Moran and Karnadi

[2011] FamCA 626

FAMILY COURT OF AUSTRALIA

MORAN & KARNADI [2011] FamCA 626

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Father died – child live with mother in European Country 1 or aunt in Australia
FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Best interests of a child – Definition of “parent” – Section 60CC – Application of primary and additional considerations to a non-parent

Family Law Act 1975 (Cth): s 60CC(2)(a), s 60CC(3)(c), s 60CC(3)(e), s 60CC(3)(m), s 60CC(4), s 60H, s 61C, s 61DA

Donnell & Dovey (2010) FLC 93-428
Leo & Hanson [2010] FamCA 321

APPLICANT: Ms Moran

RESPONDENT: Ms Karnadi

FILE NUMBER: CAC 701 of 2011

DATE DELIVERED: 29 June 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 28 & 29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Tonkin

SOLICITOR FOR THE APPLICANT: Ms B Crompton, Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT: Mr Drysdale

SOLICITOR FOR THE RESPONDENT: Ms R Murray, HopgoodGanim Lawyers

Orders

1. Ms Moran will have sole parental responsibility for C, born on … November 2000.

2. Notwithstanding Order 1, Ms Moran will inform Ms Karnadi (the mother) about:

   a.   All serious medical issues relating to C;

   b.   The names of C’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom C may be attending;

   c.   Details about C’s schooling including information about his progress;

   d.   Any major events in C’s life including important visits either by him, or to him, and about his activities.

   e.   This information may be conveyed by email or by letter from time to time as it may be appropriate to do so and Ms Moran will ensure that the information is conveyed as soon as practicable after the happening of the events referred to.

3. Ms Moran will authorise and direct the following to provide information to the mother upon request about C.

   a.   C’s school, his school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);

   b.    C’s doctors, dentists, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time to time.

4. Ms Moran will consult and discuss with C’s mother major decisions affecting C’s wellbeing.

5. C will live with Ms Moran.

6. C will spend time with his mother as follows:

   a.For the ACT June/July school holiday period in European Country 1 or at a location nominated by his mother.

   b.For half of the ACT Christmas school holiday period in European Country 1 or at a location nominated by his mother being for the first half in odd numbered years and for the second half in even numbered years;

   c.The mother be at liberty to spend time in Australia with C on not more than two occasions each year for periods up to 14 days upon the mother’s giving Ms Moran not less than 21 days notice in writing and with such time not to include school holidays without the consent of Ms Moran.

   d.At other times as agreed.

7. In respect to Orders 6a. C’s mother shall be responsible for C’s travel costs and for Orders 6b. Ms Moran shall be responsible for C’s travel costs. 

8. C shall have telephone or Skype time with the party he is not spending time with from 7pm to 8pm each Sunday and between 4pm and 5pm each Wednesday (Canberra time) and at other times if C expresses a wish to do so.

9. In respect to Order 9 herein:

   a.The parties shall facilitate the telephone or Skype time in privacy and free from distractions;

   b.The parties shall keep each other informed of their respective contact details including mobile telephone, other telephone number and e-mail address and will advise the other party of any change to those details within 48 hours.

10. C may communicate with either party via e-mail if he wishes to do so.

11. Neither Ms Moran nor the mother will say unkind or unpleasant things about the other or the other’s family in the presence of C or do or say anything which would cause C to be concerned that he could not (or should not) express his views freely about the time he may spend with his mother and her (and C’s) family in European Country 1 or with Ms Moran and her (and C’s) family in Australia. 

12. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

13. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 701 of 2011

Ms Moran

Applicant

And

Ms Karnadi

Respondent

REASONS FOR JUDGMENT

Recent Authorities – a background of part of the relevant law:

1. I want to begin by dealing in part with some matters relating to the law which possibly need some elucidation.  I have been helpfully assisted by counsel for both Ms Moran and for Ms Karnadi with references to a number of recent decisions.  I want to refer, however, to the most recent Full Court decision[1] (a decision of Warnick, Thackray and O'Ryan JJ) about whether a distinction is to be made between parents and non-parents under the legislation.  In that decision (the facts of which bear no resemblance at all to the matters in this case) there were relevant issues considered at some length.  I quote in part from them to show how I have taken account of some of the matters their Honours suggest should be taken into account.

   [1]       Donnell & Dovey (2010) FLC 93-428

2. At paragraph 98, their Honours say this (omitting the introductory parts of this paragraph):

   … some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c).

   In that case (Donnell & Dovey) the Federal Magistrate expressly noted this subsection refers only to “parents” but said he proposed to consider [the facts in the case under that provision] the provision nevertheless. 

   While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error.  The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a “parent”.  To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.[2]

   The suggested error in the present case, and in the earlier cases, arises out of the fact that having treated the non-parent as a parent, or as if a parent, for the purposes of discussion of 60CC(3)(c), the judicial officer has not been willing to regard the non-parent as a person to whom s 60CC(2)(a) applies.  It will be recalled that this is the paragraph which contains the first of the primary considerations, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.[3]

   In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H).  However, that fact does not give rise to any difficulty in ensuring that all relevant matters are taken into account.  In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.[4]

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For a discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78]…[5] [6]

   On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion.  Some of the signposts will lead nowhere.  In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.  Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.[7]

   And then goes on to examine s 60CC(3)(m).

   [2]        ¶ 99

   [3]        ¶ 100

   [4]        ¶ 101

   [5]        ¶ 102

   [6]a matter which I have some familiarity, leaving aside the references, Champness & Hanson again, Mulvany & Lane and Aldridge & Keaton.

   [7]        ¶ 103

3. I was directed by counsel for Ms Moran to Coleman J’s consideration of this issue (again in a totally different context).  In Leo & Hanson[8] his Honour in that matter was a single Judge at first instance not a single Judge on appeal.  I draw attention to his Honour’s judgment (a) because I was directed to it, but (b) because it suggests a slightly different approach to the matter from that in the decisions which I have just referred.  What his Honour says in paragraphs 238 and 239 are as follows:

   The authorities to which the Court has referred above -

   establish that, whilst there is no mandate for extending the definition of “parent” to include grandparents or others who are not parents, the substance of the matters referred to within section 60CC(3) and section 60CC(4) remain to be considered in the light of the findings of fact made by the Court

   The authorities also suggest that, to the extent that any of the matters specifically referred to in section 60CC(3) refer only to a parent, consideration of those factors with respect to, in this case the maternal grandmother and paternal grandparents, being clearly relevant to determining K’s best interests, can be accommodated within section 60CC(3)(m) of the Act. [9]

   and his Honour goes on to say (and this would appear to be contrary to the view expressed by the Full Court in the Leo decision),

   Whilst it may be technically preferable to consider section 60CC(3) factors referring to parents first, and then consider those factors with respect to the maternal grandmother pursuant to section 60CC(3)(m), the Court - [10]

   proposes to address these factors by reference to their subject matter.  So doing is considered more instructive in terms of the Court’s ultimate conclusion, and an understanding of the reasons underpinning such conclusion. That approach does not appear inconsistent with the authorities which the Court has cited.  It is not proposed to refer in detail to the findings of fact which have earlier been recorded - [11]

   [8] [2010] FamCA 321

   [9]        ¶ 239

   [10]       ¶ 240

   [11]       ¶ 240

4. I do not pretend, at this point, to have been in a position to have made a detailed analysis of the distinction between those factors which might relate to C’s mother in her capacity as mother as opposed to the parties in their capacity as parties, but I am conscious of the fact that there are some provisions of the Act which refer to parents and should be so construed in the light of [the authorities quoted above] and some which, in the overall context of the matter, might refer to both parties. 

5. I do not think it is appropriate to leave people waiting to find out what the result will be.  My decision in this matter is that C should live principally with his aunt and visit his mother and I will give my reasons for that conclusion. 

6. I have set out a number of matters relating to parental responsibility which I want to give counsel the opportunity of considering before I make the orders formally so that if there are any variations, they can be determined.  I have also determined that there should be two nominated periods which C will spend with his mother and his European Country 1 family each year.  One of these will be paid for by his mother and the other by Ms Moran.  But I will come to those details in due course.

Introductory comments

1. This is a matter which by any measure and, on the comments of both counsel and of the family reporter in this matter, is finely balanced.  I have agonised over my decision in this matter, because it seems to me there were reasons which could have led me to conclude in either direction.  In indicating that I have come to the decision I have, the only comfort I derive from the obvious pain this will give to C’s mother and her husband is the fact that in a situation as finely balanced as this one is, it seems important that each should regard the other as being an appropriate person to have the care of C. 

Factors not taken into account

1. There are some factors I have not taken into account in arriving at my decision.  I want to nominate these in advance so that it is clear that these things have not in some way “slipped through the net” and either expressly or impliedly affected the decision that I have taken. 

2. The first is there is a suggestion, although I do not believe it was pressed ultimately, that in some way the mother’s alleged (and in part admitted) drug taking should be in some way held against her as a disqualifying factor for her looking after C.  In my opinion, there is no evidence to support in any way a finding that this is a factor affecting C’s best interests.  So that has not been taken into account in a way negative to C’s mother.

3. Second, I do not find, nor do I believe it is appropriate to find, that the mother’s failure to come to Southeast Asian Country 1 to care for C when the father was ill, was in some way reflective of a lack of commitment on her part to her responsibilities as a parent. 

4. The third matter is that while it has been submitted by each counsel that I should take account of the negativity expressed by each of the parties about the other at the present time, I decline to do that.  I accept that each of the parties has to some extent expressed negative views about the other at the present time.  I accept that this is, in the context of the current traumatic events of the last few months, probably indicative of the emotional commitment that each of the parties has in relation to C and in relation to the deceased Mr Moran.  I do not think in those circumstances that I can properly draw any satisfactory or negative conclusions against either party by what has been expressed at the present time. 

5. That does not mean that I would condone that in the future, and I will make an order which requires each of the parties to refrain from, not only in the usual terms saying unkind or unpleasant things about the other party or about the other party’s family in the presence of C, but also restrain them from saying anything which would cause C to be concerned that he could not or should not express his views freely about the time he may spend with his mother and C’s family in European Country 1 or with Ms Moran and C’s family in Australia.  So it seems to me that it’s important that there should be a clear understanding between both Ms Moran and Ms Karnadi that it is in C’s best interest that each of them supports the position of the other person rather than finds ways of undermining it.

6. The fourth thing I do not take into account in any way, either impliedly or otherwise, is Mr Moran’s wishes about where C would live.  I find myself unable to come to any conclusion about where that may be.  I accept that he nominated Ms Moran in his Will as the guardian of C.  I accept that contrary to the submissions (I think made in an attenuated and unsupportable way, with all due respect, by Ms Tonkin) that the e-mail in which he indicated that if “worse came to worst”, Ms Karnadi and her husband would be “first choice”, or words to that effect, represents anything other than a contradictory expression of wishes.  In such circumstances, I cannot find what his wishes were, and even if I did, in my opinion, it is more important that I should look at what overall is in the best interests of C.

7. The next thing I do not take into account in coming to a conclusion, and I mention it simply to negative the contrary is that the orders I make do not constitute in any way a punishment[12] for the mother’s asserted behaviour in 2005.  I accept that what happened in 2005 informs my judgment in part.  This is however not a judgment upon that behaviour except in so far as it relates to the matters in C’s best interests under s 60CC. 

   [12]and I use that word which I would not ordinarily use, because it was put to me by counsel of C’s mother

8. I further decline to take into account the submission made to me by Mr Drysdale that in some way it would be easier for C to acquire a new language at a younger age.  That may be the case, but I have no evidence to support it, and I do not believe it is relevant to the matters before me today.

9. And finally, I do not take into account the fact that when C separated from his mother and his immediate family at the time of the interviews for the family report he did not appear (in the words of counsel) to suffer from “separation anxiety”.  I accept that he was not unduly upset at the separation, but I do not think that has the significance which might be attributed to it in the normal course of events. 

Background

1. I do not propose to go [exhaustively] through the facts.  These are set out adequately in the submissions made by each counsel in this matter and in the affidavits before the Court.  There are not very many matters in controversy between the parties.  A major controversy relates to the period in which Mr Moran and Ms Karnadi were living separated but “under the one roof”.  In large measure, I accept (on the basis of the corroboration provided by the divorce application filed by Mr Moran) that the parties did continue to live under the same roof but separately between December 2002 and January 2005.

2. The extent to which during this period C’s mother remained in the house and was involved in C’s care are matters I am unable properly to make any firm determination about.  But as I suggested during the course of submissions, it seems to me that the fact that Ms Moran was unable to detect the presence of Ms Karnadi at that time is not inconsistent with what Ms Karnadi said was her situation - that she in effect remained out of sight on the second floor of the house during visits by Ms Moran. 

3. I accept that during this period both Ms Karnadi and Ms Moran had some involvement with C.  I have been unable to determine in these proceedings the extent to which that occurred.  It seems likely, in my opinion, on the evidence that the involvement of Ms Moran was potentially more substantial than that of Ms Karnadi and the primary carer for C during this period was Mr Moran and neither of the parties to these proceedings.

Relevant considerations in determining the child’s best interests

1. I am required to take into account that C’s best interests must be my paramount consideration.  This is mandated by the Act and by common sense. 

2. Under the Act there is a presumption and matters to which I should direct attention.  The first is that at least until such time as the Court determines otherwise, the parental responsibility for C at present rests with his mother, and there is a presumption - not particularly relevant in these proceedings - that as between the parents there should be equal shared parental responsibility.  In this case, s 61C applies, which means that each of the parents of C has parental responsibility for C.  That provides no comfort or assistance to Ms Moran.

3. Section 61DA provides:

   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. 

   The presumption in its terms is not applicable in this case.  Each of the minutes of orders provided by each of the parties in these proceedings sought there should be equal shared parental responsibility between Ms Moran and Ms Karnadi.  I do not believe that such equal shared parental responsibility is sensible in circumstances where whatever the outcome of the proceedings, C was to live in one country, and the other party was to live in another. 

4. It does seem to me, however, that notwithstanding that fact, and while in my opinion it is appropriate that Ms Moran should have sole parental responsibility for C, that situation should be qualified - and qualified substantially - by provisions that ensure that all relevant information relating to C should be passed to his mother and [there should be] consultation with his mother to the extent that is possible.

5. Before I make final orders, I will provide counsel with a short opportunity to consider the matters that I believe ought to be taken into account.  I have not informed them of that previously, and they should have an opportunity to comment if they wish to do so. 

6. However, in general terms, notwithstanding that Ms Moran may have sole parental responsibility for C, I will order that she will inform C’s mother about any serious medical issues relating to C;  the names of C’s medical practitioners and other practitioners, including dental practitioners and psychologists;  details about C’s schooling, including his progress;  any major events in C’s life, including important visits either by him or to him and about his activities and that this information will be conveyed by e-mail or by letter or otherwise - as the parties may agree. 

7. In addition, Ms Moran will be directed and required to authorise and direct the following people to provide information to C’s mother upon request: C’s school;  his school teachers;  any counsellor to the school (subject to questions of confidentiality);  C’s doctors, dentists, therapists or other medical or allied professionals, including information about his treatments, his diagnosis, his prognosis, and Ms Moran will consider consulting and discussing with C’s mother major decisions affecting C’s wellbeing.

8. I propose to order that C will spend time with his mother, as I have indicated before, for the ACT June/July school holiday period in European Country 1 or at a location nominated by his mother and for one-half of the ACT Christmas school holiday periods in European Country 1 or at a location nominated by his mother, being for the first half in each year ending in an even number or zero and for the second half in odd-numbered years, and at such other times as – when the mother visits Australia as agreed and at any other time as may be agreed on.  I will make provision also about communication by Skype and other means.  I mention that in general terms to provide the basis of the reasons for the orders that I propose to make.

9. In relation to the Act itself, and bearing in mind the warnings and guidance given by the decisions to which I have referred, it is clear that s 60CC(2)(a) has no application in its direct terms to Ms Moran.  The Act requires that I should take account of the benefit to C in having a meaningful relationship with both of his parents.  I pause, though it is not relevant in these proceedings to consider this in a final way, that it is arguable that s 60CC(2)(a) does not apply to this case at all in that the subsection (a) refers to a meaningful relationship with both of the parents, not with one of them in circumstances where one has died.  It is more appropriate to a dispute between parents who are both alive and both seeking some sort of order in relation to the child.  However, notwithstanding that that section has no direct application to Ms Moran, it is conceded in this matter (and hence is not a matter of any dispute) that it is important for C that he should have a meaningful relationship with both his mother and with Ms Moran, and I might add it has also been conceded (and I agree it is important) that he should have a meaningful relationship with Mr B and also with M, his half-sister.

10. There is no suggestion in this matter that C needs to be protected from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. 

11. There are no allegations in this matter of any family violence, and it is not a matter to be taken into account. 

12. The other factors (and I mention them briefly in advance before I return to them) – or the issues in broader terms (as in the approach followed by Coleman J) is to consider in s 60CC(3)(c), the willingness and ability of each of C’s parents to facilitate and encourage a close and continuing relationship between C [and the other ‘parent’].  This clearly has no present application.

13. The second factor, in subsection (e) - the practical difficulty and expense of a child spending time with and communicating with a parent - does have application.  This is one reason why the Act is not very helpful.  It is directly relevant to the time he spends with his mother in this case. 

14. I draw attention also to subsection (i) - the attitude to the child and the responsibility of parenthood demonstrated by each of the child’s parents.  Clearly there is only one parent in this case that is relevant.  That is a factor and an important factor in determining the orders I indicated that I would make. 

15. I take account under s 60CC(3)(m) that the matters set out by their Honours in the Dovey decision are signposts towards appropriate matters to be taken into account.

Meaningful Relationships

1. It has been the constant emphasis of both counsel (and an emphasis with which I agree) that in circumstances such as these, it is important for C to have a meaningful relationship with both Ms Moran and his family in Canberra and with his mother and his family (and I emphasise the “his” in this context) family in European Country 1. 

2. In the ordinary course of events, a relationship which involved his becoming part of a family unit with a father figure (if not a father) and with a sibling, if not a full sister, would represent an opportunity for stability for C which would [be difficult to ignore].  Indeed, it took much deliberation to decide that it should not be so.  It would not have been a bad thing (if I can put it in layman’s terms) that C might have finished up living in those circumstances.  That is a decision that might have been made by those who cared for C.  I have to make a decision between two competing applications and must do so on the information and evidence available to me as I see it and as the law requires.

C’s views 

1. I turn to some of the other factors that might be taken into account and in particular the views that were expressed by C about where he might want to live.  These are principally (and only relevantly) for my purposes contained in the report provided by Mr F.  Mr F in the course of his carefully considered report and also in the course of his oral evidence was careful to put the context of the opinions expressed by C in the most informed light that he could on the material he had in front of him. 

2. The important part was this:  although C had expressed the view, according to Mr F, that he wanted to do what his father wanted, that was not the end of the matter, and if it were, there would be some difficulty, I guess, with it.  [In view of my earlier comments about knowing what C’s father wanted.]

3. What Mr F said was that C expressed a considerable worry, and I use that word rather than “concern”, about the substantial change that would be associated with his living with his mother and his family in European Country 1.  This is not a case about change, because C’s situation is going to change whether he lives with his mother or with Ms Moran.  It is not a case about changing schools, because he is going to change schools whether he is with his mother or Ms Moran.  It is not a case of his not continuing to live in his home, because for all practical purposes, Southeast Asian Country 1 has been his home for all of his 10 years.

4. It is a case, however, about the particular circumstances of [his proposed] living arrangements in each place (C has had a better opportunity of assessing) that than most young people.  He has lived in the house he would live in in European Country 1.  He has lived in the house in which he would live in in Canberra.  In my view, in those circumstances, his concern (although it may be discounted in some way because of his age) – about the significance of the change he would face in going to European Country 1 is a factor I need to give appropriate weight to.  This is set out most effectively in paragraph 85 of the Family Report.  It is to be noted in that paragraph the family consultant, in giving his assessment of the wishes, comments as follows: 

   He by no means -

   that is, C -

   puts it as a rejection of his mother or as part of some sort of stronger affinity to his paternal aunt.  It is important in that that C’s mother and Ms Moran recognise unqualifiedly the fact that C has been, as best that he may in these circumstances, honest and that he wants you both to recognise that he loves you and wants you to be part of his life.

5. I am concerned (but not alarmed) by the fact that C has, in my opinion, been exposed unreasonably by Ms Moran to some factors that he would have been better off not exposed to.  In particular, I think it was “wrong”, using that word in a broader sense, for C to be informed about what his father wanted.  I accept that this may well have occurred in a context where C wanted to know what his father wanted.  The correct approach would have been the one that Mr F had indicated that is that C should have been told that those who are concerned about him would make the decision based on his best interests.  However, what has been done, has been done, and in the long run, as I said, I take account of C’s views based not so much on that question of fulfilling his dead father’s wishes, but rather on the basis of his concerns about how he is to adjust in the difficult circumstances he faces.

6. I expressed during submissions from the parties that it was important that the decision that I make, although it will affect C now, should not preclude him from wanting to make a different decision in due course.  It would be wrong to assume that C will necessarily want to live for the rest of his young life or for his future adult life with Ms Moran and her family in Australia.  It may well be at some point he seeks his parents and his European Country 1 heritage and his Southeast Asian Country 1 heritage as well - as his Australian heritage.  Hence the order that I had suggested I will make which provides that he is not to be left in a situation where he feels uncomfortable about saying what he wants. 

7. Another matter which needs determination and comment is the relationship he enjoys with both Ms Moran and with his mother.  No one has suggested otherwise than that his relationships with Ms Moran and with his mother are good relationships.  There is the unusual use of the word, but nevertheless probably appropriate, in paragraph 82 of the word “alignment” so that Mr F commented that C’s comments also point to his having something of an alignment to his aunt, and he went on to give the opinion this may be of a concern to the Court.  I accept that this has been the case as expressed in relation to his views that I mentioned a moment ago about his father’s wishes.  I do not accept, however, that there is an alignment, in the broader sense of the word.  It is more likely that the relationship with his aunt at this stage is stronger because he has had (and I find that he has had) a stronger relationship with his aunt in recent years for a variety of reasons.

8. The third matter that needs to be taken into account is subsection (c) of s 60CC(3), which is referred to in some quarters as the friendly (or the unfriendly) parent provision.  This section, as I indicated before, is one that is specifically related to parents, and it has no direct application to Ms Karnadi at all, because there is no suggestion that she will not facilitate or encourage a close and continuing relationship between C and Ms Moran, and the section, for reasons best known to the drafters, only relates to parents and not to other people.  Nevertheless, it is clearly appropriate to consider it in the broader context that it relates to both the parties in these proceedings. 

9. It appears from the affidavits of the parties, that there has been at least a temporary (and hopefully only a temporary) estrangement between Ms Karnadi and Ms Moran as a result of these proceedings - and possibly as a result of the Family Report.  All the evidence suggests that this has not been the case in the past and there has been generally a good relationship [between them] and one which would give me confidence (if I were to disregard the events of the last few months) that there will be a willingness and an ability on the part of both Ms Moran and Ms Karnadi to facilitate and encourage a continuing relationship between C and the other party.  I have, however, determined that I should make an order specifically [requiring that]. 

10. The next matter I am to take into account in determining C’s best interests is the effect of any changes in C’s circumstances and the likely effect of his separation from, in this case, Ms Karnadi and from any other child or any other person, including a grandparent or other relative with whom he or she has been living.  C has not been living with his mother; has not been living with his stepfather; has not been living with M and has not been living with Ms Moran.  So in direct terms, this section has no application to these proceedings. 

11. Nevertheless, the inevitable consequence of these proceedings is that C will live in one place and the other part of his family will live in another place.  That is in itself quite difficult, and the likely effect on C is that he will, in this time of great distress for him, find it difficult to receive the comfort and support that he might otherwise need.  I might add that to some extent, and if I were being very cynical, it might be said that the orders that I propose to make will not effect a major change in C’s circumstances in that he has not previously enjoyed a continuing and frequent relationship by way of visits and physical presence with his mother or his European Country 1 family.  I say that not attributing any blame to C’s mother at all, but merely to say that arrangements have not significantly altered as a result of these proceedings and in fact may ensure that he spends more time with his mother than had previously been the case. 

12. This gives rise to the practical difficulties and expense of his spending time and communicating with his mother.  In that context it is clear that the distance between European Country 1 and Australia is such that it will be an expensive and practically difficult time for C to spend time with his separate families.

13. In this regard, I note that the expense is significant.  I note that neither party has given me any direct evidence about their financial situation - although I can reasonably infer that these proceedings, in part, and travel, in general, have depleted those finances quite significantly.  It is for that reason it seems to me that, in the circumstances of this matter, Ms Moran should pay for one lot of travel for C in a year and that his mother should pay for the other.  I take also into account under this section the fact that there will be some complications arising from the lack of coincidence with school holidays in European Country 1 and Australia.  I cannot see any logical way around this.  I accept that there will be some difficulties.  I am hopeful that the goodwill each of the parties has expressed in these proceedings will manifest itself in some flexibility to ensure that C gets the maximum benefit of having two families one in Australia and one in European Country 1.

14. Subsection (f) provides that I take account of the capacity of each of C’s parents, in this case, his mother, and any other person, including, more specifically, Ms Moran, to provide for the needs of C - including his emotional and intellectual needs.  This is ultimately one of the matters that caused me to make my decision.  I believe that what has been demonstrated since Mr and Mrs Moran (as they then were) separated, is that Ms Moran, the father’s sister, has demonstrated a higher level of commitment to the support emotionally and psychologically of C than has his mother.  That is a hard finding, and I do not make it blaming Ms Karnadi at all.  She had difficulties in establishing herself after the separation.  However, if I look at the frequency of her practical time with C over the years as set out in her counsel’s submissions, I cannot help but conclude that in some respects, she has not been able, for practical or other reasons, to provide the support that C may well have needed.

15. A factor which I take into account (but only to dismiss) is that there are going to be cultural matters that will be important to C in the future, including his Southeast Asian Country 1 background.  Neither party suggested this was a matter I should relevantly take into account.  However, I would expect each of the parties to make sure that he is able to be proud of his Southeast Asian Country 1 background and to support him in his pursuit of establishing that cultural connection.  I make no specific order. 

16. The last matter which is relevant to my considerations is that I should make an order which would be least likely to lead to the institution of further proceedings about C.  I do not believe I can make any such order in this context.  It seems to me that it is probable that at some point in the next eight years, until C becomes an adult, he is likely to want to pursue a different course from that which I have decided upon today.  In those circumstances, there may well be further proceedings before the Court.  Better in accordance with C’s best interests, that those who care for him will make such decisions rather than requiring a further decision from me. However, there is nothing further I can do which to eliminate that prospect for the future. 

17. I am also obliged in accordance with the signpost provided by the Act under s 60CC(4) to take account of the matters therein set out, and I set them out, because they are relevant in part to my considerations and bear in part again upon my determinations. 

18. Section 60CC(4) provides:

    (4)  Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

    (a)  has taken, or failed to take, the opportunity:

    (i)  to participate in making decisions about major long-term issues in relation to the child; and

    (ii)  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)  participating in making decisions about major long-term issues in relation to the child; and

    (ii)  spending time with the child; and

    (iii)  communicating with the child; and

    (c)  has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. I must take account of the extent to which each of the child’s parents has fulfilled, or failed to fulfil, her responsibility as a parent and, in particular, the extent to which each of the child’s parents has (a)  taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to C, to spend time with C, and to communicate with C and has facilitated or failed to facilitate the other parent doing the same things. 

2. And I add by way of completeness in subsection (4A):

   If the child’s 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.

   This section has application only in these circumstances to C’s mother and not to Ms Moran, who seems (although it seems somewhat anomalous in the context of this matter) to have no obligation to be involved in the matters I have set out. 

3. It could be said, I think with some degree of qualification, that C’s mother has to some extent since separation, notwithstanding the circumstances, and notwithstanding her need to provide both financial and emotional security for herself after separation, failed to take all of the opportunities she might have taken to participate in major decisions about C or to spend time with him.  I do not include (because I cannot) a determination about whether she has otherwise properly tried to communicate with him.

4. In all of those circumstances, as I said before, it seemed to me that there was no easy or even any clearly right decision about where C should live. 

5. In the end, I took account of the matters that I have emphasised in the course of my reasons, and in doing so, I am conscious of the sadness that causes to C’s mother and to Mr B.  For that I am profoundly sorry.  I wish I could make a decision which would mean that everyone was happy, but I cannot.  Accordingly, I will make the orders that I have foreshadowed. 

6. Before doing so, I will provide a copy of them to counsel to consider with their clients in case there is any matter [of detail] they wish to draw to my attention before I formally make the Order.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 29 June 2011.

Associate: 

Date: