Noirot and Lamereaux

[2008] FamCA 786

FAMILY COURT OF AUSTRALIA

NOIROT & LAMEREAUX [2008] FamCA 786

FAMILY LAW – CHILDREN – relocation – living with – equal parental responsibility – with whom a child spends time – with whom a child communicates

APPLICANT: Ms Noirot

RESPONDENT: Mr Lamereaux

FILE NUMBER: SYF 2470 of 2006

DATE DELIVERED: 15 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 13 & 14 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Blanchfield Nicholls Partners of Sydney

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys of Sydney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales, Sydney

Orders

1. That the parties have equal shared parental responsibility in consultation with each other for making decisions on major issues relating to their son, T, born … April 2000 (‘the child).

2. The mother has responsibility for decisions as to the child’s day to day care welfare and development during periods when he is living with her and the father has that responsibility when the child is in his care.

3. That the child live with the mother in France.

4. That the mother provide the father with a minimum of fourteen (14) days notice in writing of her intention to return to France with the child and live there on a permanent basis.

5. That pending the mother’s return to France with the child in accordance with Order 3, the Orders made on 26 April 2007 numbered 3 – 8 shall govern all time spent between the child and the parties.

6. That upon the child relocating to France, the father shall spend time with him as follows:

   (a)That upon the giving of 4 weeks notice to the mother, for a period of up to six weeks during the French summer school holiday period in Australia or France at the father’s election provided such period concludes three days prior to the day school resumes.

   (b)During the Christmas school holiday period in Australia or France at the father’s election, such time to commence on the first Saturday following the end of the school term in 2008, and in alternate years on 27 December 2009 and alternating thereafter.

   (c)That upon the giving of 4 weeks notice to the mother for the duration of any other French school holiday period in France, such time to commence from the first Monday following the end of the school term, and conclude on the Sunday prior to the commencement of school provided that the father gives one month notice in writing of his intention to spend time with the child.

   (d)Subject to the child’s school commitments, during the French school term for a period of up to seven (7) consecutive nights provided the father gives one month notice in writing to the mother.

   (e)At any other time as agreed between the parties.

7. That the father communicate with the child as follows:

   (a)Telephone calls: the mother is to facilitate the child speaking to the father when he rings and allowing the child to telephone the father at his request,

   (b)Webcam and email: the parties will do all acts and things necessary, including installing the required hardware and arranging internet access, to allow the child to communicate with the father by webcam and email.

8. That prior to the French summer school holiday period in 2010 the parties will arrange for the child to travel to Australia accompanied and the cost of that accompaniment is to be met by the mother.

1. The parties shall otherwise equally meet half of all airfares associated with the child’s travel between France and Australia and return.

10. That for periods when the child is in the father’s care the father will allow the child to speak with the mother by telephone on a regular basis and to facilitate such calls the father will advise the mother of his telephone contact details.

11. The mother shall ensure that the father is kept informed of:

(a)any medical problems or illnesses suffered by the child while in the mother’s care;

(b)any counselling or specialist medical attention that the child participates in;

(c)any significant events involving the child;

(d)the residential address, contact telephone number and email address and will advise the father of any other person who resides with the child;

(e)any other matter relevant to the child’s welfare.

12. The father shall ensure that the mother is kept informed of:

(a)any medical problems or illnesses suffered by the child while in the father’s care;

(b)any medication that has been prescribed for the child;

(c)the residential address, contact telephone number and email address and will advise the father of any other person who resides with the child;

(d)any other matter relevant to the child’s welfare.

13. That the father will provide the mother with the address and telephone number of the place where the child will be staying during extended periods in his care.

14. That the mother provide the father at the commencement of each school year with a calendar outlining each school holiday period.

15. That the mother shall provide the father with a copy of all of the child’s school reports and any other school documents of relevance to the child or interest to the father including newsletters, annual reports, merit certificates or copies of significant work produced by the child.

16. That for the purpose of the child attending school in France, the mother is permitted to sign all documents on behalf of the father including, but not limited to, enrolment forms.

17. In the event that the mother does not successfully apply to the Legal Aid Commission of NSW for a waiver of any contribution to the payment of the Independent Children’s Lawyer’s costs then within sixty days the parties shall pay the costs of the Independent Children’s Lawyer the sum of $3,256.10.

18. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2470 of 2006

MS NOIROT

Applicant

And

MR LAMEREAUX

Respondent

REASONS FOR JUDGMENT

1. This is an application for parenting orders in which the applicant is the mother, hereinafter referred to as "the mother" and the respondent is the father.  It relates to a child of their relationship and marriage, being a son, who was born in April 2000.

2. Because this matter has taken a certain course, in my view it is unnecessary, I believe, to enter into an in-depth discussion in relation to the facts of the matter and history other than to say that the parties, both born in France, hold as a dual nationality Australian and French, commenced a relationship in or about 1980, in a French town - I hope I pronounced it reasonably correctly - where the mother was born and was raised and has lived and continues to live.  They commenced it in about the month of October of that year.  They resumed cohabitation after a short break and married on 13 July 1999. 

3. The father had come to Australia some considerable time ago from today and has generally been occupied in the hospitality industry here in Australia.  The mother stayed in France until such time as she came to Australia.  She had some qualifications in the business area.  Since coming to Australia she has worked not at all or if she has, for a comparatively limited period.

4. They separated either in August 2004 or January 2005.  That was under the one roof.  And then by September of that year the parties had separated and went their separate ways. 

5. For a considerable period the mother has been finding it exceptionally difficult to remain resident in Australia.  She, as she says, is French and she finds it impossible to - if I might use the word - bond with the Australian system, has found it more and more distressing.  I would have thought such distress was exacerbated by the breakdown of her relationship between herself and her husband, the fact that she felt isolated, that her extended family, which consists of brothers in particular, two of whom reside in the town which she was born, she has property in that town and she has other relations in near proximity to it.

6. I say in passing that the father's family, the existing relations, also reside in France - a sister, approximately 200 kilometres from the mother's residence and his mother some 600 kilometres.  She is aged 80 years of age and he has a relationship not only with her but with his sister.

7. The child, as from about three and a half, has been educated at a French school here in Sydney and is bi-lingual.  But I say, notwithstanding the protestations from Kearney of counsel for the father, that the child gives me the impression that he has been raised primarily in the French culture.  He speaks French fluently.  He speaks French most of the time with his parents.  He attends, as I said, a French school.  He has journeyed to France on frequent occasions for the purposes of holidays and he has relations in France, not only on his mother's side but on his father's side.

8. The mother has been getting more and more distressed.  At one stage there was some concern from a psychologist to whom we refer as Ms DW - her name is almost unpronounceable - where there was some suggestion that she may be suffering from depression.  Dr W, a psychiatrist, who was appointed by this Court as a single expert and has put a report before the Court, is of the view the mother is not suffering from depression but that she is very unhappy and dissatisfied with her life here. 

9. This matter came on before Le Poer Trench J in April last year in which, notwithstanding the objections of Mr Kearney and his endeavour to have me disqualify myself from this matter, I have had the opportunity of looking at Le Poer Trench J's judgment and he made certain orders.  The orders are in fact put before me in summary and consequently I can look at them and would have anyway, in which he allowed the mother to return to France with the child.  That is the whole case here; whether the child goes to France or whether the child stays in Australia.

10. This judgment did not find favour with the Court of Appeal.  The Court of Appeal allowed the appeal and remitted the matter for a new trial.  The appeal was heard in February of this year and the Full Court, with commendable alacrity, gave their judgment in or about the month of April.  And as I said; the matter was remitted for trial and as a result of efforts in this Court I have the unfortunate task of having to decide this matter and I would have thought, notwithstanding the general feeling of the populous, that it just shows the expertise and the efficiency and speed of this Court which can be brought into force and effect particularly where the welfare of children - and in this case the child - is at stake.

11. I am mindful of course of the directions as contained in many of the authorities, particularly relating as I have said in this case, to relocation and I take into consideration in particular the unreported decision of Rose J, which I understand was handed down yesterday, in the matter of Robertson & Chin.  And he sets out therein the requirements of a judge in the first instance considering these matters and I refer in particular to his unpublished reasons - they were handed down on 14 August - at page five and following.

12. I also indicate that I have taken into consideration those matters which have fallen from Kearney of counsel in his summary in which - particularly at page 11 of his summary - he sets out his view of the authorities and I must say that the matters which have fallen from him, as well as from Rose J, are matters that I take into consideration and have taken into consideration on occasions prior to this. 

13. Primarily, I must say that the paramount interest is that of the welfare of the child.  Notwithstanding the amendments to the Act carried out in 2006 I am of the opinion that that is the paramount consideration.  But thereafter I have to take into account directions as set out by the Court of Appeal and the High Court and have to initially consider the relevant competing proposals.  I will do that now. 

14. The proposals are, in effect, simple.  Up until this move or desire to move to France, the parties had been sharing, if I might use that revolting word, sharing the parenting of the child.  They have done remarkably well.  They have made it quite clear that they do not criticise the other person in any way whatsoever in their love, their affection, their endeavour to promote the welfare of the child.  They have done a remarkably good job.  The child himself shows this because he is torn.  He is tremendously torn between his mother and his father.  He loves, admires and relates to each of them in effect equally.

15. On the one hand it is, as said by Dr W, that the mother tends to encourage the educational side of the child’s young life, whereas the father tends to emphasise the sporting activities of his young life.  No criticism is directed by either party to the other.  This is one of these cases, if I may say in passing, which is particularly hard in one way and very sad in another.  It is particularly hard because it does not matter with whom the child is going to live; he is going to be advanced.  It is particularly sad because he is going to spend more of his time with one or the other.

16. What are the competing proposals?  The proposals insofar as the wife are concerned is that the child journey with her back to France.  She has indicated that there is available for him teaching, schooling in France in the small town in which she resides, some six to 7000 people, that there is a high school some four kilometres away and that his accommodation is more than adequate.  She has a three bedroom house there which she has renovated, I think not fully, but to a great extent and that it is very comfortable. 

17. Nothing has been suggested by the father than the boy would otherwise be properly looked after in France.  On the other hand; the father said the boy is an Australian as well as a Frenchman, that he has a different lifestyle here in Australia.  That it is more open, less formal, that they do have the outdoor activities which is more to his heart than perhaps the intellectual activities and that he should remain here.

18. The mother has indicated that up until the decision of the Court of Appeal she was perhaps ambivalent.  She wanted definitely to return to France but she thought that she may have to stay in Australia to partake of what she considers the child’s right to know her.  However, she says as a result of the re-trial she recognised she could not face remaining here any more and made a decision, albeit a very tough decision, to go back to France.  And that was conveyed to the father in or about the month of April of this year.  See exhibit G of her affidavit, the letter of her solicitors sent to the father's solicitors; naturally of course on her instructions.

19. It was a big step.  She recognised that it was dangerous for her that her movement, even though she could not envisage not having the child with her, could cause her to miss the child.  The father says, as I have said before; "Leave it as it is."  Because of a quirk in the curriculums of the French school here the students are entitled to in effect two forms of summer holidays.  I have had put before me a list of the French holidays.  The long one of course is their summer holidays, naturally of course which is our winter.  And they also have the benefit of the Christmas holidays, which are our summer holidays, which are lengthy.

20. He says that to take into consideration the fact that the boy would have a considerable number of weeks spending time with the mother that in fact the necessity of maintaining a meaningful relationship between the boy and his mother would in fact take place. 

21. I take into consideration those two competing proposals.  We have, on the one hand, the mother's case to move to France.  This will limit his spending time with his father which has almost been equal.  I think it is tantamount to equal with his father.  And he has blossomed.  He has been put under enormous pressure as Dr W says, since this matter has become litigated and I would have thought particularly enormous pressure realising that either he is not going to see as much of his father or he is not going to see as much of his mother.  He is eight years old.  This pressure for a young man is dreadful.  I am staggered that he has handled it as well as he has.  And the reason why he has handled it so well is because of the attitude of his parents.  They have not seen this as a war ground.  They have not seen this as something where they can throw things at each other.  They have in fact acted in a proper manner. 

22. I have to consider the relevant s 60CC factors.  And I emphasis "relevant".  I am not going to go through each one of them seriatim and say which is relevant and which applies and which does not. 

23. I have suggested that in fact the child is more French than Australian.  He has a passport.  His father says that his English is quite good now if my memory serves me correctly having had a quick look at the transcript.  But I believe generally he is more French.  He, as I have said, and I do not wish to repeat myself again, he is fluent in French.  His English may not be as fluent.  His father readily concedes that his first language is French. 

24. I have to consider those matters to which I have referred, which are relevant.  I think in this case - and the reason why I will only be referring to two is s 60CC(i) and  s 60CC(iv). 

25. Section 60CC(i) is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.  I mentioned early in this case that this is a case where it is extremely difficult and I must find in effect a feather which will be placed in one of the scales and weighs it down in favour of one of the parties as against the other.  This is not going to be a criticism of them but I must find that feather because everything is so very equal if I can put it that way.  You cannot have anything more equal than equal.  This is not Animal Farm.

26. What then am I able to point to to say that whilst it may sound to be a criticism is not really intended to be one?  But what is that feather?  It is a very difficult thing to find.  However, I believe that it has been found in two areas.  One, under s.60CC(i) and under (iv).  I have had a transcript of the evidence of the father and I refer in particular to his evidence in cross-examination which - the part to which I wish to refer - commences at around page eight.  This is the Vietnam episode.  The father had agreed with the mother that she could take the child to France and in fact did so.  The mother has come back.  She is not like one of these people who rush overseas and do not come back again.  She has been back on at least two occasions since this matter has been before the Court and judgments have been given.  She has returned.  We have not had to use the Hague Convention.

27. She was overseas with the child.  It had been agreed and the child knew that his father was going to come to France for a period of approximately two weeks in or about May or June - about mid year, this year.  The father decided not to go to France.  He decided to go to Vietnam instead.  And at page nine onwards, the bottom line, 46, Mr Lloyd says:

Just see if I have got this right?  You had an arrangement to see [the child] in France last month when he was there with his mother, end of July beginning of August and you told [the child] you would see him there and spend the time with him in June?---Yes, I was June or May.  I was intend to go to France.

But you didn't go?---I changed it.

[The child] was in France awaiting your arrival--- He knew before he left for France I was not coming.

So where did you go, if anywhere, if you didn't go to France?---I went two weeks in Vietnam in the beginning at the end of the end of July.

Why did you go to Vietnam and not see your son in France?---Because I wanted to have time to him to myself.

1. He goes on to explain the reason why he wanted time for himself; a business which he'd been running for a considerable number of years had ceased or was ceasing on 31 July.  The lease had expired and he did not think it was proper for him to expend a considerable amount of moneys on refurbishing of the premises and the fact also that the rent he said had gone up by one hundred per cent. 

2. And I incorporate in these my reasons for judgment the rest of page ten and in particular at line 45 Lloyd said:

   How long were you to have?---I would have only had - I only would have less than two weeks so I don't think it's really worth the effort to travel 24 hours and spend only 12 days over there travelling between north of Brittany in the south west of France.

3. The north of Brittany is where the child lives.  The south west of France is where his mother lives, some 600 kilometres away.  On page 11 I say:

   So you don't think it would - - -

4. I just want to get this down properly:

   You don't think it was worth - what did you say - worth the effort---?Well I'd done the trip two weeks before or even ten days and it's really tiring.

   To spend ten or 12 days with the boy?---Yes.

   Because you found it before and you found it very tiring, is that
   correct?---Yes.

5. I think someone suggested I had not really had a look at that.  But some fathers would walk over hot coals to spend time with their son, particularly to spend time with the son in France where he has spent a considerable amount of time and where the father, who is a Frenchman, could not be suggested be looked upon as a stranger in any way at all in that country.  I raise that. 

6. I further raise, which is raised by Gillies of counsel on behalf of the independent children's lawyer, the fact that the father really has not thought this out.  He is now residing with a Ms K for a short term.  Ms K has a three-bedroom house.  She has herself and her daughter.  She has the father and the child on occasions and she also has another lady who resides there who at present is absent.  There would be five people in the three-bedroom house.  He is saying that he is thinking of hiring or renting another house in the eastern suburbs.  He has a house in inner Sydney which for some reason or other he does not wish to avail himself of.  It is worth between $850 to $950,000 on his estimate and he owes something like $120,000 on it.

7. He considers that if in fact he goes back to work he is at this stage hoping to have some part-time work with a friend of his who runs a restaurant; it being more involved in hospitality and corporate eventing type things rather than open to the public, although it does seem to have reasonably lengthy hours.

8. He thinks he will get another job.  He may in fact open up another restaurant.  He really does not know.  He concedes that if in fact - and this is in the transcript - if in fact he does have another job it may be necessary for him to get an au pair who he hopes will be a French student, to remain and look after the child when he has to go into the markets early in the morning or he comes back late in the afternoon from his job, or if it is a new restaurant.

9. He will take the child to the restaurant for dinner on two occasions because he understandably has perhaps an aversion to washing up and cooking.  These are matters which perhaps the person sitting in the back of this Court may think are petty but that just shows you how difficult cases like this are; where you have to look for a small feather that will make it - it's never easy - but make it available for a judge to find one way.

10. The father might think that I am being overly harsh in criticising him for this when the mother has decided that she will, as he sees it, leave the child to Australia by reverting to France without sufficient or adequate reasons to do so.  I think that it is an entirely different type of attitude.  One the one hand it is the mother who has agonised over this for a period of years.  She has discussed it with the father as far back as 2005/2006.  It was almost - if not, there was almost an agreement that the child would return to France but that was not persevered with and the father, for good reasons as he sees it, refused to abide by that and as a direct result of this this matter has come before the Court.

11. I can understand the mother having to go back.  It is not rather in her best interests to remain here.  I do not say that she is gravely ill.  She is unhappy.  She does not feel comfortable and as a direct result thereof I would have thought - and it is an inference which I can draw from the facts - that her mothering may find it somewhat more difficult as a result of her unhappiness.

12. I believe the child knows of this and he has made his wishes known to the father and to the mother on one hand that he would like to sort of live in Australia and visit his mum.  On the other hand; he has said to Dr W, reluctantly, that he would like to live with his mother in France and visit Australia but he will miss his father.  As Dr W says, this is not necessarily an expression of his wishes.  This is, as far as I am concerned, a feeling out, an endeavour to find whether in fact he can get a consensus of his parents.  That is dreadful for an eight year old to do that.  It is because he loves his parents so much that he is worried and concerned.

13. This, as I said, is not an easy case.  I consider that because of those matters to which I have referred briefly herein, I do not think this is a case that deserves looking into every nook and cranny, that needs every T to be crossed and every I to be dotted.  This is a difficult case.  This is a case in which there are two good parents who just cannot agree for obvious reasons.  And I am put in the most invidious position of having to determine this. 

14. This must cease for the child’s sake.   It is regrettable that I am of the persuasion that the child is to be allowed to return to France.  I do it grudgingly.  I think that obviously the best thing would be for both parents to remain in Australia where they could have contact - which they have been having beforehand - and extensive contact and the child would be more relieved.  It cannot happen.  I do take into consideration that there is a bare prospect that the father could return to France or to Spain or to Asia which is closer.  I say it is bare.  He is hopeful that if the child remained in Australia the mother might be forced because of her obvious love and affection for the child, to return to Australia.  She is not coming back.  She is French and that's it.  And in a way, even though it is not necessary for me to say it, I quite admire her for taking that stand.  It is not in her interests and as she says, it is not in the child’s interest that she should remain in Australia. 

15. Obviously this is a case of very sensitive balance in regard to allowing the child to return to France.  The balance is encapsulated in the following statements and that is I am satisfied that as a result of the matters to which I have referred that the father tends to place his own interests ahead of the child and, further, I do not believe he has made sufficient endeavours to organise the parenting of the child if he were to remain in Australia.  I particularly emphasise the vagueness of accommodation and pre and after school care.

16. I have not considered the moving back and forth between France and Australia but believe the parties will maximise their spending time with the child and I believe that the draft orders prepared by the Independent Children’s Lawyer cover all the necessary positions.

1. I consider that that draft is the orders I should make save that order (6) should be varied and read as this case:

   That upon [the child] relocating to France the father shall spend time with him as follows:

   a)Upon the father giving four weeks notice to the mother.

   b)The same insertion.

2. I see c) and d) have already taken into consideration notice.  I order in accordance with that amended draft. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: