McCall and Clark (No. 2)

[2016] FamCA 1115

FAMILY COURT OF AUSTRALIA

MCCALL & CLARK (NO. 2) [2016] FamCA 1115

FAMILY LAW – CHILDREN – Where child lives with the father – where father has sole parental responsibility – where it is in the best interests of the child to continue the present arrangement of living in Australia – where father is to advise the mother about issues relating to education or health prior to making the decision – where child spend time and communicate with mother at all reasonable times as may be agreed between the parties – where child spend time with the mother at a minimum in Australia for two weeks of the Christmas holidays in even numbered years – where child spend time with mother in Australia for four weeks of the Christmas holidays in odd numbered years – where mother to provide six weeks written notice to father of her intention to spend time with child.

FAMILY LAW – CHILDREN – Where the mother is unlikely to facilitate a meaningful relationship between the child and father – where parties’ communication regime would not support equal shared parental responsibility – where it is not in the child’s best interests for there to be equal shared parental responsibility – where child has expressed strong views to live with the mother in Canada – where weight given to the child’s wishes is considerably less than it otherwise would be.

FAMILY LAW – CHILDREN – Where father pay the mother return airfares for the purpose of the maternal family visiting the child in Australia – where the father shall be at liberty to remove the child from the Commonwealth of Australia – where the mother is restrained from applying for or obtaining a passport for the child – where there is a practical difficulty in the child spending regular time with each parent – where the mother lives in Canada and the father lives in Australia.

FAMILY LAW – EVIDENCE – Objection to evidence – where Family Report writer prepared two Family Reports – further evidence in chief de bene esse – where mother’s counsel contends that evidence of the Family Report writer does not meet the requirements of section 79 of the Evidence Act 1995 (Cth) – where by virtue of section 69ZT of the Family Law Act 1975 (Cth), section 79 of the Evidence Act 1995 is of no application to these proceedings.

FAMILY LAW – CHILDREN – Rice & Asplund – where there is significant change of circumstances to justify re-litigation.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA(1), 65DAC, 69ZT
Evidence Act 1995 (Cth) ss 76, 79, 135, 140

Banks & Banks [2015] FamCAFC 36
K v R (1997) 22 FamLR 592
Mauldera & Orbel (2014) FLC 93-602
McGregor & McGregor (2012) 47 FamLR 498
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re W (sex abuse – standard of proof) [2004] FamCA 768
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr McCAll

RESPONDENT: Ms Clark

INDEPENDENT CHILDREN’S LAWYER: Ms Chen

FILE NUMBER: BRC 4776 of 2007

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 4, 5, 6, 7, 10 and 20 October; 19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC

SOLICITORS FOR THE APPLICANT: Cooper Family Law

COUNSEL FOR THE RESPONDENT: Mr Cremin

SOLICITORS FOR THE RESPONDENT: Denovo Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Andrew

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

1. That all previous parenting orders shall be discharged including the order made on the 23^rd of December 2010 by Federal Magistrate Reithmuller.

2. That the child G born … 2005 shall live with the father.

3. That each party shall have day to day parental responsibility for the care, welfare and development of the child, when the child is in their respective care.

4. That the father shall have sole parental responsibility for the major long term issues with respect to the child subject to the provisions set out here under.

5. That subject to paragraph four above, the father shall prior to making the sole ultimate decision about issues relating to the education or health of the child:

   a.   Advise the mother in writing by email, of the decision intended to be made by him.

   b.   Seek the written response of the mother within fourteen days (14) of the date of the father’s written notice.

   c.   Consider by reference to the best interests of the child, any such response from the mother prior to making his decision.

   d.   Advise the mother in writing by email as soon as reasonably practicable of his ultimate decision.

6. The father shall keep the mother informed in writing by email of the name and address of the school that the child is enrolled to attend.

7. These shall be sufficient authority for the mother to obtain at her request and cost from the child’s school, a copy of school newsletters, the child’s school reports, school photographs and any other documents pertaining to the child’s education and furthermore, the mother is permitted to attend as arranged with the school, any parent teach interview and any cultural events, sports days and the like that parents of students are invited by the school to attend, from time to time.

8. The father shall keep the mother immediately informed of any medical emergency pertaining to the child including the name of the treating hospital / medical practitioner / medical centre that the child attends for treatment and he shall inform the mother of the nature of the medical emergency and any recommended treatment / diagnoses AND the mother is authorised by these orders to obtain at her request and cost, any information, medical report and documentation pertaining to the child’s treatment and diagnosis, PROVIDED THAT  if there is a medical emergency pertaining to the child whilst he is in the mother’s care, the MOTHER shall immediately inform the father of the same including the name of the treating hospital / medical practitioner / medical centre that the child attends for treatment.

9. The father shall keep the mother informed as soon as reasonably practicable, of any illness / injury to the child that requires medical attention including any consultation with the family general medical practitioner and the father shall keep the mother informed of the nature of the illness / injury and the recommended treatment and diagnosis, PROVIDED THAT if whilst the child is in the mother’s care, he becomes ill/injured and requires medical attention (being other than a medical emergency) including any consultation with a general medical practitioner, the MOTHER shall keep the father informed as soon as reasonably practicable, of the medical consultation including the name and address of the treating medical practitioner, the nature of the illness / injury and the recommended treatment and diagnosis.

10.In relation to paragraph 9 herein, each party is authorised by these orders to obtain at their respective request and cost from the child’s treating general medical practitioner any information and reports, regarding the child’s health including information pertaining to the treatment and diagnosis.

11.That the child shall spend time and communicate with the mother at all reasonable times as may be agreed between the parties and at a minimum shall be as follows:

(a)   In Australia for two weeks in the Australian Christmas holiday periods commencing in even numbered years (other than from 23 December until 2 January), with the contact to be at a time as nominated by the Mother, provided she gives the Father notice of her intention to spend time with the child, including the start and end date of the contact, at least 6 weeks before the commencement of the school holiday period.

(b)  In Australia for four weeks in the Australian Christmas school holiday periods commencing in odd numbered years, with the contact to be at a time as nominated by the Mother, provided she gives the Father notice of her intention to spend time with the child, including the start and end date of the contact, at least 6 weeks before the commencement of the school holiday period.

(c)  In Australia for all of the end of Term one school holidays including Easter, from after school or 3pm whichever is the earlier, until 8:30 am at the school on the first day of the new school term.

(d)  In Australia for all of the end of Term two school holidays otherwise referred to as the “winter school holidays”, from after school or 3pm whichever is the earlier, until 8:30 am at the school on the first day of the new school term.

(e)  In Australia for the end of Term three school holidays in even numbered years, commencing 2018, from after school or 3 pm whichever is the earlier, until 8:30 am at the school on the first day of the new school term.

(f)   For any other period during the child’s school term, of up to three weeks duration in Australia, provided that:

(i)The mother shall ensure that the child attends school each day and all extracurricular and school based activities that is usual for the child to attend during such period;

(ii)The mother shall provide to the father in writing by email, 6 weeks prior notice of her intention to spend such time with the child in Australia, including the start and end time and dates for the contact;

(iii)The period shall not be more than once per school term;

(iv)Handover of the child shall be from the school after school or 3 pm whichever is the earlier, until 8:30 am at the school on the first day of school after the conclusion of the child’s time with the mother.

(g)  By Facetime or Skype with the mother, each Sunday for one hour at a time to be nominated by the mother (QLD time) and each Thursday for 30 minutes, with the communication to take place between 7am and 8:30am (QLD time) and the mother shall give the father 2 days prior notice by email, of the time she intends to call the child and whether by Facetime/Skype, PROVIDED THAT  the mother shall be at liberty to also call the child on special days such as, Mother’s Day, the child’s birthday, the birthday of any of the child’s half siblings, the Mother’s birthday, Christmas Day (if the child is not otherwise in her care) and in that event, the mother shall give to the father 2 days prior written notice by email, of her intention to call the child on such day, what method is to be used, and all such calls to be made between 7:00 am and 8:30 am (QLD time) unless the parties agree otherwise. The calls on special days shall be for no more than 30 minutes duration.

12.That in relation to the school holiday time referred to in paragraph 11, the time is predicated upon the mother providing to the father 6 weeks prior written notice by email of any intention that she has to exercise school holiday time referred to therein, including the start and end time/dates for the handover of the child between the parties.

13.That when the child is spending time with the mother, the child shall communicate with the father either by Facetime or Skype (at the father’s election) and the mother shall facilitate this happening, each Wednesday between 7:00 am and 8:30 am (QLD time) and each Sunday between  12 noon and 2:00 pm (QLD time)  for no more than 30 minutes duration, with the father to notify the mother by email at least 2 days prior, of the method he will use for the calls to the child and the time for the calls, PROVIDED THAT  the FATHER shall be at liberty to also call the child on special days such as, Father’s Day, the child’s birthday, the birthday of any of the child’s half siblings, the Father’s birthday, Christmas Day (if the child is not otherwise in his care) and in that event, the father shall give to the mother 2 days prior written notice by email, of his intention to call the child on such day, what method is to be used, and all such calls to be made between 7:00 am and 8:30 am (QLD time) unless the parties agree otherwise. The calls on special days shall be for no more than 30 minutes duration.

14.The father shall pay to the mother a sum of  AUD$2000-00 for each return airfare purchased by the mother for the purpose of the maternal family visiting with the child in Australia, to a maximum sum of AUD$10 000-00 per calendar year, with the sum to be electronically transferred by the father into a bank account nominated by the mother, with the transfer of funds to be effected within 48 hours after the return of the child to the father.

15.The parties shall keep each other informed at all times of their mobile phone number, residential address, email address and Skype address and they shall notify the other party within 24 hours of any changes to either of these.

16.That an injunction shall issue restraining each parent from:

(a)   Denigrating the other party or members of the other party’s household to the child G or in the hearing of the child;

(b)  Discussing with the child or within the hearing of the child any aspect of these proceedings, except that each party is at liberty to discuss with the child the terms of the contact and communications as set out herein.

(c)  Commenting about any aspect of any order that either party is unhappy or dissatisfied with, including orders with respect to where the child lives, with whom the child communicates, or the basis upon which the child spends time with mother.

(d)  Encouraging the child to confront the other party concerning any issue in dispute between the parties.

17.That each party shall use their best endeavours to ensure that their respective partners shall not:

(a)   Denigrate the other party or members of the other party’s household to the child G or in the hearing of the child;

(b)  Discuss with the child or within the hearing of the child any aspect of these proceedings, except for the terms of the contact and communications as set out herein, commenting about any aspect of any order that either party is unhappy or dissatisfied with, including orders with respect to where the child lives, with whom the child communicates, or the basis upon which the child spends time with mother.

(c)  Encouraging the child to confront the other party concerning any issue in dispute between the parties.

18.The Independent Child’s Lawyer and the family report writer Ms B, shall meet with the child as soon as possible after the making of these Orders, to explain the terms of the parenting arrangements to the child.

19.That the father shall be at liberty to remove the child from the Commonwealth of Australia on the condition that the Father give the Mother notice of the removal at least 30 days prior to the removal, including providing flight details.

20.The Mother be restrained, and an injunction issued restraining her from applying for or obtaining a passport for the child.

21.All handovers of the child between the parties shall unless otherwise specified herein or otherwise agreed to between the parties, take place where possible during school term, at the child’s school and outside of school term, it shall be at the child’s school.

22.The Independent Child’s Lawyer shall be discharged with the thanks of the Court at the later of the expiration of the appeal period pertaining to these orders, or the conclusion of any appeal that may be brought from them.

23.Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCall & Clark (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4776 of 2007

Mr McCall

Applicant

And

Ms Clark

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the appropriate parenting orders for G (born in 2005 and hence presently 11 years of age) (“the child”).  The applicant, Mr McCall (“the father”), seeks orders that the child continue living with him, and that he have sole parental responsibility in relation to decision making for him.  He further proposes that the respondent, Ms Clark (“the mother”), should spend holiday time with the child in Australia, but that the child be prohibited from again spending time with her in Canada, where she lives.

2. For her part, the mother seeks orders that the child move into her care in Canada, and that she have sole parental responsibility for decision making in relation to him.  She further proposes that the child regularly spends time with the father for holidays in Australia and for two blocks of time during school term in Canada each year.

3. The Independent Children's Lawyer, in substance, supported the position of the father.

BACKGROUND FACTS

The father

1. The father was born in Queensland in 1974, and hence is presently 42 years of age.  His parents separated when he was two years of age, and he thereafter had no contact with his father again until he was about 17.  During that period, his mother re-partnered, but he told Dr R, a psychiatrist who assessed him for the purposes of these proceedings that “my stepfather was awful to me.  I did miss my father.  We moved on, that was ok…”[1]

   [1]Report filed 18 November 2014 p 24.

2. The father grew up in a town several hours north of Brisbane.  He did well at high school and matriculated to university.  Seemingly in his first year of study, his parents briefly reunited, but the relationship did not persist.  The father did well at university, ultimately completing a PhD.  He then went overseas and completed a Post-Doctoral Fellowship, before, at age 27, returning to Australia to take up a position at a University.  It was at that stage of his life when, aged 29, in June 2004 he met the mother, who was a student in one of the courses for which he had some teaching responsibility.

The mother

1. The mother was born overseas in 1982, and hence is presently 34 years of age.  Seemingly from an early stage in her life, her family moved to live in Dubai, where her father worked as a manager. Her family are all Roman Catholics, and she was raised to follow that faith.  She attended school in Dubai and then came to Australia to study a degree at University, which she completed in 2004.  It was at about that stage of her life when, aged 21, in June 2004 she met the father.

The relationship

1. The father invited the mother to go out with him, although initially the mother was reluctant to do so.  However on the third invitation she agreed to.  She told Dr R that “I thought he was pursuing me.”[2]

   [2]Report filed 18 November 2014 p 30.

2. However it appears as though she misinterpreted the father’s intentions in that respect, in that his interest in her was far less serious than the mother construed it.  In any event, the child was conceived early into the relationship, probably in about July 2004.  She told Dr R that “this was a shock” but “she was a Catholic and didn’t consider a termination.”[3]  In evidence before me, her language was a little more emotional – she said that she “chose life” for the child.

   [3]Report filed 18 November 2014 p 30.

3. In August 2004, the father moved to Brisbane, having secured employment there.  The mother followed him in October and the parties commenced to cohabit, and lived together until October the following year. 

4. In 2005 the child was born.  Then in August of that year the parties became engaged, planning to be married in December of that year in Dubai.

5. On 9 October 2005 the mother and child departed for Dubai in anticipation of the forthcoming wedding.  However during her absence, the parties’ relationship irretrievably broke down, and the wedding plans were abandoned.

Post separation

1. In early January 2006 the mother advised the father that she did not intend to return to Australia with the child.

1. The father next saw the child when he visited Dubai in June 2006.  The following month the mother relocated from Dubai to Sri Lanka.  Whilst she was there, the father sought to have the Sri Lankan Central Authority commence proceedings under the Hague Convention to have the child return to Australia.  The father visited Sri Lanka in January 2007 and spent time with the child.  However the following month the mother relocated the child from Sri Lanka to Dubai, in consequence of which the Hague proceedings never commenced.

2. In September 2006 the mother told the father (presumably by email) “I can take care of [the child] on my own.  He will be my responsibility, so please stay out of our lives.  When he is of age, he may come and see you.  Until then, please leave us alone.”

3. Notwithstanding that email, the father travelled to Dubai in April 2007, and again spent time with the child.  Whilst there he took the child’s passport from the mother’s handbag without her knowledge.  He left the passport with the Australia Consulate.

4. On 20 April 2007 the father commenced proceedings in the Federal Magistrates Court.  He sought orders that the child live with him and spend time with the mother, who would be restrained from taking the child from Australia without court order or the father’s agreement.

5. On 22 June 2007 Federal Magistrate Slack listed the father’s application for trial on 15 October 2007.  Consequent upon that trial, orders were made giving the parents equal shared parental responsibility for the child and restraining the mother from relocating the residence of the child from Dubai without the consent of the father.  There were further orders permitting the father to spend time with the child, dependent upon whether he relocated to Dubai or remained resident in Australia.  Obviously, that result was contrary to the father’s primary position that the mother should be required to return the child to Australia.

6. From that decision the father appealed on 16 January 2008.  Although the appeal was heard on 12 May 2008, a decision was not given until 29 May 2009.  The appeal was successful, and the orders of Federal Magistrate Slack were set aside and the matter remitted for re-hearing.

7. By then, early in 2009 the mother had remarried, and in March 2009 her employment in Dubai was terminated, apparently resulting in her loss of the right to reside there.  Accordingly, on 18 April 2009 the mother relocated to Canada, in plain breach of the orders of Slack FM.

8. Consequent upon the order for re-trial, the matter was again readied for trial.  On 7 August 2009 Jarret FM listed the matter for trial on 12 October 2009, but also made orders for the child to spend time with the father, seemingly in Australia (although the orders were silent as to that).

9. According to the subsequent reasons of Riethmuller FM:[4]

   In November 2009 the father travelled to Canada to enforce FM Jarret’s orders with the assistance of the Canadian Courts, resulting in the mother and her husband coming to Australia on the same flight as the father and [the child].

   [4]McCall & Clark (No3) [2010] FMCAFam 1443 at 5(m).

10. It is not in dispute that from November 2009 the child has remained living in Australia.

11. Initially at the re-trial before Riethmuller FM, the mother’s position was that she wished to relocate to Sri Lanka, as she no longer had residence rights in Canada.  However whilst the decision was reserved, the mother applied to re-open her case to “again pursue residence in Canada as a result of developments in her visa application in Canada.”[5]  The trial then resumed in July of 2010 and ultimately the decision of Riethmuller FM was delivered on 23 December 2010.  Consistent with the reasons then published, his Honour made orders for equal shared parental responsibility, but that upon the mother moving to Canada, the child reside with the father and spend vacation periods with the mother in Canada.  From that decision the mother unsuccessfully appealed.[6] 

    [5]ibid 5[p].

    [6]Clark & McCall [2011] FamCAFC 194.

12. Notwithstanding that the mother had been residing in Australia since (it seems) November 2009, after the judgment of Riethmuller FM, Dr R noted “she decided to go back to Canada because her daughter was due to be born in … 2011.”  Since then, she has remained living in Canada, with the child spending time with her during Australian school vacations.

13. Handovers of the child pursuant to the orders of Riethmuller FM proved particularly problematic.  That culminated in a particularly distressing changeover on 4 October 2013, which was sought to be effected by use of a professional supervisor, Ms T.  Her affidavit filed 12 March 2014 was not the subject of any cross-examination before me.  She reported that it was initially difficult to even get the child to separate from his mother and stepfather in Canada, and when that was done, during the ensuing taxi ride with Ms T, the child was very upset and crying.  However he then refused to leave the taxi when he saw his father waiting for him, and although ultimately he was persuaded out of the taxi, refused to go to the father.  The father then grabbed the child and began walking away, but the child “continuously kicked his father in the upper part of .. [the] legs, while trying to get out of his arms.”

14. Ms T has an impressive background, having worked as a supervision officer overseeing court ordered family visitations in Canada for five years.  In her affidavit she said that during those five years “I have never witnessed or watched such a difficult, sad and what seemed to me a very traumatising experience of a child being separated from his loved ones.”

15. Also in evidence before me was an affidavit of the taxi driver on that occasion.  His evidence was consistent with that of Ms T, and further, he said that what he observed made him so upset that “I myself had tears in my eyes because I was very emotional…”

16. The father then commenced these further proceedings on 4 December 2013.  In those he initially sought to only vary the orders of Reithmuller FM in respect of handovers and communication.  However pending the resolution of that application, he did not again make the child available to spend time with the mother in Canada.  Ultimately, on 17 November 2014, consent interim orders were made varying the mechanism for changeover in accordance with recommendations of the Family Report of Ms B, filed 10 October 2014.  That was the regime of orders that was in place during the course of the trial before me.

17. It is not in contest that after the difficult separation supervised by Ms T, the child did not again see his mother, or indeed his Canadian siblings, until during the course of interviews conducted by Dr R with the parties on 27 August 2014.  It follows then that the mother had not travelled from Canada to Australia to spend time with the child, nor had she brought any proceedings to enforce the orders of Reithmuller FM.  Further, although the father did make an offer to the mother to travel to Australia to spend time with the child over Easter 2014, the mother was again pregnant at that time, and caring for young children, and advised she could not make the trip to Australia.[7] 

    [7]Father’s affidavit filed 2 September 2016 at paragraph [152].

18. After being reintroduced to the mother at the interviews in August 2014, the child then spent the next 18 days with her in Australia.[8] 

    [8]ibid at [153].

19. Since then it appears as though there have been seven handovers of the child between the parties.  The father says that six of those seven have gone “very well,” but the handover on 26 January 2016 did not go “as well.”[9]  After that, there have been handovers again on 10 April 2016 and 10 July 2016.  The father’s evidence is that the former “went well, without any resistance or incident” and as to the latter said “[the child] was content to leave with us.”[10]

    [9]ibid at [162].

    [10]ibid at [166].

20. On 17 February 2014 these proceedings were transferred from the Federal Circuit Court to the Family Court of Australia.

21. Also in evidence before me was an affidavit of the mother’s husband, Mr S.  It is he who has attended to the physical handovers of the child in Australia since the November 2014 consent orders.  He was not challenged in relation to the detail in his affidavit, and I accept his evidence in that respect.  Particularly in relation to the April and July 2016 handovers, whilst it would appear as though the child has been emotional at the prospect of moving back into the father’s care, or perhaps more precisely leaving his step-father’s care, it does appear as though they were nowhere of the calibre of the changeover of January 2016, much less October 2013.

Current situation

The father

1. At the time of trial the father was a full-time Professor at a Queensland University.  Apparently this is a tenured position.  He is married to Ms W, they having commenced a relationship in 2008 and married in 2010.  She has been the child’s step-mother since he came to live in Australia in November 2009, accepting that there was a shared parenting arrangement between the mother and father until the mother returned to Canada after the judgment of Reithmuller FM.

2. In addition to the child living with them, the father and his wife have two other children born to their marriage residing there in the house: M (born 2011) and N (born 2015).  They all reside in a three bedroom townhouse in Brisbane, with the child, G, and M sharing a room.

3. Ms W works 20 hours per week as a public servant.  She works five hours a day, Tuesday to Friday.

The mother

1. At the time of trial the mother remained residing in British Columbia in Canada.  She is not in employment.  She resides there with Mr S, who is in full-time employment.

2. He and the mother now have four children, although the evidence does not disclose their names and ages.  Further, at the time of trial, the mother was pregnant again, and is expecting her sixth child in March 2017.

The child

1. As at the time of trial the child was 11½ years of age.  He was in his final year of primary school.  Ms B described him in her second Family Report as “a polite and a well-spoken boy” with an athletic build.[11]  It appears as though he is doing reasonably well at school, particularly in mathematics, and has a strong interest in music, including the piano and the trumpet (accepting that he told Ms B that he no longer wanted to play the latter).  He plays soccer, and has a number of friends at school.  He has recently progressed from Cubs to Scouts.

   [11]Paragraph 112.

THE ISSUES

1. With the assistance of the parties, I identified that the following are the issues in the proceedings, in that their determination is likely to substantially impact upon the outcome of the exercise of my discretion.

   1.Has there been sufficient change in circumstances since the last parenting orders were made to warrant further litigation in relation to the child.

   2.What is the nature of the relationship between the child and each of the parents.

   3.What is the nature of the relationship between the child and the other persons in each of the parents’ household.

   4.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   5.What would be the likely effect on the child of relocating to live with the mother in Canada.

   6.What would be the likely effect on the relationship between the father and child if the child relocated to Canada.

   7.What would be the likely effect on the child of remaining living with the father in Australia.

   8.What would be the likely effect on the relationship between the mother and the child if the child remains living with the father in Australia.

   9.Would each parent facilitate a meaningful relationship between the child and the other parent.

   10.Would the parties’ communication support equal shared parental responsibility.

   11.As a matter of law, can the child reside permanently in Canada. 

2. Once I have discussed the relevant statutory provisions and legal principles, I shall discuss those issues in that order, before addressing any residually relevant s 60CC considerations, and then determine the appropriate parenting orders in this case. I shall also address questions of credit of the parties in advance of a consideration of the issues. However at the outset I need to give my reasons for, on 19 December 2016, admitting oral evidence given by Ms B on 20 October 2016, and otherwise deal with the mother’s submissions in relation to Ms B’s evidence more generally.

THE OBJECTION TO MS B’S EVIDENCE

1. The initial evidence of Ms B, the Family Report writer in these proceedings, was comprised in two Family Reports prepared by her, filed 10 October 2014 and 3 October 2016.  No objection was taken to those reports forming her evidence in chief, or to any part of them.  She was cross-examined in relation to those reports and the opinions contained in them over both 4 and 5 October 2016.

2. On 10 October 2016 I determined that the Independent Children's Lawyer could lead further evidence in chief from Ms B de bene esse, and published my reasons for doing so on 25 October: see McCall & Clark [2016] FamCA 896. Consistent with that ruling, on 10 October 2016 Ms B gave that evidence, and was cross-examined by Queens Counsel for the father, and partially cross-examined by counsel for the mother. Further cross-examination of her ensued on 20 October 2016. Much of that cross-examination by counsel for the mother challenged her expertise to express such opinions as he did, including, it seem, opinions expressed in her two Family Reports, which by then formed part of the material before me.

3. On the final day of trial I dealt with the mother’s objection to Ms  B’s evidence.  Extensive written submissions were handed up by her counsel.  They commenced:

   The court is required to rule on the admissibility of the Reports of [Ms B], dated 2014 and 30^th September 2016, and oral evidence given on day 6.

4. Precisely how, given that both reports were already then part of the material before me, the opportunity to challenge that status and their admissibility retrospectively, was not explained by the mother’s counsel.  In my view, no such opportunity was afforded by my ruling on 10 October 2016.

5. However, even leaving that to one side, the submissions of the mother are misconceived. In substance, her counsel contends that the evidence of Ms B does not meet the requirements of s 79 of the Evidence Act (Cth) and hence are inadmissible.

6. Although I pointed out to Mr Cremin, the mother’s counsel, both on 20 October and 19 December, that by virtue of s 69ZT of the Family Law Act, s 79 of the Evidence Act is of no application to these proceedings, no submission was advanced addressing that fundamental problem. It is plain that “s 69ZT allows the admission of any opinion without the application of the opinion rule or the exception to it provided in ss 76 and 79 of the Evidence Act, unless the Trial Judge has determined to apply sub-section (3) of s 69ZT and, as a consequence, applies the otherwise-excluded Rules of Evidence”: see McGregor & McGregor (2012) 47 FamLR 498 at [90] per Bryant CJ, Faulks DCJ and Ainsley-Wallace J.

7. Further, no application of the kind contemplated by s 69ZT(3) was advanced by the mother, nor was any application under s 135 of the Evidence Act advanced either. Instead Mr Cremin unflinchingly pressed his argument under s 79, and even perhaps more remarkably, in his ultimate submissions in the substantive proceedings, made no submission of the kind contemplated by s 69ZT(2) as to the weight the (by then admitted) evidence of Ms B should be given.

8. Section 79 is not an available basis to object to the Court receiving opinions unless an order has been made under s 69ZT(3). The submissions of the mother on this point are wholly without merit, and for that reason, on 19 December 2016, I admitted the evidence of Ms B given on 10 and 20 October 2016. No basis for a challenge to her earlier evidence arose in consequence of my 10 October ruling; however if I am wrong as to that, the same fatal flaw in the mother’s argument remains – s 79 is not an available basis to object to the Court receiving opinions, absent the engagement of s 69ZT(3).

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

1. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[12]

   [12] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

2. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;  

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[13] 

   [13] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Rice & Asplund

1. The so-called rule in Rice & Asplund has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule nonetheless remains somewhat opaque.  From my analysis of those cases, I venture the following as relevant principles which may either be drawn directly from them, or which otherwise logically arise:

   (a)The rule is but one manifestation of the best interests principle;

   (b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;

   (c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;

   (d)The rule can be applied at any stage of the proceedings;

   (e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;

   (f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);

   (g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued.  In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved.  Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible.

   (h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;

   (i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child.  Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;

   (j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;

   (k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);

   (l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;

   (m)It will be a matter for the trial judge as to whether under Family Law Act s 69ZQ, evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;

   (n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.  

CREDIBILITY OF WITNESSES

1. The parties are not in marked disagreement about many of the matters of fact engaged in these proceedings.  However there is one substantial matter upon which credit has some bearing, being the extent to which the mother would be willing and able to facilitate a meaningful relationship between the child and the father.  For her part, she says that she would be so willing and able, whereas the father says that the history of the child’s behaviour when in the mother’s care tells against such a conclusion.  He says, in substance, that the mother is determined to thwart the development of any meaningful relationship between the child and himself, and would be quite content for him to remain out of the child’s life forever.  Therefore to an extent, the veracity of the mother’s assertions is an issue I need to determine, and that necessarily requires an assessment of credibility more broadly.

2. Against that background I turn to review the credibility of witnesses who might impact upon that issue.

3. The first is the father.  He presented as a somewhat painstaking witness, who tried to genuinely engage with questions and answer them in a forthright manner.  I generally regard his evidence as reliable.

4. The father’s wife, Ms W, presented as an excellent witness.  She struck me as having a good insight into the dynamics of the situation in which the child finds himself, and having a caring and empathetic nature.  She was not challenged in relation to any matters of substance, and I am well satisfied that her evidence is reliable and was honestly given.

5. The mother presented as a witness who on occasions appeared to be reluctant to properly engage with the question.  Frequently her answers were not responsive, although she denied that such deflection was deliberate or even advertent.  Even if that be so, it remained a troubling feature of her answering of questions, particularly those where a direct answer may not have been seen to support her case or position.

6. A worse feature of her evidence giving, however, was the fact that on occasions she gave quite misleading answers.  The most glaring illustration of that was her assertion that the father had refused to make the child available for the Easter 2016 holidays, until he relented at the last minute.  However an intricate and detailed cross-examination of her by Queens Counsel for the father exposed that as quite untrue, and positively misleading.  Ultimately faced within incontrovertible proof in the form of emails of the falsity of her initial position, the mother then dramatically changed tack, and asserted that perhaps she had been mistaken as to the period and particular visit in question, and perhaps indeed it had been the previous year that she had in mind.  I wholly reject that as a possibility.  The mother did not advance it until such time as she was firmly cornered and her lies plainly exposed.

7. That is by no means the only area of the mother’s evidence where I have concerns as to her veracity.  That said, during her cross-examination by counsel for the Independent Children's Lawyer, she appeared to, at least to my observation, revert to a more honest style of giving answers.  During that cross-examination she appeared more readily to give answers which were potentially adverse to her case.  I have less concerns about her veracity in that part of her cross-examination.

8. However the concerns I have in relation to the mother’s credibility are of such moment that I will be hesitant to act upon her evidence unless it is otherwise corroborated, or seems inherently likely or plausible.

9. In his address, her counsel argued that her “bouncing off” questions might be explained on the basis that English was her second language.  That does not explain her different style of answers to the Independent Children's Lawyer’s counsel, and I reject her counsel’s contention in this regard.  

10. Finally I turn to the mother’s husband, Mr S.  Generally he impressed me as a credible witness, without any of the attendant issues which the mother’s evidence gave rise to.  I generally accept his evidence.

SUFFICIENT CHANGE OF CIRCUMSTANCES TO JUSTIFY RE-LITIGATION

1. As at December 2010:

   ·The child was living in a shared arrangement between the mother and father in Australia, although the orders of Reithmuller FM contemplated that would change;

   ·The child had not commenced to experience changeovers between Australia and Canada;

   ·The child had not lived in Canada or spent time there since November 2009;

   ·The child had no siblings, whether in Canada or in Australia (although the mother was then pregnant);

   ·The child was then six years of age.

2. As at the date of the trial before me, the following circumstances had changed:

   ·The child has now experienced many changeovers between Australia and Canada;

   ·The child has now spent considerable time living with his maternal family in Canada during vacations;

   ·The child has developed sibling relationships with both sets of families; he has two siblings in Australia and four (soon to be five) in Canada;

   ·The child is now 11½ years of age;

   ·Many of the changeovers prior to 4 October 2013 appear to have been problematic, and there have been problems with some of the seven subsequent changeovers in any event;

   ·The child has been withheld by the father from the mother between September 2013 and December 2014 (noting that the child got to see his mother in August of that year in Australia for 18 days).

3. Although ultimately the father did not seek to rely upon any Rice & Asplund point, at one stage during the proceedings he did, save that there was some peculiarity in him seeking so to do, given that he was the party who had commenced proceedings afresh in December 2013.  His justification was that he only sought to, in effect, vary the orders in minor respects, so as to reflect the November 2014 consent orders on a final basis.  However ultimately that was not the only way in which he sought to vary the orders, but rather he sought to restrict the mother to spending time with the child solely in Australia.  That goes well beyond merely tinkering around the edges of orders, and dramatically varies the circumstances in which the child would be spending time with the mother and maternal family, and even raises the prospect that the child may not be able to in the future spend time with the mother, if she chose not to travel to Australia to enjoy such orders.

4. For her part, the mother does not seek to rely upon Rice & Asplund, as she wishes to have the child move back into her care in Canada.

5. However notwithstanding the fact that neither party wishes to argue a Rice & Asplund point, in my view a court itself must be satisfied that there is a sufficient change of circumstance to justify re-litigation, as otherwise conflictual parties could potentially litigate ad nauseum in relation to their children.  As well as the impact of that upon the child, there would be public interest considerations at play also.

6. Here the following points tell in favour of the parties’ not being permitted to re-litigate:

   ·That even prior to this hearing, they have already had two trials and two appeals, which proceedings spanned over three years;

   ·For ten years the child has now been embroiled in conflict between the parties, for five of which years they have been litigating over him;

   ·Although there have been some even marked difficulties with the 2010 orders, once the child has settled back in Australia, it appears as though his life thereafter proceeds relatively uneventfully.

7. On the other hand the following points are against the application of the rule in this case to preclude the litigation:

   ·The trial has been conducted, and hence any evils of exposure to the child to litigation which the rule is intended to overcome have been visited upon him in any event;

   ·The child has demonstrated concerning behaviours at changeovers as recently as January 2016;

   ·Both parties wish to further litigate in relation to the child.

8. In an ideal world, the Rice & Asplund point would have been considered at a far earlier stage in these proceedings than the trial.  Specifically, it should have been raised shortly after the proceedings were initiated again by the father, particularly given that the scope of the variation to the orders which he sought was limited.  Had the point been raised at that stage, then in my view it is likely that the father would have been restricted to litigating only as to variations to the orders as to the mechanics of handovers, but as has been seen, the mother seized the opportunity of re-litigation to again argue for a change in residence of the child, rather than seeking to rely upon the rule of Rice & Asplund.

9. I am particularly mindful that these parties appear to have the willingness and resources to fund ongoing litigation for the balance of this child’s minority.  For what it is worth, I would venture to suggest that any further litigation between them should be nipped in the bud at a far earlier stage than at any further trial.  The effects of the ongoing conflict on this child will be detailed shortly, but suffice to say that it is a telling example of the adverse impacts of litigation upon children, because necessarily they cannot be completely shielded from it, nor the underlying conflict.

10. Although not without considerable regret, in my view the rule of Rice & Asplund does not, and should not, in the somewhat unique circumstances of this case, operate to preclude the parties from further litigation in the form of these proceedings.

NATURE OF THE RELATIONSHIP BETWEEN THE CHILD AND EACH PARENT

The father

1. Given that there are no allegations of family violence or other untoward conduct of the father towards the child, ordinarily one would not expect any dispute about the existence of a good relationship between the child and the father.  However the mother made such a challenge.  She said that she did not in fact believe that there was a loving relationship between them, or even that the child loved the father.  She based that upon the fact that the child had never told her that he loved the father, and his behaviour at changeovers demonstrated a marked reluctance to go back into his father’s care, or indeed even to have anything to do with him.  Further, she relied upon the father’s response to the child at problematic changeovers (which he conceded was not effusive, because he said that would be inappropriate given the child’s distress) as demonstrating that the father did not love the child either.  Additionally, she relied upon the father allegedly abruptly terminating Skype communications between her and the child, as feeding into the child’s dislike of the father, because the child perceived him as wanting to preclude, or at least not supporting, a relationship between the child and his maternal family.

2. For his part, the father says that he has a meaningful relationship with the child, who loves him and is loved in return.  He says that the child has problematic behaviours moving between the mother’s household and his, and he accepts that the child does indeed demonstrate resistance at that point.  However he says that once the child is back in his care and settled, they resume their ordinarily loving relationship.

3. The father’s position was supported by the observations not only of Ms W, but also Dr R and Ms B.

4. In his report filed 18 November 2014, Dr R concluded that there was a strong relationship between the child and the father, although the child had a stronger emotional bond with his mother.[14]  Later in the report he said that the child had “developed a good secondary attachment to his father” and that he has “a good, solid relationship with his father.”[15]  That said, in his recommendations he concluded that the child “is withdrawing from his father emotionally, and I believe is finding it difficult to remain emotionally close with his father when he feels that he is being deprived of his mother.”[16] 

   [14]Page 36.

   [15]Page 40.

   [16]Page 42.

5. At the time that Dr R interviewed the child, Ms B did so too.  In her report filed 10 October 2014 she noted that “when asked to talk about the important people in his life [the child] nominated all the people in both parents’ households.”[17]  Later, opining that the child “has a need for an ongoing relationship with his father and extended paternal family” she said “it is evident that he also has affection and a bond with his father’s family.”[18]  I give those opinions weight; plainly she is well qualified to give them.

   [17]Paragraph 131.

   [18]Paragraph 162.

1. By the time of the interviews for the second Family Report, approximately another two years had elapsed.

2. At paragraph [121] of the second Family Report Ms B noted:

   During his individual interviews [the child] referred to “sort of” getting on with his father.  He related they did some things together such as recently buying a book together.  [The child] claimed however his father didn’t do activities with him.

3. At [127] she continued:

   [The child] presented as at ease with [the father] and Ms [W].  Conversation flowed readily, particularly from Ms [W] towards the boys.  There was no sign of hesitation in [the child’s] interaction with them.

4. Later at [129] she said:

   It was observed that Ms [W] and [the father] managed [the child’s] and [M’s] behaviour without fuss.  They supported each other in that he looked after the older boys while she took [N] outside to try and settle him.  [The child] presented as respecting their authority.

5. Earlier in that report there was what transpired to be, in Ms B’s opinion, a very significant part of her interview with the child.  At [116] in the report there appears as follows:

   [The child] explained he wanted to live in Canada because “all the things I have here are better over there.  I have friends here but not many.  I have lots in Canada.  They live near mum.”  Significantly, [the child] continued “I just feel like they love me more.  I don’t mean that.  There is nothing really.  I just like it.”

6. Ms B was of the opinion that that was a particularly significant utterance by the child because of the correction of himself in relation to feeling more loved by the maternal family than the paternal.  She said this was the window into the true mind of the child.  Ms B is well qualified and experienced to give those opinions.

7. Dr R also re-interviewed the father and the child.  In his interview with the father, the father acknowledged that the child “does feel like he is a prisoner here.”[19]  When he observed the father and the child together, he noted that the child “seemed calm although he was quite reserved.”[20]  Later Dr R “asked [the child] what he enjoyed doing with his father and with [his stepmother] and his response was, “nothing.”  [The child] looked blank in his expression.  [Ms W] and [the father] looked a little frustrated with [the child’s] response…”  Later in the interview the child said to the father and [his wife] “I felt annoyed in Canada when I talk to you.”

   [19]Line 473.

   [20]Page 15.

8. In that part of his report which deals with his opinions, Dr R said as follows:

   [The father] has however struggled with [the child’s] perception.  [The child], I would agree has been the proxy advocate for his mother.  He does argue his mother’s case.  He feels responsibility for his mother.  Its been difficult for [the father] to deal with this issue where [the child] feels that his father is preventing [him] from being with his mother.  It does appear that [the child] has difficulty with a split sense of loyalty where he feels that he does need to be an advocate for the mother and in order to be with the mother he needs to be emotionally distant from the father.

9. In her oral evidence, Ms B emphasised that the child has a lovely relationship with both of his parents and step-parents and was at ease with both of them.  She says that he loves both parents and both of them love him.  However she drew an analogy of a soldier crossing no man’s land between trenches in World War One: in the trenches the soldier is safe, but in no man’s land he is exposed to fire from both sides.  She thought that the child was analogous to that soldier.  Again, I give that opinion weight.

10. Ultimately I am satisfied that the child has a secure and meaningful relationship with the father from which he derives nurture and support.  However I am satisfied that the relationship is characterised by the child feeling torn between that relationship and his relationship with his mother.  That said, I accept Dr R’s opinion to the effect that he believes “it is likely that the child feels equally close to both parents and that in fact, it should be regarded that there is no preferred parent…”[21] 

    [21]Affidavit sworn 23 September 2016 p 27.

The mother

1. There is no dispute between the parties that the child has a good relationship with his mother.  That is scarcely surprising.  He lived with her primarily for the first five years of his life, and there is agreement that, in consequence, his primary attachment was with her.

2. In his affidavit the father conceded that the child “is always looked after in Canada by [the mother] and their bond remains very strong.  [The child] is always excited to note that he is about to be spending time with [the mother] in Canada.”[22]  Later he continued “[the child’s] continued close and loving relationship with [the mother] and his family in Canada has never been in dispute between the parties.”[23]

   [22]Paragraph 79 of affidavit filed 2 September 2016.

   [23]ibid paragraph 82.

3. This has been consistently the observation of both Dr R and Ms B.  However both of those professional witnesses have expressed some concerns. For instance Dr R in his affidavit sworn 23 September 2016 said:

   It would appear that [the child] does feel a sense of loyalty and responsibility for his mother.  His behaviour seems to indicate a degree of discomfort and feeling a need to be acting as a proxy for his mother.  The mother does ask him questions about the father and he does make reports…  [The child] I believe is very concerned about the mother’s well-being and does want to support her.  There is a strong healthy relationship between the mother and child.  However, there also a sense that the child feels the need to advocate for the mother.[24] 

   [24]Page 21.

4. Ms B’s criticisms were a little differently focussed.  Her concerns were that the child has grown up for virtually all of his life against a backdrop of entrenched distrust and conflict between the parents.  She said “the impact for [the child] who is the person left to make adjustments as he moves between the households/countries.  He effectively lives a separate life in each country…”[25]  She is well qualified to give that opinion and I give it weight.

   [25]Paragraph 41 affidavit sworn 3 October 2016.

5. I am satisfied that the child has a good relationship with his mother, from which he derives comfort and nurture, but that the relationship is characterised by the child being aware of the mother’s desire that he live with her in Canada, and that he feels a great sense of sadness arising from the fact that he does not live with her.  A combination of that experience, together with his awareness of his mother’s sadness, causes the strength of expression of his wishes.

6. In so concluding I reject the mother’s evidence that she is able to shield the child from any knowledge of her sadness or wishes.  I accept Ms B’s oral evidence that is simply not possible in these circumstances, particularly given the high emotional awareness that the child has demonstrated over many years.  Again, she is well qualified to express that opinion.

NATURE OF RELATIONSHIP BETWEEN CHILD AND OTHER PERSONS

The father’s household

1. In the father’s household there is also Ms W, M and N.

2. The mother contends that Ms W “doesn’t seem to treat [the child] as a family member.”[26]  Further she says “[the child] has told us that [Ms [W]] speaks differently to him when she is in our presence, that she pretends to be loving and friendly with a tone while in our presence, though I say from my perceptions of her conduct, her actions are not believable.”[27]

   [26]Affidavit sworn 24 August 2016 paragraph 75.

   [27]ibid paragraph 76.

3. On the other hand the father says the child enjoys a close and loving relationship with Ms W.[28]  To like effect is the evidence of Ms W, who says that she and the child have “developed a deep and loving bond” since late 2009.

   [28]Father’s affidavit filed 2 September 2016 paragraph 86.

4. The professional observations are more in line with the father’s assertions.  For instance, in his first interviews, Dr R observed that “[Ms [W]] affectionately greeted [the child].  He seemed to respond positively to her.  He was quite reactive and responded warmly to [Ms [W]].”[29]  That said, there was a more reserved demeanour on the part of the child during the second interviews.[30]  In those Ms B noted that the child said that Ms W “did not do activities with him,”[31] but she later noted “[the child] presented as at ease with [the father] and [Ms [W]].  Conversation flowed readily, particularly from Ms [W] towards the boys.  There was no sign of hesitation in [the child’s] interaction with them.”[32]  She further noted that the child presented as respecting their authority.[33]

   [29]Page 17.

   [30]Affidavit filed 23 September 2016 p 15.

   [31]Paragraph 122.

   [32]Paragraph 127.

   [33]Paragraph 129.

5. I do not accept the mother’s evidence that the child is not treated as a family member by his stepmother.  I am not satisfied that she only pretends to be loving and friendly when in the presence of the mother, and I accept that the professional perceptions of the relationship are accurate as to the nature of it.  It is a sound step-parent and child relationship, from which the child derives comfort and nurture.

6. As to the paternal family siblings, the mother appeared to be even critical of that relationship.  She said:

   [Mr [S]] has told me that during handovers, [the child] does not interact or show a desire to interact with any of the siblings from Australia.  The Australian siblings in turn don’t seem excited to see him…[34]

   [34]Paragraph 77 affidavit 24 August 2016.

7. This is in conflict with the evidence of the remaining witnesses.  The father says that the child enjoys a close and loving relationship with his two Australian brothers.[35]  Moreover, there is detailed evidence from Ms W as to this matter, and particularly she says that the child “is an engaged and loving big brother.  He enjoys playing with younger children and shown a genuine interest in babies and their development.”[36]  In the succeeding paragraphs of her affidavit she gives specific instances of the involvement of the child with his Australian siblings.

   [35]Affidavit filed 2 Sept 2016 paragraph 86.

   [36]Affidavit 2 Sept 2016 paragraph 11.

8. This evidence is consistent with the observations of Ms B in the course of her second Family Report interviews.  She noted that the child “played comfortably on the floor with [M] and this appeared to be a familiar activity.”[37]

   [37]Paragraph 125.

9. It is interesting in this context to note that even though in the father’s home there is a spare bedroom, the child prefers to have M share his room.  I think this is a telling indicator of the relationship between the child and his Australian siblings.

10. I am not persuaded that the child has anything other than a typical sibling relationship with his brothers in Australia.  True it is that there is some significant age difference between them, but I am satisfied that it is nonetheless a good relationship.

The maternal household

1. In the maternal household there is also Mr Ss and four young children.  I am well satisfied that the child has a close relationship with Mr S.  Again this was not a matter that was in any real dispute.[38]  Moreover, it is consistent with the observations of the experts on several occasions.

   [38]Father’s affidavit 2 September 2016 paragraph 82 and Ms W’s affidavit filed 2 September 2016 paragraph 8.

2. There is one point to note however, and that is that the child refers to Mr S as “papa.”  This has been a source of some consternation for the father, because historically the mother has encouraged the child to use other paternal descriptors to describe Mr S.  Indeed some of the orders of Riethmuller FM specifically forbade the mother from permitting the description of Mr S by reference to two terms, but the mother then proceeded to invoke the term “papa” instead.  However the expert evidence is plain that in fact the child well understands who his biological father is, and well understands that Mr S is his step-father.

3. I should say that it appears as though Mr S tends to engage in more sporting activities with the child than does the father.  That may lie in the fact that Mr S himself has a high level sporting background.  I am well satisfied that the child has a good relationship with his stepfather, and derives comfort and support from it.

4. As to the Canadian siblings, there is no dispute that the child has a good bond with them.  Again however, there is a significant age gap between the child and the eldest of his Canadian siblings.  Nonetheless, within those restrictions, the relationships are obviously sound and important to the child.

BENEFIT FROM MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION

Overview

1. Both parties contended that the child would benefit from a meaningful relationship with the other, however each appeared to hold some reservations as to whether the other was genuine in that expression.  For his part the father thought that the mother did not really believe that the child would benefit from a meaningful relationship with him, as her conduct in the past was inconsistent with such a belief.  For her part, the mother believed that the father sought to control her and the child, and did not genuinely see benefit in the child having a meaningful relationship with her.

The father

1. The criticism which the mother makes of the father is that he is an obsessive person who seeks to control others, rather than having any empathy for their needs and wishes.  The father denies that he is of a controlling nature, but did not seriously dispute that he has obsessive tendencies.  Certainly that was the unchallenged evidence of Dr R.  However an analysis of the instances which the mother gave of the father allegedly seeking to control her and others were really little more than occasions when she did not get her way.  Her definition of controlling appeared to be maintaining a rigid bargaining position, however the cross-examination of her in relation to that demonstrated that her perception of the father’s rigidity was generally unfounded, in that he had demonstrated flexibility on numerous occasions in the course of the parties’ negotiations.

2. I am not persuaded that the father is of a controlling nature, although I accept that he is focussed on detail and is conscious of the need to have specificity in the parties’ arrangements, given his perception of the history of the mother having sought to exploit ambiguity in orders in the past, or indeed not having complied with orders at all.

3. Dr R’s evidence was that the father had always remained very child-focussed, and that, as with the mother, he was both high functioning and a capable parent.  He further was of the view that the child is receiving a very high level of care from the father and Ms W, who are both intelligent, insightful people, trying to support the child in the best way they can.[39]

   [39]Report of 23 September 2016 p 24.

4. This was consistent with the observations of Ms B, however she also noted that during teenage years, developmentally this is a period when boys generally look to their fathers as role models.[40]

   [40]Second Family Report paragraph 156.

5. This evidence persuades me that indeed the child would benefit from a meaningful relationship with the father.

6. As to how it might best be facilitated, it was uncontroversial that frequent contact with both parents in their households would be the best means of facilitating those relationships.[41]

   [41]Second Family Report paragraph 159.

The mother

1. It was not in contest that the child would benefit from a meaningful relationship with the mother, and indeed both the father and Ms W were almost effusive in their recognition of the benefits which the child obtains from the relationship with his mother.  Again I am satisfied that the best means of facilitating that relationship would be by the child spending regular time with her and her household.

EFFECT OF RELOCATION TO CANADA ON CHILD

1. This issue is considerably linked with the issue of whether the mother would facilitate a meaningful relationship between the child and the father.  That is because if the child were to relocate to Canada, and did not maintain a meaningful relationship with the father, then the consequence would be that he would likely lose his relationship with the father and the paternal family more broadly.  That is certainly the father’s concern and the nub of his case.  For her part, the mother denies that she would not facilitate a relationship, and that is a matter I will consider when addressing issue 9.

2. However even if the mother did facilitate a meaningful relationship between the child and the father from Canada, there nonetheless would be other effects on the child of relocation.  As Ms B observed, the child would then be living in a different climate, be in a different school system, and would not have as ready an access to his father during his teenage years as he would if he were living with him.  Moreover, her concern was that the child’s expressed preference for living in Canada was based upon him only having spent holiday time there, and that he has not attended school or ever had an ordinary daily routine there.

3. On the other hand there are plainly positives associated with a move to Canada.  The most obvious of those is that indeed the child has now, over many years, expressed a consistent wish to live there.

4. In his report of 18 November 2014, Dr R opined as follows:

   I believe that [the child] is quite sad and distressed about not being able to live with his mother.  He has a great sense of loss and yearning.  Although not overtly distressed or dysfunctional, I do believe there is a deep sense of sadness…

   Whilst I don’t believe there is a diagnosable psychiatric disorder such as generalised anxiety disorder or detachment disorder.  There is an ongoing sadness and dysphoria that the child is experiencing.  Whilst the Skype sessions are keeping the relationship with the mother alive, it is also reminding him of what he is missing out on.

5. By the time of the second interviews, as I have already observed, the child demonstrated greater reserve in interacting with the father.  However he plainly expressed the wish that he wanted to live with his mother in Canada, and that he wanted to spend only holiday time in Australia with his father.  Dr R opined that the weight that should be given to those wishes was reduced, because of his view that the child was advocating for the mother, however plainly the child nonetheless does genuinely hold those wishes.

6. I am satisfied that, at least in the short term, there is likely to be considerable resultant happiness for the child in moving to Canada, because it would be the fulfilment of a long held wish, which he has fervently expressed from time to time.  He would no doubt also perceive that by doing so he had made his mother happier, which may also provide him with some additional comfort.

LIKELY EFFECT ON RELATIONSHIP WITH FATHER IF RELOCATION

1. Plainly the child’s relationship with the father would be significantly curtailed if he lived in Canada, even if the mother were to facilitate it.  The time which the child spends with his father would principally be block periods in Australia of time, during Canadian school holidays.  They are unlikely to invariably align with Australian school holidays, and hence the opportunity for the entire paternal family to engage in activities, if his Australian siblings were at school, would be restricted.  Moreover, unless they were aligned with the university academic year, or the father was able to nonetheless obtain leave during semesters, the father may not be fully available to the child.  The mother also proposed the father spending up to six weeks per year during school term time in Canada.  Whether the father, with or without his family, could avail themselves of that time, was unexplored on the evidence.

2. True it is that there would be the opportunity for the child to maintain Skype communication with the paternal family, however the unchallenged and worrying fact is that the child has demonstrated a great reluctance to engage with the paternal family from Canada via Skype, or any other means.

WOULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. A large number of emails between the parties were in evidence before me.  It is plain that email is the main means of communication between them, no doubt because it does not allow differing interpretations or constructions on what was said in a conversation.  However it appears as though both parties adopt a relatively rigid and inflexible approach to their joint decision making.  Further the communication is characterised by instances when one party does not engage promptly in communication in relation to an issue (for example the mother’s failure to respond in a timely manner to the father in relation to the selection of a high school for the child in 2017) or other occasions when unilateral decision is made by one of the parties and communicated to the other as a fait accomplait.  An example of that is the unilateral decision of the mother (albeit also involving Mr S) to retain the child in Canada for an additional few days in January 2016.

2. The difficulty for the parties is that they remain focussed on their conflict, and not the child.  That is the plain evidence of Ms B, and I accept it.  It is more about point scoring and achieving tactical victories than genuinely trying to work together to achieve a compromise in the best interests of the child.

3. Moreover there are some matters which the parties simply are incapable of agreement upon.  The most obvious of those is religion.  The mother is determined to have the child raised as a devout Catholic; the father has no interest in religion and describes himself as an atheist.  It appears as though the child only practises his religion when he is with the mother in Canada, and otherwise does not attend church or otherwise religiously engage in Australia, save that the mother uses her Skype sessions with him to have family prayers (accepting that they appear to be silent).

4. Whilst I have no doubt that both of the parents are intelligent and perfectly capable in their own respects, the difficulty only arises when they are required to interact with each other in relation to the child.

5. Part of the problem no doubt lies in the very poor view of the father which the mother holds.  As I have already discussed, in her trial affidavit she described the father as having “an unhealthy and ruined personality,”[47] said that there were “psychological deficiencies in [the father’s] personality,”[48] and that the child continuing to live in Australia “would have a negative effect on his mental development and his understanding of his sense of self and worth.”[49]

   [47]Paragraph 141.

   [48]Paragraph 131.

   [49]Paragraph 103.

6. In this respect the mother’s oral evidence under cross-examination of her views of the father was illuminating.  Initially she attempted to assert that she had no opinion in relation to the father, which was plainly a dishonest answer.  When confronted forcefully with some of the more colourful ways in which she has  previously sought to blacken the father, she ultimately conceded that she had a very low opinion of him, and particularly thought that he had nothing to contribute to the parenting of the child.  To this is allied her view (accepting she equivocated slightly under cross-examination) that the child does not love the father, nor does the father love the child.  It can be seen that with those views, the mother would not see that the father had anything to contribute in relation to joint decision making, and that in fact she would only see worth in her own views and opinions.  That is consistent with how she has operated to date.  There is no reason to think that will change.

7. Ms B indicated that in her view, equal shared parental responsibility would be an unworkable “muddle.”  I accept that evidence.  To the extent there is some suggestion she is not qualified to express such a view, I reject it.  Whilst to date, with a great deal of effort, conflict and time, the parties have been able to achieve joint decisions in relation to the child, it has, in reality, been an unworkable muddle thus far.

8. I am not satisfied that the parties have a communication regime which would support equal shared parental responsibility, or more particularly, enable them to discharge their obligations under s 65DAC of the Family Law Act in a timely manner.

CAN THE CHILD PERMANENTLY RESIDE IN CANADA

1. This issue evaporated during the course of the trial.  It is clear that the child can permanently reside in Canada, and the lawyer called by the mother in relation to this, Mr Lawson, was not seriously challenged as to his opinion to this effect.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed the primary considerations and a number of the additional considerations, when discussing the issues. However by reference to the individual considerations in s 60CC, I provide further commentary as follows.

2. The child has consistently expressed strong views that he wishes to live with the mother in Canada.  However the question is what weight those views should be given.  In this respect in his second report, Dr R recommended as follows:

   In essence, I don’t support weight being given to the child’s express wishes.  I believe that he is advocating for the mother because he is being persuaded that there is a sense of unfairness in the situation for her rather than considering necessarily what is in his own interests.  This is therefore clouding his view.

   In my professional opinion I believe it is likely that the child feels equally close to both parents and that in fact, it should be regarded that there is no preferred parent …”

3. Ms B’s evidence was to like effect.  Particularly in her oral evidence she returned, time and time again, to the quote which she made of the child at paragraph 116 of her second Family Report: “I just feel they love me more.  I don’t mean that.  There is nothing really.  I’d just like it [ie] living in Canada.”  She said this was the significant thing, in that it afforded a true insight into the child’s feelings.

4. Moreover she emphasised that the child’s experience in Canada is of holiday time only, without any school or general ordinary routine.  That contrasted with his life in Australia largely revolving around school and routine.

5. As to this there was some telling evidence from the mother.  She agreed that the family in Canada tries to save up any interesting or exciting activities for when the child is there.  I have little doubt that from the moment he steps of the plane, he is immersed in love and affection, and is the centre of everyone’s attention for all of the time that he is in Canada.  In effect, the mother seeks to do everything in her power to make the relatively short periods of time that the child spends in Canada as significant, memorable and fun as is possible.  Inevitably that would not be the sort of experience which the child would have if he were living there permanently, particularly on the mother’s ultimate proposal which would see him spend much of his holidays in Australia.

6. Further, there is the somewhat disturbing evidence about the child’s habit of praying to live in Canada.  Whilst it may be the case that the mother has not actively encouraged him so to pray to live in Canada, she certainly has not discouraged him in that respect either, nor has she sought to adequately comfort him in relation to the non-fulfilment of that wish, at least to date.  Rather it appears as though she has been content for the child to believe that fervent prayer can effect outcomes.  That the child likely believes that, is demonstrated by the mother’s evidence that he initially prayed for a sister to be born in Canada, which occurred, and then prayed for a brother to born in Canada, which again occurred, which can only have reinforced to him the connection between his prayers and the outcome.  Whilst I make no comment in relation to the efficacy of prayer, there is something disturbing about a child being burdened with a sense of responsibility that their prayers can determine an outcome.  Moreover, and at the very least, the child must perceive that the mother supports him in this desire to live in Canada, and further, that she supports his decision to pray to achieve that outcome.

7. All of that combines to persuade me that the weight that I should give to the expression of wishes by an intelligent 11 year old boy is considerably less than it otherwise would be.

8. It appears as though the mother has made little contribution to the costs of raising the child in Australia.  I place little weight upon that in the circumstances, particularly given that it appears as though her household has less income than the father’s, and has more children.

9. Plainly, since the mother lives in Canada and the father in Australia, there is a practical difficulty in expense in the child spending time with each parent as regularly and for such periods of time as would be optimal.  However with the advent of Skype, the practical difficulty in communication is much reduced, accepting however that there are time differences between the countries which do place some practical impediment upon that communication.

10. Plainly it would be preferable to make an order least likely to lead to further proceedings in relation to this child.  It is troubling that already in the child’s life the parties have now had three trials and two appeals, and have been engaged in litigation in relation to him for virtually all of his life.

PARENTAL RESPONSIBILITY

1. The following points are in favour of equal shared parental responsibility:

   ·The parties have managed, albeit tardily and with a great deal of conflict and effort, to achieve joint decision making to date;

   ·Both parents have much to offer the child in relation to decision making, based upon their intelligence and life experience;

   ·If the parties could genuinely exercise equal shared parental responsibility, it would doubtless benefit the child, as each of them have much to offer him. 

2. On the other hand, the following tells against an order for equal shared parental responsibility:

   ·The parties’ communication is focussed upon conflict and achieving points or victory over the other, rather than really focussed upon the child, resulting in the present “muddle” referred to by Ms B;

   ·There are areas of intractable disagreement between the parties, of which religion is the most notable;

   ·It is unlikely that the parties would be able to come to a mutual decision if there was an urgent circumstance that arose of some moment in the child’s life, for instance, a medical emergency;

   ·The mother appears to have a very low view of the father, and does not regard him as having much worth as a human being, and hence unlikely to genuinely value or accommodate his view in the exercise of equal shared parental responsibility.

3. Weighing those factors, and notwithstanding the presumption which s 61DA requires me to apply in this case that it is in the best interests of the child to have equal shared parental responsibility for him, I am satisfied that it has been rebutted in this case, in that I am not satisfied it is in the best interests of the child for there to be equal shared parental responsibility. Logically the parent with whom the child principally resides should have that right. As shall be seen shortly, I have determined that that party in this case should remain the father. That therefore raises the question of whether the question of religion should be reserved to the mother, however the following tell against that:

   ·The father is unlikely to compromise his own opinions by engaging in any religious practices, or supporting the child in his;

   ·There is a good possibility that if the mother were to be given parental responsibility in relation to religion, it could lead to practical conflicts, for instance, if there is a clash of times or dates in relation to some religious occasion, on the one hand, and other events in the child’s life, on the other;

   ·It is likely to continue conflict between the parties over the child.

4. Therefore I am ultimately satisfied that it is in the child’ best interests that the father should have sole parental responsibility.

WITH WHOM SHOULD CHILD LIVE

1. From the mother’s perspective, there are two critical facts in this respect of this issue.  The first is that the child has consistently expressed a desire to live with her in Canada.  The second is that the child is sad at not being able to live there, which is supported by Dr R, who described him as experiencing “ongoing sadness and dysphoria.”[50]  However as has been seen, I am not satisfied that the child’s wishes deserve the weight which they otherwise would, and I am not satisfied that the mother has tried to help ease the sadness of the child to the extent that she could, in that she has not really sought to seek to deal with his wishes, other than to support them.  In this respect it is telling that notwithstanding the fact that in 2010 the mother lost the court case which determined where the child would live, nonetheless she has not accepted the outcome, but has maintained a wish, which I am satisfied she has communicated to the child, that in fact the child should live with her in Canada.  In a real sense, she lost the battle, but regarded the war as continuing.

   [50]Report filed 18 November 2014 p 24.

2. The following points are in favour of the mother’s proposal, or weigh against the father’s:

   ·The child has consistently and strongly expressed a wish to live in Canada with the mother, and only holiday in Australia with the father;

   ·The child has been sad at being denied the prospect of living in Canada, and there is reason to think that sadness would, at least in the short term, and perhaps medium term and longer, abate if his wishes were granted;

   ·It is likely that the child will continue to experience sadness if he does not live in Canada, which could lead to adverse psychological outcomes;

   ·The child has an excellent relationship with the mother and the maternal family more broadly;

   ·The child would benefit from spending more time with his mother and maternal family, and living with her would be the best means of facilitating it;

   ·The mother asserts that she would facilitate a meaningful relationship between the child and the father in Australia (although I do not accept that).

3. On the other hand the following points are in favour of the father’s proposition, or contrary to the mother’s:

   ·The child has now been living in Australia since November 2009, and with the father since December 2010;

   ·The child has a good relationship with his father and with the paternal household more generally;

   ·The child would benefit from maintaining a meaningful relationship with the father, and it would best be facilitated by him continuing to live with him;

   ·Particularly since the child is male, he is likely to benefit from his father’s role modelling during his teenage years, although Mr S would likewise be an outstanding role model;

   ·The child is doing well at school, and has been accepted into an excellent high school in Brisbane;

   ·Although the child does have general sadness and dysphoria at not living in Canada, nonetheless, once he settles down from spending time in Canada, he has gotten on with his life in a generally unremarkable way;

   ·The father is, in my assessment, likely to facilitate a meaningful relationship between the child and the mother, as is demonstrated by the relationship which the child presently has with her;

   ·The mother is unlikely to facilitate a meaningful relationship between the child and the father when he is in her care, as has been amply demonstrated to date;

   ·The child has never experienced day-to-day life in Canada, but rather only relatively short, intense, activity filled, periods of holiday time, and there is good reason to think that his expressed preference for living there is therefore based upon his lived experience, rather than him having envisaged what in fact day-to-day life would be like in Canada.

4. Weighing those factors in the balance in my assessment sees the best interests of the child in continuing the present arrangement of living in Australia.  Particularly telling in that assessment is the conclusion which I have reached that the father is better likely to facilitate a meaningful relationship between the child and the mother, than the mother would be with the father.

5. I do not overlook the fact that the mother is again unlikely to regard this as the end of the war, but rather merely another lost battle.  In a sense it is likely, therefore, that the child will continue to be unhappy at not living in Canada, and to remain dysphoric.  That is unfortunate, and it is much to be hoped that the mother will in fact accept this outcome and support the child to accept it as well.  However I should make it plain that I have not concluded that she is likely to, and therefore have reached my conclusion on that pessimistic assumption.

6. There will be an order that the child live with the father in Australia.

TIME AND COMMUNICATION WITH MOTHER

1. The father’s proposal in this respect changed during the course of the trial.  That was because, when she was re-called, Ms B changed her recommendations from, in effect, a continuation of the present regime, which sees the child spend time with the mother and maternal family in Canada and return to Australia, to a recommendation that the child spend time with the mother and maternal family in Australia.  Whilst the court did not have the benefit of a written report supporting those changed recommendations, her oral evidence was that such a recommendation was justified on the basis that the changeovers are simply too distressing for the child, and there is a real risk that he may not return from Canada on some occasion in the future, necessitating even further litigation in relation to him.

2. The mother did not articulate any proposal for time if the child did not live with her.  I suspect had her counsel done so, it might have been to maintain the current regime, but I cannot be sure.  Nonetheless I will consider that option.

3. The following points are in favour of a continuation of the present regime of the child spending holiday time with the mother in Canada:

   ·Although not without incident, including recently, and on occasion serious incident, that regime has now been in operation for in excess of five years (accepting that for 18 months, the child was withheld from such travel);

   ·It is the most affordable of the alternatives, in that it only requires the child, and perhaps, depending upon his age and maturity, one adult to accompany him on the travel;

   ·It enables the child to have an experience of the maternal family’s life in Canada;

   ·The mother and Mr S have four, (and soon to be five) young children, and travelling to the other side of the world with them for any period of time is likely to be a considerable ordeal;

   ·It may be that the costs of the father’s proposal are so great that the mother may not travel at all to Australia (noting that she has not travelled solely to visit the child since 2014) and therefore there is a risk that the child will suffer a markedly reduced relationship either with the mother, or with other members of her family.  That said, the father proposes $10,000.00 be paid by him annually for travel, and the mother’s proposal was that she would bear all costs of the child’s travel if he lived with her, so plainly some significant funds are available;

   ·In any event, the time in Australia would not be in the maternal home, or allow the child to participate in her households’ everyday life. 

4. On the other hand the following points are in favour of the father’s proposal, or alternatively, weigh against the continuation of the current regime:

   ·The child has been markedly distressed on several handovers;

   ·There is no reason to think that will change, as the mother is unlikely to more actively support the child moving back into the father’s care, when it is contrary to her wishes, and what she believes to be the child’s wishes and best interests;

   ·There is a real prospect that the child will simply refuse to board a flight in Canada in the future, in consequence of which the relationship with his father would be imperilled, and perhaps lost, or further litigation required;

   ·The father proposes contributing $10,000.00 towards the costs of the mother’s annual travel, which is a considerable sum, and as I have observed, the mother must have funds too, given her primary proposal to fund four sets of travel for the child each year.

1. I am also conscious that the child may well see the restriction on being able to experience his maternal family only in Australia, as a form of punishment, or at least a loss of privilege.  That would be unfortunate.  Moreover, I do give weight to the prospect of a diminished, and perhaps markedly diminished, experience by the child of the mother and maternal family, if it is restricted to holiday time in Australia.  Nonetheless weighing all the matters in the balance, I am satisfied that the proposal of the father and Independent Children's Lawyer is in the child’s best interests and will so order.

2. As to communication, the parties were in substantial agreement.  The only area of dispute between them was in relation to whether Skype communication should be twice a week or three times a week.  It should be two times as proposed by the father.  Such frequency is sufficient to maintain the mother and her other children as a regular, ingrained feature of the child’s life.

OTHER ORDERS

1. There was a slender dispute over the precise content of some relatively incidental orders, such as whether there should be an airport watch list order.  It is unnecessary to deal further with that dispute save to say that I am satisfied that the orders proposed by the father are in the child’s best interests, and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.   

I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 December 2016.

Associate:

Date: 22 December 2016