Simons and Faure

FAMILY COURT OF AUSTRALIA

SIMONS & FAURE

[2011] FamCA 317

FAMILY LAW - CHILDREN – With whom a child lives – Best interests of child – Alternative residence – Live with parent overseas – Parental responsibility – Capacity of each parent to provide for the needs of the child – Separation of the child from either parent – Extent to which each of the parents have demonstrated a capacity to be able to support a meaningful relationship between the child and the other parent – Cultural heritage – Fulfilling or failing to fulfil parental responsibilities

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3)

A v A: Relocation Approach (2000) FLC 93-035
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531
U v U (2002) FLC 93-112

APPLICANT:

Ms Simons

RESPONDENT:

Mr Faure

INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

FILE NUMBER:

PAC

5887

2010

DATE DELIVERED:

29 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

19, 20 & 21 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stenhouse

SOLICITOR FOR THE APPLICANT:

Salvos Legal Humanitarian Law

FOR THE RESPONDENT:

Mr Faure in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gersbach

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

That all previous orders are discharged.
That the mother and the father have equal shared parental responsibility for the child C Simons-Faure (“the child”) born … October 2005.
That the child live with her mother.
That the mother be permitted to live with the child in the United States of America (“the US”) or any other location as may be agreed between the parents from time to time.
That the child spend time with her father at times to be agreed between the parents and failing agreement then:
5.1In the US, Australia, France (including the Caribbean) or as otherwise agreed for a period of up to four weeks during the Australian summer school holiday period until the child attends high school such period to include Christmas Day in odd numbered years and for a period following Christmas Day in even numbered years;
5.2From when the child attends high school, in the US, France (including the Caribbean) or Australia or as otherwise agreed for a period of up to two weeks during the northern hemisphere Winter holiday period to include Christmas Day in odd numbered years and for a period not including Christmas Day in even numbered years;
5.3From when the child attends high school in the US, France (including the Caribbean) or Australia or as otherwise agreed for a period of up to four weeks during the northern hemisphere summer school holiday period;
5.4In the US, France (including the Caribbean) or Australia or as otherwise agreed for a period of up to two weeks during any other school holiday period for the school attended by the child each year;
5.5For a block period of not more than seven days in any two week period in the US provided the father shall travel to the US to spend such time with the child.
That the parents share equally in the air travel costs associated with the child travelling between Australia and the US to spend time with her father including the air travel costs of any adult acting as chaperone for the child and the child is not to travel unaccompanied by an adult until she attains 8 years of age.
That the mother authorise any school attended by the child from time to time to provide the father with any information he may request in relation to the child’s progress at school or in relation to events at the school.
That each party advise the other of any significant medical illnesses or injury suffered by the child whilst in their care, as soon as practicable after such incident occurs.
That each party inform the other of any change to his or her residential address and contact telephone number and provide to the other, not less than seven days notice of any change to such address or telephone number within two days of such change occurring.
That the father be at liberty to communicate with the child by telephone and/or Skype at any reasonable time as agreed or failing agreement not less than three occasions each week.
That except as otherwise provided by these orders the father and the mother are each restrained from removing the child from the US and Australia without the written consent of the other or further order of this Court.
That the mother use her best endeavours to ensure that the child undertakes French language studies.
That the Australian Federal Police remove the child’s details from the Watch List in operation at all Australian international departure and arrival points.
That for the purpose of the child being delivered into the care of her mother, the mother shall arrange for her mother, Mrs Simons, to collect the child from her father in Sydney not sooner than 8 May 2011, the mother to give at least three days notice by email to the father of the time when this shall occur and the father is to hand over the child into the care of Mrs Simons in accordance with such arrangements.
That Mrs Simons, from the time the father hands the child into her care, shall keep the child in her personal care at all times, travelling as soon as possible by air to the United States and hand the child into the care of her mother without delay.
That upon return of the child to the mother, the mother shall discontinue her parenting proceedings in the Superior Court of Alaska and register a sealed copy of these orders in that Court provided that the Court has a facility for this purpose.
That the Court notes that the father has indicated that he proposes to file an appeal against these orders and that the Court has informed him that he is to do this within 28 days.
That until such time as Mrs Simons collects the child in accordance with these orders the child is to live with her father.
That pursuant to s.62B and s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5887 of 2010

Ms Simons

Applicant

And

Mr Faure

Respondent

REASONS FOR JUDGMENT

Introduction

C Simons-Faure (“the child”) is almost 5½ years of age (born in October 2005). Her parents are Ms Simons (“the mother”) and Mr Faure (“the father”). The child’s mother is a citizen of the United States of America (“the US”) having been born in the US in 1977. Her father is a French citizen having been born in the Caribbean, in the French West Indies, in 1979. The child enjoys both US and French citizenship.
The child had been living in Australia with her parents when they separated in December 2009 or January 2010. By agreement with the father, the mother and the child left Australia on 6 February 2010 and went to the US. There is an issue about whether the father agreed to this being a permanent change of residence. In any event, the mother returned to Australia voluntarily in circumstances where the father had made an application under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) for a court order for the return of the child to Australia. Proceedings brought by the mother in the Superior Court for the State of Alaska for parenting orders in relation to the child have been stayed pending completion of these proceedings.
These proceedings involve determination of the final parenting arrangements which will be in the best interests of the child, including whether she will live primarily in Australia with her father or in the US with her mother.
The mother seeks the following orders:
1.That the parties have equal shared parental responsibility for the said child.
2.That the child live with the Mother.
3.That the Mother be permitted to live with the child in the state of …, US, or any such location as may be agreed between the parties from time to time.
4.That the Father spend time with [the child] at times to be agreed between the parties and failing agreement then:
4.1In Australia or France or as otherwise agreed for a period of up to four (4) weeks, during the Northern Hemisphere summer school holiday period.
4.2In Australia or France or as otherwise agreed, for a period of up to two (2) weeks during any other school holiday period for the school attended by [the child], each year.
4.3For a block period of not more than seven (7) days, in any two (2) week period, in [the US] (provided the Father shall travel to [the US] to spend such time with [the child]).
5.That the parents share equally in the air travel costs associated with [the child] travelling to Australia to spend time with the Father.
6.That the Mother authorise any school attended by [the child] from time to time to provide the Father with any information he may request in relation to [the child's] progress at school, or in relation to events at the school.
7.That each party advise the other of any significant medical illnesses or injury suffered by [the child] whilst in their care, as soon as practicable after such incident occurs.
8.That each party inform the other of any change to his or her residential address and contact telephone number and provide, to the other, not less than seven (7) days notice of any change to his or her residential address and of any change to his or her contact telephone number within two (2) days of such change occurring.
9.That the Father communicate with [the child] by telephone and/or Skype at any reasonable time as agreed or failing agreement less than one (1) occasion each week being on Saturday at 6pm Alaska time (being Sunday at 12pm in Sydney or in daylight saving time 1 pm).
The father seeks orders to the following effect:
1.        That the parties have equal shared parental responsibility for the child;
2.        That the child live with the father in Sydney;
3.        That the child spend time with her mother as follows:
3.1In [the US] or such other place nominated by the mother for a period of up to four weeks during the northern hemisphere school holiday period and incorporating the Australian July school holiday period;
3.2In [the US] or such other place nominated by the mother for a period of up to three weeks during the Australian Christmas school holiday period being for the first half in Christmas school holiday periods which commence in odd numbered years and for the second half in Christmas school holiday periods which commence in even numbered years;
3.3In Sydney during any other period that the mother is able to travel to Australia so that the mother is able to spend at least half of any school holiday period with the child and at least half of any other period while the mother is staying in Australia.
4.If the mother is permitted by this Court to relocate the child’s residence to [the US] then the child spend time with the father as follows:
4.1In Australia or such other place nominated by the father for periods of up to six weeks during the northern hemisphere school holiday period;
4.2In Australia or such other place nominated by the father for a period of up to three weeks during the Australian Christmas school holiday period to incorporate the child’s Christmas school holiday period including Christmas Day in odd numbered years and for a period following Christmas Day in even numbered years;
4.3In [the US] during any other period that the father is able to travel to [the US] so that the father is able to spend at least half of any school holiday period with the child and at least half of any other period that he is staying in [the US].
5.That the parties both spend time with the child for such alternative times, and in accordance with such arrangements, as they may at any time agree in writing, taking into account the child’s views and needs.
6.Various other orders of a machinery or implementation nature.
The Independent Child Lawyer seeks orders generally consistent with those sought by the father with some variations which it is unnecessary at this point to set out in detail.

Background

The parties met in Europe in March 2002 and commenced cohabitation in January 2003.
The parties lived in New Zealand from January 2003 until September 2003.
In September 2003, the parties separated. The mother returned to the US and the father moved to France.
In March 2004, the mother went to France in an endeavour to reconcile with the father. The parties recommenced their relationship in France. The mother had enjoyed a good relationship with her parents to this point. But her relationship with them became strained when the mother moved to France to live with the father. Her mother in particular did not approve of the relationship between her daughter and the father.
In December 2004 the mother became very depressed about her circumstances and attempted to commit suicide. I shall refer to this matter again below.
As indicated above, in October 2005, the child was born (in France).
In approximately April 2006, the parties and the child visited the father’s parents and sisters in the Caribbean for approximately four weeks.
The mother’s parents and her elder sister visited the parties in France in June 2006. There remained some tension between the mother and her mother.
The father had been working towards attaining a doctorate. But he gave this up in October 2006 during a dispute with the directors at the relevant hospital in France about what he says was their mismanagement of asbestos at the hospital. He says that his life was threatened.
The parties and the child visited the father’s parents in the Caribbean in November 2006.
In January 2007, the parties travelled to Australia with the child on a visitors visa. The mother said that she wanted to return to the US at this time. The father disputes this. In any event they decided to come to Australia to live. They both regarded this as offering an opportunity for a fresh start in their relationship.
In May 2007, the mother commenced work with an accounting firm in Sydney on a standard business sponsorship visa. This visa enabled both parties to work in Australia.
In October 2007, the father commenced part-time work as a health instructor. During this time, the child attended day-care 3 days per week.
In early 2008, the parties attended relationship counselling.
In July/August 2008 the father’s parents and his elder sister, her husband and daughter visited the parties in Australia.
In August 2008, the parties applied for permanent residency in Australia.
In September 2008, the father commenced full-time employment with the University of New South Wales as a Senior Project Officer undertaking research. The child commenced full-time child care.
In November 2008, the father commenced a relationship with a work colleague, Ms H. He introduced the child to her in December 2008.
In May 2009, the mother’s employment contract with the accounting firm was not renewed. The father negotiated a three year contract with the University. The mother began taking care of the child on a full-time basis.
In mid-June 2009, the mother and the child visited the US for six weeks before meeting the father in Paris for about four weeks including for the wedding of the father’s cousin.
In November 2009, the father moved out of the parties’ home and commenced living on his yacht.
In late November 2009, the father informed the mother that he was in a relationship with Ms H. The mother was devastated and clearly lapsed into a state of emotional distress. The parties continued an intimate relationship.
In January 2010, the mother was unemployed and says she was suffering from severe emotional distress. She was prescribed anti-depressant medication.
On 6 February 2010, the parties separated on a final basis. The mother and child moved to the US. The mother says that the father agreed to her and the child moving to the US and assisted her in buying one-way flights to the US. The father moved in with Ms H at this time and says that he expected the mother and child to return to Australia within a few months.
While in the US, the mother’s health began to improve. The father had contact with the child by phone or via Skype. There is an issue about the frequency of this communication and I shall refer to this again below. The child was enrolled in preschool in the US.
In May 2010, the mother gained employment in the US.
Between 6 May 2010 and 28 July 2010, the parties attempted to negotiate parenting arrangements.
On 18 June 2010, the mother moved from a friend’s house into a rented home.
On 15 July 2010, the father informed the child and the mother that he was expecting a child with Ms H.
In August 2010, the father and his partner took the child on a trip to the Caribbean. The child returned to the care of the mother on 2 September 2010.
On 8 October 2010, the father made an application for the return of the child under the Hague Convention.
On 20 October 2010, the mother commenced parenting proceedings in the Superior Court for the State of Alaska.
In November 2010, the mother moved in with her partner, Mr D.
On 9 December 2010, the mother filed her Initiating Application for Final Orders in these proceedings.
In December 2010, the child M was born to the father and Ms H.
On 22 December 2010, the mother agreed for her court proceedings in the US to be stayed pending her return to Australia to finalise these proceedings.
In January 2011, the mother married Mr D in the US. Mr D has 2 children, V, born in April 2000 and N, born in July 2001. The mother and Mr D are expecting a baby, the anticipated birth date being late May 2011.
On 6 January 2011, the mother arrived back in Australia with the child and stayed with her friend L. But there was conflict between the parties which was occurring in the presence of L’s children. L asked the mother to leave.
On 11 January 2011, the father filed a Response to Initiating Application.
The mother did not have any accommodation nor, so it would seem, the financial capacity to enter into a lease. The father offered the mother the use of his yacht as accommodation. On 12 January 2011, the mother and child moved on board the father’s boat where they lived for only a few days.
On 17 January 2011, the parties attended mediation.
On 18 January 2011, the mother and child travelled to Brisbane without the father’s consent.
On 3 February 2011, the father removed the child from the mother’s care in Brisbane during an unsupervised visit, and went on holiday with the child and his partner without the mother’s consent. The child was returned to the mother’s care on 8 February 2011.
On 13 February 2011, Mr D travelled to Australia.
On 21 February 2011, Collier J ordered that a Family Report be prepared in relation to the matter.
On 23 February 2011, Interim Orders were made that the mother be restrained from removing the child from Australia and that the child’s name be placed on the Airport Watch List.
On 25 February 2011, Collier J made Interim Orders that, inter alia, the parties were to have equal shared parental responsibility for the child and that the child live with the mother until 5 March 2011 and again from 15 April 2011 and with the father at all other times.

On 14 March 2011, the child commenced attending a Sydney primary school.
On 8 April 2011, the Family Consultant’s Report was released to the parties.

Credit

The mother

The mother gave her answers to questions during cross-examination in a forthright manner. She appeared to be a little nervous and remained somewhat uptight during her cross-examination. However, in the circumstances, this is understandable. She made appropriate concessions. I regard her generally to be a truthful witness. The only reservations I had about the veracity of her evidence was in relation to the frequency of Skype communication between the father and the child. The mother asserted that the father and the child had regular communication over the period during which the mother and the child were in the US of approximately two to three times per week by telephone or Skype. I thought the mother was overstating the occasions on which the father was able to communicate with the child by Skype. The mother appeared to be somewhat defensive when she conceded that, certainly at one point in time, and for quite some months there was no Skype by computer connection but the mother asserted that she was able to use her mobile phone to effect the Skype facility for the child.

The father

The father had a slight difficulty in being able to always answer questions in a forthright manner during his cross-examination. To be fair to him, English is his second language. At times he gave me the impression that he was answering questions in a manner which might have more accurately reflected structure of the French language rather than English. This appears to have caused counsel for the mother to have interrupted the father on many occasions in an endeavour to cause him to focus on his answer. Having said this, the father made numerous appropriate concessions. Generally I regard him as a witness of truth. Although he did give me the impression on many occasions that he was answering questions in the most favourable light for his own case.

Mr D

Mr D answered questions in a most forthright and respectful manner and I regard him as a witness of the truth.

Ms H

Ms H answered questions during cross-examination in a forthright manner. I regard her as being a truthful witness.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides 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.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Alternative Residence

This is not a relocation case involving as such cases do an application for the permission of this Court for a parent residing in Australia to relocate the child’s residence with them in another country, rather than for the parent to continue living with the child in Australia (see for example U v U (2002) FLC 93-112 and A v A: Relocation Approach (2000) FLC 93-035).
This is because the mother has no intention of returning to live in Australia. She says that it is just not possible for her now to live in Australia. Although, as indicated above, she applied with the father for permanent resident status in Australia, such has not been granted at this point. She left Australia in circumstances where she had no employment, no money, no suitable accommodation, no family in Australia, few friends in Australia and no desire to continue living in Australia. More significantly, the mother has been living back in the US for the past approximately 13 months. She has remarried Mr D and they are expecting the birth of their child in late May 2011. The mother says, and I accept this evidence, that it would be impossible for Mr D to move his residence to Australia because he has a shared custody arrangement with his former wife with respect to their two children. Moreover, Mr D and the mother both have employment in the US. They both say they are happy living there and I accept that the mother’s health has improved significantly since she has been living back in the US.
On the other hand the father has a strong wish to remain living in Australia. Both he and his partner Ms H have appropriate employment here. There is no evidence before the Court that either of them would be able to obtain appropriate work visas for the US.
I accept that there is no prospect of either of the parties moving to live in the country where the other is resident.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her.
In this case there is no contest about parental responsibility, each of the parties agreeing that they will continue to enjoy equal shared parental responsibility for the child.
In these circumstances, as indicated above, the Court must first consider making an order for the child to spend equal time with each parent if this will be in her best interests and be reasonably practicable. Such an order in this case cannot be reasonably practicable for the reason that, as indicated above, each of the child’s parents has indicated that they do not propose moving their residence to the place of residence of the other. The child will be living primarily in the US or in Australia and spending less time in the country other than that in which she will be residing primarily.
Because equal time is not in the best interests of the child, or reasonably practical, as indicated above, s 65DAA(2) of the Act requires the Court to consider whether the child spend substantial and significant time with each of her parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Given the geographic distance between Sydney and the US, making an order for the child to spend substantial and significant time with whichever is her non-resident parent would pose a considerable challenge. To some extent, the orders sought by the counsel for the Independent Child Lawyer for the time spent with the child by her non-resident parent would go close to serving the spirit of s 65DAA(3). This would be by way of the proposal for the orders to include a block period of not more than seven days in any two week period in the non-resident country but of course it assumes that the non-resident parent would have the capacity to be able to travel to the country of the child’s primary residence in order to avail themselves of this provision. Having said this it does seem somewhat of a challenge, given the enormous geographical distance between the child’s parents, to endeavour to put in place orders which would achieve substantial and significant time strictly in accordance with the meaning above. In my view what the Court has to strive to achieve is a set of orders that will enable the child to have a meaningful relationship with both parents and consistently with the child’s best interests in the somewhat challenging circumstances which present.

Section 60(CC) Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.

Additonal Considerations – s 60CC(3)

Section 60CC(3)(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

Family consultant Ms K, in her Children and Parents Issues Assessment (“Issues Assessment”), referred to the child as “… not of an age or maturity to be able to articulate her wishes in regards to living arrangements, especially given the complexity of the situation.”. In her Family Report (at paragraph 58) the family consultant said as follows:
[The child] was not of an age or maturity to have a comprehensive understanding of the implications of her living arrangements. Furthermore, she indicated in the Child Inclusive meeting that [she] had a preference to stay in Australia and in the Family Report Interview that she would like to go back to [the US].
The child is only 5 years and 5 months of age and for this reason the Court could give little weight to any views expressed by the child.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

In her Issues Assessment the family consultant said as follows:
[The child] was observed in the waiting area interacting with both parents. She appeared to have a comfortable and close relationship with both parents. [The child] was seen to play active and boisterous games with her father.
In her Report (at paragraph 58) the family consultant said:
… [the child] demonstrated that she had a close and meaningful relationship with both parents. This is consistent with having spent significant periods of time with both parents, as well as, two parents who loved and cared for [the child].
At paragraph 61 of her Report the family consultant said that the child had a strong attachment to both parents.
What is missing from Ms K’s evaluation, in my view, is any reference to the fact that there can be no question that the child has spent more time in the primary care of her mother than of her father. This was also the case even before the child left Australia with her mother in February 2010 for the US. It was submitted on behalf of the mother that in fact the child has spent more than twice the amount of time in the primary care of her mother than that of her father over her whole life to this point. I am not sure that such is the case. But in my view it is clear that there has been a significant difference in the amount of time the child has spent in the primary care of each of her parents, the greater amount of time having been spent by the child in the care of her mother.
It is also clear that the child has a good relationship with both her mother’s husband Mr D and with her father’s partner Ms H. At paragraph 49 of her Report the family consultant says:
[The child] reported that out of her parents’ new partners she preferred Ms [H].
But in her Issues Assessment the family consultant observed:
When asked to draw a picture of her “family”, [the child] drew a picture of five people, “Mummy”, “[V]”, “[Mr D]”, “[the child]”, “[N]”.
These of course are members of her American family with whom she had been living for some time until she returned to Australia with her mother in January.
The child appears to have a good relationship with Mr D and his children. The family consultant was able to observe play between Mr D and the child. They engaged well in play together. The family consultant reported the child as being comfortable directing Mr D as well as her mother in their play and “was seen to be comfortable standing in close proximity to Mr [D]”.
On the other hand the family consultant reported that the child appeared comfortable spending time with Ms H without Mr Faure. The child initiated a very creative puppet show about a wolf and horse in the woods and Ms H watched and applauded the show attentively.
In relation to M, the young child of the father and Ms H, M was included in the observation session. The family consultant said as follows:
[The child] did not give [M] much attention and continued playing with the tea set. … [the father] invited [the child] to hold [M]. [The child] did this with the support of [the father] and was appropriately gentle and affectionate. [The father] was heard to compliment [the child] on being a “nice big sister”.
The mother says that the child has a close relationship with her maternal grandparents and with other family members in the US. The mother has a close relationship with her twin brother who has a 10 year old son and an elder sister who has two daughters aged 3 years and 18 months respectively. The mother had been in the habit of seeing her brother approximately at three-weekly intervals and her parents at fortnightly intervals. As indicated above, the mother had a fractured relationship with her parents particularly in 2004 when she went to France to resume her relationship with the father. But the relationship with her parents appears to have been repaired. A good demonstration of the strength of the relationship, in my view, lies in the fact that the mother’s mother, Mrs Simons not only swore an affidavit in support of the mother’s case but travelled from the US and was present in Court supporting her daughter during the hearing as well as providing oral evidence. The maternal grandmother obviously loves the child and I am satisfied that they have a close relationship.
The child also appears to have a close relationship with the father’s parents and other relatives in the Caribbean, having visited them there on a number of occasions now including last August.
It was submitted by counsel for the Independent Child Lawyer that there is nothing to suggest that the child has a closer attachment to one of her parents than she has to the other. In my view, this submission overlooks two matters. Firstly, as I have indicated above, there is no question that the child has spent more time in the primary care of her mother. Secondly, she has never lived away from her mother apart from the holiday in August 2010 for five weeks with her father and Ms H, and over relatively brief periods with her father.
In relation to the first of these matters, learned counsel for the Independent Child Lawyer submitted that the child has spent a lot of time with each of her parents and that attachment and relationship are not assessed on the basis of a mathematical calculation. I accept the submission about the inappropriateness of a detailed mathematical calculation but am unpersuaded by the thrust of the submission. Little, if any, importance appears to have been placed by the family consultant and counsel for the Independent Child Lawyer on the fact that the child has never lived away from her mother for any substantial period.
The other matter which, in my view, is relevant to this consideration of the child’s relationship with relevant persons, is the likely reaction of the child to being separated from her mother. There must be some reason for the likelihood that a separation of the child from her mother would almost certainly cause the child to suffer grief, a sense of loss and a difficult adjustment as referred to by the family consultant. Presumably the reason is that she has a strong attachment to her mother.
In my view, when one considers these matters they all point in one direction. This is that they point to the likelihood that the child has a closer relationship with her mother than with her father.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The father is very critical of the mother in this regard.
The mother says that after she and the child returned to the US that the child had contact with her father either by telephone or by using Skype facility two to three times per week, sometimes more than one occasion per day.
The father has a very different view. He wanted to be able to tender material he had downloaded from his computer in an endeavour to establish that for a considerable period during 2010, there was no Skype contact. I did not consider the material to be admissible into the evidence. There appears to be no issue that for the first few months after the mother and child left Australia the father was able to communicate with the child effectively using Skype connected to a computer to which the mother had access. Then he says the mother did not facilitate the communication with the child for quite some months.
As I understand the mother’s position in relation to this, she says that she was unable to use the computer. She moved into an apartment in June 2010 and had the use of her parents’ laptop computer there. But she explained that she did not have an internet connection for the computer. Obviously in these circumstances there was no Skype computer communication. But the mother said that she was able to accept the Skype connection on her cell phone which provided the audio communication for the child with her father but no video communication. When the mother moved in to live with Mr D at the end of October 2010, he had a computer with Skype possibility. But he explained that he did not have the Skype facility downloaded on the computer until approximately January 2011.

What I make of all this is that the father’s version of the Skype communication between the parties and the child is more likely to be correct than the mother’s version. So that in the first perhaps few months of the mother and the child returning to the US there appears to have been some Skype communication by computer. But after that time and certainly by mid-year it ceased and did not have any possibility of existing until at least January 2011. The father says that it did not occur over the whole period.
But having said this it is clear that there was regular telephonic communication between the father and the child. I accept the father’s version that he was the one who made almost all the telephone calls. The mother said that she would have made between 15 and 20 telephone calls to the father over the period that she was in the US. In my view this is more likely than not to be an exaggeration.
It is clear that there have been difficulties about communication between the father and the child during this period. The father says that he has not been able to talk to the child enough. The mother says that the father has been somewhat pestering and controlling, and wanting to speak with the child whenever he chooses. The mother also says that often he has been unpleasant to her. The father says that on many occasions the mother has been behind the child on the telephone telling her what to say and denigrating him and especially Ms H.
In my view there is almost certainly some force in the criticisms of each of the parties in relation to the other concerning these matters. But, as I say, there is also no question that the father has been able to have conversations with the child across the period and that such communication has been able to continue regularly although probably not as frequently as the father would like. I accept the mother’s estimate that such communication between father and child has been an average of two to three times per week over the period.
The mother agreed to the child going on a trip to the Caribbean with her father for five weeks in August / September 2010. As it turned out, Ms H was also with them in the Caribbean although the mother did not know this at the time. The father was critical of the mother saying that she unreasonably withheld her agreement to this trip until two days beforehand. But the mother explained that she was worried that the father might not return the child to her and that she had been asking him to sign a document to the effect that he would return the child and that he declined to sign such a document. In the end, the mother agreed to the child going without her having obtained any such document from the father.
It was submitted by the father and also by learned counsel for the Independent Child Lawyer that to some extent the mother delayed in not returning the child to Australia within a reasonable time of receiving in November 2010 the information from the US Central Authority that she was required to return the child. The mother said that after receiving the letter she endeavoured to obtain legal advice and had difficulty in doing so. She said that she spoke with two lawyers but they said that they were unfamiliar with the law in relation to Hague Convention cases. As it turned out, the mother had planned to marry Mr D in January 2011 which of course she did. As indicated above, the mother and the child arrived in Australia on 6 January 2011.
The father says that when he returned the childto her mother in the US in early September 2010 after they visited his family in the Caribbean he handed the mother approximately ten pre-paid envelopes addressed to himself and members of his family. He said that he asked the mother to put some of the child’s artwork and news into the envelopes and to post them. He says that he received only two in the four months between September 2010 and 6 January 2011. The mother said that she sent three of the envelopes to the father and one to his parents.
There were difficulties in the arrangements between the parents for the care of the child once she and her mother returned to Australia on 6 January 2011. The father collected them from the airport. He also saw the child the following day. But the parents were unable to agree on the parenting arrangements. As indicated above the mother was staying with her friend L and the conflict between the parties was so bad that L asked the mother to leave with the child. The father was paying $150 per week for the child’s support. He agreed that he would pay the mother an additional $100 per week. She was obviously in financial difficulty and had no accommodation. As also indicated above, the mother accepted the father’s offer to stay on his yacht but after some days she decided that this was quite unsuitable, especially in the summer heat. On 17 January the mother moved with the child to stay with a friend of hers in Brisbane. She did not consult the father before doing this but said that she had received legal advice to the effect that she could go to Brisbane in circumstances where there were no orders providing for the parenting arrangements. The mother has said that she now realises that this was a mistake by her. The mother also said that she was worried that the father would abscond with the child.
From the time that the mother and the child arrived in Australia to this point, there had only been one night when the child had spent time with her father, although she had been in his care on numerous days over the period. The mother said that after spending a night with her father the child said that she did not want to stay the night with him because she had to sleep in a sleeping bag on the floor. The father flew to Brisbane on 3 February 2011. He had been endeavouring to obtain the mother’s agreement to him having the child for a holiday between 3 and 8 February 2011. The mother would not agree but she permitted him and Ms H to spend a few hours with the child on 3 February 2011. The father was to return the child to the mother at 5:00 pm that day but instead, sent an email to the mother to the effect that he was taking the child for a five day holiday with Ms H to the Gold Coast. The mother said that she became extremely distressed about this and I shall refer to this matter again below. The father returned the child to the mother’s care on 8 February 2011.
On 21 February 2011 this Court (Collier J) made an order that the child spend time with her father from 10:00 am until 6:00 pm on 22 February 2011. On 25 February 2011 Collier J ordered that the child live with her mother until 5 March 2011, with her father between that time and 15 April 2011 and then with her mother again from that time. These orders have been observed by the parties.
When the mother was asked by me what confidence this Court might have that she would facilitate a meaningful relationship between the child and her father, the mother responded that she had let the child go on holiday with her father for the five weeks in August 2010 without any legal means of having the child restored to her care if the father did not do so. The mother also said as follows:
He is an important part of her life and I would not want to take something important away from her.
In relation to the willingness and ability of the father to facilitate a close and continuing relationship between the child and her mother the father is relatively untested in this regard. I note that the family consultant said as follows at paragraph 59 of her Report:
Given that [the father] has had limited contact with [the child] his capacity to facilitate [the child’s] relationship with her mother remains largely untested. However, in the time that [the child] spent with him in Queensland it would appear that he allowed [the child] a minimum of daily contact with [the mother] and sent her photographs of [the child]. When [the father] spoke about setting [the child’s] room up in his home in [Sydney] he gave the impression that he was going to place photos of [the mother] and her family in [the child’s] room.
I note also that the father permitted the mother and child to go to the US, he returned the child to her mother after their Caribbean holiday and he returned the child to her mother on 8 February 2011 albeit after he had taken her care into his own hands knowing that the mother would be very distressed by this.
The other relevant matter for my consideration in this regard is the ongoing, intractable conflict between the parties particularly over the parenting arrangements for the child.
A component in the reasoning by the family consultant which has led her to the recommendation that the child ought to live primarily with her father is the consultant’s view that the mother has not been willing to facilitate and promote the child’s relationship with her father. At paragraph 59 of her Report the family consultant says as follows:
Ms [Simons] and Mr [Faure] appear to have a history of a tumultuous relationship and have had difficulties agreeing on the best care arrangements for [the child]. If the court finds that [the mother] moved to [the US] without the consent of [the father] this raises concern about her willingness to facilitate an ongoing relationship with [the child] and [the father]. Furthermore, the involvement of the Hague Convention to facilitate [the child’s] return to Australia is of note. It would appear that since returning to Australia [the mother] has not been willing to facilitate and promote [the child’s] relationship with [the father]. She appeared to have been attempting to insist that [the father] only spend supervised time with [the child], in the absence of any indicators for supervision. Furthermore, [the mother] only consented to [the child] spending one overnight with [the father] despite her not having stable accommodation. It appeared that she planned to take [the child] interstate without informing [the father] nor arranging provisions for him to spend time with [the child] during this time. Furthermore, [the father] alleged that [the mother] limited his telephone and Skype contact with [the child] whilst she was living in [the US].
Clearly these observations must be seen in the context of all the evidence before the Court. In my view, these observations present a too-pessimistic version of events and involve an overcritical assessment of the mother’s efforts to facilitate time between the child and her father. For instance there is no question that the father agreed to the mother and the child going to the US and for an undefined period. The other criticisms are also to an extent unbalanced in my view. This is not to say that the mother has been a model of reasonableness in terms of accommodating the father’s requirements to spend time with the child. And certainly some of the criticism is justified such as the mother taking the child to Brisbane without informing the father or making provision for the child to spend some time with him during that period.
Having said this there is some thrust to the criticism of the mother by the family consultant in this regard.
My view about this legislative consideration is that although the father’s capacity to facilitate the child’s relationship with her mother remains largely untested as the family consultant has said, I would agree that on balance his willingness and ability for this is probably ahead of that of the mother. But, I am not persuaded that the mother would not comply with court orders in this regard. As indicated above, she returned to Australia voluntarily and without the necessity of a court order. She made the child available for the five week holiday with her father to the Caribbean. She has complied with the orders of Collier J. She has been able to facilitate telephonic and some Skype communication, albeit most having been initiated by the father. And, despite the criticism in this regard, she has facilitated some time between the child and her father since returning to Australia.
In addition, the mother made the concession which I have quoted above about the child’s father being an important part of her life.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

The mother says that the child would be very distressed if she was not able to return to the US with her.
The family consultant said (at paragraph 17) in her Report as follows:
[The mother] … reported that just prior to returning to Australia in January 2011 [the child] had started to wet the bed at night every couple of days. She reported that [the father] had been telling her that she was coming back to live in Australia and that he could come and get her and bring her back to Australia. [The mother] reported that “she wanted me to come back with her”. [The mother] observed that [the child] had become a lot more “clingy” to her since returning to Australia. Furthermore, she reported that [the child] had become a lot more “affectionate” and that before she would say “I love you Mummy” four or five times per day and it had become approximately every 10 minutes.
As the family consultant has also said the child has a close relationship with each of her parents and that she has a “strong attachment to both parents”. But as I have also observed above, there is no question that the child has spent more time in the primary care of her mother. The reality is that she has been living with her mother in the US over the previous year and has also developed a close relationship with Mr D and his children. I refer again to the family consultant’s reporting of the family picture drawn by the child which included herself, her mother, Mr D and his two children.
In any event, the child has never been away from her mother except for the five week period in the Caribbean on holiday with her father and Ms H in August 2010 and some other short periods in her father’s care.
Just looking objectively at these matters one would anticipate difficulty for the child if she was not permitted to move back to live primarily with her mother and extended family in the US. This objective prediction is reinforced by that of the expert Ms K. During the course of her cross-examination the family consultant was asked what she thought the consequences for the child would be if she was to be living primarily with her father in Australia and separated from her mother and extended family as recommended by the family consultant. Ms K said that there was certainly potential for grief, loss and a difficult adjustment for the child.
The family consultant says (at paragraph 60) in her Report as follows:
A change of residence from living with [the mother] in [the US] to living with her father in Australia is likely to be a difficult experience for [the child]. It would appear that the environment both in a geographic, relational and philosophical sense is very different between the two households. [The child] having spent six weeks living with her father and attending school in Australia would likely make such a transition easier. [The father] and Ms [H] appeared to have skills that would assist [the child] to manage her grief and make this adjustment. In particular, they appeared to have the capacity to portray [the mother] and her family in a positive light and encourage [the child] to remain in contact with them.
On the other hand it is clear that the child was able to separate from her father in February 2010 and to live in the US with her mother without apparent damage to her relationship with her father as well as not suffering any serious emotional distress. The mother conceded that if the child was to be living with her then there would be some sense of loss for the child in not being able to have her father more in her life with her. Some of this would presumably have been evident during 2010 with the absence of her father being directly involved in her life. Moreover, when the child returned to Australia apparently there was no sense of uneasiness or discomfort when she was reunited with her father and in fact the opposite appears to have been the case. One would have thought that this would have shown a reasonable level of adjustment free from any serious distress over the course of her absence from her father.
It was also the case that when the child was visiting the Caribbean with her father and Ms H in August 2010, Ms H said that the child was missing her mother.
Accordingly I find that there would almost certainly be a serious negative effect for the child emotionally and psychologically of her being separated from her mother and extended family in the US by reason of an order that she reside primarily with her father and Ms H in Australia. On the other hand I find that it is unlikely that there would be a serious psychological or emotional effect on the child upon being separated from her father if she were to move to the US with her mother other than some level of upset and sadness at leaving them.

Section 60CC(3)(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.

This is of course a relevant consideration in this case because of the large distance geographically between Sydney and the US. As indicated above each party proposes that the non-resident parent would have up to eight weeks with the child visiting them in their country of residence primarily for two holiday periods per year. But this could be complimented by other direct time with the child in the child’s country of residence. There would also be regular communication via telephone and Skype.
I can see little between the parties’ respective proposals in this regard. The father is working full time and Ms H is continuing to enjoy an income while on maternity leave. There appears to be sufficient means between them to be able to fund their share of the necessary travel costs. The parties have agreed that such costs would be shared equally between them, not only the costs of tickets and travelling for the child but also for accompanying adults as required. Similarly Mr D is working full time and the mother proposes that she will resume working in her employment, although possibly part time, some months after the birth of their child in late May 2011.
The mother said that the child is a good traveller, the parties having undertaken numerous overseas trips including three to the Caribbean. The mother says that the child is very patient, particularly for a child of her age, that she is fine to sit on flights for extended periods and is able to sleep during flights.

Section 60CC(3)(f) – the capacity of each of the child’s parents and 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.

In relation to this matter the family consultant said (at paragraph 62) of her Report as follows:
Both parents appeared to have adequate basic parenting skills. There does not appear to be a dispute over the day to day care that [the child] has received from either parent. [The mother] reported that she had concerns about [the father] allowing [the child] to do things that were unsafe. Some of the concerns may have been related to cultural differences and some, should they be found to have occurred, raised concern that he may have been lax in regards [to] [the child’s] safety. [The father] alleges that he has concerns about [the mother’s] emotional state and the potential impact on [the child]. [The mother] confirmed that she was depressed in 2004 and made a suicide attempt. She reported that at the end of 2009 and beginning of 2010 she suffered from panic attacks, consulted Dr [X] for her condition, was prescribed an anti-depressant medication, lost her appetite and suffered from insomnia for three months. [The mother] reported in an affidavit that she suffered a further panic attack in 2011 and was crying all the time and felt overwhelmed. [The mother’s] description is suggestive of an emotionally fragile person. Furthermore, [the mother] presented on interview as emotionally fragile. A parent presenting with such a disposition can have an impact on the child’s well-being both in the short and long term. It can invite a child to move into the role of trying to emotionally support a parent, model to the child that the world is a difficult and overwhelming place and model poor coping mechanisms. Furthermore, if a parent suffers a period of low mood, anxiety or high stress it can be difficult for the parent at that time to be attentive and attuned to the child’s needs.

I note in relation to the mother’s expressed concerns that the father does not always conduct himself with an appropriate level of care for the child’s safety there have been some concessions by him in this regard. He conceded that when the child was young he left her in the bath unsupervised on occasions. He also conceded that he left the child at home unattended on some occasions. In relation to the mother’s allegations that he has had the child on his yacht without placing a life jacket on her, I am satisfied that this has been the case. However, the father said that this has only occurred when the child has been in the safety of the cockpit of his boat.
There were other criticisms made of the father not practising an appropriate level of safety with the child during engaging in other water sporting activities with her. The father is an excellent swimmer and I am not persuaded that in respect of these latter matters he would not take appropriate precautions to ensure the safety of the child.
In relation to the state of the mother’s mental health, this has been the subject of considerable inquiry during the course of these proceedings. It is clear that the mother has suffered from depression. In more recent times she has sought professional assistance in relation to this. I will refer to this below. The father says that he regards the mother as having suffered from depression since 2003 apparently soon after they commenced their relationship. He says that at that time the mother was depressed about the loss of her previous marriage. The mother denies this. I note at this point that there has been no psychiatric assessment of the parties for the purposes of this litigation and that there is no expert evidence before the Court in relation to this matter apart from the observations which are included in the Family Report. But I accept that the mother has consulted a psychiatrist in the US and that she has been regularly seeing a counsellor there since approximately April 2010. She says that it is the father who has made her depressed and she has tended to see her counsellor when she has encountered conflict with the father.
The mother says that she has experienced two periods of very serious emotional distress. The first of these was in December 2004 at a time when the parties were still living in France. She said that the parties’ relationship was in a very poor state. She was estranged from her parents. She was unable to speak the French language which meant that it was very difficult for her to make friends and she was unable to make friends. Accordingly, she felt very lonely and unsupported. She said her self-esteem became very low.
The mother said that she and the father were arguing frequently and that he was very critical of her. She said that he had said something very insulting to her about their sexual relationship and denigrating her by comparison with his former girlfriend. The mother found a note from his former girlfriend indicating that she and the father had slept together which was contrary to what he had told the mother. The mother said that these events “triggered a deep feeling of helplessness within me, as I felt emotionally dependant on him and trapped in our relationship, and because I was so far from my friends and family.”. The mother took five to six sleeping tablets. She said that this was more likely a call for help than a serious attempt at suicide.
The mother said that the other time when she suffered very serious emotional distress was when the father informed her in late November 2009 that he had been having an affair with Ms H for the previous 13 months. The mother said that she had found herself in the position not only of having been so seriously deceived by the father but in circumstances where she had no employment or savings, that she was not entitled to any government benefits, that the father was quite unsupportive and threatened to cease contributing to the rent and that she found it very difficult to cope. The mother consulted Dr X and he prescribed anti-depressant medication which the mother took between Christmas 2009 and April 2010. The mother said that over this period she suffered panic attacks and that she had never experienced these previously.
The mother said that after returning to the US and being with her family and friends she felt much better. As indicated above, she continued to see a counsellor in the US. She said that she is no longer depressed. The mother also said that when the father did not return the child to her care on 3 February 2011, she became extremely alarmed and fearful that he would abscond with the child and refuse to return her to the mother’s care. She said that in these circumstances she had some recurrence of the panic attacks but that these subsided and then ceased. She has had no recurrence of either the panic attacks or depression since.
The father makes much of the mother’s history of depression and infers that this has affected her capacity to parent the child adequately and will continue to do so.
On the other hand, in my view, there must be some concern about the father’s capacity always to be sensitive to the child’s emotional and psychological needs. For example, apparently he had no hesitation in introducing the child to Ms H and subsequently her parents a long time before he disclosed his relationship with Ms H to the mother. This must have placed the child in a difficult position because her mother had no knowledge of the relationship at that time. One would have thought it would have been somewhat confusing for the child to be involved in the father’s life with Ms H and at the same time being involved in her life in what one would assume would have appeared to be her intact family. In any event the father was placing the child in a compromised position, certainly in relation to her mother. In my view, clearly what the father was doing was placing his own interests ahead of those of the child. When asked for his reason for doing this the father said that when he decided that Ms H would be with him for the rest of his life he decided to introduce her to the child. He said that he would never lie to his daughter. I must say this appears to show considerable lack of insight and insensitivity on the father’s part and one wonders about the extent of his capacity to put the child’s interests ahead of his own.
Another example of the father’s lack of insight and sensitivity in relation to the needs of the child was the manner in which he announced that Ms H was expecting his child and that the child would be soon to have a baby sister. The father phoned the mother and during the course of the conversation asked the mother whether she could keep a secret and then said that he was going to tell the secret to the child and that she could listen in. Then the father announced what could only be explosive news to the mother in her circumstances that the child was going to have a baby sister. The mother said that she was shocked and hung up the telephone.
Again, in my view, this reflects poorly on the father. What should have been a happy occasion for the child was no doubt rendered confusing or, worse, upsetting for the child because it would have been difficult for the mother to hide her distress from the child.
Accordingly, I have reservations about the father’s capacity to always provide for the emotional and psychological needs of the child and I have some reservations about the capacity of Ms H to do this also. She made it clear during her cross-examination that in matters of judgment about the child she left it to the father to decide what to do.
I note that the family consultant (at paragraph 63) in her Report says as follows:
… Based on all the information available both parents demonstrated a capacity to at times prioritise [the child’s] needs and at other times place her needs behind their own. It would appear that [the father] did not act in [the child’s] best interest when he introduced [the child] to Ms [H] and her family prior to the dissolution of his relationship with [the mother]. Furthermore, during the family report observation session [the father] insisted on holding a French speaking tea party (presumably to further her fluency) when it appeared that [the child] simply wanted to have fun playing with her father. [The mother] asserted that she and Mr [D] had planned to have a baby and were attempting to conceive, which given Mr [D’s] family situation would appear to commit her to the United States of America. This was at a time when she appeared to have been in an active dispute with [the father] about [the child’s] residence and the resulting situation does not appear to be in [the child’s] best interests. Furthermore, [the mother’s] limiting [the child’s] time with [the father] during her stay in Australia in early 2011 did not appear to be placing [the child’s] needs ahead of her own.
The family consultant also noted that both parents had been involved in considerable conflict between them in the presence of the child thereby indicating that they had not always been able to protect the child from their conflict.
In my view, the rather critical observations by the family consultant about the mother’s likelihood of being an “emotionally fragile person” and her hypothesis of what this might mean for the child need to be seen in the context of all the relevant facts. In particular, while there is no doubt that the mother has suffered from depression including two very serious periods, in my view there is a common thread running through her history of this. This common thread is the father’s behaviour towards her. When that behaviour left her feeling unloved and with a sense of hopelessness in 2004 she took an overdose. When the father disclosed to her his affair of considerable duration in late 2009, to use the mother’s words, she became a complete mess. Now that the mother has remarried, appears to have been living in a settled life with the child, her new husband and his children and is looking forward to the birth of their child, one would have reason to anticipate that the mother would not be depressed. This must be all the more the case because the mother has had the assistance of a counsellor particularly when there has been conflict with the father. Looking objectively at these circumstances, by comparison with the devastation from the mother’s point of view of the break down of her relationship with the father including his deceptive and embarrassing behaviour towards her, one might have some confidence that the mother’s life will not be marked by depression.
So far as the family consultant’s description of the mother as having presented on interview as “emotionally fragile” it seems to me that given all that has happened and the risk which the mother must perceive that she might have to face the situation where the child goes out of her primary care, it would hardly be surprising that she might not present as emotionally robust at an interview that she would know could have great bearing on the outcome of the litigation.
I must say in all these circumstances I do not share the same level of concern, at least not at this point, as the family consultant appears to have about the mother’s emotional and psychological state and what it could mean for the child. I do not accept that the mother is not adequately managing her vulnerability to depression and do not regard her state of health as having the consequence that she is less capable as a parent to provide for the child’s needs than the father when one considers all the relevant matters.
So far as the capacities of Mr D and Ms H to provide for the needs of the child, Mr D has obviously been very supportive of the mother and on all accounts has involved himself appropriately with the child. His support of the mother is evidenced by the fact that he came to Australia and was interviewed for the purposes of preparation of the Family Report. He has also indicated his preparedness to assist financially and physically in ensuring that any travel for the child be funded and facilitated appropriately.
On the other hand Ms H is clearly very supportive of the father. She appears to have been able to assist him in providing appropriately for the child’s needs with the exception of the matter that I referred to above.

Section 60CC(3)(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.

This matter brings into focus the child’s mixed American and French cultural heritage. It is clear that the father is most anxious to ensure that the child is provided with adequate opportunity to develop her French language skills and an appreciation of the French culture. The father indicated that if she is to live primarily with him that he will enrol her in a French School. This is a school that offers studies in both French and English but which implements the curricula requirements of the New South Wales Department of Education. It would appear that if the child was enrolled at this school, over time she would become very fluent in the French language and in many cultural aspects of France and the French lifestyle.
On the other hand the mother proposes to enrol the child in a Spanish immersion charter school in the US. I understand that upon the child attending this school she would be taught a second language and culture that being Spanish.
It is the case that the mother, over the period when the child and she have been living in the US, has not taken any specific step in the direction of facilitating the child to develop her French language skills or have opportunity to develop her knowledge or understanding of the French culture. Having said this, however, both the mother and Mr D said that they would endeavour to find a way to do this if the child was to live primarily with them.
In my view, clearly if the child was to be living primarily with her father she would have a considerably greater opportunity to develop her French language skills and knowledge and experience of the French culture. However the importance of this must be kept in perspective. It seems to me that even if the child was to live primarily with her mother and Mr D, under the arrangements proposed for her to spend time with her father, the child would not be without adequate opportunity to develop in these areas in any event. Clearly her father speaks French as his first language and the child’s life has been embellished by numerous holidays in the Caribbean. It would be most surprising indeed if the father discontinued his holidays to the Caribbean with the child. In addition the father obviously has a very strong view about facilitating the child’s development in these areas. This was clearly evident even during the Family Report observation session about which the family consultant reported that he insisted on holding a French speaking tea party with the child during the session presumably to further her fluency in French, as I have said above.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

As indicated above, each parent has demonstrated that they are not always able to place the needs of the child ahead of their own needs. I have referred above to what the family consultant reported in relation to this.
It was submitted by counsel for the Independent Child Lawyer that the father had shown responsibility in early 2010 when he permitted the mother and child to go to the US in circumstances in which he considered it was important for the child to have a mother who was well. He considered the mother’s best chance of becoming well was in the US. I accept this. But there are deficits as referred to above including the father’s poor judgment in leaving the child in the bath, and at home, unattended.
One of the most serious matters relevant to this consideration in my view, is the very poor relationship between the parties. This leads them into intractable conflict. Conflict and hostility between parents is never in the interests of their children and where it persists, can be quite damaging to children’s emotional and psychological development. In the interests of the child, both parents would be well-advised to endeavour to find a way to improve their relationship at least to the point where they could achieve something like a business level of communication.
Learned counsel for the Independent Child Lawyer submitted that the Court should favour the father with a slight weighting in respect of this consideration. But in my view, all relevant matters considered, the parties are fairly evenly matched in relation to this criterion.

Section 60CC(3)(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

Unfortunately the parties now have quite some history of not being able to agree on arrangements for the child. Whether I make an order requiring the child to live primarily in Australia or in the US is unlikely to affect this matter one way or the other.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

In different circumstances there might have been some relevance from the fact that the child had spent three years of her young life living in Australia. But of course all that changed with the parents deciding that the mother could leave with the child to live in the US for an undefined period. Whatever relevance there might have been by maintaining some continuity of living in Australia disappeared in my view upon the making of that decision by the parents.
As it has turned out, the child on all accounts has been thriving in the arrangement of living with her mother and extended family in the US. In addition, her relationship with her father appears not to have suffered significantly from her absence from direct time with him as evidenced by the warmth and readiness with which she met him and the easiness with which she resumed her relationship with him.

Submissions by the Independent Child Lawyer

The Independent Child Lawyer made submissions which were consistent with the recommendation of the family consultant. This was that the child should live primarily with her father in Australia. Counsel for the Independent Child Lawyer submitted that in circumstances where the family consultant assessed the child as having a strong attachment to both parents the crux of the case really lies in the extent to which each of the parents has demonstrated a capacity to be able to support a meaningful relationship between the child and the other parent. Learned counsel submitted that the father has demonstrated this more than has the mother. This was said to have been demonstrated by what was described as a lack of support by the mother at times in relation to facilitating telephone and Skype communication between the child and her father and some resistance when the mother was back in Australia with the child to supporting the child spending time with her father.
Learned counsel for the Independent Child Lawyer submitted that the mother had placed undue emphasis on the significance of her relationship with her parents and extended family and the mother sought to gloss over the difficulties and conflict which she had had with her parents. For this reason it is submitted that the Court should be cautious in accepting the asserted strength of this source of support.
In relation to the possible negative consequences of the child being separated from her mother it was submitted that some level of upset to the child would be inevitable whether she was separated from her father or from her mother on the basis that she is said to be strongly attached to each of them.

It was submitted that there is nothing to demonstrate that the father would restrict the child’s time with her mother whereas there must be concerns about the mother’s willingness and capacity not to restrict the child’s time with her father.
In relation to the child’s cultural heritage, it was submitted that the mother has not been able to organise anything to provide opportunity for the child to develop her French language skills or appreciation of French culture.
It was submitted that the Court should be cautious about the mother’s capacity always to appropriately parent the child in circumstances where she has suffered from depression and attempted suicide.

Father’s Submissions

The father relied on the submissions by counsel for the Independent Child Lawyer.
In addition the father submitted that it was important for both parents to be open minded about the child’s best interests.
In relation to the mother’s assertions that he did not assist her and the child sufficiently when she returned to Australia in January 2011 the father said that he offered to pay the mother money towards a rented apartment but he never received an answer to his offer.
The father was very critical of what he said was the mother’s vulnerability to becoming depressed and the family consultant’s observations about this. The father said that he thought this would cause the mother to be challenged in her new role with her husband and new family and is pessimistic that that relationship would survive.

Submissions on behalf of the Mother

Learned counsel for the mother had undertaken a finely calibrated mathematical calculation of the number of months over the child’s life which she has spent in the care of her mother and that during which she has spent in the care of her father. He said that 65 percent of the time of the child’s life has been spent in the primary care of the child’s mother compared with less than 10 percent of the child’s time in the primary care of her father. It was submitted that this supports the mother’s assertions that she is the child’s primary parent and that the child has a stronger relationship with her. It was submitted that over the last year of the parties’ relationship before separation the father’s priority in life was conducting his affair with Ms H rather than acting in accordance with the priority of the child’s needs.
It was submitted that the mother suffered an extraordinary amount of emotional heartache during her relationship with the father as a consequence of his behaviour towards her and that this led her to depressive illness. It was submitted that the mother’s reaction after the father disclosed to her his affair with Ms H was entirely predictable because she continued to be desperately in love with him. It was submitted that neither the father nor Ms H demonstrated any insight into the devastating effect of their behaviour on the mother’s wellbeing and sought to portray her severe emotional distress as a weakness on her part. It was submitted that this demonstrates a serious lack of insight and sensitivity which must carry over to the manner in which they would parent the child.
In relation to criticism that the mother has not facilitated time between the child and her father it was submitted that although the mother probably could have done more in this regard she made the child available for the holiday to the Caribbean in August 2010 and she made the child available in difficult circumstances when she and the child returned to Australia in January 2011. In any event it is submitted that both the mother and Mr D have given strong assurances that they would promote the child’s relationship with her father.
It was submitted that the mother has been managing her depression well and apparently is not suffering from depression at the present time, that the child has prospered in the mother’s primary care and that in these circumstances there would be no justification for putting the child through what would almost certainly be unwarranted trauma in separating her from her mother to live primarily with her father.

Discussion and Conclusion About the Child’s Best Interests

I accept that the child has a strong attachment to each of her parents. This is obvious from the ease with which she embraced her father and moved back into her close relationship with him after the absence of a year. In my view, it is a pity that the Family Report does not reflect a closer focus on the nature of the relationship between the child and each of her parents, at least not in a comparative sense. After all, this is a most important statutory consideration which the Court has to grapple with. There is no question that the child has been thriving in the care of her mother and extended family including Mr D and his children. There is also something approaching near certainty that if the child is required to remain in Australia to live primarily with her father the consequent separation from her mother would cause serious emotional distress to the child. The family consultant spoke of the child’s potential to experience grief, a sense of loss and difficulty in settling down with her father and Ms H if she does not return to the US with her mother.
In my view, for this to be in the best interests of the child would require good reasons. The reasons advanced in favour of this are said to be a concern about some perceived unwillingness on the part of the mother to be able to facilitate a relationship between the child and her father. The other major area of concern is said to be the mother’s history of depression and what the family consultant has described as the mother’s emotional fragility.
Turning to the first of those matters, in my view, the problems about the mother being able to facilitate a relationship between the child and her father have been overstated. In my view, if the mother had not made the child available for the five week overseas holiday, if she had been responsible for a very serious breakdown in communication between the child and her father during the period of the child living in the US and if the mother had failed to facilitate time with the father when the mother and child returned to Australia, I would accept such as evidence of a serious problem in this regard. But that has not been the case.
Clearly there have been problems. But these have not all been one way. It appears more probable than not that the father has at times been unreasonable in his demands for time with the child including in relation to communications. And it was the case that he took things into his own hands on 3 February 2011 and simply kept the child knowing not only that this was against her mother’s wishes but in all likelihood that it would have a very serious emotional consequence for the mother, which it did.
It is true that it is not easy for the mother always to facilitate communication between the child and her father and particularly Ms H, they having caused such upset and distress to the mother. But the mother has demonstrated that she has been able to do this, albeit at some times not in a manner which has spared the child negative experiences nor as frequently as the father would have liked. As indicated above I have no reason to believe that the mother would not comply with court orders.
In relation to expressed concerns about the mother’s emotional state and her vulnerability to suffer from depression the following matters are relevant in my view. As indicated above, each of the major episodes appear to have been precipitated by the father’s behaviour towards the mother. This was the case with her suicide attempt in December 2004 and it was also the case in relation to the mother’s breakdown in late 2009. There appears to be some recognition of this by the father in his agreement that the best interests of the mother and the child lay in the mother’s ability to quickly recover from depression and his support of her and the child going to the US. Although there was no evidence in admissible form from any expert about the mother’s current state of health, she says that she ceased taking medication in April 2010, that she has been seeing a counsellor regularly and proposes to continue to do so and that she has been feeling well and free from depression now for some time.
So far as the family consultant’s opinion about the mother being emotionally fragile and the consultant’s hypothesis that persons with such personality characteristics can provide not only bad modelling for their children but also even more serious emotional challenges for their children, such is no more than a hypothesis. It appears to me to be based on a number of negative assumptions including that in fact the mother is emotionally fragile and that she would continue to suffer from depression which would affect her whole outlook on life. In my view, and I say this respectfully, it is taking a step too far to regard this as an important element to justify an overall opinion that the best interests of this child would be served by the significant change recommended with its likely consequent distress for the child, when all other relevant matters are considered.
Even if I am wrong in my observations about the child’s relationship with her mother and that in fact there is no difference between the closeness of the child’s relationship with each of her parents, in circumstances where the child has obviously been thriving with her mother in the US and where I am satisfied that upon appropriate orders being put in place she will have adequate opportunity to continue her meaningful relationship with her father, the almost certain serious distress and disruption for the child of being separated from her mother to live with her father cannot be consistent with the child’s best interests.
In all the relevant circumstances, in my view, the best interests of the child would be served by her living primarily with her mother in the US and spending as much time as is reasonably possible with her father in Australia.

Fulfilling or Failing to Fulfil Parental Responsibilities

Section 60CC(4)

Under this provision the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibility as a parent and in particular in relation to the specific matters mentioned in the sub-section.
I have dealt with each of these matters above.

Meaningful Relationship

As indicated above, one of the primary considerations pursuant to s 60CC(2) of the Act is the benefit to the child of having a meaningful relationship with both of the child’s parents. This is consistent with the objects of Part VII set out in s 60B(1) of the Act.
As also indicated above, counsel for the Independent Child Lawyer described the child’s prospects of having a meaningful relationship with both of her parents as being the crux of this case.
As the Family Consultant observed the father’s capacity to facilitate the child’s relationship with her mother remains largely untested. However, as indicated above, the father allowed the child to telephone her mother each day when he spent time with her in Brisbane and sent photographs. He also gave the impression to the family consultant that he was going to place photos of the mother and members of her family in the child’s room as I have said. In addition, it is of course the case that the father permitted the child to leave Australia and go with her mother to the US for an undefined period. He has also always returned the child to her mother after spending time with her apart from the one occasion when he kept her on 3 February 2011 in Brisbane as I have said.
On the other hand, there are the criticisms of the mother by the father about what he regards as being the mother’s relative lack of preparedness to facilitate communication by the child, and direct time spent by her, with him, at least at a level which he would want. Similar concerns, but perhaps not to the same extent, have been expressed by both the family consultant and counsel for the Independent Child Lawyer. As I have already said, in my view, to some extent, these concerns are overstated.
I do not accept that if the mother is permitted to live with the child in the US it is likely to be the case that the child will be denied a meaningful relationship with her father. As I have said, I do not consider it likely that the mother would disobey Court orders to ensure the child travel to Australia twice per year to spend holiday time with her father and orders which would require the mother to facilitate telephone and other forms of communication between the child and her father.
In the event that experience was to prove me wrong in this, and there was evidence to the effect that the mother had not fulfilled her obligations pursuant to such orders, then it would appear that she would run the risk of this Court making orders in the future which would reverse the primary residence of the child and involve the child living primarily in Australia.

Protection From Physical or Psychological Harm

The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There will be ample opportunity for the child to spend time with her father and Ms H and sister M in Australia. There will almost certainly also be opportunity for the child to be able to enjoy aspects of the French culture and to enhance her proficiency in the French language with her paternal extended family in the Caribbean.
The arrangements proposed for the child and of each of her parents are not such as to expose the child to what I would regard as any physical or psychological harm. Having said this, I emphasise to the parents the caution I expressed about the possible negative consequences for the child of their continuing conflict and hostility towards one another. I urge them to endeavour to improve the manner in which they communicate with one another.

Conclusion

As I have said, in my view the best interests of the child will be served by her living in the primary care of her mother in the US and spending as much time as is reasonably possible with her father. I propose to put in place a set of orders which will reflect this.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 29 April 2011.

Associate: ________________________

Annette Hatton

Date: 29 April 2011

[2011] FamCA 317

29 April 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Remedies