McCall and Clark (No.3)
[2010] FMCAfam 1443
•23 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCCALL & CLARK (No.3) | [2010] FMCAfam 1443 |
| FAMILY LAW – Children – residence – mother in Canada and father in Australia. |
| Child Support (Assessment) Act 1989, Pt.6A Domestic and Family Violence Protection Act 1989 (Qld) Evidence Act 1995, s.140 Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 65C, 65D, 65DAA, 68LA |
| B v B (Re Jurisdiction) (2003) FLC ¶93-136 Browne v Dunn [1893] Co Rep 67 Collu and Rinaldo [2010] FamCAFC 53 Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286; (2006) 36 Fam LR 422; 206 FLR 212 H & W [1995] FamCA 30; (1995) 18 FamLR 788; (1995) FLC ¶92-598 LC v TC [1998] FamCA 47 Marsden and Winch (No.3) [2007] FamCA 1364 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, 41 Fam LR 483 MRR v GR [2010] HCA 4; (2010) 240 CLR 461; (2010) FLC ¶93-424; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531 (Rosa’s case) Mulvany v Lane [2009] FamCA 76 MWJ v R [2005] HCA 74; (2005) 80 ALJR 329 R & R: Children's wishes (2000) FLC ¶93-3000 Smith and Smith (1994) FLC ¶92-488 U v U (2002) [2002] HCA 36; (2002) 211 CLR 238; (2002) FLC ¶93-112; (2002) 191 ALR 289; (2002) 29 Fam LR 74; 76 ALJR 1416 |
| Applicant: | MR MCCALL |
| Respondent: | MS CLARK |
| File Number: | BRC 4776 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 25 & 26 November 2009; 28 & 29 July 2010; 13 September 2010 |
| Date of Last Submission: | 23 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cooper |
| Solicitors for the Applicant: | Barry Nilsson Lawyers |
| Counsel for the Respondent: | Ms Carew of Counsel |
| Solicitors for the Respondent: | DA Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Andrew of Counsel |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous orders with respect to parenting be discharged upon the mother moving to Canada.
That the parties have equal shared parental responsibility for the child [G], born [in] 2005
That upon the mother moving to Canada:
(a)The child reside with the father;
(b)The child spend time with and communicate with the mother at all reasonable times, as may be agreed, and failing agreement,
(i)In Canada, no less than 7 days after the mother providing to the father certification from the Supreme Court of British Columbia that these orders have been recognized by that court, or mirror orders made in that court:
A. For each of the Australian mid year and school vacation periods;
B. For each of the Australian school vacation periods between mid year and the long summer vacation;
C. In 2011 and 2012 for the vacation period between the Australian long summer vacation and the mid year vacation;
D. For the whole of the Australian long summer vacation in odd numbered years;
E. For the last 3 weeks of the Australian long summer vacation in even numbered years.
(ii)For any period of up to 3 weeks in Australia (other than the first 3 weeks of the long summer vacation in even numbered years), provided that:
A. the mother ensure that the child attends school for all for the usual school days during the period; and
B. The mother provides the father with 6 weeks notice of her intention to spend time with the child; and
C. the periods do not exceed one half of the time in any six week period.
(c)That unless otherwise agreed in writing, the child have telephone or Skype webcam contact (at the mother’s option) with the mother each Sunday, Tuesday and Thursday, and that:
(i)Such contact be for a period of at least 30 minutes
(ii)Such contact be between the hours of 6am and 8am or 5pm and 8pm (Queensland time), to be nominated in writing by the mother at least 7 days in advance; and
(iii)That the father maintain a land line telephone number and an internet connection, and a computer with a webcam and capable of running Skype.
That whilst the child is spending time with the mother, she ensure that the child telephone the father each Sunday, Tuesday and Thursday between the hours of 6am and 10 pm Queensland time for at least
15 minutes.
That the mother meet the costs and expenses of obtaining the recognition of these orders or mirror orders by the Supreme Court of British Columbia.
That for the purpose of the child’s travel to Canada after the mother has moved to Canada:
(a)
the mother, or her current partner collect the child from the father at a place nominated by them in Brisbane, and the father recover the child from Canada, at a place nominated by him in Vancouver, at the conclusion of the contact period, which shall be at least
48 hours before the child must commence school.
(b)That the father meet the entirety of the child’s airfare for the mid year and long summer vacation travel; and
(c)Notwithstanding orders 6(a) and (b), for the first term holiday in 2011 the father deliver the child to the mother in Canada at the commencement of the holiday period and the mother return the child to the father at a place nominated by him in Vancouver at the end of the holiday period.
That the parties be restrained, and an injunction issue restraining them from:
(a)Allowing or permitting the child to be known as and/or referred to by any name other than [G];
(b)Taking the child to a country that is not a signatory to the Hague Convention on international child abduction;
(c)Travelling with the child to a country other than Australia or Canada (other than a stopover of less than 24 hours in New Zealand or the United States of America as part of the travel between Australia and Canada), without first providing the other party notice in writing (including an itinerary) at least 6 weeks prior to any travel, and copies of the return air tickets at least 3 weeks prior to the proposed travel.
That the mother be restrained, and an injunction issue restraining her from:
(a)Causing or permitting the child to refer to anyone other than the father as ‘Dada’, ‘Daddy’, or ‘Dad’;
(b)Applying for or obtaining a passport for the child without first obtaining the written consent of the father.
That the mother forthwith take all reasonable steps to have the father’s details added to the child’s Sri Lankan birth certificate, and provide a certified copy of the revised birth certificate to the father, and in the event that this takes longer than 3 months, provide copies of all correspondence and forms provided to or received from the Sri Lankan authorities with respect to the birth certificate.
That the Independent Children’s Lawyer deliver to the father’s solicitors the child’s Sri Lankan passport to be held by them until:
(a)The passport expires, and thereafter to deliver same to the Sri Lankan embassy;
(b)The passport is requested or demanded by the Democratic Republic of Sri Lanka, and upon such request or demand deliver up the passport to the Democratic Republic of Sri Lanka;
(c)Directed in writing by the parties to otherwise deal with the passport.
That the mother and father notify the other within 24 hours of any change of address or change of telephone number, Skype address or email address.
That the parties notify each other of the names and address of any treating medical practitioner or organisation for the child, and provide same with a written authority to discuss the child with the other parent, and that even in the absence of such written authority being provided, that any treating medical practitioner is hereby authorized to release the child’s medical information to the other parent.
Each parent inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.
That the parents consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent in writing about the decision to be made;
(b)they shall consult with each other in an attempt to find terms on which they agree; and
(c)they shall make a genuine effort to come to a joint decision.
That all outstanding applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McCall & Clark (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 4776 of 2007
| MR MCCALL |
Applicant
And
| MS CLARK |
Respondent
REASONS FOR JUDGMENT
The parties are unable to resolve the care arrangements for their child G born in 2005.
History and background to the current proceedings
The history and background to this case is complex as the parties have not lived together since around 5 months after the birth of the child. The mother has lived in four different countries during the course of the proceedings, married, and is pregnant to her current husband. However, a history of the matter is important to achieve an understanding of the current position of the parties and the child.
The mother was born in 1982, the father in 1974. The mother is now 28 and the father 36 years of age.
In the first judgment in this matter, FM Slack conveniently summarises the background facts up to the time of that judgment in 2007:
7. The parties commenced a relationship in June 2004 and separated in December of 2005.
8. The parties have the one child together, [G] ….
9. After [G]'s birth the parties lived together in Brisbane, Queensland. The maternal grandmother stayed with the parties for a time to assist the mother to care for the child. The father assisted in the care of [G] when he was not at work.
10. On 9 October 2005, the mother departed Australia with [G]. At that time, it was the intention of the parties to marry in Dubai in December 2005. It was also the intention of the parties, after their wedding, to return to live in Brisbane in January 2006.
11. The relationship broke down between October and December 2005. In December 2005 the relationship ended and the wedding plans were terminated.
12. The mother has since remained living out of Australia. The mother lived for a time (approximately 6 months) in Sri Lanka but otherwise she has resided with the child in the United Arab Emirates (hereafter “Dubai”) [Until moving to Canada].
13. The child is apparently in good health. It is not alleged by either parent that the child has any special needs. He has developed appropriately and appears to be well cared for.
14. The child is currently cared for, in the main, by the mother. When she is at work during the week the child is cared for by … (the maternal grandmother’s cousin). [although the mother no longer works]
15. The current arrangements [as at 2007] of the mother are that she lives in Dubai in a one bedroom unit. She shares the unit with her brother. The mother shares a bedroom with the child, and the child currently sleeps with her in the same bed. The mother is employed as a [omitted] in Dubai. The mother is of Sri Lankan heritage. Her parents lived and worked in Dubai but are now living in Sri Lanka. The mother has a visa to live and work in Dubai and that visa will continue until 2010.
16. The current arrangements for the father are that he resides in Brisbane. He is employed as a [omitted]. He earns $75,000 approximately per annum and has life time tenure in his employment. He lives in Brisbane and he has not re partnered.
17. The mother proposes that her existing arrangements should continue into the long term, including that the child should continue to reside with her in Dubai.
18. The arrangement proposed by the father in the future would involve the child living in Brisbane and he hopes that the mother will choose to reside in Brisbane so that the child can have regular and ongoing contact with both his parents.
19. The father alleges that the mother was abusive and violent towards him during the course of the relationship. Those allegations, though, are contained in email correspondence between the parties. Although the allegation is made, that issue was not explored during the course of the hearing. Neither party submitted that there were ongoing issues of intimidation, harassment or violence. The parties though do not trust each other and have poor communication. Neither party submitted that there was any need to consider protecting the child from the prospect of being exposed to the risk of abuse neglect or domestic violence.
Since that time, the father’s circumstances have not changed, save that he has re-partnered and is now in a new relationship. The circumstances of the mother and G have changed considerably:
a)In December 2007 FM Slack made orders for G to live with the mother in Dubai.
b)In January 2008 the father appealed the orders of FM Slack.
c)In early 2008 the mother commenced a relationship with her now husband (a friend of her brother), a resident of Canada.
d)The appeal was heard in May 2008.
e)The mother married her husband in Sri Lanka on 9 January 2009, and advised the father she wished to move to Canada after the marriage.
f)In March 2009 the mother’s employment in Dubai is terminated, resulting in the loss of her residence rights in Dubai.
g)The mother unilaterally relocated to Canada on 18 April 2009 (without a temporary residence visa), notifying the father of her move on 1 May 2009.
h)The father commenced proceedings in early May seeking to enforce the orders of FM Slack.
i)On 29 May 2009 the Full Court set aside the orders of FM Slack, remitting the matter for a re-hearing in the Federal Magistrates Court.
j)In July 2009 a directions hearing was held and in August, orders were made by FM Jarrett for G to have contact with the father in Australia and for the preparation of a family report.
k)The re-trial was originally listed in September 2009 but delayed to October 2009 on the mother’s application.
l)The mother made an application for a permanent residence visa in Canada in September 2009 after being refused a temporary residence visa. At this time the mother says she finds out that leaving Canada would affect her visa application and therefore seeks to have the trial by video link. This is refused.
m)In November 2009 the father travelled to Canada to enforce FM Jarrett’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 G.
n)From November 2009 G has lived in Australia. The mother has threatened to leave Australia, but has not done so.
o)On 25 and 26 November 2009 a trial was held, at which point the mother’s case was that she wished to relocate to Sri Lanka as she had no residence rights in Canada. Flowing from this, orders for the father to have substantial time were made on an interim basis.
p)In early 2010 the mother applied to re-open the case on the basis that she wished to again pursue residence in Canada as a result on developments in her visa application in Canada.
q)Further evidence was heard on 28 and 29 July 2010 with respect to the mother’s case to relocate to Canada. Submissions were completed in September 2010.
I have omitted from this brief summary details of contact arrangements before the current interim orders as there is dispute around these events and they are discussed below.
The law
The power to make a children’s order is provided for in s.65d of the Family Law Act 1975. This power is subject to the effects of a variety of provisions in Part VII of the Act.
Either or both parents, the child, grandparents or ‘any other person concerned with the care, welfare or development of the child’ may apply to the court for parenting orders: see s.65C. In this case the parties are the parents of the children.
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B. In a case such as this it is important to revisit this section.
60B [Object of Part and Principles underlying it]
(1) [Object of Part] 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) [Principles underlying object] 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).
The Best Interests of the child
The court must regard the best interests of G as the paramount consideration: see s.60CA. When determining the best interests of the child, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of G’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child
having contactspending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:
(i)each of G’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
In Marsden and Winch (No.3) [2007] FamCA 1364 Warnick and Thackray JJ discussed the relationship between the primary and additional considerations in s.60CC, saying:
77. The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78. It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
Their Honours’ comments in Marsden were referred to with approval in Mulvany v Lane [2009] FamCA 76 at [84] by May and Thackray JJ, who also stated:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
As there is such a large array of factors that must be considered as a result of the terms of the legislation there is an inevitable difficulty in determining how to logically consider each factor. Recently, in Collu and Rinaldo [2010] FamCAFC 53 at [335] the Full Court said that ‘there is some attraction in the idea that perhaps the additional consideration in s.60CC(3) should be looked at before consideration of the primary considerations’, referring to the judgment of Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518.
In Collu’s case, the Full Court also reiterated the importance of making findings with respect to each of the matters relied upon by the parties (at [345]; see also Smith and Smith (1994) FLC ¶92-488; (1994) 18 Fam LR 55). As the Full Court said, this requires not only considering, weighing and assessing the evidence with respect to each matter but also assessing the significance of each matter and how the matters balance out (at [345]).
The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence]
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrases ‘family violence’, ‘member of the family’, and the terms ‘abuse’, ‘relative,’ and ‘step-parent’ are all given detailed definitions in s.4 of the Act.
Parental Responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
There is no dispute that orders should be made for equal shared parental responsibility in this case. There were such orders made in the past, and the circumstances of this case fall within the presumption in s.61DA.
Both parents are capable, well educated people able to make real contributions to the major decisions affecting G’s life. Both are eager to be involved in taking responsibility for his care and upbringing. Even without regard to the presumption in s.61DA, equal shared parental responsibility would be called for in this case.
Parenting Time
When deciding upon orders for parenting time, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65daa states:
65daa [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1) [Court must consider whether equal time is in the best interests of the child] If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60ca is that in deciding whether to go on to make a parenting order for G to spend equal time with each of the parents, the court will regard the best interests of G as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) [Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for G to spend substantial time with each of the parents, the court will regard the best interests of G as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60cc(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of G’s parents to facilitate, and encourage, a close and continuing relationship between G and the other parent (paragraph 60cc(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of G’s parents (paragraph 60cc(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13c to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In MRR v GR [2010] HCA 4; (2010) 240 CLR 461; (2010) FLC ¶93-424; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531 (Rosa’s case), the High Court addressed the relationship between s.65DAA and s.61DA, saying:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).
Section 65DAA is a set of criteria which must be fulfilled in cases where an order for equal shared parental responsibility has been made. As the High Court said in Rosa’s case:
[13] It is only where both questions [in s.65DAA(1)(a) and (b)] are answered in the affirmative that consideration may be given, under par (c), to the making of an order. … the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.
Importantly, the requirement of reasonable practicality ‘requires a practical assessment of whether equal time parenting is feasible’: Rosa’s case at [15].
In the context of this case, where one parent will be living in Australia, and the other in Canada, neither equal time, nor substantial and significant time is reasonably practicable. Nor could it be considered reasonably practicable to issue injunctions requiring the mother to live in Australia, in the context of this case.
Other Considerations
Whilst the best interests of G are the paramount consideration, it is important to note that this is not the sole or only consideration when making a parenting order: see the discussions in B v B (Re Jurisdiction) (2003) FLC ¶93-136 and U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 and the cases referred to in those judgments. In particular I note the comments of Hayne J in U v U that:
[170] … the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) ("the Act") makes plain [s 65E], the Family Court "must regard the best interests of the child as the paramount consideration", but that does not deny the fact that there are at least three persons who will be affected by the order that is made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.
Consideration of the rights and interests of the parents is also relevant, particularly the rights of parents to freedom of movement between states under the Constitution, but also the liberties adults generally enjoy in a free society.
Reasoning Process
In Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286; (2006) 36 Fam LR 422; 206 FLR 212 the Full Court considered the reasoning process that should be applied under the Act in its current form with respect to interim decisions: see para [82]. Having regard to the decisions in Rosa’s case, McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, 41 Fam LR 483 and Collu’s case this guide can be usefully adapted to final hearings as follows:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the hearing and making relevant findings about those issues;
c)considering the matters in s.60CC(3) that are relevant and making findings about those matters,
d)considering the matters in s.60CC(2), and
e)making findings as to what would be in the best interests of the child;
f)deciding what orders should be made about parental responsibility;
g)if s.60DAA is engaged, considering whether it is in the children’s best interests, and ‘reasonably practicable’ to make an order that G spend equal time with the parents, and if not equal time, substantial and significant time;
h)considering any other matters that are relevant to a decision under s.65DA.
Standard of Proof
The appropriate standard of proof in family law proceedings is the balance of probabilities, as set out in s.140 of the Evidence Act 1995:
140[Civil proceedings: standard of proof] (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; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In this case the mother made submissions that the solicitor for the father did not put all of the disputed matters to the mother in cross-examination. In traditional common law proceedings, where all evidence was that given orally in the witness box, the requirement to put any challenge to the witnesses’ evidence to the witness in cross-examination was essential to procedural fairness, otherwise the witness would not have a chance to respond to the challenge to their evidence (to answer the challenge). This principle of procedural fairness, well known as the rule in Browne v Dunn [1893] Co Rep 67, must be applied in the context of the particular case and not as an inflexible technical rule: see generally MWJ v R [2005] HCA 74; (2005) 80 ALJR 329 with respect to criminal proceedings).
In LC v TC [1998] FamCA 47 (FC) the principle was considered, and the Full Court said:
38. … it must be said that the rule in Browne v Dunn does not apply where the witness in on notice that the witness’s version of events is in contest. That notice may come from the pleadings or the other side’s evidence or the other side’s opening; it may even come from the general manner in which the case is conducted. IN general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one…
As a result, it is difficult to conclude that there is any denial of procedural fairness as a result of a cross-examiner not putting every point of difference between the witnesses, to the extent that it is apparent from the affidavit material: the very purpose of affidavit evidence is to put the parties on notice of the evidence to be led, and to reduce the time taken at trial.
The invocation of the rule in Browne v Dunn in this case appears to be no more than an attempt to make unassailable affidavit evidence of the mother (that not the subject of direct cross-examination) from any taint on her credibility or any preference for the evidence of another witness over her evidence. That is not the effect of the rule where the party is aware of the challenges to their evidence (in this case through extensive affidavit material). The argument is an overstatement of the more subtle arguments as to credit and fact finding that will commonly arise in cases with extensive affidavit material: to what extent will a trial judge accept or reject all or part of the evidence of the witness, in light of the material before the court.
Counsel are always presented with difficult strategic decisions in determining the extent to which they cross-examine on particular issues in order to allow the trial judge an adequate opportunity to assess the demeanour of a witness, either generally or with respect to particular issues. Ultimately, however, the fact finding must be undertaken on the evidence as a whole, and the rule in Browne v Dunn held in proper perspective as an application of the principles of procedural fairness.
Role of the ICL
In determining the matter I note the Independent Children's Lawyer's role under s.68LA of the Family Law Act 1975. The role of the Independent Children’s Lawyer (ICL) is to form an independent view based upon the available evidence, of what is in the child's best interests in these proceedings. The role of the Independent Children's Lawyer is to deal impartially with the parties, ensure the views expressed by the child are put before the Court, and to represent the best interests of G (although not being bound to act on the instructions from the child).
In that role the ICL diligently attended and observed and participated in the course and conduct of the trial.
Ultimately the ICL submitted that G should live in Australia with the father and spend time with the mother.
(a) The Proposals of the parties
The Father
In this case the proposals of the father have remained consistent: he seeks that G live in Australia so that he can have shared care, or at least as much time with G as possible. Whilst he does not believe that the mother would live in Canada should G live in Australia, he put a positive case of being the primary carer in Australia if the mother does not remain here. To the extent that the father is required to facilitate time with the mother in Australia or Canada he is prepared to do so. He remains apprehensive about G travelling to Canada due to the difficulty he had in enforcing previous orders for G’s return from Canada, but he is not fundamentally opposed to the prospect of G travelling.
The father’s case is that it is unrealistic for him to relocate to Canada. He is a [occupation omitted] in Australia. He has no connection with Canada. No evidence was led to show that he had any realistic prospects of obtaining residency rights in Canada, beyond some loose claims that he could [occupation omitted] in Canada. In the absence of specific evidence I accept that the father has no realistic prospects of relocating to Canada, whether he wishes to or not.
The father makes proposals for equal time if the mother does remain in Australia, and if not, for the child to have time with the other parent 4 times per year and regular electronic communication.
The mother
At the commencement of this trial the mother sought to relocate with G to Canada. However, it became apparent that the mother had no rights of residency in Canada, and nor did the child. As a result the mother altered her case to one of living in Sri Lanka with the child, with a view to bringing further proceedings once she obtained appropriate visas or permits to reside in Canada.
After the decision was reserved, at the end of the hearings in 2009, the mother obtained a visa to travel to Canada and the right to reside there pending the outcome of a spouse visa application. She also had evidence of the likely success of that visa application in Canada. As a result she sought leave to re-open her case and put her primary position as that of living with G in Canada. She abandoned the application in so far as it sought to have G live in Sri Lanka. Whilst the Sri Lankan option was abandoned, as will become clear from the reasons below, it was never an option likely to succeed in this case.
The mother and her husband gave evidence that he would not be able to obtain the same employment in Australia that he has in Canada as he has specific qualifications in the [omitted] industry. Until recently the mother had permanent residency rights in Australia. The mother’s husband had previously considered relocating to Dubai, although lack of employment prospects appears to have been the deciding issue. On the balance I find that the mother could have chosen to live in Australia, and that her husband was likely to have been able to move to Australia if he so desired. I accept that this would be quite difficult for him.
Ultimately, it is not a case where it could be considered ‘reasonably practicable’ for the mother to live in Australia, having regard to her own preferences and life choices, even if her husband could move here. Whilst the mother’s visa and residency arrangements were never particularly clearly explained she certainly had the option of living in Australia at least until recently. However, the mother has been intent on not residing in Australia since the parties separated.
The mother made it quite clear that she will not reside in Australia regardless of the residence of the child, and indeed will be back in Canada by now (assuming she acted upon her statement that she would return by the end of September 2010 as she is due to have a baby in mid February 2011). I accepted that this was her position and proceed accordingly. It transpires that she is still in Australia, however her position on relocating to Canada remains the same.
Whilst there was much discussion about the father’s ability to relocate, I am not persuaded that on balance it would be open to him to immigrate to Canada even if he wished to do so. He has no partner or family there, no residency rights, and no prospective employment. No visa or residence category was identified in evidence that would be open to him. I also note that the father does not see this as realistic having regard to his career and employment as a [omitted], which I accept.
The practical realities of this case are a choice between G residing in Australia with the father or in Canada with the mother. It is unrealistic to think that any relocation by the father to Canada would be in the foreseeable future. Similarly, with respect to the mother, unless she decides to stay in Australia once the final orders become a reality rather than an option she opposes. If that occurs Family Report is clear and I would be very surprised if the father did not implement a care arrangement in accordance with it. I do not propose to make orders on the basis of a hypothetical case. If, one parent were to move some time in the future, then the matter should be considered on the facts and circumstances at that time.
Both parties propose contact by telephone and webcam. Similarly orders are sought to advise the other party with respect to parenting decisions, medical needs and the child’s school progress.
With respect to physical contact the mother proposes that if G lives in Australia she have contact for 12 weeks per year – effectively almost all of the school holidays, with the father to meet around 75% of the travel costs. The father proposes that G have the long vacation, and mid school year vacation with the other parent, with the option of the other parent having any other vacation or weekend during the year with the child in his country of residence. Provided that the other parent can travel (noting the short term restrictions on the mother’s visa) the father’s proposals appear more child focused, as G has the opportunity of staying in his country of residence for some of the school holidays, and potentially seeing a parent between holidays if the parent is otherwise in the country.
The mother similarly proposes time during the school holiday periods. The mother proposed that the father have time for 2 weeks on four occasions per year and weekly electronic communication, if G lives in Canada. However, if G lives in Australia she proposed that she have physical contact for 12 weeks per year (practically all of the school holiday periods) and daily electronic communication.
Clearly the orders will need to be recognised in Canada, or mirror orders made, to ensure that they are enforceable in both Canada and Australia.
(b) The evidence and issues in dispute
The litigation in this case has a long and difficult history. G has lived in four different countries so far in his short life. Ultimately a decision must be made as to whether he lives with his father in Australia or his mother in Canada. Fortunately, both countries offer safe and supportive environments for their citizens, including good quality education and health services.
The central theme running through the dispute is the extent to which the mother is able to place G’s need for a strong relationship with his father ahead of her own needs balanced against the potential emotional difficulties for G if there is a change in primary carers from his mother to his father, in circumstances where the mother is living in Canada and the father in Australia. To decide the case under Part 7 requires broader consideration, however the central issue is very significant.
As a result there are a large number of specific events that have been the subject of evidence, which are discussed below.
The Evidence of the Witnesses
At the trial the mother relied upon her own evidence, the evidence of her current husband, and the evidence of a lawyer from Canada with respect to immigration. The father relied upon his own evidence and the evidence of his current spouse and Canadian lawyers. The Independent Children's Lawyer called the family report writer to give evidence. The evidence from Canadian lawyers was ultimately not controversial and need not be discussed separately.
The Mother’s Evidence
The mother gave evidence for some time. She did not present as a particularly forthright witness. Whilst I have taken into account her age (whilst she has a very youthful appearance, she is now in her late 20’s), and the difficult emotional circumstances that underlie the litigation, I have also borne in mind that speech patterns in Sri Lankan English are not identical to Australian English, and that cultural norms may have resulted in different presentations in the witness box. However, I remained unimpressed by her presentation in the witness box and the delivery of her evidence. Her answers were often lengthy when a simple answer would suffice. Overall, having listened to her evidence for a lengthy period I did not have confidence in the accuracy of her evidence. I also gained the impression that she does not see G’s needs as separate from her own needs, even bearing in mind that the early emails she sent (in the year following the relationship) may have been when she was in a very difficult emotional state due to the breakdown of the relationship.
On the whole I was unimpressed with the mother’s evidence, and have difficulty placing any weight upon it when it conflicts with the evidence of others.
The Mother’s husband’s evidence
The mother’s current husband presented well in the witness box. His evidence was generally forthright, and without hesitation. He gave the impression of being fairly straightforward. He was appropriately supportive of his wife.
He said he would like to become ‘a father figure’ for G, if he was married to the mother and living with G. He said that if the father was not there daily he has to step into this role and also support the mother with discipline. He was concerned that even in Canada that it would be important for G to call him ‘dad’ in public. When pressed about whether he and the mother have explained to G who his father is, he said:
[Father’s Solicitor] But I'm asking you to explain how it can be, if you have been explaining this to him for a year and a half, that the confusion continues?‑‑‑Well, the reaction we get from him right away is - like, he'll - it's like he's got already an answer prepared. It's like, "No, he's not my father. No, he's not my father." It's, like ‑ ‑ ‑
Later when cross-examined about correcting G’s misapprehensions as to who is his father, the husband said:
He admits - on occasion, he admits that [The father]’s his father. On occasion, he admits that [The father]’s not his father. So it's - he is being inconsistent, as I assume a four-year-old would be.
The mother’s husband had not enquired as to whether his qualifications would be recognized in Australia, nor looked for employment here. However, the mother’s case is that she will not remain even if G remains in Australia.
Ultimately I find that the mother’s husband was giving evidence to support the wife and attempted to show her in a good light. His understanding of the child’s needs from him as a step-parent appeared well intentioned but simplistic.
The father’s evidence
The father presented as a particularly careful, if not meticulous witness. He often took time before answering questions, before proceeding to give a carefully constructed answer. However, I had the strong impression that this was in order to ensure the accuracy of his answers, and perhaps partially as a result of his background and training as a [occupation omitted] and partially as a result of the course of the relationship. He appeared to have a clear understanding of G’s needs as a separate set of needs to his own. Generally I accept the evidence of the father.
The father’s Spouse
The father’s spouse was the most impressive of the witnesses in the proceedings. She presented in a very natural and forthright fashion. As with the mother’s current husband, she was not a party and the emotional pressures upon her were not as great as those upon the parties. I was very impressed by her warmth in the witness box and natural sense of boundaries with respect to her role as a potential step-mother in a difficult parenting environment. In this respect she appeared to show more maturity and insight than the mother’s current husband who approached the question of his role in a less nuanced way.
The Family Report Writer
Ms L is a respected family report writer. Her expertise was not challenged. I generally accept her evidence. She prepared a report for the hearing in November 2009 and an update to that report for the July 2010 hearing.
In her latest report she concluded that:
8.18 With [G]’s relationships with his father and partner now being more consolidated and enduring and him being at an age where he will cope without a primary care arrangement, [G] could live with either party and cope with block time with the other; providing this was consistent and managed well.
In the November report Ms L made a number of important observations. Most importantly, she noted the claims by the mother and step-father that G ‘is emotionally distressed in leaving them to go to his father and emotionally compromised, in particular “dazed’, upon their return and takes a few days to settle in their care.’ The mother also claimed to her that she was concerned about G ‘being “damaged” as a result of these dynamics’. This claim was not borne out by the observations of the report writer, who found that G was not emotionally compromised, and was quite content with the father.
In her evidence in November 2009 she noted that:
HIS HONOUR: And do you think that [G] would cope all right even if she was allowed to go and she came back ‑ ‑ ‑?‑‑‑Yes. I mean ‑ ‑ ‑
‑ ‑ ‑ from time to time and had webcam?‑‑‑I mean, ideally, you wouldn’t do that to a four and a half year old. However, in terms of the many children that I've seen I am sufficiently impressed with this little boy that if - if it was explained to him and he had lots of opportunities for communication he would probably cope, partly because he would be in a good environment with his father and partner, I think, and despite mum's reports about his trauma and the initial presentation, where he was thinking dad was granddad. I actually saw this child three times over the course of the week. He's bright, he's resilient, he's cognitive, and also, when you look at mum's evidence he's only known his stepfather for, what, maybe a year in terms of quality time and they're extremely bonded. So that's obviously been very encouraged and facilitated. So this kid's obviously responding to that. She also says he's extremely bonded to his grandparents and that's primarily by webcam, because he hasn't seen much of them. So if we accept what mum's saying, he's a child that responds very well to support and encouragement and opportunities for contact. She also says that dad hasn't kept in touch much in between visits. Well, if that's the case this child is extremely bonded to him. So whichever way you look at it, he's doing very well, as compared to mum saying he was the traumatised little boy that I was expecting to see. So I think - you know, and children lose their parents, don't they? I mean, parents die. Children cope. It's all about how that is facilitated and nurtured and what supports are put into them. So I think if mum does that, then he'll cope. And I would imagine dad would facilitate contact with grandparents and, you know, uncles and aunts and whoever else there is. That would assist him as well.
You said that it was quite egocentric of her?‑‑‑Mm.
Do you think ‑ ‑ ‑?‑‑‑And she lived her for four years before. She only had her brother. She lived in Dubai. She only had her brother and visiting parents. I mean, I don't understand why she would have the need to go right now. I think it's more a matter she's taken a position in that possibly - I haven't had this discussion with her but I would imagine it's, "I'm going to take a position and therefore they won't separate me from the child". I don't think she needs her parents that much. (emphasis added)
When asked about the mother’s capacity to parent and meet the longer term needs of the child, Ms L’ views were as follows:
Well, I think she's probably a good little mother. Dad certainly doesn't say she's a bad mother, notwithstanding the issues about his relationship with the child. I mean, obviously, to some degree she's putting her needs first, but I would be surprised if she takes it that far [Leaves Australia for Sri Lanka if G stays]. I'll be very interested to see what she does.
SOLICITOR FOR FATHER: Does that perhaps speak to her level of maturity rather than parental capacity?‑‑‑No, no. I think - well, again, I haven't had this discussion but I think - I mean, obviously she's very stressed at the moment because she - I think she truly thought she was going to get a visa on the weekend, and she doesn't want to be told what to do. And I think she truly believes that dad is out to make her unhappy and not allow her to move forward. But I think it's more about not being told what to do, so much as not coping. I think she's probably fairly resilient as well. And she's bright and she - I think she's probably a good mother, notwithstanding this reason we're here. (emphasis added)
A central issue in the case is the balance between the risk of the mother not facilitating time with the father compared to the risk of disrupting the bond between [G] and the mother. On this issue, the Family Reporter gave considerable evidence:
If, on your second scenario one facilitates better than the other, the risk being around mum facilitating, because you’ve seen dad, on the evidence, as more likely to facilitate. …‑‑‑Hypothetically so, yes. … on that scenario my concern would be we risk being back where we started, in which case it would favour him being with dad; with very, very, very good management, around the risks for him at this age and this stage of being separated from mum.
…
…are there indicators or pointers that, either from the literature you refer to, or aspects that you have observed of the parents that might give me a feel for where, on the continuum, I might assess these parents ‑ ‑ ‑?‑‑‑…there are indicators and there's a sense of what you can get as to whether there's going to be facilitation or not, and certainly this has a complex history, and you’re going to make findings as to what's happened in the last five years. But putting that aside, the last nine months have been relatively positive, although there are some of the same dynamics filtering through, and dad has certainly remained very concerned about mum facilitating. So much so that he has said to me, “I mean of course I would want [G] to be able to go to Sri Lanka and spend time with his family there. I mean that’s his culture” and so forth, “but what if this all happens again, what if she abducts him.” There's all those sorts of anxieties. But putting that aside I think it has moved forward very well, and certainly focussing just on [G], what I’m seeing in this child is the potential to adjust and move forward very well, no matter who he lives with. Now that’s a difficult call at age five, because we all know the theory, I’m sure everyone here has read the attachment theory, and, you know, we can focus very much on that. But I think focusing on attachment and primary attachment needs to be balanced very carefully amongst the risk indicators for pathological development… I think you need to be very careful to balance attachment and the potential impact upon children, particularly after the first five years where there’s no child protection issues, both parents are functioning, they’re both bright, they’re both educated, they both, with their partners, have the resources to parent this child and move him into adulthood fairly well. They have supportive networks, families. We are not looking at a pathological situation, we are looking at a power struggle and some capacity to be able to properly embrace the other parent, and we have very serious practicable issues in the two countries. But I think what you need to be very careful about is when we talk about potential harms to children – you know, shared care doesn’t necessarily do potential harms. What does potential harms is shared care where you have constant exposure to conflict, where you have, you know, babies’ attachments being discontinuous. You know, they’re not able to move into their sixth, seventh, eight and so forth years with a sense of continuous primary attachment which is the foundation for them learning to regulate their emotional systems which underpins their capacity to think and make decisions. I mean, that’s where serious damage is being done, and van der Kolk’s work is looking at all of that. So if we are going to look at attachment and shared care or attachment and relocation, we need to look at what actual damage is going to be done and in what context are we looking at that? We are really saying are these children going to be damaged adults, because otherwise what are we saying? I mean, does it really matter if they function in the community but they are not highly educated? No, it doesn’t. If it means they are going to be in psychiatric care and having all sorts of functionality issues in the community, then we have a serious problem. That sort of dysfunction is not likely to happen by disrupting attachments at this age for this child. However, it’s more likely to happen in, you know, much more serious child abuse situations which, as I have said, are not relevant here. But those sorts of risks for [G] will be underpinned by him being constantly exposed to conflict, not being able to love both parents, not being able to, you know, talk about one or pursue one or, you know, jump on the phone. If all those other issues which come with the practicalities of relocation, if they are managed well, I think he will be fine wherever he is. Obviously it would be better for him, and I’m sure he would be happier right now if he was with his mum and with the new baby and all of that, but if you find that there’s more risk of him not having dad as involved by being with mum, then obviously we would need to go down the road of looking at his adjustment by being with dad. At the moment, I don’t think, based on what I have seen, that he’s going to have a long-term functionality issues if he lives with dad, unless dad doesn’t facilitate and that hasn’t been tested, but certainly in the last nine months I haven’t seen, from what they are telling me, anything that would raise great concern as to his capacity to do that. I don’t know if that lecture helps but I just want to put “attachment” into context with pathology.
Yes. If he is living with mum and the time with dad isn’t facilitated … do we have a pathology ‑ ‑ ‑ ? you have risks around teenage boys who notoriously, and it’s everywhere in literature, seek out the biological father. Boys certainly need that. I mean, if you want to talk about Freud, he says, you know, a boy’s father is the most powerful force in the boy’s life, but not everyone accepts that. There’s lots of other writings on it, but generally it’s accepted in literature and in attachment theory that notwithstanding the significance of the primary carer, usually mum but sometimes non‑relative even, that relationship is paramount in those first five years, but dads, and mums, for boys and girls, in different ways, are very, very significant and in identity formation if children don’t have that, or at least that knowledge, growing up, then they will seek it out as teenagers and what happens is… that it underpins and compromises their capacity to just be egocentric, just focus on their friends, do their work, move through happily and so forth, like you see in secure functional families… But a risk for [G] in this case will be that without dad, in his teenage years he will seek that, even if he does have a good relationship with stepdad. And boys tend to display emotional issues behaviourally and externally whereas girls tend to display things more internally, you know, so they’re more likely to, you know, self-harm and be promiscuous and all that sort of stuff, whereas boys are more likely to, you know, offend and all that sort of thing, but again I don’t think they’re really risks for [G] because whichever family he’s in most, they’re very stable and they have morals and values and education is important and, you know, there just isn’t that pathology here. So I think he would be at very low risk, but they would be the risks. (emphasis added)
In summary, it appears that there is a very low risk of G developing a pathology, regardless of which parent he lives with, although the impacts upon him of not having a good relationship with the father are serious, particularly in the longer term, and the potential loss of the opportunity to live with his mother significant. Both parents appear able to provide for all of the basic parenting needs.
On the key issue, the witness said:
SOLICITOR FOR FATHER: I think perhaps the critical point that has been elucidated, and the difficulty for his Honour, is this issue of perhaps where on the continuum might one risk displace the other. Of course, do you agree with me that’s looking into a crystal ball somewhat, isn’t it?‑‑‑I think … people who work in human behaviour should be able to make some predictions and I think there is a concern here about mum’s capacity to truly embrace dad as really significant to [G]. Part of that, I think, in fairness to all of them, is that he has been a happy little boy with only seeing dad four times a year. So to some degree she probably just doesn’t really understand, and from dad’s perspective, because he has been the one, in his view, struggling to see [G], it’s obviously far more significant to him. So they have very real - you know, different perceptions of what is going on. I think the most important issue on that, in terms of flexibility, is their lack of trust in each other and that will impact on their capacity to cooperate. The other thing is, someone is going to lose – not that we want to use that word because we want a win-win situation but we’re not going to get that here. One of them is going to feel that they didn’t achieve, despite all of this difficult process – they’re not going to get what they want and that’s going to impact on how they see the other. So we’re still going to have that dynamic, no matter at what point on the future continuum we look. So I think we just need to really see it in terms of it’s going to be difficult whichever way it goes. I mean, one thing you could do is adjourn it for another year and see if she actually facilitates. That would be great; I’m sorry, I shouldn’t – short of really doing a longitudinal study on this case, we’re not going to know. You’re just going to have to trust that they will abide by court orders.
…
…what I mean is in a year’s time will be so much different to what it is now and it’s unrealistic. But I was just saying to someone before, you know, some lawyers and ICLs get update after update after update after update. I think it has been very good in this situation. There are some situations where it’s really, really necessary and pertinent and this is one of them. But really, when you’re doing a family report, the picture you get at the outset is really the picture of the dynamics that usually sustain. All you are really doing when you update is updating people’s responses to interventions and decisions and process. You know, the things that you put in place, see how that’s going or maybe have another look at a child who is further developmentally down the line but really the dynamics that we see here now, they’re the dynamics, nothing has changed in terms of the issues but certainly there’s been significant improvement as to how they have managed, you know, being in a different country and [G] now seeing dad now and he’s going to school now and I think we need to remember that they’ve moved along very well and obviously the next phase is going to be challenging but, you know, they have followed court orders. [G] is functioning well. He’s a happy little boy even if mum raises some issues. He seems to me to be very happy; I didn’t see him as unhappy with either. He still had his sense of humour with them both, I mean, he’s a gorgeous, charismatic, bright little kid. Yes, and this has not damaged him at all in the last nine months. He’s in a much better place now and even six months down the track he will be much better placed to cope with whichever environment he’s in. I mean, I guess if he’s going to be in one place or the other, ideally that would best happen at the end of the year, if that helps. (emphasis added)
On the issue of the timing of any move, Ms L was quite clear that it would be in G’s best interests to see out the school year in Australia even if he was moving to Canada, saying ‘developmentally that would be good, you know, have a whole year book of photos …’. Despite this clear evidence, the mother sought interim orders to allow her to relocate G to Canada at the end of the submission. The only real basis for subjugating G’s interests in this regard was the mother’s emotional and financial difficulties in living in Australia.
Issues at the Hearing
There is a multitude of issues that were raised at the trial. It is not necessary to deal with every piece of evidence in a judgment, and I am mindful that this has become a relatively lengthy judgment, despite attempts to limit it to a brief coverage of the necessary matters.
Each of the events discussed must be kept in context and perspective. None is, on their own, an overwhelming factor or event, but part of the complex factual matrix from which more general findings must be drawn and impressions formed.
The move to Dubai, and the marriage plans
The parties had agreed to marry in Dubai at around the same time that the mother’s brother was to marry there. Her parents were going to be in Dubai for the brother’s wedding (having to travel from Sri Lanka). The mother had purchased return tickets for her and the child, and left belongings in Australia.
I am satisfied that at the time she left for Dubai, she intended to return to Australia. The mother says that she was under pressure from her family to marry as she is from a devout catholic family. It was clearly difficult for her when the relationship ended and the marriage was not to proceed. In her affidavit of 3 October 2007 she sets out that she gave the father an ultimatum before leaving: that she would only return to Australia with G if the father married her. This came to pass.
The mother did not return to Australia as the relationship broke down while she was in Dubai and it never resumed. At the end of 2005 the mother would have come to Australia if the father had married her.
At the time that the mother decided not to return to Australia, she had a permanent residency visa for Australia (although it had to be renewed every 5 years). She had completed her degree in Australia. She had been living in Australia for many years and her brother had made his home in Sydney.
I accept the father’s evidence that the mother had, prior to the relationship breakdown, formed the view that she would live in Australia in the long term. The change of view as to her intentions to have a life in Australia appears to have resulted largely from the breakdown of the relationship. I do not accept the evidence of the mother that the relationship was over before she left Australia.
The mother’s choice to remain in Dubai
The mother outlines that she chose to remain in Dubai, where she had grown up, rather than return to Brisbane where she says that she had been without friends and isolated. Her feelings of isolation in Brisbane are difficult to reconcile with her plans to make her life there if she married the father. Nothing about the conduct of the father is alleged that would indicate that he was stopping her developing friends in Brisbane. Brisbane is not a small town, but a state capital with over a million residents. It appears that her feelings toward Brisbane (and Australia generally) were more influenced by the breakdown of the relationship than any difficulty with Australia. She had resided here for sometime, undertaken university studies, and obtained permanent residency.
As the family report writer noted, her choice of Dubai was an interesting one in the context of her life circumstances. She was under pressure from family with respect to being pregnant out of wedlock, yet chose to stay in a strict Muslim country where pregnancy out of wedlock is frowned upon. This dichotomy is more stark when one also takes into account that in Australia not only would there be little social opprobrium (or none in many social groups), the mother would have the benefit of the safety net of social security and Medicare, and her brother if she chose to live in the Sydney area. To this must be added that the move to Dubai resulted in great difficulty for G in establishing a bond with his father, given his young age: although this was clearly her intention at the time.
The mother had reasons for staying in Dubai. However, her reasons for staying in Dubai appear to be more about her choices than any child focus for a young child who had not yet developed a meaningful relationship with the father that could be sustained at a distance. The mother says that she would have returned to Australia if the father had married her: this certainly does not have the flavour of putting G’s needs first, but rather using G for emotional blackmail of the father.
Telephone and Webcam contact
Due to G’s age telephone and webcam contact has not been a particularly effective tool. It will become far more effective in the future, along with email and the various social media network sites.
It also appears that despite the mother saying that webcam is an effective option, she was not able to effectively engage with the father to organize the use of the webcam when G was in Canada. On this point I accept the father’s evidence of the interactions.
The contact in this regard is not refused by the mother, but does not appear to be prioritised by her, and the conflict on detail frustrating.
Father’s capacity as a primary carer
The mother says that the father’s capacity to fulfil the role of primary carer of G is untested. She points out that it is only in the last year that the father has had regular time with the child. She also says that the father’s partner’s relationship with G is similarly ‘untested’. She also points to the fact that the father has full time employment.
The father has now had significant time with the child. Whilst the mother claims that G is distressed in the father’s care, this was not borne out by the Family Report writer’s observations.
The father’s employment is as a [omitted]. He has considerable flexibility and the support of a spouse. The father’s household, employment and income place him in a superior position to many parents that provide more than adequate parenting for children. The fact that he may occasionally need support from after school care or the like is little different to the mother’s past needs for childcare in Dubai. It is an entirely normal arrangement in Australian society, even in two parent households. I am satisfied that the father is entirely able to provide high quality care for G on a full time basis.
It seems likely that the mother will also be engaged in a business undertaking of some sort (at least part time), as a business name has been registered in Canada. Whilst the mother said that her husband registered the business name it seems quite unlikely that he would do that for no purpose, and he is employed full time.
Emotional impacts upon the mother
At the first trial issues arose as to the emotional impact upon the mother of having to live in proximity to the father. Symptoms said to be the result of the stress of the proceedings were raised again before me, such as the mother being in tears, losing weight and depressed. In the appeal judgment it was made clear that there needed to be expert evidence of such matters. No expert evidence in this regard was provided. I also note that the mother said she had been prescribed anti-depressant medication in Canada.
In the absence of expert evidence as to the psychological state of the mother, and some forensic assessment of it by an appropriate expert it seems to me that it is not possible for me to conclude that her difficulties are entirely the consequence of these proceedings, or indeed the extent to which these proceedings are causative or merely a catalyst for other underlying issues.
At the end of the day I draw no inferences in this regard and proceed on the observations and assessment of Ms L, who said that she thought that the mother’s issues were ‘more about not being told what to do, so much as not coping.’
Father’s travel to Dubai in 2006
The mother submitted that she invited the father to come to Dubai to visit on a number of occasions in early 2006, referring to his ‘admissions at page 17of the transcript of 25/11/09, however, this must be seen in context. The passage is as follows:
And you were aware, from October 2005 up until June 2006, that [the mother] had invited you on many occasions to travel to spend time with [G] before June 2006?‑‑‑Look, I think that ‑ all the emails I have listed and the correspondence include emails where [the mother] had said that I could come and see him. So within all that correspondence there were on occasions, when [the mother] said that I could go to ‑ travel to Dubai where she was to see [G].
So it is not true to suggest that she wasn't facilitating time between you and [G] in that period, is it?‑‑‑Well, look, I'm suggesting that like when I ‑ for example when I got to Dubai, that she did not encourage me spending time with [G]. But not only that visit ‑ so look, it is not so much what she puts in an email but actually what happened in reality.
Okay, so you were in Dubai from 21 to 29 June 2006 and on that occasion [the mother’s] parents picked you up from the airport, didn't they?‑‑‑No.
They didn't pick you up from the airport?‑‑‑Look, I can't recall, I'm sorry. I don't ‑ I don't believe so but ‑ ‑ ‑
There have been occasions when you have been in Dubai that they have picked you up from the airport?‑‑‑Look, I can't ‑ no, I don't think that is true, actually.
They made their house available for you to come into and spend time with [G]?‑‑‑Well, it wasn't a matter of them making their house available. It was that ‑ I mean I was ‑ it was made clear that those were the conditions in which I was allowed to see [G], was if it was in their presence, and look, [the mother] suggested that it had to be in her presence as well. So I mean they were watching me, so to speak.
When you were there in June 2006 it was the case that you weren't aware of [G’s] daily routine at that stage, were you?‑‑‑No, [the mother] had ‑ well, not any more than what [the mother] had described to me. I mean I hadn't been there before then.
And you were given an opportunity during that June period for you to engage in his daily routine?‑‑‑Look – [the mother] resisted that. I ‑ if it ever happened, I mean if I got to bathe him, I wanted to bathe him. There had to be arguments and there were tears and, I mean, over a couple of days I ‑ you know, maybe I got an opportunity. If I wanted to be with him then, you know, that was resisted or maybe people were in my presence and there was a lot of conflict, it was very tense and we were upset…
It is also important to see these invitations in light of the email exchanges at that time. Clearly the mother was desirous of resuming the relationship, and openly used the father’s relationship with G as an emotional lever. In March 2006 she wrote:
If you love him [G] so much, you would do everything in your power to keep me happy. Why ?? Because you know that if I were happy with you, we’d be together and hence you have baby with you always. But if not, then you don’t have him.
Indeed, somewhat ironically given the mother’s current position, she wrote to the father in March 2006:
What I don’t and will never understand and believe is how and why you pretend to love baby and yet be willing to live your entire life away from him.
As late as May 2006 the mother was continuing to send emails making it clear that she wanted to resume the relationship. It is unsurprising that the father would be reluctant to travel to Dubai at that time, when one has regard to the content of the email exchanges. Indeed, even when he went in June 2006, the mother wanted him to go on holiday in Egypt with her, despite clear (and very reasonably worded) messages from him for 6 months that the relationship was over and his interest was in building a relationship with G.
The father did travel to Dubai in June 2006, and spent day times with G over 8 days. Despite the father’s requests that she not do so, the mother took time off work during his visit to spend time with him whilst he saw G. The reality of the visit was that the father was there to build a relationship with G, and the mother took the opportunity to attempt to negotiate reconciliation. Following the visit further emails were exchanged, including comments by the mother such as ‘I’d like to have my own space, if we aren’t together – which we aren’t. That’s all I’ll say about where baby and I will stay. As of now, I don’t know even which country I’ll be in.’
The mother then moved to her parent’s home in Sri Lanka in July 2006. It appears that this was because her visa in Dubai was linked to her father’s visa and he had left Dubai.
Mothers travel to Sri Lanka in July 2006
The mother lived in Sri Lanka for around 6 months. She did not initially give the father any contact details.
It seems that by September 2006 the mother had accepted that the relationship was over and decided that she no longer wanted anything to do with the father, nor wanted him in G’s life. She emailed in early September saying ‘I can take care of [G] on my own. He’ll be my responsibility, so please stay out of our lives. When he is of age, he may come and see you. Till then, please leave us alone.’ This demonstrates a fundamental lack of insight into G’s needs, or at worse an inability to prioritise there needs.
In her written submission the mother says that ‘After her move she facilitated contact for 10 days in Sri Lanka in September 2006 …’. What is omitted is that the father was unaware that shortly before he arrived in Sri Lanka the mother had returned to Dubai. She returned and time was negotiated with the help of relatives and government officials. Also omitted is reference to the difficulty the father had had in starting that time, not knowing where the mother was living with the child.
However, even as late as November 2006 the mother was still at times hopeful of resuming the relationship.
In January 2007 the father again travelled to Sri Lanka. At this time there was no mention of the mother’s impending move to Dubai. The mother moved to Dubai without notice to the father.
In Dubai, it appears that G did not initially hold a residence visa, but exited Dubai nine times to Oman (and occasionally Sri Lanka and once India) always on short stay visas, until a three year visa was obtained in mid 2007.
Father’s contact in April 2007 in Dubai
In April 2007 the father visited G in Dubai. Whilst visiting the father noticed G’s Australian passport in the mother’s bag and took it. He went to his lawyer and was later contacted by the police in Dubai. Ultimately the police concluded that it was a matter for the Australian Embassy as G was not a resident or citizen of the United Arab Emirates.
The father attempted to use the passport as a lever to have the mother return to Australia so that the matter could be litigated here. The mother would not agree. Ultimately the father left the passport at the Australian Consulate when he left Dubai, although did not tell the mother of this until later.
Thereafter the contact arrangements became increasingly difficult.
In submissions the mother relies heavily upon the passport incident. It was far from honourable conduct by the father. However, the history of his interactions with the mother leading up to this would have given no one any confidence in reaching arrangements with the mother. He had attempted Hague proceedings, but the mother’s departure from Sri Lanka thwarted those proceedings (it seems unbeknown to her at the time). The United Arab Emirates is not a Hague convention country. There were few options for the father at this point. Whilst it does tell against the father, I am not persuaded it demonstrates a significant failing on his part: he attempted to involve the consulate, he did not unilaterally relocate the child, and he did not take the Australian passport from the country.
Similarly, there is a real risk that the mother’s attitude to G’s relationship with the father will result in it being undermined and unvalued. Again, it seems that a pathology is unlikely to develop in this child, however there remain real risks to his long term development. If the mother is unable to embrace the importance of the father in G’s life, G will grow up experiencing the conflict of the parents, and having the parenting of his father undermined. This is also a real risk, although not so easily observed over the next six months – rather it will impact through the next 10 to 15 years.
These two risks need to be carefully considered. Unfortunately, there is no psychological test or measure to score the risks on a scale of 1 to 10. Ultimately it is a question of impression and degree. In this regard I have not only had the benefit of the written evidence but most importantly also seeing the parties in the witness box at length. I note that the family report writer has a positive view of the mother’s likely compliance with orders, however the report writer was not present for all of the evidence in the trial. I am not persuaded she is ready to embrace that relationship.
A further matter that I note is that the history of G’s life is one of international relocation: from Australia to Dubai, to Sri Lanka, to Dubai, to Canada, to Australia. Five years ago the mother appeared settled and content in Australia, having studied here, relocating to Brisbane from New South Wales, having a child here and planning to marry here. This stability appears to have been entirely shattered by the breakdown of the relationship, to a point where she presents a case on the basis that she cannot bear to live in Australia (even pending obtaining a visa to Canada).
In the case before FM Slack, the presentation was one of a settled and ordered life in Dubai. However, by the time of the retrial that had come to an end due to her loss of her job there and consequential loss of residency rights. Her move to Canada is again presented as a settled and long term arrangement, yet the visa and residency arrangements do not appear to be secure, and her connections with Canada are no more than she had with Australia 5 years ago: a sibling lives there and her partner lives there.
If one were to accept that the past is the best guide to the future then there is a real possibility that at some time in the not too distant future her attitude to Canada may be the same as her attitude to Australia: if this came to pass then G would suffer further significant upheaval. This can be contrasted to the stability of the father in Brisbane throughout the whole period, and his strong commitment to maintain a relationship with G despite the enormous costs and difficulties of having to travel to three different countries around the world, all of which required flights beyond Oceania or even South East Asia.
One must be careful looking to the past as a predictor for the future. I cannot predict the likely length of the mother’s marriage – it could last for 50 years. There is nothing in the material to show any obvious signs of difficulty. I proceed on the basis that the marriage is one to which she and her husband are committed. However, if the marriage ends, and her reaction to that is similar to her reaction to living in Australia following the breakdown of the relationship with the father, it presents further risks to the child.
To the extent that the relationship between G and his future sibling is not squarely within one of the other subsections, it must at least fall within this sub-section. The sibling issue is discussed above. Relationships with siblings are always of importance and a significant factor to take into account. That relationship will be fundamentally different if G grows up in a different household, although there is a real likelihood that this could also result with respect to paternal half siblings in the future if he lives in Canada.
(d) Consideration of the Factors in s.60CC(2)
Meaningful relationship
In considering the first of the primary considerations in s.60CC it is necessary to consider the benefits to G of having a meaningful relationship. The Full Court in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, 41 Fam LR 483 summarised the existing authorities with approval, saying:
[115] The phrase ‘meaningful relationship’ in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J, after setting out the definition of ‘meaningful’ and ‘meaning’, said at paragraph 26:
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[116] Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC ¶93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
At present G has a meaningful relationship with both parents. I am of the view that the recent time with the father has made a considerable difference to G’s relationship with him. I am satisfied that if facilitated G could have meaningful relationships with both parents in the future that would be of great benefit to him. He would have the security, and love, of two parents. Both parents are bright and capable people.
Ms L hypothesises that the child’s current relationship with the father is so strong that it indicates that the mother had not completely failed to facilitate the relationship in the past. However, in the short time that the mother and G were living with the step-father that the relationship has also become very strong. There is no doubt that G is a very bright child (not unexpectedly, given that his father is a [occupation omitted] who holds a doctoral degree, and the mother has university qualifications in [omitted]). When viewing the matter as a whole, it is not a case of direct alienation of the father, but one of devaluing his role. That the father has a good relationship with the child says more about his ability to foster that relationship and the capacity of the child than anything about the mother.
As discussed above the difficulty lies in weighing whether living with the mother will slowly result in the relationship with the father being undermined or becoming wizened due to lack of support and encouragement from the mother, compared to the immediate grief, and risk that the relationship with the mother could become fractured if G remains in Australia with the father.
Protection from harm
There is no violence or child abuse in this case. There is nothing about any of the adults that would draw them to the attention of child protection authorities. On mundane parenting issues both appear to be capable and caring parents.
The issue remains one of assessing whether G is at risk of harm through his relationship with the father not being nurtured if in his mother’s care. If that is the case the question then is whether that harm is greater than the harm that would be caused if the primary carer is altered to the father and the mother does return to Canada.
Conclusions with respect to G’s best interests
It appears clear that G’s best interests would be served by a shared care arrangement, as referred to by the Family Report writer. This would allow him to maintain and develop his relationships in both households.
Whilst I am critical of the mother’s conduct and attitudes, in this case I find that shared care would ensure that the father and son relationship develops without risk to the mother and son relationship. However, that is not an option presented by the parties. It is not a case where an injunction requiring the mother to stay in Australia could be considered appropriate. As the parties will be living in Australia and Canada respectively, this is not an option that is open for me to consider.
(d) Parental responsibility
As indicated earlier in the judgement, both parents are capable people with a genuine interest in the child. To the extent that criticisms are made, they are not such as to lead to a finding that in this case there ought not to be orders for equal shared parental responsibility.
I therefore find that there ought to be orders for equal shared parental responsibility.
(e) Section 65DAA
In the circumstances of this case it is not reasonably practicable for the parties to have shared care, or for one or the other to have substantial contact, simply as a result of the fact that one will be living in Canada and the other in Australia. Nor is it reasonably practicable to expect that either would move. The father has no residency rights in Canada, and the mother’s husband has no residency rights in Australia.
As a result, the ‘reasonable practicability’ test set out in s.65DAA is not satisfied and therefore neither shared nor substantial and significant time can be ordered.
Ultimately I have proceeded on the basis of the mother’s statements that she will return to Canada, as I can see no logical benefit for her in adopting such a position if she did not intend to return to Canada, unless it is an ill conceived gambit to influence the outcome of this trial. In the past she was to return to Sri Lanka, but ultimately stayed in Australia for the child. The father argues that I should find that she will not leave if G remains. I am not satisfied to the requisite standard that she would not return to Canada.
Even if this were not the logical result of the operation of s.65DAA, it would not be appropriate to apply the law in such a way that a parent who says that they will put aside their own interests and suffer not moving to be with their child should have a weaker case than the parent who says they are moving regardless of the decision as to where the child will live. Rather, it seems to me, in a case where a parent says that they are desperate to move but will stay if their child can not move, reflects very positively on the parent and the parent’s capacity to put their child’s needs first.
On the facts of this case, however, the mother says that if G is unable to move she will leave him and return to Canada to be with her husband. The father says that if G goes to Canada he will not be able to follow.
Thus, I have considered both shared care and substantial and significant time, but find that although they hold real attractions from the child’s perspective, they are not options that are open having regard to the positions of the parents.
(f) Other relevant considerations
Whilst the best interests of G are the paramount consideration, it is not the only consideration. I must therefore take into account other relevant considerations.
In this case those considerations sound in the rights of the parties to pursue their lives as they see fit. The mother intends to reside in Canada, and the father in Australia regardless of where G resides. I have already said that I would not issue injunctions requiring the mother to remain in Australia on the facts of this case.
Consideration of violence under s.60CG
There is no violence in this case alleged by the parties which requires consideration under s. 60CG.
Consideration of freedom of movement of parents
This is discussed above under ‘(f) Other relevant considerations’.
Consideration of other interests of parents
There are no other significant interests of parents that are not discussed above.
Conclusions
Ultimately, whilst the relevant considerations in this case cover a large range of factors, the central issue is largely a balance between the immediate harm, and possible long term harm of changing the child’s resident parent from the mother to the father and the potential long term harm of the child’s relationship with the father not developing appropriately in the future due to the attitude and conduct of the mother, if the child were to remain in her care as a result of a relocation to Canada.
The time with the father of late has solidified the father’s relationship with the child – without this, the harm of changing primary carer would have been so great that it would have been unrealistic to make orders for the father to be the primary carer. Had the father not been able to develop this, the future benefits of his relationship with the child would be in doubt.
To the extent that orders are sought covering shared care in the event that a party moves after the orders made here, it appears to me to be inappropriate as there is no proposal for a party to move, nor any details of how care would work in that event. In the unlikely event of a move, the circumstances of the parties at that time would need to be considered.
Having regard to all of the relevant matters, and taking into account the opportunity of seeing the witnesses give evidence before me, I am ultimately of the view that the child’s best interests are served by, and that the appropriate orders are for, him to live with the father in Australia rather than the mother in Canada.
There remains a number of minor matters to be considered. I find that the Sri Lankan passport should be delivered up to the father’s solicitors, subject to its return to the Sri Lankan authorities as requested by them or upon its expiry.
I find that it is important that G have clear messages as to his identity and paternity, and therefore make injunctions about his name, also ensuring that he does not address his step father as dad, or variations thereon. With respect to the Sri Lankan birth certificate, it is in G’s interests for it to properly reflect his paternity, and the mother should attend to this forthwith.
The parties should be restrained from taking the child to a non-convention country to avoid any difficulties in seeking the child’s return to Australia. To the extent that they wish to travel to a convention country, they should give sufficient notice for any objection to be the subject of an application to the court, and they should provide details of the travel. I have framed the orders to allow stop-overs in New Zealand or the United States of America; as such stop-overs are common when travelling between Australia and Canada.
The mother will be unlikely to be able to travel for two years on her return to Canada, and therefore the child must travel there to spend time with her. I am not persuaded that the child should have no holidays or Christmases with the father in Australia, but should share Christmas year about and have the opportunity of the first term break in Australia. In the first two years, when the mother is unlikely to be able to travel, the child should still travel to Canada. In 2011 the father (or the father’s partner) should take him and return him from Canada as the mother will have recently had a baby and be reliant upon her husband’s support. In making orders as to the costs of travel I have had regard to the income of the father and mother, that the father is unlikely to receive child support and the mother is soon to have another baby.
If the mother comes to Australia she could have the child for a three week block. If this falls during school terms she can still have time with him provided that he continues to attend school. In this case the disruption is outweighed by the benefits of contact which is limited due to living locations. It is unlikely to be a regular event, and the disruption is well balanced by the opportunity to have time with the mother.
Both parties need to retain land lines and internet connections to facilitate electronic contact. As times have not been able to be negotiated in the past, I have provided for general times within which the mother can nominate the time to call.
Whilst this seems unlikely, if it transpires that the mother is not leaving prior to the birth of her baby, then. I will allow liberty to apply in this respect.
The parties should keep each other informed as to addresses, and facilitate information as to medical needs of G, and inform the other of any medical emergencies. Also, they should consult on significant issues.
I therefore make orders accordingly.
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 23 December 2010
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