BANKS & BANKS

[2015] FamCA 66

FAMILY COURT OF AUSTRALIA

BANKS & BANKS [2015] FamCA 66

FAMILY LAW – CHILDREN – Interlocutory Application – where the father sought the return of the child who was living in Thailand with the mother and maternal grandmother – where the mother had returned to Australia without the child and was now restrained from returning to Thailand by an interim court order – child’s views to be ascertained – family report ordered – where the mother is to cause the child to be brought from Thailand to Australia.

FAMILY LAW – CHILDREN – Interlocutory Application – best interests – parental responsibility – where the child has meaningful relationships with both parents and both parents have the capacity to meet the needs of the child – parties to have equal shared parental responsibility – child to live with the mother in Australia – child to spend time with the father each weekend after two initial introductory periods.   

Family Law Act 1975 (Cth), ss 60CC, 62B, 65DA

Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422

APPLICANT: Mr Banks

RESPONDENT: Ms Banks

FILE NUMBER: SYC 7678 of 2014

DATE DELIVERED: 23 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 23 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Christopher Mackay Lawyer

SOLICITOR FOR THE RESPONDENT: VCD Lawyers

Orders

1. That the Orders of the Local Court … made 27 July 2010 and issued on 9 August 2010 are discharged.

2. That Orders 2-8 inclusive made in the Federal Circuit Court on

   
   

   12 December 2014 are discharged.

(3.1)That the mother cause the child L born … 2010 (“the child”) to be brought from Thailand to Australia no later than 20 February 2015 and in the event that the mother is unable to arrange for and nominate a person to bring the child to Australia, then the father may arrange and pay for an airline nanny to accompany the child to Australia.

(3.2)That the father pay the return airfare of the person bringing the child to Australia and the child’s airfare to Australia economy class.

(3.3)That the mother shall notify the father of the name of the person bringing the child to Australia or her inability to arrange such a person and the date of preferred departure, such notice to be given within 7 days of the date of these Orders.

(3.4)That the father notify the mother of the proposed travel arrangements no later than 7 days prior to the date of departure.

(3.5)That the mother do all necessary things and give all necessary directions to ensure that the adult travelling with the child brings with him or her the child’s passport, his Australian nationality papers (at least three pages) and the birth certificate for the child.

(3.6)That the mother deliver the documents referred to in order 3.5 herein to the father when the child arrives in Australia and the father in turn shall deliver those documents to his solicitor, to be held by him pending written agreement of the parties otherwise or further order of the court.

(3.7)That the father and, if wished, his parents, attend at the airport to meet the child from Thailand and the mother to facilitate the reunification of the child, father and paternal grandparents on that day.

1. That the father shall within 7 days pay to the mother directly or to her solicitor the sum of $2,000 to enable her to establish suitable accommodation for the child with her in Australia.

2. That a copy of these Orders and Ex Tempore Reasons for judgment be forwarded by a Registrar of this Court to the Registrar of the Central Authority of Australia for the Hague Convention.

IT IS ORDERED PENDING FURTHER ORDER

1. That the parties have equal shared parental responsibility for the child.

2. That the child live with the mother in Australia.

3. That the child spend time and communicate with the father as agreed between the parties, but failing agreement as follows:

   (a)For 2 periods of time from 10.00 am to 2.00 pm on non-consecutive days during the first week that the child is in Australia; and thereafter

   (b)Each weekend from Friday at 4.00 pm to Sunday at 5.00 pm commencing the first Friday in March 2015.

4. That the father may arrange an appointment for the child with Dr A or any alternate paediatrician and shall consult the mother in advance as to a convenient date and time for an appointment to enable the mother to bring the child to the appointment and participate if she wishes in the consultation.

IT IS ORDERED BY CONSENT

1. That each party is to do all acts and things necessary to ensure the renewal of the child’s Australian passport.

IT IS DIRECTED

1. That the parties, the child, the paternal grandparents (and the maternal grandparents in person or by phone from Thailand) attend an interview for a Family Report on 21 May 2015 NOTING THAT a Thai interpreter will be required for some or all of the maternal family including, possibly, the child.

2. That the proceedings are adjourned for mention to 21 July 2015 at 9.30 am in the Sydney Registry.

3. That on the adjourned date consideration will be given to the appointment of an Independent Children’s Lawyer to represent the interests of the child.

4. That the date of 13 April 2015 be vacated.

5. That pursuant to s 65DA(2) and s 62B of the Family Law Act 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Banks 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 SYDNEY

FILE NUMBER: SYC 7678 of 2014

Mr Banks

Applicant

And

Ms Banks

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. In this matter, the Applicant is the father, aged 38.  The father is an Australian citizen and lives in Australia. 

2. The Respondent is the mother, aged 35.  The mother is a Thai citizen.  She presently works in Australia, but was living in Thailand until November 2014.

3. The parties have one child, who will be five in early 2015.  The child has dual citizenship, Thai and Australian.  He presently lives in Thailand with his maternal grandmother, the mother having recently returned to Australia for work purposes. 

Short History of Relevant Events

1. The parties met in Australia six years ago, early in 2009. 

2. The mother was working at an adult entertainment venue on the Northern Beaches of Sydney.  She met the father there.

3. After the first meeting, the parties began a personal relationship.

4. Two weeks later the mother accepted the invitation of the father to live with him in the home of his parents, also on the Northern Beaches. 

5. The mother then began working at a venue in Eastern Sydney.  She says she did so reluctantly, at the insistence of the father, “The money is too good to give up right now.  We need the money”.[1]

   [1] Mother’s Affidavit filed 09/01/2015, par 7

6. The father says it was by the mother’s own choice, so she could “…send money to her family”.[2]  I can, in these interim proceedings on untested evidence, make no findings, of course, on matters in dispute.

   [2] Father’s Affidavit filed 21/01/2015, par 37

7. After two months the mother learned she was pregnant with the parties’ child. 

8. In mid 2009 the parties married. 

9. On 21 July 2009 the mother registered her family status in Thailand.[3] She asserts that it was her belief at that time that the parties would thereafter live in Thailand. 

   [3] Mother’s Affidavit filed 09/01/2015, Annexure A

10. In September 2009 the parties travelled to Thailand and commenced living with the mother’s parents.

11. The mother was by then about five months pregnant.

12. The father asserts that it was, to use his words, not his understanding that they would stay in Thailand.  Rather, he was acceding to the wish of the mother to be with her family when the child was born.

13. Early in 2010 the parties’ only child was born.  His birth was registered in Thailand and subsequently in Australia. 

14. In April 2010 the mother was granted a temporary visa for three years to live in Australia.  She asserts, and the father denies, that the parties planned to earn and save money in Australia before returning to live permanently in Thailand.

15. After about eight months in Thailand, in May 2010, the parties and the child travelled to Australia, returning to live with the father’s parents.

16. On their return to Australia the mother again began working at a venue in East Sydney, and again she says this was at the insistence of the father, and contrary to her own wish to “take care of [the child] while you work.”[4]

    [4] Mother’s Affidavit filed 09/01/2015, par 16.

17. The mother asserts that the father said he would stay home and take care of the child while she worked; that the money she earned was too good to give up and that when they saved enough money they would return to live in Thailand and he would open a shop.

18. If the father was working in the period after the return to Australia, there is no reference to it in his affidavits.

19. Probably, the mother was supporting the parties and the child from her earnings at this time.  They were also both being supported, effectively, by the paternal grandparents, with the provision of a home.

20. On 29 June 2010 the parties had an argument.

21. The parties do not agree about the reasons and circumstances of this incident.  There were however, significant consequences in terms of this litigation. 

22. The father asserts that he asked the mother to stop working at the adult entertainment venue, and she responded that she would not, that they needed money, that he, the father, needed to get a job, and that they should send the child back to Thailand to be looked after by the maternal grandmother.

23. The father asserts that when the mother said these things to him, he expressed his disagreement generally and, in particular, that the child was to stay in Australia. 

24. He says he saw the mother pick up her passport and the child’s passport, and walk to the front door, the mother allegedly saying, “If you don’t want me and [the child] and me to die, you stay here and talk to me.”

25. The father asked the paternal grandfather to ring the police on the basis that the mother was going to “harm the baby”.[5]  The police came to the home and spoke to the parties. 

    [5] Father’s Affidavit filed 21/01/2015, par 5

26. Later that day the father says the mother asked him to drive her to work and, at her insistence and over his opposition, he did so. 

27. The mother disagrees.  She asserts that she was forced to leave the home by the father, and was not allowed back; that she lived at her workplace for four weeks through the good grace of the owner. 

28. The child remained in the home of the paternal grandparents.  He was, at that time, four months old, and had not previously lived apart from the mother.  It seems unlikely that the mother chose to be separated from him in that way. 

29. Six days later, on 5 July 2010, the father filed an Application for Parenting Orders in the Local Court, including a watch list order for the child.

30. The application and affidavit in support are not available to this Court, although they may be in a final hearing.

31. On 27 July 2010 Orders were made in the Local Court.  Those Orders issued on 9 August 2010.  The Orders were, in summary, that the child live with the father in the home of the paternal grandparents; that the child spend time and communicate with the mother as agreed between the parties; and that there be restraints on both parents from removing the child from Australia, with inclusion on the airport watch list. 

32. In either late July or early August 2010 the mother returned to live with the father. 

33. The father says the mother told him she had been assaulted at work, that she asked to be forgiven, promised to be a good wife, and asked to return to live with the father and the child. 

34. The mother denies this version of events.  She says she asked to return after the court orders had been made; that the father initially refused, but later, in about August, begged her to return.

35. In any event, the mother did return to live in the home of the paternal grandparents on a date between late July and sometime in August 2010.

36. The Orders that were made on 8 August 2010 were superseded by this reconciliation, but have not been discharged.  They will be now. 

37. For the next three years, until May 2013, the parties lived together, the mother staying at home to care for the child, the father working full-time in food production.

38. The mother is somewhat critical of the paternal family, especially in relation to alleged abuse of alcohol by the father and the paternal grandfather; what she perceived as a cavalier attitude to spending money, not saving; and to threats by the father to kill himself, which raised concerns in the mother’s mind about his mental health.

39. However, the three year period was apparently uneventful in terms of third party interventions. 

40. In May 2013 the parties and the child travelled to Thailand to visit the maternal family.  Return tickets were purchased for 28 May 2013. 

41. The mother was unable to travel at that time, she says due to passport and visa difficulties. 

42. The mother says, and the father totally denies, there was a conversation between them in which the father told her to stay in Thailand with the child; that he would return to Australia, work and save money to open a business in Thailand, and that it was his intention to be back to Thailand by the child’s fourth birthday in early 2014.[6]

    [6] Mother’s Affidavit filed 09/01/2015, par 30

43. The father asserts that he returned to Australia as planned at the end of

    
    

    May 2013, expecting the mother and the child to follow soon after.

44. Effectively, he says, she fobbed him off until July 2013, when she announced that she and the child would be remaining in Thailand.  No finding can be made about these circumstances.  No doubt, this conflicting version of events will be tested in final hearing.

45. On 5 September 2013 the father signed an application for the return of the child in accordance with the Hague Convention, to which Australia and Thailand are signatories.

46. In the following days, the father concedes there was conversation between the parties on Facebook about the parties acquiring a business in Thailand.  That was on 8 September 2013.

47. There is no reference that I could see to the father having told the mother that he had made the Hague Application three days prior.

48. A decision was taken by the father to go into that business. 

49. A commitment was made by the father to travel to Thailand on the following day, by a conversation had between the parties on 16 September 2013, which he did not do. 

50. A statement by the father was made in November 2013 that he would start looking for flights. 

51. The position changed in the correspondence on Facebook between the parties on 20 November 2013.  The father then asked the mother to come out with the child and live with him in Western Sydney.

52. There was ongoing discussion about that possibility, with the mother expressing some fear about trusting the proposal.

53. A decision by the mother to move back to Australia after the father had implemented finding a house for them in Suburb P was apparently made. 

54. On 23 December 2013 the father committed himself to buying a ticket for the mother and the child to travel on 16 January 2014 to Australia.  However, on

    
    

    13 January 2014 he said it would be two more weeks.[7]

    [7] Mother’s Affidavit filed 09/01/2015, Annexure M.

55. On 28 January 2014, shortly after after the child’s fourth birthday, the mother sent a message to say that she suspected that the parties would not live together, that the father was always welcome to see the child if he wanted to, that she needed money and that she was looking after the child alone, and was unable to work.

56. None of these matters were included in the affidavit of the father filed in the Federal Circuit Court on 8 December 2014.  They only came in response to the evidence filed by the mother. 

57. In April 2014 the father, in correspondence again by Facebook between the parties, said he was coming for a holiday to see the child, and there was some discussion about a school for him.

58. On 29 April 2014 the father communicated to the mother that he wanted a divorce.

59. The next relevant event was that the mother travelled to Australia in May 2014 for four weeks.  She did not make contact with the father.  She travelled again in June 2014 and remained until August 2014, again not making contact.

60. In November 2014 the mother travelled to Australia and has remained here since.  She is working in Town W and sending money back to the maternal grandmother for the care of the child. 

61. On 24 November 2014 she advised the father that she was in Australia. 

62. On 8 December 2014 the father filed an Application in the Federal Circuit Court relying on the Orders made in the Local Court in 2010.

63. The Application seeks the following: 

    (1)       The delivery of the child by the mother to the father; and

    (2)      A restraint on the mother leaving Australia.

64. The matter was dealt with urgently on 9 December 2014, the day after the application was filed,  although, it has to be said that if all of the evidence now before the court had been available then, it may not have been dealt with quite such a level of urgency.

65. The father was granted leave to proceed ex parte.

66. In her absence from the court, the mother was restrained from leaving Australia and her name was included in the PACE Alert System. 

67. The mother was directed to attend at court three days later, under threat of warrant for her arrest.

68. On 12 December 2014 the mother was at court with the assistance of a duty solicitor, and I am advised by the solicitor for the father, an interpreter to assist her. 

69. The matter was once again adjourned, to 22 December 2014.

70. Orders, which do not appear to be consent orders, were made on

    
    

    12 December 2014, which included an order that the mother cause the child to be brought from Thailand to Australia within eight days.  Travel details were to be advised by the father, who was ordered to pay the costs of the airfares. 

71. The mother was also directed to attend at the airport to facilitate the reunification of the child, father and paternal grandparents.

72. There was no provision for evidence to be filed by the mother when those orders were made on 12 December 2014.  That was done when the matter came back before the court on 22 December 2014. 

73. On that day, the Judge noted that the mother had not complied with the order to have the child brought to Australia.

74. The orders had included a reference to the mother’s belief that her sister would be able to bring the child out to Australia.  That proved not to be the case.  There must also have been information raised or inquired about by the Judge of the mother’s financial circumstance because specific reference was made to the father filing evidence of any child support payments made since May 2013.

75. On 22 December 2014 the matter was transferred to this Court for interim hearing.

76. The mother gives evidence of events since May 2013 in her affidavit, some of which have been outlined in these reasons.  The evidence of the father regarding financial support for the child is contained in paragraph 79 of his affidavit filed 21 January 2015.  And in particular he says this:

    It is true that I have not sent money to Thailand since June 2013.  Originally I was of the belief that [the mother], [the child] and I would be reunited[.]  I thought she was coming to Sydney with [the child] throughout the months following May 2013 until 23 February 2014 when I came to the conclusion that despite what she had previously said to me, [the mother] had no intention of coming to Australia with [the child].  Thereafter, though I see that I should have sent funds to Thailand for [the child], I hoped that the Hague Convention proceedings which I had put in train would result in [the child] coming to Australia quickly and it was because I hoped that this was going to happen that I did not send funds over to Thailand.  I (and members of my family) have sent Christmas presents for [the child] in 2013.

1. Despite the father’s reference to the fact that at the time of swearing the affidavit, he now realised that he should have provided support for the child, there has still been no financial support provided by the father. 

The Law

1. In a situation like this, it is submitted quite correctly that the court is obliged to follow the path outlined in the decision of Goode v Goode (2006) FLC 93-286. The first consideration is that the court is now being asked to make parenting orders about a child. Each of the parents of a child who is not 18 years of age has parental responsibility for that child.

2. When a court is asked to make a parenting order, there is a presumption of equal shared parental responsibility.  I do not consider that that presumption has been rebutted in this case.  It has to be said that the child has lived for significant periods in both Australia and Thailand, probably more so in Australia.  Each of his parents have been involved in his care, although the maternal grandmother is presently providing care for the child, to some extent because the mother is restrained by order from returning to Thailand herself, but also because she is working.

3. There are no events – despite the strain between the parties – which I consider disqualify either of them from continuing to be responsible for the child.  Each of them, clearly, is keenly interested in his welfare. 

4. There is then a presumption to be considered as to whether or not there should be equal shared time between the parents.  That is not a realistic proposition in this case where, unfortunately, it is now approximately 18 months, or a little longer, since the child saw the father in person.  He has no doubt been increasingly using the Thai language, and it may or not have become his first language.  He has spent that time in the home of the maternal grandmother and with the maternal family.  He has been unsupported by the father.  That has fallen on the mother and, to an extent, on the maternal grandparents. 

5. It is important that the relationship between the child and the father be restored, but it would be traumatic for a child in those circumstances – particularly in a child with a preliminary diagnosis of autism – to simply be delivered to the father.

Primary Considerations

1. The court is required to consider the matters set out in s 60CC of the

   
   Family Law Act 1975

   (Cth) (“the Act”) in deciding what is in the child’s best interests.  The primary considerations are the benefit to the child of having a meaningful relationship with both parents.  That is of utmost concern here.  There is also a need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  That consideration, which takes priority, is not relevant here.

2. The child has been subject to the waxing and waning of the parents’ relationship and their attitude to each other, but he has been well cared for by each of the parents and substantially by the grandparents on both sides of his family.  At around five years old, the child is – and particularly given that there are some restrictions on his behaviour and, perhaps, cognitive ability – unable to express a view at this time about his circumstances.  His most important relationship is probably with the mother who has provided his care all of his life, with significant assistance from the father during the period they lived in Australia, and from both sets of grandparents in each respective country.

3. There is very little information about others who are significant in the life of the child in Thailand, to know whether there are important relationships to be taken into account. 

Additional Considerations

Section 60CC(3)(c)  – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, to spend time with the child; and to communicate with the child

1. At the moment the child is not living with either of the parents.  He has been used to living with the mother, other than periods of absence in May 2014, June to August 2014 and now November 2014 to January 2015.  This may well be having an adverse emotional impact on him.  I am unable to determine that without evidence.

2. The child has not had the opportunity to see the father for more than 18 months.  The father has, at times in that period, suggested that he would travel to Thailand either to visit the child or to live with the mother and work in that country, but that has not happened. 

3. The father is in employment and it has to be said that he had the opportunity before the relationship broke down, in the view of both parties, to visit the child in Thailand.  It should also be said that the mother could have brought the child to Australia but the fact that she has no financial input from the father has some significance there.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father has failed in his obligation to maintain the child. 

2. The mother has taken that obligation on herself with the assistance of the maternal grandparents, at the cost of the child not living with the mother.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of their parents, or any other child or other person with whom the child has been living

1. I have already touched on the fact that it would be traumatic for the child simply to be transferred from one country to another and into the care of the father and paternal grandparents, who he has not seen since he was three and a half years old.  However, that is not to say that they do not love him and would not be willing to care for him, and attempt to address his distress.

2. The child is also likely to be affected by being removed from the care of the maternal grandmother whom he has been used to living with. 

Section 60CC(3)(e)  – the practical difficulty and expense of a child spending time with and communicating with a parent

1. The child lived with both the parents in an intact family until May 2013.  That he was living in Thailand was a significant change for him, although he was with family. 

2. There has been Skype contact between himself and the father and gifts have been forwarded, but he has not seen the father face to face or the paternal grandparents for all of that time.  It must have the effect of diminishing the significance of the relationship between them if it is allowed to go on. 

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. At this stage, there is evidence of both parents having the capacity to meet the needs of the child when they were living together as a family, although, at all times there have been grandparents in whichever household they have lived.

2. There is no direct evidence of the care now being provided by the maternal family, but both parents have lived in the home of the maternal grandparents in the past and the father was a visitor there in May 2013.  No complaint is raised about the capacity of the maternal family. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The parents have very different backgrounds.  The mother, from Thailand, earns money from her occupation in an adult entertainment industry which, on her own evidence, she does not enjoy, but is lucrative and provides for the child and, to some extent, assists her wider family. 

2. The father is Australian.  He has qualifications in food production.  He is presently choosing to be employed as a painter.  He has the financial benefit of living in the paternal grandparents’ home if he wishes to do so, although he sometimes shares with a friend in the Western suburbs of Sydney. 

3. The child himself is both Australian and Thai; a boy of five years, already attending some education with a preliminary diagnosis of autism which is of considerable significance for his future wellbeing, education and welfare.  There should be an assessment and perhaps an inquiry from an Australian paediatrician with the Thai paediatrician or some exchange of information to assist in the assessment and recommendations which will need to be made.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Both parents love the child and had each hoped to make a life together in their respective home countries.  That has proved to be impossible.  The mother is supporting the child but is absent from his life presently.  The father is not supporting the child, although he would be willing to do so if the child lived with him.

Conclusion

1. In this preliminary hearing, where events have been dramatic in terms of urgent orders being made and the mother now restrained from returning to Thailand, it is necessary for the court to have some evidence of the child’s attachments to each of the parents and his own nature and interests and wishes or views, as a five year old expresses them, about his own situation.  He is likely to have some strong feelings about changes in his life.  To that end it seems appropriate for there to be a family report.

2. In the ordinary way, there would first of all have been a preliminary meeting with the parents and the child and a short memorandum.  Such luxuries are not available here where the child is in one country and the parents are presently in this country.  It is also, as I have said, important that he begins to restore his relationship with the father and also the paternal grandparents before that relationship begins to recede in his memory and lose significance.  There is an enormous amount of benefit for the child in having a thorough connection with both sides of his family.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 January 2015.

Associate: 

Date: 13 February 2015