FAMILY COURT OF AUSTRALIA CASSIDY & SIBLY [2012] FamCA 245

FAMILY LAW CHILDREN final orders with whom a child lives application by the father seeking orders that one of the parties children live with him in Australia where the mother sought orders that the child be permitted to relocate to Canada where the father resides in Australia and the mother and the childs sibling reside in Canada where the mother makes allegations of domestic violence against the father where previous Hague Proceedings resulted in the child returning to Australia where the Court was satisfied that the child was settled in Australia and a further change to his care arrangements would be detrimental to his welfare where the mother has permanent residency in Australia but the father does not have a similar right in Canada best interests orders that the child live with the father in Australia and spends time with the mother in Australia further orders that the child be cared for in a week about shared care arrangement if the mother relocates to Australia. FAMILY LAW CHILDREN final orders parental responsibility whether the presumption of equal shared parental responsibility in s 61DA has been rebutted where the father resides in Australia and the mother in Canada best interests where it would not be practical for the parties to have equal shared parental responsibility orders that the father have sole parental responsibility for the child further orders that the parties have equal shared parental responsibility should the mother relocate to Australia. Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA & 65DAA Goode and Goode (2006) FLC 93-286 Hannigan & Sorraw [2010] FamCAFC 257 Jones v Dunkel (1959) 101 CLR 298 McCall & Clark (2009) FLC 93-405 LexisNexis Butterworths, Cross on Evidence Australian Edition, Vol 1 (at Service 143) [1215]. APPLICANT: RESPONDENT: FILE NUMBER: DATE DELIVERED: PLACE DELIVERED: Mr Cassidy Ms Sibly DNC 570 2010

23 April 2012 Adelaide

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PLACE HEARD: JUDGMENT OF: HEARING DATE:

Darwin Dawe J 28-30 November 2011 &

REPRESENTATION COUNSEL FOR THE APPLICANT: SOLICITOR FOR THE APPLICANT: COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT: Vanessa Farmer Withnalls Lawyers In person N/A

ORDERS
1) The father have sole parental responsibility for the child R CASSIDY born on June 2005. The child R live with the father in Australia. The child spend time with the mother in Australia as agreed between the parties and failing agreement: (a)in even numbered years for all of the mid-year school holidays and the second half of the Christmas school holiday period; (b)in odd numbered years for all of the mid-year school holidays and for the first half of the Christmas school holiday period; (c)the father meet fifty per cent of the mothers reasonable international airfare costs of the most direct route from Ontario, Canada to Darwin in Australia on one occasion per annum;

2) 3)

4)

From December 2015 the child spend time with the mother as agreed between the parties and failing agreement: (a)for the entirety of the Australia Christmas School Holidays (December and January) in Australia or Canada on the basis that the mother (or other adult approved by the father) will collect the child from the father in Darwin, Australia and return the child to the father in Darwin, Australia, with the mother meeting the costs of such travel; (b)for all of the mid-year school holidays in Australia.

5)

The mother provide to the father in writing full particulars of the travel arrangements, detailed itinerary and a copy of the return ticket for the child and accompanying adult not less than twenty-eight [28] days before the proposed date of travel. The child communicate with the mother by telephone at all reasonable times and not less than three [3] times each week with the mother to initiate the telephone calls and the father to make the child available to receive the calls. The child communicate with the mother by Skype each Sunday from 8.30 am with the mother to initiate the Skype communication. The father notify the mother by email or text communication within seven [7] days of all decisions made in relation to the childs living arrangements, education, health or religion. The parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child. Each parent be entitled to obtain directly from any school attended by the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change. The parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each

6)

7)

8)

9)

10)

11)

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parent shall within fourteen [14] days of any change of either their telephone number or residential address, advise the other parent of that change. 12) Until 1 December 2015 the mother Ms SIBLY and her servant and/or agents be and are hereby restrained from attempting to remove or causing or permitting the removal of R CASSIDY born June 2005 from the Commonwealth of Australia without the written consent of the father, or by order of the Court and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List, enforce at all points of arrival or departure by air or by sea in the Commonwealth of Australia and maintain the child R CASSIDY on the Watch List until 1 December 2015. In the event that the mother returns to reside permanently in Darwin, Australia on or before 1 July 2013 and files and serves an affidavit confirming her intention to reside permanently in Darwin, Australia then thereafter whilst the mother continues to reside permanently in Australia: (a)the parents shall have equal shared parental responsibility for the child R; (b)unless otherwise agreed in writing by the father and the mother and except as otherwise provided for special occasions: (i) during school terms the child R shall live with the father from the conclusion of school on the first Monday in each term until the commencement of school on the following Monday and each alternate week thereafter and shall live with the mother at other alternate week during school terms; during school holidays the child R shall live with the father for one half of all school holidays being the first half in odd numbered years and the second half in even numbered years and live with the mother for the first half in even numbered years and the second half in odd numbered years; on the special occasions being the fathers birthday, the mothers birthday, the child Rs

13)

(ii)

(iii)

birthday and the child Ks birthday as agreed between the mother and father PROVIDED THAT such arrangements ensure that R spend a minimum of four [4] hours with each parent on Christmas Day and birthdays which do not fall on school days and a minimum of two [2] hours with the other parent on birthdays which fall on a school day

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IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Sibly is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).FAMILY COURT OF AUSTRALIA AT DARWIN FILE NUMBER: DNC 570 of 2010 Mr Cassidy Applicant And Ms Sibly Respondent

REASONS FOR JUDGMENT INTRODUCTION

1. The proceedings concern the competing applications of the father Mr Cassidy and the mother Ms Sibly for parenting orders in relation to their child R (the child) born in June 2005 (now 6 years old). 2. The parties also have another child, K born in January 2010. The father did not pursue orders in relation to K at the Family Court trial. 3. Adding a significant degree of complexity to the matter is the fact that the parties reside in different countries and each has the care of one of the children. The child R resides with the father in Australia whereas his sibling, K resides in Canada with the mother. 4. The complicated history of the matter includes Hague Convention proceedings in Canada which resulted in the child R returning to Australia. Hearing 5. The trial of this matter was listed for a five day hearing at the Darwin Registry commencing on 28 November 2011. Following a brief adjournment on

28 November 2011 the trial proceeded on 29 and 30 November 2011. It concluded on 1 December 2011 when judgment was reserved. 6. At the trial the father was represented by Ms Farmer of Counsel. The mother appeared unrepresented. 7. The father relied upon his two affidavits of evidence-in-chief together with his oral evidence. 8. The mother also relied upon her numerous affidavits of evidence-in-chief and her oral evidence. 9. The mother also relied upon the affidavits and oral evidence of her mother, Ms S and her sister, Ms W which were both filed on 11 October 2011. They gave their evidence by telephone link from Canada. 10. Oral evidence was also received from Family Consultant, Mr V who had prepared the Family Report. 11. The mother sought interim orders providing for the child to return to live in Canada with her for six months immediately after the conclusion of the trial. The father opposed any order which would result in the child leaving Australia. 12. For the reasons which were given on the 1 December 2011, the Court refused the mothers application for interim orders. Interim orders were continued which provided for the child to remain with his father in Darwin and for the child to spend time with his mother in Darwin from Friday 2 December 2011 to Friday 9 December 2011. The Applications 13. Proceedings were commenced when the father filed his Initiating Application and supporting Affidavit in the Federal Magistrates Court on 9 December 2010. 14. 15.
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The orders sought in these documents were in relation to both R and K. On 18 January 2011 the matter was transferred to the Family Court of
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Australia pursuant to the orders of Federal Magistrate Turner. 16. 17. The mother filed her Response to Initiating Application on 25 March 2011. At the hearing of 30 September 2011 it was noted that the father was no longer seeking orders in relation to K. The father amended the orders he sought accordingly. 18. The father filed his Outline of Case on 10 October 2011 (Doc 17) seeking the following final orders:
1. That the father have sole parental responsibility for the child [R CASSIDY] born in [Ontario] on June 2005 (the child) in relation to decisions as to the childs place of residence and education. That the parties have equal shared parental responsibility for the child in relation to decisions regarding religion and health. That the child live with the father in Australia. That the child spend time with the mother in Australia as agreed between the parties and failing agreement in the event the mother remains resident in Canada as follows: (i) (ii) In odd numbered years for all of the mid-year school holidays and for the first half of the Christmas school holiday period; In even numbered years for all of the mid-year school holidays and for the second half of the Christmas school holiday period;

2. 3. 4.

(iii) That the father meet 50% of the mothers reasonable international airfare costs of the most direct route from [Ontario] Canada to Darwin in Australia once per annum; 5. That the child communicate with the mother by telephone at all reasonable times and not less than 3 times each week with the mother to initiate the telephone calls and the father to make the child available to receive the calls. 6. That the child communicate with the mother by Skype each Sunday from 8.30am with the mother to initiate the Skype communication. 7. That the father notify the mother by e-mail or text communication within 7 days of all decisions made in relation to the childs living and/or education decisions. 8. That the parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child. 9. That each parent be entitled to obtain directly from any school attended by the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant

verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change. 10. That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advise the other parent of that change. 11. That until further the mother [Ms SIBLY] born 1975 and her servant and/or agents be and are hereby restrained from attempting to remove or causing of (sic) permitting the removal of [R CASSIDY] born June 2005 from the Commonwealth of Australia without the written consent of the father, or by order of the Court and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List, enforce at all points of arrival or departure by air or by sea in the Commonwealth of Australia and maintain the child [R CASSIDY] on the Watch List until the court orders its removal. In the event the child is permitted to relocate permanently to reside in Canada: 12. The mother have sole parental responsibility for the child in relation to decisions as to the childs place of residence and education. 13. That the parties have equal shared parental responsibility for the child in relation to decisions regarding religion and health. 14. That the child spend the entirety of the Canadian mid-year school holidays (8 weeks) with the father, with the mother to accompany the child to Australia and meet the costs of such travel and the father to accompany the child upon return to Canada and meet the costs of such travel. 15. That the child spend the entirety of the Canadian Christmas school holidays with the father, with the mother to accompany the child to Australia and meet the costs of such travel and the father to accompany the child upon return to Canada and meet the costs of such travel. 16. That the child communicate with the father by telephone at all reasonable times and not less than 3 times each week with the father to initiate the telephone calls and the mother to make the child available to receive the calls. 17. That the child communicate with the father by Skype each Sunday from 8.30am with the father to initiate the Skype communication. 18. That the parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child. 19. That each parent be entitled to obtain directly from any school attended by

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the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change. 20. That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number of residential address, advise the other parent of that change. 21. That until further (sic) the mother [Ms SIBLY] born 1975 and her servant and/or agents be and are hereby restrained from attempting to remove or causing of (sic) permitting the removal of [R CASSIDY] born June 2005 from the Commonwealth of Australia without the written consent of the father, or by order of the Court and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List, enforce at all points of arrival or departure by air or by sea in the Commonwealth of Australia and maintain the child [R CASSIDY] on the Watch List until the court orders its removal.

19.

The mother also amended the orders she sought. Such orders were set out in her Outline of Case filed on 2 November 2011. They were:
1. That the Mother has sole parental responsibility for the child [R Cassidy] born June 2005 ([R]) in relation to decisions as to the childs place of residence and education.

2. That the parties have equal shared parental responsibility for the child in relation to decisions regarding religion and health. 3. That [R] live with the Mother in Canada. 4. That [R] spend substantial and significant time with the Father and his Australian family in Australia as agreed between the parties or as follows: (i) For a 12 week period for the months June, July and August of each year. For an Australian School Term (1) beginning December 18 until the first of April each year.

Or the alternative (ii)

(iii) That the Father will pay for the costs of travel from Darwin to ,

Ontario for [R] and himself. 5. That [R] communicates with the Father by telephone at all reasonable times and not less than three times each week with the Father to initiate the telephone calls and the Mother to make the child available to receive the calls. 6. That the child communicates with the Father by Skype each Saturday from 8.30am with the Father to initiate the Skype communication. 7. That the mother notifies the Father by email within seven days of all decisions made in relation to the childs living and/or education. 8. That the parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child. 9. That each parent be entitled to obtain directly from any school attended by the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change. 10. That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advising the other parent of that change. 11. That [Rs] birth certificate, passports and immunization card will remain in the care of the parent with whom [R] is residing. 12. That [R] is not unreasonably denied proper documentation and written permission in order to travel and visit family. 13. That the Father will notify the Mother within 28 days as to travel arrangements pertaining to [R]. 14. That day-to-day decisions regarding [Rs]care will rest with the parent with whom the child is residing. 15. That neither parent verbally/emotionally abuse or threaten to hurt the other in front of the children and neither party shall communicate with each other through or by use of [R]. In the event that [R] must live in Australia 16. That the parties have equal shared parental responsibility for the child [R Cassidy] born June 2005 ([R]) 17. That [R] live with his Father in Australia.
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18. That [R] spend substantial and significant time with the Mother and his Canadian family in Canada as agreed between the parties or as follows: (i) (ii) For the months of July and August of each year. For the entirety of the Australian Christmas holidays (December and January).

(iii) With the Father to accompany the child to Canada and meet the costs of such travel and to accompany the child upon return to Australia and meet the costs of such travel. 19. That [R] communicated communicates with the Mother by telephone at all reasonable times and not less than three times each week with the Mother to initiate the telephone calls and the Father to make the child available to receive the calls. 20. That the child communicates with the Mother by Skype each Sunday from 8.30am with the Father to initiate the Skype communication. 21. That the Father notifies the Mother by email within seven days of all decisions made in relation to the childs living and/or education decisions. 22. That the parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child. 23. That each parent be entitled to obtain directly from any school attended by the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change. 24. That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number of residential address, advising the other parent of that change. 25. That [Rs] birth certificate, passports and immunization card will remain in the care of the parent with whom [R] is residing. 26. That [R] is not unreasonably denied proper documentation and written permission in order to travel and visit family. 27. That the Mother will notify the Father within 28 days as to travel arrangements pertaining to [R]. 28. That day-to-day decisions regarding [Rs] care will rest with the parent with whom the child is residing.

29. That neither parent verbally/emotionally abuse or threaten to hurt the other in front of the children and neither party shall communicate with each other through or by use of [R].

Background 20. The father was born on in 1974 and is currently 37 years of age. He is an Australian citizen. The mother was born in Canada in 1975 and is aged 36 years. She is a Canadian citizen. The mother holds permanent residency status in Australia. 21. The father is currently employed as a specialist technician in Darwin and has held this position since November 2008. The mother has qualifications in Science from Canada. Upon graduating she worked in the mining industry for short periods of time. 22. The parties met in Australia in May 2002 while the mother was here on a working visa. The parties commenced a relationship shortly thereafter. 23. During their relationship, the parties frequently travelled between Australia and Canada where they resided for varying periods of time. When in Canada the parties mostly resided with the mothers parents at their home in Ontario. 24. Whilst in Darwin the parties resided at a property belonging to the fathers parents. The father jointly purchased this property with his brother in 2007. 25. 26. 27. The parties were married in January 2005 in Australia. The mother returned to Canada in April 2005. After securing a working visa the father travelled to Canada to be with the mother in May 2005. 28. The parties first child, R, was born in Ontario in June 2005. He is a dual citizen of Australia and Canada. 29. The parties returned to Darwin in October 2006 after the father was unsuccessful in securing an extension of his working visa. 30. Upon returning to Australia the father secured employment working in various

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positions as a labourer. 31. In April 2007 the mother and R returned to Ontario where the father later joined them in June of that year. Upon returning to Canada, the mother commenced employment on a part-time basis. The father cared for the child during the day. 32. The father returned to Darwin in December 2007. The mother and the child joined him in April 2008. 33. The father commenced employment at his current workplace in November 2008. 34. The child commenced his schooling at G Primary School, Darwin in February 2009. 35. 36. The parties second child, K, was conceived in or around May 2009. In May 2009 the mother was granted permanent residency in Australia which allowed her to seek employment. She secured part-time employment not long thereafter. 37. It is the mothers contention that her wish to return to Canada was a major and continuing source of conflict for the parties. 38. 39. At this stage the parties shared the care of the child R. Around this time the mother says that the parties relationship deteriorated and the violence escalated as she sought to return to Canada to live. 40. In September 2009 there was an incident where the parties were involved in a heated argument which allegedly resulted in the father punching the car bonnet and making threats towards the mother and the child. The father denied making threats. 41. In September 2009 the mother and the child returned to Canada. The father says that they left without his knowledge or permission. 42. Thereafter the mother indicated to the father that both she and the child would be returning to Australia on 16 November 2009 in accordance with the return

air tickets. 43. The father says that he considered the parties relationship to have ended on 16 November 2009 when the mother failed to return to Australia with the child. 44. On 19 November 2009, the father made an application under the Hague Convention on the Civil Aspects of Child Abduction for the return of the child to Australia. 45. The father travelled to Canada in late January 2010 for the child Ks birth. The father and mother lived at the same premises in Canada following Ks birth. 46. On 19 February 2010 the mother says she received a letter from the Central Authority of Ontario in relation to the institution of Hague Convention proceedings by the father. 47. Upon receipt of this letter the mother considered the parties relationship to have ended however the parties remained at the same premises. 48. The father returned to Australia on 17 March 2010. The mother remained in Canada with the children. 49. The Hague Convention proceedings concerning the child were heard in the Ontario Supreme Court commencing on 27 September 2010. The father travelled to Canada to be present at the proceedings. 50. The father returned to Australia on 5 October 2010 following the conclusion of the hearing. 51. On 20 October 2010 Orders were made requiring the child R to return to Australia where arrangements in relation to his care were to be determined by an Australian Court. 52. On 6 December 2010 the mother sought a stay of these Orders pending an appeal. Her application was granted. 53. On 14 January 2011 the Court of Appeal dismissed the mothers appeal.

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54.

On 28 January 2011 the father collected the child from the mother and returned with him to Australia.

55.

The child R recommenced attending at the G Primary School in February 2011.

56.

On 7 February 2011 interim Orders were made by Justice Burr providing that the child live with the father who would have sole parental responsibility for him.

57.

On 21 July 2011 Registrar Brown made Orders for the preparation of a Family Report.

58.

Pursuant to those Orders the Report of Mr V was prepared and released to the parties on 23 November 2011.

Main Issues 59. The Court is faced with the difficult decision of determining whether the child will grow up in Australia with the father or in Canada with the mother and his brother K. 60. The mother maintains that she will not return to live in Australia. The father says he has no right to live in Canada. The childs relationship with one of the parties may therefore be compromised due to the geographical distance separating the mother and the father. 61. The quality of the relationship between the child and his brother will be reduced if the mother resides in Canada with K and the child R remains in Australia with the father. The Law 62. Part VII of the Family Law Act 1975 (Cth) (the Act) sets out the provisions which the Court must consider when determining parenting orders. 63. Section 60B (1) and (2) state:
Section 60B (1) and (2)

Objects of Part and principles underlying it (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. The principles underlying these objects are that (except when it is or would be contrary to a childs best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(2)

64.

Section 60CA states:

Section 60CA Childs best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

65.

Section 61DA states:

Section 61DA Presumption of equal shared parental responsibility when making parenting orders 1) 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 childs parents to have equal shared parental responsibility for the
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child. Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). 2) 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: a) abuse of the child or another child who, at the time, was a member of the parents family (or that other persons family); or b) family violence. 3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. 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 childs parents to have equal shared parental responsibility for the child.

4)

66.

Section 65DAA(1) to (5) states:

Section 65DAA Court to consider child spending equal time or significant time with each parent in certain circumstances Equal time (1) Subject to subsection (6), if a parenting order provides (or is to provide) that a childs parents are to have equal shared parental responsibility for the child, the court must: (a) (b) (c) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and consider whether the child spending equal time with each of the parents is reasonably practicable; and if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time (2) Subject to subsection (6), if: (a) (b) a parenting order provides (or is to provide) that a childs parents are to have equal shared parental responsibility for the child; and the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

the court must: (c)

(d) (e)

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: (a)the time the child spends with the parent includes both: (i) (ii) (b) days that fall on weekends and holidays; and 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: (i) (ii) the childs daily routine; and occasions and events that are of particular significance to the child; and

(c)

the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)

Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

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Reasonable practicality (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the childs parents, the court must have regard to: (a) (b) how far apart the parents live from each other; and the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and the impact that an arrangement of that kind would have on the child; and such other matters as the court considers relevant.

(c)

(d) (e)

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include: (a) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c)); the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the childs parents (paragraph 60CC(3)(i)).

(b)

Note 2: Paragraph (c) reference to future capacity -- the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

67.

Section 60CC sets out the matters which the Court must consider when determining the best interests of a child:
Primary considerations (2) The primary considerations are: (a) (b) the benefit to the child of having a meaningful relationship with both of the childs 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.

Note: Making these considerations the primary ones is consistent with the objects

of this Part set out in paragraphs 60B(1)(a) and (b). Additional considerations (3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; the nature of the relationship of the child with: (i) (ii) (c) each of the child's parents; and other persons (including any grandparent or other relative of the child);

(b)

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 likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) (ii) either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(d)

(e)

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; the capacity of: (i) (ii) each of the child's parents; and any other person (including any grandparent or other relative of the child);

(f)

to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; if the child is an Aboriginal child or a Torres Strait Islander

(h)

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child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right;

(ii) (i) (j) (k)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; any family violence involving the child or a member of the child's family; any family violence order that applies to the child or a member of the child's family, if: (i) (ii) the order is a final order; or the making of the order was contested by a person;

(l)

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant. (4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the childs parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the childs parents: (a) has taken, or failed to take, the opportunity: (i) (ii) to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and

(iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) (ii) participating in making decisions about major long-term issues in relation to the child; and spending time with the child; and

(iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parents obligation to maintain the child.

(4A) If the childs parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

68.

Amongst authorities to which the parties referred the Court were Goode and Goode (2006) FLC 93-286, the decision of the Full Court of Australia which referred to the interaction of sections 65DAA, 61DA and 60CC. The head note of the case reported at FLC 93-286 includes:
However there is a legislative intent evinced in favour of substantial involvement of both parents in their childrens lives, both as to parental responsibility and as to time spent with children. This means wherer there is a status quo or well settled environment, instead of simply preserving it, unless there are protecting or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting equal or significant involvement by both parents in the care arrangements for the child. This does not mean the maintenance of a stable arrangement might not be in the best interests of the child in a particular case, but the consideration of the status quo was a factor to be considered under s 60CC(3).

69.

McCall & Clark (2009) FLC 93-405 was also a decision of the Full Court of the Family Court of Australia which referred to the decision of Goode and Goode (supra) in the context of proceedings in which relocation was one of the significant factors.

70.

In the Full Court decision of Hannigan & Sorraw [2010] FamCAFC 257, the Court again heard an appeal in relation to a proposal for the mother to relocate with the child from Australia to the United States of America. Paragraph 136 of the judgment of the Full Court states:
In Friscioni & Friscioni [2010] FamCFC (sic) 108, the Full Court considered the nature of a Family Consultants report. In the course of their discussion, the Court cited with approval that which was said in Hall and Hall (1979) FLC 90-713 at 78,819 noting that while decided in 1979, it is still to the point; In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.

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(a)

There is not magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285. Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him. While the counsellors views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and crossexamination, and make findings of fact based on evidence before the court which might not have been available to the counsellor. Hence, the counsellors assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

(b)

(c)

(d)

71.

The reasons for judgment of His Honour Justice D C Shaw in the Ontario Superior Court of Justice Hague Convention proceedings are annexed to the fathers Initiating Application.

72.

The judgment is a clear finding that the child R was habitually resident in Australia immediately before the mother removed him taking him to Canada.

73.

In the judgment His Honour also made findings rejecting the mothers allegations that the return of the child to Australia would cause intolerable harm because of the mothers allegation that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

74.

The Canadian Judge found that these exceptions had not been established by the mother. The judgment includes the following at page 27 paragraph 80:
Ms [Sibly] acknowledges that Mr [Cassidy] is a loving father, who spent significant time caring for [the child] and enjoying shared activities.

75.

Further on page 28 at paragraph 81:

Ms [Siblys] submission that the return of [the child] to Australia would cause intolerable harm because of the potential for disruption of her primary care of the child also does not meet the high threshold set out in Thomson.

76.

His Honour also did not accept the mothers submission that the father had acquiesced in the childs wrongful removal and retention. referred to the fact that:
The application was made immediately after Mr [Cassidy] learnt that Ms [Sibly] would not be coming back to Australia on November 16 2009 on the return flight she had booked on September 25 2009. (Page 29 of the judgment paragraph 84).

His Honour

77.

The Court at first instance made orders which directed that the child return to Australia with his mother and brother as then proposed by Ms Sibly. That order provided that the child was to return to Darwin by December 10 2010. The orders also included an order:
Mr [Cassidy] and Ms [Sibly] shall use their best endeavours to entitle [the child K] to travel to and remain in Australia.

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78.

The mother appealed the decision of the Judge at first instance. As a result of the appeal the orders for the return of the child R were stayed. Subsequently, the appeals were heard and in January 2011 the appeal was dismissed.

79.

Thereafter His Honour Justice Shaw made orders which included that the father collect the child R on Friday 28 January 2011 at 4.00 pm and be entitled to travel with the child forthwith to Australia in accordance with the earlier order requiring that the child be returned to Australia pursuant to the Hague Convention provisions.

Discussion and findings 80. The mother alleges that the father behaved in an aggressive way towards her and at times in the presence of the child R. The father admits there were arguments and at times both parties were verbally abusive towards the other. The father vehemently denied much of the mothers evidence about his behaviour towards her or in the presence of the child. 81. In particular the mother and father gave different versions of events on Mothers Day in 2008 when the father and his brother had an argument. The father admits that there was an argument and some physical contact between him and his brother, but denies that it was a serious event. punching holes in the walls or breaking the childs high chair. 82. The father also denies any assault between himself and his brother in May 2009. 83. The brother had filed an affidavit supporting the fathers case in the Canadian Hague Convention proceedings. The mother acknowledged that the father had filed this affidavit. Nonetheless, the father did not call his brother who was available to give evidence in Darwin. 84. Whilst the father admitted that he had arguments with his brother, he denied the severity of the interaction between himself and his brother. The fathers He denies

explanation for one of the altercations was that his brother and the mother were both drunk, and as a result an argument took place. He was adamant and convincing when he denied the level of violence alleged by the mother. 85. The Full Court of the Family Court of Australia has referred to the principle in Jones v Dunkel (1959) 101 CLR 298 by using the description in Butterworths Cross on Evidence Australian Edition which states at 1215:
In Australia the principles under discussion are commonly termed the rule in Jones v Dunkel. They can be summarised thus. First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that partys case. The rule can operate against parties not bearing the burden of proof and parties which do bear it as well. The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered.

86.

The rule in Jones v Dunkel (supra) does not set out a requirement that an adverse inference be drawn, but gives the Court the discretion to consider such a finding.

87.

Weighing up the evidence of the mother, the father, the fact that the father did not call his brother and the affidavit of the brother filed in the Canadian proceedings, I am satisfied that the arguments and altercations did take place between the father and his brother, but they were not as severe as the mother alleges, nor that such arguments involved the child, or took place in his actual presence.

88.

When the mother gave evidence she found it difficult to acknowledge any wrong-doing or fault on her part. At times the mother maintained that she had not left Australia without the fathers permission or consent. At other times when pressed during cross-examination, she admitted that she had left Australia without the fathers permission. It was also only when pressed that the mother admitted that she had led the father to believe that she would be

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returning to Australia in the middle of November 2010 in accordance with the return ticket (this was at a time when she would still be able to travel, notwithstanding she was pregnant). 89. At one time the mother said that she did not return because she was served with the fathers Hague Convention proceedings seeking the return of the child to Australia. At other times she gave inconsistent evidence that she did not at any time intend to return at the time of the return ticket bookings. 90. During her evidence the mother attempted to categorise the Canadian Hague Convention proceedings as legal proceedings which only related to determining the habitual residence of the child. It appeared difficult for the mother to accept that the Canadian Courts had made the ruling that the child should return to Australia on the basis that, not only had he been habitually resident in Australia, but had been wrongfully removed by her from Australia to Canada. 91. The mother maintained that she had no family support in Australia. Her evidence and that of her family witnesses confirmed that she had family support in Canada, the child K had close family relationships in Canada and that the child R had previously made friends and related to his maternal family when he visited Canada. 92. The father gave evidence that he had suitable accommodation in Darwin for the child. His evidence was that his mother would assist him in caring for the child if his work commitments required that she provide assistance for him and the child. 93. The school reports of the child indicated that he was doing well and had settled into the local Darwin school. 94. Neither the mother nor the father raised any significant issues about the other parents ability to provide day to day care, long term practical care and general upbringing for the child. Primary Considerations

95.

The primary considerations referred to in section 60CC(2) and the objects of the Act in section 60B emphasise that the best interests of the children are met by ensuring the children have the benefit of having a meaningful relationship with both parents and at the same time require the children to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
(a) the benefit to the child of having a meaningful relationship with both of the childs parents; The difficulties the Court faces in this matter are brought about by the

96.

mothers insistence that she will not return from Canada to Australia with the child K and the fathers insistence that the child R not leave Australia because of his lack of confidence that the mother would thereafter encourage any relationship between the father and the child R. 97. The Family Consultants report and evidence placed significant emphasis upon the relationship which would develop between the child R and his brother K if the child were permitted to live with the mother and K in Canada. 98. However the mother has the right to reside permanently in Australia, whilst the father currently does not have a similar right to reside permanently in Canada. 99. If the mother and K were to reside in Australia, the child R would thereafter have the benefit of a meaningful relationship with both of his parents and his brother K.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

100.

The mothers evidence about the violence in the household was vehemently denied by the father. The incidents to which the mother referred are to be seen in the context of the mother continuing the relationship with the father when he visited Canada and encouraging the father to spend time with R and K in Canada.

101.

As previously indicated a consideration of the evidence indicates that

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arguments took place between the father and his brother, but that the behaviour of the father towards his brother and the mother does not establish any need to protect the child R from any harm caused by family violence. Additional Considerations (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

102.

The child was interviewed by Mr V in November 2011 when he was aged 6. In that interview the childs comments suggested that he was aware of his fathers anger towards his mother. The child indicated that he had lots of friends in Darwin and would prefer to live in Darwin, although this was not suggesting that he would prefer to live with his father rather than his mother. Paragraph 61 of the Family Report states:
61. He went on to say he would prefer to live in Darwin. He had told his mother so, he claimed (his mother recalled how [the child] had also preferred to stay in [Ontario] when Mr [Cassidy] came to collect him in January this year). Curiously, even though I explored his preference with him at some length, he did not give living with his father over against living with his mother as a reason for preferring Darwin. He appeared to be very careful, even cagey.

103.

Under the heading Evaluation the Family Consultant concluded, inter alia, at paragraph 66 and 67:
66. If [the child] were twice his age and had spent much more time in Darwin, his preference could well be determinative of the outcome. However, there is more than a touch in [the childs] expression of staying put rather than go through another potentially destabilizing change of residence. He did not explicitly associate staying in Darwin as expressing preference for living with his father. Indeed his parental reference was to live with both them after hoped for reconciliation in Darwin (sic). His seemingly mild dislike of [Ontario] did not appear to have enough strength to rule it out as a practicable option for him. Indeed he seemed to struggle a bit around making comparisons between the two cities.

67.

Also, his Darwin preference was stated on the day his father brought

him in. It was less certain and focussed on the day with his mother, although still present. My reading of his preference was that he dearly wanted his parents to make the decision in default, he was going to stay where he was until such time as they did talk and settle the matter, even though it did seem for him that would an unlikely eventuality. The court deciding his place of residence with whom he resided did not seem to carry any concrete meaning for him. His approach seemed congruent with his stage of development and his strong attachment to both parents.

(b)

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

104.

Both parents admitted that the child had a loving relationship with the other parent. The assessment of the Family Consultant was based upon He concluded at unstructured observation where he observed the child with both of the parents briefly, but not part of a formal assessment. paragraph 65:
65. From the unstructured observation, allowing for the limitations to it in the Registry environment, it was clear to me that [the child] had a much warmer and seemingly freer engagement with and attachment to his mother than to his father. Part of this might have been due to not seeing her for so long, but there was an easy naturalness about them together which suggested a deep bond (recalling they have almost daily contact). Nonetheless, [the child] did display a positive and confident attachment to his father, although their observed relationship seemed to lack the warmth, humour, spontaneity and affection which marked his relationship to the mother. Much of this difference might be attributable to the noted differences in the parents respective personalities.

105.

In paragraph 74 of the report the Family Consultant concludes:

74. From [the childs] interview and from the unstructured observations, it appears that he has a closer and warmer relationship with his mother than with his father. [The child] is confident with each of them and would probably be capable of living with either of them full-time on that basis. However, from his unsolicited commentary about his fathers ongoing anger towards the mother, it is conceivable that over time, should that pervasive anger continue to be inadvertently or unwittingly expressed to [the child] by the father (even indirectly and

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even just sporadically) then [the child] could be exposed to emotional challenges about his relationship loyalties to each parent.

106.

Whilst those speculations are referred to in the Family Consultants report, the conclusions also need to be seen in the context of all of the evidence. In particular the father has conceded that he was angry with the mother for removing the child from Australia without his consent and maintaining opposition to his request for the return of the child in the Canadian Hague proceedings. It is also important to consider the evidence of the mother in which she was unable to accept any responsibility for the litigation, either here or in Canada and her ongoing attitude of blaming the father.

107.

Section 60CC(3)(b)(ii) requires the Court to consider the nature of the relationship of the child with his brother K. Since the return of the child to Australia he has had limited contact with K by only telephone and Skype. The child Ks age at this stage limits the relationship forming on any sound basis by these means.

108.

The mother did not provide a convincing explanation for her failure to bring K with her to Australia when she came for these proceedings. The father clearly believed that her failure to do so was solely based upon her concern that by bringing K to Australia she would risk submitting K to the jurisdiction of the Australian Courts.

109.

Whilst the Court accepts the basis of the Family Consultants opinion that living with the mother in Canada would increase the childs chances of forming a strong bond with his younger brother, this is not determinative. The attitude of the mother has prevented the child spending time with K in Australia.

110.

If the child were to reside in Canada he would have the benefit of a more meaningful relationship with his maternal extended family. If he were to reside in Australia he would have greater opportunity to form meaningful relationships with his extended paternal family.

(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; 111. The mothers behaviour in removing the child from Australia without the fathers permission and resisting the Hague Convention proceedings calls into question the mothers willingness to encourage a close and continuing relationship between the child and the father. 112. The fathers refusal to agree to any arrangement whereby the child were to visit his mother in Canada is based upon his concern that any such arrangement would result in the child again being detained in Canada. His concern is based upon the mothers past behaviour. The father indicated a ready willingness and ability to encourage a close and continuing relationship between the child and the mother should the mother reside in Australia. (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; 113. I accept the evidence of the father that the child is settled in his care and is progressing and developing well. The father has been caring for the child since returning from Canada with the child in January 2011. The child is now settled back into his school and established social life. 114. It is likely that a further change in his care arrangements would be disruptive. The mothers proposal that the child spend six months with her in Canada and six months with the father in Australia, or her proposal that the child attend school for part of the year in Australia and part of the year in Canada are proposals which risk disrupting the childs emotional, psychological and educational development. 115. I accept the evidence of the father that he is currently unable to reside permanently in Canada. As such the proposal of the mother that the child

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reside in Canada would bring about a significant impact on the childs relationship with his father. The mother however has a capacity to live and work in Australia, although her preference is to reside in Canada where she has the financial and emotional assistance of her extended family. (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; Both parties indicated that they did not have access to finances which would allow frequent travel of themselves and the children between Canada and Australia. The mother proposed that the father pay the cost of the child visiting him in Australia and the cost of his visits to Canada. 117. The practical difficulty and expense would be significantly reduced if the mother and the child K resided in Australia. 118. If the mother maintains her desire to reside in Canada with K then there will be a substantial affect upon the childs right to maintain his personal relationship and direct contact with both of his parents on a regular basis. 119. If the child R were to reside in Australia with the father and the mother maintained her desire to live in Canada with K, there would also be a substantial effect upon the childs right to maintain a close personal relationship with the mother on a regular basis. (f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; and (i) 120. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; An issue was raised about the capacity of the parents to provide for the childs emotional needs. I accept that some criticism of the father is appropriate

116.

because the child appears to be well aware of the fathers anger towards the mother. 121. There is also the appropriate criticism of the mother concerning her capacity to provide for the childs emotional needs as evidenced by her wrongful removal of the child from Australia. 122. Otherwise both parents have the necessary capacity to provide for the childs needs. Both have appropriate attitudes to their responsibilities as parents except for the concern about the mothers attitude demonstrated by her wrongful removal of the child from Australia. (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; These factors were not considered significant. Both parents have the capacity to ensure the child is aware of the family lifestyle and background in either Canada or Australia. 124. (j) 125. Subsection (h) not relevant. any family violence involving the child or a member of the child's family; As previously discussed the evidence of the father about arguments and alleged violence is preferred to that of the mother. Therefore this factor is not significant. 126. (l) Subsection (k) not relevant. 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; An order which set out specific arrangements would therefore be beneficial.

123.

127.

(m) any other fact or circumstance that the court thinks is relevant. 128. The mothers ability to live and work in Australia is relevant. 129.
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(4)

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the childs parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the childs parents: (a) (b) Not relevant. has facilitated, or failed to facilitate, the other parent: (i) (ii) (iii) (c) participating in making decisions about major long-term issues in relation to the child; and spending time with the child; and communicating with the child;

Not relevant.

130.

The mother clearly failed to facilitate the father participating in making a decision about removing the child from Australia and enrolling him at preschool in Canada. The mother did however facilitate the father spending time with R and K when he visited Canada and permitted him to communicate with the child.

131.

The father has permitted communication between the child and the mother by electronic means since the child returned to Australia with him.

(4A) If the childs parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred. 132. The Court has taken into account the events since separation and in particular the mothers actions in removing the child from Australia without the fathers consent and the fathers successful Hague Convention proceedings resulting in the return of the child with the father to Australia. 133. Section 61DA requires the Court to apply a presumption that it is in the best interests of the child for the parents to have equal shared responsibility. There are several bases upon which the presumption does not apply, including subsection (4) which says that the presumption might be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

134.

In this particular case if the mother continues to reside in Canada and the father continues to reside in Australia, it would not be in the childs best interests for the parents to be obliged to consult and confer due to the difficulties which would be created by distance. The Court is of the view that the person with whom the child lives, should in this unusual case, be the person who has sole parental responsibility.

135.

Section 65DAA would therefore not apply.

However, even if it were

considered appropriate for the parents to have equal shared responsibility for the child, the condition of s 65DAA(1)(b) (reasonably practicable) would not be met in this case. If the mother continues to reside in Canada and the father continues to reside in Australia, it would not be reasonably practicable for the child to spend equal time with each of the parents. 136. If the mother were to move to reside in Australia in the near future then equal shared parental responsibility would be in the childs best interests, as would a provision which would allow the parents to spend equal time with the child. 137. The provisions of s 65DAA(5) refer to the distance between the parents, but also their current and future capacity to implement arrangements and to communicate with each other to resolve difficulties, as well as the impact that an arrangement of that kind would have on the child. 138. Notwithstanding, the strong views of the father about the mothers behaviour in moving to Canada with the child R without his permission, I am satisfied that if the mother were to return with the child K to reside in Darwin then most of the difficulties in communication and the impact upon the child of shared arrangements would be overcome. This would not be the case however if the mother continues to reside in Canada with K. Summary and conclusion 139. The father has established that he has a strong bond with the child and is capable of providing him with appropriate care. The child is settled in Darwin, has adapted well to school and his social surroundings in the care of

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the father. The father is unable to move to live and work in Canada. 140. The mother accepts limited responsibility for the difficulties created for the child when she took the child without the fathers permission to Canada. The mother has the capacity to live and work in Australia. If she were to reside in Australia, the child would have the benefit of an ongoing relationship with both of his parents and his brother. 141. The fathers concern about the child travelling to Canada in the immediate future is not inappropriate considering the mothers past behaviour and her attitude towards the father during the proceedings. 142. In the immediate future it would be in the childs best interest for the mother to visit Australia in order to spend time with the child. This would then enable the mother to have time with the child which fitted in with the Australia school terms. In the long term when the parties have settled into the acceptance of the parenting arrangements it would be appropriate for the child to spend time in Canada enjoying the benefits of his mothers lifestyle, culture and his extended family. 143. The relationship between the child and his younger brother should be encouraged and is significant. The Act requires the Court to consider as a primary consideration maintaining a meaningful relationship with both of the parents. The settled arrangements for the child in Darwin and his ongoing relationship with the father are most significant. 144. For the above reasons the orders are considered to be in the best interests of the child R. I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 April 2012.

Associate: Date: 23 April 2012

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