Federal Circuit and Family Court of Australia
(DIVISION 1)
Armin & Kisho [2022] FedCFamC1F 972
File number: MLC 11988 of 2018 Judgment of: CARTER J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – CHILDREN – international relocation – where the mother seeks to relocate to Country B – whether Australian parenting orders can be registered or enforced in Country B – allegations of sexual abuse perpetrated by the father – unacceptable risk considered – allegations of poor mental health and alcohol misuse by both parties – where relocation not permitted – whether orders permitting travel to Country B for holidays are in the best interests of the children – whether the mother presents a flight risk – appropriate amount of surety. Legislation: Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 69ZW
Hague Convention on the Civil Aspects of International Child Abduction 1980 Art. 21
Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232
Beckham & Desprez [2015] FamCAFC 247
Fitzwater & Fitzwater[2019] FamCAFC 251
Godfrey v Sanders [2007] FamCA 102
Heath v Hemming (No 2) [2011] FamCA 749
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
KB & TC [2005] FamCA 458
Keane & Keane [2020] FamCA 99
Line & Line (1997) FLC 92-729
M & M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
H & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4
Oberlin & Infeld [2021] FamCAFC 66
Division: Division 1 First Instance Number of paragraphs: 682 Date of last submission: 16 September 2022 Date of hearing: 27 – 29 April 2022
2 – 5 May 2022
6 – 7 June 2022
19 August 2022Place: Melbourne Counsel for the Applicant: Mr Andrew Combes Solicitor for the Applicant: Rowan Skinner & Associates Lawyers Solicitor for the Respondent: Mr Patrick Mulligan, Mulligan Lawyers Counsel for the Independent Children's Lawyer: Dr Renata Alexander Solicitor for the Independent Children's Lawyer: Macgregor Barrister & Solicitors ORDERS
MLC 11988 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KISHO
Applicant
AND: MR ARMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
8 December 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children X born 2008 (“X”) and Y born 2012 (“Y”) (collectively referred to as “the children”).
X
2.For the balance of 2022, X live with the mother and spend time with the father each alternate weekend from the conclusion of school Friday (or 9.00 am if a non-school day) to the commencement of school Monday (or 9.00 am Tuesday if Monday is a non-school day).
3.Subject to compliance with Order 24 herein, from the commencement of the…
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- Armin & Kisho [2022] FedCFamC1F 972
- Case
- [2022] FedCFamC1F 972
- Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, the case of Armin & Kisho involved a dispute between the mother and father of two children, X and Y, regarding the allocation of parental responsibility and care arrangements. The mother sought to relocate to Country B with the children, while the father opposed this move. The court was required to determine the best interests of the children, including their living arrangements and the amount of time they should spend with each parent. Additionally, if the children remained in Australia, the court had to decide whether the mother should be allowed to travel to Country B with them for holidays and, if so, whether a bond should be imposed and its amount.
The legal issues before the court encompassed several critical aspects. Firstly, the court had to determine the appropriate allocation of parental responsibility between the parties. Secondly, the court had to assess what care arrangements would best serve the children's interests, including their residence, the time they would spend with each parent, and the conditions under which such arrangements would be made. Additionally, if the children remained in Australia, the court needed to decide if the mother should be permitted to travel to Country B with them for holidays and, if so, whether a bond should be required and its amount. These issues were central to ensuring the children's well-being and stability in a contentious parental dispute.
The court meticulously examined the evidence presented by both parties, including expert testimonies and affidavits from psychiatrists, psychologists, and other relevant witnesses. The court considered the tumultuous history of the parents' relationship, the impact of their conflict on the children, and the potential benefits and drawbacks of relocating to Country B. Ultimately, the court determined that the children's best interests would be served by remaining in Australia, with specific conditions on the mother's travel to Country B and the amount of time the children would spend with each parent. The court also noted that no binding notations would be made regarding the proposed orders by the Independent Children's Lawyer, as no submissions were made in relation to those notations.
In conclusion, the court made specific orders regarding the allocation of parental responsibility and the care arrangements for the children. The orders included provisions for the children to remain in Australia, with the mother permitted to travel to Country B with them for holidays under certain conditions, including the imposition of a bond. The court emphasized the importance of ensuring the children's well-being and stability in making its determination.
The legal issues before the court encompassed several critical aspects. Firstly, the court had to determine the appropriate allocation of parental responsibility between the parties. Secondly, the court had to assess what care arrangements would best serve the children's interests, including their residence, the time they would spend with each parent, and the conditions under which such arrangements would be made. Additionally, if the children remained in Australia, the court needed to decide if the mother should be permitted to travel to Country B with them for holidays and, if so, whether a bond should be required and its amount. These issues were central to ensuring the children's well-being and stability in a contentious parental dispute.
The court meticulously examined the evidence presented by both parties, including expert testimonies and affidavits from psychiatrists, psychologists, and other relevant witnesses. The court considered the tumultuous history of the parents' relationship, the impact of their conflict on the children, and the potential benefits and drawbacks of relocating to Country B. Ultimately, the court determined that the children's best interests would be served by remaining in Australia, with specific conditions on the mother's travel to Country B and the amount of time the children would spend with each parent. The court also noted that no binding notations would be made regarding the proposed orders by the Independent Children's Lawyer, as no submissions were made in relation to those notations.
In conclusion, the court made specific orders regarding the allocation of parental responsibility and the care arrangements for the children. The orders included provisions for the children to remain in Australia, with the mother permitted to travel to Country B with them for holidays under certain conditions, including the imposition of a bond. The court emphasized the importance of ensuring the children's well-being and stability in making its determination.
Orders
Orders of the court
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Background
Background to the litigation
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof for facts which are in dispute in these proceedings is to a balance of probabilities. However, as set out later in these reasons, that is “not the measure by which an unacceptable risk of harm is to be assessed” (see Isles & Nelissen [2022] FedCFamC1A 97 (“Isles & Nelissen”) at [47]).Background and Procedural History The mother is 47 years old and lives with the children in the Suburb C area. She was born in the Country B city of City T, where her family continue to reside. As I understand, the mother is a permanent resident in Australia but not an Australian citizen, and has retained her Country B citizenship. The mother has been employed full-time since the end of 2021, following a period of unemployment. Her employer is a Country B company. She anticipates that there will be an opportunity to progress with the company in Country B if she is permitted to relocate. The mother says that whilst she has made some friends through the Country B community in Australia, she feels isolated residing here. The mother has not re-partnered. The father is 55 years old. He lives in the U Town area with his parents. He has been employed as a Manager on and off for a number of different companies over the past twelve plus years. He informed the court that depending on the outcome of these proceedings he would like to secure his own accommodation closer to where the children reside with the mother and nearer to their schools. It was described that he has a close-knit relationship with his family. The father has also not re-partnered. The parties met in Australia in 2003 whilst the mother was here studying. The mother returned to Country B the following year and in 2004 the father moved to live with her in City JJ. They married there in 2005. It is common ground that the parties’ relationship was tumultuous, although each asserts the other party was the cause for the unsettled and unhappy relationship. In 2008 the parties’ first child, X, was born in Country B. The father became unemployed in early 2009, and was unable to secure other employment in Country B. The parties agreed to move to Australia, although it is fair to say the mother was reluctant to do so. It was a condition of her agreement that they would consider returning to Country B in three years. Shortly before the parties were to move to Australia, the mother then reneged on the agreement to relocate, but was convinced to do so by the paternal grandmother. It was further agreed the mother would be able to return frequently to Country B for visits. Events following the parties relocation to Australia The parties relocated to Australia in early 2010 and the mother obtained permanent residency later that year. It is evident that shortly after the parties arrived in Australia there were a number of hostile incidents that occurred between them, often in the presence of the children and at times resulting in one or other of the parties calling the police. The parties each allege that the other perpetrated verbal, physical and financial abuse towards the other. The parties also took to secretly – or obviously – recording the other parent, presumably in an attempt to shore up evidence of the other party’s parenting deficiencies. It is also plain that on a number of occasions either or both parents were alcohol affected. Both say the children were scared of the other parent at various times. No doubt the parental conflict created a stressful and difficult environment for the children.
Evidence
Evidence Before The Court
The significant issues I need to determine are:(a)the allocation of parental responsibility;(b)what care arrangements for the children are in their best interests, including: and (i)whether they live in Country B or remain in Australia, (ii)what time they should spend in their father’s care, and (iii)on what conditions.(c)if the children remain living in Australia;(i)should the mother be permitted to travel to Country B with them for holidays, and (ii)if so, whether the mother should be required to leave a bond in Australia and the amount of any such bond.The evidence The trial commenced in person at the Melbourne Registry on 27 April 2022. It was conducted partly in person, and partly via Microsoft Teams. There were issues with availability of witnesses and counsel, which meant the trial took place over several months. Additionally, shortly after final submissions, X received a preliminary assessment for Autism Spectrum Disorder (“ASD”). This assessment was tendered by agreement, and accompanied by further written submissions from the parties. There were a few technical issues during the course of the trial, but they were readily addressed. I am satisfied that in relation to the parts of the trial that were conducted using Microsoft Teams, I was sufficiently able to hear the evidence to make my determination. In addition to hearing from each of the parties, the court heard evidence from the following witnesses:(a)Dr F (“Dr F”) – the mother’s treating psychiatrist. She relied upon her affidavit filed 18 January 2022;(b)Mr G (“Mr G”) – who prepared psychological reports regarding the mother’s mental health. His affidavit filed 16 February 2022 was relied upon; (c)Mr H (“Mr H”) – the ex-husband of the father’s sister. He relied upon his affidavit filed 18 January 2022;(d)Mr J (“Mr J”) – a Country B lawyer who gave evidence on behalf of the mother as to the ability to have parenting orders made and enforced in Country B, and as to the implementation of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”). His affidavit filed 19 January 2022 was relied upon;(e)Mr K (“Mr K”) – a Country AC lawyer who gave evidence on behalf of the father as to the ability to have parenting orders made and enforced in Country B, and as to the implementation of the Hague Convention. His affidavit filed 28 July 2021 was relied upon;(f)Ms L (“Ms L”) – the paternal grandmother. She relied upon her affidavits filed 3 February 2020, 5 March 2021, 25 January 2022 and 26 April 2022;(g)Mr M (“Mr M”) – the paternal grandfather. His affidavit filed 3 February 2020 was relied upon;(h)Ms N (“Ms N”) – the father’s sister. She relied upon her affidavits filed 5 March 2021 and 25 January 2022;(i)Ms O (“Ms O”) – forensic psychologist, who provided an analysis of the VARE conducted on Y in March 2019. She relied upon her affidavit filed 25 January 2022;(j)Dr Q (“Dr Q”) – X’s previous psychologist. She relied upon her affidavit filed 19 March 2021;(k)Ms P (“Ms P”) – formerly a Family Consultant with the court. She conducted the first Child Inclusive Conference, dated 20 December 2018;(l)Ms R (“Ms R”) – a senior Child Protection practitioner with the Department of Families, Fairness and Housing (“the Department”). She prepared the s 69ZW response dated 22 May 2019, which was relied upon; and(m)Dr S (“Dr S”) – the Family Consultant, who prepared the Family Reports and psychiatric assessments of both parties. His reports relied upon in the proceedings were dated 28 August 2019, 23 September 2019, 23 March 2020 and 30 March 2020.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I note there were notations proposed by the Independent Children’s Lawyer. It is to be remembered that notations are not orders. They are not binding on the parties or the court. There were no submissions made in relation to those notations. I do not propose to make those notations. Registration of orders The parties agreed that if the mother was permitted to relocate to Country B, she should do all necessary acts and things to register the final orders in a Country B Court. I will not be making this order, in circumstances where the mother’s application to relocate has not been granted, and where the evidence before me identified there was no simple mechanism for registering orders in Country B. For all of the foregoing reasons, I make the orders as are set out.