultant restated what the parties had told him and save for some minor and irrelevant matters, those were accurately recorded.

4. The family consultant noted a lack of trust and tension as a result of the litigation process along with differing perceptions and expectations regarding past issues, motives and events.  However, the family consultant noted that the adults appeared mature, reasonable, cooperative and attuned to the needs of the child.  He factored in the stress associated with the litigation. 

5. The family consultant recorded the wife as noting that it would not be nice to be forced to stay and that she would be devastated and afraid of the future.  He quoted her as saying that she felt trapped and lacking belief that the people who said they would support her, would do so.

6. The family consultant noted that the wife had been seeing Dr N not only because of the separation but also the legal proceedings and the fact that she needed someone to talk to.  Her quoted her as saying that she was not going to have a breakdown and therefore did not require medication but that had to be put in the context of the foreseeable future.  The wife gave evidence about her resistance to the use of medication and I accept that she was talking about a complete collapse.

7. The family consultant found the husband pleasant.  As I have previously indicated, the husband said that the announcement by the wife of a desire to go to Canada came as a complete and utter shock to him.  That is what he told the family consultant.  When tested under cross-examination however, I do not accept that that was in fact his position.  Whilst the timing of the wife’s announcement may have taken the husband by surprise, it was certainly not a new concept.  It was hardly an “utter shock”.

8. The husband told the family consultant about discussions that he and the wife had had over the move to Canada during their relationship and that there had been no agreement about it.  That too has to be put in the context of the fact that it was a regular discussion.

9. It was certainly not a whimsical or occasional discussion but was something that was seriously discussed.

10. The husband also told the family consultant about the “character” of some of the relatives of the wife but when carefully examined, it is clear that the husband would have no concerns for the physical or psychological safety of the child in the wife’s care if she went to Canada.  I am not as confident about the grandparents’ views but I accept that the husband’s view of the wife is more realistic and balanced.

11. When the family consultant interviewed the grandparents, he recorded them as saying that it was the wife who rejected them and distanced herself from their attempts to be conciliatory.  That too is not a view I would accept.  In cross-examination as I have already indicated, the grandmother conceded that whilst willing to be supportive of the wife, no such move had been made since the litigation began.  To the family consultant, the grandfather expressed regret and a “certain amount” of mistrust towards the wife but when analysed in cross-examination, that also was not really his position.  He gave no indication of doubting the focus of the wife.

12. All of these altered slants on the observations of the family consultant however do not alter the validity of his opinions.

13. The family consultant said that tensions were obvious but parties were cordial and well-behaved.  They had been able to organise contact for the child and were able to rise above their negative feelings for the benefit of the child. 

14. The family consultant observed the child to be overjoyed at seeing his parents and grandparents and there was no reticence on the child’s part.  He opined that the antithesis of that occurred with children who had divided loyalties or who were attempting to hide or enhance their feelings towards one or other parent or adult.  Nothing like that occurred here.  The parents were able to take the child to lunch together and all appeared well.

15. When focussing on the best environment and relationship for a child, it was the evidence of the family consultant that there had to be amicable and respectful relations between the parents, clear lines of communication and trust, absence of arguments and hostility and a close geographical proximity. 

16. The family consultant observed that the criteria mentioned above had been met notwithstanding the mistrust between the adults.  There could be no suggestion of any concern about the views of the parties concerning the child.  The family consultant said that it was the quality of the contact that was the key element for a positive outcome.

17. In relation to the child, all of the indicea referred to above would change if the wife went to Canada.  Despite optimism expressed by the grandmother and the husband, I do not accept that the previously close relationship between the wife and the grandparents will be healed in the foreseeable future for the reasons I have outlined.  The family consultant recommended counselling and therapy and whilst that is a commendable approach, I have little doubt that the wife’s view is that she would be being held in Australia against her wishes as a direct desire of the husband and the grandparents.  That view creates a large barrier for a resolution of the relationship problem.

18. As to what was appropriate for the child, the family consultant said that whilst there was no direct psychological research focussing on the impact of relocation on children and parents following separation, there was considerable research and knowledge regarding the relationship of the variety of variables that contributed to children’s well-being.  Those matters could be seen to arise if the child went to Canada. 

19. The family consultant said that following separation, parents should make a concerted effort to remain as close as possible to each other as well as with extended family members and friends.  Whilst that was not always feasible, a conscious move a long distance away must have a significant impact upon the stability of the relationship.  The family consultant said that the child would miss out on the quantity of contact and whilst quality was important, quality could not arise without quantity as well.  In this case, there would be a very significant change in the quantity and hence the quality for the reasons I have earlier outlined.  He said it was not in the child’s best interests for a parent who had been significantly involved in the child’s life to have that reduced because of a relocation.  The child would also be taken away from an environment with which he was familiar as well as his daily routines.

20. The family consultant was cross-examined at length about his views.  He acknowledged the importance of the ability of a child to feel happy and secure and to a large degree that was influenced by the health of the mother.  He saw however that it would be difficult for the child to settle in Canada where would only be the mother who could provide security whereas in Australia, there were a number of people.  Those people were not just backstops, they were significant attachments.  A removal from that environment would create a loss for the child.

21. The family consultant contemplated the prospect of a move being delayed and felt that the older the child was, the better he would be able to deal with the issues confronting him.  He thought that it was preferable therefore that the child be at least 5½ or 6 years of age.  However, he then added that there would still be a sense of loss and disruption.  He came back to the point that quantitatively, things changed significantly after a relocation.  If there was to be a move, it should be later rather than at the present time because the child would not understand what was happening even though he had a very clear memory of each of the significant adults in his life.  The family consultant said that the child was not in danger of losing any cognitive understanding of who these people were and he gave an example of the fact that the child was able to rationalise the fact that his father was going away on a ship.

1. Of the wife’s need to be with her family of origin, the family consultant said he had no evidence to help him largely because the husband and the grandparents maintained that the wife was not close to her family.  As I have previously indicated, I do not accept that there is any uncertainty about this issue.  The wife simply wants to go home.  I accept it had always been her desire throughout the marriage to return at least for some period to Canada.  I accept she has close friends and a sister in Canada.  The depth of those relationships is not deep but they are important because for the wife, the relationships she has in Australia are currently tentative. 

2. The relationships in Canada are emotionally supportive but not as practical or physical as the support the wife has in Australia with the husband and the grandparents.  As the family consultant opined, the move to Canada would be to a place where the physical supports would be substantially different.  The wife’s evidence was that she had accommodation, friendship and would not seek employment.  However, I find the assistance for the child would clearly be lacking by comparison to here.

3. As for the wife’s need to go home to Canada, despite her long absence from Canada and the unfortunate tragedy of her mother’s early death and the insensitive way her father handled the wife’s later teenage years, I think the grandparents’ view misunderstands the wife’s real need to have place where she feels wanted.  The family consultant accepted that.

4. Thus, the family consultant was of the view that whilst the wife could turn to her support base, the child would only have her because of the relationship with the husband and the grandparents.  That would be significantly changed if he went to Canada.

5. The family consultant dealt with the economics of the wife’s move but in my view nothing turns on that.  The wife is and always has been, a resourceful person and I have no doubt that the husband would assist her.  From an accommodation perspective, the wife would have the necessary assistance provided to her in Canada as well as the prospect of financial assistance here in Australia. 

6. The family consultant looked at the wife’s possible new relationship in Canada which I have not earlier mentioned.  The wife has developed a friendship with a man whose family ties preclude him from coming to Australia.  The friendship is in its infancy notwithstanding the wife has known this man for some time.  Its relevance is marginal.  I am satisfied that that is not why the wife wants to move to Canada.  She made clear that to her, whilst the relationship was desirable, it would be secondary to her parenting responsibilities.  The relationship in Canada which the family consultant was contemplating also has to be seen in the context of the evidence of the husband who had no concerns about the wife’s parenting capacity.  The husband too faces a significant upheaval in his life because he is an expectant father to a woman whose relationship with him is in its infancy.  At the time of the hearing, they were not living together.

7. The gravamen of the family consultant’s opinion however was that research showed that children were better off if they had access to a meaningful relationship with both parents as well as significant other adults.  The quality of the child’s time was important.  The nature and relationship of the contact were far more significant than the frequency or actual time spent.  He pointed to the fact that the husband was away for considerable periods of time yet a sound, secure and loving relationship existed between the child and the husband.  It is important to recognize that that was because of the absence of negative factors and the cooperative and reasonable relationship that existed between the caregivers.  The parents and particularly the wife must be commended for that.

8. The family consultant opined that the reality of an international relocation was that the child would experience significant disruption moving to new and unknown places and away from familiar and predictable routines.  He said that routine and predictability in the lives of children maximised their potential.  Although the wife endeavoured to say that her time proposal gave the husband more time than he presently had, I accept that it is the nature and quality of the time that is far more important.  I have earlier mentioned the change in the nature of the time that would be spent from that which the child currently enjoys.  Those were factors supported by the family consultant.

9. The family consultant said that a child living in a different community would have an entirely isolated social network of family, friends and peers all of which had to be developed.  The child would be starting all over again and whilst he would be able to establish that in school, he would clearly miss his father and grandparents.

10. The family consultant was cross-examined about his views but remained unmoved.  He said that the child had a basic but not total command of time and space but he did have the basic developmental tools of memory, secure relationships and a sense of continuity to cope with a relocation.  It would however require diligent and consistent input from the wife and I have no doubt that that would occur.  He fell back on the fact that if a move was contemplated, it would be better to make the move later if it was to be made at all.

The wife’s functioning as a parent

1. Turning to the wife and her functioning, the family consultant agreed that there was a positive correlation between the psychological well-being of the residential parent and the overall adjustment of the child.  The family consultant had read the views of Dr N.  He noted that if the psychological dysfunction were to eventuate, the wife’s parenting of the child would be affected as would the psychological well-being of the child be compromised.  Having regard to the views that I have earlier expressed about the evidence of Dr N, I do not think that I need to be concerned about that risk.

2. I find that the wife is a very focused parent who would not let anything harm the child.  She has the distraction of her work life and the knowledge that the husband is supportive of her.  The child is a happy and unaffected child and that is a credit to all parties but particularly to the wife.  The wife has borne the greater difficulty in the separation having seen herself as losing her husband, family and local friends.  Whilst that may not be the view of the grandparents, I accept that it is the genuine perception of the wife.  I suspect from her demeanour and the evidence of the family consultant, the wife will overcome those problems and revel in the achievements of the child. 

3. All of the matters to which I have just referred however are simply pieces of the picture of what is in the best interests of the child particularly having regard to the fact that his mother expresses feelings of isolation, friendlessness and a desire to go home to Canada. 

The submissions of the parties

The Independent Children’s Lawyer

1. Counsel for the Independent Children’s Lawyer announced his instructor’s position at the conclusion of the evidence which was to support a move by the wife but not immediately.

2. In the written submissions, counsel noted the difficulty of the decision. It was submitted that the mother’s desire to return to Canada was “very sincere and strong”. Reference was made to the litigation process after the arduous collaborative law process to which I have already referred as an indication of the wife’s sincerity.

3. The Independent Children’s Lawyer pointed to a concern that if the wife remained unhappy arising out of the inability to achieve what she wanted, she “may not be as emotionally available to” the child as she had been to date. I do not accept that to be the case.

4. The Independent Children’s Lawyer submitted that on balance, a return to Canada would most likely result in the wife “feeling free, supported and loved” and thus able to provide a proper nurturing environment for the child. Having regard to the findings about what would occur for the child if he went to Canada, I am not prepared to accept that the mother feeling free and loved would necessarily assist the child. The support referred to is at best emotional and not likely to make a huge difference to the life of the child who would clearly miss his father, grandparents and well-settled environment.

5. Accordingly, I reject the proposal of the Independent Children’s Lawyer.

Position of the husband and wife

1. Each of the husband and wife put forward proposals about time between themselves and the child. The husband’s time was more defined than the wife but each said that they would work co-operatively about the time if the child remained in Australia. The husband’s proposal was predicated on the child being in daycare. That will not be for much longer as school will not be far away. Collection and delivery issues were not widely canvassed in the hearing but the wife made it clear that should she remain in Australia, she wanted to be within the locale which was convenient for her and schooling of the child. The husband’s own residential situation is fluid because although he has now his own accommodation, there are the mooted changes later this year relating to his new partner.

2. In a succinct summary of the wife’s position, her counsel submitted that the “reality of the situation” for the mother was (inter alia):

   (a)she had no family in Australia and very limited friendships which meant she had no emotional supports and no physical support and the husband’s absences did not assist her;

   (b)the relationship with the paternal grandparents was perfunctory;

   (c)she had a deep and long-standing desire to return to Canada and being required to remain here would be like a gaol sentence; and

   (d)she would suffer a great deal of psychological despair if unable to return to Canada.

3. The proposed move to Canada would, from the mother’s perspective, resolve all of those things but I am unconvinced they would be best for the child.

4. As for the suggestion that a move to Canada could be delayed, it was submitted that it would require the adults to put their lives on hold and may cause a further deterioration in the adult relationships.

5. The husband’s position was that orders should be made that the child live with the wife and that whilst he was on shore, he have time with the child during each alternate week from Wednesday to Friday in the first of two weeks and Wednesday to Sunday in the second of the two weeks. The husband’s time on shore was based on four weeks on and four weeks off.

6. In closing submissions, counsel for the husband argued that the husband was seeking substantial and significant time with the child and a move to Canada would preclude that. He submitted that the evidence supported the fact that it was in the best interests of the child for there to be substantial and significant time.

7. It was argued by the husband that whilst the wife’s desire to go to Canada was genuine, it was not new and that as she was prone to exaggeration, the husband’s version of the evidence should be accepted where there was a difference between them. He pointed an incident at Christmas 2010 where the wife did not get to see the child but I do not accept that I can take one incident and criticize the wife for what I consider was at best confusion and at worst, a lack of communication for which all parties have to take responsibility.

8. Counsel for the husband addressed the wife’s “unhappiness” point and submitted that she was strong, social and adaptable. He referred to her childhood background and how she had previously dealt with adversity. He submitted that the unhappiness events had to be looked at in the context of her family and friends visiting. Again, I do not accept that and find that the wife has always wanted to ultimately return to Canada.  The question is whether the “unhappiness” is such as to affect her parenting. I do not accept that the evidence would enable me to make such a finding.

9. The husband addressed and rejected the proposal of the Independent Children’s Lawyer about the delayed move. Because I have addressed that below, I need not address it here.

10. In his written submission, counsel for the husband said that a move by the husband to Canada was not reasonably practicable. He said:

    He has said he won’t. It is submitted that it would not be reasonably practicable for him to do so; at best it would require real sacrifice from a career and income perspective, as well as removing him from his family and friends, in particular his new partner and expected new child. If it is undesirable to restrict the movement of the wife, it is a much greater evil to compel a move by the Husband.

11. It is timely to remember the salutary words of Gaudron J in U and U (2002) 211 CLR 238; [2002] HCA 36 at para 37 that it is essential (to avoid the possibility that the wife’s interests are not properly taken into account) that, in relocation cases, each competing proposal be separately evaluated.

12. It is important for me to say that I am not approaching the determination the way counsel put his submissions.  I think that approach offends the principles to which I have just referred as propounded by Gaudron and Kirby JJ. The wife has made significant sacrifices which are not just economic; they are emotional and possibly psychological. The husband has the support of his family of origin but he also has the familiar surroundings of a community into which he was born. Because of decisions made at a time when the parties were much better suited to each other emotionally, each made decisions which may not be ones that suit them now. The husband has a portable set of professional skills that the wife encouraged and helped him achieve. The husband has a desired professional goal but he conceded he could lower his sights and take something less suitable. The wife has the portable parenting skills that the husband has been content for her to continue to fulfil but what she does not have here in Australia is a support base of not only family but also community. Unfortunately in this case, I am not convinced that life for the child would be better in Canada because he would be away from the security of the family and environment that he knows so well.

13. It is also important for me to point out the obvious that the husband argued that he had a new partner who was expecting a child. That could hardly be a relevant factor when the husband was not living with his partner nor were any details known about his future role in the life of the child en ventre sa mere.

14. Accordingly, I completely reject the underlying assumption that there is an “evil in compelling” a move by the husband to Canada. It was not a proposition that was seriously pursued by the wife. Her position was that he could enjoy the relationship with the child by being able to come to Canada with flexibility and having regard to his consistent absences at present, the child would not see much less of his father. Unfortunately, I do not accept that time is the issue in this case.

The grandparents’ position

1. The orders originally sought by the grandparents were that the child spend time with them each week from Friday through to Saturday.

2. In final written submissions, counsel for the grandparents submitted they had a distinct place in considering the welfare of the child. It was argued that the child enjoyed a unique relationship with his grandparents to his benefit and that a move to Canada would end the enjoyment. The grandparents too rejected the delayed approach of the Independent Children’s Lawyer. Counsel for the grandparents argued the evidence did not support the proposition that a move to Canada would change her unhappiness nor was there any evidence of a social or family network that would benefit the child.

The legal issues

1. In the parenting proceedings, both husband wife sought that the Court make an order that they have equal shared parental responsibility. That agreement and consequent order has ramifications for the legislative pathway in s 65DAA of the Act.

2. When making a parenting order, the Court must regard the best interests of the child as the paramount consideration.  I have already indicated that it is not the only consideration.   

3. In AMS and AIF (1999) 199 CLR 160; [1999] HCA 26, Kirby J when referring to nine general principles about relocation of a child’s residence said in relation to two:

   143.Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.

   144.Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.

4. Section 65DAA requires a court to consider time between parents and children if the parents are to have equal shared parental responsibility. The time considerations are said to be in the context of what is in the best interests of the child. The note to s 65DAA(1) refers to the fact that the “effect” of determining what is in a child’s best interests requires the Court to have regard to the interests of the child as the paramount consideration. The section therefore says the same things as were said by Gaudron and Kirby JJ above. Thus the exercise is one of examining each of the parties’ proposals for the child and determining which best promotes his welfare.

The best interests indicia

1. In determining what is in the best interest of a child, the Court is required to consider the matters set out in s 60CC. In this case, if s 60CC is treated as a checklist, all of the indicia show that it is important for the child to be close to both of his parents.

2. The child has a meaningful relationship with both of his parents.  Despite the significant absences at sea, the child has always recognised his father and understood the absences.  Neither party accused the other of any conduct which would indicate that they were not child-focussed.  There is no suggestion in this case of any physical or psychological harm to the child arising from the conduct of either the husband or the wife.  There is no family violence in this case.

3. The child is too young to have his views seriously considered. 

4. There is also no dispute in this case that the relationship of the child with all parties is a very close and loving one.  All parties would do everything they could to protect the child from any harm.  I am satisfied that the child has not been told of the litigation nor of the prospect of moving away from Australia. 

1. In the context of all of the evidence therefore the balance favours the child remaining in Australia. 

I certify that the preceding One Hundred and Fifty One (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 June 2011.

Associate: 

Date:  9 June 2011