Noirot & Lamereaux

FAMILY COURT OF AUSTRALIA

NOIROT & LAMEREAUX

[2007] FamCA 422

FAMILY LAW - CHILDREN – International Relocation - Mother’s interest to relocate - Mother suffering moderate depression which could become severe if she is unable to relocate - Best interests of the child.

Family Law Act 1975 (Cth)

A and A [2004] FamCA 456
A-v-A Relocation Approach (2000) FLC ¶93-035
H-v-L (2000) FLC ¶93-036
AMS v AIF; AIF v AMS (1999) ¶92-852
D and SV (2003) FLC ¶93-137
U and U (2002) FLC ¶93-112
M & K [2007] FMCA Fam 26
Bolitho v Cohen (2005) FLC ¶93-224

APPLICANT:

Ms Noirot

RESPONDENT:

Mr Lamereaux

FILE NUMBER:

SYF

2470

2006

DATE DELIVERED:

26 April 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

16, 17 and 18 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

COUNSEL FOR THE RESPONDENT:

Mr Campton

Orders

That each party have equal shared parental responsibility in consultation with one another for making decisions on major issues relating to their child, a son, born in April 2000.
The mother is allowed to permanently relocate the son to France commencing three weeks prior to the commencement of the French school year in 2008 (in September 2008) and thereafter the son live with his mother in France subject to further orders made herein.
Pending the removal of the son from Australia he is to live with his father during the following times:
(a)each alternate weekend from after school Friday until Tuesday before school. First weekend to commence on the first Friday following the making of these orders.
(b)each alternate week from 6.00 pm Sunday until before school on Tuesday. The first period to commence on the second Sunday after the making of these orders.
During school holidays
(c)for half of the Christmas school holiday period as agreed between the parties.
(d)at such other times during school holiday periods as the parties may agree in writing.
Unless the parties otherwise agree the father’s time with the son during school term will be suspended during school holiday periods.
During any period of school holidays prior to September 2008 the father is to have such time as he reasonably requests to spend with the son.
The father is to have time with the son on his birthday, and on Father’s Day if it is reasonably practical to arrange such time.
Each of the parties is to facilitate reasonable and flexible telephone contact between the son and his other parent.
Pending the removal of the son to France to live permanently with his mother, the mother is to facilitate any reasonable request by the father to spend additional time with the son such as the customary Wednesday afternoon time which they have enjoyed for some time.
Until such time as the son leaves Australia for the purposes of moving to France with his mother neither party is to change his school.
Each party is restrained from removing the son from Australia pending his departure to France in September 2008 without the consent of the other.
The parties are to ensure that as far as practicable the son spends Mother’s Day with his mother.
The mother is permitted to remove the son from Australia for the purposes of holidaying in France during July and August French School holidays 2007. In the event that the father is able to travel to France during that period then the son is to spend up to two weeks with him on that holiday but otherwise to be taken to and from France by his mother.
The parties are to ensure that the son has current French and Australian passports at all times.
The mother cause any school that the son attends currently or into the future to provide to the father copies of his school reports, newsletters and announcements. If she is unable to make arrangements for the school to provide these items then she is to provide them herself.
Upon the son relocating to France the father is to spend time with the son:-
(a)In the French summer school holidays 2008 in France or Australia at his election until three days before school resumes.
(b)During the Christmas school holidays 2008 in France or Australia at the election of the father.
(c)During the spring school holidays 2009 in France. This to include up to seven days before or after the school holiday period.
(d)In the French summer school holiday 2009 in Australia for a period of five consecutive weeks until three days before the school resumes.
(e)In the French Christmas school holidays in 2009 in France or in Australia.
(f)From September 2009 and each year thereafter the father spend time with the son as follows:
(i)during the French summer school holiday a period of five consecutive weeks in France or overseas;
(ii)during the French Christmas school holidays each alternate year commencing in 2009 in France or overseas;
(iii)during the French winter school holidays each alternate year in France commencing in 2010;
(iv)during the French spring school holidays each year in France or overseas;
(v)subject to the son’s school commitments during the school term for up to seven consecutive nights at any time in France provided the father gives fourteen days notice to the mother;
(vi)at any other time as agreed between the parties.
Upon the son taking up residence in France the mother is to ensure that the son is available to take telephone calls from his father at all reasonable times. She is also to facilitate the son’s reasonable requests to telephone his father. The mother is also to provide for the son upon the father’s request an ability to communicate with him by webcam and email.
The Court notes that for the purposes of the father spending time with the son in France from the commencement of the 2009 school year in France the mother, if required by the father will provide use of her home to the father.
That prior to the French summer school holidays in 2010 the wife is to accompany the son on his travel to Australia or provide a suitable companion and the cost of that accompaniment by the wife or a companion is to be met by the wife.
The parties otherwise each meet half of the son’s travel expenses for travel between France and Australia and return, to spend time with his father following the relocation by the mother to France in 2008.
When the son is not with his father pursuant to these orders he is to live with his mother.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2470 of 2006

Ms Noirot

Applicant

And

Mr Lamereaux

Respondent

REASONS FOR JUDGMENT

Introduction.

The son born in April 2000 (now 7) is the only child of Mr Lamereaux (the father) and Ms Noirot. He was born in Australia although his parents were both French Nationals. The father had lived in Australia since 1984 and the mother since 1998. Both the mother and father are now Australian citizens however, both retain their French nationality. The parties separated in 2005 although the mother appears to have been unhappy in the marriage for some years before that. Following the separation the parties have shared the care of the son in a cooperative and predominantly sensitive manner. The son shows little sign of being effected by the separation of his parents.
Prior to the separation the mother held a desire to return to live in her native country. She was unable to convince the father to move and she decided not to try and move herself because she thought the son was too young to be separated from his father. However, following the separation the dynamic moved for the mother. She no longer saw any reason for her to live in Australia. She really had not been able to make Australia feel like home. She asked the father to agree to her and the son relocating to France. The father did agree and plans were made for her and the son to move back to France at the end of 2005 or by the middle of 2006. As the time arrived for the son to move to France with his mother the father changed his mind. The mother then commenced these proceedings. She became depressed at the prospect of being captive to life in Australia. She sought assistance from her doctor and her psychologist. In November her psychologist said the mother was showing symptoms of being mildly depressed. At the trial the psychologist said the mother’s symptoms were now consistent with moderate depression and that she was at risk of escalating to severe depression if she was not permitted to relocate to France. If the mother progressed to severe depression she would be compromised in her ability to care for the son’s daily needs.
The father’s case is the mother is a strong person and she would cope with remaining in Australia until the son is 10 or 12 years of age and better able to maintain a meaningful relationship with his father notwithstanding that they would each be residing in different parts of the world.

Background Fact

The mother was born in October 1959 and is 47 years of age. The father was born in February 1959 and is 48 years of age.
Between 1980 and 1984 the parties cohabited. That cohabitation took place in France. In November 1984 the father commenced residing in Australia.
In about February 1998 the mother moved to Australia from France and commenced to live with the father. The parties were married in July 1999.
The son is the only child of the parties’ union.
Although being an Australian resident the mother also retains her French nationality. Both she and the son hold Australian and French passports.
The son attends the L School at Sydney which is located at M.
In January 2005 the parties separated but continued to reside under the same roof until September of that year. At that time the father moved from the former matrimonial home at S which property was rented by the parties at that time.
The mother commenced proceedings in about March 2006. On 3 April 2006 interim orders were made in relation to the care of the son by his parents. Those orders provided for the son to spend seven nights per fortnight with his father and the balance with his mother. They also provided for travel for the son to France.
Prior to moving to Australia the mother worked as a Manager in Paris. She had lived in Paris during the 1980s. Prior to that she had grown up in the town of T. The mother still has two brothers who reside either in or very close to T.
After arriving in Australia in 1998 the mother enrolled in a Masters Degree in Journalism with a university.
Following the father commencing to reside in Australia he has been engaged in the hospitality industry and has owned and managed two restaurants during the course of the cohabitation. His current business is situated at R and trades under the name of X. The restaurant premises are leased by the father and the current lease expires in the middle of 2008. The father is proposing to renew the lease.
In 1999 the mother became pregnant with the parties’ child. She deferred her studies until 2005 when she completed her Masters Degree in November of that year. She has not worked in paid employment other than to assist the father in his restaurant businesses from time to time. She has predominantly been engaged in caring for the parties’ child.
In August 2003 when the son was three and a half he commenced attending pre-school at L School. He attended five days per week.
The mother does not hold a driver licence. The father took the son to school and collected him from school from time to time particularly during inclement weather.
The mother has involved herself extensively in the son’s schooling and school. She is a member of the School board.
Following the separation of the parties in early 2005 the mother again voiced her desire to return to France with the son to live permanently. She had spoken to the father about this possibility a number of times before the separation. On the father’s own admission during oral evidence he did agree to the mother and son moving to France at the end of 2005 or the middle of 2006. The father began to consider what he could do in terms of his employment and businesses in order to be physically closer to France and be able to spend more time with his son. Some of the enterprises he has considered include involving himself in a business in the hospitality area in Asia or possibly Spain. He says, and I accept, that it would be very difficult (he implies impossible for him) to be able to establish himself in the hospitality industry in France. He says he has no formal qualifications and if he was to buy a business in France it would involve a much larger capital injection than that required to establish a similar business in Australia or Asia.
The mother says, and I accept, that she clearly understood the father had agreed to her returning to live in France with the son at the end of the 2005 school year or at the latest by June 2006.
In September 2005 the parties came to an agreement (the mother says reluctantly on her part) for the son to spend each Sunday, Tuesday and Thursday nights with his father. These arrangements came into effect in October 2005. In addition to those nights the son has spent additional time with his father on Saturdays in the afternoon at the father’s request. These arrangements were progressed by the orders made on 3^rd April 2006. In October 2005 the father was away for ten days and did not see the son. In December 2005 the father was away for 19 days and did not see the son.
In paragraph 47 of her affidavit the mother complains that the father was not particularly reliable or consistent with abiding by the agreement for the time that the son was to spend with him. This was the subject of cross-examination of the father it being suggested to him that he had as it were “dumped” the son on the mother to suit his convenience. The father denied this however he said that there had been occasions where because of staff shortages at the restaurant he was required to work and was unable to be available to spend time with the son. He said that such occasions were very few and infrequent. I do accept the father’s evidence in relation to that matter.
The evidence discloses that from time to time the father made requests to change the times or the circumstances in which he saw the son. The mother appropriately accommodated those changes. The changes appear to have related to the father’s work commitments. Notwithstanding the mother’s compliance with the father’s requests her affidavit material discloses that she was unhappy with frequent changes and raised her concerns about those changes with the father.
Another matter of concern raised by the mother in her affidavit relates to the different parenting styles of the parties. The mother is opposed to the son watching television for a time which she regards as excessive. She is also opposed to the son eating highly processed food. These are matters which apparently do not concern the father to the same extent and consequently the son has provoked his mother with statements of what he is allowed to eat and what he is allowed to watch on television whilst in his father’s care.
The mother also complains that the son is tired after spending time with his father and she attributes this to him not having the same sleep patterns as he does in her home.
On 3 April 2006 orders were made for interim care of the son. Those orders provide that during school term and during the three short school holidays the son spends each alternate weekend from Friday evening through to Tuesday morning and every other weekend from Sunday evening to Tuesday morning with his father. During the June/July/August school holiday which is particular to the L school the son spent half his school holidays with his father. The parties have an arrangement that on Monday afternoons the mother collects the son from school and takes him to his tennis lesson and on Wednesdays the father collects the son from school and takes him to his swimming lesson. Notwithstanding the cessation of swimming lessons the father has continued to spend Wednesday afternoons with the son. When the son is with his mother he frequently receives telephone calls from and makes telephone calls to his father.
In April 2006 having spent five days with his father on holidays in Surfers Paradise the father then travelled overseas for about two weeks. He telephoned the son every second day and spoke for about 15 minutes.
The mother complains in her affidavit about the father’s behaviour with respect to the mid-year 2006 trip by the parties and son to France. She cites unco-operative and dictatorial behaviour on the part of the father. As part of the final arrangements agreed to between the parties the son flew unaccompanied from L near the mother’s property in T in order to meet with his father. He then holidayed with his father in France. The parents arranged for the son to see his mother shortly before her return to Australia.
At the end of the August 2006 holiday in France with his father the father sent a text message to the mother advising that he had missed the plane and would not be returning to Australia until 16 August.
It is common ground that the mother has attended to most of the son’s health and schooling needs. If the son is in the care of his father and becomes ill frequently he has been returned to his mother’s care on those occasions.
It is clear from evidence set out in the mother’s affidavit that the son is very aware of the conflict between his parents. He knows the conflict principally relates to whether or not his mother can return to live in France and take him with her.
In her affidavit the mother details a number of complaints she has in relation to the father’s care of the son during the time the son is with his father. In my opinion these complaints reflect more of a difference in parenting styles than any complaint of substance going to the wellbeing of the son.
There is no issue that the son has a very significant connection with France and would easily fit into life in France including going to school. He has attended at the L school in Sydney and speaks French with his parents. He also speaks English. The L is conducted on the same timetable as schools in France. That is, the long school holiday is taken between June and August each year rather than over the Christmas period which is traditional in Australia. The son has visited the mother’s home in T on a number of occasions and spent considerable time there. The surroundings of that property are familiar to him as indeed are the mother’s family and her friends and associates. The mother claims that the son has a particularly close relationship with the mother’s next door neighbour in T a child named C who is aged ten. The mother annexed a number of photographs to her affidavit material which showed the son and C together. The mother points out that the father has relatives also in close proximity to T.
The mother’s evidence is that in about 2002 her relationship with the father was deteriorating and she voiced her desire to return to France. In 2004 the mother suggested a separation and that she return to France. The father expressed his love for the mother and asked for another chance.
In 2004 the mother’s mother died. The mother spent about four months in France. The son spent two months of that time residing with his father and then two months in France with his mother. During the time they were separated the mother spoke to the son every second day on the phone.
In 2005 the mother commenced losing weight. She said she was often upset and cried. She felt there was no hope.
In early 2006 the mother spoke to her general practitioner, Dr S. She also spoke to her gynaecologist, Dr H. She was recommended to take antidepressants.
On 1 February 2006 the mother commenced attending counselling with Ms D. The mother says that although she tried to hide her distress from the son she was not always successful. The mother said that following obtaining advices from her psychologist she has been frank with the son without going into too much detail.

In June 2006 the mother was prescribed antidepressant medication by her gynaecologist.
The mother proposes to relocate to her property in T. She inherited an interest in this property upon the demise of her parents and has since acquired the interests of her siblings in the property. She has arranged for renovations to be undertaken to the property. The property can be lived in however the mother says it needs some more work on the “aesthetic aspects”. There is no issue that the property would be suitable for the son.
The mother proposes that the would attend the T local public school. The school fees are minimal. The mother has ascertained there is a place available for the son to commence at the school immediately. There is no issue that this school would not be suitable for the son.
The mother proposes a number of extra curricular activities for the son in T which would include tennis lessons, swimming lessons, attending the local sailing school and going to the beach during summer.
The mother proposes that should the son live in France and the father continued to live in Australia then the son should spend seven weeks during the long school holidays with his father and she also proposes that he could spend time with the son during other times of the year subject to ensuring that he attends school and meets his school commitments. This proposal changed slightly with the advent of exhibit M1.
The mother acknowledges a close and loving relationship between the son and his father. She acknowledges that the son will miss his father if he is residing in France with the mother. She says that communication via telephone and computer will assist the son with his distress at not seeing his father as frequently as he does now.
The mother asserts and the father agrees that during the last two years the father has had a number of overseas trips. It is the mother’s assertion that he could spend time away from his business in order to be with the son in France.
The mother says that since she has been residing in Australia she has made a couple of good friends of her own. She can rely on these friends for emotional help and help with babysitting the son if necessary. She also has a number of acquaintances which she has made through the son’s school. She is significantly connected with the school and is a member of the board.
The mother is currently unemployed and receives a Centrelink allowance. There is also a payment of child support of about $94.00 a week. The father also pays school expenses for the son and other expenses for him.
The mother has undertaken training courses through Centrelink. She has applied for about two positions. She was advised by her psychologist to obtain work. The mother has since separation used some of the funds she inherited from her parents to meet her expenses and she also borrowed money from her brothers. From September 2005 to February 2006 the father paid an additional amount of $100.00 per week to the mother to assist her financially.
The mother is confident that if she returns to France she will be able to obtain employment. She proposes to find work as a freelance journalist if possible. Apart from working in T there are a number of major centres within close proximity to that town where she may be able to obtain some work. Until she obtains work she says she is entitled to a Single parent allowance under the French Government system.
The mother says that if she is able to live in France she anticipates that she will be able to pay for airline tickets for the son to travel to Australia to spend time with his father.
In relation to health care the mother says that she and the son are guaranteed to be covered by the government medical system in France.
The thrust of the mother’s case is that if she is allowed to relocate to France she will be happy in her living environment and quickly recover from her depression.
In the event of the mother not being able to leave Australia forthwith to reside in France she seeks a variation of her current orders by a reduction of time that the son spends with the father. She also seeks that she be able to spend a whole weekend with the son. Her concerns are that the son is tired during the school week and has homework to attend to. The mother also seeks stipulations about the son being at the father’s home by 6.30 pm each evening.
The mother also proposes to seek some other form of accommodation however that accommodation would be reasonably close to the son’s school.
During the course of the trial and the father’s oral evidence it was put to him that he had agreed with the mother that she could return to France with the son at the end of 2005 or mid-2006. The father conceded that there had been such an agreement.
In 2005 the father had three holidays which took him outside of Australia. The father conceded that in 2003 there was a period when he did not see the son for nine weeks. He also agreed that in 2005 there was a period when he did not see the son for six weeks when the son was in France with his mother. In relation to the separation of 9 (or possibly as much as 11) weeks in 2003 he was asked about the reunion with the son. The father said he had a good reunion and that he had been able to maintain his relationship with his son by talking to him on the telephone. He said he that the son knows exactly who his dad is. The father said that he believed the son was currently a sad little boy and that he would be damaged if he did not see his father for long periods of time.
The father was asked what he would do if the mother and the son were able to relocate to France. He replied that he would move closer to where his son was. He has a lease on his current premises until the middle of 2008. In his evidence generally he spoke about the difficulty he perceived in moving to France and endeavouring to re-establish or establish a business. He did however speak of the prospect of establishing a business in Asia or in Spain. On a personal level the father said he had been in Australia for 22 years and this is where he prefers to live.
In relation to the father spending time with the son during the French school holidays he says that he is unable to take more than three consecutive week’s holiday due to his work commitments. As recorded earlier, he did concede that he has taken longer than three weeks in the past when travelling overseas. The father also says the cost of air travel for the number of trips proposed by the mother would cost about $7,000 per annum and he says he would have difficulty in meeting that cost. He says he is also concerned that the alternate methods of communication such as webcam and telephone do not allow for a tactile relationship between he and the son.

The evidence of other witnesses

The Family Consultant

Ms B produced a Family Report dated 13 November 2006. The following matters are of particular note from that report.
Under the heading “ADULTS” the Family Consultant reports in relation to the mother:
“she was visibly distressed throughout the entire day of interviews.”
“[The mother] is a well educated women with a Masters Degree in Journalism who, since arriving in Australia, has been a committed homemaker.”
“[The mother] clearly identifies as being French. Whilst she appreciated the opportunity to raise a child in Australia she felt that returning to France, after her separation from [the father], was a natural outcome in our situation.”
The mother told the Family Consultant that the father “is a very dedicated father.”
“[The mother] was honest in anticipating how, particularly in the short term, it would be hard for [the son] not to see his father as regularly as he does now and recognised and acknowledged that he may feel sad and react emotionally. She believed that [the son’s] experiences of absences along with the love of his family and her continued support of the father – son relationship would be crucial during this time.”
The mother acknowledged that it would be imperative for her to actively promote the son’s relationship with his father in the event of she and the son relocating to France.
“If unable to relocate with [the son] she would remain living in Australia in rented accommodation in the Eastern Suburbs. She anticipated that for support she would continue to rely on her psychologist, her GP and a small circle of close friends. She also talked of a learned resilience and described herself as having an inner strength. Nevertheless, as previously mentioned, [the mother] was visibly distressed at the thought of having to remain in Australia.”
During the preparation of the report the Family Consultant spoke to the mother’s Psychologist, Ms D. The Family Consultant reports as follows:

“She (the Psychologist) stressed that it would be really very hard for [the mother] if she had to remain in Australia but stated that, in her opinion, [the mother] is not at risk of falling into a severe depression despite her extreme unhappiness.”

The Family Consultant noted as follows:
“She (the mother) felt that in Australia she experienced a feeling of being in a prison which required her to take things day by day.”
In relation to the father the Family Consultant noted that he is content with the Australian lifestyle and that he stated, “for me it’s Australia, my future is not to go back to France”. The father told the Family Consultant that his own parents separated when he was five or six. “He acknowledged that his own childhood experiences and feelings of abandonment as a child have probably helped shape his attitude towards parenting his own son.”
The Family Consultant noted as follows:
“[The father] was clearly upset by the thought that relocation would provide [the son] less frequent contact with him. He talked objectively of how the frequency and quality of any interaction between father and son would be influenced by the distance between Australia and France, the different time zones, the different school calendar and impact of peak seasons on both travel and income.”
[The father] advised that returning to live in France was not an option for him due in part to financial and work related issues. In order to offset the physical demands of travel between the northern and southern hemispheres he had thought of a possible move to Asia, Spain or Singapore, should [the son] be allowed to relocate to France, but he is unsure whether this is, financially, a realistic option.”
…
“Despite the costs involved [the father] also talked of making yearly trips to Europe to spend time with [the son] stating ‘you find the money’.”
“[The father] recognises that [the son]loves his mother and has a right for her to be happy. He also acknowledges that [the mother] is a good mother and understands her point of view, that it is hard for her living in Australia, as she really never settled. He accepts that it would be difficult for her to cope if she is not allowed to relocate but believes that she is a strong woman.”

After “discussion the father told the Family Consultant that he could better support [the son] relocating to France with his mother when he was older around ten or twelve years of age, when he would be able to understand and talk for himself.”
The Family Consultant had the opportunity to interview the son and observe him with each of his parents. She noted:
“There were many indicators that [the son] clearly loves both of his parents and enjoys spending time with both of them.”
“In separate observations with his mother and then his father, [the son] appeared relaxed and comfortable and both parents were observed to interact with [the son] in a child friendly manner.”
…
“It is my (Family Consultant) impression that [the son] presented as particularly careful not to present a view that favoured either France or Australia so as not to show favour for one parent over the other.”
Under the heading “EVALUATION”, the Family Consultant reports as follows:
“Returning to France to be close to her family may assist [the mother] to come to terms with her grief in relation to the death of her parents, particularly as she would be in the country and culture in which she feels more at home.”
“There is evidence that [the son] is securely attached to both his parents. His close loving relationship with them, is maintained by him spending virtually equal time with each of them. If [the son] were to remain in Australia it is my assessment that equal time with both parents would, in most respects, be a constructive option for him but given his father’s work commitments this may not be possible in practice.”
…
“[The son] has never lived in France, or away from his father for prolonged periods of time and he is likely to experience a sense of loss and sadness in the absence of the regular involvement of his father in his life.”
“[The son] is a well adjusted young boy who has obviously benefited from having two competent parents involved in his life on a daily basis and it would be beneficial to his ongoing development if this were to continue. [The son’s] meaningful relationship with his father has been built on [the father’s] consistent involvement in routine, everyday activities such as eating breakfast together, reading a book at bedtime, teaching [the son] to play chess, surfing and working at the restaurant. If [the son] were to move to France he would miss these things and his father would, in all likelihood, lose touch with the details of [the son’s] social, educational and personal development that helped maintain the close parent like relationship. In these circumstances it is assessed that the prospect of [the son] being able to maintain a close relationship with his father, as he currently experiences it, is unlikely.”
“In the event of a Court decision that prevents [the mother] from returning to live in France, it is the absence of hope that may challenge her mental strength and resilience the most.”
“It is evident that the situation in which this family, and the Family Consultant, find themselves in is a particularly difficult one, in which sadly, [the son], unwittingly, cannot win. If he moves to France with his mother, she will be happier and he will benefit from her improved emotional state but his relationship with his father may become less meaningful. If he remains in Australia at least for the short term his relationship with his father will be protected but his mother might continue to experience significant sadness and this in turn might impact on [the son].”
Ms B was required for oral evidence. In her oral evidence she said that in her opinion it would have a substantial impact upon the son to be separated from a parent. She anticipated that he would feel a sense of grief if he was separated from a parent and she said that separation from a parent by a child of the son’s age can cause significant grief.
She was asked about the impact on the son if the mother was suffering from diagnosed depression. She said that such condition impacts on the mother’s ability to function in a number of areas of her life. It impacts upon a parent’s availability to attend to a child’s emotional needs. She agreed that it impacts upon the parenting capacity. She said that if one parent is mentally ill it would be important to have the other parent geographically close. She agreed that if the son had to wait until he was ten before being transferred to France with his mother he would be more established in Australia and it would become more difficult for him to move.
During the time that Ms B gave evidence and before the parties asked any questions I asked Ms B a number of questions. Those questions included a concern as to whether the son would be able to maintain the core values of his relationship with his father if he was not seeing him as frequently as he does presently whilst both parties live in Australia. She said that a relationship between a child and a parent where they are separated by distance can become less meaningful if protective factors aren’t put into place right from the beginning of the separation. It would be affected by the ability of the parent who moves with the child to be able to maintain for the child a good picture of the separated parent. Financial circumstances of the parties have to be sufficient to be able to fund the proposed level of contact whether it be face to face contact or telephone contact. Photos, letters, postcards and other forms of frequent communication can assist in maintaining a level of relationship for the child notwithstanding the physical separation. She said it would also be important for the father to have information about day to day events in the son’s life to enable him to have a good picture of the son’s life and consequently have some involvement in that life through communication rather than physical presence. I asked Ms B whether the core values of the relationship between the son and his father would be damaged if the son was to go to France with his mother now as opposed to going to France at the age of ten. She thought that it was less likely to be damaged if he went at ten than if he went now. Nonetheless she said any physical separation between the son and his father will impact upon the relationship whether it occurs when the son is seven or ten. The knowledge that one of his parents does not support the separation is likely to be quite impactive on the son and his ability to maintain his relationship with his father.

The evidence of Ms D

Ms D swore an affidavit on 16 November 2006. She provided update information in relation to the mother orally at the trial and I will refer to that later.
Ms D is a Registered Psychologist / Psychotherapist. She studied psychology in France and obtained a Masters Degree in clinical and pathological psychology in 1994.
Ms D has been working as a therapist with the mother and met with her eight times between 11 February 2006 and 20 October 2006. Ms D also visited the mother at her apartment in June and October 2006.
Ms D reports that the mother told her she initially felt overwhelmed by being unable to live every day with her child following the separation. The mother told Ms D she has a feeling of being trapped in Australia where she does not want to live. The mother spoke of her lost relationship with the father and the feelings she had to return to France, “in [her native region] where her roots, her emotional links are and always remain.”

Ms D says as follows:
“Until June 2006 [the mother] presented as being mentally and physically exhausted at each session. Overwhelmed by the pain and frustration of the situation, [the mother] often cried. She reported feelings of guilt, lack of energy, a decrease of appetite, a disturbed sleep and an increased use of tobacco. These symptoms, which are common symptoms of mild depression, led [the mother] to consult her general practitioner and gynaecologist who prescribed some antidepressants in June 2006.”
Ms D says that things changed for the mother significantly in June 2006. She refers to an occasion on 28 June 2006 where the mother asked her to visit at the mother’s new apartment. She says that the mother was very distressed on that day constantly crying and sobbing during the session. She expressed anger about the small and uncomfortable apartment she had to live in. She expressed anger about having to return to Australia after her holiday in France instead of remaining in France permanently with the son. She asserted that she had a bleak and pessimistic view of the future.
Ms D reported as follows:
“In my opinion [the mother] presents some depressive symptoms, post traumatic reaction to the loss of her partner and the risk of losing her role as a parent as she conceives it. [The mother] has never presented any apparent cognitive impairment of cognitive functions (lack of concentration, memory) and has no symptom of major depression such as panic attacks or severe somatic symptoms have been reported. No symptoms of bi polar disorder such as psychotic symptoms (hallucinations or delusions) have been diagnosed. [The mother] never mentioned any suicidal ideas or presented any risk of harm to herself or her son.”

Although I had some concern about Ms D’s qualification to diagnose depression she assured me that she did have that qualification and experience. No submissions was made at the conclusion of the hearing that Ms D was not qualified to make such a diagnosis.
Ms D went on in her report to say that in her opinion the prognosis regarding the mother’s mental state and well-being if she is not allowed to return to France with the son is pessimistic. She said:
“However, her (the mother) confidence as a parent and as a woman would be severely eroded as a result of extreme frustration.”
The frustration appears to be a connection with the inability of the mother to return to live in France with the son.
Ms D reports “[The mother] presents with symptoms consistent with a diagnosis of minor depression.” Recommendations were made in terms of treatment for the mother should she not be permitted to return to France.
In her oral evidence Ms D said that she had recommended to the mother that she put in place a number of strategies to deal with her minor depression. These strategies included looking for a job and expanding her social life when the son was in his father’s care.
Ms D reports that in August 2006 after the school holidays she saw the mother. The mother reported that she had been on holidays in France. Ms D thought that she had obviously benefited from her time overseas and the positive effects of the medication prescribed by the mother’s doctor. She seemed to be transformed physically and mentally.
At the hearing Ms D was required for cross-examination and she sought to update her report. This was opposed by the father’s counsel on the basis of procedural fairness. A proof of evidence was provided setting out the further evidence that Ms D was proposing to give. Objections were taken to the content and form of the proof of evidence which had been adopted as true and correct by Ms D in the witness box. The further evidence from Ms D is in my opinion extremely important and consequently I allowed the evidence to be led but reserved to the father any application he would wish to make as a result of surprise or otherwise from the evidence.
At the time the further evidence from Ms D was provided in the form of a proof of evidence I was critical of her lawyers for not providing this information before the trial. There seems to me to be no reason why the information could not have been provided and had it been provided at an earlier time it may well be that the father may have taken a different position in relation to the mother’s Application or Amended Application to leave Australia and return to France with the son.
Ms D described the symptoms currently experienced by the mother as being symptoms of moderate depression. She said that moderate depression falls between mild and severe depression. She concluded that the mother is now at risk of severe depression if she is not allowed to return to France or if her return to France is delayed. She said, “If there is not a deadline or a longer deadline then she is at risk of presenting symptoms of severe depression and decompensation to a psychotic episode.”

Ms D said the following:
“A person who is seriously depressed could have the following symptoms: (a) suicidal thoughts and attempt; and (b) present a risk of harm to herself / himself and others; (c) can’t cope with daily tasks; (d) difficulty providing basic care for a child; (e) would be unable to work and (d) to meet own psychological and physical needs.”
She went on to say as follows:
“In my experience the issue of the parenting by women with depression can easily become a child protection issue requiring the involvement of the Department of Community Services and the removal of children from the parent.”
Ms D was made aware that the mother had agreed to postpone the time of her proposed relocation to France until the end of the French school holidays in 2008. That is about September 2008. In her view she felt that the mother would be able to cope with such a delay provided that she had the certain knowledge that she would be returning to France at that time.
Ms D said that the mother needs to continue counselling in Australia and advised that there is a care plan currently in place for her. She said that when the mother returns to France she will need to continue counselling. She thought the prognosis for the mother in France was more positive.
In her oral evidence Ms D said that she was unaware of a plan being made for the mother in June 2006 under the Commonwealth Enhancement Primary Care Package. She had not had direct discussions with the mother’s general practitioner, Dr S. She had not been advised by the mother of the plan which was to provide for the mother to attend upon Dr M, Psychiatrist, and a Ms Y, Psychologist.
Ms D last saw the mother professionally on the Saturday before Ms D gave her evidence in Court. Prior to that she had seen her in February this year. There is an arrangement however for the mother to be able to contact Ms D by email and phone which she has done.
When Ms D saw the mother in 2007 she was crying and sobbing. She appeared overwhelmed, exhausted, had disturbed sleep and was suffering from lack of energy. She also had loss of appetite, insomnia, increased use of tobacco, lack of motivation which she said was severe. Ms D said the difference in presentation of the mother in 2007 as compared with 2006 prior to the provision of the affidavit by Ms D was a marked increase in the severity of the symptoms being experienced by the mother. Ms D had prescribed a cognitive therapy plan and therapy for the mother. She was of the view that if the mother found employment it would assist her condition. She said that if the mother is not allowed to return to France her capacity to parent the son would be severely affected. She believed that the mother has been able to cope with all the tasks associated with the care of the son to this point of time. If she moves from moderate depression to severe depression she would not be able to complete ordinary daily care of the son. If the mother moved to severe depression one of the aspects which would be very concerning is the advent of suicidal thoughts and the possibility of some self-harming behaviour.
Ms D was asked how the mother would cope if once she and the son were re-established in France she found the son was very unhappy about being separated from his father. She said that the mother would need to seek help for herself and for the son. She was asked whether she thought the mother would be able to work towards a date certain for return to France if that date certain was when the son turned nine or ten. She said yes however she would require therapy which Ms D would provide. Given the evidence of Ms D up to that point of time I am not satisfied that she understood exactly the nature of the question being asked and I am therefore unable to put any great weight on that reply.
In relation to Ms D’s evidence as a whole I was concerned about the objectivity of Ms D who appeared on at least one occasion to be acting as a advocate for the mother. I was also concerned about Ms D’s belief that people from [the mother’s native region] have some unique connection with their land. She said she thought no other people on earth experience the same connection with their land.
Despite those shortcomings the impact of Ms D’s evidence on the likelihood of the mother moving from moderate to severe depression is highly significant in the circumstances of this case. It highlights a risk of such magnitude in relation to the well-being and best interests of the son as to put this case into a category of those cases which assess unacceptable risks for children.

Credit

The Father

The father gave his evidence in a straightforward and apparently honest manner. There was nothing about his presentation in the witness box or the content of his evidence which led me to conclude that he was being untruthful. The father impressed as being very caring of his son and supportive of the mother apart from his failure to consent to her being able to relocate to France.

The mother

The mother gave her evidence in an apparently straightforward and honest manner. There was nothing about the content of her evidence or the way in which she gave it which made me suspect that she was being untruthful.
I need to record that throughout most of the hearing the mother was visibly upset whilst in the Court. Towards the end of the hearing and particularly when the submissions started it was necessary for her to leave the Court in order to bring her distress under control. The distressed presentation of the mother was also recorded by Ms B, the Family Consultant and is referred to in her report. Again the distress of the mother was referred to by Ms D in her evidence.
There was so much visible distress, crying, sobbing by the mother during the course of the three day trial before me that I began to have concerns that some of the mother’s outwardly visible distress was manufactured rather than being authentic. It is not possible for me to determine whether the mother’s visible distress was manufactured or authentic and given that the consequences of determining that it was manufactured where in fact the reality is that it was authentic I have no alternative than to accept that it was authentic. I will refer to this later when I come to the conclusion in the case.

Section 60CC (3) Additional Considerations

The considerations required under section 60CC need to be considered in the light of section 60B of the Act. I will bear those objects in mind as I consider section 60CC.

(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

The son is 7 years of age. He was very careful not to speak of a preference when he saw the Family Consultant. Given his age I am of the opinion that even if he had expressed a wish to move to France with his mother or to remain living in Australia very little weight could be given to those wishes. In the evidence of each party recounting of conversations with the son were expressed. Each party suggesting, at least inferentially, that the son was stating a preference. I do not accept that the statements referred to provide a reliable platform on which to reach a conclusion as to the son’s wishes.

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

The evidence of the Family consultant and indeed of the parents themselves would satisfy me that the son has a good and close relationship with each of his parents. I also accept the evidence of the mother that the son has a good and close relationship with her relatives in France and with her friends there.

(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

The evidence in this case leads me to the conclusion that each of the parents does facilitate and encourage a close and continuing relationship between the son and the other parent. To the extent that it is any part of the father’s case that the mother’s desire to move to France is prompted by her desire to retain unto herself all of the parenting of the son I reject that concept on the balance of probabilities.

(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

It is clear that the mother, if successful in her application, would remove the son from the physical closeness to his father which he has enjoyed all of his life. The son has had periods of separation from each of his parents during his life however these have been relatively short and infrequent and have no resemblance, in terms of impact on the son, to that now proposed by the mother.
To consider this subsection I really need to consider what a parental relationship is. The effect of changes to the son’s circumstances, as proposed by the mother, which is most impacting on him will be the effect on his relationship with his father. The father’s counsel says that the “parental relationship” between the son and his father will be damaged by the combination of the move to France and the limited amount of face to face time the son will be able to have with his father.

In the decision of A and A [2004] FamCA 456 delivered by me on 22 April 2004 I referred to some words in a report prepared for the Court by Dr L, Psychologist. In exploring the concept of parental relationship he said there is a distinction to be drawn between “the parental role” and “the parental relationship”. He said the “parental role” was “the means by which core values and behaviours are exchanged, and influence applied”. “Parental relationship” he said was “the closeness or attachment between the children and the parent”. These distinctions are, in my opinion, very important. As will be seen later, the preservation of the parental relationship is of particular importance in the consideration of relocation cases. The preservation of the parental role is important but not crucial. It is important because it seems the ongoing parental relationship is dependent on some exposure to the “parental role”. Such a proposition has logical connection but may not be so in every case. In nearly every relocation case, one would expect there would have to be some change in the parental role for both parties, but especially so for the parent, who is left behind.
The evidence of the Family Consultant must collectively be assessed as concluding that the impact of removing the son to France on the relationship between he and the father will be destructive. This has considerable connection to the developmental stage currently achieved by the son and that which he will be going through over the next few years. It will be difficult for him to remember various aspects of his relationship with his father without constant reminders and prompts. Whether the parties will be able to put sufficient of those prompts and reminders in place to enable the son to maintain his close relationship with his father is in my assessment problematic and on balance unlikely. It seems that the father will most likely have one trip to France each year to see the son and that the son may have one trip to where his father is living on another occasion each year. Until he reaches the age of about 12 I assess on the evidence of the Family Consultant that this infrequent face to face contact between father and son will have a deleterious impact upon the core values (a term I will refer to later) of their relationship.
If the mother remains living in Australia it is common ground that she will be permitted to travel to France with the son during school holiday periods. The son will therefore have the capacity to maintain his relationships with his French family and friends at those times.

(e) the practical difficulty and expense of a child spending 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

The proposal by the mother to live in France with the son will mean that the father will not be able to have frequent time with the son. If the mother is allowed to relocate herself to France with the son then the father has said he would consider moving closer to France however it is unlikely that he would return to live in France.
The arrangement for the care of the son now provides for him to spend about 7 nights per fortnight with his father. Further he knows that his father is very close geographically if he wishes to see him at other times. That will be a substantial contrast to the situation the son will find himself in if his mother’s application for relocation is granted.

(f) the capacity of: (i) each of the child’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

This consideration poses a particular problem for the Court in this case. The problem is largely associated with the mother’s application to remove the son from Australia.
As I said during the trial it must be clear to the mother that it would be contrary to the best interests of the son to separate him from close proximity to his father. The evidence establishes to my satisfaction that the son has a good and close relationship with each of his parents. This is acknowledged by each of the parents. He has been able to survive the separation of his parents perhaps less scared than many children because his parents have largely cooperated with each other and significantly shared his care since the later part of 2005. The arrangement appears to have served him well. He obviously enjoys his time with each of his parents. He receives different parenting styles from each parent however the differences are not so great as to create open conflict between the parents.
Against this background the mother seeks to remove the son from close proximity to his father. Her reason is that she is pining for her homeland of [her native region]. She came to Australia to be with the father in 1998. The father had been in Australia for many years at that time. He had his business here and he enjoyed life in Australia. The parties were married in 1999 and the son was born shortly thereafter. The mother says that in about 2002 she started to miss her home in regional France and spoke of a desire to return. She apparently had in mind that she might separate from the father at that time and return to France but decided not to on the basis that the son was too young to be separated from his father.
In 2004 and 2005 it appears on the evidence that the mother’s desire to return to France increased. When her relationship with the father broke down she became determined to return to France. She had not integrated into Australian society well during her time here. When her relationship with the father failed she felt she had nothing to hold her here apart from the son’s connection to Australia and his father. She raised with the father her desire to return to France. He agreed that she could return at the end of 2005 or mid 2006 at the latest. He has since changed his mind. The mother geared herself to stay in Australia until mid 2006 at the latest. When it became clear that the father was not going to continue the agreement for her to return to France she felt trapped and isolated. She became depressed and she commenced taking antidepressant medication in mid 2006.
The mother’s psychologist Ms D says the mother suffers the symptoms now of moderate depression. She says if the mother is unable to return to France in the near future there is a real chance the depression may become severe. If the mother develops severe depression then it is likely that will incapacitate her as a parent.
This all leads to the conclusion that the mother does have the capacity at the moment to provide for the needs of the son other than the capacity to remain living in Australia in close proximity to the father. That incapacity in this case poses a momentous problem for the son.
The father appears to have the capacity to care for and provide for the needs of the son whilst he is in his care. There have been occasions, complained of by the mother, where the father has had to return the son to the mother because of an emergency which has developed in his business. If the mother had not been readily available to take care of the son at those times then no doubt the father would have had to find another carer to assist him. The father has also asked the mother to care for the son when he has been sick.

(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

The son is a 7 year old boy of French parents, or as the mother would probably prefer parents from [the mother’s native region]. He has been educated in Australia but at the L school. There he associates with children who speak both the English and French language. Each of the parents predominantly speak French with the son. Although born in Australia he has both French and Australian nationality. As the son grows it can reasonably be expected that he will want to spend more time with his father as he seeks to be engaged in more male orientated activities much the way he now does. The evidence confirms that the son engages in a number of sporting and recreational pursuits with his father which he very much enjoys.

(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

This sub-section has no application to this case.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Each of the parents has a good and appropriate attitude towards the son. He is a very precious child for them. He is their only child and they each love him very much. Subject to what appears elsewhere in these reasons, I conclude that each parent has demonstrated they are a responsible parent.

(j) any family violence involving the child or a member of the child’s family

This sub-section has no application to this case.

(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

There are no current family violence orders.

(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

In this case it would be in the son’s interests to finalise the court proceedings between their parents.

(m) any other fact or circumstance that the court thinks is relevant.

Part of the mother’s case is that the father should consider moving to France to be close to the son. She says the case should not consider only her desire to move to France but further the Court should consider the father’s ability to move to France at the same time.

The father has give evidence that he would consider moving closer to France if the mother is allowed to relocate with the son. I accept he is genuine in his evidence and I accept that he will move closer to France if he can find a business opportunity to allow that. It is not in the son’s best interests for his father to be unemployed. The father pays Child Support at the moment and it is important for the son’s sake that he do so in the future. It is probably more important that the father be close to the son’s residence in order to able to spend substantial and frequent time with him.
The father said his lease on the premises he rents for his business expires in the middle of next year and that would be the first opportunity he would realistically have to consider moving from Australia. I accept that evidence.

Section 60CC(4) The extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

Each of the parents has received a commendation from the Family Consultant for the way in which they have been able to cooperatively parent the son since their separation. I find that each parents has fulfilled their responsibilities in the manner referred to in this subsection.

Section 60CC(4A)

In determining the matters referred to in section 60CC(4) I have considered events which have occurred since the separation of the parties. Relevant portions of the evidence have been referred to elsewhere in these reasons and include complaints by the mother of the son being returned to her care by the father if there has been an emergency at the father’s workplace which requires his attendance at work or where the son has been sick.

Primary Considerations under Section 60CC(2)

(a) the benefit to the child of having a “meaningful relationship” with both of the child’s parents

In international relocation cases it is important that the “parental relationship” can be preserved notwithstanding a physical separation for lengthy periods of time between parent and child. The continuation of the parental relationship in an undamaged form, in a form which enables regeneration within a short time of the reintroduction of face to face contact following lengthy absences, is frequently the focus of attention. The parental relationship as described by Dr L (as referred to earlier in these reasons) is “the closeness or attachment between the children and the parent”. In A and A (see earlier reference) I considered what might be seen as the core ingredients of the parental relationship from the child’s perspective. In that case I was considering the mother’s application to relocate the children from N.S.W. to S.A. I thought some of those core components would include:-
(a)“That the children know their father loves them, is interested in them and that they are very important to him.
(b)That the children trust their father.
(c)That the children have a sense of comfort, security and warmth which can be felt by them when they are in their father’s company;
(d)That the relationship includes a tactile aspect, which is reserved for him
There may be more and less obvious aspects to the relationship however they may not fall into the category of being “core or fundamental” to the particular “parental relationship” in each case.”

The extent or strengths of the core components of the child’s relationship with the parent I think is frequently described as “attachment” as referred to in the quote above from Dr L.
Considering Primary Consideration (a) of section 60CC(2) above set out, the first thing to note is the somewhat unusual wording. In context it must mean that the trial judge is required to consider for each of the children the subject of the litigation, whether it is in that child’s best interest to have a meaningful relationship with each parent.
What is meant by the words “meaningful relationship”? There is no definition in the Act to assist Judges understand this term. Applying an ordinary English meaning to the words it must mean more than a “relationship”. The word “relationship” in the “Oxford Dictionary” (Concise) has a number of definitions, the most apposite being “connection or association” or “an emotional association between two people.” What then makes a relationship meaningful? Again the Concise Oxford Dictionary defines meaningful as “full of meaning; significant.” One could chase down the meaning of words indefinitely for example the word “significant” is defined by the shorter Oxford Dictionary to mean:
"1. having a meaning; indicative. 2. having an unstated or secret meaning; suggestive. 3 noteworthy; important; consequential.”

The term “meaningful relationship” may potentially refer to the time the parents can spend exercising their relationship with their children. It could refer to the quality of the parental relationship or to both those aspects. It could be considered from the child’s point of view or alternately from the parents point of view. In the absence of any limiting suggestion in the section I think the best approach is to give the term all its possible relevant meanings and interpret it broadly rather than narrowly.
One sensible approach, in relocation cases, might be to treat the words as meaning the children should be able to spend sufficient time (if equal shared time is not appropriate or feasible in the circumstance) so as to ensure the parental relationship is not damaged.
In this case it is demonstrably beneficial for the son to have a “meaningful relationship” with each parent where that term embraces all of its possible meanings. The son has a good and close relationship with each of his parents. He has been spending seven nights per fortnight in the care of his father together with time for holidays. The father is involved in nearly all aspects of the son’s life as indeed is his mother. By any definition I believe the father in the current arrangement and circumstances has a meaningful relationship with the son. He spends significant time with the son (as defined in the Act) and he is assessed by the Family Reporter to have a good and close relationship with him. As the son appears to be thriving in the current arrangement it is assessed by me to be beneficial to him.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In this case there is no suggestion that the son would be subjected to physical or psychological harm or exposed to abuse whilst in the care of either parent.
I am required by section 60CA of the Act in deciding whether to make a particular parenting order, to have regard the best interests of the child as the paramount consideration.
Section 61DA requires the Court when making a parenting order to apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) provides that the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. There is no such a ground in this case.
Notwithstanding that the presumption does not apply it is still open to the Court, as I see it, to make an order for equal shared parental responsibility.
Having determined that it is appropriate to make an order for equal shared parental responsibility I am required under section 65DAA(1) of the Act to consider whether the children spending equal time with each parent would be in the children’s best interests. I am also required to consider whether the children spending equal time with each of the parents is reasonably practical.
Before considering these matters and others under that section I need to look at the case law which has flowed from the High Court and the Full Court dealing with the complexities of relocation cases and the guidelines which have been formulated to assist trial judges in these cases.

Relevant Law in relation to relocation:

The principles to be applied in relocation cases are enunciated in A-v-A Relocation Approach (2000) FLC ¶93-035 and H-v-L (2000) FLC ¶93-036. In A-v-A (supra) the Full Court noted the leading authority for the determination of a parenting case where the proposals of one of the parties seeks to relocate the residence of a child is AMS -v-AIF; AIF-v-AMS (1999) FLC ¶92-852. The Full Court noted that the High Court's finding, in that case, that "relocation cases are but a particular example of proceedings under Part VII".
The Full Court held the following binding principles of law flowed from the decision in AIF-v-AMS; AMS-v-AIF (supra) when a parenting case involved a proposal to relocate the residence of a child:
·the welfare or best interests of the child under the relevant legislation, remains the paramount consideration but not the sole consideration
·a court cannot require an applicant for the child's relocation to demonstrate compelling reasons for the relocation of a child's residence "contrary to the proposition that the welfare of the child would be better promoted by" maintenance of the existing circumstances.
At the conclusion of its decision in A-v-A (supra) the Full Court set out, in addition to the two above binding principles, the following guidelines to be applied in relocation cases:
·“A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (1) of that subsection.
·The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case.”
The Full Court in the case of D and SV (2003) FLC ¶93-137 revisited the question of relocation and looked at what changes might be expected to the “parental relationship” with the non resident parent if the relocation was not prevented.
In D and SV the Full Court set out how the principles to be applied in

re-location cases have emerged. It seems to me that the distillation of those principles gives rise to the following:
(a)The guidelines set out in A v A; Relocation approach (2000) FLC ¶93-035 should be followed;
(b)The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC 93-112.
(c)Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.
(d)In most relocation cases it is inevitable that the quantity and nature of contact with the non residence parent will change. As a result the “parental role” changes. The very important matter for the Court to consider is whether the nature, frequency and duration of contact which could be expected to occur following the proposed re-location is adequate to ensure the “core values” or “fundamentals” of the “parental relationship” are maintained. With some children the quantity and frequency (more particularly the reduction in quantity and frequency) of contact with the non residential parent will, as a result of the relocation, be such that because of the developmental stage of the child or the particular make up of the child, the parental relationship will be damaged, perhaps irreparably.
(e)There may be other reasons why the Court would grant or refuse the injunction against the resident parent.
As referred to earlier the “parental role” is best described, “the means by which core values and behaviours are exchanged, and influence applied”. The “Parental relationship” is “the closeness or attachment between the children and the parent”.

In a decision handed down on the 14^th February 2007 Federal Magistrate Altobelli (formerly Professor of Law) considered in depth the impact of the Family Law Amendment (Shared Parenting Responsibility) Act 2006 on relocation cases. I here incorporate part of his judgement M & K [2007] FMCA Fam 26:
“Brown FM considered the meaning of “meaningful” in the context of s 60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s 65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues.
...
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[1]
...
In U & U,[2] the majority judgment again addresses the freedom of movement issue, at pp 89 090-1. In the majority judgment their Honours observed as follows:
Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[3]
It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But, as the High Court again clearly articulates, whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s 60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s 60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[4] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s 65DAC. The definition of major long-term issues in s 4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The High Court identified in AMS v AIF and AIF v AMS[5] that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a “freedom” is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation.”

[1] P & P [2006] FMCA Fam 518 at 21.

[2] U and U (2002) FLC 93-112

[3] U & U (supra) at 89,090-1

[4] See, for example, “Discussion Paper on Relocation” (Family Law Council, February 2006) at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 AJFL 113-114.

[5] [1999] HCA 26

It seems to me that FM Altobelli clearly outlines the complexities now being faced by trial Judges. It is necessary to integrate into a reasonably well understood line of authority, flowing from the Full Court of the Family Court of Australia relating to re-location cases, the amendments to the Act which became effective in July 2006.
I have highlighted in the above set out quotation FM Altobelli’s attempt at defining “meaningful relationship” as used in section 60CC(2)(a). It seems to me that the discussion surrounding the meaning of the words is a good one and I agree with his interpretation.

Considering the guidelines development by the Full Court

(a)The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

In this case each party made submissions which identified advantages and disadvantages of each proposal for the care of the son.

The Mother’s Proposal

The mother’s proposal is contained in exhibit M1 and I do not repeat every part of that exhibit here. In broad terms the proposal is that she would move to live in France with the son in about September next year which would be about three weeks before the commencement of the French school year. Following the relocation the son is to spend time with his father during school holidays some of which are to be exercised in France and some may be exercised elsewhere in the world at the father’s discretion. There is also some provision for time to be spent during the school term provided notice is given and it does not exceed 7 days duration. The mother offers to supply her home for use by the father for some of the holiday time he could spend with the son in France. The mother proposes the parties share equally the cost of air travel for the son. Although it is unclear in the exhibit M1 it seems the mother proposes only one trip to Australia each year for the son.
The advantages and disadvantages for the son of this proposal
I here set out in dot point the advantages which I can identify from the evidence:
·The son will live in France with his mother who it is reasonably anticipated will be happier in her circumstances and therefore less likely to progress to severe depression.
·The mother will have her own home to live in and therefore will be able to live with less expenditure on matters such as rent. She will also have security of ownership and less likely to have to change residences.
·The mother will have the comfort of her siblings and their families living nearby. She will also have friends and acquaintances in the area of her house.
·The mother will be reinstated to her home land of her region and should feel well settled.
The disadvantages to the son of the mother’s proposals are identified as follows:
·The son will not have the same frequency of face to face time with his father which he presently enjoys.
·Given the son’s age and stage of development there is a high probability that his relationship with his father will change and to that extent be damaged.
·As the son is a developing male child he already engages in particular activities with his father which appear preserved for the two of them. These activities have been articulated in the evidence but include water sport, physical games and other games such as chess. These activities enable the son to identify with his maleness and learn from his father who will be a role model for him. In France the son will have to use an uncle or other acceptable male figure as his role model however, it is unlikely to feel the same for the son. Otherwise all these activities will have to be crammed into the small amount of time available to father and son each year.
·The son will not be able to enjoy the tactile aspects of the relationship he now has with his father.
·If the mother’s health does not improve in France then the father will not be available to shield the son from his mother’s sadness. If she was to progress into severe depression then the son would need to be cared for by the mother’s relatives as there is little hope that the father would be able to react instantly to leave his business and travel to France for some time to care for the son.
·The son will lose his connectivity with Australia and his life here.
·The burden of care will fall to a greater degree on the mother at a time when she is not emotionally at her best.
·The cost of the transport for the son to travel to Australia may become too great for one or both of the parents.
·The son will not have his father participating in all aspects of his life as he does now.
·If the son pines for his father when he is taken to France then the mother may not cope well with an unhappy child.

The father’s proposal

The father’s proposal is that the son would remain in Australia at least until he is 10 or 12 years of age at which time the situation would be reviewed and the son would have an opportunity to have a say in where he would like to live. In the meantime the parties would continue to share in the son’s care on a basis which approaches equal time.
The advantages and disadvantages to the son of this proposal
I here set out in dot point the advantages which I can identify from the evidence:
·The son will be able to spend time with each of his parents frequently.
·It will enable a program of care to continue which has given rise to a well adjusted confident and predominantly happy child.

The disadvantages for the son of the father’s proposals are identified as follows:
·The mother would stay in Australia and might reasonably be predicted to move towards severe depression.
·If the mother became severely depressed she would be unlikely to continue to care for the son and therefore the relationship between the son and his mother would be severed to some extent.
·The son would have to grow up in a family where one of his parents was severely mentally debilitated through illness.
·To this point of time the mother has played a very significant and primary caring role in the son’s life. If he was to loose her availability to him at this time it is reasonably predictable that he would be very adversely effected.
The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC ¶93-112 Bolitho v Cohen (2005) FLC ¶93-224.
I am required to consider whether there would be any other order which could be made other than selecting one of the party’s proposals and making orders pursuant to that proposal. I propose to deal with this matter when I come to consider what orders the Court should make.

Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.

Since the amendments to the Family Law Act which became effective in July 2006, the Court has been required to consider matters it was not required to consider before the amendments when hearing children’s cases. One of the matters to be considered is the presumption contained in section 61DA of the Act. In this case the mother, in exhibit M1 does not seek any order in respect of future parental responsibility. This, I have noticed has become a feature of relocation cases (that is the party wishes to move with the children does not ask for an order to be made which recognises the presumption in section 61DA). The father does seek such an order. In the absence of any application, or otherwise the Court is required to apply the presumption set out in that section unless another provision of that section applies. In this case I can see no reason why the presumption would not apply.
If the presumption applies then the Court needs to move to and consider section 65DAA. That section requires firstly, (in section 65DAA(1)) that if I propose to make an order for the parents to have equal shared parental responsibility for the children, then I have to consider whether the children spending equal time with each of the parents would be in their best interests. I am also required to consider whether equal time would be reasonably practical. If it is I am to consider making such an order.
If I decide it is not in the children’s best interests to make an order for equal shared time with each parent I am to consider whether the children spending substantial and significant time with each parent would be in their best interests. I am also to consider whether such an order would be practical and if it is consider making such order.
Substantial and significant time is defined in subsection 3 of 65DAA.
In determining that an order is “Reasonably Practical” I must consider the matters set out in sub section (5) of section 65DAA.
In this case the evidence is that the father is able to participate in a shared equal time care arrangement for the son. He proposes that the son be in his care each alternate weekend from after school on Friday until before school on Tuesday and in the other week from Sunday at 6.00 p.m. until before school the following Tuesday. He also proposes holiday time and special occasions with the son. Thus during school term the father seeks that the son spend seven nights each fortnight with each of his parents.
Given the nature of the relationship between the son and each of his parents, I conclude it is appropriate for the parties to have a shared equal time arrangement for the care of the son. To this extent the Family Report recommends a shared equal responsibility order be made for the care of the son together with orders for the son to spend significant and substantial time with his father as had been agreed between the parties at an earlier time. I understand the Family Reporter to be referring to the current orders in place which provide for the son to be with his father seven nights per fortnight. The son is very comfortable in the care of each of his parents. There is no evidence which would satisfy me that the son has been adversely affected by the current regime of time he spends with each of his parents. Further, should it be determined by me that the son should be allowed to relocate with his mother to France it will be important in the meantime for the son to spend as much time with his father as he reasonably can.
In relation to section 65DAA(5) I find that the parties do communicate at a high level and have been able to cooperate in the care of the son since the end of 2005 in a reasonably sensitive manner.
The son has, until this stage of his life been cared for by each of his parents. In earlier parts of his life the mother played a greater role in the day to day care of the son than the father. Since the parties separation the father has spent time with the son frequently and regularly. Under the current arrangement the son spends 7 nights each fortnight with his father. In such circumstances I do not believe it is possible to say that the mother is the “undisputed residence parent”.
As there is no undisputed residence parent this consideration has no impact on this case.

Any other reason the Court might have to restrain the resident parenting re-locating the children’s physical residence.

There is no other matter which needs to be canvassed under this heading.

Conclusion

This case ultimately crystallises to an assessment of the risk to the son 's welfare incumbent in each of his parents proposals. Will the son be more likely to have his development damaged by moving to France with his mother or continuing to reside in Australia.
The conclusion I reach is that the son should live in France with his mother as and from the commencement of the French school year in September 2008. I reach that conclusion with great sadness for the son who I predict will harbour some guilt for the circumstances of his father. It is a matter of considerable regret that the father was not able to bring himself to agree to the son moving to France with his mother in September next year after the father had heard the evidence of Ms D in Court on the 3^rd day of the trial. I can only conclude that he did not believe what Ms D said about the possible outcome for the mother if she was to become severely depressed. Alternatively there is the possibility that he concluded that it was “worth the risk”. In my view the risk is far too great and I do not propose to expose the son to the risk of having to live with a mother who is severely depressed.
These cases involve a balance of advantages and disadvantages to a child of proposals by each parent. This case points up the tragedy for the son of having parents who are unable to agree about the care of their child following a separation. There is no doubt in my mind that the son will have a different relationship with his father in the future to that which he enjoys now. Different in a way which undermines some of the comfort and closeness (attachment) which he has at the moment. In my opinion the mother does not have a clear understanding of this. I understand, from her evidence, that the mother sees the father’s role in the son’s life to this point of time as being less important than her own. I believe she sees that to be the case for the future even if she was to stay in Australia. I do not think the son would agree with her.
I spoke earlier in these reasons of my concern the mother may not be genuine in the level of grief she was displaying in Court and when she saw the Family Consultant and her Psychologist. As I have already said I really am unable to determine where the truth lies in relation to that matter. If however, the mother has manufactured some of her grief in order to create a picture that her depression is more serious than it actually is, or to somehow manipulate the Court or the father, then she has done her son a great disservice. She will have stolen something from her son which is very precious, namely the ability to have both of his parents in his life on a daily basis and as a regular part of his life during his childhood.
There is no doubt in my mind that the parents have been working together well to try and ensure their son has care from each of them. Ms D spoke of the mother lamenting the loss of full custody of the son following the separation. Some sinister aspect was sought to be made of this statement in the trial however, I do not see it as such. I understand what the mother was referring to was nothing more than the lament of most separated parents who no longer have the opportunity to have their children with them 100% of the time. Most parents find it hard to be separated for any time from their infant children.
Were it not for the mother’s current state of depression and more importantly the prospect of her progressing into severe depression, I would have concluded that the best interests of the son dictated that the mother not remove him from Australia at this time. I agree with the father that when the son is 10, 11 or 12 it would be a more developmentally suitable time for him to move to France with his mother if that was then appropriate and otherwise in his best interests.
I do accept the father’s evidence that he will consider moving closer to France when his lease expires next year. I accept his evidence that he would be unlikely to be able to return to live in France and be able to conduct the same type of business he currently operates. His options appear to be Asia and Spain. The advantage of Asia would seem to be that the work would be seasonal and therefore allow the father to spend more time in France with the son.
The time the son spends with his father between now and the time he returns to France with the mother is sought to be reduced by the mother. The reduction is slight but meaningful. At the moment, under the interim orders, the time which the father has with the son orientates to a large extent around his ability to be away from his business. The mother does not work and it is unlikely she will work before leaving Australia to live in France. She says that the current orders and arrangements do not provide for her to spend any weekend time with the son. Were it not for the fact that the son and his mother will leave Australia in September 2008 to reside in France I think there would be merit in her complaint. However, the mother and the son will have many uninterrupted weekends together in France in the future and it is important for the son to spend as much time as he can with his father before he leaves. The mother also says that the time the son spends with his father during the school week can be disruptive to the son especially if he is unable to have sufficient sleep. This she says effects his ability to concentrate on his school work.
As stated earlier, it seems to me that the son should be sharing equal time with his parents. The mother should facilitate all reasonable requests by the father for additional time with the son between now and the time the son leaves Australia in September 2008.

The Orders to be made by the Court

An order should be made for the parties to have equal shared parental responsibility for the son. An order should be made allowing the mother to remove the son from Australia for the purposes of residing in France three weeks prior to the commencement of the French school year in 2008. Prior to the departure from Australia of the son with his mother the son should spend time with his father as the father seeks in his Amended Response filed on 18 October 2006 at least as is specified in paragraphs 2 through to 10 of that documents. A number of the orders sought are not necessary as the parties cooperate well in relation to sharing in the son’s activities and school.
In paragraph 11 of his Amended Response the father seeks an order restraining each of the parties from enrolling the son in any school other than his current school namely the L school. This order seems to arise from a threat by the mother that she may have to move to some place more affordable if she is prevented from leaving Australia as she requested. Given my findings so far it seems unnecessary to make such an order. The mother’s evidence was that should she be required to seek other accommodation pending her leaving Australia she would seek that accommodation in close proximity to the son’s school.
The father seeks an order for the child’s name to be registered with the Australian Federal Police and consequently restraint on the parties from removing the son from Australia otherwise than in accordance with these orders. He then seeks orders allowing the removal of the son from Australia by each of the parties. In the circumstances of this case it does not seem to me to be appropriate or practical to have the son’s name registered with the Australian Federal Police as requested by the father. I will however restrain each of the parties from removing the son from Australia without the consent of the other. This is a matter in which they have been readily able to agree following the separation up until this point of time.
Orders should be made for the parties to agree upon any extra curricular activities for the son before he is enrolled in such an activity (whilst in Australia).

Upon the mother relocating to France it seems that the proposals she has for time the son should spend with his father represent a reasonably practical proposal. I do however conclude that the mother should be more flexible in providing time for the son and his father in the event of the father being able to make additional trips to France each year.
Until the Summer school holidays in 2010 the son should be accompanied on his flights to Australia. If the father has relocated to Asia so that the son can fly from Paris to that location as one flight sector, the parties may agree that the son can fly unaccompanied.

I certify that the preceding one-hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 26 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LAMEREUX & NOIROT

[2007] FamCA 422

26 April 2007

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