ACQUAAH-AKUFFO & ABIOYE

[2016] FamCA 507

FAMILY COURT OF AUSTRALIA

ACQUAAH-AKUFFO & ABIOYE [2016] FamCA 507

FAMILY LAW – NON HAGUE CONVENTION COUNTRY – Jurisdiction – best interests and jurisdiction – interim hearing

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Acquaah-Akuffo

RESPONDENT: Ms Abioye

FILE NUMBER: PAC 1193 of 2016

DATE DELIVERED: 22 June 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 3 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wetmore

SOLICITOR FOR THE APPLICANT:	BTF Lawyers
SOLICITOR FOR THE RESPONDENT:	Ms Karagiannis, Legal Aid NSW

Orders until further order

1. The mother has sole parental responsibility for B, born … 2006.

2. The child shall live with the mother.

3. Within seven days’ of the making of these Orders the father shall do all acts and things necessary to cause the child to be delivered to the mother or her agent at … International Airport …, Ghana.

4. Immediately upon booking the child’s flight to Ghana the father shall notify the mother by e-mail of the travel itinerary for the child and provide confirmation of the child’s booked flight.

5. The father is solely responsible for the costs of the child travelling to Ghana in accordance with these orders.

6. The father shall cause all of the child’s current and expired passports in his possession, custody or control to be delivered to the mother simultaneous with the child being delivered to the mother in accordance with these orders.

7. The mother shall make the child available to the father via telephone or electronic communication as agreed, or failing agreement at 5pm (Ghana time) each Saturday.

8. The matter is otherwise adjourned for directions on 12 August 2016 at 10am.  The parties are at liberty to attend the directions hearing by telephone provided that they give seven days’ notice of such an intention to the Court. 

9. The interim applications of the parties are otherwise dismissed.

10. 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 Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acquaah-Akuffo & Abioye has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC1193/2016

Mr Acquaah-Akuffo

Applicant

And

Ms Abioye

Respondent

REASONS FOR JUDGMENT

1. This is a case concerning a 9 year old boy, B, who has lived almost his entire life in Ghana, a non convention country.[1]  He has lived there with his mother, but is currently in Australia with his father, a permanent resident who comes from Ghana.  The child’s mother wants him to return promptly to Ghana, but his father says that it is best for him to remain in Australia.  The child is the subject of orders made by courts in Ghana.

   [1] Hague Convention on the Civil Aspects of International Child Abduction 1980 (signed at The Hague on 25 October 1980).

2. The applications relied upon for the parties are as follows:

   a)For the applicant father, interim orders 5-8 of his Initiating Application filed 16 March 2016.  In short summary, these provide for the father to have the child live with him, to have sole parental responsibility and for telephone communication with the mother on an as agreed basis. 

   b)For the respondent mother, orders 1-6 of her Response of 17 May 2016 were relied upon, which in short provided for a prompt return of the child to Ghana to be facilitated by the father, the surrender of all passports to the mother and the dismissal of the father’s Application.

3. Proceedings were commenced by the father in relation to, the child (born in 2006) under Part VII of the Family Law Act 1975.  The jurisdiction to institute such proceedings is set out at s 69E of the Act and is least controversially conferred in this case by 69E(1)(c)[2] as the Applicant is a parent of the child, is ordinarily resident in Australia and was present in Australia on the day the proceedings were filed, being 16 March 2016.  The mother conceded that s 69E(1)(a) and (c) apply to the child.

   [2]

4. Given that the child is the subject of orders made by the Circuit Court of Ghana on 28 January 2011[3] and subject to orders made by the High Court of Justice in Tema, Ghana[4], a question arises as to the exercise of jurisdiction by this Court.  That is, whether or not the jurisdiction conferred by s 69E of the Act is in some way to be limited by virtue of the orders made in Ghana. 

   [3] Ms Abioye 16.5.16 Anx A

   [4] Ms Abioye 2.6.16  Anx C

5. It was common between the parties that this was not a matter involving the Hague Convention as Ghana is not a signatory, nor is it a matter under which the orders made in Ghana are registrable. 

Principles relating to the exercise of jurisdiction

1. Division 4 Subdivision B of Part XIIIAA deals with the jurisdiction for the person of a child.  Section 111CC applies the subdivision to cases where the question arises as to whether it is this Court that has jurisdiction or a competent authority of a non-Convention country.  Section 111CD sets out circumstances in which the jurisdiction of this Court may be constrained regarding a Commonwealth personal protection measure (defined within s 111CA).[5]

   [5] Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.  The definition in turn draws upon Articles 1 and 3 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children as set out at schedule 1 of the Act. 

2. On the assumption, without determining it, that the child is habitually resident in a non-Convention country, being Ghana, the only potentially applicable provision of s 111CD is contained at [(1)(f)] which allows the Court to exercise full jurisdiction in relation to:

   a child who is present in Australia, if:

   (i)  the child is habitually resident in a non-Convention country; and

   (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child.

3. B sits within the circumstances described at s 69E(1)(c) above.  Under such circumstances there is no specific statutory constraint upon the exercise of jurisdiction by this Court.  If the assumption does not hold true, that is, he is not habitually resident in a non-Convention country, then the child sits within s 111CD(1)(a) as a child habitually resident within Australia.  If this is the case then none of the restrictions contained at s 111CD(4) apply to the child as he is from a non-Convention country. 

4. I find that the provisions of Part XIIIAA do not operate as a constraint upon the jurisdiction of this Court.  The next issue is whether this Court ought to exercise jurisdiction.

5. The parties indicated that there was no procedural impediment to dealing with their competing applications on the day that the matter came before me.  Further, the parties both indicated that they sought that the Court exercise jurisdiction in relation to the child. 

6. The father commenced the proceedings seeking, amongst other orders, sole parental responsibility, a Parenting Order per s 64B(2)(c).  He seeks the exercise of jurisdiction.

7. The mother seeks the return of the child to her care, a Parenting Order per s 64B(2)(i).  At the hearing the solicitor for the mother specifically sought that the Court exercise jurisdiction.  Neither party addressed the question of what the test would be as to whether the Court should exercise jurisdiction. 

8. The approach is set out in Pascarl & Oxley (2013) FLC 93-536 which traces the place of the best interests principle in determining forum both before and after the 1995 and 2006 amendments to the Family Law Act 1975.  At [73] the Full Court identified that:

   (T)he focus of the Court should be on the application which it is considering and on the principles governing that application.  In particular, where that application is made directly under the provisions of the Act, such as s 63 (as then in force), or under the auspices of the welfare power in s 67ZC, the exercise of those powers is circumscribed by the best interests of the child as the paramount consideration.

   Further, at [86]:

   Where an application is made under the provisions of the Act which prescribes the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply

9. That is, where the nature of the application requires that the best interests principle be applied, that same principle determines whether jurisdiction is to be exercised by this Court.  In considering the nature of the application, examination of the nature of the relief sought assists in determining whether it is a matter requiring the application of the best interests principle, an approach taken in one of extracts quoted by the Full Court from EJK & TSL[81]:

   in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA).

10. On either party’s case it is necessary to make a parenting order to provide effective relief.  A parenting order requires the application of the best interests principle.

11. As the nature of both applications requires the application of the best interests principle, determination of forum/whether to exercise jurisdiction also requires that the child’s best interests be the paramount consideration.[6]  A consideration of the circumstances in the light of the s 60CC factors set out below leads me to conclude that I should exercise jurisdiction in order to determine how the adverse and beneficial circumstances he faces are to be balanced to promote his best interests.

    [6] Karim v Khalid (2007) 38 Fam LR 300 [59].

Circumstances

1. The matter first came before me on 23 May 2016 having been transferred from the Federal Circuit Court.  I adjourned the hearing of the matter to 3 June 2016 and allowed the parties to file further material.

2. The father relied upon his affidavits filed 22 January 2016 and 27 May 2016.

3. The mother relied upon her affidavits filed 13 May 2016 and 1 June 2016 along with her Notice of Risk filed 16 May 2016.

4. The history of the parties and the child is as follows:

   a.The mother and the father are both Ghanaian nationals.[7] They married in 2005 and divorced on 28 January 2011 in Ghana.  Their son B was born in 2006 in Australia.  The parties give various accounts about the child’s citizenship.  The father asserted that the child is an Australian citizen[8] although his counsel asserted that this was not the case.  The father has also asserted that the child’s only nationality is of New Zealand.[9]  The mother asserts that he holds passports issued by both New Zealand and Ghana[10].  Resolution of this issue is unimportant to the resolution of the proceedings.  Neither party suggests that the child would be stopped from remaining in Australia by virtue of his citizenship.  Although the father suggests there has been past impediment to the child’s return to Ghana, he has not raised such as a current impediment.

   [7] Ms Abioye 13.5.16 [6], [7]

   [8] Mr Acquaah-Akuffo 16.3.16 [3]

   [9] Mr Acquaah-Akuffo 30.5.16 [145]-[155]

   [10] Ms Abioye 16.5.16 [11]

   b.B and the mother lived in Ghana from when the child was about 6 months old, from about February 2007.[11]

   [11] Ms Abioye 16.5.16 [13]

   c.It is unclear where the father lived immediately following separation although inferentially he lived in Australia[12], and it is common that he was in Australia following the divorce in 2011[13].  That is, either since the child was born, or at least since he was about 4 years old, the father has spent limited time with the child, while the mother has held the responsibility for the child’s care.

   [12] Mr Acquaah-Akuffo 30.5.16 [30]

   [13] Mr Acquaah-Akuffo 16.3.16 [6]

   d.The mother obtained orders in the circuit Court of Tema on 28 January 2011 providing that she would have custody of her son with the father having reasonable access.

   e.Between 2011 and mid 2014 the father saw the child for 4 weeks per year in Ghana.[14]  He asserts that the mother denied him time with the child in 2005 and 2010.[15]  The reference to 2005 is in error, given that the child was not then born.

   [14] Mr Acquaah-Akuffo 30.5.16 [7]

   [15] Mr Acquaah-Akuffo 30.5.16 [40]

   f.The mother asserts that the 2013 visit resulted in the father removing the child from Ghana and taking him to Australia without her consent.  The father asserts that the mother obstructed his time with the child in 2013.[16]  the child was removed to Australia on 21 August 2013, with the father emailing to say he would be returned on 16 September 2013.  The mother sought the assistance of various authorities.  It is unclear what role these authorities played and whether they secured the child’s return.  The child was returned as the father had advised he would in an email to the mother.[17]  The email from the father suggests that he had not notified the mother of the impending removal of the child.  An email string indicates that the issue of travel was raised by the father and that the mother stated her disagreement.[18]  The fact that the removal was without consent therefore appears to be uncontroversial.

   [16] Mr Acquaah-Akuffo 30.5.16 [45]-[55]

   [17] Ms Abioye 16.5.16 [17]-[29]

   [18] Mr Acquaah-Akuffo 30.5.16 Anx Q-T

   g.In August 2014 the father asserts that his time with the child was thwarted by the mother taking the child into hiding.[19]

   [19] Mr Acquaah-Akuffo 16.3.16 [8]-[13]

   h.On 21 July 2015 the father commenced proceedings in the High Court of Justice in Tema seeking to specify the bounds of reasonable access to the child.[20]  The father’s description of the circumstances in which the child came to Australia on 17 August 2015 indicates that it was without the consent of the mother.[21]  The mother however, asserts that the trip was made with her permission, on the basis that the child would be returned to Australia by the time of the commencement of school on 9 September 2015.[22]  This appears to be supported by an email sent by the father on 17 August advising that the child was scheduled to return to Ghana on 3 September.[23]  It is not necessary to resolve these precise circumstances to determine the best interests questions.  There is at least an absence of consent for the child remaining in Australia.

   [20] Mr Acquaah-Akuffo 30.5.16 Anx II

   [21] Mr Acquaah-Akuffo 30.5.16 [104]-[113]

   [22] Ms Abioye 16.5.16 [37]-[41].

   [23] Ms Abioye 16.5.16 Anx F

   i.The father subsequently retained the child in Australia, for reasons including the child’s views, the maintenance of relationships within Australia, his ability to care for the child, education, sport, and health treatment.[24]  The father references previous issues with the child’s health and education, asserting that he was still wearing nappies as late as 2013, that he had untreated medical issues for which follow up was recommended in Australia.[25]  The mother denies these matters and asserts that the child receives appropriate medical treatment and education in Ghana.[26] The untreated medical issues were identified in submissions as being the failure to have the child attend upon Australian doctors for a 12 monthly review[27].  No evidence suggested that these reviews were of any immediate importance despite reference to current orthodontic issues and the subsequent institution of a treatment regime in Australia.[28]

   [24] Mr Acquaah-Akuffo 30.5.16 [130]-[144]

   [25] Mr Acquaah-Akuffo 30.5.16 [21]-[27]

   [26] Ms Abioye 2.6.16 [16]-[24]

   [27] Mr Acquaah-Akuffo 30.5.16 Anx J

   [28] Mr Acquaah-Akuffo 30.5.16 [116]-[117], [123]-[129]

   j.The father filed an application in the Federal Circuit Court on 16 March 2016.  Prior to that, the mother took steps to advise the father as to the orthodontic treatment for the child in Ghana (the father had asserted the need for such in Australia), had requested the father return the child, had sought the intervention of the Ghana High Commission, had approached International Social Service Australia for assistance, and had taken part in family dispute resolution.[29]  She has since commenced proceedings in Ghana.  While it was initially asserted by counsel for the father that the mother had failed to take action regarding the child’s removal this is not so.  Counsel appropriately moderated the submission to indicate that the mother had merely not taken prompt action to secure the return via the Australian legal system.

   [29] Ms Abioye 2.6.16 [42]-[[51].

   k.The mother states that she is not entitled to live or work in Australia, that she would require a visa to visit that would take about 3 months to organise.[30]  Although this was challenged by counsel for the father in submissions, no evidence to challenge this proposition was advanced.  The orders sought by the father provide only for telephone communication between the mother and the child.

   [30] Ms Abioye 16.5.16 [7]

   l.In summary form the settled facts are:

   i.The mother has had primary responsibility for the child since his birth;

   ii.The father has had limited time with the child, since 2011 at most 4 weeks per year;

   iii.The father has twice removed the child from Ghana without the consent of the mother;

   iv.The father has now retained the child since August 2015.

   m.In summary form the controversial matters are:

   i.That the child did not receive sufficient medical treatment in Ghana, but has in Australia (noting at its height, no practical detriment is evidenced for the child by any shortfall in treatment);

   ii.That the child’s education has been compromised in Ghana (at its height, again there is no evidence brought to bear as to inadequate development on the child’s part, aside from the assertion that he did not know his date of birth);

   iii.That the child is now well settled in Australia;

   iv.B’s views;

   v.That the mother had been obstructive toward the relationship between the father and the child.

Do the child’s circumstances mean that it is in his best interests to exercise jurisdiction?

1. B’s situation comprises two competing living arrangements, without the emergence of any middle ground.  One, in Australia, involves a substantial change from arrangements that had been in place since shortly after he was born, and involves minimal connection with his mother who, until recently, was the primary carer.  The other, a return to Ghana, necessitates a change from a situation that has persisted since August 2015, in which the child is reported to be happy and has the benefit of more extensive contact with his father than previously experienced by him.  Each involves both benefit and detriment to the child.  His best interests require a resolution of which mix of benefit and detriment is in his best interests, and so his best interests require that I exercise jurisdiction to make a parenting order.

2. This leaves open the question of the manner of the exercise of that jurisdiction, a decision that is also subject to the best interests principle, with the options ranging, as identified in Pascarl [82] from a summary hearing through to a full hearing:

   (W)here the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles

1. Further support for the range of approaches can be taken from the description extracted from EJK & TSL  in Pascarl [81]:

   (I)n some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction.  In making such summary order the Court will have regard to the child’s best interests as its paramount consideration

2. That is, there is a degree of flexibility as to the scope of the proceedings,  ranging from a summary hearing (which I take to mean, in this context, a short, circumscribed, but final hearing) through to an interim and then final hearing more typical to the usual exercise of jurisdiction by this Court.  Again, the circumstances and the best interests principle will govern what approach is to be taken.

Summary dismissal

1. The mother sought summary dismissal of the father’s application and relied primarily on the following factors:

   a)That the matter was better determined in Ghana because the child was normally resident in Ghana.

   b)That there was no reason why the father had decided to retain the child in Australia.

   i)It was asserted that there was no evidence of anything the child had told the father (however, the father’s evidence does contain limited, albeit unsatisfactory, evidence of the child’s views[31]).

   ii)There was no evidence concerning the level of maturity or understanding of the child.

   c)There had been significant disregard for the impact on the child of dislocation from his home land.

   d)The effect of removal from family and friends.

   e)That one of the child’s relatives, his maternal grandmother, to whom it was asserted he was close, had died while he had been in Australia. 

   f)That in the court proceedings in Ghana the father had been part of the process and had not sought to have those orders overturned.

   [31] Mr Acquaah-Akuffo 30.5.16 [130]

2. The parties’ attention was drawn to Rule 10.12 of the Family Law Rules 2004 (Cth) which deals with applications for Summary Orders as follows:

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)  the court has no jurisdiction;

   (b)  the other party has no legal capacity to apply for the orders sought;

   (c)  it is frivolous, vexatious or an abuse of process; or

   (d)  there is no reasonable likelihood of success.

3. Of the potentially applicable aspects of Rule 10.12 it was only (c) or (d) that appeared to have potential to resolve the matter. The father asserted that the case was neither frivolous, vexatious nor without real prospects for success and that it could not be described as foredoomed to failure.

4. The father asserted that his application was based on:

   a)The health of the child based on ophthalmic and dental advice;

   b)That the mother had taken the child into hiding in 2014 and withheld him from the father and that this was not in the best interests of the child for him to be withheld;

   c)That there were other incidents of the mother standing in the way of the father seeing the child;

   d)The child was getting on well in Australia and was well supported by the father; and

   e)That the child had expressed views wanting to remain with the father;

5. In dealing with the application to summarily dismiss I accept it is a relief that is rarely and sparingly granted, that is not available simply because a case is weak and that it is reserved for cases where there is no reasonable likelihood of success, as stated in by Finn and Strickland JJ in Breedon & Bonser [2013]FamCAFC 16

   Although there is no reference to parenting proceedings in Part 10.3, there must be some question as to whether an application for summary dismissal can be an appropriate application in parenting proceedings, the determination of which is generally covered by the “best interests” principle…(a)ssuming, that a summary dismissal application was available to the mother in this case, the appropriate test would have been “no reasonable likelihood of success”.  It must be acknowledged that his Honour did not, at least expressly, apply this test.  Rather, he apparently applied the “doomed to fail” test referred to by Kirby J in Lindon.  The tests are, of course, conceptually different.

6. The father raises issues that go to the maintenance of a relationship between him and the child.  His assertions that the mother had been obstructive in relation to that relationship, including withholding the child from him on occasion when he had visited in Ghana, go to an essential consideration of the welfare of the child, in particular the primary consideration set out at s 60CC(2)(a).  Whether the matter would necessarily resolve in favour of the father is not the issue.  Nor is it sufficient to suggest that such a claim may be able to be rebutted by the mother, nor is it sufficient to simply describe the argument as weak in the overall context of the case. 

7. If summary dismissal is to have a role to play in relation to a children’s case, which is not strictly inter partes, particularly in the sense of not casting an onus on either the applicant or the respondent, then it requires that there be no prospects for success.  I am unable to come to that conclusion, in particular because of the issues as to the relationship between the child and his father.  Accordingly, I am not prepared to summarily dismiss the father’s case.  Even if I had been, it is not clear what resolution this might have given to the proceedings.  It would still have been necessary for a consideration to be given as to what is in the best interests of the child, even absent the application on a part of the father.

Consideration

1. The proceedings now fall to be considered in the manner expressed in the Act and described in Goode & Goode.  I have already set out the competing proposals. 

2. The issues at the broadest are whether the child is better off with his mother in Ghana or with his father in Australia.  This  requires an assessment of the circumstances in which the child was living in Ghana versus his circumstances in Australia, and an assessment of the nature of his relationships with his mother, father and those around him.  A key consideration is of the implications of the father’s actions in firstly removing the child to Australia in 2013 and secondly withholding him in Australia in 2015 until now.  Given the issues raised by the father, it is also necessary to consider the child’s health and educational arrangements in Ghana as opposed to those in Australia.  At this stage the capacity for such assessment is limited.

3. Many of the factual matters are the subject of little dispute.  One area of dispute relates to the medical care of the child, in particular dental care.  The father asserts concerns and outlines current treatment in Australia.  However, the nature of the mother’s evidence[32], supported by correspondence from a consultant orthodontist in Ghana mean that I am unable to conclude that there has been a deficiency of medical attention in the care of the mother.

   [32] Ms Abioye 16.5.16 Anx H

4. A further area of dispute relates to the stability of the educational arrangements for the child.  The father asserts that the child changed school five times by the time he was in year 2 and did not know his date of birth.  Further, the father asserted that the last change of school (presumably the last change of school before he left Ghana) was “very traumatic”.[33]  It ought be noted that the retention in Australia has caused a further change of school.  While the mother does not dispute changes of school in Ghana, the school report provided does not support the idea that the child was a struggling student.[34]  I cannot draw a conclusion that the child’s education in Ghana is inadequate.

   [33] Mr Acquaah-Akuffo 30.5.16 [24]

   [34] Ms Abioye 16.5.16 Anx M

5. The parties were also in dispute regarding how the courts and legal process in Ghana ought be viewed.  For the mother it was put that Ghana was the better jurisdiction as the child was ordinarily resident there.  It was further put that I should act in comity with the Ghanaian court, in part for public policy reasons to discourage the removal of children.  While the paramountcy of the best interests does not mean that best interests are the only consideration, there is no evidence in this case that would allow me to weigh how paying heed to the Ghanaian orders would or would not conflict with best interests.  Further, any public policy consideration is subservient to the interests of the child.  Where, as here, the court is engaged with a child’s best interests, such public policy issues could only come into play where they bore no conflict with best interests and then only if there was a sufficient articulation of why they ought concern this court.

6. Counsel for the father sought to establish that exposing the child to the Ghanaian courts would be contrary to his best interests.  The evidence does not allow such a conclusion to be drawn.  Counsel for the father, in support of this contention, pointed to the fact that it appeared that the High Court at Tema had made orders on an ex parte without notice basis and that the mere fact that a court that might act in such a manner is contrary to the child’s best interests.  I note that this Court possesses powers that enable it to act in such a manner.  The mere use of such powers by a Court does not, of itself, answer the question as to whether the Court would or would not act in a manner contrary to best interests.

7. Further issues to be considered relate to the allegation that the mother withheld the child from the father in 2014.  Counsel for the father described this as not in the child’s best interests as it was without reason.  However, although withholding is neither denied nor accepted by the mother, the context is one where the father had presumptively removed the child from Ghana on his visit the previous year, albeit returning the child within a short period.  If the child was withheld because of concerns that further presumptive action might take place, the current circumstances reveal that such concerns would have been reasonably based.  Further, the facilitation of time between the father and the child following the 2013 removal allows the inference to be drawn that the mother has been supportive of the relationship.  Of greater significance is the father’s withholding of the child from his mother as long term primary carer.  If the capacity of the father is examined through the same lens as has been sought to be applied to the mother then his actions paint a bleaker picture of his capacity.

8. The father’s evidence is that the child is enjoying his time in Australia.  This receives some limited support from photographs annexed to the father’s affidavit showing the child engaged in enjoyable activities in Australia.  More significantly, the mother’s regular telephone calls with the child do not evidence unhappiness expressed by the child to her as to his situation.[35]  In comparison, the only expression of unhappiness attributed to the child in Ghana was missing his father and not spending time with the father’s family.  Limited support for this is contained in transcripts of voice messages from the child to his father.[36]  However, it ought not be overlooked that this is in a context where the child has seen his father on limited occasions for up to 4 weeks each year, and the father has removed the child from the care of his mother who conducted the role of primary carer for the balance of each of those years.  The solicitor for the mother reasonably described the father’s actions as exhibiting a significant disregard of the impact on the child of dislocation from his homeland.

   [35] Ms Abioye 16.5.16 [73]

   [36] Mr Acquaah-Akuffo 30.5.16 Anx K

9. Counsel for the father raised the concern that if an order is made to return the child to Ghana and then he is ultimately returned to Australia that the child would be irreparably damaged having been treated as a ping pong ball.  It can be accepted that major changes in living arrangements, particularly in rapid succession, may not be beneficial to the child.  However, the father’s case is also that the change he effected has not had an adverse effect upon the child.  This was a change to the relatively unfamiliar, whereas the change sought by the mother is to return the child to the familiar.

10. Of the balance of factual matters that may impact upon a consideration of the s 60CC factors put for the mother the significant matters are as follows:

    i)B had a meaningful relationship with both parents when living with the mother, but not so while with the father.  The mother had both kept the father appraised of the child’s circumstances and had made him available to the father;

    ii)Harm was occasioned through the removal from the habitual  residence;

    iii)The expression of views was mere conclusion on the part of the father and without the ability to assess maturity nor understanding;

    iv)There was no ability for the mother to travel to Australia;

    v)The mother has the capacity to care for the child;

    vi)Withholding of the child demonstrates a poor attitude to the responsibilities of parenthood

11. The significant matters put for the father were as follows:

    i)B ought have the benefit of the relationship with the father, and that the Court could order the father to assist with the obtaining of a visa;

    ii)On occasion the mother had hid the child from his father, causing bitter disappointment to the child.

12. The father sought the appointment of an Independent Children’s Lawyer and indicated that he could fund a report directed to the child’s views.  Whether he could fund a report was the subject of contention.  His asserted cost for a report was contested by the mother’s solicitor.  No evidence was brought to bear on the issue.  The solicitor for the mother opposed the appointment of an Independent Children’s Lawyer on the basis that it was sought to simply bring the child’s views to the Court.

13. Re K is the leading authority on the appointment of an Independent Children’s Lawyer.  In determining whether the child’s interests require independent representation, Nicholson CJ, Fogarty and Baker JJ laid out a number of guidelines to be considered by the court.  In this instance, the issue that tells toward the appointment of an Independent Children’s Lawyer is the potential removal of the child from Australia, or retention of the child in Australia causing great restriction in the time that he is to spend with one parent or the other.  What tells against, at least as a step preliminary to any resolution of the matter on an interim basis, is the potential delay caused.  If the matter is dealt with on an interim basis, this is a matter that can be dealt with in due course as part of the management of the trial.

14. The father conceded that there was no practical impediment to him complying with the orders sought by the mother, in that he had the funds to comply with such orders.

15. Of the two primary considerations it is only the benefit of meaningful relationship that is sufficiently raised on the evidence in this case.  The mother has persevered in facilitating time between the child and his father despite the father removing the child from the country in 2013.  Even if she has on other occasions provided some obstruction, particularly in 2014, her provision of the child in 2015 indicates her willingness to foster relationship between the child and his father.  That is, she maintained the relationship in the terms that the father exercised it.  While there is evidence of some maintenance of the relationship between the child and his mother by means of electronic communication, the abrupt interruption and change of relationship occasioned by the father indicates a limited capacity or will to foster meaningful relationship.  I note that the father does not assert in his evidence that his relationship will be brought to an end by the child returning to Ghana. 

16. Of the additional considerations, no cogent evidence was presented as to the child’s views, nor why they, whatever they might be, are held, nor of his understanding of the ramifications of such.  His views do not thereby play a role in determining the matter. 

17. Evidence is limited as to the nature of the relationships between the child and significant adults, although, at face value his mother was his primary adult relationship, his father is precious to him, and he has a positive relationship with his step-father.[37]

    [37] Ms Abioye 2.6.16 [32]

18. The evidence does not address taking or failing to take part in the child’s life, other than that the father’s face to face involvement has been limited by virtue of his residence in Australia.

19. Each of the parents has contributed to the child’s upkeep.  The father pays maintenance as ordered, an amount the mother asserts is insufficient.[38]I make no adverse finding in relation to the father in relation to this factor.

    [38] Ms Abioye 2.6.16 [33]-[34]

20. Whatever orders are made here involve a degree of change of circumstances for the child, and each includes an aspect of separation from a parent.  There is no neutral position.  If he remains in Australia then he is separated from his mother and previous home for an unknown period.  If he returns to Ghana then he is separated from his father.  Of the two sets of circumstances, remaining in Australia constitutes the more significant change of circumstances.  The mother is unable to come to Australia without a visa, whereas the father has regularly visited in Ghana (although it is unknown whether his actions in retaining the child will constitute a barrier to further opportunities to seeing the child in Ghana).  The mother has been the parent with whom he has lived since a baby, and the criticism made of her by the father is of limited significance.  At present, separation from the mother is of greater significance than a potential separation from the father.

21. Practical difficulty persists in terms of maintenance of relationship whatever orders are made, as one parent resides in Ghana and one in Australia.  This is a difficulty that substantially affects the maintenance of the relationship with the mother, in the manner in which the relationship persisted prior to the father’s retention of the child.  If the child is in Ghana, subject to the other matter raised above, the father has demonstrated a regular ability to travel to him.

22. There is limited evidence from which any matter of significance can be drawn regarding the child’s particular background and other characteristics.

23. On the issue of the attitude to the child and to the responsibilities of parenthood each parent has demonstrated care and commitment toward the child.  However, the father’s action in retaining the child displays little concern for the significance of the relationship between the child and his mother.

24. This is not a case in which either family violence or a family violence order is a relevant factor.

25. It is unclear what order could reasonably be made to limit further proceedings.  There have been multiple proceedings in Ghana and there is no reason to suppose that there would not be more if the child was there.  Returning the child to Ghana leaves open the option of the continuation of proceedings here.  Proceedings have continued in Ghana in the child’s absence.  It is unclear whether they will continue if the child remains here. 

26. The other matter that falls for consideration is the question of what may happen should the child be returned pending final resolution.  It is possible that a temporary return to Ghana pending listing the matter for final hearing might not see the mother participate further in the proceedings here, with the court here having no effective mechanism to bring the child back should it ultimately be determined to be in his best interests to reside in Australia with his father.  No evidence was advanced to suggest that the mother would either participate or not participate under such circumstances.  It remains an unquantifiable risk, but a risk merely that this court might not be able to make a more fulsome determination of best interests than at present.  At the same time, should the litigation continue in Australia, with the child present, there is no guarantee that the mother will be able to continue to take part from Ghana, nor even that she would be able to enter the country to take part.  This too would lead to an unsatisfactory process for the resolution of best interests.  However, given the limited evidence as to these aspects, each of these outcomes must be characterised as speculative, although the retention of the child in Ghana carries with it the consequence of a complete end of the evaluation of the case in Australia, meaning that the matter would be practically resolved on the basis of largely untested evidence.  This in turn must be understood in the context of the factual matters raised by each of the parties.  Although it would not mean that the matter would be determined on an ultimate assessment of how the best interests applied when the evidence was fully tested, the potentially adverse result is limited, given that the nature of the assertions made by the father in relation to the health and education of the child are only marginally adverse.  The most serious effect is the potential future limitation of the role of the father should the child return to Ghana, again a matter that the evidence does not allow to be quantified.

Parental responsibility

1. In this case I am asked to make parenting orders.  I am unable to identify the current state of parental responsibility for the child, given the operative orders from Ghana.  Section 61C of the Act provides that each parent bears parental responsibility subject to modification of that position by order of a court (whether or not under the Act).  No evidence has been led as to the effect of the current orders.

2. In this case I am to apply the presumption unless, in the context of making an interim order, I do not consider it to be appropriate to apply the presumption.

3. Here the evidence indicates polar approaches to key aspects of long term parental responsibility, being health, education and the country in which the child will live.  At this stage, each parent asserts that the other has made such determinations without reference to the other.  Given this polarity, the child’s living arrangements, under either proposal, mean that it is in his interests to have whoever he is living with exercising sole parental responsibility in the short term at least.  Given the current circumstances, the parents cannot jointly make decisions for the child.  This means that it is in the child’s interests that I do not make an order for equal shared parental.  Sole parental responsibility will be vested in whomever I determine the child is to live with.

Who should the child live with?

1. This decision is governed by the best interests of the child, as discerned through the factors set out in s 60CC.  Given that the parenting orders will not include an order for equal shared parental responsibility, s 65DAA has no effect on the reasoning process.

2. Having outlined the circumstances and the application of the s 60CC factors above, I consider that the key matters are:

   a. The actions of the father conflict seriously with the relationship between the child and his mother.  On the father’s case this will continue.  The mother, on the other hand, while potentially being obstructive on occasion, has still supported the relationship between the child and his father, even after his father took him to Australia against her wishes and without her permission in 2013.  Even though the father’s relationship may be prejudiced by a return to Ghana, it is more in keeping with the limited but apparently successful relationship he exercised until August 2015.

   b.The disruption of the child’s living arrangements is significant and is made in circumstances where the father was critical of the mother for disrupting the child by means of change of school.  Without apparently recognising the seriousness of the change occasioned by him, the father put forward justifications based on education and health which, at their highest, appear to be of marginal benefit to the child. 

   c.In maintaining relationships, the mother has no capacity at this stage to come to Australia.  The father has demonstrated the ability to travel to Ghana to maintain relationship over a significant period of time.

3. Given the longstanding significant place the mother has occupied in the child’s life, given the disregard of that relationship on the part of the father and given the significant disruption of the child’s life on the basis of matters of minimal benefit to the child, I find that it is in the child’s best interests that he return promptly to the care of his mother in Ghana, even if this minimises his relationship with his father.

4. I will make this an order until further order rather than summarily deal with the matter on a final basis.  The ability to test the material brought forward by the parties is limited and there is almost no evidence of this nearly 10 year old’s views.  These are matters that could be dealt with at a final hearing, subject to the question of whether the mother would be able to participate. 

5. I make these orders recognising that there is a risk that further consideration of the matter on a final basis by this court may be frustrated if the mother declines to participate.  Noting the matters that I have already considered, this possible detriment, a failure to consider the case based on the testing of evidence, is outweighed by the benefit to the child of the prompt restoration (now after 10 months) of relationship with his mother, rather than further delaying the question of return until disposition of a final hearing at some point in the future. 

6. The outside boundaries of risk to the child of not benefiting from a final hearing can be assessed by reference to the potential detriments indicated by the father.  At worst this involves obstruction of his relationship by the mother.  I assess that the benefit of a prompt return outweighs the detriment that this risk might not be identified and weighed in a final hearing.

7. Noting the concession made for the father that there is no practical impediment to him complying with the orders that the mother has sought, I will make orders that provide for the return of the child substantially in accordance with those sought by the mother, although with a longer timeframe to cater for any practical difficulties that might be encountered.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 June 2016.

Associate: 

Date:  22 June 2016

69E(1)(c) (1)  Proceedings may be instituted under this Act in relation to a child only if:
(1)(C) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day;