GILLAM and LATCH
[2015] FCWA 34
•22 APRIL 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GILLAM and LATCH [2015] FCWA 34
CORAM: WALTERS J
HEARD: 18,19,20,23 & 24 MARCH 2015
DELIVERED : 22 APRIL 2015
FILE NO/S: PTW 5345 of 2014
BETWEEN: MR GILLAM
Applicant
AND
MS LATCH
Respondent
Catchwords:
FAMILY LAW – CHILDREN – International relocation – 4 year old child – Where parties commenced their relationship in Switzerland but then relocated to Australia – Where mother later returned to Switzerland – Where child has lived with each parent for extended periods, initially with mother in Switzerland and then with father in Australia – Where father is not prepared to live in Switzerland if the relocation is permitted – Where mother is not prepared to live in Switzerland if child remains in Australia – Where it has been agreed that parties are to have equal shared parental responsibility – Where it has been agreed that parties are to spend equal time with child if he remains in Australia – Where each party accepts that the child is the other party's "number one priority" and no issues of risk arise – Where neither party is child's unchallenged primary caregiver – Where mother did not suggest her capacity to parent child would be adversely affected if the relocation does not occur – Where mother possesses energy, imagination and resourcefulness that father does not – Conclusion reached that it is in child's best interests to remain in Australia and be cared for by both parents
FAMILY LAW – CHILDREN – Schooling – Where parties disagree about school child should attend if he is to live in Australia – Where child is attending a long-established, mainstream independent school – Where mother's preference is for child to attend a State School – Where father's parents have agreed to pay all fees associated with child's education at the independent school – Where mother is concerned father's parents may seek to exercise undue control over both parties' lives or the child's life – Where mother is concerned payment of substantial school fees by father's parents will lead to interference and imposition of conditions – Where there is no evidence that a change from the independent school to some other school would benefit child – Where there is no evidence that public education is superior to private education, or that private education is superior to public education – Conclusion reached that it is in child's best interests to continue at his present school
Legislation:
Family Court Act 1997 (WA) , ss 7A, 84, 84(3), 89AD, 66A, 66B, 66(1), 66(2), 66(3), 66C(2), 66C(3), 66C(4), 66C(5), 66(4)(c), 70A, 70A(4), 70DA, 89AA(1), 89AA(2), 89(1),
Family Law Act 1975 (Cth), ss 60B, 60CC(2), 60CC(3), 61DA(1), 65DAA(1)(b),
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr H Moser
Respondent: Ms T Farmer
Solicitors:
Applicant: Paterson & Dowding
Respondent: Dwyer Durack
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160
Champness & Hanson [2009] FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Deiter & Dieter [2011] FamCAFC 82
Driscoll & Valentine [2004] FamCA 830
Eades & Wrensted [2014] FCWA 15
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Heath & Heath [2012] FamCA 844
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
Jurchenko & Foster [2014] FamCAFC 127
M & S (2007) FLC 93-313
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Plastow & Saville [2013] FCWA 105
Re G Children's Schooling (2000) FLC 93-025
Sayer & Radcliffe (2012) 48 FamLR 298
Selkin & Artliff-Selkin [2013] FamCAFC 19
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
U & U (2002) 211 CLR 238
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
Preamble
1These proceedings concern the parties' competing applications regarding parenting arrangements for their son, [N], who is four years old. N is the parties' only child.
2The mother is from Switzerland. She seeks orders enabling her to take N to live with her in Zürich.
3The father is from Perth. He opposes the mother's proposals and seeks that N remain in Perth, where he has lived (predominantly with the father) since at least September 2013.
4During his short life, N has spent a great deal of time with each of his parents. Until approximately March 2013, the mother – who was then living with the father in Perth – was primarily responsible for N's care and supervision. From March 2013 to September 2013, N lived with the mother in Zürich while the father remained in Perth. From September 2013, N has lived with the father in Perth while the mother has lived in Zürich. Each parent has had considerable contact with N, and spent time with him, while he lived predominantly in the care of the other parent.
5The father has made it clear that he will not move to live in Switzerland even if N lives there with the mother, notwithstanding that he has Swiss as well as Australian citizenship, has adequate Swiss-German language skills and has lived in Switzerland in the past. Indeed, the parties met and commenced their relationship when the father was living and working in Switzerland. For her part, the mother has made it clear that she will not remain in Switzerland if N is to continue to live in Perth. Although it is not her preferred outcome, she is prepared to live in Perth if the Court concludes that N should remain here. It is of paramount importance to her to be able to continue to parent N.
6The parties have agreed that they should spend equal time with N if he continues to live in Perth. They have also agreed that they should have equal shared parental responsibility for him, irrespective of whether he lives in Perth or Zürich. Obviously, they will not be able to spend equal time with N if he lives in Zürich.
7Although there are certain somewhat unusual aspects to it, this case falls within that category of proceeding which has come to be described as "the relocation case". Such cases are notoriously difficult. It has been said that there is often no mutually satisfactory answer to them. The Court is sometimes called upon to decide between "two very good claims of right", and to make a decision that is going to leave one party bitterly disappointed: see, for example, the Driscoll & Valentine [2004] FamCA 830 at [7] to [9].
Background and relevant litigation history
8In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the father and the mother (and I mean no disrespect by doing so) because it is less confusing than referring to them as the applicant and the respondent;
c)I have referred to the father's parents as [Herman] and [Dina] (and again, I mean no disrespect by doing so) because it is less confusing than referring to them as "the father's father" and "the father's mother";
d)I have referred to the mother's parents as [Basil] and [Trudi] (and, once again, I mean no disrespect by doing so) because it is less confusing than referring to them as "the mother's father" and "the mother's mother";
e)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
f)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm");
g)references to legislation are references to the Family Court Act 1997 (WA) – although, when necessary, I have referred to this enactment as "the Act" or the "FCA"; and
h)I have referred to the Family Law Act 1975 (Cth) as the "FLA".
9Although the law now refers to a child "spending time" with a person with whom the child does not live, I shall use the obsolete term "contact" from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
Brief chronological outline
10The father was born in Australia [in] 1979. The mother was born in Switzerland [in] 1979. It follows that they are both 35 years of age.
11The father travelled to Switzerland in mid-1999. He and the mother met approximately six months later, when they were both approximately 20 years of age. They started living together in Zürich in early 2001. They have never married, although they "announced their engagement" in 2012.
12Over the following years, the parties decided to relocate to Australia. The mother applied for and obtained an Australian visa.
13The father returned to Australia in late 2006. The mother followed in early 2007. Thereafter, the parties lived in an outer suburb of Perth.
14The mother became an Australian citizen on 9 December 2009.
15N was born [in] 2010.
16In circumstances upon which I shall expand later in these Reasons, the mother travelled to Switzerland with N on 23 March 2013. The father remained in Australia.
17The mother and N travelled to Switzerland on return tickets. They were booked to fly back to Perth at the end of September 2013.
18I am satisfied that, notwithstanding the purchase of return tickets, the mother's intention when she left Perth in March 2013 was to remain in Switzerland with N permanently. I am also satisfied that the father was acutely aware of the mother's desire to return to Switzerland to live well prior to her departure from Australia in March 2013, and that he was mindful of the strong possibility that the mother would choose not to return to Australia. He hoped, however, that the mother's extended stay in Switzerland with N would serve to "get (her desire to return to Switzerland to live) out of her system".
19The father visited the mother and N in Switzerland in May 2013. The father's parents travelled to Europe at the same time, and later holidayed with the parties and N.
20During the father's visit, he pressed the mother to agree to return to Perth.
21An incident in Aix-en-Provence in late May 2013 exacerbated the pre-existing tensions between the parties. Relevantly, the parties argued when the mother forcefully restated her intention to continue to live in Switzerland with N. The argument occurred in the presence of the father's parents, who had been unaware of the strength of the mother's desire to remain in Switzerland.
22After the argument, the parties cut short their trip with the father's parents and returned (somewhat indirectly) to Zürich.
23The father returned to Perth on 18 June 2013. The mother continued to live in Zürich with N. By this time, she had rented an apartment in Zürich and obtained employment there.
24Following his return to Australia, the father continued his attempts to persuade the mother to come back to Perth. The mother remained steadfast, however, in her determination to live in Switzerland.
25On 3 September 2013, the father commenced proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction Convention ("the Convention") seeking the return of N to Australia. He did not tell the mother he had done so, although he was in constant communication with her.
26On 7 September 2013 – less than a week after the father commenced the Convention proceedings – the mother contacted the father to advise him that her mother, Trudi, had died suddenly in Zürich. The mother was distraught and asked the father for his assistance.
27The father returned to Switzerland immediately. He stayed with the mother and N in the mother's apartment. Largely as a result of the mother's inability to make suitable childcare arrangements for N following Trudi’s death, the parties eventually agreed to N returning to Perth with the father temporarily. Trudi had been responsible for looking after N in Zürich while the mother worked. It was proposed that Dina would assist the father to care for N after his return to Perth.
28I am satisfied that the mother agreed to N travelling to Perth with the father on the basis that he would be returned to Zürich as soon as the mother had overcome the grief associated with Trudi’s death and put in place suitable childcare arrangements. I do not accept the father's evidence to the effect that the mother agreed to N being returned to Australia permanently.
29Thus, the father travelled to Perth with N on 26 September 2013. He then instructed his father, Herman (who is a solicitor, and who was representing him in relation to the Convention proceedings) to put the Convention proceedings on hold.
30Notwithstanding the mother's subsequent attempts to persuade the father to allow N to return to live with her in Switzerland, he has continued to live in Western Australia since September 2013. For the vast majority of time since then, he has been cared for by the father and Dina. However, the mother has remained in close and frequent contact with N, and has spent time with him in both Switzerland and Australia.
31The father commenced substantive proceedings in this Court on 16 September 2014. On 19 September 2014, he obtained ex parte orders preventing the mother from removing N from Australia. I shall discuss the circumstances in which he obtained these orders later in these Reasons.
32After moving comparatively hastily along the litigation pathway, the proceedings were listed for trial in mid-March 2015.
33The mother travelled to Perth on 20 January 2015. Two days later (22 January 2015) orders were made for N to spend equal time with each of the parties. The orders had been opposed by the father, who argued unsuccessfully that the mother's time with N should be limited.
34N has spent alternate weeks with the parties since the orders of 22 January 2015. He commenced kindergarten at [School A] in early February 2015. Although the first week of kindergarten involved half days only, he now attends from 8 a.m. to 3:30 p.m. each weekday.
35The trial commenced on 18 March 2015. It continued on 19, 20, 23 and 24 March 2015. Mr Moser of counsel appeared for the father; Ms Farmer of counsel appeared for the mother.
36Following closing addresses on 24 March 2015, I reserved my decision.
The mother
37The mother was born and educated in Zürich. She is one of three siblings. Her brother and sister still live in Zürich, as does her father, Basil. As indicated above, her mother, Trudi, died in September 2013.
38The mother's primary language is Swiss-German, but she is also fluent in English and French. She speaks some Italian as well.
39While the parties lived together in Switzerland (prior to N's birth), the mother studied [art] and worked as [an artist] and waitress.
40The mother presented as calm and mature. She gave the impression of being thoughtful, balanced and deliberate. Although she is far less demonstrative than the father, I have no doubt that she can be outspoken at times. She is clearly an intelligent and capable person. I am satisfied, however, that some aspects of her evidence were less than frank.
41As indicated above, the mother has both Australian and Swiss citizenship.
The father
42The father was born and educated in Perth. He is one of two siblings. His brother and his parents also live in Perth.
43Dina is of Swiss-German origin, and the father was clearly raised with an attachment to Switzerland. Before travelling there in 1999, he had been to the country (with his parents) on several occasions to visit family and to tour.
44The father's primary language is English. He is dyslexic, but has no significant difficulties with written communication.
45The father's Swiss-German language skills are good. He speaks the language well, if not fluently, but is unable to communicate in writing with any degree of proficiency – principally because Swiss-German is not used for formal written communication. Instead, Swiss-German speakers use Standard German or Swiss Standard German for written communication. Swiss Standard German is one of Switzerland's four official languages.
46It was the mother's case that the father has always been "heavily influenced" by his parents and that he has always looked to them for guidance in any decisions. She asserted that he would turn to his parents in preference to her for advice and assistance with decisions. I am satisfied that the mother's description of the father in this regard is accurate.
47It was also the mother's case that the father was indecisive and ambivalent about a number of things. I am satisfied that this description of the father is also accurate.
48Overall, the father presented as immature and relatively unsophisticated. He was demonstrative, but his mannerisms seemed awkward and somewhat affected. I am satisfied, however, that he is not guileless, and that he has not been wholly candid with the Court.
49In spite of the fact that the mother was less than entirely truthful at times, I am satisfied that she was a significantly more reliable witness than the father.
50Like the mother, the father has both Australian and Swiss citizenship.
The early years of the relationship
51Shortly after meeting, the parties formed a relationship and lived on a de facto basis in Zürich. The father worked as a [maître d'] for various employers. The mother studied art and worked as an artist and waitress.
52The parties had much to do with Trudi, Basil and the mother's siblings during this period.
53Still, I am satisfied that the father was never committed to living in Switzerland. Although he had extended family who resided in Zürich or nearby, his preference was to live in Australia. He gave a number of reasons for his preference in this regard, including limited prospects for advancement in the hospitality industry in Switzerland and his fondness for Perth's warm weather and "outdoor lifestyle".
54The parties travelled to Australia approximately once per year. They stayed with the father's parents during these visits.
Relocation to Australia
55The father returned to Australia in October 2006. He commenced living in accommodation which had been constructed on his parents' property in [Suburb W], adjacent to their home. According to the father, the accommodation comprised "either a two or three bedroom home (depending on how you use the third bedroom) with a bathroom, laundry, large meals area, large lounge area and kitchen": see father's trial affidavit at [44]. It was some three metres from his parents' home and was known as "the extension".
56The mother joined the father in Perth in March 2007. After her arrival, they lived in the extension.
57The parties had cats, which they brought with them from Zürich to Perth. The parties' belongings were also shipped to Perth.
58The mother initially worked as a waitress.
59The father worked as a maître d' at various restaurants in and around Perth. His working hours were long and demanding.
60For a period of approximately eight or nine months in 2008, the parties took a break from their employment and travelled around Australia.
61Not long afterwards, Dina was injured as a result of a fall at her place of employment, the [Company K]. She then discussed with the mother the possibility of the mother "filling in" for her at Company K.
62The mother commenced full-time employment with the Company K, on a temporary basis, in January 2009. She worked in various positions. Although Dina returned to work at the end of March 2009, the mother continued to work for the Company K.
63The father returned to work as a maître d' or maître d' instructor.
64At one point, the parties considered the possibility of living and working in Canada. They applied for and obtained visas enabling them to work in Canada for twelve months. Prior to leaving for Canada, however, they discovered that the mother was pregnant with N. Any plans they may have had to move to Canada then evaporated.
65I am not satisfied that the parties' arrangements regarding Canada reflected any form of ambivalence about living in Australia. I accept that the father was unhappy with the long hours he was working at that time, but find that Canada was never intended to be more than a break, or extended holiday, for the couple.
66The mother continued to work for Company K until she took maternity leave in or about November 2010.
The period after N's birth in 2010
67The mother was N's primary caregiver after his birth. That is not to say that the father did not play a part in caring for N; he did, but the mother's role was primary and predominant. The father's role involved assisting the mother when he was available to do so. I accept the mother's evidence in this regard.
68The mother's parents came to Perth shortly after N's birth. They stayed for approximately one month.
69The mother promptly advised the Swiss Consulate of N's birth, and arranged for him to obtain Swiss citizenship.
70The father resigned from his employment (he was then working as a maître d' at [Company C]) at the end of March 2011. After doing so, he continued to assist the mother in caring for N.
71Dina commenced long service leave from her employment with Company K approximately two months later. She encouraged the father to apply for her position of [Storeman] on a temporary basis. He was given the job and commenced work for Company K on a fixed, six-month contract at the end of May 2011.
72The parties visited Switzerland, with N, for approximately three weeks in June 2011. Upon their return to Perth, the mother continued her maternity leave and the father resumed his employment for Company K.
73I am satisfied that the mother remained N's primary caregiver until mid to late August 2011. At that time, she returned to her employment with Company K on a part-time basis. She worked from 8.30 am to 5.00 pm or 5.30 pm Monday to Thursday. She did not work on Fridays. Initially, N was cared for by Dina.
74Typically, the father would arrive home earlier than the mother on the days she was working. He would then spend time with Dina and N until the mother arrived home. He would often be primarily responsible for N's care for these comparatively short periods. When the mother was available, her role as N's caregiver was predominant.
75Dina did not return to her employment with Company K after completing her long service leave. She retired in late December 2011. The father applied for and obtained her position (which he had been filling on a temporary basis for the previous six months) on a permanent basis. Since that time, he has changed positions – from Storeman to [Accounts Manager] – but he continues to work for Company K.
76Dina cared for N for four days each week (while the mother was at work) for approximately four or five months. Thereafter, N commenced attending day care (at a Day Care centre in [Suburb L]) for two days each week. Dina continued to care for him for the other two days. As had been the case since she returned to work from maternity leave, the mother continued to care for N on Fridays.
77The mother travelled to Switzerland, with N, for approximately four weeks in or about June 2012. They stayed with the mother's parents. The father did not accompany them.
78Upon the mother's return to Australia in late June 2012, the previous arrangements resumed.
79In late October 2012, Dina had a serious accident while horse riding. She was hospitalised for treatment and convalescence for seven or eight weeks. She then continued her recovery and convalescence at her home.
80Because of Dina's unavailability during this period, the parties arranged for N to attend day care for four days each week. The mother continued to care for N on Fridays.
81Dina eventually returned to caring for N for two days each week in early 2013.
82As I have indicated, the mother remained primarily responsible for N's care at all times outside of her working hours. The father assisted her when he was available to do so. Until he gave up that line of employment, he worked long hours as a maître d' (or in associated positions). I accept that he also assisted his parents by doing work for them. I am satisfied that he was often unavailable to assist the mother with the care of N.
83The father's parents were thrilled at N’s birth. He is their only grandchild. They have spent as much time with him as their work and other commitments have allowed. By and large, the mother had an excellent relationship with them until the incident in Aix-en-Provence in mid-2013. There were stresses in the relationship, however, due to the mother's perception that they exercised something of an unhealthy influence over the father. With much justification, she regarded the father as being dominated by his parents.
84The mother remained in close contact with her parents throughout the time she lived in Australia and, as described above, she also visited Switzerland with N on two occasions prior to travelling there in March 2013: for approximately three weeks in June 2011 and approximately four weeks in May/June 2012. The father accompanied the mother and N in 2011, but they travelled without him in 2012.
85After N's birth, the mother became increasingly dissatisfied with her life in Australia. The father was often unavailable to spend time with her and N, due to his long working hours and his obligation to work in his parents' [orchard]. At the same time, the mother resented what she perceived was the father's subservience to and financial dependence upon his parents. She also missed her own family. I am satisfied that the mother spoke of these matters with the father, but that no clear course of action was agreed upon.
86Both parties underplayed the difficulties in the relationship prior to the mother's departure for Switzerland in March 2013. Each emphasised that they regarded themselves (and N) as a family and that they were deeply committed to each other. I am not satisfied, however, that the relationship was anywhere near as healthy and positive as the parties sought to portray it. The mother's dissatisfaction with her life in Australia was acute and ongoing, as were her frustrations arising out of the father's relationship with his parents. I find that she formed a tenacious desire to return to Switzerland to live well prior to early 2013, and probably following her trip to Zürich with N in May 2012. Indeed, the father said that the mother asked him in late 2012 if he would be prepared to move to Switzerland and that the parties had many heated arguments around that time about his "intransigence and unwillingness to leave Perth": see father's trial affidavit at [145] and [152]. I find, as well, that the mother conveyed this desire to the father on many occasions, but that he had an equally tenacious desire to remain living in Australia. I am satisfied that the subject of whether the family (comprising the father, the mother and N) should live in Switzerland or Australia was discussed frequently, energetically and anxiously. In essence, however, they agreed to disagree.
The mother travels to Switzerland in March 2013
87In her trial affidavit at [28], the mother deposed:
By early 2013, I had become very unhappy with the overall situation and wanted to return to Switzerland. I discussed this with [the father], who eventually told me that I should go, try to find accommodation and employment for myself, as well as appropriate arrangements for [N] and that when I had done so, he would travel to Switzerland. Apart from the issue of where we should live, [the father] and I had a good ongoing relationship at that time and, so far as I am aware, we were both committed to maintaining that relationship. I still viewed us as a family and understood [the father] to do so.
88As I have indicated, I accept that the mother wished to return to Switzerland to live. Similarly, I accept that she discussed her desire with the father and that he agreed that she should travel to Switzerland with N. I am satisfied, as well, that the father was acutely aware of the mother's desire to return to Switzerland to live well prior to her departure from Australia in March 2013, and that he was conscious of the strong possibility that the mother would choose not to return to Australia. He hoped that the mother's extended stay in Switzerland with N would "get (her desire to return to Switzerland to live) out of her system".
89I am not satisfied, however, that the father told the mother that she should try to find accommodation and employment for herself as preliminary steps to a permanent relocation to Switzerland. The mother's evidence was that it was agreed she should "test the waters" (as it were) in Zürich, to see whether she could "get everything in place" prior to the father coming to Switzerland to join the family: she was to go first, and he was to follow. The mother described the arrangements as a plan or process, involving ongoing discussions between the parties. According to the mother, the clear aim of the plan or process was to facilitate the family's successful relocation from Perth to Zürich. I do not accept the mother's evidence in this regard. Nor, I would add, do I accept the father's evidence to the effect that he had no idea of the mother's intention to relocate permanently to Switzerland until months after she had left Australia in March 2013. As I have indicated, I am satisfied that he well knew the mother might choose to remain in Switzerland.
90As described above, Dina had been unable to assist with N's care since late October 2012. She was only able to resume the role she had previously played in early 2013. By then, the arrangements for the mother and N to travel to Zürich were well in train. In February or March 2013, the mother sought and obtained leave without pay from Company K for a six month period (from 25 March 2013 to 30 September 2013). The letter dated 5 March 2013 from the CEO of Company K to the mother (see annexure D to the father's trial affidavit) includes the following:
This leave is approved as leave without pay and there will be no extension to this leave period.
Please ensure you provide us with four weeks' notice of your intentions, confirming your return date being 30 September 2013.
91Notwithstanding Mr Moser's submissions to the contrary, I am satisfied that Company K was well aware from the outset that the mother might elect not to return to her employment after 30 September 2013.
92In late February 2013 – approximately one month before the mother and N travelled to Switzerland – the parties signed an enrolment form for N to attend School A. The form provided for N to commence kindergarten at the beginning of 2015. By this stage, however, the die was cast from the mother's point of view. I am satisfied that she signed the enrolment form without any real intention of N attending School A. I have discussed this subject in more detail below.
93The mother and N stayed with the mother's parents when they first arrived in Zürich. Not long afterwards, the mother began making arrangements to obtain separate accommodation for herself and N, and to find suitable employment. I am satisfied that the father was unaware of the mother's efforts in this regard.
94After the mother obtained employment, Trudi cared for N when the mother was unavailable. I am satisfied that the arrangement worked well and that it was not contrary to N's best interests at the time.
95The mother and N had left Australia for Switzerland on or about 23 March 2013. About a week later, around Easter 2013, the father's parents purchased a ticket for him to visit the mother and N in Switzerland in May or June 2013. Shortly afterwards (and probably in very early April 2013 – given that Easter Sunday was on 31 March 2013), the father contacted the mother and told her he would be visiting Switzerland. He urged the mother to return with him to Australia in mid-June 2013. The mother showed little interest in that proposal. Instead, she pressed for the father to agree to her and N remaining in Switzerland until at least Christmas 2013: see father's trial affidavit at [158] to [169]. The father was unmoved by the mother's request: he wanted her and N to return to Perth by the end of September at the latest.
96In her trial affidavit at [30], the mother deposed:
… I had applied for an apartment, which I was offered. [The father] was aware of this and that I had included details of all of us as a family in the application. I also advised [the father] that, as we were all included, I had to "sign his name" to the application, to which he raised no objection. This was a very shortly prior to his arrival in Zürich and in anticipation of his arrival…
97Exhibit F5 comprises a copy of the application form relating to the mother's Zürich apartment. The form was completed by the mother. It is dated 5 April 2013. The form –
a)states that the apartment contains four rooms (or, in other words, three bedrooms);
b)describes the parties as de facto partners;
c)records that they had both been living at an address in Zürich (being the address of the mother's parents) since 24 March 2013;
d)records the mother's occupation as "[office clerk]" and the father's occupation as "[maître d']";
e)states that the "moving in date" will be 1 June 2013; and
f)states that the mother's employer is "[Company M] as of 1 May 2013".
98In a handwritten note attached to the form, the mother wrote:
1)We have returned to Switzerland from Australia in March 2013…
2)My work contract is being finalised at the moment. I hope to receive it in the next week and will send you a copy immediately after I receive it. My employer will be [Company M]. My monthly income has to still be negotiated. It is likely to be somewhere between CHF 5000 and CHF 6000 per month. I am very confident about the amount.
99Exhibit F6 comprises a copy of the mother's contract of employment with [Company I]. Company I remains the mother's employer.
100The contract of employment records that the mother was to commence employment on 17 June 2013 as a "Sales Assistant/Bid support". Her salary was to be CHF 78,000 per year (before tax), and she was to be entitled to bonuses.
101The contract of employment was signed by the mother on 7 June 2013.
102Clearly, the mother's employment with Company M did not proceed and she obtained her current position with Company I instead.
103I am satisfied that the mother completed and signed the application form for the apartment without consulting the father beforehand. I do not accept that there was any valid reason for her to sign the document in the father's name. As was suggested to her in cross-examination, she could have forwarded the document to the father for his signature by electronic means or by some form of international express courier. I find that she did not present the document to the father for his signature because she did not wish to run the risk of him refusing to sign it, and because she could not face the ugly quarrel that would have inevitably occurred if the request to sign had been made. I am satisfied that the mother completed and signed the application form for the apartment and applied for employment with Company M and Company I without the father's prior knowledge and consent because she wanted to force the issue of the family's relocation from Perth to Zürich or, put another way, because she wanted to present the father with, in effect, a fait accompli. Her hope was that the father would accept the arrangements she had made as irrefutable evidence of her determination to relocate the family to Switzerland and her unqualified rejection of his attempts to cajole her into accepting Australia as the family's permanent place of residence.
104It did not work.
The father arrives in Switzerland in May 2013
105The father arrived in Switzerland on or about 15 May 2013. He initially stayed with the mother and N in her parents' apartment. Approximately five days later, he left Zürich to travel to Monaco with his father and uncle. The father's parents had travelled to Europe at around the same time, and met with the mother and her parents, and the father and N, on one or two occasions in the short period between the father arriving in Zürich and leaving for Monaco.
106The mother, Dina and N later travelled to Monaco to join the father and his father and uncle. The mother, the father and N stayed together in a hotel.
107The father, the mother and N then drove from Monaco to the south of France. The father's parents followed in a separate car. The trip to the south of France had been planned prior to the father's arrival in Zürich.
108On the evening of the first day of the trip to the south of France, the group found themselves in Aix-en-Provence. After what seems to have been a fairly tense meal in a local restaurant, Herman asked the mother whether she intended to teach N English while he was in Switzerland. What followed was described by the father in his trial affidavit:
190.It was during this conversation that I heard [the mother] say for the first time that she was considering not returning to Australia and that she would not allow [N] to return to Australia with me in late June 2013.
191.A heated discussion took place on the streets in Aix-en-Provence. It went on for a considerable period of time. I cannot clearly recollect how long, as I was in shock. It could have been an hour or it could have been half an hour.
192.[The mother] was yelling and screaming and making comments that were untrue.
193.[The mother] said that she wanted me in her life, but she wanted me to live in Switzerland. I had told her countless times before, I was not going to move from Australia.
194.In the end, I simply had to walk away. I was highly emotional, highly upset and disbelieving of the statements and comments and allegations that [the mother] was making in the streets of Aix-en-Provence. She was saying "it's my life and I'm going to lead my life in my country".
109I find that the father has been less than truthful in these paragraphs. While I accept that a heated discussion took place in Aix-en-Provence, I am satisfied that the father was fully aware, well prior to his arrival in Zürich in May 2013, of the mother's desire to live in Switzerland permanently and her unwillingness to allow him to take N back to Australia in June 2013. I am also satisfied that the mother had told the father on many occasions prior to that evening that she proposed "to lead her life in her country". Just as he had told her "countless times before" that he was not going to move from Australia, so she had told him "countless times before" that she wished to live in Switzerland and not in Australia.
110In my opinion, the impasse was accurately summarised by the father in a text message he sent to the mother on 8 July 2013 (see exhibit M2):
… (That's) just what happens when two stubborn people come to a fork in the road and each has to make a decision, now we have each chosen our path and we have (to) stick to it and drive it alone.
111As I have said, I am satisfied that the impasse had been reached well prior to the father's arrival in Zürich in May 2013.
112After the incident in Aix-en-Provence, the parties terminated the trip to the south of France and returned to Zürich via Italy. Clearly, their relationship was strained. The father's parents continued with the trip.
113The mother suggested that the father had not told his parents about the mother's persistent requests for the family to relocate from Perth to Switzerland prior to the incident in Aix-en-Provence, and that he had advised them that the mother's travel to Switzerland in March 2013 was "a holiday". Further, she suggested that the father had not told his parents about the parties' discussions around Easter 2013 (which occurred little more than a week after the mother arrived in Switzerland) regarding the mother and N remaining in Switzerland until at least Christmas 2013. I am satisfied that the mother's suggestions are accurate and that the father made no attempt to dispel his parents' illusion that the mother's sojourn in Switzerland was a holiday (and nothing more), notwithstanding that his state of knowledge was as I have described it elsewhere in these Reasons. That is not to say that the father had agreed to the family living in Switzerland permanently; I have already indicated that he had not. However, the father had not informed his parents of the complexity of the situation and the deteriorating state of his relationship with the mother.
114Put another way, I am satisfied that the incident in Aix-en-Provence was considerably more disagreeable than it should have been because of the father's unwillingness to advise his parents beforehand of the serious and enduring nature of the parties' profound disagreement about the country in which the family should live. I have no doubt that the mother reacted as she did because she accurately perceived the father's failure or inability in this regard as being a further example of his subservience to his parents and his timidity or powerlessness where they are concerned.
115Shortly before the parties' return to Switzerland, the mother told the father of the apartment she had arranged in Zürich. They then spent a few days at her parents' apartment before moving to the new apartment. The father helped the mother and N move.
116I do not accept the father's evidence to the effect that he was surprised by the size of the apartment and by seeing his name on the letterbox; nor do I accept the father's evidence to the effect that he was unaware until then that the mother had made applications for full-time, permanent work in Switzerland. I am satisfied that, by that stage, the father was aware of the mother's attempt to force the issue (as described above) by putting in place arrangements designed to overcome his refusal to consider the possibility and practicality of the family living in Switzerland.
117The father remained in Zürich for approximately two weeks. He spent time with the mother and N in the mother's apartment. As he put it, he "worked diligently" in trying to convince the mother to return to Australia with N: see father's trial affidavit at [219].
118In his trial affidavit at [220], the father deposed:
[The mother's] decision not to return to Australia with [N] in September 2013 caused severe anxiety for me as [the mother] would not divulge the reason why she was considering not returning to Australia. This seemed out of character for [the mother] as we had, until then, a very open relationship where we discussed all issues affecting us.
119I accept that the mother's decision not to return to Australia caused severe anxiety for the father. However, I do not accept the other matters deposed to by the father in this paragraph, which I regard as disingenuous. The father well knew the reason why the mother "was considering not returning to Australia" (indeed, she was refusing to return to Australia in accordance with his wishes), and it is ludicrous to suggest otherwise. The father's own evidence is peppered with examples of the mother attempting to convince him of the strength of her desire for the family to live in Switzerland. Her decision to remain there with N was anything but "out of character". Indeed, it was entirely consistent with the opinions she had expressed over an extended period when beseeching the father to take her unhappiness at having to remain in Australia seriously.
120The father returned to Perth on 18 June 2013. Although he suggested otherwise, I am satisfied that he was well aware, at that stage, that his relationship with the mother had effectively broken down and it was most unlikely that she and N would be returning to Perth in September.
June to September 2013
121After the father's return to Perth, he bombarded the mother with requests to return to Perth with N. He communicated with her by email and text message, and orally by telephone, Skype or other electronic means. The mother responded politely and affectionately, but she did not give in to the relentless pressure.
122Conversely, the father remained adamant that he would not reunite the family by joining the mother and N in Switzerland and living there permanently.
123The father seemed to attribute particular weight to a conversation between the parties on 24 July 2013 in which the mother told him (again) that she would not be returning to Perth with N. I am satisfied, however, that there was nothing unique about the conversation on that day. As explained above, the impasse had been reached long before then.
124The mother proceeded to resign from her employment with Company K. At the same time, the parties spoke about the mother and N visiting Australia in October or November 2013 and the father visiting the mother and N in Switzerland in March 2014. Although the parties paid lip service to the possibility of resuming cohabitation, the prospect of that occurring was remote. For example, in a text message forwarded to the mother on 26 August 2013, the father wrote:
… we have been over mountain and to the depths of the ocean over the past 6 months and I know it has not been easy for either of us… but we are both very hurt and we have decided to go our separate ways because of our selfishness with neither to blame but I need you to know that for [N] at least being in the same country makes things easier but I don't know how that's going to work either but I need you to know if you were to return I would help you look for your own place to start over again I just want you to know that I'm not closing the door on you completely we will never be what we were there is just too much hurt and pain that each has put on the other but we can be friends again and move forward.
125I am satisfied that, by the end of August 2013, loose arrangements had been put in place for the mother and N to visit Australia in or around November 2013 and for the father to visit them in Switzerland in or about March 2014 (implying, of course, that the mother and N would be living in Switzerland at that time). There was, however, a significant degree of what I described during the trial as "shadow boxing" in the parties' communications. I find that neither party was being wholly frank with the other regarding the possibility (or, perhaps more accurately, the near impossibility) of the relationship either continuing or, perhaps, being resurrected. More importantly, I am satisfied that the father had no intention of permitting the mother to take N with her back to Switzerland after the suggested visit in November 2013. I find that he was quite prepared to deceive the mother in order to persuade her to bring N to Australia: his intention was to lure her back to Perth and then take such (legal) steps as he considered necessary to prevent her from taking N back to Switzerland.
126My view in this regard is reinforced by the father's actions in early September 2013, when he lodged an application with the Central Authority for N's return to Australia pursuant to the Convention. Herman assisted him with the application. As I have said, the father did not tell the mother he had taken this step. Indeed, the mother did not find out about it until a year later.
127In the Convention application, the father asserted that the mother informed him "for the first time" that she would not be returning N to Perth on 28 July 2013: see the application at paragraph IV. Elsewhere in the application, the father asserted that the mother refused to return N to Perth on 24 July 2013. The father swore an affidavit in support of the application on 30 August 2013: see annexure H to the father's trial affidavit. The affidavit is similar to the father's trial affidavit and, like the trial affidavit, tells only part of the story. Importantly, it fails to deal fairly and accurately with the extensive communication between the parties after the mother left Australia in March 2013. I have already discussed the effect of that communication. Further, parts of the father's affidavit in support of the Convention application were simply untrue. For example, the father deposed at [92]:
[The mother] told me… in a telephone conversation I had with her on or about 4 August 2013 that she would not allow [N] to travel to Perth to be with me. Since that date I have not had any communication with [the mother] and she has not allowed me to Skype with [N]…
128Exhibit M2 reveals that there was constant or almost constant communication between the parties throughout August 2013, much of which contained expressions of affection directed by each party to the other. There is no mention of the father being unable to Skype with N during that period.
129The father also failed to refer to his email communication with the mother on 24 July 2013: see the father's trial affidavit at annexure F. The mother had suggested that the father come to Switzerland "for a season or so and see how we go". In his response, and among other things, the father wrote:
… This is the last time I'm ever asking you to come back you can stay there till you go to God and no I am not going to come over for a season I have everything I need here but I will be coming over next year in March to pick up [N] for a year – to stay with me.
130Although the father asserted at trial that the mother had hindered his communication with N during the period leading up to Father's Day in 2013, and on Father's Day itself, I do not accept his evidence in this regard. I am satisfied that the father was able to communicate with N at all relevant times but, for reasons of his own, he sometimes elected not to do so. I accept that there may have been occasions when N was unavailable to speak with the father, and that Father's Day may have been one of those occasions. I find, however, that the mother has not deliberately impeded the father's contact with N. Indeed, I find that she has encouraged such contact and facilitated it to the best of her ability.
131As matters transpired, the father did not continue the Convention proceedings he commenced in September 2014. He eventually abandoned the proceedings because there was no need for them. A tragic and unforeseen event led to the mother placing N in the father's care without the need for legal intervention.
Trudi dies
132On or about 7 September 2013 – in other words, some four days after the father filed the Convention application – Trudi died suddenly and unexpectedly. The mother was distraught.
133Trudi had been N's carer in Zürich while the mother was at work.
134The mother communicated with the father soon after her mother's death. He travelled to Switzerland immediately. He remained there for approximately three weeks. The parties lived together in the mother's apartment in Zürich. According to the mother, they lived together "as a couple in an intimate relationship". I do not accept the mother's evidence in this regard. I am satisfied that the mother "leaned heavily on the father for emotional support" (see the mother's trial affidavit at [35]) and that the father provided that support, but have no difficulty in concluding that there was no physical intimacy between the parties at that time. Indeed, I am satisfied that physical intimacy ceased well prior to the mother's departure for Switzerland in March 2013 and that there has been no physical intimacy between them since that time.
135During the father's stay in Zürich in September 2013, the parties discussed arrangements for N. The father was unable to remain in Switzerland indefinitely due to his family and employment commitments. The mother, who was working on a full-time basis, was unable to find a suitable child care placement for N in Zürich. In view of what were clearly exceptional circumstances, the mother reluctantly agreed that N should return to Australia with the father until she could make suitable arrangements for his care. I find that the mother agreed to N returning to Perth with the father on the basis that he would be returned to Zürich as soon as the mother had overcome the grief and disorientation associated with Trudi’s death, and put in place suitable childcare arrangements.
136The father, however, had other plans. I am satisfied that he had no intention of allowing N to return to Zürich to live. I am also satisfied that he was quite prepared to tell the mother anything in order to achieve his objective of having N returned to his care in Perth. He was well aware that the mother was grieving, unsettled and vulnerable, that she was leaning heavily on him for emotional support and that, at that stage, she trusted him. None of those considerations deterred the father from implementing his plan, and from actively or passively misleading the mother in the process.
137Ms Farmer submitted, and I accept, that the father's actions at that time were not child-focused. He gave little thought, or little weight, to the fact that his strategy would effectively deprive N of the person who had been his primary caregiver for at least the last six months and, arguably, for the whole of his life.
138The father said that the parties agreed it would be in N's best interests to return to Perth and live with him: see father's trial affidavit at [255]. In his oral evidence, he said that it was agreed at that time (in other words, when the father was in Zürich in September 2013) that N would live in Perth permanently. I do not accept the father's evidence in this regard. As indicated above, I find that the mother agreed to the father caring for N in Perth (with Dina's support) temporarily.
139Both parties understood that the father would need Dina 's assistance to help look after N in Perth, and contact was made with her while the father was still in Zürich – to confirm her willingness and ability to provide that assistance. Dina confirmed that she was more than happy to assist. Importantly, her evidence was that she was not asked to look after N permanently.
140The father returned to Perth, with N, on 26 September 2013. Shortly afterwards, he asked his father to withdraw the Convention application. A few days earlier, a representative of the Australian Central Authority had written to Herman advising that the Authority had concluded the relevant "date of retention" of N in Switzerland was 30 September 2013 and not 24 July 2013. The reason the later date was adopted was because the father had consented to N remaining in Switzerland until that time: see exhibit F2. Herman had responded to the Authority on the same day (23 September 2013), indicating that there was little point in debating the precise retention date "when 30 September 2013 is a week away". On 2 October 2013, Herman wrote to the Authority advising that the father and N had arrived in Perth on 26 September 2013. A copy of Herman's letter is contained in exhibit F2. It includes the following:
… [Due] to a change in the personal circumstances of [the mother], she has allowed [the father] to travel to Perth with [N].…
I indicated to you on Thursday last that the reason for the change in [the mother's] circumstance is that her mother passed away on 7 September 2013. Her death was unexpected and it has come as a great shock and personal cost to [the mother] and her family.
[The mother] and her family have been deeply affected by [the mother's] mother's passing and currently she is unable to cope particularly as her mother was [N's] carer whilst [the mother] worked.
On the passing of her mother, [the mother] had no one else to look after [N] except to put [N] into five day daycare which proposed action [the father] did not agree to.
[N's] return to Perth may only be for a short period of time as [the mother and the father] have not made any plans beyond the period from the end of September 2013 through to the end of December 2013.
[The father] has instructed me to request that, for the moment anyway, you leave his Application on your books and I will write to you and inform you as developments occur. (Emphasis added.)
141It is clear from Herman's letter of 2 October 2013 – which was written on the basis of the father's instructions – that the parties had not agreed to N remaining in Perth for any significant period of time beyond December 2013. The temporary nature of the arrangement was corroborated by Dina's evidence to the effect that she had not been asked to look after N permanently. As indicated above, I am satisfied that the father's evidence regarding the mother's agreement to N remaining in Perth permanently was untruthful.
N's return to Perth in September 2013
142As indicated above, the father brought N back to Perth on 26 September 2013. N has remained in Australia since that time (save for a brief visit to Zürich in 2014). Until early 2015, he lived with the father on a full-time basis. Dina has been heavily involved in his care.
143From the time the father left Zürich in late September 2013 to December 2013, the parties continued the pattern of communication into which they had settled during the period from March to early September 2013. I have described that pattern of communication elsewhere in these Reasons as a form of "shadow boxing" – and I shall omit the parentheses when I use this expression from now on. Although superficially (but not invariably) polite, and often affectionate, the parties maintained their pre‑existing views regarding the country in which N should live. Half-hearted attempts were made to plan some sort of future together as a family, but I am satisfied that the relationship had been damaged beyond repair. For example, exhibit M2 reveals the following –
a)It was agreed the mother would come to Perth in January 2014.
b)On 6 October 2013, the father asked the mother to marry him.
c)On 27 October 2013, the father lamented that it was difficult to look forward to the mother returning to Perth (in January 2014) "with no clear future" with her; the mother responded that she wanted the parties to be "together" – but that a decision would be made "when I come in January".
d)On 17 November 2013, the father sent a text to the mother in the following terms:
… The way I see things at the moment we are making no forward progress in resolving this problem that we have, to me it is now clear we do not want to change our positions on where we are living regardless of the other's request, the only thing that I see we somehow have in common is that we both want [N] and this will have to be worked out accordingly in time as to who gets what rights.
361In my opinion, and in all the circumstances, this factor or consideration favours the Perth option over the Zürich option. Put shortly, it will be easier for N to have a meaningful relationship with both his parents if they both live in the same city; that is only likely to occur if the Perth option is adopted.
Protection from harm
362Neither party suggested that this is a relevant factor for the Court to take into account. I am satisfied that neither parent would subject N to, or expose him to, abuse, neglect or family violence. Each party conceded that the other would never harm N.
Parental responsibility
363As indicated above, the Court must apply a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility. Such a presumption, although clearly important, says nothing about the amount of time the child should spend with each parent.
364The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In the current proceedings, such circumstances do not apply, and it was not in dispute that the presumption relating to equal shared parental responsibility adheres. Indeed, both parties agree that there should be an order for equal shared parental responsibility.
365I am satisfied that it is appropriate to make an order for equal shared parental responsibility. That is, after all, what the parties want. I am hopeful that, after the dust from these proceedings has settled, they will communicate in a more sincere, uncoloured and constructive manner than has been the case since at least early 2013.
Equal time, substantial and significant time and the parties' proposals
366Because I propose to make a parenting order to the effect that the parties are to have equal shared parental responsibility for N, I must consider whether N spending equal time with each parent would be in his best interests. I must also consider whether such an arrangement is reasonably practicable. If both of these conditions apply, I must consider making orders which provide for N to spend equal time with each parent.
367As is apparent from these Reasons, I am satisfied that it would be in N's best interests to spend equal time with each of his parents. This proposition was not disputed by either party. The question becomes, therefore, whether it is reasonably practicable for N to spend equal time with each parent. Clearly, equal time would not be practicable if the Zürich option were to be adopted – irrespective of the father's half-hearted but asinine suggestion to the contrary. On the other hand, equal time would be practicable if the Perth option were to be adopted.
368I am satisfied that the parties have the capacity to implement a shared care arrangement and that they have the capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement. In spite of some difficulties N may have had in transitioning to a shared care arrangement (which has been in effect since the mother came to Australia earlier this year), I am not satisfied that the shared care arrangement has had or is likely to have an adverse impact on him or on his best interests.
369Because an equal time arrangement is both reasonably practicable and in N's best interests (if the Perth option were to be adopted), I am obliged to consider making orders which will enable such an arrangement to be adopted.
370If I were to determine not to make an order for equal time, I would have to consider making an order for N to spend substantial and significant time with each of his parents. Again, I would have to consider whether such an arrangement is both reasonably practicable and in N's best interests. However, because I am satisfied that an equal time arrangement is both reasonably practicable and in N's best interests, and because I have decided that the Perth option should be adopted, there is no need for me to discuss the benefits or otherwise of N spending substantial and significant time with the parent with whom he does not live.
371I acknowledge and accept that an order for equal shared parental responsibility requires the parties to consult with each other and make a genuine effort to come to a joint decision about major long-term issues affecting N. Such consultation is not required in relation to issues that do not fall within the purview of "major long-term issues" – such as what children eat or wear or what their daily activities should be when they are spending time with the parent with whom they are not living. An order to the effect that children are to share their time equally between their parents requires the parties to consult and cooperate with each other in relation to a myriad of issues that cannot be categorised as major long-term issues. In other words, consultation and cooperation associated with an order for equal shared care of children is more frequent and, in many senses, more intimate, practical and immediate than consultation and cooperation associated with an order for equal shared parental responsibility. It is not unusual for parents to fail comprehensively at the former, but to put aside their differences and make a genuine effort to succeed at the latter.
372In this case, neither party suggested that an order for equal shared care cannot work effectively and in N's best interests. The fact of the matter is that both parties have been N's primary caregivers at different times during his life. Both have done a very good job in that regard, and each recognises that N is the other's "number one priority".
Conclusion as to most satisfactory proposal
373The mother conceded that she will "move to Australia if she has to because N is her priority", and it was conceded on her behalf that the Court "can be confident that the mother will get by in Australia and provide a good level of care for her son": see mother's submissions at [50]. It was submitted, however, that N "deserves a parent who is not simply 'getting by'".
374I am very conscious of how important it is for the mother to live in Switzerland. It is her home. It is where she feels most comfortable. She has tried living in Australia but clearly prefers living in Switzerland. I am acutely aware of her legitimate interests and desires in that regard, and have certainly not ignored them. The fact of the matter is, however, that a great deal of water has passed under the bridge since N returned to Australia in September 2013. He has not lived with the mother on a full-time basis since that time (save for very short periods, including since the mother's arrival in Australia in early 2015). The father and Dina have been his primary caregivers for almost the whole of the last 18 months of his short life. It is not in dispute that, by and large, they have done a good job in that regard.
375I am satisfied that N is indeed each party's "number one priority" and that, stripped of all the considerable emotional overlay, each genuinely believes that his or her preferred option will be in N's best interests. The mother believes that she can provide a better life for N – in the broadest sense – if he lives with her in Switzerland. The father believes that he can provide a better life for N – in the broadest sense – if he lives in Australia.
376The mother possesses considerable energy, imagination and resourcefulness, and she is to be commended for that. Regrettably, the father does not possess these qualities. As I have indicated, the mother is emotionally stronger (or, alternatively, less emotionally vulnerable) than the father.
377I have commented elsewhere in these Reasons upon the father's reluctance or inability to relocate to Zürich in the event of the Zürich option being adopted.
378In Jurchenko & Foster (supra) the Full Court cited with approval the following passages from the decision of the High Court in U v U (2002) 211 CLR 238 (the first being an extract from the judgment of Gaudron J, and the second being an extract from the judgment of Hayne J):
[35] Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
…
[175] When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be … compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do if the mother were to have the child reside with her in India. …
379Although the Full Court in Jurchenko & Foster (supra) did not include the final sentences of Hayne J's comments in U v U (supra) at [175], I consider them to be of relevance:
Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
380I have done my best to explore the possibility of the father relocating to Zürich in the event of the Zürich option being adopted. Similarly, I do not regard the mother's willingness to remain in Australia if the Court were to reject the Zürich option as comprising any form of endorsement of the Perth option on her part. In this regard, I note that the Full Court in Jurchenko & Foster (supra) adopted the following passage from the judgment of Kirby J in U v U (supra):
[144] … Treating the wife’s refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an ‘alternative proposal’ requires, in effect, that parent to show 'good' or 'compelling' reasons to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent …
381Nevertheless, and for the reasons I have given, it is clear that the mother herself regards the Perth option is a serious one. She has made no attempt to suggest she could not cope if the Perth option were adopted, or that her unhappiness or possible resentment and frustration at having to remain here could affect her capacity to parent N or N's best interests in the broadest sense. On the contrary, the mother has assured the Court that she will "get by".
382Through no fault of the mother, I am satisfied that the father's position, outlook and general prospects, were he to move to Zürich, are likely to be significantly more difficult than the mother's position, outlook and general prospects if the Perth option were to be adopted: see, for example, Deiter & Deiter [2011] FamCAFC 82.
383In all the circumstances, and as I have explained in a variety of ways in these Reasons, I am not satisfied that it would be appropriate to give more than minimal weight to the possibility of the father relocating to Zürich when considering the Zürich option.
384One of the most compelling reasons for the adoption of the Perth option stems from the fact that it enables both parties to share N's care. The Zürich option does not allow for an equal shared care arrangement. The Perth option involves the least upheaval in N's life and seems to offer the least detrimental outcome from his point of view.
385I have done my best to recognise and give substantial weight to the legitimate interests and desires of both parents. I have not viewed N's best interests "in the abstract, separate from the circumstances of the parent with whom the child lives" and I well understand that there is no "universal rule" obliging a custodial or residence parent to reside in close proximity to the other parent so as to facilitate contact between that parent and the child: see the passage from the judgment of Kirby J in AMS v AIF (supra) cited above. In this case, however, and irrespective of the fact that the mother was N's primary caregiver until September 2013, she has not been his primary caregiver since that time. If she had remained his primary caregiver, these proceedings may have had a different complexion. Similarly, the trial may have had a different complexion if it had taken place in early 2014, but it did not.
386Thus, and –
a)bearing in mind that N's best interests comprise the overriding or paramount, but not the sole, consideration in these proceedings;
b)taking into account the objects and principles set out in s 66; and
c)having regard to my discussion of the s 66C factors above,
I conclude that the Perth option is more likely to be in the N's best interests than the Zürich option.
387In reaching the above conclusion:
a)I have not required the mother to demonstrate "compelling reasons" for the Zürich option;
b)I have not required the father to demonstrate "compelling reasons" for the Perth option;
c)I have done my best to evaluate the broad proposals advanced by the parties;
d)I have not considered myself wholly bound by the parties' proposals;
e)there has been no need for me to separate the notional issue of relocation from the question of with whom N is to live;
f)I have done my best to weigh the evidence and submissions as to how each proposal holds advantages or disadvantages for N's best interests;
g)I have done my best to follow the legislative pathway (to the extent that such a term adequately describes the relevant process), as I understand it to be;
h)I have recognised that the mother's freedom of movement is a very important consideration, but I have also recognised that her right in that regard must, if necessary, give way to N's best interests; and
i)I have recognised that neither party bears any relevant onus of establishing that one proposal better promotes N's best interests than does the other.
388As I have indicated, the mother is not N's unchallenged primary caregiver. Nor, if the Perth option is to be adopted, is the father. It is not possible to strictly separate what might be regarded as N's best interests from each party's circumstances, and his or her legitimate interests and desires. The law does not suggest that such a separation is either reasonable or feasible: see, once again, the passage from the judgment of Kirby J in AMS v AIF (supra) cited above. Each party's happiness and emotional health are clearly important considerations. I have done my best to take those considerations into account and to strike the balance that the law requires of me.
Orders relating to parenting issues
389I propose to hear the parties' legal representatives in relation to the precise parenting orders necessary to give effect to these Reasons.
390In broad terms, the orders will be in accordance with the Perth option. I am not satisfied, however, that it is in N's best interests to move backwards and forwards between the parties in accordance with the rather disjointed arrangements proposed by the father. I shall order, therefore, that the shared care arrangement be on a week about basis. I shall also order that N should continue to attend School A until the completion of Year 6, at which time the parties should attend an appropriate form of mediation to enable them to discuss arrangements for his secondary education (assuming, of course, that they have not agreed upon those arrangements beforehand). N's attendance at School A should be conditional upon the father's parents meeting the school's fees and expenses as and when they fall due. It seems to me that – subject to further submissions from the parties – those fees and expenses should be defined to include the following:
a)the tuition fees identified by the School A (in its prospectus or other published summary of fees and charges) as tuition fees or charges;
b)any other fees or charges that might be imposed by School A for children to attend the school (including, but not limited to, school levies or building fund contributions);
c)uniforms and all compulsory clothing or outfits for school sport;
d)books and stationery, computer hardware and software, school excursions and compulsory travel; and
e)school based extracurricular activities.
I certify that the preceding [390] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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