Rixon & Brenner

FAMILY COURT OF AUSTRALIA

RIXON & BRENNER

[2008] FamCA 242

FAMILY LAW – CHILDREN – Best interests – Emotional abuse – Meaningful relationship with both parents – Relocation

Family Law Act 1975 (Cth)

APPLICANT:

Mr Rixon

RESPONDENT:

Ms Brenner

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

PAF

1478

2005

DATE DELIVERED:

14 April 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

7, 10-13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC with Ms Hausman

COUNSEL FOR THE RESPONDENT:

Mr Schonell

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

Orders

The orders made on 30 September 2005 in the Family Court of Australia at Parramatta are discharged.
The child, …, (“the child”) born on … February 2001 live with the father.
The father be allowed to relocate the child’s residence from Australia to the United Kingdom.
The child shall spend time with the mother as follows:
(a) From the date of these orders until 5.00 pm on 17 April 2008
(b)For the duration of each of the short school holidays in the United Kingdom, such time to commence at 9.00 am on the day after the conclusion of school term and conclude at 9.00 am on the Saturday just before school commences with such time to be exercised in the United Kingdom
(c)For one half of the long United Kingdom school holiday with the mother to have the first half in odd years and the second half in even years, such time to be exercised in the United Kingdom or Australia
(d)For one week during mid school term break if the mother is in the United Kingdom
(e)Liberal telephone and email contact commencing 15 May 2008
(f)By video link through a web cam at times and dates to accommodate the child’s needs commencing 15 May 2008.
Each of the parties have parental responsibility for the day to day care, welfare and development of the child whilst the child is in their respective care.
Pursuant to the provisions of the Family Law Act 1975, the father have sole parental responsibility for the child.
On or before 5.00 pm on Thursday, 17 April 2008 the mother do all acts and things to deliver or cause to be delivered to the father’s solicitors the child’s passport(s) be they English or Australian.
For the purposes of delivery of the child for the purpose of Orders 4(a) and 4(b) and 4(c):
(a)As to Order 4(a), the changeover shall be at the Family Court of Australia, Sydney Registry
(b)As to Order 4 (b) and (d), the changeover shall be at the L Hotel, …, United Kingdom
(c)As to Order 4(c), the changeover shall be at the F Hotel, Sydney, Australia if the mother wishes to exercise the time in Australia, otherwise the changeover will be at the L Hotel, …, United Kingdom. The mother is to give the father at least eight weeks notice in writing as to whether she will exercise the time in the United Kingdom or Australia.
The father shall provide the mother with copies of all school reports of the child within 30 days of receipt by him of such reports.
The father keep the mother informed of the child’s health and any major ailments and any significant social or sporting achievements of the child.
Each party keep the other informed of their residential addresses and telephone numbers and further that each party must inform the other of any proposed change of address at least seven days prior to change of address, and in such notice must provide the other with the new address details and any change to telephone numbers.
The mother shall do all acts and things and ensure that the child is not left in the sole care of her husband, Mr Brenner.
The mother shall do all acts and things and ensure that the child is not disciplined in any way (including physical chastisement) by her husband,

Mr Brenner.
The mother is restrained by injunction from denigrating the father and his family in the presence of or hearing of the child and shall do all acts and things and ensure that the father and his family are not denigrated in the presence of or hearing of the child.
The mother is restrained by injunction from initiating or allowing any third party to engage in discussions about the proceedings with or in the presence of or hearing of the child.
The mother is to bring the child to Child Dispute Services, Level 2, Family Court of Australia, Sydney Registry, 97-99 Goulburn Street, Sydney at 2.30 pm on Thursday, 17 April 2008 and that the child there have explained to him by the Independent Children’s Lawyer and the Family Consultant, Ms F, the nature and effect of these orders and in particular inter alia that:
(a)These orders are as a result of the Court’s determination and not his and that they will afford him the opportunity, in the Court’s view, of having a relationship with both his mother and his father in a way which it considers is best for him
(b)The decision does not mean that he is not permitted to love both his parents and indeed his step father
(c)It is hoped by the Court that the child will be able, as a result of this decision, to express his feelings for each of them in a free and unfettered way.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these Orders create, and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The issue of costs is adjourned for consideration to a date to be fixed on application to be made within 21 days to Justice Fowler’s Associate.
In the event that an application is made for an order for costs, by either of the parties or the Independent Children’s Lawyer:
(a)any applicant party is to file and serve an updated Financial Statement with a submission in writing as to the orders for costs sought by that party within 21 days and
(b)any respondent party to any such application is to file and serve within a further 14 days of the service of such a submission and statement an updated Financial Statement and a submission in writing in reply.
(c)the Independent Children’s Lawyer is to file and serve a submission on any claim he has for costs within 21 days together with particulars of the orders sought by him.
In the event that no such applications are made within 21 days from the date hereof there will be no order as to costs.
The exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas be returned to the party who produced it.
The matter be removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1478 of 2005

Mr Rixon

Applicant

And

Ms Brenner

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings under the Family Law Act (to which the provisions of Division 12A of Part VII of the Family Law Act apply) brought by a father seeking orders changing existing orders so that his son lives with him, relocates his residence to the United Kingdom, and spends holiday time with his mother in the event that the mother continues to reside in Australia, and more extended time in the event that the mother takes up residence in the United Kingdom.
The application is brought after orders were made in proceedings earlier taken in the United Kingdom that the child live with the mother and that the father spend time with the child during school holidays and the mother was given leave to relocate to Australia.
The mother seeks some variations of the order originally made in the United Kingdom and reflected in a “mirror order” made in Australia but essentially a retention of the status quo.

Background Facts

In February 1948 the father was born and is aged 60 years.
In January 1951 the mother’s present husband was born and is now aged 57 years.
In June Ms D the father’s present partner was born and she is now aged 40 years.
The mother was born in July 1970 and is aged 37 years.
In April 1974 the father’s daughter by his prior marriage, N, was born and she is now aged 34 years.
In February 1977 the father’s second daughter by his prior marriage, J, was born and is now aged 31 years.
In 1989 the mother and the father commenced a relationship. They cohabited for a period of time.
In 1990 the parties separated for the first time.
In 1995 the father was involved in a car accident and suffered back injuries.
In 2000 the parties recommenced their relationship. They lived in the father’s home in S in the United Kingdom and also rented a flat in London.
In May 2000 the mother alleged that the father said to her “I put [J’s] head through this door. Put her head through it with such force that it took the door off its hinges. She deserved it …”
In May 2000 the mother alleged J told her “… dad was beating [K] … I called mum and […] came over to pull him off [K].”
In mid 2000 the mother alleged that the father had arranged to have his former wife’s new partner killed.
In February 2001 the child was born of the relationship. He is now aged 7 years.
Following the birth the mother was assisted by a nanny three days per week and a cleaner two days per week. The father alleges the mother suffered Post Natal Depression.
In February 2003 the parties finally separated.
In 2002 the mother said that the father had the sole care of the child each weekend and assisted at other times, in keeping with his work hours.
The mother asserted that from the beginning of 2002 and during that year all sexual experiences with the father were against her will and that the father suggested she should go to Amsterdam so that he could witness her having a lesbian sexual encounter.
In February 2003 the parties separated and the father occupied the S home.
Following separation the mother first moved in with her own mother in Northern Wales and then to her own home in London. The father provided funds to assist in the renovation of that home.
In April 2003, with the mother again living in North Wales, she refused the father contact with the child.
In April 2003 the father filed an application in the Principal Registry of the Family Division of the High Court of England and Wales seeking contact orders.
In May 2003 the mother and Mr Brenner commenced cohabitation in London and then in North Wales.
In May 2003 the father filed an application for orders preventing the mother from removing the child from England and orders were made accordingly to this effect.
In 2003 the father and Ms D commenced a relationship.
In June 2003 interim orders were made that the father have contact with the child each weekend.
In July 2003 the mother agreed to a parental responsibility order in favour of the father from which agreement she resiled, and the father filed an application seeking such an order.
In July 2003 the mother, the child and Mr Brenner lived in Australia from July until September 2003.
In September 2003 the mother and child returned to the United Kingdom and they were joined shortly afterwards by Mr Brenner.
In November 2003 consent orders were made granting the father parental responsibility.
In December 2003 the mother filed an application for orders to remove the child from England to Australia on a permanent basis.
On 23 December 2003 following a contravention of a court order by the mother for the provision of contact a penal notice was endorsed on the order.
In March 2004 the mother and Mr Brenner married.
In March 2004 statements were filed in the United Kingdom proceedings by the mother and the father, the mother’s mother, and the mother’s husband.
The father filed an application for residence of the child but that application was ultimately withdrawn.
In April 2004 the first Children and Family Court Advisory and Support Services report (CAFCASS) was made by Ms W.
In April 2004 Her Honour Judge Coates adjourned the mother’s application to relocate to Australia and further orders as to contact between the father and the child were made.
In October 2004 the mother made a further statement in the United Kingdom proceedings.
In November 2004 there was prepared and presented an updating CAFCASS report by Ms W.
In November 2004, Her Honour Judge Coates adjourned the matter until July 2005 but gave the mother permission to reside in Australia with the child from January 2005 and made further orders for contact with the father.
The father made an application for leave to appeal the decision which application was refused.
In January 2005 the mother and the child commenced living in Australia.
In January 2005 the father sent a parcel to the child in Australia through DHL Carriers with a birthday gift for the child, and the parcel was returned to the United Kingdom.
In April 2005 the father came to Australia with his daughter J and spent time with the child in Cairns.
In July 2005 Norrie J made final orders which permitted the mother to relocate the child’s residence to Australia and provided contact periods both in Australia and in the United Kingdom, for the father.
In July 2005 the mother and the mother’s husband departed for a three month tour of Europe with the child before taking up permanent residence in Australia.
In September 2005 the mother and the mother’s husband took up residence in northern Sydney and the child was enrolled in N School.
On 30 September 2005 orders were made in the Family Court of Australia mirroring those orders made in the United Kingdom.
In January 2006 the father had contact with the child for three weeks until

26 January 2006
, at Coffs Harbour.
In early 2006 the mother and her husband relocated to the South Coast of New South Wales.
In April 2006 the father had school holiday contact with the child at Coffs Harbour.
In June 2006 the father had two weeks contact with the child in the United Kingdom.
In October 2006 the father had school holiday contact with the child at Coffs Harbour.
On 11 October 2006 the child, whilst with the father, fell off a horse whilst riding at a trail ride.
On 15 October 2006 the child was returned to the mother’s care and the mother’s husband took photographs of the child’s injuries. He recorded the time and date by sending them to himself by email.
On 16 October 2006 it is alleged that a conversation took place with the child’s teacher on the morning that the mother and the mother’s husband delivered the child to school, about the injuries which the boy had suffered, and that the teacher raised questions as to whether they were incurred in a fall from a horse.
On 16 October 2006 the mother sent an email to the father concerning the accident.
On 17 October 2006 the mother and the mother’s husband took the child to the Hospital and it is alleged by them that the police and the Department of Community Services were telephoned on the same day, at a suggestion of the Hospital.
On 17 October 2006 the father responded to the mother’s email.
On 18 October 2006 the mother alleged a telephone conversation took place with Mr Q of the trail riding centre about the accident.
On 18 October 2006 an email was sent by the trail riding centre to the father in relation to the horse riding accident.
On 19 October 2006 the mother alleged that the child said to her “My father hit me on the face.”
On 21 October 2006 the child demonstrated to the mother’s husband, it is alleged, how he was hit on the face with a clenched fist.
There was an interchange of photographs of the child’s injuries and emails between Mr Q and the mother’s husband. There is nothing in the email from

Mr Q which is at odds with either the father’s or the child’s recounting of what happened on that trail ride, namely that he fell from a horse.
On 27 October 2006 the mother’s husband telephoned the Family Law Hotline and asserted that he reported that the child had disclosed that he was hit by his father and that the horse riding school’s reports contradict the report of the father about the accident. It is asserted that he was advised to send a letter to the father.
On 27 October 2006 the mother sent an email to the father asserting that he was:
“abusive to me during our relationship both verbally and sexually. There was always an underlying threat of physical violence. You raped me. On the last three occasions that you had sexual intercourse with me at the end of 2002 you raped me.”
There are other assertions of inappropriate behaviour during their relationship but no assertions that the father had hit the child.
On 28 October 2006 the father replied to the email denying the accusations and described them as foul untruths. He says:
“The spectre of you bringing [the child] up with such foul untruths is alarming to such an extent you can rest assured you will be required to substantiate your accusations in some detail to the relevant authorities.”
On 21 December 2006 after an exchange of emails, the mother’s husband emailed the father that the child would not be available for Christmas holiday contact with the father.
On 22 December 2006 the father initiated proceedings and on that day Judicial Registrar Loughnan made orders providing for defined dates of contact ex parte and adjourned the matter to 19 January 2007.
From 23 December 2006 the father had three weeks of holiday contact with the child.
The child was returned to the mother who observed that two of the child’s teeth wobbled and alleged that she was advised by the dentist that the child’s teeth should not be wobbly. The father’s evidence, and I accept it as reliable, is that nothing occurred on the child’s visit to cause the teeth to be in that condition other than the child’s age. He pointed to a grandchild who is one week older than the child and had lost teeth.
In February 2007 the mother attended on a Counsellor and was referred to a Social Worker by Dr S, a General Practitioner, for stress management. The mother attended on eight sessions with the Social Worker in 2007.
In April 2007 the father had school holiday contact with the child at Coffs Harbour.
In April 2007 the father sought some variation of the interim arrangements.
In May 2007 the mother filed a Notice of Abuse or Family Violence and an Application seeking to reduce the father’s contact to two occasions per year and that it be supervised. She filed with that Application an affidavit prepared by herself.
In May 2007 the matter was listed before the Court and an Independent Children’s Lawyer was appointed and a Family Report was ordered. The mother’s Application to reduce contact was dismissed and the father’s application to increase it was also dismissed.
In June 2007 the father had two weeks contact with the child in the United Kingdom.
In July 2007 the child’s telephone contact with the father then and since, the father asserted, except for two occasions, has been limited to “hello” and “goodbye.”
The father’s further Amended Application was filed in July 2007 in which he sought orders that the child reside with the father in England and spend time with the mother in Australia.
In July 2007 the Family Consultant, Ms F, conducted interviews in the father’s home in England with the child, the father, the father’s partner and the father’s family.
On 30 August 2007 the Family Consultant interviewed the mother, her husband and the child at Wollongong.
On 5 September 2007 the mother sent an email to the Family Consultant. She reported on a conversation with the child in which the child said to her:
“well I did what I was supposed to do … I told [Ms F] that my father hit me and that he put [J’s] head through the door and that he doesn’t pay his taxes”.
The email, which is part of the Family Consultant’s documents, goes on to express the views of the mother about the father and in particular sought to equate the child’s right to know about his biological father to that of an infant born of an egg donation to know about the donor. The email revealed much about her and perhaps gives some clues to her attitudes.

In September 2007 the Family Report was released to the parties and it recommended that the child live with the father.
In October 2007 the father had school holiday contact with the child at Coffs Harbour.
It is alleged by the mother’s husband that thereafter the child had an extensive conversation with him about matters relating to the proceedings and comments he had made to the Independent Children’s Lawyer.
In October 2007 the hearing of the application was expedited.
In late October 2007 the mother’s husband alleged that the child told him that his father took him up on a cliff at Coffs Harbour and threatened to throw him off if he did not behave. The allegation was reported to the police by the mother and the mother’s husband. The mother reported the alleged conversation between the child and the mother’s husband to the Department of Community Services and sought counselling for the child.
In November 2007 the mother commenced counselling with Ms C, a Psychologist, for stress and trauma related conditions.
In December 2007 the mother’s General Practitioner referred her for a further six sessions with Ms C for treatment for stress.
In December 2007 the mother attended on Ms N of the Department of Community Services.
On 14 December 2007 the mother attended on Ms Beckhouse, the Independent Children’s Lawyer.
In December 2007 the mother took the child for an interview with Ms N of the Department of Community Services. Following that interview Ms N informed the mother of the child’s express wishes and she, according to Ms N, was surprised but accepted that.
That information according to the mother was conveyed in the following terms, “You are not going to want to hear this but [the child] wants to see his father”.
Ms N further reported to the effect that the child did say that the father was about to push him off the cliff and that he had “punched him” but he said it in the same tone as he said that the mother’s husband had slapped him and kicked him up the bum. The mother denied that she was surprised that her son wished to see his father but said that this expression of view in these circumstances convinced her that he really did want to see his father. The child also is reported by Ms N as saying “Mum told me [Ms F] [the Family Consultant] had lied to the court about what I said”. The mother denied this.

The Issues

With whom should the child live.
What (if any) contact should the child have with the parent with whom he does not live.
What, given the different proposals of the parties, is in the best interests of the child having regard to the matters required to be taken into account under the Act.

Matters arising from the earlier litigation between the parties

The two CAFCASS reports referred to above and procured in relation to the United Kingdom proceedings, granting the mother leave to reside with the child in Australia, adumbrated problems which the child was likely to face by reason of the mother’s attitude to the father including in the report of the

5 April 2004
:
a)“During the joint meeting on 1 April 2004 [the father] was reassured to hear [the mother] confirm the unique essential role [the father] holds as [the child’s] father and [the mother’s] commitment to maintain that relationship …”
b)“[The mother’s husband] was clear that he in no way wishes to usurp [the father’s] position as [the child’s] father and would want to support [the child] in having a full relationship with his father”
c)In those proceedings when the child was three he says of his father “My mother thinks he is horrid but he isn’t. My dad is nice.” In this exchange the child makes it clear that he discerns the attitude of the mother to the father.
d)The CAFCASS reporter goes on to say:
“Should this application be granted [the child’s] relationship with his father will change. The negative aspects of such a change could be mitigated by the parties preparing for such a move in terms of reinstating stay in contact introducing regular telephone contact and learning to use for [the child’s] benefit technology such as webcams. While [the mother] has said she will be flexible about all aspects of this with the exception of staying contact I am concerned that to date there has been little demonstration of flexibility and co-operation between the parties.”
(d)Later the reporter says:
“If this application is not granted the impact on [the mother] will have some bearing on [the child]. [The mother] acknowledged that [the child] is happy when she is happy and to some extent he is a barometer of her emotion.”
“[The child’s] strong and meaningful relationship with his father is vulnerable to erosion over time and distance if not absolutely supported by his mother.”
In the second CAFCASS report the counsellor had the following to say:
“Of great concern to [the father] is his belief that [the mother] vilifies him to [the child] and fails to promote any positive aspects of either
[the father] or his extended family”
(This is conduct which I find has occurred and in all probability will continue to occur. All I can do is limit the opportunities for it to occur.)
“she … ([the mother]) accepts that at times she has been unable to conceal her distress from [the child].”
“[The mother] also acknowledges that she is currently unable to present [the father] as a father in a positive light. [The mother] would not appear to have insight into the need or desirability to protect [the child] from such negative emotions.”
This is still her position. I have no confidence that she has changed, or can change. Her conduct as revealed by the evidence before me clearly reveals her inability (with one or two exceptions) to see her conduct and attitudes in the context of their negative effect on the child. The one partial exception was her discussion of the torn photograph incident.
It appears that the child had received from his father a souvenir of the happy time he had had with the father in the form of a photograph of the child on a horse, an occupation which the father says and which I accept the boy loves. She tore up the photograph in front of the child. She was unable to say why she did so. She did agree at least that the conduct was “a fairly poor thing to do.”
I consider it an act without any redeeming feature. In addition she is unable to explain to herself why she would so hurt the child she says she loves, and I harbour grave concerns that any contact between her and the child runs the risk of such harm continuing.
This conduct took place in the face of evidence given to the United Kingdom court by her when she offered the following:
“I mean that [the child] needs to know that I approve of him knowing his father.”
Further the mother is asked in those proceedings:
“Have you thought about how you will keep the memory of his father alive in his little mind if you are permitted by Her Ladyship to move him to Australia?”
and she replied:
“It needs more than keeping his memory alive. It needs to be more active than that. It needs to be that he is current and present in [the child’s] life, rather than a memory of someone that then comes back.”
When asked how she would achieve that she replied:
“Well, phone calls need to be started to establish that. [The child’s] old enough. We do need to get a webcam installed when we are in Australia Photographs and positivity” (emphasis added)
Later in evidence when asked what she meant by “positivity” she said:
“[The child] needs to know that I approve of him knowing his father.”
It was suggested to the mother by Mr Richardson that the father that the child should know is the father that she perceives namely an evil man.
The mother denies this but admits that she has told the child that his father put his half sister’s head through a door and that he does not pay his taxes and that that is the reason that he can take the child on holidays.
The mother admits that at the time she made that statement in 2007 she could not possibly know whether or not the father paid his taxes. She goes on to concede in answer to the proposition:
Q.“Do you think that they are appalling things to say to a seven year old boy?”
A.“I don’t think that they are good things to say to a 7 year old boy.”
Later she is asked:
Q.“Do you think you have a duty to tell [the child] things about his father that you regard as being facts such as that he’s a violent man and he does not pay his taxes?”
A.“No I do not feel I have a duty to do it.”
Notwithstanding this, in a communication with the Family Consultant which was before the Court, the mother says:
“We need to bring our children up to be honest, caring, responsible members of our community. How can they co-exist with condoning or even remaining silent on his father’s dishonesty.”
Yet the mother replied in cross examination in these proceedings to the question:
Q.“… for [the child] to know that you have a very adverse view of his father could be something that in the long term is quite damaging for him?”
A.        “Absolutely.”
Q.“You accepted yesterday that you have been unable to protect [the child] from you views?”
A.        “Yes.”
Q.“[The child] knows doesn’t he that [your husband] has a strong dislike of his father?”
A.        “Yes.”
The mother went on to say that even though there had been some attempts to hide this animosity they had been unsuccessful and there was “no hiding of it.” She went on to acknowledge the necessary corollary that the child might, realising that he is descended from his father, suffer a significant injury to his self-esteem.
She further conceded that it was important for the child to know that he could love his father without disappointing her and that she approved of him having a relationship with his father in an unimpeded way.
The CAFCASS reporter goes on to say:
“I have already raised in this report my concerns about [the mother’s] inappropriate promotion of [the child’s] father to him. If such actions continue when [the child] grows up and develops greater understanding he will realise that aspects of his own behaviour are inherited from his father and this is likely to either promote a negative self image of [the child] himself or a rejection of his mother. [The mother] will need to be vigilant to prevent either or both of these developmental problems arising.”
The mother in these proceedings under cross examination by Mr Richardson acknowledged both the validity and importance of these observations but readily conceded the very thing that she was warned against, namely her inappropriate promotion of the child’s father.
In the proceedings in the United Kingdom, Her Honour Judge Coates referred in part, and in my respectful view took into account in her decision to permit the mother to reside with the child in Australia, the following in those proceedings and referred to in her Judgment of 29 April 2004:
“I also find that given his own personal experience ([the mother’s husband]) as a man who has been married twice before who has two families one with three children and one with two and the obvious distress demonstrated by him when he was describing the very limited contact he has with the children from the first marriage it is regrettable that he could not bring some of his own experience to bear within this case. Nevertheless I found him on the whole to be a sincere man who has, since considering the Cafcass officer’s report recognised the need to open a dialogue with the father and I was also impressed by his acknowledgment of the importance of contact between [the child] and his father.”
His own words given in evidence and quoted by Her Honour were:
“I consider that staying contact should be well established before he ([the child]) leaves England. I think that’s fair. I’ve got to put myself in the position of another little boy’s father.”
The mother was permitted to relocate to Australia. The United Kingdom Judge expressed hope that the mother and her husband would in fact promote a positive relationship between the child and the father.
This was an unfulfilled hope as is evident from a number of sources, including the mother’s evidence and the Family Report ordered by this Court.
The mother has asserted that she in the past, in failing to fulfil the hopes of the United Kingdom Court, was blinded by her hatred of the child’s father but having had six sessions of counselling and therapy from Ms C, she is now able to behave in a better way.
I do not accept that. The accumulation of what she says is that following the conversation with Ms N and her revelations concerning the child’s wishes and following the sessions of stress therapy, coupled with the child’s revelation following that meeting with Ms N, she had changed.
That revelation from the child was to the effect that he told her something which was not true because that is what he thought she wanted to hear, namely that the occasion that the Family Consultant visited the father’s home in the United Kingdom was the only occasion on which the father had been nice to him. She now says he says nothing to his father’s detriment.
There has, in my view, been no conversion on the Damascus road for this mother who in her evidence before me still demonstrated that she would say anything she could to vilify and denigrate the child’s father, including assertions that he had engaged in rape and sexual assault, and that he had failed to pay his taxes which she told the child was the reason he could provide the child with holidays.
The failure to understand that a seven year old child should not be made to feel guilty because he benefits from the alleged avoidance of the revenue by his father demonstrates yet again that she has no insight into what she does, or alternatively she does not care what she does, to the child, so long as she can express her hatred of the father.
Her willingness to discuss the Family Report recommendation with the child prior to reading it herself, having only received advice from the Court as to its final recommendation, seems another demonstration of her insensitivity to the child’s needs and the parental obligation to allow them to take priority over her own feelings and needs.
In evidence she admitted that for the child to get to a position of being comfortable and relaxed in speaking about his father to her is going to take a great deal of work. In addition, she said, although she accepted that some of the things that the child says of his father (that are bad) are not true, she has difficulty, it seems, seeing herself as the cause of that conduct.
Her unwillingness or inability to examine her household, and the conduct within it and take responsibility for its consequences is a matter of concern. Her evasive answers to Ms Boyle in part reflect this.
The Family Consultant referred to the openness with which the mother and her husband speak and about how little they seem or perhaps are able to hide their contempt for the father from the child.
The mother agreed that the Family Consultant’s report was certainly an accurate statement at the time it was made.
The mother said in the evidence given before me when it was put to her:
Q.“(it is your view) that you should be left unimpeded to care for [the child] as you wish without the nuisance of having to put up with [the father]?”
A. “… I would like to be left unimpeded.”
I am not convinced that she has changed in anything but a cosmetic way.
In any event, her overall conduct having regard to the reassurances given to the United Kingdom Court, and her behaviour since mean that I will not accept any promise of future good parenting behaviour from her in fostering and supporting her son’s love of his father. I could not find that I could rely on them. In this Court under cross examination the mother was asked:
“Are there any inherent difficulties in relation to facilitating time between [the child] and his father.”
She replied:
“My personal feelings for [the father], as they are negative”.
She went on to give evidence that those feelings had been felt since she left the father in 2002.
To the United Kingdom Court the mother said that she would remain “neutral” in relation to the relationship and promoting the relationship between the child and the father. Even this relatively weak undertaking has not been honoured. The mother promised in those proceedings she would send photographs of the child. Until shown the transcript she denied that she had made such a statement but subsequently admitted that she had and that she had not fulfilled that promise by sending photos of the child to his father in the three years that he had been in Australia.
One would think that with pending Court proceedings one might expect a parent to behave optimally in order to demonstrate positive qualities to the Court. This mother did not do that. The following are some examples:
a)Up to the hearing in the United Kingdom the mother was adamant that the father should not have contact with the child.
b)She breached orders of that Court and was the subject of a penal notice being served on her arising out of such breach.
c)When subsequently the mother wanted to relocate to Australia there was a volte face and she complied with orders.
d)She did not, during the time that she had been in Australia, procure the child sending a birthday card to his father until January 2008. It is submitted by Counsel for the husband that her pointing to this act in January as a bellwether for her future good conduct should not be accepted by the Court, and I wholeheartedly agree. It is in my view not an act demonstrating repentance but a contrived act designed to achieve what is proximately wanted.
e)The mother further conceded that she had not during her three years in Australia permitted the child to speak with his father by telephone on either of those days (Father’s Day and father’s birthday) other than in the immediate lead up to the hearing. I do not accept that her belated attempts are motivated by a genuine understanding of the need to promote the relationship between the child and his father.
f)In her evidence she said that she expected that the child would say that he did not want to telephone his father on his birthday because he (the child) would know that such calls would distress (her).

Credit

There are very significant issues of Credit arising in this matter. In short, where there is conflict between the evidence of the father and the evidence of the mother I prefer the evidence of the father, and where there is conflict between the evidence of the father and the evidence of the mother’s husband I prefer the evidence of the father. I find that the mother has misled the United Kingdom Court and has been a party to an attempt to mislead this Court.
The mother did not answer many questions responsively.
The mother paused on occasions for long periods of time in an endeavour to work out an answer which best suited her case.
Her evidence lacked spontaneity.
The mother maintained positions in the face of clear evidence that the position was untenable.
The mother on occasions feigned in my view a lack of understanding of even a simple question to gain more time to consider an answer to it.
The mother conceded some matters, it should be said, against her interest.
The mother had and maintained an undisguised hostility to the father and was so overwhelmed by it that she conceded that she could find nothing to say positive about him. She said that she became physically ill when he telephoned and that she never intended him to play any significant part in the child’s life. Her overall negativity, partiality and dislike of the father was such as rendered much of what she said open to assessment as likely a reflection of that dislike rather than a reflection of the truth.
She participated with her husband in the concoction of evidence presented to the Court in support of her case in relation to a horse riding accident. Even taking her role in that episode as being one of a dragged along participant she appeared before me unable to assert that what she had alleged, was necessarily her current view, but yet that allegation was maintained.

The mother’s husband was clearly a man who saw himself as her champion who would rid her of the unwanted presence (no matter how remote) of the father in her life. This he would do despite the necessary casualties of the war that he undertook on her behalf, the first of which was the truth, and the second of which was the emotional health of the boy of whom he claims to be fond and whom the mother says she loves.
I have difficulty accepting him as a witness of truth. This man’s role in the “horse riding incident” indicates the extent to which he will go in concocting from half truths a picture that he thinks might support his purpose in removing what he saw as a blight on his wife’s life, notwithstanding the unctuous statements made to the United Kingdom Court by him.
That role needs to be dealt with at some length. It not only took much of the time of the trial but is revealing of the reasons in part for the conclusion that I have come to.
In October 2006 whilst the child was on holidays with his father he went on a horse riding expedition. On that expedition he failed to duck as his pony went under a tree and he was whipped across the face with a branch and fell off the pony. Every available aid was given to him and appropriate observations made and questions asked, and the boy recovered from his fall and was reinstated on his horse and led for a while. He then rode his horse himself. He engaged thereafter in a number of activities and showed himself no worse for the event. He informed his mother by telephone of the fact that he had fallen off the horse. When the child was returned it seems she initially accepted that the child had, as he had said, fallen off a horse.
The mother’s husband whose actions she supported however, said that the scab marks on the face did not sit with the boy falling off a horse. The mother, in evidence before me, sought to assert that the search for some other explanation was not hers but her husband’s. I do not accept that she was not complicit in the concocting of evidence that followed. In any event, none of the injuries caused either of them to seek any medical advice or treatment initially.
The child had photographs taken by the mother’s husband of his face which he sent to himself by email to provide a date for their having been taken. It is clear even then that it was his intention that they serve some evidentiary purpose and that they had to be authenticated as to their time of taking. The mother asserted that she did not participate in this event for the purpose of garnering evidence for use in these proceedings, yet no other explanation seems probable.
Having authenticated the photographs in this way the mother took the child to school with her husband. There is no suggestion in the affidavits other than that the child is being returned to his classes. However, the event occurred on a pupil free day. The suggestion in the affidavit is that it is a casual remark made by a teacher there which suddenly raised alarm bells in their minds. That statement was to the effect “Are you sure those injuries were received in a fall from a horse”. The teacher, Mrs R, says in a subsequent signed statement that she had no recollection of making such statement. But in any event given the “alarm bells” they do not take the child to the hospital which is some 400 metres away from the school. The child is instead taken home.
On that night, 16 October 2006, the mother’s husband took those photographs to the hospital alone and there spoke to a nurse and showed her the photographs. She was the nurse who saw the child with the doctor the following day.
The mother’s husband’s affidavit filed in these proceedings suggests that it is after the child’s trip to the hospital that he rang the Department of Community Services (which in this country has obligations on a State level to care for and protect children) and the police. Quite to the contrary, the evidence (being a note said to have been made by him contemporaneously with the events) establishes that it is in fact the day on which he allegedly had the conversation with the schoolteacher and before the child is taken to hospital that he makes those calls.
On the following day the child is taken to the hospital and the mother and

her husband are advised by the doctor that the injuries the child has are entirely consistent with his story of falling from a horse after being hit in the face by a branch. It is suggested, however, that the doctor and the nurse suggested that the injury should be reported to the Department of Community Services. This is not evident from the hospital notes, and in any event it is the note of the mother’s husband said to have been made contemporaneously that such report was made the previous day.
The mother conceded that neither the police nor the Department of Community Service records reveal any such phone calls in October.
The mother does not raise an allegation that the child was struck in the face by the father on this occasion or that the injury was not accidental until some time later. Notwithstanding that allegedly on 19 October 2006 the child disclosed to the mother that the father had hit him in the face, and he made the like disclosure to the mother’s husband on 21 October 2006, it is not until

27 October 2006
that help is sought from the Family Law Hotline. Asked why she did not make the call to the Hotline rather than her husband, she described herself as “a weak sap”. She asserted she was brave enough however to face the father in an email in a matter of rape and sexual assault but was not brave enough to face the Family Law Hotline with a request for help.
The whole of the evidence on this matter leads me to the conclusion that the child suffered an injury whilst horse riding and the mother and the mother’s husband sought to concoct a story that the injury had been caused by the father beating the child. Even the mother said with some embarrassment (which she should have had) that she did think at times that the father might not have done it. She was a most unimpressive witness.
The mother has maintained a long standing antipathy to the father and to his role as father.
In an affidavit prepared by her without apparently the benefit of the assistance and advice of legal representation, and filed in these proceedings in May 2007, the mother revealed much of her true self.
At paragraph 139 of her affidavit she says “It was never my intention that
[the father] should be a major influence in [the child’s] life.”
This admission is in complete contradistinction to the promises that she and

her husband made in the United Kingdom Court and means that that decision was based on false assurances and false promises.
When it was put to the mother in cross-examination “Do you say that from now on there will be no problems in promoting the relationship between [the child] and his father” she responded “there will be problems coming from me”.
The mother was asked “Is it your view that [the child] should have more time with his father?” and her answer was “No”.
The toxic view that the mother has of the father is incapable of any restraint and it appears in its expression as is evident from the lengthy email sent by the mother to the Family Consultant, in which she seeks to vilify the father in the following terms:
“[The child] told me that his father was mean to [J]. … It was during that talk that I told him about him (the father) putting [J’s] head through a door.”
“[The child] comes back from time with his father full of five star resorts and Porsches and puts me and [the husband] down because we can’t offer him these things. It is at these points that I remind [the child] that the reason his father can afford them is because he doesn’t pay his taxes.”
“I let [the father] do horrific things to me sexually and emotionally and I still felt guilty because I wouldn’t have sex with prostitutes. I’m being raped and I’m feeling sorry for [the father]! I felt I was letting him down.”
“[The father] has spoken to [the child] of abducting him. Of course he denies this, as he denies everything.”
“… those are examples of people who have gained their wealth honestly, which is not the case with [the father].”
“[The father] doesn’t even pay [the child’s] maintenance regularly and it does not represent 15% of his net income.”
“The environment that [the child] is in with his father is so unhealthy, quite aside from any drug, diet and driving issues. All the males that [the child] encounters while there are abusive and all of the females (although I cannot speak for [the father’s partner’s] relationship with [the father], having no knowledge of it) are victims of abuse.”
The mother goes on to say:
“Obviously I resent the contact I am forced to have with [the father]. It is always unpleasant. I do not blame [the child] for this, he did not make the choice of who his father would be, I did.”
She describes the father’s behaviour as “dangerous and abusive”.
She says “[The father] is constantly breaking the law. He is arrogant enough to believe that he is above the law.”
If the mother genuinely believes these statements she would, had she acted responsibly, have made an application to deny to the father contact with the child. She did not.
I cannot come to the conclusion that she has a capacity to encourage a positive relationship between the child and his father if she really believes what she says.
If she does not believe what she says - and in my view she was aware that her view was distorted - and says it only to vent angst or hatred or to achieve an end at all costs then she should not be responsible for the care of the child.
The mother expressed the view that she could not say “if there was anything of value in the relationship between [the child] and his father”. The mother in her affidavit evidence said that [the child’s] perception of the father is no more than the material things that can be bought by him. This is completely at odds with the relationship described by the Family Consultant.
The mother accepted that it was appallingly provocative for her to permit

her husband to send emails describing the child as “our son”, yet she at the least acquiesced in those emails being sent.
The mother sought to explain her promises in part to the United Kingdom Court as involving only a promise to have a photograph of the father at the home. Yet following this questioning she conceded that she did not have such a photograph until very recently when her mother brought such a photograph.
When questioned about the incident of the destruction by her in front of the child of a photograph sent by the father of the child on a horse she was asked:
“… as a mother, for [the child] to know that you have a very adverse view of his father could be something that, in the long term, is quite damaging for him, couldn’t it?”
the mother replied:
“Absolutely”.
Notwithstanding that she concedes that her husband also dislikes the father and there is no hiding of both the mother and his dislike for him in the household. A household of which the child is a part.
The mother conceded that she told the child that his father was “bad” and that he distresses her. This was evident in her telling the boy that the father had put his daughter’s head through a door (denied by the now adult daughter) and that he did not pay his taxes. It was put to her “But you put in the boy’s mind vicious views of his father?” and she replied “Yes.”
The mother’s evidence was that she wanted to be left unimpeded. Her responses lead me to conclude that the only relationship she really wants the child to have with his father is none.
The mother accepted that she did not consult with the father about the following parental responsibility matters namely:
a)that she allows people to refer to the child by the surname “[Brenner]”
b)that she did not consult with the father about enrolling the child in N School
c)that she did not consult with the father about enrolling the child in the local Public School on the south coast of New South Wales.
d)that she did not consult with the father in relation to any parental responsibility issue.
She accepted that the order that the father had parental responsibility was meaningless because she ignored it.
The mother agreed in cross examination that the Court could put no faith in her promises today given her failure to deliver on her promises to the United Kingdom Courts.
The mother conceded that she had not installed a webcam in the home notwithstanding the availability of this service contrary to the orders of the United Kingdom Court. Her response was to the effect “I’ve been busy.”
The mother conceded that her husband had been aggressive toward the child although she sought to redefine that as “grumpy” and also said that he was aggressive (grumpy) with her.
The mother’s husband clearly told the United Kingdom Courts that he would not seek to usurp the father’s position with the child. In the event he has:
a)referred to the child as “our child” being a reference to himself and the mother
b)encouraged the child to refer to himself as “[Brenner]” including over the telephone when the child was in the father’s presence
c)offered information to the child’s school that he was a guardian of the child
d)on the mother’s evidence, been called “Papa” by the child.
The mother’s husband promised the United Kingdom Courts that he would do all in his power to welcome the father in the child’s home. He acted in common purpose with the mother however in removing the child from the south coast of New South Wales at a time when the child’s father was visiting the school. Apparently the mother could not bear the father being in the same town as herself.
The mother’s husband conceded in cross examination that he has animosity to the child’s father, and he says that he is afraid of him.
The mother’s husband admitted in evidence that his communications to the father were provocative and included references to the father fitting the description of a person with a psychopathic personality.
He, notwithstanding orders that the father spend time with the child told the father in December 2006 “we feel it is appropriate to cancel your visit to [the child] giving you less than three days notice.” He went on to say “We do not feel it is in [the child’s] best interests.” He accepted it was not open to him to cancel what had been provided for in the orders of this Court.
The mother’s husband has said that he maintains a belief to the date of the hearing, notwithstanding all the evidence available to him to the contrary, that the child was hit in the face by his father at the time of the horse riding fall. This reflects in my view an absolute determination to believe contrary to all of the reliable evidence a fantasy, because it enables him to hold on to something no matter how much of a chimera which reflects badly on the father.
The concession made by the mother’s husband at last under cross examination that he accepted that his email “was a bit harsh” would have been much more impressive had it been made at some earlier time. His apparent contrition was not, in my view, genuine other than, I suspect, that he regretted that his communications had provided a fertile basis for cross examination.
In my view the mother’s husband suffered from selective memory failures and his failure, for example, to remember what documents he had seen this year, and on his evidence a week or so prior to the hearing, were not convincing.
The mother makes allegations against the father of a failure to honour a promise of being, in relation to the conception of the child, simply a sperm donor. She also makes an allegation that she was raped and sexually assaulted by him during the course of their relationship. I prefer the evidence of the father and accordingly do not accept either assertion as true.
It is clear from the correspondence and the evidence otherwise that the relationship between these two parties although not always easy was based on affection and intimacy. Exhibit 4 is a letter from the mother to the father saying that she felt there was love in the relationship “It is not that I think you don’t love me …” and she goes on to say “I am gradually working out what it is that I need and I guess like all of us I need to be loved.”
The assertion of rape and sexual assault went through a number of different descriptions as to intensity, frequency and nature ranging from three rapes, to sexual assault or rape over periods from one to two and three quarter years. The allegations have only surfaced in the proceedings before me, yet they were said to be known on the mother and the mother’s husband’s stories prior to the conclusion of the United Kingdom proceedings and were never raised there.
This alleged assault was first mentioned in October 2007, after the Family Consultant’s recommendation that the child live with his father, when the mother attended on her General Practitioner, Dr G, where she reported that she had been the subject of sexual assault by the father for a period of a year.
For Ms C, to whom the mother was referred by Dr G, the mother completed a self rating form and on the form the mother wrote the words “Sexual assault for 2 and ¾ years.”
An email the mother sent to the father on 27 October 2007 was the first time that the father got any indication of such an allegation. The mother said to him that he had raped her allegedly on three occasions during their relationship.
Faced with the conflicts in her own story the mother tried to split hairs on a difference between rape and sexual assault. Her evidence was entirely unconvincing. Indeed, she admitted that her assertion that the father had severely assaulted her for two and three quarter years was untruthful.
I conclude that they are an expression of how far this mother will go to serve the ends that she seeks.
There are concerns expressed that if I were to make an order that the child live with his father that the mother might well cut herself off from him entirely and reject him. The foundation for that type of rejecting behaviour was found in her attitude to her own father whose marriage failed. The concerns may well have substance. However, faced with the alternative, which in my view is the even more likely circumstance of the child being raised in a poisoned environment, where the distinction between fantasy and fact is so elusive to those surrounding the child and where the need to maintain hatred is nurtured and supplied with such care, that prospect and its harm more than balances in my view the prospect of rejection and the risk of harm that might flow from it.
The uncontroverted facts are that the mother has been the primary carer for the child since his birth, although the father has particularly in the child’s infancy been a significant carer. The child has not been absent from his mother for more than about three weeks since birth it is alleged and not gainsaid.
The mother, through her Counsel, concedes that there has been little communication since the orders of the United Kingdom Court between the mother and the father. It is asserted that the fault cannot lie all on one side.
In my view given the tenor of the communication, the father’s letters stand as a scion of restraint when compared to the communication of the mother or her husband on her or their or his behalf. There are, it is true, one or two circumstances in which that restraint, sorely tested, gives rise to minor infelicity of expression.
If the father has any fault in limiting communication it is entirely understandable in the circumstances that he does. The steps the father takes to avoid the opportunity for false allegation were put to his detriment. They are, in the light of the allegations which I find untrue, entirely understandable.
The child has been described as a happy, articulate child and in the reports, now of some age procured in the United Kingdom, as having secure attachments. There has been litigation concerning this child since 2003, in two continents.

The mother’s Counsel asserted that substantially the mother has complied with the orders of the United Kingdom Court in providing contact between the child and his father. Her commitment to the process is however a matter of grudging necessity unadorned by any commitment to the underlying idea of fostering a relationship between the child and the father and between these two concepts is a great gulf fixed.
The child is physically well cared for and is achieving other than perhaps in the handwriting area at school. Even in that skill there is said to be improvement from the example I saw of his handwriting which did not seem to me to be advanced. His school teacher has said that there has in the past at least been some problem with it.
The teacher describes the child as a sensational reader and achiever and a deep thinker, and is said by his father to be a credit to his mother and in that regard I agree.
He is also described by the father as a “loving little boy who enjoys spending time with him, who is good at surfing, good at reading, good at sport and good at horse riding.”
There is no doubt that all that the child is, is a product of both nature and nurture and that the greater part of the nurture has come from the mother’s household.
The mother does take her role seriously and the Family Consultant reports that she provides the child with healthy diet, sleeping patterns, and access to activities and as having a significant input into his cognitive and intellectual development.
The mother’s Counsel conceded that her style of parenting is not standard and that she is not a model parent. He conceded that she is clearly flawed and not perfect. He urged that a large part of what the child is however is due to her efforts and I acknowledge that that is probably so.

The Father

I find the father an open and honest man. He is ready to admit his limitations and failings in his past conduct against his interest. He comes to this Court because he is unable to see any alternative, and in that regard there appears to be an absolutely clear justification of his action where correspondence from the mother and the mother’s husband dripping with vitriol would give no one the reasonable expectation that any form of mediation would be likely to be successful.
He has a genuine love and affection for his son and readily concedes that a removal of his son from his mother’s care would be a significant wrench for him.
He has organised his life to give practical effect to his promises to provide love and support for his child and has the support of his wider family. His relationship with his former wife still exists on a co-operative level and is perhaps some evidence of his general capacity to be co-operative and understanding.
It gives me great comfort to know that he has said that if, contrary to his view, the child’s life becomes one in which his parting from his mother renders him inconsolable, he will not stand in the way of the child’s happiness.
The father gains my admiration for the restraint that he has shown in the face of the mother’s unremitting battle to deny his son a relationship with him. A battle which in my view commenced in the United Kingdom and has waged unabated since.
That his son in the face of such pressure retains a close and loving relationship with him is great credit to the father’s capacity to focus on his love for his child rather than any resentment at what has occurred.
It has been suggested that the child’s continued relationship with the father in the circumstances is nothing short of a miracle. Matters of miracles aside I think that the father’s ability to maintain calm in the face of attack and focus on his love for his son speaks volumes for his ability and insight into the ways in which that love can be given practical reality for the child’s benefit.
There is a history of him caring for the child in infancy and also a history of him caring for the child during the period in which he has spent time with him.
I accept that he has not had the grind of the daily tasks of schooling and child rearing during school term, but I am convinced on all the available evidence that he will be more than able to meet that challenge.
His determination, his love for the child, his child focussed nature and the care he was observed to give the child during the observation of his care seemed to me to betoken a competence and a willingness for the task. He has available to him the assistance of his partner and his other children and will be able to call upon other assistance if required. I do not think that the risk in daily care adumbrated by the mother’s Counsel is a real one.
Counsel for the mother talked of the child’s need to adjust to a different country with a different schooling system. There will be different uniforms, environment, language, slang and routines. It is pointed out that he has not, it is suggested, adjusted well to change in the past.
I take the view that the child will be able to take these changes in his stride given the support that will be provided to him by his father and to some extent by his father’s family. It is not as though the United Kingdom is foreign to him and even in Australia there would no doubt have been some vestiges of the culture he left even in his mother’s home.
It is suggested that he will not adjust, unless the father cares for him on a full time basis. Whilst it is true that the father has not eschewed the prospect of working he has said that he will adjust his life, and for the period that the child is likely to need support to settle in his new environment, is prepared to give up work in favour of the child’s support to the extent necessary.
Reference was made by the mother’s Counsel to the occupations of the other children of the father. I think on the evidence that their help will be there from time to time and as required but not full time I agree. I do not think that my decision should or does depend on that support being available.
I make my decision on my view of the father’s ability to care for his son and note that that help will be there from time to time if required. Where the father has a need to be absent from the home, I am quite convinced that he will be able to make those arrangements necessary for the child’s care and that he will not abrogate his primary responsibility to his son. He will likewise, with some limitations imposed by her career, be helped by his partner with whom the child appears to have a friendly relationship.
Reference is made to the need for the child to socialise, and conformably with the pursuit of available resources the father has located a local youth club which will give him the company of his peers to some extent. I do not think that this child, removed from the emotional whirlpool which is his experience in his mother’s home, will not be able to adjust to local life in a completely different emotional and supportive environment. It is in my view and in aid of that adjustment in part is my intention to remove the child from the arena of conflict for a time. This will afford him the opportunity of refocussing and hopefully give the mother and her husband the time to reflect on what has been the child’s experience in their care and to seek perhaps the aetiology of their attitudes and resolve their feelings before the child is subjected to further face to face involvement with them. This will afford the environment in which the child can be encouraged to the view that he is not required to tell his mother what she wants to hear, nor report things in an exaggerated way to meet her emotional requirements of support for her feelings about his father.
It is also my hope that the counselling which the father proposes to provide for the child will assist him in adjusting, and provide a channel for such grieving as he needs to undertake.
I do not accept the proposition put by the mother’s Counsel that the future for the child is unknown. In my view he is going from a known situation of emotional abuse to a life free of that abuse and that result is known. The mother seeks to get support from the proposition that her psyche is such that she may reject the child. If that is her constitution so be it but from my point of view the result for the child can be no worse than his retention in the current situation.
It is put that in either case, that is, whether the child lives with the mother or the father the non resident parent will not play a major role in the child’s life.
The mother has been tried and found wanting in her capacity to properly parent this child.
It is time to seek an alternative for the child which has some hope for the future. I have no faith that any current change can be found in the mother’s home.
Perhaps that will change in the future. I hope so. But for now the child requires what his mother is unable or unwilling to give him and which his father can give him, namely, a home and emotional environment, one in which he can develop a good self image untroubled by assaults on it by reason of the need to accommodate that he is the progeny of someone always called “bad”.
I am asked by the Counsel for the mother to take the view that whatever I do the level of mistrust and acrimony will not disappear. Perhaps not from the point of view of his client. I hope for the child’s sake that it does, but in the meantime I am obliged to take that action which will remove him from the worst demonstrations of it.

Other Evidence

The father’s two daughters gave evidence. They impressed as persons who have a warm and affectionate relationship with the child and who will, to the extent that they are able, support the father in his care. It appears particularly that J has developed a relationship of confidence with the child. There is no evidence other than that they are supportive of him and of him maintaining an ongoing relationship with his mother. Each of them acknowledged that a change in the child’s care will be difficult for his mother and in so doing reflect their situation as being friends of the child’s who do not harbour antipathy toward the mother. As such they will be supportive and good influences in the child’s life.
The father’s former wife gave evidence. From what she said I gleaned that there is a friendly relationship between the father and his former wife. She too has met the child and seems fond of him.
Whilst there were attempts to picture the father as a violent man, all the evidence seemed to suggest is that on one occasion faced with a situation of grief and frustration the father put his hand through a glass door. I am satisfied on the evidence before me that it was an atypical reaction and that I have no real need to be concerned for the child about any repetition of it.
It was asserted that the father had engineered either the demise or the threatened demise of his former wife’s partner. There is not credible evidence to support that and I accept the father’s evidence in that regard.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
Given the state and nature of communication between these parties at this time, and the history of the matter, it is not, in my view, presently appropriate in the interests of this child that there be an order for shared parental responsibility. In the circumstances of this case, I propose that the father have sole parental responsibility. If in the future there is a significant change in the capacity of the mother and father to co-operate and communicate in relation to the child, some consideration might be given to a change in this position. I will however make orders for the supply of certain information to the mother and I will direct that the mother is informed of significant changes in the child’s life.
There appears to be no issue between the parents that in the circumstances of their present living it is not reasonably practicable for the parents to spend equal time with the child at this time, and it is not reasonably practicable for the child to spend substantial and significant time with the non resident parent.

Section 60CC Considerations

Primary considerations

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

In this case notwithstanding major provocation, the father has not on the statements made to the Family Consultant, which were reflected in the evidence he gave before me, been inclined to criticism of the mother although he acknowledged that she had serious problems in her life. He described the mother as a woman with a warm heart and said that the child was a credit to her.
He went on to say that she has become blind to what the child thinks and feels. He takes the view that she is a woman who is driven to do what she does by her present husband.
He described, in my view, what the evidence suggests namely that the child is obliged to live two lives; one with his paternal family in which he is happy and free and encouraged to love and be positive about both sides of his family, and the other with his mother and his step father in which his day to day life is very restricted and there is constant criticism of his father and paternal extended family.
He believes that the child is scared of upsetting his mother and step father and so tells them whatever he thinks they want to hear about how he feels about his father and paternal family and what he does when with them.
The evidence suggested that telephone calls made to the mother from the father’s home are different in content and extent to those made from the mother’s home to the father, which are short and have little or no content other than “hello” and “goodbye”.
I have had real reservations about the extent to which the child might benefit from the pursuit of a meaningful relationship with his mother.
I have come to the conclusion on balance that given the positive observations of the child with the mother when relaxed and hopefully some change occurring to the mother’s behaviour and attitude as a result of these proceedings that the time has not yet come when I could say that the child will retain no benefit from a relationship with her. I suspect that he would be worse off if there were no relationship at all.
The father echoes this view and informs the Family Consultant that he is aware of the possible serious ramifications for the child of a potential separation from the mother and that he is pursuing the path reluctantly and only after careful thought.
The child does however need that relationship to be one which is free from the dangers referred to above.
I certainly have the view that the maintenance of a relationship with both parents of a meaningful nature is more likely to occur in the situation created by the orders to be made by me in these proceedings than has been likely in the pre existing state of affairs. This is because of the father’s:
a)commitment to the idea that it is good for the child to have a meaningful relationship with his mother
b)capacity to see the good side of the mother
c)understanding of the needs of the child, and the reality of the child being involved in a wrench which will occasion him to miss his mother.
Ms D who is the father’s partner equally exhibits a capacity to see what is good in the mother and would in my view seek to promote that in the child’s mind.
I have already in this judgment made comment on the approach of the mother and the mother’s husband. Their attitude, displayed by their evidence and writings, and their conduct, supports a view that they have no commitment to the child having a meaningful relationship with his father.
The mother informed the Family Consultant that she did not believe that anything positive was to be gained for the child by his having a relationship with his father.
On the evidence it seemed the best one could hope would be that they would obey Court orders, but sadly probably without any commitment to them. Even more importantly, without any commitment to the underlying desirability of a meaningful relationship between the child and his father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no believable evidence that the child would be subject to physical harm in his father’s household. The child has said that the mother’s husband is aggressive toward him. There is not however evidence which I accept that the mother’s husband is other than angry from time to time. I do not think that the child would be subject to physical harm in the mother’s household.
I do believe that the child has been the subject of considerable psychological harm in his mother’s household, arising out of the attitude of the mother and her husband to the father, and her inability to shield the child from the views she has of the father and the detestation of the child spending time with him. The mother’s husband says that the mother did not like the smell of an aftershave or shower gel that emanated from the child on return from his father’s care. She has told the child of her dislike of it, it appears, from statements said to be made by the child to his father.
Evidence of the Family Consultant states:
“Already [the child] is struggling to keep everyone happy to ensure that he is loved by all. This requires him to deny his own experiences, to lie and to try and make sense of very complicated emotional dynamics, all of which is detrimental to his emotional and psychological health. He is extremely bright and has enormous potential but this will be eroded if he continues to experience such unrelenting anxiety and confusion.”
Further, after describing the mother’s lack of commitment to the potential for any positive benefit to the child from a relationship with the father, the Family Consultant goes on to say of the mother:
“… She has a tendency to obsessiveness and seems unable to allow that there could be valid perspectives other than her own. This means that she is impervious to advice that some of her behaviour makes the child’s life very difficult for him and is damaging his emotional well-being. She seems simply unable to allow that he could love his father (or indeed that his father could love him) and want to see him and maintain a connection with him.”

The mother’s lack of commitment to a relationship between the child and his father is echoed and supported by the mother’s husband.
The Family Consultant says of the current situation in which the child finds himself:
“The current situation is one which is damaging for [the child]. His teacher reports him as being anxious and my observations of him confirmed this. There is too great a weight on his shoulders and long term psychological damage is being done to him. … The way that many children in such a situation resolve their anxiety, particularly as they get older and can actively participate in the process, is to completely reject one parent. The cost of this to the child is the risk of having difficulty developing an integrated and coherent sense of self and in maintaining objectivity in relationships, particularly intimate relationships.”
It is suggested by the mother that the child will be in danger in the household of his father because of his father taking cannabis. The evidence on this aspect of the father’s behaviour, which I accept, is that following a back injury sustained in an accident he suffered severe back pain and was advised by his general practitioner to try as an analgesic an infusion of cannabis. He says he took this from time to time but found that although initially effective in the relief of pain it declined in its efficacy and he has not since taken it for some time and has not taken it whilst in charge of the child. He says he has discovered other means of analgesia which are more effective. I accept that evidence.
The mother’s Counsel pointed to the statements by the Family Consultant that in the event that the child returns to the United Kingdom the child will suffer a sense of loss and be taken from the home he knows as his, the school he knows as his, and to a school he does not know although clearly he is acquainted with that environment. Those matters are not contested. For the reasons set forth above I determine that notwithstanding those matters, the child’s interests and welfare are served by change.

Additional considerations

(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 child has expressed views on a number of occasions. He is seven years of age. His views need to be taken into account but treated with care. The views however that he expressed to the Family Consultant in the United Kingdom had a ring of sincerity about them particularly when at the same time he informed her to the effect that the line would be different when with his mother. Those views included (speaking of his father):
‘… “he’s nice” … “he’s firm when you’re naughty” … “he shouts, but never smacks, except once when I kicked him and that’s only fair” … “there’s nothing wrong with him”.
… wishes … that he “could see Dad all the time” …’
which (on investigation of the reporter) meant it appears:
‘… “live with him” …’
The child also says:
‘… “I don’t tell Mum most things. She hates Dad.”’
The child lived up to his promise that “I will be a different boy with Mum. Don’t blame me if it is not the same” and his expression to his mother, reported by her following a session with her and the Family Consultant to the effect:
“well I did what I was supposed to do … I told [Ms F] that my father hit me, and that he put [J’s] head through the door and that he doesn’t pay taxes”.
The general view including that of the Family Consultant is that the child is an intelligent and articulate boy described by one of his teachers as a “sensational reader and achiever, a deep thinker, shy and introverted, quiet and reserved” and that he “takes in a lot”. He can, it is reported, “demonstrate anxiety in class”.
I take what he has said into account but treat it with the utmost caution since it appears that the child has developed a survival mechanism of telling at least some, if not all, the adults in his life what he thinks will best please them.
(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 child is described as having a good relationship with his mother and his father but it is, in the case of the mother and the step father, one in which he is encouraged to express their views on his father. Nevertheless, the Family Consultant’s observations revealed that in their presence there could be laughter and light heartedness. She observed the child chatting and playing. The Family Consultant had observed the child in a coffee shop displaying an easy relationship with his mother and step father.
His reactions in his father’s home were described by the Family Consultant in the following terms:
“… He interacted with everyone with boundless energy, a lot of laughter and physical affection and typical six year old frustration at not getting his way at times. …”
“[The child] was affectionate, cheeky, bossy and companionably engaged with [the father] throughout the day. [The father] was, in turn, relaxed with [the child], playing with him as well as spending time in the kitchen cooking the lunch or talking to the adults. [The child] was at ease with the other adults who all behaved towards him appropriately and affectionately and with clear boundaries.”
(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
I refer to my findings already made on this topic.
(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
The removal of the child from his present household is likely to provide him with a significant wrench, and in the words of the Family Consultant:
“… he would experience an enormous sense of loss, possibly some guilt that he had contributed to her loss and fear that he would lose her love forever. He is still of an age that such a separation could cause lasting grief. I believe that an amelioration of that situation is that [the father] would allow [the child’s] grief to be freely expressed and would seek counselling support for him. I also believe that, if [the child’s] grief were so debilitating and long-lasting as to be interfering with [the child’s] happiness and development, [the father] is sufficiently child-focussed that he would consider re-uniting [the child] and his mother.”
This latter position was agreed to by the father in the witness box and I accept that he is so committed.
The Family Consultant goes on to say:
“… Whatever the outcome, there will be considerable emotional cost for [the child]. There is no optimal solution, only a “least worst” …
I come down marginally on the side of [the child] living with his father. That would allow him the greater chance of being able to have a relationship with both parents and of growing up in a day to day atmosphere where his feelings are validated, both of which are known to contribute to children’s optimal emotional health.”
In the movement of the child to his father’s household he will have the advantage of being in close proximity to his two half sisters, who although older by many years, are affectionate and loving toward him and who do not as I perceived their evidence harbour any anger toward his mother. He will also have the benefit of a relationship with his niece who is closer in age to him.
(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 geography of the places of residence of the father and the mother put limitations on face to face contact with the child, and the child spending time with his mother will incur expense. No evidence is before me of the mother’s financial position although the father has said that if the mother cannot afford it (and I accept that he would need to be satisfied of that on proper evidence) that he will bear the costs of the contact between the child and his mother in the child coming to and returning from Australia. I accept that he will do so.
It is clear that communication by email, telephone and webcam could be available. These forms of communication would be able to provide the child with a capacity to maintain personal relations and direct contact with the mother on a regular basis and I will make orders accordingly. It is my intention however to impose restraints on the mother and the mother’s husband in terms of the content of those communications by an order that neither of them will denigrate the father or any member of his family or household to the child.
(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
I find that the mother and the father have the capacity to provide for the child’s intellectual needs. I believe that the father has a capacity to provide for the child’s emotional needs and that the mother has the faults and lack of ability demonstrated in this regard.
(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 father is mature and provides a balanced role model for the child. He is open and insightful. The mother has views on life which include the prohibition of television and restrictions on diet which are her own and which in isolation would not be a problem for the child, save for the suggestion that he finds it sometimes difficult for these reasons to fit into his peer group at school. Overall they are of a minor nature. Both the mother and the father are citizens of the United Kingdom and each of them has, as does the child, an acquaintance with Australia. The father leads an active lifestyle as does the child’s step father. Each of them in that regard is able to encourage the child in the pursuit of sporting activities which they do. The child has the experience with his father of engaging in horse riding which he, on the evidence, loves.
(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
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has supported the child by the payment of significant child support and the costs of his airfares to spend time with him. He has offered to meet some of the costs of the child spending time with his mother if that is justified. His attitude in relation to the child is attuned to the child’s needs. He has permitted and encouraged the child’s contact with the mother and step father. The mother has provided for the child in terms of his physical care. She has placed him in danger emotionally and psychologically by her conduct and demeanour. She has permitted her husband to seek to usurp the role which is that of the child’s father. She has provided proper schooling for the child. The father has demonstrated his concern for the child’s welfare in his proposals as to his education and care and I accept that they reflect a genuine and active concern in relation to these matters.
(j)any family violence involving the child or a member of the child’s family
I find on the evidence before me that there is no such physical violence other than past normal reasonable parental discipline. The child did have some acting out physically by reason of frustration. It was not on any view abusive.
(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 is none.
(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
It is my view that the orders that I make are the least likely to lead to the institution of further proceedings. The father in this matter has been reasonably determined in the pursuit of a proper relationship with his son and I have no doubt that he would continue to pursue that through courts if necessary. I have also no doubt that if I retained the status quo, there would be a continued attempt at disaffection of the boy and his father which would excite the response of further litigation. I have good reason to think it more likely that a relationship between the child and the mother would be supported by the father rather than the reverse. However I have left the decision as to the time the mother spends with the child in the event that the mother relocates to the United Kingdom to the father, in the first instance, and failing agreement to the Courts of the child’s place of residence. I believe this is justified since little is presently known about that possible circumstance.

Section 60CC(4) & (4A)

I refer to my earlier observations.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

Unless the court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that until a child turns 18 years each of the child’s parents has parental responsibility for the child.
“Parental Responsibility” means all the duties powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan entered into by the parties.
The presumption that parties should exercise joint parental responsibility is displaced if it is in the opinion of the Court a consideration of promoting the best interest of the child rebut the presumption, or the person with whom the child has lived has engaged in abuse of the child. Although I find in this case that the mother and her husband have been guilty of abusive conduct I do not find that they have committed abuse within the meaning of this provision. I find however on the totality of the evidence it is not in the child’s best interests that the parties each retain parental responsibility.
With each of them having that responsibility, a need arises for them to communicate and consult each with the other to effectively exercise, it and that is not presently possible in this case. In addition to the lack of ability of the mother to communicate effectively with the father at all, there remains the difficulty of their separate geography which will be the consequence of these orders.
It is my proposal that there be communication in the sense that I will provide that the father is to keep the mother informed of certain matters, but such is the conflict in this case that it is clearly not in the interests of the child that responsibility for the long term welfare of the child should reside in these two people. I do think that each of them has the capacity to exercise, and will need to have the capacity to make, decisions as to the day to day care welfare and development of the child whilst the child is with them.
Time may change things but at present the unrestrained dislike, to put it at its mildest, of the mother for the father and her inability even to be in either the same house or the same town that he is in without suffering anguish and illness renders the possibility of any effective communication between them in the interests of this child the substance of a fantasy world.

Section 65DAA / Section 65DAA(5)

Given the orders I propose as to where the child lives, there is no possibility that the parties maintaining their existing places of residence can share equal time with the child. I am invited by the father to consider an order operative in the event that the mother returns to the United Kingdom. Given what I have heard in the evidence I think that that is too risky at the present time for the child. I would not only wish to be satisfied that the mother’s change of residence was genuine and continuing but also that she had undergone and responded to such therapy and counselling as gave me a scintilla of realistic hope that there would not simply be a continuation of the existing hostility between the mother and the father. In other words even if there were not a relocation in this case I would be seriously concerned with exposing the child to the continued toxic environment that his mother’s household provides. I shall leave a variation of the orders I make should the mother change her residence, to the court of the child’s residence, if the parties cannot otherwise agree.

Relevant Law for consideration in relocation cases

General Principles

The best interests of the child is the paramount consideration.
The best interests of the child is not the sole consideration.
One cannot ignore the interests and desires of parents, but if there is conflict between these considerations priority must be accorded to the child’s welfare and rights but they must be viewed in the context of the circumstances of the parent with whom the child resides.
The issue for this case cannot be separated from the issue of residence and the best interests of the child. The issue of who should be the resident parent is not separate from a consideration of whether a relocation of the child should be permitted.
When considering the substantial geographical change involved in cases such as this, one deals with that change as just one of the proposals for the child’s future arrangements so far as that approach is possible.
No one factor is dispositive of decisions as to residence of the child in the context of a proposed relocation.
All the issues arising under section 60CC must be considered.

Conclusion

The tasks facing the court are:
a)to identify the competing proposals
b)for each relevant consideration under section 60CC the court should identify the competing proposals and the relevant advantages and disadvantages
c)finally, there should be an explanation of why one proposal is preferred over the other having regard to the best interests of the child being the primary but not sole consideration.
In considering a result in this case the Court is not bound by a consideration of the parties’ proposals.
The mother proposes a continuation of the status quo:
a)That is to say that the child live with her and spend time with the father on the telephone or by webcam and during holidays either in the United Kingdom or in Australia.
b)That that arrangement will provide for the child a continuity of his schooling and housing his friends and his sporting activities and retain him in the care which has primarily been his since birth.
c)No assurance which can be relied upon, that the situation for the child has changed, has been given. The mother will retain her dislike of the father and none of her proposals or engaged counselling convinces me that the Court could expect anything but a continuation of the status quo in that regard. Her promises to the United Kingdom Court on which it relied were hollow and I see nothing which convinces me that she has changed or desires to change on whit from that position.

The mother’s consultation with a psychologist was late in the unfolding litigation and has only relieved her stress to some extent.
Given the mother’s evidence that the future will hold problems for the child in maintaining a relationship with his father, problems which emanate from her, her proposals for the care of the child represent a continuation of the child’s residence in an environment of continuing psychological and emotional abuse of the child by reason of the antipathy she and her husband have to the father.
The proposal of the mother therefore will provide a continuation of the harm already suffered by the child, harm which in the view of the Family Consultant will cause significant detriments for him now, and in his later life.
The continuation of the status quo will provide a continuation of the conflict that has existed in the present situation; a conflict which must now cease if the child is to have the ability to reach his highest potential.
It is my belief that there is a real possibility that if the present situation continues, in due course the child will either reject his mother or his father and in either case, the result for him could be disastrous for his future happiness.
The child would in my view be in the care of a mother who is not child focussed and who concentrates on her anguish about her past life and the need to assuage her feelings of victimisation, rather than the child’s best interests. He will also have a step father who sees himself as a champion of the mother’s skewed view of the world and who is equally prepared to ignore the importance of the word he gave to the United Kingdom courts and living up to it.
The father proposes that the child return to live with him in the United Kingdom. This course will provide for the child:
a)A home environment in which he is not taught that his mother is disliked and is unworthy and dishonest.
b)A home environment in which he is not taught that his father is disliked and unworthy and evil and bad.
c)A home in which the child is free to express his feelings and have them validated.
d)A home in which he has the support of a loving father who does not seek to criticise the mother to him and will encourage continuing contact between the child and mother, to the extent that it sustains the child’s best interests.
e)A home in which the father will consider any reasonable approach from the maternal grandmother to continue her relationship with the child.
f)A home in which the child can develop a close relationship with his half sisters and niece.
g)A home in which the child will have his intellectual and emotional needs met as well as his physical needs.
h)A home in which the carer will be focussed on the child and not on a past failed relationship. So focussed on the child that I can be assured that consideration might be given to a change in his residence, if the present advantages seen for it do not eventuate, and his grief at the loss of the constant society of his mother is disabling and continuing.
i)A home in which the child will be required to adapt to an entirely new routine and make new friends, although he will have family and extended family in support of his situation to some degree.
j)A placement which will limit his relationship with his mother and step father by significant gaps in face to face contact.
k)A placement which will remove the child from his primary attachment figure but place him in the care of his father to whom he is also attached.
l)To live in an environment where there is reasonable hope of the child being divorced from much of the parental conflict.
m)To live in an environment which is less stressful than his current environment and in which he can resolve his anxiety.
n)A home where he can concentrate on matters which are important to him, such as education and sport, rather than have to concentrate on pleasing two sets of parents by telling them what he thinks they want to hear.
o)A home where he can be afforded the opportunity of growing up with less stress and greater happiness, and the opportunity of a relationship with both parents which hopefully is rewarding.
p)A home where the child will have the benefit of a father who has already made inquiry not only as to the child’s schooling but also as to youth groups locally in which he might participate and be as it were socialised to the locality.
q)A home where the child will have the advantage of being able to maintain a contact with his mother without the guilt attendant on his presently being able to maintain contact with his father, guilt engendered by the undisguised antipathy for the father and the relationship between the child and his father.
Weighing up these matters, and given the whole of the evidence in the case, I am persuaded to the view that the advantages to the child of being able to live with his father in the United Kingdom outweigh the disadvantages to the child in being removed from his current environment.
Those advantages I see as being both long and short term.
I am persuaded that given the undertakings of the father, particularly that he will seek counselling assistance for the child should he require it, and aided in part by the promised support of his partner, and his daughters, that he will otherwise do all that he can including rearranging his work commitments to ensure that the child settles in. The child will achieve security of love and care in his new surroundings and the wrench for the child which I see as a disadvantage of his move will be minimised.
Given the evidence, the possibility has occurred to me that the child might feel that these proceedings are caused by him and the result of them is something about which he might or should feel guilt or be made to feel guilt.
I am concerned at the capacity of the mother and her husband for self control.
I on the other hand, believe that the child needs to be able to say goodbye to his mother and step father and his friends in Australia. I am however on the other hand concerned that during that period emotional harm will come to him.
I have accordingly made an order that the parties attend upon this Court with the child on a day following the delivery of my judgment and I will direct that on that day the Family Consultant and the Independent Children’s Lawyer attend upon the child and explain to him:
a)that these orders are a result of the Court’s determination and not his
b)that they will afford him the opportunity in the Court’s view of having a relationship with both his mother and his father in a way which it considers is best for him
c)that the decision does not mean that it is not permitted to love both his parents and indeed his step father.
It is hoped by the Court that the child will be able, as a result of this decision, to express his feelings for each of them in a free and unfettered way. I propose that following that interview the child be placed in the care of his father.

Costs

In relation to applications for costs I have no up to date evidence of the mother’s means or those of the father. I direct that within 21 days of the date of these orders each of them files and serves a statement of their financial affairs and a written submission on costs. In the absence of it being filed within that time the court will proceed to a determination of that issue and draw inferences from the failure to file such a statement, that there is nothing the defaulting party wishes to put on costs, their capacity to meet them or their quantum.
There was not before me adequate and up to date information as to the costs of the parties or of their means to be able to meet any such costs.
In the circumstances I propose that the parties and the Independent Children’s Lawyer have liberty to relist the matter by arrangement with my Associate within 21 days from the date of this order for argument on costs, subject to the submissions and evidence required being filed.
In the event that no such applications are made there will be no order as to costs.

I certify that the preceding three-hundred and sixteen (316) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 14 April 2008

[2008] FamCA 242

14 April 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Jurisdiction

Procedural Fairness