GILLAM and WAXWEILER
[2020] FCWA 66
•30 APRIL 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GILLAM and WAXWEILER [2020] FCWA 66
CORAM: SUTHERLAND CJ
HEARD: 13-17 JANUARY 2020
DELIVERED : 30 APRIL 2020
FILE NO/S: PTW 5345 of 2014
BETWEEN: MR GILLAM
Applicant
AND
MRS WAXWEILER
Respondent
Catchwords:
CHILDREN - International relocation - Mother seeking liberty to take nine year old child from Perth to live in Zurich - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Jones |
| Respondent | : | Mrs Farmer |
Solicitors:
| Applicant | : | Tolcon Legal |
| Respondent | : | Anthony R Clarke & Associates |
Case(s) referred to in decision(s):
Albert & Plowman [2020] FamCAFC 23
AMS v AIF (1999) 199 CLR 160
Fullgrabe & Fullgrabe [2015] FCWA 9
Gillam and Latch [2015] FCWA 34
Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343
Sayer & Radcliffe [2012] FamCAFC 209
Selkin & Artliff-Selkin [2013] FamCAFC 19
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillam & Waxweiler has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
INTRODUCTION
1[Mrs Waxweiler] ("the mother") and [Mr Gillam] ("the father") were unable to reach final agreement about parenting issues for their nine year old son, [N]. The parenting proceedings were complicated by the following matters:
a)N has a history of learning and behavioural difficulties and has been assessed as working at a Year 1 level despite commencing Year 4 in 2020. There was little clarity in the evidence as to the cause(s) of N’s difficulties. However, it was common ground that N requires significant and ongoing assistance to support his learning and development (albeit the parties were not in agreement as to how that should occur – including the dispute as to whether N should continue at his present school). From mid-2019, N commenced taking ADHD medication and received counselling from a clinical psychologist. There was no dispute that N’s focus, attention and behaviour have improved dramatically as a result of these interventions.
b)There is little trust between the mother on the one hand and the father and the paternal grandparents on the other hand; a deficit only exacerbated by these proceedings. Unfortunately, that dynamic has had a deleterious impact on the family’s ability to formulate and execute a plan to address and manage N’s learning and behavioural difficulties which were identified as early as June 2016 (although, probably did not become pronounced until 2017). As noted above, it was not until 2019 that N was linked in with a paediatrician and clinical psychologist.
c)The parties are no strangers to litigation in this court. There was a trial about parenting arrangements for N in 2015[1] before Walters J. In those proceedings, the mother’s primary position was that she wished to relocate with N to live in Switzerland – her home country. However, in the event the court found that N should remain in Australia, the mother conceded that she too would stay and “get by”.[2] The father’s position was that – despite holding dual Australian and Swiss citizenship – he would remain in Australia if the court decided that N should relocate to Switzerland. Walters J ultimately determined that N should remain in Australia and commended the mother for possessing “considerable energy, imagination and resourcefulness” – qualities that his Honour considered were not shared by the father.[3] His Honour also ordered that N attend [School A] subject to the paternal grandparents meeting the fees.
d)The mother’s circumstances changed following the 2015 trial. In July 2016, the mother married her current husband, [Mr Paul Waxweiler (“Paul”)], a Swiss citizen, and in August 2017 they had a child of their own, [M]. In 2016, Paul moved to Perth to live with the mother and N but was unable to obtain employment, and he returned to Switzerland in May 2017. Understandably, the mother is no longer prepared to split her life across two hemispheres, and wishes to return to Switzerland. The mother has also experienced a decline in her mental health as a result of being isolated from her family, friends and culture whilst living in Australia, and suffers from anxiety and depression. The mother’s position now is that she intends to relocate to Switzerland regardless of whether the court permits N to go.
e)As will become apparent in these Reasons, I am satisfied that since the commencement of these proceedings, the paternal family conducted themselves in a manner that had one, if not both, eyes on the litigation – to the detriment of proper decision making for N.
ORDERS SOUGHT AT TRIAL
[1] See [Gillam and Latch] [2015] FCWA 34, delivered on 22 April 2015, and the final orders flowing therefrom made on 18 May 2015. “[Latch]” was the mother’s surname at the time of the 2015 decision. The mother has since married, and has taken the surname “[Waxweiler]”.
[2] Gillam and Latch [2015] FCWA 34, [381].
[3] Gillam and Latch [2015] FCWA 34, [376].
2The current proceedings were commenced by the father in April 2017 and came before me for trial over five days in January 2020.
3In summary, the mother’s primary position was that she have sole parental responsibility for N (subject to a condition that she consult with and consider any views expressed by the father before making a major long-term decision), that N live with her and that she be permitted to relocate to Switzerland.[4] Upon relocating, the mother proposed that N spend time with the father during the spring and summer Swiss school holiday periods each year, and during the Christmas school holiday period each alternate year. The mother also proposed that N have weekly Skype, FaceTime or telephone contact with the parent with whom he is not living at the time, and additional electronic communication on birthdays. To support N’s transition to living in Switzerland, the mother proposed that she engage a clinical psychologist to work with N.
[4] Mother’s Minute of Final Orders Sought at Trial filed 26 April 2019.
4In the event the Court determined that N should remain in Australia, the mother’s alternative proposal was essentially her primary proposal in reverse – namely, that the father have sole parental responsibility for N, that N live with the father and spend time with her during defined school holiday periods. The mother maintained in her alternative proposal that N should attend upon a clinical psychologist (albeit for the father to arrange). The mother also sought an order that the father enrol N at a school other than his current primary school, School A.
5The Father’s Amended Minute of Orders Sought at Trial[5] set out various proposals:
a)At the commencement of the trial, the father’s primary position was that the mother’s application to relocate should be dismissed, such that the final parenting orders made in May 2015 remain in full force and effect. That application was ostensibly made on the basis that the mother had not satisfied the rule in Rice & Asplund. However, the father’s counsel conceded in closing that, as a result of the nature of the evidence adduced during trial, the father no longer maintained that the mother’s application should be dismissed.
b)The father proposed that, regardless of where N ultimately lives, the parties have equal shared parental responsibility for him. As to N’s living arrangements, the father’s proposals were framed in the alternative, from (in his view) most desirous to least:
i)The father’s first proposal was for both N and the mother to remain living in Perth. In light of the mother’s position that she would be relocating to live in Switzerland regardless of the outcome of the trial, this proposal was of no utility, and I disregard it.
ii)The father’s second proposal was for N to remain living in Perth in the event the mother relocated to Switzerland. In those circumstances, the father proposed that N live with him, and spend defined school holiday time with the parties. The father also proposed that N have electronic communication with family members on birthdays, as well as weekly electronic communication with the non-resident parent. The father joined with the mother in proposing that N attend upon a clinical psychologist. The father also sought an order that N continue at School A subject to the paternal grandparents making payment of the cost of N’s attendance.
iii)The father’s third proposal was based on N living with the mother in Switzerland. Under that scenario, the father proposed that N spend defined time with him during the school holiday periods. The father again proposed that N have electronic communication with the non-resident parent on a weekly basis, as well as on family members’ birthdays. The father also proposed that N attend upon a “counsellor” in Zurich. As for schooling, the father sought an order that N attend [School B in Zurich] (where the curriculum is in English), and that the parties share equally in the cost of same.
[5] The Amended Minute formed part of the father’s papers for the judge, filed on 20 December 2019. That document, however, was different to the Amended Minute that was also filed as a separate document on the same day (that is, 20 December 2019). For example, paragraph 36 (which provided for N to attend German language classes) was deleted in the Amended Minute forming part of the father’s papers, whilst that same paragraph remained intact in the separately filed Amended Minute. Counsel for the mother noted the deletion during the course of the trial, and the father did not concede said order should be made.
6For the sake of completeness, I observe that a fourth proposal was also potentially available to the father: that N live with the mother in Switzerland and the father also move to Switzerland. However, the father made it clear that he would not move to Switzerland. Accordingly, this potential proposal was also of no utility, and I disregard it.
7During the course of the trial I indicated to counsel that I was concerned that a number of ancillary orders that had been sought by both parties had effectively been ignored / were not the subject of cross-examination. As a result, counsel for the father informed me at the commencement of his closing address that the parties had agreed a number of matters that would apply regardless of N’s ultimate living arrangements had been agreed. At the conclusion of the trial, on 17 January 2020, I made an order that within 14 days, the parties have liberty to file with the court a joint Minute of orders that can be made by consent. On 31 January 2020, the parties filed two Minutes of orders that could be made: one on the basis that N was permitted to relocate with the mother to Switzerland; and the other on the basis that N remained in Australia. However, the father also purported to file a third Minute setting out further orders proposed by him that were not agreed between the parties. A number of the orders sought by the father in the third Minute had not been raised by him during the trial, and were effectively entirely new. Given that: (1) the father had not been given permission to file the third Minute after the trial, and (2) the lack of procedural fairness to the mother in relation to the matters raised in the third Minute, I was not prepared to have any regard to the document.[6]
THE EVIDENCE
[6] The matters that remained in dispute were as set out in the letter from the mother’s solicitors dated 31 January 2020 and in the letter from the father’s solicitors dated 31 January 2020.
8Both parties were represented by solicitors throughout the proceedings, including at trial. An Independent Children’s Lawyer was also appointed in the proceedings in January 2018, but ceased acting prior to trial.
9The mother relied on her trial affidavit,[7] financial statement[8] and affidavits of her husband, Paul,[9] and her treating clinical psychologist, [Ms D].[10]
[7] Mother’s trial affidavit filed 18 April 2019.
[8] Mother’s Form 13 financial statement filed 26 April 2019.
[9] Affidavit of Paul filed 18 April 2019.
[10] Affidavit of Ms D, filed 18 April 2019.
10The father relied upon his trial affidavit[11] and supplementary trial affidavit,[12] financial statement[13] and affidavits of the paternal grandmother, [Dina][14] and of the paternal grandfather, [Herman].[15] As I discuss later in these Reasons, I am satisfied that the father and his parents failed to set out evidence in their respective trial affidavits of significant relevant events, particularly in relation to their dealings with N’s school, such as the non-payment of school fees and their attendances at meetings with the school in September and October 2017. Had it not been for the fact that, very late in these proceedings, a subpoena was issued to the school to produce documents, I am satisfied that the paternal family would not have voluntarily disclosed information about these events.
[11] Father’s trial affidavit filed 5 March 2019.
[12] Father’s supplementary trial affidavit filed 8 January 2020.
[13] Father’s Form 13 financial statement filed 19 December 2018.
[14] Affidavit of Dina filed 7 March 2019.
[15] Affidavit of Herman filed 5 March 2019.
11The following professional witnesses also gave evidence by way of affidavit:
a)[Mr E] (the single expert) filed two reports in the proceedings: in July 2018[16] and January 2020 respectively.[17]
b)[Dr F] (who was, until the end of 2019 when she retired, the school psychologist at N’s school, School A) filed an affidavit on 20 December 2019.
[16] Affidavit of Mr E filed 3 July 2018.
[17] Affidavit of Mr E filed 6 January 2020.
12N’s clinical psychologist, [Mr G], did not give evidence on affidavit, but did attend at the trial by telephone and gave oral evidence.
13Each party was cross-examined by counsel for the other party. Each of the parties’ witnesses were also cross-examined. I permitted both parties’ counsel to cross-examine the professional witnesses: Mr E, Dr F and Mr G.
14As noted above, the parties participated in a trial about parenting arrangements for N before Walters J over five days in March 2015. His Honour delivered judgment on 22 April 2015 and final parenting orders were made on 18 May 2015.
15Both parties conducted their case on the basis that the findings in the 2015 Reasons represented a line in the sand, such that the trial before me was concerned with events that occurred after March 2015 (save for two very discrete issues on which I am satisfied nothing turns).[18] Where necessary, I have referred to Walters J’s findings in these reasons,[19] and note his Honour made a number of findings in relation to the dynamics of this family, as follows:
a)There was a history of the parties failing to keep their agreements with each other, and communicating in a manner that Walters J described as “shadow boxing” – that is, not being entirely frank. Indeed, Walters J found that each party set out at various times to deliberately deceive the other, particularly around each party’s plan to lure N to where they were living at the time, and keep him there.[20]
b)Whilst the parties seemed to maintain (mostly) civil written communications,[21] his Honour found that they also engaged in heated arguments over matters about which they did not agree.[22]
c)His Honour observed that the father was overly critical of the mother and failed to give a fair account of certain events in his evidence.[23] Further, his Honour considered that the father’s communication with the mother revealed “that he has a tendency to grumble, and to find fault in a manner that the mother does not”.[24]
d)His Honour found merit in the submission that the father’s ability to promote and encourage N spending time with the mother was of concern, and that the father had, for tactical reasons, sought to restrict time.[25] His Honour was also critical of the father’s actions in retaining N in Australia in September 2013, and considered the father gave little thought, or little weight, to the fact that such course of action would effectively deprive N of his primary carer.[26] Ultimately, Walters J found that, unlike the mother, the father had failed to insulate N from the conflict between the parties.[27]
e)The mother’s case at the 2015 Trial was that the father has always been heavily influenced by his parents, and that he always looked to them for guidance in any decisions (in preference to her). Walters J was satisfied that this description of the father was accurate,[28] and found that the mother resented what she perceived was the father’s subservience and financial dependence upon his parents.[29]
[18] Those issues were (1) the mother was cross-examined about whether she accepted Walters J’s finding that in 2013 she completed and signed an application for an apartment in Zürich without first consulting the father. The mother said she did not; and (2) the father was cross-examined about his failure to disclose an email dated February 2015 prior to the 2015 Trial.
[19] Noting that pursuant to s 202L of the Family Court Act 1997 (WA), I am permitted to “adopt any recommendation, finding, decision or judgment” of any court.
[20] Gillam and Latch [2015] FCWA 34, [124], [125], [136], [160].
[21] Gillam and Latch [2015] FCWA 34, [121] and [143].
[22] Gillam and Latch [2015] FCWA 34, [86] and [148].
[23] Gillam and Latch [2015] FCWA 34: for example, see, [127] - [130] and [167].
[24] Gillam and Latch [2015] FCWA 34, [328].
[25] Gillam and Latch [2015] FCWA 34, [327].
[26] Gillam and Latch [2015] FCWA 34, [137].
[27] Gillam and Latch [2015] FCWA 34, [331].
[28] Gillam and Latch [2015] FCWA 34, [46].
[29] Gillam and Latch [2015] FCWA 34, [85].
16As will become clear, those dynamics (to a greater or lesser extent) remain at play.
FINDINGS IN RELATION TO CREDIT
The mother
17I considered the mother to be an impressive witness: persuasive and ultimately credible. The mother gave her evidence in an open and frank manner and made appropriate concessions against interest, including acknowledging that she had made a secret recording of a meeting at N’s school in October 2018.[30] The mother struck me as being an accurate historian, and with generally a good memory for events. At no point during the mother’s evidence did I consider she was exaggerating or embellishing – indeed, I formed the view the mother was balanced in giving her evidence.
Paul (the mother’s husband)
[30] I granted the mother a certificate pursuant to s 11 of the Evidence Act 1906 (WA) in respect of the evidence she gave under cross-examination about the secret recording, as I was satisfied that she gave her evidence in a satisfactory manner.
18Paul was cross-examined for only a short time by the father’s counsel. Even so, I formed the view that Paul was a polite and thoughtful witness, who did his best to answer the questions put to him fully and in a manner that assisted the court. None of Paul’s evidence in chief was successfully challenged in cross-examination, and I therefore accept his evidence. In particular, I have no hesitation in accepting Paul’s evidence that he did he best to find a job in Perth so that he and the mother could make a go of life in Australia, but he was ultimately unsuccessful and had to return to Switzerland so that he could financially support the family.
The father
19The father was an unimpressive witness: in particular, I considered that he was prone to exaggerate his complaints about the mother, in an attempt to cast her in a bad light. At times I considered the father to be defensive and combative under cross-examination, to the extent I found it necessary to intervene on one occasion to ask him to simply answer counsel’s question. I also considered the father lacked candour for the following reasons:
a)Firstly, the father failed to disclose to the mother and to the court prior to the trial, a number of relevant events and/or issues concerning N’s attendance at School A. For example, the father did not disclose that N’s school fees for School A were in significant arrears, such that the school had threatened in June 2019 to terminate N’s enrolment. The father was well aware that N’s future attendance at School A was a live issue in the proceedings – noting that the order made in 2015 for N to attend that school was conditional upon the paternal grandparents meeting the fees. The mother’s counsel asked the father under cross-examination – having already explored N’s learning and behavioural difficulties – whether there was anything else connected with the school that has or will impact N. The father replied in a vague and general way, pointing to N’s learning difficulties and observing that N was struggling as compared with his class cohort. The mother’s counsel then invited the father to disclose whether there was anything that may jeopardise N’s enrolment at School A. The father volunteered nothing; and then he was effectively forced by counsel to admit the school fees were in arrears. I accept the submission by the mother’s counsel that the father would not have voluntarily disclosed the arrears. I also note the father’s evidence as to when he first became aware of the arrears (he says, in June 2019) conflicted with the evidence given by the paternal grandfather, who said he informed the father about the issue in 2017.
b)Secondly, the father conceded (via his counsel) that his recollection[31] of a meeting that he and the mother attended at N’s school in October 2018 “may not be correct”, noting the father’s account of what transpired painted the mother and her parenting in a very unflattering light. That concession was extracted from the father after the mother’s counsel made an oral application to admit into evidence the secret recording the mother made of the school meeting, the existence of which had been disclosed to the father, but not the recording itself. The fact that the father was prepared to concede the position to avoid the risk of the recording coming into evidence casts real doubt on the veracity of his evidence in this instance.
c)Thirdly, I found the father’s explanation for his failure to facilitate N attending German language classes (as was ordered in May 2015) unconvincing. The father would have me believe that he misread the order, such that he thought both parties needed to agree the German language school, rather than it being at the mother’s election. The mother’s counsel produced an email exchange between the parties dated July 2015, wherein the mother specifically referred the father to paragraph 31 of the May 2015 orders and asked the father to read it again, whilst pointing out that the choice of class and enrolment was indeed hers.[32] In the face of that communication, I simply do not believe the father’s excuse that he “misread” the order. Instead, I am satisfied that the father chose not to comply with the order because compliance would have impacted on his Saturday mornings with N.
[31] Father’s trial affidavit filed 5 March 2019, [188].
[32] Exhibit R11.
20As is plain from these Reasons, I have accepted the father’s evidence in relation to a number of matters. However, as a result of his tendency to exaggerate and his lack of candour with the court, I have found it necessary to adopt a cautious approach to the father’s evidence, particularly when it is in conflict with that of the mother.
Herman – the paternal grandfather
21Herman was also an unimpressive witness. I considered that Herman was selective in his responses to questions under cross‑examination. He was also a poor historian, often answering that he did not remember or could not recall. The contrast in Herman’s evidence depending on the identity of the questioner was stark: for example, Herman’s answers about his financial position under cross‑examination were short and unhelpful, whereas he was almost garrulous about the same subject in re-examination, where he spoke at length about the re-zoning of his land holdings, plans for subdivision, and the likely profit he would make. I also considered Herman lacked candour for the following reasons:
a)Firstly, I am satisfied that Herman would not have disclosed to the mother or to this court the significant arrears that had accrued in respect of N’s school fees, had he not been asked pointedly about that matter under cross-examination. Indeed, Herman simply refused to concede that the mother ought to have been told about the situation – instead stating that responsibility was on his shoulders and his shoulders alone.
b)Secondly, Herman’s responses to questions put to him about whether he assisted the father in the preparation of his correspondence and court documents were unconvincing. Herman’s first response was that he provided the father with no assistance. After persistent questioning by the mother’s counsel, he ultimately conceded he may have had a “minor involvement” in looking at a draft or assisting the father to understand a concept (Herman gave the example of “estoppel”). Why Herman felt the need to disclaim (at least, initially) the assistance he provided to the father was bewildering.
c)Thirdly, Herman’s evidence in relation to the email he sent to N’s school in September 2017 was contrived and ultimately simply not credible. In that email, Herman wrote that he was “shocked and upset at the tone and content and addressees” of the formal letter the school sent to both the father and mother raising concerns about N, and that it had “created more problems for [the father, Dina] and I than it has solved”.[33] Under cross-examination, Herman explained that he wasn’t upset that the mother had received the letter, but that he was instead referring to the fact that he did not know the school would be issuing a formal letter, and that he expected that N would receive help “internally”. Notwithstanding, I am satisfied that Herman’s email demonstrates that he was upset the school had sought to include the mother in the discussions about N and was concerned about the potential impact of same on the litigation.
Dina – the paternal grandmother
[33] Exhibit R17.
22For the most part, I considered that Dina gave her evidence in an unguarded manner, and that her responses to questions were spontaneous, off-the-cuff and genuine. I accept her evidence that when problems with N’s learning and behaviour became apparent in 2017, she (and the paternal family) felt a sense of helplessness and did not know where to turn or how to proceed. Dina was prepared to make concessions against interest, for example, in relation to the altercation between her and the mother at [the] [Suburb A] Oval [in] April 2018. That said, I am satisfied that neither the mother nor Dina had a crystal‑clear recollection of what was said to the other on that day in the heat of the moment. Suffice to say, things were said of which neither is proud, and which were certainly not child focussed.
23However, there were some aspects of Dina’s evidence that were unsatisfactory, and ultimately not credible. For example, there were some clear contradictions between Dina’s evidence and documents sourced from the School A subpoenaed documents that were tendered into evidence. Dina was shown two sets of minutes for meetings she attended at N’s school, on 11 September 2017[34] and 11 October 2017[35] respectively. Whilst Dina maintained she had no recollection of the October meeting, she was adamant that the minutes for the September meeting were partially incorrect. Dina was also adamant under cross-examination that she had never spoken with [Mr H] (the Head of School A) on the telephone, but that she did attend one meeting with him. Dina was shown a note of a telephone conversation between her and Mr H dated 2 May 2018,[36] which recorded, among other things that there was “no need at this stage for an interim report” and “no court date set as yet” and that “[N] not thriving with the week on week off”. Dina maintained her position that the telephone call had never happened. I did not accept Dina’s evidence about these matters. Rather, I am satisfied that against the background of this litigation, Dina, along with the other members of the paternal family, were very much concerned to manage the difficulties that N was experiencing “informally” and “internally” – and without the mother knowing.
Mr E – the single expert
[34] Exhibit S8.
[35] Exhibit S10.
[36] Exhibit S19.
24I considered that Mr E gave his evidence in a manner which was helpful and considered. However, I have found it necessary to adopt a cautious approach to key aspects of Mr E’s evidence for the following reasons:
25 Firstly, it became apparent during Mr E’s cross‑examination that he had not been provided with the parties’ respective affidavit material filed in preparation for the trial (as referred to in paragraphs 9 and 10 above). Certainly, Mr E’s updated report (filed on 6 January 2020) does not refer to those documents.[37] Under cross-examination, Mr E informed the court that he had not been provided with copies of the parties’ respective affidavits for trial. Accordingly, neither parties’ detailed proposal for N’s future care arrangements was before Mr E, including the information the mother had collated in respect of the support and services available to N in the Swiss public education system, should the court permit relocation. (However, it would appear that Mr E was aware of the plans in at least a general sense, as he referred to the Swiss public school / international school issue in his report).
[37] Affidavit of Mr E filed on 6 January 2020 (incorrectly stamped as 6 December 2020), annexure “A”, page 8.
26 Secondly, Mr E specifically confirmed that he was not an expert in Swiss educational systems, and had not seen the detailed information published in respect of the supports available for children in N’s circumstances should he attend a Swiss public school. Accordingly, I am satisfied that in the preparation of his report, Mr E did not have regard to the mother’s detailed proposal for N in the event the court permitted relocation to Switzerland, including arrangements for his education. Similarly, the father’s detailed proposals (including his proposal for N to attend an international school in Switzerland if the relocation was permitted) were also not before Mr E. In those circumstances, I am satisfied that Mr E was unable to form a reasonable opinion as to the capacity (or otherwise) of the Swiss education system to cater for N’s educational needs, in contrast to School A.
27Further, I considered that there were some question marks around Mr E’s expertise in the educational field overall, given his concession that he had discussed Dr F’s 2019 report with an un‑named educational psychologist for the preparation of his report. As a further example, Mr E also recommended a neuropsychological assessment of N as a further tool for understanding what is happening for N. However, when asked to explain what the assessment entailed and what it measured, Mr E was largely unable to do so.
28 Thirdly, I asked Mr E questions from the bench about the importance of N’s sibling relationship with his half-sister, M, given his reports are largely silent on that issue. Mr E told the court that the sibling relationship was important, but did not consider it was “crucial”, and posed the rhetorical question: “will it affect [N] if they don’t live together” before answering, “probably not”. I invited Mr E to comment on the ability of N and M to form a really close sibling bond – that would sustain them both for decades into the future –if they were living apart (and in separate countries). Mr E agreed that it was a problem, and that development of the sibling relationship in the manner suggested required N to live with the mother and M. However, Mr E then explained that: (1) his report focussed on N’s development, that N also had other very important relationships with the father and the paternal grandparents that needed to be considered and balanced with the relationship with M, and (2) in his experience (and based on other families that he has personally followed up on) the experience of the “left behind” parent is that they have no relationship with the relocating child. Mr E’s comments raised considerable concerns in my mind that he harboured a bias against relocation. This was particularly in the circumstances of this case, where there was no evidence to suggest that the mother would not facilitate N’s relationship with the father and the paternal family following relocation.
29I am reinforced in my approach towards Mr E’s evidence, having regard to the very recent comments of the Full Court in Albert & Plowman [2020] FamCAFC 23 (from [19] onwards):
[19]Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
[20]Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
[21]As was observed in this jurisdiction long ago (see Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819):
... There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities...
...
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]… (References omitted)
[22]Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn[2008] FamCAFC 128; (2008) FLC 93-377 at [226]- [227]; Friscioni & Friscioni[2010] FamCAFC 108 at [96]- [97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]- [44]; Whipp & Richards [2012] FamCAFC 11; (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U [2002] HCA 36; (2002) 211 CLR 238 at 261).
The other professional witnesses
30I considered that Dr F gave her evidence in a professional and helpful manner, albeit at times, I considered that she was not always balanced in giving her evidence. In particular, I considered that Dr F had a very blinkered and uncritically positive attitude about the benefits to N of a “School A education”.
31I considered that Mr G and Ms D gave their evidence in a professional and helpful manner and I had no hesitation in accepting their evidence
FACTUAL BACKGROUND
N – The child
32N was born in Australia [in late] 2010 and at the time of trial was nine years of age. He has been variously described by the parties and the other witnesses in the proceedings as an energetic, funny, loving, kind and practical little boy, who enjoys being outdoors and is good at working with his hands. He is a loving and affectionate older brother to his half-sister, M, who is two years old.
33Whilst N’s primary language is English, I accept the mother’s and Paul’s evidence that N is able to converse with them fluently in Swiss-German. N does not, however, know how to read and write in standard German (one of the official languages of Switzerland, and the one in which he would be educated were he to attend a public school in Zurich).
34Since January 2015, N has lived with the parties in a week‑about arrangement, with changeovers on Thursdays. He currently attends School A, having started his education there in pre-primary in 2016. In 2020, N will be in Year 4. As noted in my introductory remarks, N has experienced significant difficulties with his behaviour and learning since at least 2017 (although, N’s learning difficulties were identified by N’s school in 2016). N has been diagnosed with ADHD. He may also have dyslexia, although a conclusive diagnosis in that regard is yet to be made. N is still working at a Year 1 level with respect to his literacy and numeracy.
The mother
35The mother was born [in] 1979 and was 40 years of age at the time of trial. The mother was born and raised in Switzerland. The mother’s father, sister and two brothers remain living in Switzerland. The maternal grandmother tragically passed away in 2013.
36As noted earlier, in [mid] 2016 the mother married Paul, and their daughter M was born in August 2017. As at the date of trial, the mother was living in Australia with M (and sharing care of N), whilst Paul remained in Switzerland for work. The mother, M and N have regularly holidayed in Switzerland, and Paul has also spent time in Australia. The mother is currently a full-time homemaker and parent for M, and for N when he is in her care. The mother is financial dependent upon Paul, very modest Centrelink entitlements and the child support she receives from the father. The mother lives in a rental property in [Suburb B]. The mother holds dual Australian and Swiss citizenship.
The father
37The father was born [in] 1979 and was 40 years of age at the time of trial. The father was born and raised in Perth. He, along with his brother and the paternal grandparents, all remain living in Perth. Both the father and his brother attended School A. The father currently works for [Company K] as [an Accounts Manager], and has done so since mid-2011 (having taken over the job from the paternal grandmother, who retired in December 2011 after a period of long service leave). The father works a nine day fortnight at Company K, and has every second Friday off work. On workdays the father is usually away from home for work between 6.00am and 4.00pm.
38The father was diagnosed with dyslexia as a child. I mention this for no other reason than the father’s diagnosis fed into the parties’ concerns that N may also suffer from the condition.
39The father lives on a semi-rural property in [Suburb W] which is owned by his parents, and has not re-partnered following the parties’ separation. The father also holds dual Australian and Swiss citizenship.
The paternal grandmother, Dina
40Dina was born [in] 1949. She and Herman live in Suburb A. They have been married for 48 years. Prior to retiring in December 2011, Dina worked for Company K.
41Dina has played a significant role in N’s upbringing, including caring for him at various times during the week whilst the mother and/or father worked. As matters currently stand, Dina assists the father with N’s care Monday through to Thursday (noting the father has the Friday off work in the week that he cares for N). Dina will usually arrive at the father’s home at 6.00am and look after the morning routine, including waking N, preparing breakfast, finishing any homework and dropping N to school. Dina also collects N from school on those days and cares for him at her home in Suburb A until the father collects him about 4.00pm.
42Dina was born in Switzerland and can speak Swiss-German. She also holds dual Australian and Swiss citizenship. Dina describes herself as having a “strong connection to Switzerland” and has a number of relatives there. Dina likes to return to Switzerland as often as she can, which is usually every two to three years.[38]
The paternal grandfather, Herman
[38] Affidavit of Dina filed 7 March 2019, [25].
43Herman was born [in] 1947 in Australia. Prior to retiring, Herman worked [in a professional occupation]. Herman commenced transitioning to retirement in 2016, and finally closed his [business] in 2018. Herman’s role in N’s life has very much been that of a grandparent – although he describes having had more free time to spend with N since commencing his transition to retirement. Whilst Herman does not ordinarily assist Dina with N’s morning routine, he does see N on those afternoons that Dina collects him from school.
Paul (the mother’s husband)
44Paul was born [in] 1985 in Switzerland and is one of two brothers. Paul’s parents and his brother remain living in Switzerland, in a small village about an hour’s drive from Zurich. Paul currently lives in Zurich in rental accommodation (which is leased in both the mother and Paul’s names). The apartment is part of a housing cooperative, which Paul explained is an initiative aimed at providing reasonably priced accommodation, especially for families with children.
45Paul has a degree in [Accounting] and is currently employed as an [Accountant] earning approximately $104,000 per year.
46N has spent sporadic time with Paul following the 2015 Trial, usually coinciding with school holiday periods. There was, however, a period of about seven months (October 2016 to May 2017) during which Paul lived in Australia with the mother, before he returned to Switzerland to seek employment.
Historical matters; events occurring prior to the 2015 Trial
47For the sake of context, I record the following:[39]
[39] Which I have drawn from the 2015 Reasons.
a)The father travelled to Switzerland in mid-1999, and the parties met about six months later. They were both approximately 20 years of age at the time. They started living together in Zurich in early 2001. Whilst the parties never married, they announced their engagement in 2012.
b)The father returned to Australia in late 2006, and the mother followed in early 2007. The mother became an Australian citizen on 9 December 2009.
c)N was born on 7 December 2010, and the mother was primarily responsible for his care and supervision for the first few years of his life.
d)By 2013, the parties’ relationship had fractured.
e)In March 2013, the mother travelled to Switzerland with N, and the father remained behind. Walters J found that whilst the mother had purchased return tickets, her plan was to remain in Switzerland with N permanently.[40] Indeed, his Honour was satisfied that:
[40] Gillam and Latch [2015] FCWA 34, [18].
Both 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 Zurich with [N] in May 2012.[41]
[41] Gillam and Latch [2015] FCWA 34, [86].
f)However, Walters J also found 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".[42]
[42] Gillam and Latch [2015] FCWA 34, [88]. See also [89].
g)In May 2013, the father visited the mother and N in Switzerland. The father’s parents, who were travelling in Europe at the same time, holidayed with the parties and N. During that holiday an argument broke out between the mother, the father and the paternal grandparents as to the mother’s desire to remain living in Switzerland with N. Walters J found that one of the reasons the argument was considerably more disagreeable that it should have been was because the father had failed 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.”[43] The joint holiday came to an abrupt end.
[43] Gillam and Latch [2015] FCWA 34, [114].
h)The father returned to Perth on 18 June 2013, whilst the mother and N remained in Switzerland.
i)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. However, Walters J found that neither party was being wholly frank with the other regarding the possibility of the relationship either continuing or, perhaps, being resurrected – and were engaging in communications with each other which his Honour described as “shadow boxing”.[44] Walters J was satisfied that had the mother visited Australia as planned, the father would not have permitted N to return to Switzerland.[45]
[44] Gillam and Latch [2015] FCWA 34, [125].
[45] Ibid.
j)[In early] September 2013, the father commenced proceedings (of which the mother remained unaware until a year later) under the Hague Abduction Convention seeking the return of N to Australia. However, [a short time later], the maternal grandmother, upon whom the mother was relying for childcare while she worked, tragically died. In the aftermath, the parties agreed that N should travel to Perth to live with the father temporarily. The father collected N and they travelled to Perth [in late] September 2013.
k)Notwithstanding the mother’s attempts to have N returned to Switzerland, he continued to live in Perth.[46] Walters J found that, until December 2013, the mother understood that the father would be travelling to Europe with N in or about March 2014, and thereafter N would remain in her care.[47] His Honour also found that the father had no intention of travelling with N to Europe in March 2014.[48]
[46] Gillam and Latch [2015] FCWA 34, [28] – [30].
[47] Gillam and Latch [2015] FCWA 34, [146].
[48] Ibid.
l)From the time that N returned to Australia in September 2013 until January 2015, he was primarily cared for by the father with significant assistance from the paternal grandmother.
m)The mother travelled to Perth in January 2014 for approximately three weeks and stayed with the father and N. Walters J remarked that the mother’s relationship with the paternal grandparents had significantly deteriorated by this time.[49]
n)Following the mother’s return to Switzerland in February 2014, an agreement was struck that the father would travel with N to Switzerland in mid‑2014. The father and N travelled to Switzerland as planned from 30 July 2014 to 24 August 2014. Walters J found that it was the mother’s understanding that the father would be leaving N with her and returning to Australia alone.[50] But that was not to be. Instead, the father told the mother that he and N needed to return to Australia (albeit briefly) for a skiing trip arranged by the paternal grandparents. It was then agreed that the mother would travel to Australia in September 2014 to collect N and return with him to Switzerland - although Walters J found that the father had no intention of making good on that agreement.[51]
o)On 15 September 2014, the mother emailed the father to advise him that she would be arriving in Perth on 27 September 2014 – and that she had booked return flights for both herself and N, departing 2 October 2014 (noting the mother told the father that N’s flight was booked Perth-Zurich, and return).[52] Walters J found that the mother had in fact booked only a one-way ticket for N, and the mother sought to deceive the father into thinking that N would return to Perth at some time in the future – when that was not her intention at all.[53]
p)The father commenced proceedings in this court on 16 September 2014, and on 19 September 2014 obtained ex parte orders preventing the mother from removing N from Australia. The orders were sent electronically to the mother in Switzerland. The mother was devastated when she received them.[54]
q)The mother still travelled to Perth as planned in September / October 2014 (with her now husband, Paul). Walters J found that the father did not make it particularly easy for her to spend time with N unless he was also present.[55]
r)On 22 January 2015, interim orders were made for N to live with the parties on a week-about basis while the mother was in Perth. In early February 2015, N commenced kindergarten at School A.
The 2015 Trial, and final orders
[49] Gillam and Latch [2015] FCWA 34, [147].
[50] Gillam and Latch [2015] FCWA 34, [155].
[51] Ibid.
[52] Gillam and Latch [2015] FCWA 34, [159].
[53] Gillam and Latch [2015] FCWA 34, [160].
[54] Gillam and Latch [2015] FCWA 34, [163].
[55] Gillam and Latch [2015] FCWA 34, [167].
48The trial before Walters J commenced on 18 March 2015 and continued on 19, 20, 23 and 24 March 2015. Following judgment, Walters J pronounced final orders in May 2015, which provided as follows (and I summarise):
a)for the parties to have equal shared parental responsibility for N;
b)for N to live with the parties on a week-about basis (from Thursday to Thursday) during school term, with handovers to be at school, or at the parties’ respective residences if a non-school day;
c)for N to spend defined school holiday time with each party, including with the mother in Switzerland;
d)for N to spend defined time with the parties on Father’s Day and Mother’s Day, and on the N’s birthday;
e)for N to have electronic communication with the non-resident parent each Sunday;
f)that subject to the paternal grandparents making payment of the tuition fees at School A, N attend that school up to completion of Year 6;
g)for the parties to share information (or authorise the provision of information) about N’s medical needs and schooling;
h)for the parties to be able to travel outside of Western Australia with N on 30 days’ notice;
i)for N to be enrolled in a regular German language programme to facilitate his use of that language, with the intention that the mother undertake the enrolment and with the costs to be met equally by the parties.
Events immediately following the 2015 Trial
49In the months following the 2015 Trial, the mother arranged for N to attend German language classes. By no later than 1 July 2015,[56] the father was aware that the mother had enrolled N with [a German language school], on Saturday mornings between 10am and 12 noon.
[56] Exhibit R11: the mother’s position was that she informed the father of the German language classes during a Skype call on 14 June 2015.
50A number of emails passed between the parties, ultimately resulting in an impasse as to N’s enrolment and participation. The father’s objection was threefold: (1) he was disappointed the mother had not consulted with him about the enrolment, complaining that the “whole purpose of the orders and what the Judge said was that we discuss, co-operate and make joint decisions regarding [N]”; (2) the lessons would take place in [Suburb X] on a Saturday, and would take up at least 5 – 6 hours of the Saturday, including travel; (3) N was already enrolled in [sports] lessons on the Saturday morning. The father’s view, also, was that given the mother was not working at that time, she should essentially home-school N in German.[57]
[57] Exhibit R11.
51The mother was at pains to point out to the father that the 2015 final orders reserved to her, and her alone, the right to enrol N in a German language school. In an email the mother send to the father on 17 July 2015, she specifically referred him to the relevant paragraph in the 2015 orders, and asked that he “read the order again to make sure you understand that I was to organise the class and enrolment and inform you about the details, which I have done”.
52Having observed the father under cross-examination, I am satisfied that he well understood the terms of the 2015 final orders, but he was simply not prepared to comply as it did not suit him. As at the date of trial, N had not undertaken any formal German language classes.
53The mother commenced therapy with Ms D, a clinical psychologist, on 9 February 2016. Since then, the mother has attended upon Ms D on a regular basis, about every two to four weeks.[58] The mother was initially referred for therapy by her GP in respect of symptoms of anxiety.[59]
N’s learning difficulties are identified
[58] Affidavit of Ms D filed 18 April 2019, annexure “B”, page 10.
[59] Affidavit of Ms D filed 18 April 2019, annexure “B”, [1].
54N was first identified as having problems with literacy and focussing in pre-primary (2016).[60] The school psychologist, Dr F, assessed N and prepared a report dated 10 October 2016. Relevantly, that report stated, by way of a summary/conclusion/diagnosis that:
[N] was referred by his classroom teacher because of concerns about his literacy learning and focus difficulties. Assessment shows that he processes information slowly and has difficulty retaining visually presented information in the short term, in the context of otherwise average cognitive abilities. Previous screening and information obtained from his parents also indicated that [N] is at higher risk than others of the same age for literacy learning difficulties. At this stage it is not possible to give a diagnosis, but [N’s] literacy learning should continue to be monitored and interventions should continue to mitigate risk. Re-assessment should be considered towards the end of Year 2 if literacy difficulties persist despite the implementation of evidence based strategies.[61]
[60] Father’s trial affidavit filed 5 March 2019, [174].
[61] Exhibit A15 (document 1 of that bundle), page 1.
55The report made a number of recommendations to assist N’s learning. It would appear that neither the father nor the mother were too concerned about the content of Dr F’s report. There was certainly no evidence of either party seeking, at that time, additional support for N outside of the school context. This is unsurprising given Dr F’s recommendations were primarily concerned with “interventions” that the school would deliver to N. However, the school also did not appear unduly concerned about N’s situation, and for example, made little or no attempts to consider whether its standard curriculum was suitable for N.
N travels to Switzerland in December 2016, and the pretext for further litigation
56In accordance with the 2015 final orders, N travelled to Switzerland with the mother in September/October 2015, December 2015/January 2016, and June/July 2016 (during which the mother and Paul married) without incident.
57As was usual, the mother provided the father with copies of N’s airfares in advance of the planned holiday to Switzerland for the 2016 Christmas period. The flight itinerary referred to four legs of travel, but the document the mother provided contained details for only the first two – that is, N’s flight to Zurich in late December 2016, and his return flight to Perth in late January 2017. In any case, the holiday proceeded without incident.
58In February 2017, the father sent a message to the mother and asked her to provide him with a copy of the itinerary for legs three and four.[62] The mother replied and, noting the parties were due to meet within the week, and said she would provide the father with a copy at their meeting. The father pressed his request, which resulted in this exchange:
[62] Exhibit A27.
Mother (on 20 February 2017): I will bring it on Friday.
Can you please tell me the reason why you want those flights now? Next time we fly is not until July.
Father (on 20 February 2017): Hi [Mrs Waxweiler] It’s not your ticket I’m interested in I’m requesting a copy of legs 3 and 4 that are once again attached to a return ticket issue out of Zurich, secondly all holiday travel out of Australia is by negotiation what have you got to hide with the tickets is now my question.
Mother (on 20 February 2017): I have nothing to hide at all, I just wonder what you need those for. We negotiate travel outside of what’s in the orders. July and Christmas is fixed in the orders, so nothing to negotiate there. All tickets are and have been out of Zurich and you know the reason for that [Mr Gillam]. I will bring you the tickets on Friday, ok?[63]
The parties’ meeting on 24 February 2017, and family dispute resolution
[63] Exhibit A27.
59On 24 February 2017 the parties met. During that meeting, mother told the father she was pregnant. This was of no surprise to the father, given N had already spilled the beans towards the end of January 2017.[64] The mother’s unchallenged evidence was that she also told the father that: (1) she wanted to have her baby in Zurich, and that she wanted N to be there for the birth; (2) she wanted to reside in Switzerland permanently with N; and (3) that the relocation would ideally happen as soon as possible, but that the timeframe would depend on whether the father would agree or whether the court would have to determine the issue. The father asked the mother to email him a proposal, which she did the following day.[65]
[64] Father’s trial affidavit filed 5 March 2019, [128].
[65] Mother’s trial affidavit filed 18 April 2019, [56] - [58].
60There was a dispute as to whether the mother actually provided the father with the itinerary for legs three and four at their meeting. Under cross-examination, that father was adamant that she had not. However, even if the mother did not provide the father with a copy, I am satisfied that he had the opportunity to read the itinerary at their meeting. In any case, the mother provided the father an electronic copy on 24 February 2017[66] following this exchange of messages:
Father (on 24 February 2017): Hi [Mrs Waxweiler] could you please send me a photo of legs 3 and 4 as I didn’t actually see it today thanks.
Mother (on 24 February 2017): Yes no problem. But don’t get all worked up about the date. It is not accurate yet and also I don’t have the return flights booked yet either.
[66] Exhibit A27.
61The mother’s unchallenged evidence was that she arranged for the parties to participate in Family Dispute Resolution [(FDR)] on 27 February 2017, which was then delayed one week so the father could consider the mother’s emailed proposal sent on 25 February 2017. For reasons that were not explored at trial, the mediation did not proceed, and the parties were issued with [the relevant FDR] certificate on 20 March 2017. In light of the father’s refusal to consent to N relocating to Switzerland, the mother then started the process of preparing an application to this court seeking orders that would permit N’s relocation to Switzerland.[67] As will become apparent, the father beat her to it.
Dr F suggests that N may have dyslexia, and recommends separation counselling
[67] Mother’s trial affidavit filed 18 April 2019, [70].
62I accept the mother’s evidence that in March 2017, Dr F raised the issue of N potentially having dyslexia, and recommended that he be tested. However the father refused.[68] At around the same time, Dr F also suggested that N would benefit from training to deal with his separation anxiety from the mother, but did not consider formal counselling was necessary at that stage. The mother’s evidence in this regard is supported by an email between N’s Year 1 school teacher, [Ms J], and Dr F dated 30 March 2017.[69] Again, the father refused to agree for N to participate in the training.[70]
[68] Mother’s trial affidavit filed 18 April 2019, [154].
[69] Exhibit A15 (document 2 of that bundle).
[70] Mother’s trial affidavit filed 18 April 2019, [155].
63Notwithstanding the issues raised by Dr F in her June 2016 report and the subsequent suggestion that N may have dyslexia in March 2017, the father in particular appeared to equivocate about the seriousness of the challenges N faced. For example, on 27 March 2017, the father messaged the mother and said:
Hi I’ve been thinking a lot today and I’m not sure it’s fair on our son to classify him at this stage as having some sort of disability, as I have said from the start [N] does not show the same sort of learning disabilities that I had at his age and signing the form shows that we agree that he has a disability I just don’t think this is the case and this stick’s with him on his file from this day on that he’s a special needs child and I just don’t think that this is the case at all I’ll call you tomorrow to discuss further but we both need to just keep working really hard at home with him including on holidays! so as he doesn’t slip backwards from term to term and keeps progressing forward’s regards [Mr Gillam].[71]
[71] Exhibit R7.
64On 27 April 2017, the father wrote to N’s school by email (with a copy to the mother), advising that the parties did not consent to N being placed on the NCCD (the Nationally Consistent Collection of Data) which would have enabled the school to seek additional funding to support N’s learning. The school responded on 28 April 2017, and said:
Thank you for your email and we understand, at this stage, you do not want N to be included in the NCCD data collection.
The NCCD occurs every year and in Term 1 next year, when we discuss who receives additional support and adjustment in class, we may ask to meet with you and [Mrs Waxweiler] again to revisit this. [72]
The father institutes further proceedings, without notice to the mother
[72] Ibid.
65On 11 April 2017, the father filed an urgent, ex parte application in this court, seeking orders to preclude the mother from removing N from Australia. The father’s application was heard on 19 April 2017, and orders were made (1) suspending paragraphs 29 and 30 of the May 2015 Orders (relating to travel); (2) restraining the mother from removing N from the Commonwealth of Australia; (3) for N’s name to be placed on the family law watch list; and (4) depositing N’s passport with the Family Court. On 24 April 2017, the orders dated 19 April 2017 were served on the mother, together with the father’s application and affidavit material.
66The father was cross-examined at length about the basis for his belief that the mother would unilaterally remove N from Australia – resulting in his urgent application to this court. The father conceded that nothing the mother had said gave him the impression she was going to remove N from Australia without his consent. However, the father maintained that there was sufficient evidence otherwise to make him doubt the mother’s intentions, including that she had renewed N’s Swiss passport (without his knowledge), that there was a one way ticket booked for N on 1 May 2017 (a copy of which was only provided to the father at his prompting), and that the mother had stated an intention to relocate. The father’s reasons for doubting the mother’s intentions were also spelled out in his affidavit filed on 11 April 2017.[73]
[73] The parties agreed that I could have regard to that affidavit, with respect to the father’s stated reasons for believing the mother would abscond with N.
67I am not persuaded that the father’s concerns about the mother unilaterally relocating with N were genuinely held by him, and consider that his actions smacked of opportunism. I am satisfied that the mother had no intention of unilaterally relocating with N for the following reasons. Firstly, I accept the mother’s evidence that she had no intention of unilaterally removing N from Australia and, in particular, note the efforts she made to engage with the father in a dialogue about the proposed relocation, including arranging mediation. I also accept the mother’s unchallenged evidence that when mediation failed, she commenced preparing documents to file in this court to seek orders permitting the relocation. Secondly, I accept the mother’s evidence as to how the booking for legs three and four originally came into existence, and how the bookings were simply rolled back and/or amended on each occasion until the actual flights were confirmed. I am also satisfied that the father was well aware of the matter, including because the parties had previously exchanged correspondence about the issue. Thirdly, I also accept the mother’s evidence that she felt the father had misrepresented matters to the court in his affidavit filed on 11 April 2017 and, in particular, that he failed to annex the full chain of messages between the parties on 24 February 2017, specifically the message where the mother alerted the father that she was yet to book the return ticket for N. Finally, I accept the mother’s evidence, given under cross-examination, that the renewal of N’s Swiss passport in 2016 was done over the counter whilst she was in Switzerland, and there was no need for the father’s signature on any documents.
68On 23 May 2017, the mother filed a Form 1A Response to Initiating Application, seeking orders that she be permitted to relocate with N to live in Switzerland. The mother also sought interim orders that she be permitted to travel with N to Switzerland for the period 23 July 2017 to 20 August 2017, so that N would be with her and Paul for M’s birth.
The interim hearing on 26 June 2017
69On 26 June 2017, the mother’s interim travel application came on for hearing. Orders were made for N to travel to Switzerland, departing on 4 August 2017 and returning on 20 August 2017 (with the paternal grandmother to accompany N on flights). At trial, each party complained about the position taken by the other at the interim hearing in relation to certain matters. For example, (1) despite the father’s objection to dyslexia testing for N, he cited the possible diagnosis in support of his position that N should spend a shortened timeframe in Switzerland so as to minimise the amount of school missed. On the other hand, the mother asserted that the father was exaggerating N’s learning difficulties; and (2) the father criticised the mother for proposing that N travel as an unaccompanied minor.
70The mother was cross-examined about a submission made on her behalf at the interim hearing, to the effect that her relationship with the father had been going well. Counsel for the father sought to contrast that submission with the mother’s evidence at trial, that her relationship with the father is a struggle at the best of times.[74] If the intent of that line of cross-examination was to convince me that the mother was exaggerating the difficulties in her relationship with the father, it did not succeed. I say more about the nature of the parties’ co-parenting relationship later in these Reasons.
[74] Mother’s trial affidavit filed 18 April 2019, [43].
71Given the father’s position at the interim hearing on 26 June 2017 (that he was concerned about N potentially having dyslexia) I accept the mother’s evidence that she assumed that the father would now be supportive of testing. Accordingly, the mother booked an appointment for N with [Dr K] on 24 November 2017. The father ultimately objected to N attending that appointment, and N did not attend.
The mother leaves for Switzerland; and the father’s communication with the school
72At the end of June 2017, the mother returned to Switzerland to prepare for M’s birth. After the mother’s departure and on 27 July 2017, the father sent the following email to N’s school (without copying in the mother):
I mentioned to you not long ago that [N]’s mother, [Mrs Waxweiler], had commenced further proceedings in the Family Court to remove [N] from Perth to be in Zurich, Switzerland, for a period of 7-8 weeks from the start of 30 June 2017 and for him to travel unaccompanied to return to Perth in about late August 2017. Her reasoning being that she wanted [N] to be in Zurich when she gave birth to her baby in mid-August. She plans to relocate to Zurich with her husband and this is the first step in that relocation.
My position was that I was prepared to allow [N] to leave Perth for two weeks in early August 2017 to be in Zurich when [Mrs Waxweiler’s] baby was born around [in mid] 2017 and then to return to Perth. [N] would travel with his Grandmother, [Dina].
After a hearing in the Family Court, Orders were made to cater for several issues in addition to the Orders made in May 2015. The school has a copy of the May 2015 Orders.
Attached to this email is a copy of the Orders made in the Family Court on 26 June 2017. The order that particularly relates to [School A] is Order 1 in the June 2017 Orders. This Order provides that [N] is to travel to Zurich, Switzerland on 4 August 2017 and return to Perth on the 20 August 2017. He will travel with his Grandmother, [Dina] and return to school on 22 August 2017.[75]
[75] Exhibit S14.
73I concur with the mother’s view that the father’s email wrongly conveyed to the school that she had permanently relocated back to Switzerland. Whether intentional or not, one of the consequences of the father’s incorrect advice to the school appeared to be that the mother was regularly excluded from the communications between the father and the school.
74On 29 July 2015, the mother sent an email to the father, including forwarding him a copy of a letter she had sent to N's school requesting an extended leave of absence for N in September. On 31 July 2015, the father responded by email, including saying:
I ask you not to write letters to the school or to anyone on the basis you are writing with my authority UNLESS you talk to me first on a consultative basis (which you should do regarding, in particular, [N]'s schooling) and you and I each sign such a letter. That should have happened on this occasion.
75In my view, it was clear that insofar as communications with the school were concerned, the father applied one standard to himself, and another to the mother.
76In addition to telling the school that the mother had permanently relocated back to Switzerland, the father conceded that he also told N that "Mum's not around anymore".
N travels to Switzerland for M’s birth
77In August 2017, N travelled to Switzerland for the birth of his half-sister, M. Whilst N returned to Perth later that month, the mother remained in Switzerland until the end of October 2017.
N’s behaviour at school deteriorates; the 11 September 2017 school meeting
78By September 2017, N’s behaviour at school had become sufficiently problematic[76] that a meeting was convened on 11 September 2017 and attended by Mr H, the father and the paternal grandparents. Relevantly, neither the father nor his parents made mention of the meeting in their trial affidavits. Indeed, the only reason the court knew the meeting occurred is because the school’s minutes (produced pursuant to the School A subpoena) were put to the paternal family in cross-examination. The relevant minutes are reproduced in full below:
[76] For example, the father’s evidence was that on 6 September 2017 N had hit another child in class, resulting in a timeout – see the father’s trial affidavit filed 5 March 2019, [183(a)].
HEAD [OF SCHOOL A]
NOTES
Monday 11 September 2017
Attendees: [Mr H]
[Mr Gillam] (Dad, Grandma & Grandad)
Discussion; Student – [N] 1C
Notes:
·[Mr H] reviewed purpose and goals for meeting
·Grandad reviewed Court Orders
o 26 June court orders
o Mum in Switzerland now
o [N] 2 weeks away with [Dina] (Grandma)
o Court visit October 3, 2017
·Issues for [N]
o Since June 30 – 2 Weeks with Mum unsettling for [N] (no quality time with mum)
o Now Skype 1 to 2 x per week with Mum
o Not sure what is going on with [N]
o [N] just doesn’t talk
o Behaviour at school has changed
o Mum had a copy of the confidential report from 2016 and used in court
o Grandparents and Dad do not want ongoing therapy due to court dates
o Mum will not sign anything eg. [minor surgery]
o [N] does not need counselling he needs a Mother (Grandad)
·[Ms J]
o Social emotional wellbeing concerns
o Impulsive
o Lacks empathy
o Learning needs
§Story of [N] and baby
·[Dina]
o [N]’s best mate ([Freddy]) left
o No new mate
o Maybe “[Curtis]”
o [N] been clinging to [Dina] lately (friendships)
o Struggles with [Julian] and [Ronald]
o Our recommendation is that they seek ongoing professional help for [N] with social emotional development and Mum separation issues.
·Action:
· Talk to [Dr F]
· Re-assess
· Is Mum’s signature still valid
· Recommendation to reassess
· Can we do it now
· Letter from the School on our recommendation to assess [N][77]
[77] Exhibit S8.
79On the second page of the minutes was a handwritten note of Mr H’s separate meeting/discussion with Dr F, summarising her view on the situation and recommendations, including counselling with Relationships Australia and Anglicare.
80I am satisfied the mother was not invited to participate in the September 2017 meeting, nor was she made aware that it was taking place (noting the meeting took place at the time when the mother was still in Switzerland). The father conceded that the mother could have dialled into the meeting, but then also said that he wasn’t sure “if the school is that advanced”.
81To a greater or lesser extent, each of the father, Herman and Dina sought to depart from and/or challenge the accuracy of the school’s minutes of the meeting when they were asked about same under cross‑examination. In particular, none of them could explain why the school recorded that the paternal family did not want ongoing therapy for N “due to court dates”. However, I am satisfied that neither the father nor his parents were prepared to be full and frank about their respective roles and/or agenda in attending the meeting or in fact, the further meeting on 11 October 2017, and would have preferred that details of the meetings had never come to light.
82In relation to the September 2017 meeting:
a)The father’s evidence was that neither he, Herman nor Dina contributed very much at the meeting – it was the first formal meeting they had had with the school about N’s behaviour, and it was mainly Mr H advising about the situation the school was in. The father said he could not remember specifics about the meeting, and that he thought the issue of the school providing therapy to N was raised in a later meeting in 2018. However, the minutes of the meeting certainly do not reflect the father’s limited remembrances (and nor do they reflect his subsequent email to the school, requesting its “plan” for N).
b)Herman’s evidence was that he had no recollection of saying, “[N] does not need counselling he needs a Mother”. When it was suggested to Herman that the paternal family had told the school they did not want therapy for N “due to court dates”, he said that the minutes were different from his recollection of what was discussed. Herman maintained that he did not believe anyone said anything to Mr H about N not needing counselling. Rather, he maintained that the family requested the school to provide some internal counselling or mentoring for N. However, the school indicated it was unable to facilitate this and instead recommended N have some counselling with an outside provider.
c)Dina’s evidence was that the school said at the meeting that they could not provide further help for N (in terms of therapy), as the school psychologist didn’t have the ability or the time, and they said N needed outside assistance. Dina said the paternal family left the meeting disappointed.
83I am satisfied that the paternal family made no attempts to include the mother in the September 2017 meeting and subsequently did not tell the mother about the meeting. I am also satisfied that although the school indicated that it was unable to provide counselling for N and recommended the family get outside help, the paternal family were reluctant to adopt this course of action because they were concerned about the mother finding out and potentially using the matter against them in the litigation.
The events of 22 September 2017, and the formal letter from the school
84On 22 September 2017, Mr H wrote to the father by email (without copying the mother) notifying him that, the previous day, N hit a boy when on the [school] bus. The father responded that same day in a manner that was very defensive of N and somewhat attacking of other children / families. The father also noted that:
We are doing what we can after our recent discussion, but I have yet to hear from you as you said you would write to me with, hopefully, a plan for [N] after you had discussed [N] with [Dr F].[78]
[78] Exhibit R34.
85In re-examination, the mother was asked whether she had seen the email the school sent to the father regarding the school bus incident, and the father’s response. I accept her evidence that she did not, and that she considered that the father had taken the matter far more seriously with the school than he did when raising it with her.
86Following the email exchange between the school and the father, the school wrote to both parties on 22 September 2017, and said:
Due to ongoing concerns with [N] at [School A], I write to you with our recommendations for him and his success at School. There are multiple factors impacting [N] at School at the moment.
His specific learning issues are being address here at [School A] and further assessment, at this stage, is unnecessary due to our current educational intervention plan and learning support for [N].
With regards to ongoing behavioural concerns with [N], it is our understanding that without addressing the family issues directly with outside support and counselling [N]’s behaviour outbursts and concerns cannot be addressed and mitigated effectively.
We will continue to and have put in a behaviour management plan for [N] that allows us to consistently work with him in both prevention and consequences, but these do not change the obvious underlining [sic] issues for him.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child:
174Both parties financially maintain N, and neither the father nor the mother contended otherwise.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living:
175If N lives with the father in Perth, then N will be able to maintain his close and loving relationships with the father and the paternal grandparents. However, as I have already found: (1) any opportunity for N to maintain a close sibling bond with M will greatly diminish; and (2) I consider there is a significant risk that the mother, Paul and M will increasingly be cut out of N’s life by the father, and the quality of N’s relationships with them will diminish considerably over time.
176On the other hand, if N lives with the mother in Zurich, then N will be able to maintain his close and loving relationships with the mother and Paul. Importantly, N will also be able to maintain, and build upon, his close sibling relationship with M.
177There was no cogent evidence to suggest, and I am not satisfied that, N would be unable to maintain his close and loving relationships with the father and the paternal grandparents. Rather, I am satisfied that: (1) the mother would facilitate N having regular audio/visual communications with the father and his parents, as well as face to face time during school holidays; and (2) importantly, the mother would keep the father properly advised about N’s progress and life in Switzerland, and would not seek to effectively cut the father out of N’s life.
178However, I accept that if N was living in Zurich, then inevitably there will be some diminution in the nature of N’s relationships with his father and the paternal grandparents, particularly as N would not be taking part in the “every day” activities he would normally enjoy as a member of the father’s household.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis:
179No matter whether N lives in Perth or in Zurich, there will be significant practical difficulties and expense in N being able to spend time with, and communicate with his parents. The mother’s current income is approximately $300 per week, from Centrelink family payments and child support from the father. She is otherwise financially dependent upon Paul, who does earn a significant income. There was little, if any, evidence as to any financial support the mother may be entitled to receive if she was residing in Switzerland, or what child support the mother may be entitled to receive, if N was living with her, or the mother may be required to pay, if N was living with the father. However, in all probability, the mother will continue to be substantially financially supported by Paul. The mother has only modest assets and superannuation entitlements. Having regard to her significant debt to a family member in relation to her litigation costs, the mother owes more than she is worth.
180On the other hand, the father’s current income is approximately $1,788 per week, including his income and other benefits from his employment and some very modest Centrelink family payments. The father has assets and superannuation entitlements totalling approximately $200,000; and also has some modest debts totalling approximately $24,600.
181Both the mother and the father have dual Swiss and Australian citizenship, which no doubt will make the facilitation of travel between the two countries somewhat easier for both.
The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs:
If N lives with the father in Perth
182If N lives with the father in Perth, then subject to the following qualifications, I am satisfied that he will be able to meet N’s needs, particularly whilst he has the ongoing support of his parents.
183The father was fixed in his view that N should continue to attend School A. The father and the paternal grandparents remained “wedded” to the notion of N receiving a “School A education”, notwithstanding that the paternal family have struggled over the years to pay the school fees. Herman’s evidence as to how he intended to address his financial woes and ensure that the fees arrears and the future fees would be paid was unconvincing, at best.
184Even if N was able to remain at School A in the long term, I do not regard his attendance at the school as the panacea for his very significant educational challenges. I accept Mr G’s evidence that over an extended period of time, School A simply failed to make the necessary changes to N’s curriculum, to address his educational deficits. The school only modified N’s curriculum, at Mr G’s instigation, in 2019. I also accept Mr G’s evidence that it was important not to simply keep pushing N through the school year levels, in circumstances where N has missed key foundational learning areas and skills. Unfortunately, even though the father conceded in cross-examination that N may well benefit from repeating one or more years at school, to better ensure that N’s educational deficits were addressed, he maintained that he would never adopt such a course, as N would then be subjected to bullying at School A. I accept Mr G’s evidence that N will need ongoing remedial tutoring, to cover his educational deficits and bolster the learning he will receive at School A. However, I have little confidence that the father would arrange and facilitate tutoring for N, noting the father’s opposition to such course of action as expressed to Mr G.
185I also have significant concerns about the father’s capacity to meet N’s emotional and intellectual needs on an ongoing basis. This is because I am satisfied that: (1) during the litigation, the father failed to properly address N’s behavioural and learning issues, for fear that the mother would somehow gain an advantage in the litigation; and (2) the father behaved in a manner that was undermining of the mother’s parenting role, including failing to keep the mother advised of N’s ongoing issues, providing misleading information about the mother to N’s school, and limiting her access to information from the school.
If N lives with the mother in Zurich
186If N lives with the mother in Zurich, then the father conceded, and I am satisfied that, the mother is able to, and would, make all necessary and appropriate arrangements for N.[155] In particular, the father conceded that: (1) the mother would make appropriate arrangements for N's education; (2) he had no concerns about the mother's parenting of N on a day to day basis; (3) if N needed counselling, then the mother would arrange it; and (4) N would adapt to life in Zurich, including living in an apartment.
[155] This was notwithstanding the father’s criticisms in his affidavit evidence about the mother and Paul living in an apartment building in Zürich.
187On the mother’s proposal, N would attend a Swiss public school in Zurich, where he would continue his education in the German language. Although N speaks Swiss-German fluently, he cannot yet read or write in German. On the other hand, the father proposed that N should attend an international school in Zurich, so that N could continue his education in the English language. The father proposed that the parties equally pay the fees for the international school, which were considerable (around $35,000 per annum). However, I am not satisfied that the parties could reasonably afford to meet the fees, particularly in light of: (1) the mother’s evidence under cross-examination that she could not afford to pay half the fees; (2) the contradictory evidence of the paternal grandparents under cross‑examination in relation to whether they would be willing to meet the fees on the father’s behalf;[156] and (3) my lack of confidence in the paternal grandparents’ ability to even meet the fees, given the significant arrears that have accrued in respect of N’s current school fees.
[156] Herman essentially conceded that he would pay the full fee if the mother could not contribute. However, Dina did not consider that such an arrangement would be appropriate.
188The mother impressed as being very familiar with the public school system in Switzerland and with the school she proposed that N would attend in Zurich. The school is in close proximity to the mother’s home in Zurich, and is the same school that she attended as a child / teenager. The mother set out detailed proposals for N’s education, including that N would firstly undertake intensive German language classes, before eventually transitioning into normal classes. The mother also set out detailed evidence in relation to the educational supports that could be made available to N, through the public school system.[157] Arguably, N firstly undertaking intensive German language classes may in fact afford him the opportunity to make a fresh start and remedy the significant deficits in his foundational learning areas and skills (albeit in a different language) - in the context of N’s positive response to ADHD medication. In any event, as I have already found, the father conceded that the mother was able to, and would, make all necessary and appropriate arrangements for N’s education in Zurich.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant:
[157] Mother’s trial affidavit filed 18 April 2019, [239] – [247], and annexure “K”; Exhibit R21.
189I have already dealt with these matters, in so far as they relate to N, at length in these Reasons.
190During the 2015 Trial, the father made no bones about the fact that he would not consider moving to Switzerland, in the event that N was permitted to relocate with the mother. That remained the father’s unwavering position for the purposes of this trial. I am satisfied that whilst the mother gave living in Perth her best shot following the 2015 Trial, she has struggled to cope (even with the ongoing assistance and support of Paul and Ms D) and now intends to return home to Switzerland, preferably with N. In particular, I accept the mother’s evidence that:
a)She has no family support and very few friends in Perth, in contrast to Switzerland, where she has a large network of family and friends.
b)She is reliant on Paul for financial support, and having two households in Australia and Switzerland puts them under financial pressure.
c)The father’s behaviour towards the mother has made her life in Australia even more difficult, and that she doesn’t have the energy or strength to fight the father on things and that she often capitulates to his demands to avoid arguments.
d)The mother’s life in Perth and physical separation from Paul for extended periods of time has become increasingly untenable since M’s birth.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents:
191I am satisfied that the mother has demonstrated a positive attitude to N and a very positive, child-focussed approach to her responsibilities as a parent. On the other hand, whilst I have no doubt that the father loves N very much, I consider that the father has failed to demonstrate the same positive qualities as the mother for the following reasons: Firstly, I am satisfied that since the commencement of these proceedings, the father (and the paternal grandparents) have conducted themselves in a manner that was focussed on the litigation – to the detriment of proper decision making for N. Their failure to follow the recommendations of School A to seek outside professional assistance for N and properly involve the mother in the original referral to Ms P were prime examples of this. Secondly, I am satisfied that throughout the litigation, the father has exhibited a narrow minded and contemptuous disrespect for the mother’s parenting role. I accept the mother’s evidence that the relationship between the parties was difficult and a struggle at the best of times, and that the father can be stubbornly uncooperative at times. I also accept the mother’s evidence that she finds that the father is dismissive of her and often talks to her condescendingly. The mother’s evidence in this regard accorded with Mr G’s observations of the parties, particularly during their joint session with him in October 2019.
Any other fact or circumstance the court thinks is relevant:
192There are no other matters that I consider relevant.
CONCLUSIONS
193The mother sought that she have sole parental responsibility for N (subject to a condition that she consult with and consider any views expressed by the father before making a major long-term decision). On the other hand, the father sought that the parties have equal shared parental responsibility for N.
194In this case, I consider that the presumption of equal shared parental responsibility is rebutted as not being in N’s best interests and that rather, it is in N’s best interests to make an order in the terms sought by the mother for the following reasons: Firstly, equal shared parental responsibility requires parties to consult with each other and jointly make decisions about long term issues concerning the child. In this case I am satisfied that is not possible, given my findings about the father’s narrow minded and contemptuous disrespect for the mother’s parenting role and his history of excluding the mother from decision making about N’s education and medical/psychological needs. Secondly, as will become evident, I am satisfied that the mother should be granted permission to move with N to live in Switzerland. I am satisfied that the mother will consult with the father and will keep him informed about N’s progress and life generally in Switzerland. However, as the parties will be living on opposite sides of the world, I am satisfied there may be logistical difficulties in the mother consulting with the father and/or obtaining his views, particularly in cases of emergency. Thirdly, and in any event, I have no doubt that the mother will make considered and appropriate decisions for N as and when matters arise. The mother was born in Switzerland and lived there for a significant proportion of her life. She is familiar with the “local conditions”, including the Swiss education system. Accordingly, I am satisfied that as the mother will be the parent with the day-to-day care of N in Switzerland, she should have sole parental responsibility for N, subject to her consulting with the father when practicable.
195I am satisfied that it is in N’s best interests to live with the mother, in summary for the following reasons:
a)I am satisfied that N has very close and loving relationships with the mother, Paul and M. By living with the mother, N will be not only able to maintain these loving relationships, but also have the opportunity to further build upon his close sibling relationship with M. However, if N lives with the father, then any opportunity for N to maintain a close sibling bond with M will greatly diminish. In addition, there is a significant risk that the mother, Paul and M will increasingly be cut out of N’s life by the father, and the quality of N’s relationships with them all will diminish considerably over time.
b)I am satisfied that N also has very close and loving relationships with the father and the paternal grandparents. I accept that inevitably there will be some diminution in the nature of N’s relationships with his father and the paternal grandparents, particularly as N would not be taking part in the “every day” activities he would normally enjoy as a member of the father’s household. However, I am not satisfied that N would be unable to maintain his close and loving relationships with the father and the paternal grandparents. Rather, I am satisfied that: (1) the mother would facilitate N having regular audio/visual communications with the father and his parents, as well as face to face time during school holidays; and (2) importantly, the mother would keep the father properly advised about N’s progress and life in Switzerland, and would not seek to effectively cut the father out of N’s life.
c)The mother has demonstrated her capacity to provide for N’s needs, including his emotional needs. The father conceded the mother is able to, and would, make all necessary and appropriate arrangements for N in Switzerland, including in relation to his education. On the other hand, there are a number of question marks regarding the father’s capacity to fully meet N’s needs. In addition to the father’s very blinkered views about the benefits to N of a “School A education”, the father also failed to properly address N’s behavioural and learning issues, for fear that the mother would somehow gain an advantage in the litigation.
196The mother need not show compelling reasons for the proposed relocation. I am satisfied of her bona fides in wishing to move back to Switzerland. In short, the mother wants to live with her husband, their daughter and N in the mother’s home city of Zurich, in close proximity to her family and friends. The return to Switzerland also involves risks, including that N’s educational progress may be further delayed as he learns to read and write in German. However, balanced against this, there is also some prospect that N having to undertake intensive German language classes may, in fact, afford him the opportunity to make a fresh start and remedy the significant deficits in his foundational learning areas and skills (albeit in a different language). In conclusion, I am satisfied that it is in N’s best interests and reasonably practicable that he be permitted to relocate to Switzerland with the mother.
197In relation to the remaining issues that the parties were unable to agree:
198Firstly the mother sought orders in relation to practical arrangements for arranging N’s flights to and from Switzerland. In particular, she proposed that the return flights be agreed between the parties no less than 30 days prior to the applicable school holiday and that the costs of the airfares be shared equally between the parties, on the basis that the father booked and paid for the flights from Zurich to Perth and that the mother booked and paid for the flights from Perth to Zurich. On the other hand, the father’s Minute was largely silent in relation to the practical arrangements to be made, including the payment of N’s return flights. I am satisfied that the orders sought by the mother are appropriate, in providing clarity around the practical arrangements. I am also satisfied that, having regard to both parties’ modest financial circumstances, it is appropriate that they equally share N’s travel costs.
199Secondly, the father sought an order that in the event that the father was unable to spend time with N during school holidays, “the parties agree and do all acts and things necessary to facilitate the paternal grandmother and/or paternal grandfather spending time with N during this period, including the facilitation of international travel”.[158] Aside from the difficulties involved in making an order that parties be required to “agree”, there was little if any evidence as to why such an order was either necessary or appropriate, and I decline to make such an order. That being said, nothing in the orders agreed to by the parties would (or should) require the father to ensure that he was available at all times to personally supervise N during school holidays, or that N should not be left in the unsupervised care of his paternal grandparents.
[158] Paragraph 46 of the father’s amended Minute attached to his papers for the judge.
200Thirdly, the father sought a number of orders to facilitate N attending School B in Zurich.[159] Having regard to my earlier findings as set out in paragraphs 186 to 188 inclusive, I am not persuaded that such orders are appropriate and decline to make such orders. In addition the father sought an order effectively requiring the parties to do “all acts and things necessary to ensure N’s attendance and participation in all academic and extra-curricular activities and social events he is enrolled in or invited to attend which fall during their time with him, including but not limited to tutoring, sporting events and birthday parties, save and except for when N is spending time with the father in Australia”.[160] I am not persuaded that such an order is appropriate and decline to make such order, particularly in circumstances where the father conceded that the mother is able to, and would, make all necessary and appropriate arrangements for N.
[159] Paragraphs 55 and 56 inclusive of the father’s amended Minute attached to his papers for the judge.
[160] Paragraph 57 of the father’s amended Minute attached to his papers for the judge.
201Fourthly, the father sought an order in relation to practical arrangements for communications with N.[161] I am satisfied that the order sought by the father was appropriate, in providing clarity around these arrangements.
[161] Paragraph 63 of the father’s amended Minute attached to his papers for the judge.
202Fifthly, the father sought a number of orders that effectively sought to limit the mother’s rights as the parent with sole parental responsibility for N, as well as interfere with her ability to make parenting decisions for N on a day to day basis. This included whether N should be permitted to have a mobile phone, the provision of detailed information from N’s school, medical providers and counsellor, requiring the parties to copy each other into all communications with N’s school and invite the other to attend all meetings at school, requiring the parties to ensure N completed all his homework, and requiring the parties to copy each other into all communications with N’s counsellor.[162] The orders sought by the father may well have been on the assumption that he would be successful in his application that the parties have equal shared parental responsibility for N and to some extent, also amounts to a “doubling-up” of other orders agreed to by the parties on 17 January 2020 in relation to the exchange of relevant information. Given that I intend to make orders for the mother to have sole parental responsibility for N, and that N will live with the mother in Zurich and the father conceded that the mother is able to, and would, make all necessary and appropriate arrangements for N, I am not satisfied that the further orders proposed by the father are either necessary or appropriate. Rather, I consider that such orders are likely to lead the parties into further dispute. I decline to make the orders sought by the father.
[162] Paragraphs 64, 65, 66, 68, 70 and 72 of the father’s amended Minute attached to his papers for the judge.
203Sixthly, the father sought an order that the parties equally shared the costs of N’s out of school extra-curricular activities and tutoring, as well as N’s medical costs.[163] Even assuming that I have the jurisdiction to make such orders, I am not satisfied the same are either necessary or appropriate and decline to make such orders, particularly in circumstances where there was no evidence at trial as to the applicable child support arrangements, once N is residing in Switzerland.
ORDERS
[163] Paragraphs 69 and 70 of the father’s amended Minute attached to his papers for the judge.
204For the sake of convenience, I propose to incorporate all orders, including the injunctive order made by me at the conclusion of the trial on 17 January 2020 and the orders agreed to by the parties in their joint Minute filed on 31 January 2020, into one document. Accordingly, I propose to make the following recital and orders:
On these proceedings coming before the Court and noting that Switzerland is a prescribed overseas jurisdiction for the purposes of regulation 24, in accordance with regulation 14 and Schedule 1A, of the Family Law Regulations 1984 (Cth),
IT IS ORDERED THAT:
1.In these orders:
a)the expression “school holiday period” means the period commencing the day immediately following the last day of school term and concluding two days immediately prior to the first day of the following school term;
b)the expression “communicate with the child electronically” means by Skype, FaceTime, and WhatsApp video call or in the event such calls are not possible by telephone;
c)the expression “in writing” includes, but is not limited to, email, SMS text message and WhatsApp message; and
d)any reference to a “time” that something is to happen in accordance with these orders is a reference to Australian Western Standard Time unless stated otherwise.
2.All previous parenting orders be and are hereby discharged.
3.In accordance with regulation 24 of the Family Law Regulations 1984 (Cth), the Principal Registrar be requested to send the Australian Central Authority three certified copies of these orders together with the Certificate of Enforceability and a written request that these order be made enforceable in Switzerland and the Australian Central Authority be requested to send these orders to the Central Authority in Switzerland.
4.The parties sign all such documents and do all acts and things necessary to facilitate the registration of these orders pursuant to paragraph 3 above and equally share the costs associated with the same.
5.Subject to the immediately following paragraph, [MRS WAXWEILER] (“the mother”) have sole parental responsibility for the child [N] born [in] 2010 (“the child”) in relation to all major long term issues including the child’s:
a) Education (both current and future);
b) Religious and cultural upbringing; and
c) Health.
6.In making decisions regarding major long term issues for the child pursuant to the immediately preceding paragraph:
a)The mother will contact [MR GILLAM] (“the father”) in writing and provide her views about any such issue;
b)The mother will consider any views expressed by the father about any such issue;
c)The mother and the father will make a genuine effort to come to a joint decision about any such issue; and
d)If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.
7.The child live with the mother.
8.The mother be permitted to relocate to Switzerland with the child.
9.The father spend time with the child during the Swiss school holiday period, and paragraph 7 of these orders be suspended, as follows each:
a) Spring school holiday period;
b) Summer school holiday period; and
c) alternate Christmas school holiday school period.
10.For the purpose of the time to be spent by the child with the father in paragraph 9 of these orders:
a)the father’s time with the child: commence at 6.00pm (Switzerland time); and conclude at 6.00pm (Switzerland time).
b)the father have leave to spend time with the child in Perth;
c)handover is to occur at Zurich international airport with the mother (or her agent) to deliver [N] to the terminal where his flight departs at the commencement of time and collect [N] from where his flight lands at the conclusion of time;
d)until such time as the child turns 13 years of age, the child be permitted to travel accompanied by either: the father; the paternal grandmother, the paternal grandfather; or such other person agreed to by the parties in writing;
e)upon the child attaining 13 years of age, the child be permitted to travel unaccompanied with the assistance of the airline with whom he is booked to travel;
f)the parties must ensure that the child travels with both his Swiss and Australian passports at the commencement of time and at the conclusion of time;
g)the child’s return flights be agreed between the parties in writing no less than 30 days prior to the applicable school holiday period; and
h)the costs of the child’s return airfares to be shared equally between the parties, on the basis that: the father book and pay for the child’s flight from Zurich to Perth and provide the mother with written confirmation of the booking within 48 hours of receiving such confirmation; and within 48 hours of receiving the written confirmation of the booking, the mother book and pay for the child’s return flight from Perth to Zurich and provide the father with written confirmation of the booking within 48 hours of receiving such confirmation.
11.The parent with whom the child is not with on 24 December communicate with the child electronically at 4.00pm.
12.The parties communicate with the child electronically each Sunday between 4.00pm and 5.00pm when the child is not in their respective care.
13.The father communicate with the child electronically at 4.00pm, in the event the child is in the mother’s care, on:
a) the child’s birthday;
b) the father’s birthday;
c) Father’s Day;
d) [Dina Gillam]’s birthday; and
e) [Herman Gillam]’s birthday.
14.The mother communicate with the child electronically at 4.00pm, in the event the child is in the father’s care, on:
a) the child’s birthday;
b) [M]’s birthday;
c) the mother’s birthday;
d) Mother’s Day; and
e) [Paul Waxweiler]’s birthday.
15.To facilitate electronic communication, the parent who does not have the child in their care place the call and the parent with the child in their care use their best endeavours to facilitate the call, including ensuring the child is available and free from distraction to take the call, but is not otherwise to supervise the call.
16.If either the father wishes to travel with the child outside of the State of Western Australia or the mother wishes to travel with the child outside of Switzerland during their time, that parent provide no less than thirty days’ notice of the proposed travel including:
a) the proposed dates of departure and return;
b)an itinerary and any other documentation evidencing the proposed destination(s);
c) a copy of all return air tickets; and
d)all address, telephone numbers and other contact details where the nontravelling parent can contact the child during the travel period.
17.The Australian Federal Police be requested to remove the said child’s name from the Family Law Watch List operating at all international ports in Australia and the mother or the father supply the Australian Federal Police with a sealed copy of this order.
18.The parties have liberty to provide a sealed copy of these orders to the Australian Federal Police.
19.The parties must ensure that the child has a current Swiss and Australian passport at all times and sign all necessary renewal documents for this purpose:
a)the mother will renew and keep valid the Swiss passport; and
b)the father will renew and keep valid the Australian passport.
20.Subject to paragraph 10(f) of these orders, the child’s Swiss passport and the child’s Australian passport be held by the mother.
21.The parties do all such acts and things and sign all documents necessary to:
a)engage a clinical psychologist, for the child (“the child’s psychologist”);
b)provide the child’s psychologist, at the first appointment, with a copy of these orders;
c)comply with all directions given and requests made by the child’s psychologist;
d)equally share the costs associated with the child’s psychologist as and when they shall fall due;
e)ensure the child continues to attend upon and consult with the child’s psychologist for such period as the child’s psychologist considers appropriate;
f)authorise the child’s psychologist to communicate with the father in relation to the child’s therapy; and
g)the child’s psychologist be at liberty to liaise with [Mr G] regarding the child.
22.The parties must:
a)keep each other informed, at all times, of their current email address, residential address, and contact telephone or landline and mobile number;
b)advise the other party in writing of any change of address or contact telephone number/s within seven days of any such change;
c)advise the other party immediately in the event of the child suffering from any serious illness or injury;
d)keep each other informed, at all times, of the medical practitioners upon whom the child is attending upon;
e)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other party in relation to the child’s medical condition and/or requirements;
f)notify the other as soon as practicable of any hospitalisation or serious accident or illness, including any chronic illness, occurring to the child when in the care of that party;
g)authorise and instruct each educational institutional attended by the child to release to either party such information regarding the progress of the child in his education including school reports, newsletters, notices of significant events at the school and notices of sporting/schooling events as may be reasonably requested from time to time;
h)provide the child’s school with a copy of these orders; and
i)ensure the other party is listed as a parent on the child’s schooling information.
23.Each of the parties, their agents and servants be restrained by injunction and an injunction is hereby granted restraining each of them from distributing, broadcasting, or publishing to any third party the recording of the meeting at [School A] in October 2018.
24.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
25.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits;
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
26.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 24 and 25 above do not apply.
27.The proceedings be removed from the Defended List.
28.The proceedings be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate30 APRIL 2020
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