BAILEY & TIME
[2009] FamCA 1009
•28 October 2009
FAMILY COURT OF AUSTRALIA
| BAILEY & TIME | [2009] FamCA 1009 |
| FAMILY LAW – CHILD ABUSE – allegation of physical and sexual abuse – unacceptable risk of abuse – allegation of violence – allegation of alcohol abuse – issues of credit FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time– with whom a child communicates – relocation |
| G & C [2006] FamCA 994 AMS v AIF:AIF v AMS (1999) FLC 92-852 U v U (2002) FLC 93-112 Bolitho and Cohen (2005) FLC 93-244 A v A: A Relocation Case (2000) FLC 93-035 Morgan and Miles [2007] FamCA 1230 Taylor and Barker [2007] FamCA 1246 B and B (1993) FLC 92-357 Johnson and Page [2007] FamCA 1235 M and M (1988) FLC 91-979 McCoy v Wessex [2007] FamCA 489 Briginshaw v Briginshaw (1938) 60 CLR 336 Napier and Hepburn (2006) FLC 93-303 S and R (1999) FLC 92-834 |
| APPLICANT: | Mr Bailey |
| RESPONDENT: | Ms Time |
| FILE NUMBER: | HBC | 967 | of | 2008 |
| DATE DELIVERED: | 28 October 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 21, 22, 23 & 24 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr F Dixon S.C. |
| SOLICITOR FOR THE APPLICANT: | Ms M Leary Abetz Curtis |
| COUNSEL FOR THE RESPONDENT: | Mr D Dura |
| SOLICITOR FOR THE RESPONDENT: | Mr P Antoniou P A Legal |
Orders
All previous parenting Orders in relation to S born … January 2005, be and are discharged.
The child live primarily with the father in Hobart.
The parties have equal shared parental responsibility for the care, welfare and development of the child.
The Father shall have responsibility for decisions about the day to day care of the child while he is in the Father’s care, including but not limited to medical and social needs of the child however shall consult with the Mother prior to making any significant decisions in relation to care, welfare and development of the child including but not limited to decisions relating to the medical and educational needs of the child and the Mother shall have responsibility for decisions about the day to day care of the child while he is in the Mother’s care, including but not limited to medical and social needs of the child however shall consult with the Father prior to making any significant decisions in relation to care, welfare and development of the child including but not limited to decisions relating to the medical and educational needs of the child.
The child shall communicate with the Mother at the following times:-
a.Communication by Web Cam or similar visual technology each Tuesday between 8.00am and 8.15am;
b.Communication by telephone each Thursday between 8am and 8.15am and each Saturday between 9.00am and 9.15am.
c.Communication by Web Cam or similar visual technology or telephone on between 8.00am and 8.15am on:
i.Christmas Day, the child’s birthday, the Father’s birthday and Fathers Day if the child is not spending time with Father; and
ii.Christmas Day, the child’s birthday, the Mother’s birthday and Mothers Day if the child is not spending time with the Mother.
d.Such additional and/or alternate times as agreed, having regard to the child commencing school.
The child shall spend time with the Mother during the school term as follows:-
a.On the second weekend in each four week cycle from 7.00pm Friday to 7.00pm Sunday in Sydney;
b.On the fourth weekend in each four week cycle from the conclusion of school Friday, or 3.00pm, to the commencement of school Monday, or 9.00am, in Hobart (being the city in which the child is ordinarily resident) or as such other times as agreed by the parties including having regard to airline flight availability;
For one half of each school holiday period by agreement between the parties and failing agreement with the Father for the first half of the Christmas 2009/2010 school holidays and the first half in years ending in an odd number and second half in years ending in an even number and with the Mother for the first half in years ending in an even number and the second half in years ending in an odd number;
The child spend time with the Mother at other times as the parties may agree in writing.
The Father shall do all things to ensure that the child is available to communicate with the Mother at the times and days referred to in Order 5 above.
For the purposes of Order 6a above:
a.Until the Child turns 5 years of age, the Father shall deliver the child to the Mother to Hobart Airport at the commencement of the Mother’s time with the child and the Mother shall return the child to the Father at Sydney Airport at the conclusion of her time with the child unless otherwise agreed between the parties in writing;
b.After the Child turns 5 years of age, the Father shall deliver the child to the Mother to Hobart Airport at the commencement of the Mother’s time (or at the mother’s election she will collect the child from school/day care) with the child and the Mother shall return the child to the Father at Sydney Airport at the conclusion of her time with the child unless otherwise agreed between the parties in writing; and
c.That both the Mother and the Father shall provide the other with a copy of the flight itinerary not less than six days prior to the scheduled travel.
For the purposes of Order 6b above, the Mother shall collect the child from the child’s school/day care, or in the event that the child is not attending school/day care on that day from the Father’s home at the commencement of such time and return the child to school/day care, or in the event that the child is not attending school/day care on that day from the Father’s home at the conclusion of such time.
For the purposes of Order 6a above, the Mother and Father shall be solely responsible for their own costs travelling with the child and shall be responsible for the costs associated with the child travelling to meet the other party on each alternate occasion, with the mother to be responsible for the costs of the first occasion upon which the child travel and each alternate occasion thereafter and the Father be responsible for the costs associated with the travel of the child on the second occasion and each alternate occasion thereafter.
For the purposes of Order 6b above, the Mother shall be solely responsible for all costs associated with spending time with the child.
For the purposes of Order 7, the four week cycle provided for in school term in Orders 6a and 6b above, shall be suspended over school holidays and resume on the first weekend that school recommences.
The parties do all things reasonable to promote communication as set out in Order 5 including but not limited to ensuring that the Child is available to communicate at the designated times, by maintaining an internet connection of such speed so as to ensure that the Webcam/Skype communication is working at optimum level and by encouraging the Child to participate and ensuring there are no disruptions or distractions during the communication and or interference by the other parent.
The Father and the Mother correspond by email and for the purposes of this Order the parties are to inform the other and keep the other informed of a current, working e-mail address at all times, excepting
a.in the case of emergency when either client can contact the other by mobile phone; and
b.at the times the Child is collected from the residence of either parent.
At all times the parties will each ensure the other has:
a.a telephone contact number available for the other to speak with the Child while the Child is in the care of the other party;
b.details of where the Child will live when the Child is in the care of the other party; and
c.each party shall keep the other informed of any changes throughout the duration of these Orders.
All communication between the parties occurs in a friendly and co-operative manner.
Neither party is to denigrate the other party or members of the other party’s family to the Child or in the presence of the Child or at all.
Both parties must use their best endeavours to ensure that no person denigrates the other party or members of the other party’s family to the Child or in the presence of the Child or at all.
The Child remains on the Airport Watch List until 20 January 2015 at all points of international arrivals and departures in Australia for the purpose of preventing removal of the Child from Australia in breach of these orders.
Any minor changes to the arrangements anticipated by the Orders be made not less than twenty four (24) hours in advance, by agreement between the parties.
Pursuant to Section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document titled “Parenting Orders – Obligations, Consequences and Who Can Help” to be attached to these Orders.
The parties may vary the above orders by agreement in writing.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Bailey & Time is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 967 of 2008
| MR BAILEY |
Applicant
And
| MS TIME |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
S, now aged 4, was cared for by his loving parents from the time of his birth until late June 2007. Initially he lived with is parents in Tasmania and in the final six months he lived with his mother in Sydney but with his father spending more time than not with him in Sydney.
On 21 June 2007 the child was taken to the United States of America by his mother. He remained in that country until October 2008 when a United States Court ordered his return to Australia (pursuant to the Hague Convention on Abduction of Children). After living in the United States for about sixteen months the child was returned the care of the father. From October 2008 to date the child has lived in Tasmania in his father’s full time care.
The child’s’ mother was unable or unwilling to return to Australia with him in October 2008 but eventually moved back to Sydney where she now lives and where she intends to reside into the future.
After the mother’s return to Sydney in late 2008 she saw the child and made claims, then and later on a number of occasions, that the child has been or is at risk of sexual and/or physical abuse from either the father or his now partner, Ms B.
The competing proposals are clear. The mother wants the child to live with her full time in Sydney and spend significant time with the father in Tasmania during school term and half of the school holidays (such visits to be in the absence of Ms B).
On the other hand the father and Ms B deny any abuse or risk of abuse by them. They claim that the allegations are false and that the mother is indoctrinating the child with these false allegations.
The father claims that the child is at unacceptable risk of abuse by the continuation of these allegations including taking the child to various state agencies on a regular basis.
The father’s position is a mirror image of that proposed by the mother. The father wants the child to live with him in Tasmania and spend unsupervised time with the mother in Sydney. He says that the child should interact with Ms B on an unsupervised basis as he believes that his relationship with her is long term.
In terms of the proceedings the parties are agreed and have tendered a consent order with regard to the form of time that the child spends with the other parent in the event that they are unsuccessful. Their approaches are mirror reverse and sensibly divide the mid times that the child spends with the non-resident parent so that he would only travel once every four weeks but see that parent once every two weeks.
The parties agree that there should be an order for equal shared parental responsibility and having regard to the facts in this case and notwithstanding the somewhat acrimonious history particularly in recent times, I accept their submissions that this approach would be in the best interests of the child.
The issues to be determined are:-
·which of the parties is telling the truth.
·whether Ms B and/or the father sexually and/or physically abused the child or whether there an unacceptable risk to the child that he could be sexually or physically abused by either Ms B or the father in the future;
·whether the mother fabricated the abuse allegations and engaged the child in intense interaction with social scientists, medical professionals, state protection agencies and police and/or whether there an unacceptable risk that such allegations and interaction will occur into the future;
· whether, having determined those issues and having considered the other factors under s60CC (2), (3), (4) and (4)(A) the child should primarily live with the father in Tasmania or with the mother in New South Wales?
At the commencement of the trial there was some debate about the mother returning to the United States on a number of occasions. There seem to be some misunderstanding between the parties. There is no doubt the mother can return to the United States to visit her family when she chooses to do so, and she is not, at this stage, seeking orders or permission to take the child with her.
The mother asserts that irrespective of the outcomes of the proceedings she will live in Sydney, New South Wales and the father asserts that irrespective of the outcome of these proceedings he will remain living in Tasmania.
Any statement of fact is to be regarded as a finding of fact in these reasons.
BACKGROUND
The parties commenced cohabitation some time between September 2003 and September 2004. The parties never married.
Their only child was born in Melbourne in January 2005. He was born prematurely and was cared for in hospital in Melbourne and then in Hobart until May 2005. The parties remained living together in Tasmania until December 2006.
During that time the mother worked in Melbourne and travelled interstate on regular occasions. Both parents were engaged in the care of the child up until December 2006.
In December 2006, by agreement, the mother and child relocated to Sydney and the father remained working in Tasmania but commuted to Sydney on a regular basis. On about 21 June 2007 the mother took the child to the United States of America. The father regarded the relationship as coming to an end at that time or shortly after that time. There is an issue as to whether the mother and child left with the knowledge and consent of the father or in the absence of his knowledge and consent. I will deal with that issue later in these reasons.
The mother commenced living in the United States of America in June 2007 and remained in America with the full time care of the child until about mid October 2008. At that time pursuant to an order made by a Court in America the mother arranged for the child to be returned to Australia (travelling with the mother’s sister) and placed into the care of the father.
The Court in America had asked the Family Court of Australia for a declaration under Article 15 of the Hague Convention. That matter came before me on
30 July 2008 at the request of the Secretary Department of Health and Human Services (Tasmania) and an order was made by me in relation to the removal of the child pursuant to the Family Law (Child Abduction) Convention Regulations 1986.On 18 August 2008 the American Court ordered that the child be returned to Australia. I was told the decision was appealed but the appeal was subsequently withdrawn.
On 9 September 2009 the father filed an application in the Family Court seeking parenting orders in respect of the child.
In her affidavit filed 3 December 2008 the mother complained that she was having difficulties communicating with the child since his return to Tasmania to live with the father. For the reasons set out further I have some concerns about the reliability of the mother’s evidence. I am satisfied that the father did facilitate time between the mother and the child including arrangements for video time on the World Wide Web.
The mother sought interim orders with regard to the child. That application came before the Court on 9 December 2008 and orders were made that the child live with the father and spend time with the mother. Those consent orders provided for web cam communication, that the mother spend time with the child in December 2008 and at other times.
Over the Christmas period the mother alleged that the child made disclosures to her about feeling unsafe and being sexually abused by the father and/or Ms B.
The mother discloses investigations which took place over the Christmas/New Year period.
On 4 January 2009, notwithstanding the serious nature of the alleged disclosures, the mother returned the child to the father’s full time and unsupervised care. She told the father she was going to the United States of America on the changeover day, that was untrue and instead the mother flew to Tasmania and met with the Tasmanian Police.
The mother says that she was concerned about the safety and welfare of the child but felt she had no option but to comply with the court orders and she was also scheduled to return to the United States of America. The mother met the police in Tasmania and on 10 January 2009 left Tasmania to return to the United States. She remained in the United States until her return to Sydney on 26 January 2009.
Over that period of time the police interviewed the father and made other enquiries but took no action against either the father or Ms B. The mother decided to remain in Hobart for a semi-permanent period of time and the mother filed an application, for the child to live with her in Sydney, together with a supporting affidavit.
The father filed material denying the alleged abuse, as did Ms B some time later.
The mother complained that she was not permitted to see the child between
29 January 2009 (when she returned to Hobart) and 20 February 2009. She also complained that the father prevented her from seeing the child. Exhibit F1 gives some objective colour to that complaint.The mother’s solicitor wrote to the father’s solicitor on 29 January 2009 informing him that the mother would be seeking “full custody of the child and will file an amended application shortly”.[1] The same firm of solicitors wrote to the father’s solicitor on 9 February 2009 seeking to put in place arrangements for regular time with the child. Two days later, on 11 February 2009, the father’s solicitors agreed to an arrangement where the mother spent regular time with the child.
[1] Exhibit F1 at page 1.
Agreement was reached by letter dated 16 February 2009 and arrangements were put in place. Bearing in mind the history of this matter, including the mother’s removal of the child from Australia to the United States of America, her criticism of the father for this delay is faceless.
In February 2009 it would appear that orders were not made when the matter was listed before Registrar Weidmann, instead a notation was made which provided:-
the mother spend time with the child in Hobart each alternate weekend from 9.00am on Friday until 6.00pm on Sunday and that this arrangement is to continue until the interim hearing.
The mother had spent regular time with the child from that time onward and also engaged H Organisation in relation to counselling of the child and other steps which I will deal with later in these reasons. I am satisfied that the mother’s complaints in this regard are not soundly based.
On 2 July 2009 the mother collected the child from day care and travelled to Sydney. Whilst in Sydney the mother asserted that the child made a further disclosure to her as to physical abuse of the child by Ms B. The mother took the child to a medical centre in Sydney. On 5 July 2009 the mother contacted the police in Hobart, spoke to somebody at M Organisation and arranged for the child to be examined at the Royal Hobart Hospital.
That evening the mother informed the father that she was not returning the child. The child remained in the mother’s full time care until he was returned to the father in accordance with orders made by me on 13 July 2009. On
11 July 2009 there was an incident at a McDonalds Restaurant in Hobart which I will deal with later in these reasons.As a consequence of the untested but serious allegations made by the mother orders were made preventing the child coming into contact with Ms B between July 2009 and the final hearing.
This matter was heard over four days between 21 September and 24 September 2009.
RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[2] for the child. The section provides as follows:
[2] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s 61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate. In this case there is agreement about parental responsibility and the geographic residence of both parties makes equal or substantial time impracticable.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s 60CC(3).
RELOCATION OF THE RESIDENCE OF THE CHILD TO SYDNEY
Prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006, the general principles to be applied by the court in matters involving the proposed relocation of a child’s residence was established by the High Court, in AMS v AIF:AIF v AMS (1999) FLC 92-852, was that the welfare or best interests of the child remains the paramount consideration but is not the sole consideration for determination by the court. In determining what is in the best interests of the child in a relocation case a court must evaluate the competing proposals of the parties[3], to determine which of them best promotes the overall interests of the children concerned, but is not bound by them: see U v U (2002) FLC 93-112 and Bolitho and Cohen (2005) FLC 93-244.
[3] Gaudron J at 95, Kirby J at 194, Hayne J at 218 in AMS v AIF: AIF v AMS (1999) FLC 92-852, Paskandy v Paskandy (1999) FLC 92-878; A v A: Relocation Case (2000) FLC 93-035.
The court must also have regard to sections 60B, 60CA and 60CC[4] of the Family Law Act 1975 (Cth).
[4] Paskandy v Paskandy (supra).
However, a court cannot require the parent seeking to relocate to demonstrate compelling reasons that the proposed change to the existing situation or the continuation of an existing situation would be in best interest of the child.
The Full Court in A v A: A Relocation Case (2000) FLC 93-035 established a number of steps which needed to be considered and followed by the court in relocation matters. These are:-
(a)a court will identify the relevant competing proposals;
(b)for each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
(c)on the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
In the decision of Morgan and Miles [2007] FamCA 1230, Boland J discussed whether, in light of the Shared Parental Responsibility Amendments (2006), the Act requires different principles to be applied when determining relocation applications. At paragraph 72 of her reasons Her Honour says:-
The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
At paragraphs 80 and 81 Her Honour went onto say:-
80. It follows from my exposition of the legislation, that earlier core principle:
-that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate “compelling” reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
-the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81.What the legislation now requires is:
-consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
-if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
The Full Court in the decision of Taylor and Barker [2007] FamCA 1246 also considered the approach courts should take when determining relocation applications. Their Honours Bryant CJ and Finn J, with whom Faulks DCJ agreed, stated at paragraph 60 that “a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.” The court said, in relocation matters, the legislation gives no guidance as to the “appropriate order” in which to consider the provisions of Part VII of the Act. However, at paragraph 62, their Honours said that the starting point was s 60CC:
However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
Once this had been given consideration the Full Court said it was then necessary to consider, pursuant to s 65DAA, whether it is in the best interests of the child to spend equal time or substantial and significant time with each parent, without regard to the relocation proposal. Their Honours said that the “commonsense construction” of s 65DAA makes it clear it is only necessary to consider if equal or substantial and significant time is “reasonably practicable” if the Court has already concluded it is in the best interests of the child.[5]
[5] At paragraph 74.
Once consideration had been given to these provisions the Court then has to evaluate the differing proposals of the parties and consider whether equal or substantial and significant time would be reasonably practicable if the party is permitted to relocate.[6]
[6] At paragraph 79.
At paragraphs 81,82 and 83 their Honours came to the conclusion that:-
81. … his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
The Full Court in Taylor and Barker (supra) adopted the approach taken by the Federal Magistrate in determining the issue of relocation, which was:-
·Consider and evaluate the factors in s 60CC.
·Consider whether it is the child’s best interests to spend equal or substantial and significant time with each parent pursuant to s 65DAA, without regard to the relocation proposal.
·Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant time”, if either has been found to be in the child’s best interest, and will include a consideration of whether the arrangement is “reasonably practicable” if relocation is permitted.
It would appear that the Full Court has moved away from the previous position in AMS v AIF : AIF v AMS, (supra), and A v A : Relocation Case (supra) since the implementation of the new legislation and that the question of relocation is now not considered as a discrete issue.
In this case the mother has no family in Hobart apart from the father and his family. I find that that relationship is irrevocably broken down.
WITNESSES
The weight that should be attached to the evidence of the parties and their supporting witnesses is a significant feature of this case.
The Father’s Evidence
The father gave evidence in accordance with his affidavits filed 9 September 2008, 5 December 2008, 4 March 2009, 20 April 2009, 6 July 2009 and
7 September 2009.He was not shaken in cross-examination and whilst his evidence was sometimes somewhat self-serving and subjective I am generally satisfied that he was endeavouring to be frank and forthright in his evidence.
Counsel for the mother submitted that the father’s evidence was inconsistent. He raised issues about not being told of complaints and then the evidence of Ms C and Ms J. Whilst evidence is never perfect I do not accept his submission as I am satisfied that the father was endeavouring to be honest. He was upset that serious allegations had been made against him and the first he heard of it was when the police approached him on 7 January 2009. Notwithstanding this the father co-operated in the interview process and arranged for the child to be interviewed.
It was also submitted by counsel for the mother that the father was fixed in his view that the child was not at risk. The father was reluctant to accept that Ms B had abused the child but did make appropriate enquiries when complaints were made. The father had reported to him that complaints were made by the child about being in a cage, the father, appropriately, checked with G Child Care Centre to see if there was anything there to give the child that concern.
Notwithstanding what the father regarded as provocative action by the mother taking the child to the United States of America, the father said, and I accept that he was willing to leave the past behind them and get on with parenting the child in co-operation with the mother and to ensure the mother has a good relationship with both parents.
The Mother’s Evidence
The mother’s evidence on the other hand was problematic.[7] For example when pressed about the tickets to the United States she prevaricated. In the United States proceedings there was an issue as to the child’s paternity. The mother asserted, and I do not accept, that this was simply a tactic by her lawyers for which she took no responsibility. They acted for her and on her instructions. She was aware that paternity was put in issue, yet despite her certain knowledge of the father’s paternity she allowed that false issue to continue and serve her perceived interests.
[7] The mother gave evidence in accordance with her affidavits filed the 2 December 2008, 23 February 2009 and the 2 September 2009.
The mother took no responsibility for isolating the child from his father for sixteen months when she was in the United States. The mother was questioned about why she did not return the child to Tasmania and left that to her sister. The mother says she did not return the child herself to Tasmania because she had work obligations and obligations with her mother’s health. Yet she took between three and five days to move the child from one State to another. There would have then been more time spent with the flights back. I am not satisfied that she is telling the truth in relation to that issue, there was no reason why the mother could not have accompanied the child back to Australia. I am satisfied that she chose not to return to Australia with the child and left the child in the care of her sister. The impact on the child would have been significant bearing in mind she was the primary carer for him for at least the preceding sixteen months.
Some hours after the child and his Aunt departed on the flight to Sydney from the United States in October 2008, the mother informed the father (who was living in Hobart) that the child was on his way to Sydney to be placed in the father’s care. The mother offers no cogent or reasonable explanation as to why adequate notice was not given to the father. The father needed to and did immediately catch a flight to Sydney to collect the child. In this regard the mother was self interested and failed to have adequate regard or the needs of the child and the father was child focused.
The mother’s evidence in relation to travelling to the United States in June 2007 with the father’s knowledge and consent was just not believable. It flew in the face of some emails that passed between the mother and an immigration lawyer in Sydney.
The mother was involved in the preparation of the affidavits of her witnesses Ms J and Ms C. Many of the words used in those affidavits are words one would expect the mother to use, such as “mom/mommy” in lieu of “mum/mummy” or “I am gunna kick your butt” and interestingly paragraph 20, of the affidavit of Ms J sworn 3 September 2009, dealt with teaching the child how to cross the road. The only possible reason for the inclusion of that information in the affidavit sworn 3 September 2009 was in response to some concerns raised by the family consultant in her report released 14 August 2009.
The clause is almost as if the mother is expressing her thoughts through the words of Ms J. The mother’s evidence in relation to the events at McDonalds in July 2009 was of concern and was at times unbelievable. I will deal with that in detail later in these reasons. The mother obfuscated in terms of that evidence.
The mother’s evidence in relation to the alleged abuse of the child was of concern. The family consultant observed in her report released 14 August 2009 the following:-
[the mother] may be instilling fear and lack of confidence in [the child] and she may be motivated in doing so for her own purposes in this dispute rather than by wanting to protect [the child] from abuse.[8]
[8] Paragraph 40 of the Family report dated 14 August 2009.
I share the family consultant’s concerns articulated in that paragraph[9].
[9] Ibid.
At paragraph 37 of the Family Report the family consultant says:-
Abuse of children is not uncommon and, if it is not severe, children will not necessarily show signs of withdrawal from that parent or adult if they are also receiving love and attention from them. When observed with [the father] and Ms [B] [the child] appeared happy and comfortable. He readily approached them to include them in his play and activities and he gave each of them a big hug to say goodbye. Although [the child] has made some statements to his mother and also to the family consultant that indicate he has been mistreated by Ms [B], reports from children as young as four years cannot be considered reliable. This is because their cognitive skills and memory processes are not sufficiently well-developed. Young children are particularly open to influence by the way they are asked questions, and by wanting to please adults. [The child’s] responses to questions asked by the family consultant were indicative of this.
The father alleges that the mother scratched the back of his car after the interview for the Family Report on 31 July 2009.
The family reporter observed the mother crossing the road with the child and said[10]:-
when she [the mother] exited the building at the end of the day of interviews, [the mother] did not sufficiently restrain [the child] crossing the roads.
[10] Ibid at Paragraph 9.
The family consultant observed the mother going to a vehicle parked across from the court building and moving rapidly away. Shortly afterwards the father approached the same vehicle and called the police. The family consultant contacted the police to report what she had observed and the police said the father’s vehicle had been damaged.
The family consultant went on to say:-[11]
[the mother] had not seemed outwardly hostile or angry towards the father, his partner or the interview process during the day.
[11] Ibid.
It is worthwhile discussing this issue at this point. The family consultant in oral evidence said she has seen and asked a question of the mother in the foyer of the court just before the mother left. She observed the mother shortly after the mother had commenced to cross Davey Street, in front of the court, heading towards St David’s Park. Davey Street is one of Hobart’s busiest thoroughfares and there are some five or six lanes to cross.
The family consultant was drawn by the mother not holding the child’s hand and she was concerned for the child’s safety.
The mother said she was taking the child to St David’s Park to play. After crossing the road from the court she was adjacent to St David’s Park and could have entered the park from a gateway facing Davey Street and the Family Court or a gateway at the corner of Davey Street and Salamanca Place. Instead the mother then crossed to the opposite side of Salamanca Place with the child (still not holding the child’s hand).
The family consultant said she thought the mother was approaching her own car and saw the mother bend down near the rear of the car (which subsequently turned out to be the car of the father).
The family consultant was concerned because the child continued down Salamanca Place unsupervised and in proximity to other cars which were parking font or rear to the kerb in that Street. The evidence of the family consultant, which I accept, was that the child was at that time unsupervised by the mother. The mother then retrieved the child and crossed back to the St David’s park side of Salamanca Place.
In reply to the assertions by the father and the evidence of the family consultant, the mother denied scratching the car and said she was taking the child to play in St David’s Park. That does not explain why the mother crossed the road away from St David’s Park and then recrossed that road.
I am satisfied on balance that the mother, in anger, damaged the father’s car by scratching it and was careless in her supervision of the child at that time. In having regard to these findings it is of concern that the mother engaged in this irrational behaviour and was so focused on that task that she did not focus properly on the care of the child whilst crossing a busy road (Davey Street) and the less busy road (Salamanca Place).
As a consequence much of her evidence to be accepted in many areas needs to be supported by some objective material. Her evidence is unreliable.
Evidence of Ms J
Ms J filed two affidavits[12] in these proceedings and was very much in support of the mother. She attended court and was cross-examined by the father’s counsel. She was not an impressive witness. It is clear that her affidavit was at least typed by the mother and, from comments I have made earlier, the substance of it was very much influenced by the mother.
[12] Filed the 21 April 2009 and 3 September 2009.
Ms J was a partisan witness who expressed a view:-
14.I think a child belongs with its mother and [the child’s paternal grandmother] has agreed with me …[13]
[13] Paragraph 14 of the Affidavit Ms J filed 21 April 2009.
Ms J was reluctant to concede that the father cooked meals for herself and her husband from time to time and prevaricated in terms of the cross-examination with regard to the spelling of the word “mom”.
Her evidence of what the child said must be cautiously regarded in terms of her close association and identification with the mother and the mother’s cause and her very fixed views.
Whilst I do not find Ms J would allow any harm to come to the child, I determine that her views are partisan in terms of the mother that great care has to be taken with her evidence in terms of its reliability.
Evidence of Ms C
Similarly the evidence of Ms C, where her affidavit[14] was prepared by the mother and many of the mother’s words were used in there, was also very much in support of the mother. Whilst Ms C was not as partisan in terms of her evidence as Ms J, her evidence was strongly supportive of the mother. The father contacted Ms C and enquired of the accuracy of her affidavit. Counsel for the father asserted, and Ms C denied, that there were significant errors in the affidavit. Ms C admitted that paragraph 8, about the name which Ms B used for the child, was incorrect. She prevaricated in respect of this provision.
[14] Filed the 7 September 2009.
On balance I prefer the evidence of the father to Ms C and I prefer the evidence of the father to Ms J.
Evidence of Mrs Bailey
The child’s paternal grandmother Mrs Bailey gave evidence on affidavit.[15] She was cross-examined. The paternal grandmother disbelieved the allegations raised by the mother with regard to Ms B bearing in mind the history of the complaints raised by the mother.
[15] Filed the 23 April 2009.
She said she did not belittle the mother and gave evidence that, on at least one occasion, the mother was upset with her because the staff could not tell the mother where the father and the child were at that particular time. Whilst Ms Babiley is the child’s paternal grandmother I am satisfied she would act in a protective way with the child, her evidence has not been seriously impeached but should of course be seen on the basis that it is subjective.
Evidence of Ms B
Ms B gave evidence in accordance with her affidavits filed the 23 April 2009 and 10 September 2009. The father is involved in a relationship with Ms B. They have known each other since mid 2008 and until July 2009 she saw the child approximately four times per week.
The child and the father stay overnight at her home and the child has a separate bedroom. She has cared for the child alone on two occasions, once in March 2009 and once in April 2009. The child was in the sole care of Ms B for about two hours. I accept her evidence in that regard.
Ms B denies the allegations made by the mother in relation to her sexual or physical assault of the child. She was an impressive witness who answered difficult questions frankly and directly.
Ms B said, and I accept, that she does not believe the child has ever seen her and the father engage in any sexual activities.
In July 2009, notwithstanding the history of the matter, Ms B endeavoured to reach out to the mother to try and form some sort of working arrangement with her and wanted to meet her. Parts of the text communications between herself and the mother were included in the mother’s affidavit.
The mother was critical of Ms B in relation to that material. On reading the material it was entirely appropriate, although towards the end there was some strong language although none of which was in the presence of the child and none of which causes me concern in the context of what was happening between the parties and in regard to the child. In any event Ms B continued to engage with the mother through her email in early August 2009.
Ms B is an impressive witness and I generally accept her evidence.
THE REMOVAL OF THE CHILD FROM AUSTRALIA IN JUNE 2007
There is a factual issue as to whether the mother removed the child from Australia in 2007 with or without the consent of the father. I do not intend to traverse all of the evidence in relation to this as this has been traversed in the affidavits and in the previous proceedings.
What is clear is that on the evidence of the mother she says she purchased a ticket two weeks in advance and that the father knew she was leaving. Yet this was the same day that the father was in court seeking a licence for his business in Hobart Tasmania and there is nothing in the evidence of the events of that day which show that the mother had notified the father that she was leaving.
When the mother left to go overseas she removed $3,000 from the parties account and did not tell the father. The mother was vague in relation to how she paid for the tickets to go to the United States and at one stage she said in some of her material that they were “standby” tickets but in evidence she said they were purchased two weeks in advance.
In 2007 the father had an Australian visa problem which he needed to overcome. He had lived in Australia most of his life but had been born elsewhere. He was endeavouring to obtain a visa on one of two grounds, firstly that he was married to the mother (who had Australian citizenship or residence) and secondly that he had lived in Australia almost all of his life.
The mother and father both knew that if the father departed Australia without resolving his visa difficulties it was unlikely that he would be allowed to return to Australia. This being the country of his primary residence and where his business is established. The mother’s evidence in relation to this issue was troublesome.
The father tendered some emails between the mother and the immigration lawyer[16] in which she said the following:-
I left Sydney safely with my son on June 21st on our AU - passports, no hostile conditions prior to leaving as you suggested …
I have inside/friend resources in Hobart where [the father’s] (ex partner) has now returned to be with his mom in their small family […] business. I’m informed that they have been to see a local solicitor to find out where they stand with my departure.
I am told that they are looking to try to get an order to get [the child] back (and me – not that they care).
My question to you is: where do I stand? Do I just wait for some form of contact from them, their solicitor, the authorities, the Fed Police?? When do I inform them that I have legal representation from you? What procedure is implemented to get an order for [the child] back and if so how long does it take at a minimum?
[16] Exhibit F6.
This must be seen in the context of the mother’s evidence that she considered that the relationship was on foot until October 2007 (this email being sent in July 2007) and that she had left Australia with the consent of the father.
The mother relied upon an email she tendered[17] of which I have significant reservations.
[17] Exhibit M2.
The second email between the mother and her immigration attorney was
16 July 2009 where is says:-[18]Here is the email from [the father’s] immigration attorney (different from his Hobart attorney to get an order for me to return) [the father] was going to apply for his AU residency using the spouse application – but not anymore as I won’t support him, obviously. He is seeking to try to get his British passport now to get out of AU – but may not be able to ever return 9?9 (sic)
[18] Exhibit F6 page 2.
At some levels the mother resiled from this evidence, however I accept the emails to be accurate communications as between the mother and her then solicitor. Her later evidence given during the hearing is self serving and unreliable.
The father’s evidence was there were three telephone calls and a text message in which there was no indication the mother was leaving Australia which is peculiar in the circumstances that the father would have known. There would have been a goodbye or some other factor to that. It is consistent with the mother leaving without the father’s knowledge or consent.
The mother intends to live close to the child’s school and has made enquiries and has lodged an application for enrolment of the child at a Christian School.
The mother has the support of family friends that the child is familiar with.
Factors against relocation to Sydney
Counsel for the father asserts the child will “suffer significant upheaval if he is required to relocate to Sydney away from the father and his extended family and would be contrary to s60CA”.[31]
[31] Page 7 of the Father’s Case Outline filed the 17 September 2009.
The child will need to change child care again and will be separated from his friends at G Child Care.
The mother does not have any family in Australia except for a sister who is based in Sydney.
I have weighed the advantages and disadvantages of the child remaining in Hobart or relocating to Sydney. I am satisfied that if the child remains in Hobart he will be in a comfortable secure and stable environment with his father and his extended family. This is not available in Sydney.
I am not satisfied that there is a need to protect the child from physical or psychological harm or being exposed to abuse, neglect and family violence in the care of the father and/or his partner Ms B. I have some concerns about the mother’s allegations and the mother’s use of those allegations.
The father has strong family connections in Tasmania in terms of his mother, his broader family and Ms B. The mother’s family contacts in Sydney primarily amount to her sister although she asserts that she has a broad group of friends. I have some concerns about her evidence in that regard.
In the care of the father the child spends a lot of time in child care although this is reduced this year with the father giving up work on Mondays. The child was in child care five days per week until end of February 2009 and in child care four days a week until June 2009 and three days per week since that time. This child care is from 9.00am until 5.00pm. Whilst not a perfect arrangement it is adequate bearing in mind the needs of the father to work.
The mother proposes that if the child is in her care she would be able to collect the child five days per week after school. That is a slightly better arrangement although weighing it up against all the others it is not a determinative issue.
The mother asserted the father is not open to allegations in respect of Ms B. I do not accept that submission. The father denies those allegations but has considered them in the light of what has happened in the past. There is no evidence apart from that asserted by the mother and her partisan witnesses.
The father endeavoured to engage Ms C and Ms J and at some levels Ms C retracted in her discussions with the father and then gave evidence which is set out earlier in these reasons.
The father asserts that the mother is putting words into the child’s mouth. There seems to be some basis for that although I make no formal finding at this stage but I have a concern that that is what is happening.
The father was criticised by the mother for seeking information about her from her former husband. There was correspondence between the father and the mother’s former husband trying to get some information in relation to the mother. The letters were not unreasonable in the circumstances of what was going on in these proceedings. The father was not “out to get dirt” but to find more information about the mother.
The father asserted that the mother may suffer from a bipolar disorder. In this he relied upon the mother’s complaints that she is sometimes “hyper” and takes medication. It is unfortunate that the nature of proceedings often involve parties trying to get information from the other party in terms of their behaviour. There is no evidence that the mother is bipolar and that the mother suffers any diagnosed mental health issue. I make no finding in that regard.
At one stage the mother said the child complained about being in a cage. The father responded appropriately saying that he did not have a cage but made enquiries of the child care centre. His response was child centred and inquisitive.
In these proceedings initially it seemed that the mother wanted permission to take the child to the United States. In opening it became clear that this order was not sought. Had an order been sought in that regard I would have been reluctant to grant it having regard to the concerns I have about the mother and her frankness and the likelihood that she would not return the child to Tasmania without further Hague convention proceedings.
In terms of the father’s involvement with the child prior to the child’s wrongful removal of the child to the United States in June 2007 I accept the father’s evidence that he spent 132 days in Sydney with the child out of a possible 186 days. I prefer the father’s evidence that he endeavoured to keep in contact with the child over the time the child was away.
The father managed to continue to communicate with the child after 2007 despite difficulties which the mother placed in his way. I am satisfied that the father has facilitated the engagement of the mother with the child since the child has returned.
When the mother was away prior to June 2007 the father looked after the child. This also included when the mother went up to Queensland with her brother for five days shortly before her departure to the United States in late June 2007.
I am satisfied the mother will be able to find employment in Sydney and will be able to meet the financial needs of the child whilst in her care.
The mother complained about the child going to G Child Care including picking up the child with wet pants. This is not evident from the exchanges of email between the mother and G Child Care.[32]
[32] Exhibit F4 & Exhibit F5.
It is interesting to note that the mother declined to meet Ms B which is, at some levels at odds with her earlier evidence although that may be a matter of her interpretation.
FAMILY REPORT
Some examples of the mother’s priming of the child are set out in paragraph 18 of the Family Report. One of the examples provided by the family consultant in that paragraph included when he came back to say “oh you were a brave boy”.[33] This caused concerned to the family consultant as it did to me.
[33] Paragraph 18 of the Family Report dated the 14 August 2009.
There was no issue as to the qualifications of the family consultant and I am satisfied her recollections are accurate.
The family consultant observed the child reacts to leads from the mother. The family consultant, at paragraph 32 of her report says, and I accept that “the child responses cannot be relied upon as an indicator of his views of what or what has not occurred”. She sets out reasons for that a little later in the report.
CONCLUSION
Over the last three years the child has had a difficult life. Up to that time he was settled in Tasmania with his two loving parents, he attended a pre-school with staff and children with whom he was familiar and engaged with his extended family.
In December 2006 his parents decided to move to Sydney and a new environment. The child was moved from his pre-school to a pre-school in Sydney and lived in accommodation with his mother. His father travelled to Sydney on very regular occasions over that six month period in excess of 140 times.
Counsel for the mother submitted that the parties had agreed to live in Sydney in 2006 and that all that was being put in place was those arrangements.
What that submission fails to acknowledge is that the parties have since separated. The father has resumed his life in Tasmania and the child has been living primarily in Tasmania for almost one year.
In June of 2007 the child was left in the care of the father whilst the mother and her brother travelled to Queensland for a number of days.
Then on the 21 June 2007 the child was relocated to the United States of America by the mother without so much as a goodbye to his much loved father. He did not seek his father for about sixteen months. There was some electronic communication but this was of a limited nature.
Following Hague proceedings in the United States of America the child’s mother sent him back to Australia in the company of her sister. He was, at that time, removed from his primary carer and placed into the full time care of his father. Prior to that move the mother said he had a settled life in the United States.
On the child’s return to Australia in October 2008 he met the father’s now partner Ms B and formed a close relationship with her. He was re-enrolled in his old pre-school and re-introduced to his father’s family and the community in that rural town.
In late 2008 and early 2009 he was re-united with his mother when she spent time with him. As a result of disclosures allegedly made to him by the mother he was subjected to intense scrutiny by medical practitioners, social scientists and police. From the evidence it appears that he was, from time to time, inappropriately questioned by the mother and/or her friends Ms C and Ms J. It was alleged that the child had been emotionally, sexually and physically abused.
I have grave concerns about the veracity of those alleged disclosures by the mother and her witnesses. The allegations were raised again in March/April 2009 and in June/July 2009 with attempted medical, social science and police intervention. I have similar concerns about the veracity of those allegations.
The mother unilaterally removed the child from the father’s care in July 2009. The mother claimed that the child had been physically abused by Ms B.
A visit was arranged for the child to see his father at McDonalds Restaurant near Hobart. The mother falsely claimed that the father was endeavouring to abduct the child during his two hour visit at McDonalds on that day. As a consequence the mother blocked the father’s car and called the police. The child experienced the trauma of a number of policeman arriving and the father being interviewed by the police.
I am satisfied the mother escalated those events beyond that which the circumstances would have given rise to.
The issues for me to determine is whether it is in the child’s best interests, taking into account all of the surrounding circumstances, to move again to a different principal carer, a different school and a different environment and a different state.
It is not the relevant schools or the ability to meet the practical needs of the child, it is the broader issues which I have discussed elsewhere in these reasons which are the significant features in this case which leave me to conclude that the child should reside primarily with the father in Tasmania.
Having regard to all of the relevant factors under s60CC of the Act and having regard to the findings I have made during the course of these reasons I am satisfied that the child should live primarily with his father in Tasmania. The child is likely to have a relationship with both of his parents if left in his father’s care than if placed in his mother’s full time care. There is no unacceptable risk of abuse or violence to the child in his father’s care but there is a risk of ongoing complaint and unnecessary investigation in the care of the mother. Littered through these reasons are comments on the quality of the mother’s evidence and examples of her poor parenting choices. There has been no serious impeachment of the father’s approach to parenting, in fact the mother was content to leave the child in his care when the child was returned to Australia, this in circumstances where it was open to her to return to Sydney in October 2008 and continue at that point as the child’s primary carer.
This child needs stability and I am satisfied that this can be better achieved with the child left in the primary care of the father rather than the mother.
Accordingly I make the orders as set out at the commencement of these reasons.
____________________________________________________________________
I certify that the preceding 270 are a true copy of the reasons for judgment of the Honourable Justice Robert Benjamin
Associate:
Date: 28 October 2009
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