Banks & Banks
[2015] FamCAFC 36
•12 March 2015
FAMILY COURT OF AUSTRALIA
| BANKS & BANKS | [2015] FamCAFC 36 |
| FAMILY LAW – APPEAL – CHILDREN – Interim international relocation – Where both parents are currently in Australia and the child is living with the maternal grandmother in Thailand – Where the mother appealed against an interim order that the child be brought to Australia to live with her – The father’s solicitor conceded that the mother was denied procedural fairness because neither party sought an order for the child to live with the mother in Australia and the primary judge did not give notice of her intention to make that order – Appeal allowed – Costs certificates issued. FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the mother sought that the child remain in Thailand and that the interim injunction restraining her from leaving Australia be discharged – Where the father sought that the child be brought to Australia to live with the mother and that the interim injunction remain in place to ensure the mother remains amenable to the jurisdiction of the Court, even if the child is permitted to remain in Thailand – Where the child has special needs and is well settled in Thailand – It is in the child’s best interests to remain in Thailand pending trial – Injunction discharged – Order for the father to spend time with the child in Thailand and communicate by Skype. FAMILY LAW – APPEAL – CHILDREN – Giving reasons in determining an interim parenting dispute – It is essential that the parties’ proposals be clearly identified and separately evaluated, but it is unnecessary to discuss every s 60CC consideration. |
| Family Law Act 1975 (Cth), s 60CC, s 61C, s 61D, s 61DA, s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
| Adamson & Adamson (2014) FLC 93-622 Goode and Goode (2006) FLC 93-286 |
| APPELLANT: | Ms Banks |
| RESPONDENT: | Mr Banks |
| FILE NUMBER: | SYC | 7678 | of | 2014 |
| APPEAL NUMBER: | EA | 16 | of | 2015 |
| DATE DELIVERED: | 12 March 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Melbourne by video link from Sydney |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 5 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2015 |
| LOWER COURT MNC: | [2015] FamCA 66 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Smith |
| SOLICITOR FOR THE APPELLANT: | VCD Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mackay |
| SOLICITOR FOR THE RESPONDENT: | Christopher Mackay Lawyer |
Orders
The appeal be allowed.
Paragraphs 3.1 to 3.7, 7 and 8 of the orders made by the Honourable Justice Cleary on 23 January 2015 be discharged.
Paragraphs 7 to 9 of the orders made in the Federal Circuit Court on 9 December 2014 be discharged.
Paragraph 1 of the minute attached to the orders made in the Federal Circuit Court of Australia on 12 December 2014 be discharged.
The name of the mother MS BANKS be removed from the Family Law Watch List / PACE Alert System by officers or agents of the Australian Federal Police so she is permitted to leave the Commonwealth of Australia.
Until further order, the child L born January 2010 live with the appellant or her nominee.
Until further order, the respondent spend unsupervised time with the child in Thailand as agreed with the appellant, provided the respondent gives the appellant three days’ notice in writing of his intention to spend time.
Until further order, the appellant shall permit the respondent to communicate with the child by Skype on each Monday, Tuesday, Wednesday, Friday and Saturday between 3.00 pm and 6.00 pm Thailand time.
The appellant and respondent have liberty to apply to a judge of the Family Court of Australia for further definition of the terms on which the respondent spends time with and communicates with the child.
There be no orders as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: EA 16 of 2015
File Number: SYC 7678 of 2014
| Ms Banks |
Appellant
And
| Mr Banks |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 17 February 2015, the mother appealed interim parenting orders made by Cleary J on 23 January 2015 concerning the child L, now aged five years. The appeal was opposed by the father.
For reasons mentioned later, the appeal was conceded during argument. We are now concerned only with the re-exercise of the primary judge’s discretion.
Background
The father, a 38-year-old Australian, and the mother, a 35-year-old Thai national, met in Sydney in early 2009 and married in Australia in mid 2009.
In September 2009, the parties travelled to Thailand so the mother could have the support of her family pending the arrival of the child, who was born in early 2010. L is the only child of the parties, and he holds both Australian and Thai citizenship.
In May 2010, after about eight months living with the mother’s family, the parties and the child came to Australia to live with the father’s parents. Aside from a temporary separation in June/July 2010, and a visit to Thailand in 2012, they continued in that living arrangement until May 2013.
In May 2013, the parties and the child travelled to Thailand to visit the maternal family. The father returned to Australia at the end of May 2013, but the mother and child did not. The circumstances in which this occurred are in dispute.
The child has continued to live with the maternal family in Thailand, where he has commenced his education at a local public school.
The father claimed that Hague Convention proceedings were commenced in September 2013 for the return of the child; however, we were advised that no proceedings are pending in Thailand, notwithstanding a request has been made by the Australian Central Authority for the institution of such proceedings.
Between September 2013 and January 2014, the parents had discussions about reconciling their relationship. Initially they were planning to open a business in Thailand, but when this did not eventuate they discussed the possibility of the mother and the child returning to Australia. The plan for the family to be reunited in Australia ended when the mother decided that the father was not serious about agreeing to live independently from his parents.
Unbeknown to the father, the mother came back to Australia for about four weeks in May 2014, and returned here from 8 June 2014 to sometime in August 2014. While in Australia she worked as an adult entertainer, as she had on occasions during the marriage. The child remained in Thailand with the mother’s family.
On 19 October 2014, a physician at a hospital in Bangkok issued a medical certificate stating that the child had autistic spectrum disorder.
On 3 November 2014, the mother returned to Australia, again leaving the child in Thailand. On 24 November 2014, the mother advised the father she was in Australia, although she did not disclose her address. She was, in fact, working at a venue in Town W.
On 8 December 2014, the father filed an application in the Federal Circuit Court of Australia in which the only final order sought was that the mother “forthwith cause the delivery of the child … to the father”. The same order was also sought on an interim basis, along with other orders, including that the mother be restrained from leaving Australia pending “delivery” of the child to the father.
On 9 December 2014, the father’s application was heard on an ex parte basis in the Federal Circuit Court. Directions were made for notice of the application to be given to the mother and the hearing was adjourned to 12 December 2014. An order was also made restraining the mother from departing or attempting to depart Australia “until further order”.
At the hearing on 12 December 2014, at which the mother was represented by a duty solicitor, an order was made continuing the injunction restraining the mother from leaving Australia “until further order”. Although the mother had not filed a response or an affidavit, an order was also made for her to cause the child to be brought to Australia by 20 December 2014. The proceedings were then adjourned to 22 December 2014.
On 22 December 2014, the mother having not complied with the order for the child to be brought to Australia, directions were made for the filing of documents and the proceedings were transferred to the Family Court of Australia.
On 9 January 2015, the mother filed a response and an affidavit. The response did not identify any interim orders sought, but it is clear the mother was opposed to the child being brought to Australia. The final orders sought by the mother in her response included an order for the child to live with her in Thailand and for him to spend time with the father as agreed between the parties.
Plainly, by entering an unconditional appearance and seeking the final orders she did, the mother submitted to the Court’s jurisdiction: White v Hardwick (1922) 23 SR(NSW) 6; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223.
The interim orders made on 23 January 2015
The interim orders made on 23 January 2015, which were the subject of challenge in this appeal, are set out below (using the original numbering):
3.1That the mother cause the child [L] (male) 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.
3.2That the father pay the return airfare of the person bringing the child to Australia and the child’s airfare to Australia economy class.
3.3That 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.
3.4That the father notify the mother of the proposed travel arrangements no later than 7 days prior to the date of departure.
3.5That 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.
3.6That 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 otherwise of the parties or orders of the court.
3.7That 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.
…
7 That the child live with the mother in Australia.
8That 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 am to 2 pm on non-consecutive days during the first week that the child is in Australia; and thereafter
b.Each weekend from Friday at 4 pm to Sunday at 5 pm commencing the first Friday in March 2015.
The orders went on to provide for the adjournment of the proceedings “for mention” on 21 July 2015, at which date it was contemplated that consideration would be given to the appointment of an independent children’s lawyer. In this context, the primary judge had noted in the course of the argument that the final hearing was “a long way in the future”. We consider it reasonable to infer that her Honour did not contemplate any final trial occurring until the latter part of 2015 at the earliest, and perhaps significantly later than that.
The merit in the appeal
During the course of his submissions before us, the father’s solicitor agreed that the mother had not been afforded natural justice because neither party sought an order that the child live with the mother in Australia and the primary judge did not give notice of her intention to make such an order.
In these circumstances, the father’s solicitor very properly conceded that the appeal must be allowed. We were then invited by both parties to redetermine the matter. It was agreed we should do so by reference to the affidavits already filed and on the basis of further submissions made to us.
The proper conduct of interim parenting proceedings
Given the appeal will be allowed on the basis of a miscarriage in the conduct of the hearing below, it will be instructive to set out what the Full Court said in Goode and Goode (2006) FLC 93-286 at 80,903 concerning the way in which an interim parenting application should be determined:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Subject to what has since been said in SCVG & KLD (2014) FLC 93-582, we adopt this citation from Goode. We note only that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time.
The competing proposals
It is fundamental in every parenting case that the parties’ proposals be clearly identified. This is so, because it is an essential requirement that each proposal be the subject of separate evaluation: AMS v AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J, at 226 [196] per Kirby J, at 232 [218]-[219] per Hayne J; U v U (2002) 211 CLR 238 at 248 [37] per Gaudron J.
With respect to the primary judge, the failure to identify the competing proposals was the likely cause of the error that led to the appeal being conceded. Accordingly, during the oral submissions, we asked the parties’ representatives to identify with precision the interim orders now sought.
The father sought equal shared parental responsibility. Although he originally sought that the child live with him, the father conceded that such an order would not be in the child’s best interests, at least on an interim basis, given that he has not had physical contact with the child for almost two years. Instead, the father sought that the child live with the mother in Australia, and that the child spend time with him:
a)in the first fortnight, on two afternoons each week for four hours; and
b)thereafter, every week from 5.00 pm Friday to 5.00 pm Sunday.
The father sought the continuation of the injunction restraining the mother from leaving Australia, even if we did not require the child to be brought to Australia.
The mother sought that each parent have parental responsibility. She proposed that the injunction be discharged so she could return to Thailand to live with the child. She was agreeable to the father having unsupervised time with the child whenever he visits Thailand, provided he gives three days’ notice. The mother was not specific as to the duration of the visits, but said the details could be sorted out by agreement. The mother also proposed that the father communicate with the child by Skype five days every week.
As for the future conduct of the proceedings, the mother’s counsel proposed that they continue on the basis that the mother would return to Australia for the trial, or participate by telephone or some other means. Counsel for the mother advised it was unlikely that any other witnesses would be able to travel to Australia for the trial, but that they could attend electronically.
The father’s solicitor submitted that if the mother were permitted to leave Australia, she would have no incentive to participate in the trial and would not do so. He argued that the father would be left without a remedy because he would not have the means to litigate in Thailand, although he left open the possibility of Hague Convention proceedings being instituted in that country.
The issues in dispute in the interim hearing
The issues emerge clearly enough from our recitation of the proposals.
The threshold issue concerns the allocation of parental responsibility, which will determine whether we are obliged to consider making an order for the child to spend equal time or substantial and significant time with his parents.
The primary question, however, is whether it would be in the child’s best interests to continue to reside in Thailand pending a final hearing, or whether he should reside with his mother in Australia, so as to allow him to spend regular time with his father for the first time in almost two years.
The secondary, although very important, question is whether the mother should be obliged to remain in Australia if the child remains in Thailand.
The remaining issues relate to the terms on which the child would spend time with the father, whether he be living in Thailand or Australia.
The agreed or uncontested relevant facts
At the outset of these reasons, we provided what we understand to be an uncontroversial chronology. The most important uncontested facts are these:
·The father has had no contact with the child, save via Skype, for nearly two years.
·The mother has been the child’s primary carer for much of his life (including the three years prior to returning to Thailand in May 2013).
·The father accepts that the mother is the appropriate carer for the child, at least pending trial.
·The child was born in Thailand, lived in Thailand for the first five months of his life, visited Thailand in 2012, and has lived in Thailand for almost the last two years.
·While living in Thailand, the child has resided in the home of his maternal grandmother, who has been responsible for his care during the three periods in which the mother has returned to Australia for work.
·The child has been diagnosed as having autistic spectrum disorder, requiring behaviour modification and speech therapy.
·The child has recently commenced school in Thailand.
·The father has paid no child support; however his solicitor informed us that the father would now initiate a child support assessment.
·The mother is working at a venue in Town W and proposes to do so until she is permitted to leave Australia. We were advised from the bar table that her work hours are not regular and include nights.
·The mother earns sufficient income as an entertainer to repatriate about $1,000 per week to Thailand, but there was no suggestion that she would be able to obtain employment in any other capacity in Australia.
·The mother says she does not wish to continue working as an entertainer and wants to return to Thailand, where she has an offer of work as a cashier.
·Although we were told from the bar table that the mother does not have suitable accommodation for the child in Town W, her counsel conceded that she could obtain suitable accommodation and pay for childcare.
·We were told from the bar table that the father has an income of $45,000 per annum and could not afford to travel to Thailand to visit the child, save for perhaps twice per year for a couple of weeks at a time.
Allocation of parental responsibility
The way in which parental responsibility is allocated impacts on the range of options that the Court must consider in determining a parenting order dispute (see s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) and our recitation from Goode).
The father’s proposal for an order for equal shared parental responsibility was not supported by any argument from his solicitor, but we infer he relied upon the presumption in favour of equal shared parental responsibility (s 61DA(1)).
Counsel for the mother did not suggest that the presumption did not apply because of family violence or abuse (s 61DA(2)), or because application of the presumption would be inappropriate in these interim proceedings (s 61DA(3)). Instead, she submitted that an order for equal shared parental responsibility would not be “practicable” if the parents lived in different countries.
Although arguing against an order for equal shared parental responsibility, the mother’s counsel said each parent should have parental responsibility. As we understand her position, counsel was proposing that we make no order dealing with parental responsibility (since the combined effect of s 61C and s 61D is that each parent has parental responsibility unless an order provides otherwise).
Although consideration will need to be given at trial as to whether an order for equal shared parental responsibility will be in the child’s best interests if the parents live in different countries, we reject the mother’s proposal on an interim basis for the simple reason that her Notice of Appeal did not challenge the order providing for the parents to have equal shared parental responsibility.
Equal time and substantial and significant time
Given that we do not intend to interfere with the interim order for equal shared parental responsibility, we are obliged by s 65DAA to consider whether it would be in the child’s best interests and reasonably practicable for him to spend equal time or substantial and significant time with each parent.
Neither parent seeks an order for equal time, and the father now acknowledges that the child’s best interests will be served by him primarily living with his mother pending trial. Clearly, therefore, equal time is not a viable option.
The father proposes instead that the child spend regular time with him. The question of whether or not his proposal constitutes “substantial and significant time” was not the subject of any submissions. In any event, the issue of how much time the father should spend with the child must turn on whether it is in the child’s best interests to remain living in Thailand. If it is in the child’s best interests to remain in his current home, then it would clearly not be “reasonably practicable” for his father to spend substantial and significant time with him, even if such an arrangement might otherwise be in his best interests.
Consideration of the s 60CC factors that are relevant
In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.
As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.
In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
The only relevant primary consideration – s 60CC(2)(a)
There was only one relevant primary consideration, namely the benefit to the child of having a meaningful relationship with both parents.
The mother does not dispute that it would be in the child’s best interests for him to have a meaningful relationship with his father. However, her complaint was that the primary judge allowed this factor to overwhelm all others, and in particular the impact upon the child of being required to leave the settled environment in which he has been living.
We accept that significant weight should be given to the benefit to the child of having a meaningful relationship with his father (as well as with his mother). We also accept that it may be difficult, if not impossible, to establish and maintain such a relationship without there being regular physical contact.
While the mother proposes that the father have almost daily contact with the child by Skype, we accept this is no substitute for face-to-face time. The mother’s evidence that the child is only able to say a few words, and is more fluent in Thai than in English, suggests there would be serious limitations on the utility of electronic communication. Nevertheless, it seems the father has had some contact with the child via Skype.
The mother is also agreeable to the father spending time with the child in Thailand if he is able to travel there. The father has previously lived in Thailand for a lengthy period and has evinced a desire, from time to time, to take up residence there. While his circumstances are such that it would be difficult for him to travel regularly to Thailand, the evidence does not persuade us that he would be unable to take up residence in that country. We accept, however, that the likelihood of that occurring in the short term seems remote.
The father’s solicitor referred in his submissions to the possibility of the father travelling to Thailand to see the child twice a year for periods of up to two weeks. This does not seem beyond the realms of possibility, especially given that the father has employment and can live with his parents. We also note that in April 2014, the father told the mother he was coming to Thailand for a holiday to see the child, although that did not eventuate.
Little has been done since May 2013 to ensure the maintenance of the relationship between the father and the child. Although there were no doubt impediments to the father travelling to see the child, the messages between the parties from 8 September 2013 to 20 November 2013 were replete with the mother’s pleas for the father to come to Thailand to resume his relationship with his son. This did not eventuate, and we accept that if the child continues living in Thailand, it is unlikely that much, if anything, will occur prior to trial to build the relationship between him and the father, save for contact by Skype.
The most relevant additional considerations – s 60CC(3)
It is an arguably curious feature of the Act that there is no express requirement in s 60CC(3) for the court to consider the proposals of each parent for the day-to-day care of the child. It might be assumed that Parliament considered this too plain to require statement, but the question would then arise why it was considered necessary to direct the court to have regard to other equally basic matters, such as the child’s relationship with each parent (s 60CC(3)(b)).
In any event, we propose to undertake our discussion of the most relevant of the “additional considerations” in s 60CC(3) by reference to the proposals (or lack thereof) for the care of the child, noting there are only two options presented to us; namely, that the child continues to live in Thailand (with or without his mother), or that he is brought to Australia to live with his mother.
There was no evidence at all concerning the care arrangements that the mother could make if the child was made to live with her in Australia. All that is known is that she is working at a venue in Town W, and would continue to do so if forced to remain in Australia. It is not disputed that the mother has no family in Australia. There is no evidence she has any friends here who could assist in the child’s care. There is also no evidence to suggest, nor any reason to suspect, that there is a person or organisation in Town W able and willing to provide an adult entertainer with ad hoc childcare services for a child with special needs.
The potential for real difficulty in securing suitable care for the child can be inferred from the mother’s evidence at [50] of her affidavit:
Caring for [the child] has been a challenge. Because of [the child’s] slow development, he has had trouble learning how to use the toilet. He constantly defecates in improper places such as on beds or in his hand, and he will smear it on the walls, floor or people’s clothes. My mother has assisted me greatly in caring for [the child], especially while I have travelled for various jobs.
On the other hand, and contrary to the submission that was advanced before the primary judge, there was ample evidence of the mother’s proposals for the care of the child in Thailand. At [54] to [58] of her affidavit, the mother gave evidence (some of which was supported by documents and photographs) stating or clearly inferring that:
·If permitted to return to Thailand, she would live in her mother’s home, where she believes the child is happy and settled.
·Her mother has assisted greatly in the care of the child and would continue to do so in the future.
·She has an offer of regular employment as a cashier one hour away from her mother’s home, which she wishes to take up.
·Apart from the income as a cashier, she would receive half of the income that her mother receives from rental properties (although little weight can be placed on this untested assertion, given the absence of evidence that this assistance has been provided previously).
·The child would continue to attend the school in which he has been enrolled and where he has been making friends.
·The child would continue his “very close relationship” with his cousin.
·The child has been regularly seeing a doctor to deal with his developmental problems, and it is the mother’s intention to take him to a specialist upon her return to Thailand.
In the submissions before us, no criticism was offered of the arrangements the mother proposed to make for the care of the child in Thailand. Perhaps the most that could be said is that the mother has shown a propensity to visit Australia to work as an entertainer, but even then, there is nothing to indicate that the arrangements made for the child during her absence were inadequate. Hopefully, the father’s proposal to commence paying child support will also obviate the necessity for the mother to work in the adult entertainment industry..
Significant weight must be placed on the fact that the child appears to be well settled in Thailand. This is of special importance because of his developmental delay. Although the evidence was not in ideal form, and there has been no opportunity for it to be tested, we must place weight on the medical certificate of 19 October 2014, stating that the child requires:
regular intervention and early intervention such as behaviour modification and speech therapy. Proper enrolment for him is monolingual, he should not be change environment because may be make him confuse about language development. [sic]
We must also have regard to a further certificate dated 28 December 2014, which (to the extent we can decipher it) notes that:
Now his development improved but he should be development train and speech teaching regularly… He’s receive behaviour modification since 27 July 2014 until now one time per week. Behaviour modification and speech therapy regular 6 – 7 months at [local] hospital his development improved and [indecipherable] can speech. He should be train behaviour and development train continuously. [sic]
This evidence implies that the child has been receiving regular and beneficial treatment to assist in overcoming his developmental delay. There is no evidence to indicate that a major disruption to his routine (involving removal from his home, relatives, school, friends and medical treatment) would have anything other than a deleterious effect.
We also take into account that the father has paid nothing to support the child in the entire period the child has been living in Thailand. We accept there may be mitigating circumstances, but the absence of any financial support provides possible context for the mother’s decision to leave the child in Thailand while she comes to Australia to earn money.
We place no weight on the fact that the father hopes to pursue Hague Convention proceedings. As we understand the information given to us during submissions, the mother’s return to Thailand would remove at least one impediment to such proceedings. However, the Hague Convention is designed to ensure that determinations about children are made by the courts of the country in which a child was habitually resident prior to the child’s wrongful removal or retention. Assuming Australia was the child’s place of habitual residence, and assuming the father can satisfy all the other requirements of the Convention, the fact is that this Full Court of the Family Court of Australia is now deciding the child’s living arrangements. Once we have done so, we see no role for the Hague Convention (save if the mother fails to comply with our orders).
The primary judge appeared to place weight on the desirability of the child being in Australia so he could rekindle his relationship with his father with a view to a family report being prepared, which in turn would be of assistance to the Court. We do not doubt the potential benefit of an expert report, but such a report should not be obtained at the expense of detriment to the child. There is also no evidence to suggest that a suitable report could not be commissioned in Thailand. Indeed, a report from Thailand seems likely to be more useful, given the proximity of the family with whom the child has been living, as well as the proximity of teachers and medical experts who have been treating the child.
Conclusion regarding the child’s residence pending trial
As the father’s solicitor observed, the Court is faced with a “dire” choice in a “dreadful” case. While we do not suggest the outcome is entirely satisfactory, we consider the child’s best interests will be better served by remaining in Thailand pending trial, rather than being uprooted and brought to Australia.
The discharge of the injunction
The father urges us not to discharge the temporary injunction made on 9 December 2014 preventing the mother from leaving Australia. Given our decision that the child will remain in Thailand pending trial, the sole purpose for the continuation of the injunction would be to ensure that the mother remains amenable to the jurisdiction of the Court.
It is not possible, on the basis of untested evidence, to discount the validity of the father’s concerns about the likelihood of the mother obeying any order that might be made if she is outside the jurisdiction. While the mother, in an unsworn statement conveyed via her interpreter, assures the Court of her intention to participate in the proceedings, we have not been asked to lay down conditions that might assist in ensuring she honours her assurance. It is also entirely speculative whether she would comply with orders, especially given she has not obeyed orders requiring her to return the child to Australia.
Nevertheless, we consider it untenable that the mother be required to remain in Australia while the child is living in Thailand. This is especially so when her residence here can seemingly only be maintained by her continuing to work in the adult entertainment industry. Although the mother has previously voluntarily come to Australia to undertake this work, she has done so only for limited periods. If the injunction remains, the mother would be confined to live for an extended time in a country where she does not wish to live, where she has no family and where her only income is from adult entertainment.
No argument was advanced that the Court lacked the power to continue the injunction confining the mother to Australia. As presently advised, we accept the power exists; however, for the reasons that were explained in Adamson & Adamson (2014) FLC 93-622 at [33] to [41], “rare” or “extreme” facts would need to be present to warrant the making of an order requiring a parent to live where they do not wish to live, merely because they are a parent. We would add that even more “rare” or “extreme” facts would need to exist to make it appropriate to make an order that would have the extraordinary effect of preventing the undisputed primary carer of a child from living with that child.
There are no such facts here. We will therefore discharge the injunction and associated orders contained in paragraphs 7 to 9 of the orders of the Federal Circuit Court made on 9 December 2014, and the order made on 12 December 2014 continuing the injunction.
Father’s time and communication with the child
Given the mother’s proposal, and the absence of opposition, we will order that the father be able to communicate with the child by Skype on five occasions each week on the days and at the times proposed by the mother; namely Monday, Tuesday, Wednesday, Friday and Saturday, between 3.00 pm to 6.00 pm Thailand time.
Given the acceptance by the father’s solicitor of the possibility that the father could travel to Thailand, we propose to make an interim order that the father spend unsupervised time with the child in Thailand, provided the father gives the mother three days’ written notice. In the absence of more detailed proposals, we are not inclined to make more specific orders, but we will reserve liberty to both parents to apply at first instance for more detailed orders in the event they are unable to reach agreement.
Costs
The mother sought that the father pay her costs of the appeal, but we consider there is insufficient basis for such an order, given that the error which led to the appeal being conceded was not of the father’s making. We also take account of the fact that the father’s finances appear limited, and that any order for costs would be a further impediment to him being able to visit the child in Thailand.
Although the appeal was ultimately conceded, it was “heard” by us (Cramer v Davies (1997) 72 ALJR 146 at 150 [18] per Kirby J), and allowed because of an error of law by the trial judge. We therefore propose to grant costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 12 March 2015.
Associate:
Date: 12 March 2015
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