Fowler and Brume

FAMILY COURT OF AUSTRALIA

FOWLER & BRUME

[2010] FamCA 909

FAMILY LAW – PARENTING PROCEEDINGS – Father’s application for equal shared parental responsibility and that the child lives with the Mother provided the mother does not move outside the Commonwealth of Australia – The mother’s relocation is subject to other proceedings – Court of the opinion that the parties should have equal shared parental responsibility for the child – Mother permitted to remove child from Commonwealth of Australia provided child is returned before 30 June 2011 and the mother registers the orders made by this Court in the Netherlands prior to removing child from Commonwealth of Australia – Whilst child absent from Commonwealth of Australia child to have contact with father as proposed by the mother and Independent Children’s Lawyer – Family Law Act1975(Cth) ss60B, 60CC, 60CA, 65 DA , 65DAA – Hague Convention on Civil Aspects of International Child Abduction

Family Law Act1975 (Cth) ss60B, 60CC, 60CA, 65 DA , 65DAA
Hague Convention on Civil Aspects of International Child Abduction

BP Exploration Co Libya Limited & Hunt 91 NSWLR 496
U v U (2002) 211 CLR 238
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705

APPLICANT:

Mr Fowler

RESPONDENT:

Ms Brume

INDEPENDENT CHILDREN’S LAWYER:

Ms M. McMahon

FILE NUMBER:

MLC

3098

2010

DATE DELIVERED:

18 June 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman J

HEARING DATE:

16, 17 & 18 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC

SOLICITOR FOR THE APPLICANT:

Lucy Daniel
Nichole Family lawyers

COUNSEL FOR THE RESPONDENT:

Ms Carter

SOLICITOR FOR THE RESPONDENT:

Ms Billeam

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Leeton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Marika McMahon
O’Farrell Robertson McMahon

Orders

That the Mother and Father have equal shared parental responsibility for the child J (“the child”) born … April 2001.
That whilst the Mother is living in the Commonwealth of Australia:
(a)       The child shall live with the Mother.
(b)       The child shall spend time with the father at times agreed between the parties and in default of agreement:
(i)From the conclusion of school on Thursday until 8.00pm;
(ii)From the conclusion of school on Tuesday until 8.00pm;
(iii)Each alternative Saturday from 10.00am until 5.00pm; and
(iv)     At such other and further times as may be agreed between the               parties from time to time
(c)       The child shall communicate with the Father by way of webcam and      MSN messenger each Sunday, Wednesday and Friday at 5:00pm or as     otherwise agreed between the parties.
That in the event of the mother leaving the Commonwealth of Australia in order to return the child N to the Netherlands in consequence of orders made by the Family Court of Australia pursuant to the Regulations of the Said Court importing the provisions of the Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) into the laws of Australia the mother shall be entitled to remove the child J from the Commonwealth of Australia provided that:-
(a) The said child is returned to the Commonwealth of Australia on or before 30 June 2011.
(b) The orders made this day are registered by the mother with a Court of competent jurisdiction in the Netherlands prior to the removal of the child J from the Commonwealth of Australia.
That during any period that the child J is absent from the Commonwealth of Australia pursuant to these orders, the mother shall ensure that J communicates with her father:_
(a)       By Skype or other webcam communication once per week;
(b)       By email at least once per week; and
(c)       By MSN daily.
That the mother shall further during such periods establish and maintain a “blog” which can be accessed by the father’s extended family members. Maintenance of the blog by the Mother shall require her to post and/or assist J and N to post weekly entries, including photographs, outlining events and achievements in that week.
That each party has permission to restore the proceedings to the list on 7 days notice to the other parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3098 of 2010

MR FOWLER

And

MS BRUME

EX TEMPORE

REASONS FOR JUDGMENT

The proceedings which are before the Court for determination are parenting proceedings relating to the child of the parties, J Fowler, who was born in April 2001. J who is accordingly aged nine years. The parties to the proceedings are the natural father of the child, to whom the Court will refer as the father, and her natural mother, to whom the Court will refer as the mother. The application by the father, as formally pleaded in an amended application filed 16 June 2010, seeks orders in the alternative, which are dependent upon whether the mother continues to reside within the Commonwealth of Australia.
In the event that the mother does continue to reside in the Commonwealth, the father seeks orders that there be equal shared parental responsibility for the child, that the child live with the mother and spend time with the father at times agreed between the parties and in default of agreement, at the times referred to in paragraph 4B of his amended application filed 16 June. The father further seeks that the child communicate with him by way of web cam and MSN Messenger on three occasions per week, as identified in paragraph 4C of his application, or as otherwise agreed between the parties.
The orders thus sought by the father are consented to by the mother. Lest it be thought, as apparently it has by some funding authorities, that that measure of agreement masks a dispute or a real dispute, it is the second part of the father’s application and the mother’s response to it and the stance of the Independent Children’s Lawyer, (hereinafter referred to as the ICL), which give rise to a very real and difficult controversy.
The real matter of contention, although it has been agitated in a thankfully respectful and civilised way, is nonetheless intense, and the stakes for both parent and the child, J, could only be described as extremely high. In the event that the mother lives outside the Commonwealth of Australia, about which more will necessarily shortly be said, the father seeks that J live with him and his adult daughter, G Fowler, at the father’s residence, and that the mother spend time with J within the Commonwealth of Australia on a basis to be agreed between the parents.
The father further seeks that the mother communicate with J by way of webcam and MSN Messenger on numerous occasions per week. In submissions on his behalf, at the conclusion of the trial, learned senior counsel for the father informally put to the Court two alternatives to the pleaded application of the father. The first of those was, and was in the alternative to the pleaded position of the father it should be made clear, that the child, J, remain within the jurisdiction of the Commonwealth until the determination of any proceedings in the Netherlands between the mother and a Mr C, to whom reference will shortly be made, with respect to a child of the relationship of the mother and Mr C.
Further in the alternative, senior counsel for the father embraced a possible outcome raised by the Court with the parties for the benefit of submissions from the parties in relation to it; namely, that if, as the mother seeks, she be permitted to remove J from the Commonwealth of Australia as a consequence of the outcome of other proceedings to which reference will also shortly be made, the mother be permitted to remove J from the Commonwealth on the condition that she return her on or before 30 June next year.
The mother’s position is that if, as she hopes she will be able to, she continues to reside within the Commonwealth of Australia, the scheme of orders sought by the father be implemented. That scheme of orders is, broadly speaking, essentially what happens at present and has happened for approximately 15 months. Where the parties differ is that in the event that the mother, though not ordered to leave the Commonwealth, is for practical purposes obliged to as a result of the determination of other proceedings pending in this Court, the mother seeks to be able to remove J from the jurisdiction of the Court on what, it is now known in the light of the evidence, is potentially an indefinite basis.
To be fair to the mother, her evidence makes clear that she hopes that if she has to leave Australia, she would, by virtue of proceedings she would take in the Netherlands, be able to return to Australia in the shortest time possible. The mother’s case, not surprisingly, having regard to the evidence, has continued to be that if she is obliged to leave Australia, she be permitted to remove J and retain her beyond the jurisdiction until such time as she is able to return, whenever that might be.
In the alternative, and without in any way resiling from her primary position, counsel for the mother submitted to the Court that if the Court were minded to allow the mother to remove J from the jurisdiction but place a time constraint on the period during which she could do so, that time period not expire before the end of next year.
The ICL has substantially supported the position of the mother in the proceedings. In his outline of case document, learned counsel for the ICL, at the second-last page, from about point 7 to the completion of the last page of such outline, indicated the basis upon which he submitted that the mother should be allowed to remove J from the jurisdiction if it becomes necessary for the mother to absent herself from the jurisdiction.
Whilst on one scenario there is no dispute in this case, for reasons which will become apparent, that scenario is by no means assured as an outcome. In the event of another scenario materialising, and there must be a real prospect that it will, there is a very difficult decision to be made in terms of J’s attachments to each of her parents. Some background to this litigation by reference to other litigation will hopefully make clearer what this dispute is about and how it comes about.

The Issues

It is not in doubt that the current proceedings arose after, and were necessitated by, an application by a Central Authority at the instigation of Mr C, pursuant to the provisions of the Hague Convention on Civil Aspects of International Child Abduction, (hereinafter referred to as the Hague Convention). The application brought in this country by the Central Authority relates to a child, N, who was born in March 2008. The mother in these proceedings is N’s natural mother. Mr C, who is, it appears, ordinarily resident in and resident and domiciled in the Netherlands, is the natural father of that child.
On 31 May this year Bennett J rejected an application by the mother to dismiss the application brought by the Central Authority pursuant to the Hague Convention. That application remains to be finalised. As the record of the proceedings in this Court would confirm, this Court has not read Bennett Js reasons for judgment. Nor has counsel for any party invited it to do so.
The evidence before this Court establishes that if the Hague Convention proceedings result in an order for N’s return to the Netherlands, the mother will accompany N to the Netherlands. In those circumstances, the second aspect of the proceedings before this Court, becomes extremely controversial and difficult. In that eventuality, either this Court makes orders permitting J to be removed from the jurisdiction, with potentially devastating consequences for her relationship with her father, for a potentially indefinite period, or declines to do so, placing the mother in the position where J’s relationship with the mother, for a potentially lengthy period, is placed at risk or the mother, in preserving that relationship, suffers the highly undesirable outcome of having N removed to the Netherlands without her. The evidence is that, not surprisingly perhaps, the lesser of two evils would prevail, that is the mother would, albeit reluctantly, leave the elder of her children here rather than leave her two-year-old daughter to return to the Netherlands without her.
The Court has no evidence of what the laws of the Netherlands would provide with respect to a dispute between the mother and Mr C in relation to where N would live. The learned authors of Nygh’s Conflict of Laws in Australia, 8^th edition, page 362, discuss the presumption that foreign law is the same as that of the Forum and state:
The Forum, when faced with a question which is governed by the law of a foreign country starts as a general principle with the presumption that the law of that country is the same as that of the Forum unless proven otherwise.
Some of the limitations on the presumption were discussed by Hunt J of the Supreme Court of New South Wales in BP Exploration Co Libya Limited & Hunt, reported in 91 NSWLR 496 at 503, where his Honour said:
The application of the presumption is intended to operate against, not in favour of, the party whose obligation it is to prove the foreign law.
The Court understands the authorities and the commentary on them in Nygh’s Conflict of Laws in Australia mean that this Court can presume that proceedings in the Netherlands between the mother and Mr C with respect to N would be conducted under the umbrella of the best interests principle, that the principles of natural justice would apply, and that there would be the ability to seek the expedition of the determination of proceedings of the kind which would be likely to occur in the Netherlands.
As the authorities make clear, quite apart from the absence of any expert opinion evidence which could provide a basis for doing so, this Court cannot second-guess what might happen in the Netherlands. What will happen in the Netherlands this Court cannot know or make any predictions about. There is no evidence before this Court that any proceedings have been commenced in the Netherlands. Obviously, if the mother is not obliged to return N to the Netherlands, there would be no need for her to commence any such proceedings.
Conversely, depending upon a number of contingencies, the mother may be powerfully motivated to commence proceedings in the Netherlands. Time will tell, and no one knows what will happen. Unfortunately, what relief, if any, Mr C will seek in the Netherlands cannot be stated with confidence. Learned counsel for the mother used the apt expression, “keeping his powder dry” in relation to Mr C’s position. Initially, it appeared that Mr C was seeking to secure N’s return to and residence in the Netherlands for a period of two years. In emails in recent times between the mother and Mr C, Mr C has studiously avoided committing himself to that or any other particular course.
As is patently obvious, what happens in the part-heard Hague Convention proceedings determines whether the child, J, will uncontroversially remain in Australia, as both her parents wish and have a continuing meaningful relationship with both her parents or, as of necessity will occur, have her meaningful relationship with one of her parents seriously compromised in the event of the mother being, for practical purposes, obliged to return to the Netherlands.

Material Facts

Some dates and events relative to the parties and their lives and history are necessary to provide a background to the proceedings which have been heard in this Court.
The father was born in 1947. He is now aged 63 years. The mother was born in 1970, which means she will shortly turn 40 years of age. The father has two daughters of a prior relationship: G, who was born in 1982, is aged 28; and B, who was born in 1984, and is aged 26. Both the father’s adult children have a good relationship with J. G is an essential part of the father’s proposals for J’s care if she is to reside with him.
In 1983, at age 36, the father suffered a stroke which led to his suffering a condition described as “locked-in syndrome”. The condition has profound impacts on the father’s life and on any reasonable determination of the proceedings before this Court.
In 1993 the mother moved to Australia. The mother and father met in about 1998 and commenced a relationship in about 1999. J was born in April 2001. The parents separated in early 2004. At the end of 2005, with the consent of the father, the mother returned with J to the Netherlands.
Shortly thereafter the mother commenced a relationship with Mr C. In late 2005, the parties appear to have reached an agreement that the mother and J could continue to reside in the Netherlands, provided that they would return for a period of 10 calendar weeks during each year thereafter, in which that occurred.
In late 2006, in the absence of court orders, it must be acknowledged, there having been none prior to the commencement of these proceedings, the mother and J returned to Australia for four weeks. To the extent that there is controversy in relation to why that was four and not 10 weeks, on balance the Court accepts that there were reasons why the agreed period was not enjoyed by J with her father to the fullest extent the parties had agreed.
The following year, 2007, the mother and J again returned to Australia, again without any court orders, this time for a period of between five and eight weeks, depending upon whose version of the time one accepts. Not a great deal turns on whether it was five or eight weeks, the point being it was a significant period, albeit not of ten weeks duration, and it was not one which occurred in the shadows of a court order to that effect.
In March 2008, the child N was born in the Netherlands. In early 2009 there was discussion between the parties in relation to the mother and J and N staying for a further two years in the Netherlands in order for N to bond with Mr C. For whatever reasons, and the reasons now do not assume significance, there was agreement between the parties to that effect, provided that J and the mother returned to Australia for six months prior to extended the stay in the Netherlands.
In March 2009 the mother and both children - that is, J and N - returned to Australia. From that time to the present, J has enjoyed what could only be described in the circumstances of this case as substantial and significant time with the father and a meaningful relationship with him. At all material times J has had a meaningful relationship with her mother.
During the course of 2009, in broad terms, a disagreement arose between the mother and Mr C. The mother by as early as the middle of 2009 was manifesting a desire to stay here with both the children. That was not a course with which Mr C was in agreement. By the end of 2009, Mr C had moved the authorities in the Netherlands to request the Ministry of Justice in that country to make the appropriate request of a Central Authority in this country.
On 18 January 2010 the State Central Authority filed the application seeking the return of N, which gave rise to the judgment of Bennett J, to which reference has previously been made. In the intervening period, namely in about October 2009, the mother commenced a relationship with Mr T. That relationship continues.

Proposals of the Parties

The proposals of the parties are not in serious doubt. They are conveniently summarised in two paragraphs of the report of Ms L, a family consultant and child psychologist, who prepared a report in these proceedings and gave oral evidence in relation to that report. In paragraphs 8 and 9 of her report, Ms L recorded the father’s proposal and that of the mother. I incorporate those paragraphs in these reasons, without reading them at this moment. As the mother was obliged to concede in cross-examination, details of her proposals for the children, if she is obliged to return to the Netherlands, emerged for the first time in cross-examination. The Court does not embrace the criticism of senior counsel for the father in relation to that. Objectively, at a time when the mother is, this Court understands, vigorously resisting the Hague Convention proceedings for N’s return to the Netherlands, given her limited financial resources, it is quite unrealistic to expect that she would have clear or firm proposals if she is to return to the Netherlands. As will be seen, that, however, is not the end of the question of the mother’s proposals, if she returns to the Netherlands.

Although there is certainly controversy in relation to the capacity or some controversy in relation to the physical capacity of the father and his daughter, G, in terms of J’s care, the Court accepts that, if necessary, the father, aided to a very considerable extent by G, could provide adequately in every physical and material sense for J, were she to be living with them.
If the mother is obliged to return to the Netherlands as a consequence of the Hague Convention proceedings, notwithstanding the criticisms made of her proposed arrangements in the Netherlands and the circumstances in which they emerged, the Court is satisfied that the mother could provide adequately in every physical and material sense. As will be seen, the case turns on other more difficult issues than standards of physical or material care for J.
It was earlier indicated that the father, in 1983, suffered a stroke which had devastating consequences for him. In paragraph 11 of her report, Ms L set out accurately, the evidence before this Court confirms, the limitations upon the father. The Court incorporates paragraph 11 of Ms L’s report into these reasons for judgment without reading that paragraph at this moment. There is also unchallenged expert medical opinion evidence from Associate Professor R, a neurologist, in relation to the father’s condition.
Not surprisingly, and sensibly, there was no cross-examination of Professor R. Professor R, in a report dated 6 June 2010, recorded that the father has carers attending four times every day for approximately an hour, that the help they provide is with meals and drinks, showering and toileting, dressing, transferring and settling him into bed, as well as doing general housework. Professor R described the father’s main disabilities as being that he is totally mute and relies upon an Etran communication board to engage in conversation.
The father is recorded by Professor R as having “normal comprehension, no movement in the arms or legs apart from very limited movement of the left hand. This enables him to operate the control knob of a motorised wheelchair. Previously he was able to type on a computer board using his thumb, but as time passed, he had to work along the hand to the little finger, but even that no longer has sufficient movement to enable him to use a computer keyboard. Previously he was able to feed himself with a spoon. He lost significant left hand function recently, after his left arm was jammed for about three hours”.
Professor R, later in his report, recorded that over the past 10 years, there had been slow functional deterioration on the part of the father. He further recorded that although the father was currently living in his own purpose-built home, he is supported by carers attending four times a day for an hour at a time. He reiterated the limitations on what the father can do, noting that his functional capacity was slowly deteriorating, that he required assistance eating, drinking, showering, toileting, dressing, etcetera.
The prognosis Professor R expressed in sadly unequivocal terms was that there would be no further improvement, that he would expect a gradual deterioration in functional capacity with time, and that the father was likely to become so dependent that he would need nursing home care. Professor R further opined that the father’s life expectancy was so diminished that it was unlikely that he would survive until the age of 70. The father is also at significant risk of aspiration pneumonia.
One of the most difficult aspects of this case, as anyone who has seen the father as this Court has during the two days of the trial, is to maintain an intellectual divide between understandable and enormous empathy or sympathy for the father, on the one hand, and the reality that the mandatory primary focus of these proceedings is, and must remain, in accordance with the statute which governs the proceedings, the best interests of J.
As will be seen, there is an interfacing between those best interests and the unique or almost unique situation of the father in these proceedings. The Court strives, however, to avoid allowing feelings of sympathy for or empathy with the father to deviate it from its statutory obligation. The mother, who has been the undisputed primary carer of J, fortunately suffers from no health or similar issues. She, like the father, is in very modest economic circumstances, and appears likely to so remain, at least within the timeframe with which this litigation is concerned.
As the chronology of dates and events recounted a short time ago reveals, the mother has had a number of relationships and borne children of two of them. To his great credit, save in relation to a number of limited areas to which reference will in due course be made, the father has not criticised and has acknowledged the mother’s capacity as a primary carer for J. Implicit in his acceptance that J’s best interests or welfare would be best served by residing primarily with her mother in this country is the father’s recognition of the mother’s demonstrated history of caring for J, and her capacity to do so in the future, as well as her attitudes to parental duties and responsibilities.

Oral Evidence at Trial

The father was not cross-examined in the proceedings, and sensibly was that so. Objectively, as will be seen, this is ultimately a case which is more about the significance of facts which are ultimately not controversial, or not highly controversial, than a forensic exercise in fact finding. Nothing said by the father in his affidavit material is controversial for the purposes of determining these proceedings.
G, the father’s 28-year-old daughter, swore an affidavit in which she attested to her willingness to assist her father in ways without which he could not possibly begin to mount a viable claim to provide primary care for J, either on an interim or other basis.
G was cross-examined and revealed herself to be an impressive, sensitive, and very even-handed witness. The Court accepts the truthfulness of her testimony. As will be seen, it is not in the Court’s view a question of whether G would do what she says she would, accepting that whatever the collateral implications of so doing might be, her commitment to J’s welfare and assisting her father to facilitate J’s welfare would mean that G would do the things she has said she would.
This would involve a significant change of role for her in life, and a change of her place of residence. It would place tensions on her relationship with her boyfriend, raise questions with respect to employment, and have other quite significant implications. The Court accepts however that G would do all she had to. The more significant issue in the Court’s view relates to the implications for J of that occurring. In other words, the issue is not whether G would do what she says she would do, but accepting, as the Court does, that she would carry out her avowed intentions, what the implications of that would be for J.
In her cross-examination, with the frankness which was the hallmark of G’s evidence, she conceded that she did not think it was currently appropriate, given her father’s disabilities, for J to be left alone with him overnight, but that it probably would be at the age of 12 or 13. She further deposed that the longest time that J had spent with her and her father was three, four or five nights.
The mother was cross-examined at some length in relation to her proposals in the event of it proving necessary for her to return to the Netherlands as a consequence of the Hague Convention proceedings. Whilst it might be thought to be convenient for her to say so, the mother’s evidence in relation to her understanding of orders made by this Court, particularly in terms of consequences of any breach of them was, having regard to the circumstantial evidence and the mother’s presentation in the witness box, is able to be accepted. The Court does accept that she would seek to do what she says she would to secure J’s expeditious return to the Commonwealth, in the event of J leaving, as her application seeks, if the mother is obliged to leave. The real issue is more, as the Court suggested during the course of the trial, whether circumstances beyond the control of the mother would have the potential to adversely impact her ability to carry out what can be described as her honourable intentions.
The cross-examination of the mother did not reveal matters which were potentially damaging to her in terms of her proposal. What did emerge, and this is not said critically of the mother, is that whereas all involved in the case, including Ms L, as she confirmed when she subsequently gave evidence, had until very recent times proceeded on the assumption that N’s return to the Netherlands, if it is to occur, is potentially for a period not exceeding two years, that may well not be the case. That arises because, to again borrow learned counsel for the mother’s expression, Mr C is keeping his powder dry as to what he is going to seek with respect to N if she is returned to the Netherlands. The position is thus that during the course of the evidence, through the fault of nobody involved in the litigation in this case, a rather more open-ended scenario emerged than that which everyone involved in the case had hitherto been contemplating and seeking to address.
The mother was cross-examined in relation to the horrendous dilemma which she would face in the event of N being ordered back to the Netherlands, and her having to choose between taking her back or letting her go on her own. The mother’s evidence that she just could not contemplate the separation of the children was moving, and the Court accepts that that is exactly, to her credit, how the mother sees it. Ultimately, the mother’s evidence was that she would have no choice than to accompany N if N is ordered back to the Netherlands.
There was some cross-examination of the mother in relation to both her motivation to move the Netherlands’ Courts expeditiously, to seek the return to Australia of N if N has to return to the Netherlands, and whether or not any return to the Netherlands would necessarily be for a long period. The latter topic is, the Court perceives, covered by the presumption to which reference was earlier made. It cannot be assumed that an application, if one becomes necessary in the Netherlands, to seek to bring N back to this country would be a long time in being determined, nor can it be assumed that such an application would necessarily fail. That is as far as presumptions or assumptions go, however. What would happen is not a matter for this Court to second guess.
In relation to how long the mother may have to stay in the Netherlands if N returns, rather more difficult issues arise by virtue of evidence the mother gave in relation to her proposals for the children in the Netherlands. Without placing undue weight on the evidence, which did emerge, as senior counsel for the father reminded the Court, for the first time in cross-examination of the mother, it is of some concern that the mother’s proposals involve what she perceives to be the positives for J, which she detailed in cross-examination. Those positives were the same school, same friends, same area as she was living in before, and the expectation that Mr T would follow the mother to the Netherlands to live if she is to return there. The mother would then have no apparent ties to Australia. As senior counsel for the father powerfully submitted to the Court, there is a concerning coalescence of forces in terms of these proposed arrangements. On the one hand, if the mother, Mr T, J and N and Mr C are all in the Netherlands, the father is clearly, to use the colloquial, the odd man out in that he is the only one in this country. J is beyond the jurisdiction of this Court. The mother’s motivation to diligently and expeditiously prosecute proceedings to secure N’s return to this country is greatly diminished from that which would apply if, to put it bluntly and crudely, the stakes were higher in that regard. This evidence must not be taken out of context and given undue weight in what will be seen to be an agonisingly finely balanced case. However, it does stand out from evidence of other matters which is not controversial or detrimental to the party to whom it relates.
Counsel for the ICL cross-examined the mother after the realisation that the stay in the Netherlands, if it is necessitated by the Hague Convention proceedings, may well exceed a period of two years. The mother revealed that, although she would prefer not to have to go at all, she would seek the same orders in terms of J’s removal from the jurisdiction as she within the previous timeframe.
The Court accepts that although the mother would not have it so, in the past, albeit in no doubt difficult circumstances, the mother has on occasion struggled to place the needs of her children above her own needs. She would seek, if she is permitted to remove J from the jurisdiction, to foster such relationship as would realistically be possible with the father in those circumstances.
Ms L, the author of the family report, was cross-examined. Ms L’s evidence, both written and oral, revealed, in the Court’s assessment of it, a commendable degree of professionalism, impartiality, and even-handedness, and a dispassionate discharge of the duties which were imposed upon her by her retainer. Not surprisingly, cross-examination of Ms L was confined to a limited but very important number of areas.
Before referring to those parts of the cross-examination which the Court believes to be of particular significance, reference to some parts of Ms L’s report will hopefully be instructive. In her report, under the heading of evaluation, Ms L identified accurately, there is no doubt at the time, three possible outcomes in terms of the parenting arrangements. In paragraph 35, the overwhelming strengths of J, N, and the mother remaining in Australia were identified. No one seriously challenges anything there stated, and that is unsurprising, given that that is the outcome for which all parties hope, and the ICL also hoped.
In paragraph 36, the strengths and weaknesses of J, N, and the mother returning to Holland were identified. The Court incorporates paragraph 36 of the report in these reasons without reading the paragraph at this moment. Similarly, in paragraph 37, the strengths and weaknesses of N and the mother returning to Holland and J remaining in Australia in the care of her father were explored, and that paragraph too is incorporated in these reasons for judgment.
In paragraph 38, Ms L wrote:
A written description cannot adequately capture the nature of the relationship that [J] shares with her father, which is unique and needs to be fostered.
As will be seen, that has to be looked at in the context of the regrettable but unavoidable implications of Professor R’s evidence.
The report of Ms L also proceeded to reinforce a theme which Ms L developed elsewhere in her report and particularly dealt with in paragraph 37 of her report as to the necessity for J remaining in the primary care of her mother in the best interests of her welfare. Ms L concluded the reporting portion of her document, paragraph 40, by referring accurately the result of the current dilemma being that either J or N would be unable to share in a full and meaningful relationship with her father.
There followed a criticism from which Ms L sensibly never resiled, namely that the dilemma had arisen from the mother’s own choices. Just as the Court cannot be impermissibly moved by positive feelings and concerns about the father, nor can it be unfairly punitive or critical of the mother for the life choices which the evidence in this case reveals that she has made. What follows, as will be seen, does remain of concern when taken in context with the evidence in relation to the mother’s proposals if J is permitted to leave the country with her.
Ms L said in paragraph 40, “She takes little, if any, ownership for the current situation” to the end of paragraph 40, taken in conjunction with the mother’s evidence in terms of the proposals for J in the Netherlands, combine to raise a concern as to what might happen were the mother permitted to remove J from the jurisdiction, or particularly, were she permitted to remove the child from the jurisdiction on an open-ended basis.
These matters assume significance within the context of section 60CC. Ms L accordingly recommended, in what clearly was a difficult determination, that J live with her mother, and if need be, that she accompany her mother to the Netherlands. Early in cross-examination, counsel for the ICL very properly apprised Ms L of the reality that any removal of J from the jurisdiction may well exceed the period of two years, which, not surprisingly, everybody had understood to be the period that might be involved.
Despite some concerns, which she conceded, Ms L adhered to her recommendation that the mother be permitted to remove J from the Commonwealth if it proves necessary for the mother to remove herself from the jurisdiction. Evidence in cross-examination given by Ms L which also assumes considerable significance relates to her concerns about J being placed in the care of her father and G.
As the Court recorded that evidence, the concern was not in relation to material aspects of the arrangements proposed by the father and G, but rather the implications of the arrangements in terms of the parenting of J. Ms L explained that, quite apart from the fact that this would be a new and largely untried role for G, it would be a very new and untried situation for J in that a sibling would have to be seen by her in a parenting role. Ms L had reservations as to the extent to which G would be able to deal with the emotional impact that separation of J from her mother might have on J.
Ms L used the expression “significant leap” with J, in relation to this issue. The reasons which she gave in evidence in support of that assertion were compelling, and with respect to the ingenuity of the submissions of senior counsel for the father as to the implications of the age difference between G and J and matters of that kind, the Court is not persuaded that Ms L’s expert opinion evidence on that point ought not be accepted.
In cross-examination by learned counsel for the mother, Ms L reiterated her concern that substituting as primary carer G for her mother was that severing J’s primary attachment to her mother would, in her view, have a significant adverse impact on J. This could manifest itself through some anxiety, low mood, peer relationships, and in terms of J’s education. Ms L concluded her response to cross-examination by learned counsel for the mother by reiterating that in her view, J “needs” to be in the primary care of her mother.
In the course of some exploratory questions raised by the Court with Ms L, it was suggested that the horns of the dilemma, as it were, were the unique nature of J’s relationship with her father and the implications of the father’s health, on the one hand, versus the importance of J’s primary attachment with her mother being preserved on the other. Perhaps inelegantly, the Court referred to these as the two “rocks” upon which the case appeared likely to founder.
In cross-examination, senior counsel for the father raised a number of matters with Ms L pursuant to what he frankly conceded was an attempt to persuade the Court that in concluding as she had, Ms L had erroneously given undue weight to the primary attachment role or, inferentially at least, inadequate weight to what she herself identified as J’s unique relationship with the father. With all due respect to learned senior counsel, the Court is not persuaded by anything emerging from the cross-examination of Ms L that the opinion she reached was unduly influenced in either of ways to which reference has been made.

The Court remains the ultimate trier of fact, as Heydon J has explained in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705. The Court is assisted by expert opinion evidence but is obliged to have regard to that evidence in the light of statutory provisions which, to some extent, overlap the ambit of Ms L’s report, but to some extent do not.
In cross-examination by senior counsel for the father, Ms L referred to the changes which have to date occurred in J’s life and the prospect of further change. In final submissions, senior counsel for the father, with his customary candour, defied the Court to make an order that could not involve uncertainty. There is force in that submission, and as Ms L recognised, whilst the pursuit of stability is desirable, in the circumstances of this case, there is actually only one element which can be regarded as having achieved the status of stability: that is J’s primary attachment to her mother, all other things having, as the evidence revealed, been subject to change.
At various points during her cross-examination by senior counsel for the father, Ms L reiterated her expert opinion that there was simply no way in which the mother’s ability to meet J’s needs, as she has done over the past five years, could be compensated for or met if that primary attachment role was to be disturbed.

Discussion

The Court has earlier identified the competing proposals of the parties. The Court has had the benefit of comprehensive and cogently reasoned submissions in writing and orally from counsel for the parties.
The Court does not wish on the one hand to simply, as it were, read on to the record or incorporate into the record those written submissions. On the other hand, it ought not be thought that because the Court does not do so, or otherwise specifically refer to them, that it is unmindful of those submissions or of the force of them. To some extent, dealing with the submissions made on behalf of the parties can be encompassed in a consideration of the statutory provisions governing the proceedings, but ultimately there are other aspects which remain to which reference will necessarily be made.
The statutory provisions of relevance are not in doubt and have been identified helpfully by counsel for the parties in their submissions. A convenient starting point is section 60B(1)(a), which is described as an objects provision, the first of which records the objects of Part VII of the Act, which deals with children, as being to ensure that the best interests of children are met by ensuring that children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
The next relevant statutory provision is section 60CA, the terms of which oblige the Court in deciding whether to make a particular parenting order in relation to a child, to regard the best interests of the child as the paramount consideration. Section 60CC directs the Court to the matters by which those interests are determined, but it is convenient to digress slightly before doing that, initially to section 61DA of the Act. Section 61DA provides a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption in this case is not rebutted. No one seeks that it be rebutted. On the evidence this Court has heard, any such attempt would have been in vain.
The effect of the presumption under section 61DA(1) being undisturbed is potentially to invoke section 65D(AA) of the Act, and it is to that section which the Court now turns. Section 65DAA (1) mandates that, having preserved the presumption of equal shared parental responsibility, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child
That consideration is short and uncontroversial. No one seeks that J spend equal time with each of her parents, and it would not be possible for that to occur, in any event, or perhaps more correctly, having regard to the terms of the statute, it would not be reasonably practicable for that to occur, in any event. That is particularly so having regard to the terms of section 65DAA(5). The evidence before the Court suggests that the impracticability of J spending equal time with both parents in any situation that could possibly prevail precludes that from being regarded as in her best interests.
In terms, of section 65DAA(2), which the Court must, having rejected equal time, consider as a possible outcome, the only way that J can spend substantial and significant time, having regard to the definition of substantial and significant time in section 65DAA(3), and to common sense, on the evidence before the Court, is if, as both parents hope, the mother is able to continue to reside in this country. Quite simply, if the mother is obliged by virtue of the outcome of the determination of the pending Hague Convention proceedings to leave the jurisdiction, there is simply no way that J can spend substantial and significant time with each of her parents. She might with one; she cannot with both.
Those realities with respect to section 65DAA emerging, as they uncontroversially do, as all counsel agree, it is then appropriate to direct attention to the provisions of section 60CC of the Act, and the Court now does so. The section provides in subsection 2 for what are described as primary considerations. The first of the primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents.
It is not in question that it would be both beneficial to J to have a meaningful relationship with both of her parents, on the one hand, and potentially, albeit in quite different ways in the case of each parent, potentially to her considerable detriment if she does not have a meaningful relationship with each of her parents. In short, if J does not retain a meaningful relationship with her mother, the implications of that, as Ms L’s evidence revealed, may be very significant. The adverse implications may be very significant.
The difficulty is, as the evidence reveals, that if the mother is to relocate overseas, only by J primarily living with her mother can the touchstone of that meaningful relationship be preserved - that is, can her primary attachment to her mother be preserved. On the other hand, given the father’s health and his likely prognosis, it can realistically and without the risk of being overly dramatic be said that the window of opportunity for J having a continuing meaningful relationship with her father is limited in ways in which, thankfully, it is not limited in for the vast majority of children whose welfare is the subject of consideration in this Court.
Quite simply, if J’s meaningful relationship with her father is put on hold for two or possibly more years, that period assumes very considerable significance in terms of the time she has in which to have a relationship with her father, and to build up a score of experiences with him. That time is very limited. There is no simple answer to the dilemma, as Ms L has accurately described it.
The additional considerations to which the Court must have regard are set out in section 60CC(3). Ms L fairly said that in reaching her conclusions and recommendations, she had not been significantly influenced by any views expressed by J. With respect to her, that was an entirely proper and responsible conclusion to reach. J, as indeed are the parents in this case, has been placed in a most invidious position. Counsel for the mother submitted, whilst not cavilling with that evidence from Ms L, that J’s wishes in wanting to be with her mother and not wanting to be separated from her were significant.
No significant weight needs to be given to J’s wishes, given that the Court accepts the thrust of Ms L’s expert opinion evidence that the consequences of interfering with J’s primary attachment to her mother may well be significant and enduring. The nature of J’s relationship with each of her parents is not a matter which assumes significance in determining the controversial part of these proceedings.
The nature of the relationships is clearly different. The Court has evidence before it which establishes, on the one hand, a long-standing, stable primary attachment relationship which is not significantly criticised and which has not been shown to be other than entirely responsible and appropriate, and on the other, a relationship which is accurately described by an expert witness as “unique”. It would be quite unrealistic to elevate the Relationship with J of either party above that of the other.
It is also necessary to consider J’s relationship with other persons. That includes in this case G, to a lesser extent, perhaps, B, although not significantly less in extent, and N. The focus of this Court’s attention is J’s welfare. On the evidence before this Court, there is no greater foundation for regarding her ongoing relationship with her elder siblings as of less importance or more importance than her ongoing relationship with her younger sibling. These are all important relationships. The Court cannot ascribe a hierarchy to them. What it can say is that those relationships are very much ancillary to the relationship J has with each of her parents.
Subsection C, the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, could be seen to assume significance in this case in the Court’s view on either of two levels. First, it relates to the conscious willingness and ability to do the things to which the subsection refers.
The Court does not find that either party consciously lacks that willingness or ability. Both have demonstrated considerable willingness and ability. There is no rational basis for concluding that they would not seek to do so in the future. The Court’s concern has earlier been touched upon, and it relates to the mother, or more importantly, perhaps, to circumstances beyond her control. As outlined earlier, the mother is potentially, as a consequence of the Hague Convention proceedings, going to be placed in a most invidious position in that she potentially will have to relocate to the Netherlands.
The Court is mindful of the evidence in paragraph 40 of Ms L’s report, which does have a sufficient factual underpinning in the lay evidence the Court has heard. It is mindful of the mother’s own evidence in relation to her proposals for N and J’s residence in the Netherlands, if it proves necessary for the mother to return there. It is also mindful of the practical realities that the incentives or imperatives to move a Court in the Netherlands expeditiously are of a different order or magnitude.
If the mother, Mr T, J, and N are all in the Netherlands, where Mr C lives, the Court is not able to find that J would necessarily again be usually residing in Australia– Also relevant are the financial constraints under which both parents exist. Not insignificantly, although not a matter of overwhelming significance, but a part of the factual matrix, is the mother’s frank concession in her oral evidence that she would need or at least seek financial assistance from the father to facilitate J’s return to Australia from the Netherlands if she were living there. This is a matter of some significance. It is not of overwhelming significance. It is part of an intricate web of factors and counter-factors which the Court must weigh up in determining what is in the best interests of J’s welfare. Subsection D is of significance. The Court accepts Ms L’s evidence that to separate J from the primary care of her mother would potentially have very significant and enduring adverse implications for J. To put it crudely but accurately, on the evidence the Court has heard, severing that primary attachment relationship would be the last card in the pack. On the evidence the Court has heard, if and only if no other outcome could adequately, albeit less than perfectly, address J’s welfare would such a course be embraced. That said, one must then look to the position to which reference has been made of J vis-a-vis her father. On the evidence before this Court, the implications for J given the particular circumstances of her father, and having regard to the unique relationship she has with him, would be seriously jeopardised if that relationship were to assume the form which, on any view of the evidence it would, for a period of years in the event of J’s living in the Netherlands.
At the risk of being needlessly insensitive and apologising immediately to the father for so being, J, on the evidence before this Court of Professor R, does not have the luxury of having her relationship with her father put on hold or substantially on hold for a period of two, three, or perhaps more years. The Court regrets that it could not be otherwise, but there is no getting away from the unchallenged expert opinion evidence of Professor R. The position is accordingly that no matter what the Court does in terms of the positions of the parties, there are potentially significantly adverse consequences for J.
The realisation that that may be the case prompted the Court, as the transcript would reveal, consistent with obiter of the High Court in U v U (2002) 211 CLR 238 to raise for consideration by the parties’ counsel, the prospect of some position which none of the parties or the ICL advocated, but which the Court concluded to be an outcome potentially emerging from the evidence. Reference will be made to that in due course.
Subsection E is relevant. There is no issue that money and distance have the potential to seriously jeopardise J’s relationship with one of her parents, that being the parent from whom she is separated by half the planet. The expression “tyranny of distance” embraced by counsel for the ICL was apt. As noted earlier, the mother seeks the father’s assistance in contributing to transport costs. With respect to the submission in that regard, that the father has $5000 savings in the bank; it is somewhat unrealistic to suggest that he could on an ongoing basis materially assist with the cost of transport. The Court cannot make a finding that the mother’s proposal would not be implemented because of money.
On the other hand, the Court is not able to be satisfied on the balance of probabilities that the proposed arrangement would in fact be able to be implemented, having regard to cost. In other words, practical difficulty and expense may render even more problematic an arrangement which is less than optimal and indeed, at best likely to maintain the child and father relationship in some kind of holding pattern. The capacity of the parents to provide for needs, including emotional and intellectual needs, has been at least tangentially referred to earlier.
Subject to the concerns that Ms L expressed in paragraph 40 of her report, which the Court accepts, the mother has the capacity to provide for J’s emotional needs. The Court referred to some cross-examination of Ms L as to her concern about the capacity of the father and G to provide for J’s emotional needs, were she to be living with them in a primary care relationship. The Court, as recorded earlier, accepts Ms L’s evidence in that regard.
Lest there be any doubt about it, the Court does not doubt that the father and G would leave no stone unturned in their efforts to provide in every way for J’s emotional wellbeing. As Ms L pointed out in her evidence, in the circumstances of this child, there is simply no substitute for the mother’s primary care. The best of good intentions sometimes are not enough, and Ms L’s concern that this is such a case is relevant in that regard. There is a tension between the two factors to which the Court has been referring, albeit they are quite different matters.
On the one hand, the concerns about the capacity of father and G to provide for J’s emotional wellbeing militate against the relief sought by the father. As against that, the mother’s demonstrated capacity, to which Ms L refers in paragraph 40, when taken in conjunction with her evidence in cross-examination as to her proposals for the Netherlands, militate against allowing the mother to remove J from the jurisdiction on any open-ended basis.
Subsections G, H, J, and K do not have relevance, and no one suggests that they do. Subsection I, although expressed somewhat differently, really overlaps in the circumstances of this case with the matters which have been articulated in the context of subsection C and subsection F of section 66CC(2). A matter which is of relevance, albeit ultimately perhaps in not what might be thought a conventional way, is subsection L. That is, 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.
The Court accepts the submission of senior counsel for the father, that there is simply no order which can in the circumstances of this case be made which does not have the potential or the real potential for the institution of further proceedings in relation to this child. In reality, that scenario is potentially enlivened by proceedings with respect to another child under a different statute and/or in another land under whatever laws govern such matters in that land.
Whatever the reasons of it, depending upon how events pan out with respect to N, on one view of it there may be an inevitability of further proceedings in relation to J. On any view of it, there is the potential for further proceedings with respect to J. It is not difficult to imagine the scenarios which could unfold in the event of an order for N’s repatriation to the Netherlands being made in the Hague Convention proceedings. Nor is it difficult to imagine the chain of litigation which would then commence in the Netherlands, albeit it is not possible or productive to seek to second-guess what the outcome of that might be.
As senior counsel for the father reminded the Court, the terms of subsection L do not mandate that the Court make an order, the order least likely to lead to the institution of further proceedings. It must consider whether it would be preferable to do that, assuming, which the Court is not comfortable that it can in this case, such an order is realistically available. Read in context, subsection L must, in the Court’s view, yield to the over-arching requirement of the best interests of the child as those interests are indicated by the evidence.
It is clearly more conducive to a child’s best interests that the Court make orders which does not have a likelihood of leading to further proceedings in relation to that child than one which does. Each case turns on its own facts and circumstances, and if those facts and circumstances are not unique in this case, they are certainly unusual.
As would be apparent from the Court’s consideration of section 60CC(2), the case is agonisingly finely balanced. There is no right answer. To some extent, it follows that there is, perhaps as a consequence, no wrong answer, but that is cold comfort to the Court and to the parents of J. However one looks at the evidence in this case, a few fundamental truths emerge and re-emerge.
The first is that on the evidence before this Court, if and only if there is no other alternative should J’s primary attachment to her mother be disturbed. On the other hand, given the circumstances of the father, the impact of time, even a period of two years, has the potential, if J’s relationship with her father is curtailed, to have devastating and enduring consequences, for reasons which the Court has earlier referred to and prefers not to again restate in the interests of sensitivity. The Court also referred earlier to the concern that, notwithstanding her good intentions, the mother’s capacity to secure an expeditious return to this country of both J and N may well not be able to be achieved for reasons to which the Court has referred.

The Court if mindful of those matters. The outcome which the Court concludes to be in J’s best interests is not suggested to be perfect or in any way approaching perfection. On balance, the Court considers that J’s best interests would be served if she were permitted to be removed from the jurisdiction with her mother, if that becomes necessary, provided that she is returned to the jurisdiction by 30 June 2011. So doing enables the primary attachment of J with her mother to be preserved before the mother has to return to the Netherlands.
Having regard to the presumption to which reference was made earlier in the reasons for judgment, so doing enables the mother to move Courts in the Netherlands expeditiously to seek the relief which she says she will seek. It puts the father’s relationship with J substantially on hold for a period which, relative to his life expectancy, is not insignificant, but at the same time obviates the risk that the Court earlier identified and regarded as being of significance.
It will be immediately said, and has, in fact, been said, quite properly by learned counsel for the mother, that this creates uncertainty for J, as indeed it does, and places over the mother, I think the expression of either her learned counsel or learned counsel for the ICL was a “sword of Damocles” or a similar expression, as indeed it does. Those things are regrettable, but J’s stability realistically is, on the evidence before this Court, somewhat illusory, or becomes illusory in the event that her mother is obliged to return to the Netherlands by reason of the outcome of the Hague Convention proceedings.
Objectively, only in the event of the mother successfully resisting the Hague Convention application, are J’s circumstances able to be stable in the foreseeable future. Indeed, whatever adverse consequences there may be for N’s relationship with Mr C, the same could be perhaps said of her, but that is not a matter which can weigh in the exercise of the Court’s discretion with respect to J.
So far as the mother being placed in an awkward or invidious or similar position is concerned, with great respect to her, and without wishing to be insensitive, paragraph 40 of Ms L’s report resonates. That observation is reinforced by the evidence which emerged in cross-examination to which reference has earlier been made, both as to the implications of everybody but the father being in the Netherlands, and the consequential unavoidable diminution of incentive or motivation to move the Courts of the Netherlands to seek to come back here.
The Court does not pretend that this outcome is perfect. It is highly imperfect. On balance, however, the Court is persuaded that it is the least undesirable of a regrettable array of unsatisfactory outcomes. It can immediately be further said by way of criticism of the order that it leaves unknown what will happen after 30 June, as indeed it does. In defence of the order, the Court simply records that matters should have become a lot clearer by that time, and again with paragraph 40 of Ms L’s report resonating, the ball is in the mother’s court to see that they do. The father can do nothing about what might happen in the Netherlands to seek to have N’s position clarified.
What significance the Courts in the Netherlands make of the orders about to be made, and the reasons for them is a matter for the Courts of the Netherlands, as indeed what happens after 30 June in the case of J remains, in this Court’s view, a matter for the Courts in this land. A minor matter, to which reference was made in the course of submissions or perhaps during the trial, relates to the concern that on the evidence before this Court, J may, in circumstances potentially beyond the mother’s control, pass out from the jurisdiction of this Court in a real practical sense. That would be regrettable. It reinforces but is not a motivating reason for the orders which the Court will now make.
The orders which the Court makes have been engrossed and available for those at the bar table. In short, for the benefit of the mother and father, who I apprehend are listening to these reasons, the effect of the orders is that for so long as the mother is living in the Commonwealth of Australia, which it should be understood means either before she leaves Australia, if she is obliged to as a consequence of the Hague Convention proceedings, or after she returns on 30 June next year, the arrangements are those sought by the father in paragraph 4 of his application and consented to by the mother, as her learned counsel indicated.
The orders further provide, and this is the controversial part, that in the event of the mother leaving the Commonwealth in order to return N to the Netherlands as a consequence of the Hague Convention proceedings, she is permitted to remove J from the Commonwealth of Australia provided that: a) J is returned to the Commonwealth of Australia on or before 30 June 2011; b) the orders made this day are registered by the mother with a Court of competent jurisdiction in the Netherlands prior to removal of J from the Commonwealth of Australia.
The orders then provide, as the mother sought, that whilst J is absent from the Commonwealth, she have contact with her father in the ways that the mother proposed and which the ICL embraced and reiterated in his second-last and last page of his case outline. The final order is that the parties have liberty to restore the proceedings to the list on seven days’ notice to each other. I will hand down copies of those orders.
It perhaps remains only by way of end note to reiterate that to the extent that it would not be readily apparent to anybody reading these reasons for judgment, that this case was of the most difficult order in terms of human issues, that it was also not without complexity in terms of legal issues.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 19 July 2010

[2010] FamCA 909

18 June 2010

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