Biondi and Koen

[2018] FamCA 746

FAMILY COURT OF AUSTRALIA

BIONDI & KOEN [2018] FamCA 746

FAMILY LAW – CASE MANAGEMENT – first day of hearing – directions for trial.
FAMILY LAW – EVIDENCE – need for expert evidence about enforceability in Brazil of parental orders made in Australia – use of direct judicial communication – use of information published by the United States State Department on non-compliance by Brazil with its obligations under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
FAMILY LAW – CHILDREN – appropriate to re-assess parenting arrangements for young child after 12 months – maternal anxiety – interim parenting orders – no application for equal shared parental responsibility.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637
Hoult & Hoult [2013] FamFC

APPLICANT: Ms Biondi

RESPONDENT: Mr Koen

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 2872 of 2017

DATE DELIVERED: 28 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr O’Brien

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Mr G Holmes

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Southern Family Law

Orders

IT IS ORDERED THAT:

1. This property and parenting matter be fixed for final hearing before me on 20 May 2019 at 10.00 am estimated to take 4 to 5 days (“the final hearing”).

2. Save for the mother’s interim application to remove the child from Australia for the purpose of a holiday in Brazil in December 2018 and January 2019, the interim applications of the parents be and are hereby dismissed.

3. This matter be adjourned for mention before me on 4 March 2019 for further directions for trial and there be liberty to the parties to seek an administrative adjournment by consent of the matter in the event that the report of Dr B provided for in this Order has not been released or has not been released within sufficient time for the parties to consider the contents thereof.

4. In relation to the mother’s application to remove the child X born … 2016 (“the child”) from Australia for the purpose of a holiday in Brazil I adjourn same sine die AND IT IS DIRECTED that:-

   a.      the mother propose the name, qualifications and any other details of any expert witnesses which she proposes could give evidence as a single expert witness in relation to the adequacy of compliance by Brazil with its obligations under The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”);

   b.      within 21 days of receiving those details each other party to the proceeding respond thereto:-

   i.with either an agreement as to one or more of the proposed single expert witnesses;

   ii.or provide the names and details of experts which he or she proposes be a single expert witness in these proceedings for the purpose of providing evidence of compliance and the effectiveness of the 1980 Convention between Brazil and Australia.

5. I reserve liberty to the mother to have her application to remove the child to Brazil re-listed after the single expert evidence is before the Court and to do so through the independent children’s lawyer in liaison with my Associate.

6. This matter be listed for mention before me in court to follow immediately upon the conclusion of the Family Dispute Resolution Service mediation to which the parties have agreed in the week of 25 March 2019 and the independent children’s lawyer notify my Associate – email … – of the date of the mediation which is to follow upon the publication of the report of Dr B provided for herein.

7. Each party file and serve an undertaking as to disclosure by 1 December 2018.

8. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that:

   a)Such subpoenas are made returnable before 11 December 2018;

   b)The parties do all acts and things necessary to ensure that inspection and photocopying of documents produced on subpoena is completed by not later than 1 February 2019; and

   c)Until further order, the parties’ practitioners / independent children’s lawyer be permitted to photocopy documents produced on subpoena.

9. The independent children’s lawyer ensure that competing or complementary expert reports in respect to parenting are exchanged.

10. The independent children’s lawyer send a copy of the transcript of Ms C’s evidence to Ms E, the mother’s psychologist.

IT IS DIRECTED:

1. That henceforth an interpreter in the Brazil language be engaged for the mother for all future court hearings NOTING THAT this does not include the provision of an interpreter for the purpose of any mediation conducted outside the court building or any report to be prepared by Dr B as provided for in this Order.

2. That the direct judicial communication resting with the email dated 16 August 2018 be marked Exhibit “C1” and remain on the court file.

3. The evidence of the family consultant, Ms C, given this day be transcribed and when transcribed placed on the Court file and a copy provided to the parties.

BY WAY OF INTERIM PARENTING ORDERS IT IS ORDERED THAT:

1. The father spend time with the child X born … 2016 (“the child”) on Wednesday, Thursday and Saturday as follows:-

   a)Between now and 2 September 2018 for 3 hours per day from 12.00 noon until 3.00 pm;

   b)After 2 September 2018 for 4 hours per day from 11.00 am until 3.00 pm;

   c)From 1 November 2018 the time which occurs on Saturday be extended to 5 hours from 11.00 am to 4.00 pm; and

   d)As may be otherwise agreed between the parties.

2. Until further order, the mother be and is hereby restrained by injunction from remaining at, or in the vicinity of, the father’s home or any other agreed changeover point for the child after the commencement of the time the child is to spend with the father and until immediately prior to any collection of time and/or from causing, permitting or suffering the father and/or the child to be followed during periods of the child’s time with the father.

3. The mother do all acts and things necessary to facilitate the father’s attendance at maternal and child health care nurse appointments for the child NOTING THAT the independent children’s lawyer will contact the child’s maternal and child health nurse and investigate the feasibility and practicalities of the father being seen with the child but the child not being seen subjected to duplicate appointments and, in due course, the independent children’s lawyer communicate that information about feasibility to each of the parents.

4. The mother facilitate a free flow of information to the father concerning the child’s health and medical needs and requirements and treatment and ensure that any practitioner consulted by her for the child has the father’s details and understands that he has parental responsibility equivalent to her own.

5. The parents do all acts and things necessary to download and utilise the “MyMob” mobile telephone app for the purpose of using same as a communication record concerning the child. Each party ensure that they make entries on the MyMob mobile app in a timely way having regard to the time spent. For example, any entries that the mother wants the father to read before the commencement of the next period of time to be spent should be posted or entered on the application not less than 10 hours prior to the commencement of such time.

IT IS FURTHER ORDERED THAT:

1. The parties and the child X born … 2016 do all acts and things necessary to attend upon Dr B (“the psychologist”) on 15 January 2019, or such other dates as directed, for the purpose of obtaining a private family report, with such report:-

   a)to incorporate a psychological assessment of both parties;

   b)and to deal with the following matters:-

   i.the impact of the proposed relocation on the child’s relationship with the father and how negative aspects of that impact can, realistically, be ameliorated;

   ii.the impact on the mother and her capacity as a care-giver if the proposed relocation is denied;

   iii.the capacity of the mother to promote a relationship between the child and the father if the mother is permitted to relocate and if the mother is not permitted to relocate;

   iv.any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;

   v.the matters set out in s60CC of the Family Law Act;

   vi.an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

   vii.an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

   viii.if the mother is required to leave Australia in June 2019 due to her visa status:-

   1.what parenting arrangements should there be if the child accompanies the mother back to Brazil;

   2.the impact on the child of a change of residence to the father and the mother only being entitled to exercise time in Australia;

   ix.recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

2. For the purpose of such family report by Dr B both parents provide to Dr B copies of their filed material within 14 days prior to the assessment date and send an index of same to all other parties.

3. The independent children’s lawyer supply a copy of each of the s 11F reports and the transcript of evidence of Ms C, family consultant, to Dr B and send an index of same to all other parties.

4. The parents share equally in the cost of the report of Dr B (see also paragraph 24).

5. For the avoidance of doubt, Dr B be and is hereby authorised to have access to and take copies of:-

   a)      all documents filed in these proceedings;

   b)      any documents produced on subpoenae and released for inspection by all parties;

   c)      any documents provided to them by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and

   d)      any documents or things referred to in this Order.

6. The practitioner for the mother do all acts and things necessary to apply for an extension of assistance from Victoria Legal Aid to cover the mother’s cost of the psychological assessment and report, that is one half of $5,500, with the mother’s practitioner to advise each other party of the outcome of such application.  In the event that Victoria Legal Aid does not approve such funding for the mother, the father pay the cost of the assessment and report at the first instance, with one half to be categorised as the mother’s contribution and as a part property distribution to her.

IT IS FURTHER ORDERED BY THE COURT THAT:

1. Paragraph 11 of the Order made on 2 August 2018 (being the order for a s.62G(2) report) be and is hereby discharged.

2. The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.  For the avoidance of doubt, Dr B is a single expert witness.

3. The independent children’s lawyer forthwith ensure that the psychologist and the family consultant each have a copy of the other’s report(s) in this matter together with any other document which the independent children’s lawyer considers would assist either expert to give evidence in these proceedings and in respect of which the other parties do not raise an objection.

4. The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as he/she considers appropriate and in respect of which he/she provides the other parties with prior written notice.

5. Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer by at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.

6. In anticipation of the final hearing, each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, as follows:-

   a)The applicant mother by not later than 15 April 2019;

   b)The respondent father by not later than 29 April 2019; and

   c)The mother in reply by not later than 3 May 2019.

IT IS FURTHER ORDERED BY THE COURT IN RELATION TO FINANCIAL MATTERS THAT:

1. By not later than 28 September 2018 at 4.00 pm the mother file and serve a further amended Application Initiating Proceedings in which she specifies with precision the orders sought by her in relation to an alteration of property interests, spousal maintenance or other financial relief.

2. Within 30 days of compliance by the mother with the filing of a further amended Application Initiating Proceedings the father file and serve any amended response upon which he proposes to rely.

3. By not later than 28 September 2018 each party file and serve an updated Financial Statement.

4. In the event that there is no agreement as to the value of real property held by the father, either solely in his name or with any other person, by 1 December 2018 the practitioners for the father provide the practitioners for the mother with the names and details of 4 appropriately qualified persons to value the father’s interests in real property and within 14 days of provision of such list the mother advise the father, through their respective practitioners, of the 4 experts she is prepared to engage as a single expert witness in the financial proceedings.

5. Without limiting the obligation of the parties to make full and frank disclosure to the other and to file an Undertaking as to Disclosure in accordance with this Order, by not later than 14 September 2018 the father provide to the mother, via their respective practitioners, with a full copy of the taxation returns and financial returns for his business, being F Pty Ltd, and within 7 days of lodging the next taxation return for such entity provide that to the mother via her solicitors.

6. That pursuant to Sections 65DA(2) and 62B the particulars and 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.

7. I reserve the publication of my decision in relation to interim parenting matters NOTING THAT they may not be delivered for at least 4 weeks and accordingly the time within which any party is required to file a Notice of Appeal against any interim parenting orders is extended to one month following the delivery of my reasons in writing.

IT IS FURTHER DIRECTED:

1. That any party wishing to cross examine on, lead evidence of, a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

2. That the independent children’s lawyer give consideration to preparation of a court book of documents to be referred to or tendered during the trial and contact my Chambers well prior to the final hearing if he/she thinks that a court book would assist in the expeditious running of the hearing.

3. The minute of orders of the independent children’s lawyer as amended be marked Exhibit “ICL1” and remain on the Court file.

   AND IT IS NOTED BY THE COURT:

   A.     That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

   B.     That these orders provide for the identification of appropriately qualified persons to value real property but the directions for the valuations to be undertaken of real property interests and, if appropriate, the father’s business will be made when the matter is mentioned in February 2019.

   C.     A private mediation in relation to outstanding financial issues will be considered at the mention in February 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2872 of 2017

Ms Biondi

Applicant

And

Mr Koen

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me as the first day of hearing of competing parenting and financial applications.  I have made directions for the hearing of the matter on 20 May 2018.  In relation to the interim parenting matter, I pronounced orders and said that I would deliver my reasons following the receipt of the transcript of the family consultant’s evidence given this day.  These are those reasons.  I also make some comment about the context which is made for expert evidence to be obtained about the enforceability of parenting orders in Brazil.

Procedural history

1. The proceedings were initiated by the mother’s application initiating proceedings filed on 24 March 2017 in which she sought leave to particularise final orders after financial disclosure has been received from the husband and on an interim basis an urgent hearing for the husband to pay the wife $550 per week. 

2. The father’s response was filed on 7 April 2017 and in that he sought final orders dismissing the mother’s application.  He also sought parenting orders for joint shared equal parental responsibility of the child of their relationship, X (the child), born in 2016, that the child live with him and spend substantial and significant time with the mother “in accordance with the child’s developmental stages”.  On an interim basis, he sought orders consistent with the final orders other than that the until further order the child live with the mother and spend time with him for three hours on each of Saturday, Sunday and Wednesday each week at times to accommodate the child’s routine and the child’s feeding routine.  The child was at the time being breastfed.

3. On 10 April 2017 Judge Wilson ordered maintenance and the father spend time with the child each Saturday and Wednesday from 12 noon to 2 pm.

4. On 4 May 2017, the mother filed an amended application in which she sought that the child live with her, she have sole parental responsibility, be permitted to relocate back to Brazil on a permanent basis with the child and that “the child spends time with the father whenever the father is able to visit the child in Brazil as agreed between the parties”.  On a financial basis, the mother sought orders for a just and equitable property settlement between the parties once full and frank disclosure has been made and further a decision rendered in relation to the mother’s relocation application.

1. On 18 May 2017, the matter came before Judge Wilson of the Federal Circuit Court and was transferred to this Court.  On 19 July 2017, orders for financial disclosure were made. 

2. On 24 August 2017, the matter came before Senior Registrar Fitzgibbon who ordered that the maintenance previously ordered by Judge Wilson (of $200 per week) be increased to $250 per week; a section 11F children and parents’ issues assessment and for a conciliation conference in relation to financial matters to be conducted on 10 October 2017.

First s 11f Parent and Children’s Issues Assessment

1. On 5 October 2017, a parent and children’s issues assessment was provided by the family consultant Ms G.  It arose out of meetings on 19 September 2017.  This was the first of two s 11F assessments with about 12 months between them.  This first assessment sets out a brief history of the parties and of their relationship, including the fact that the mother is residing in Australia on a student visa which will expire in June 2019.

2. The observations of the family consultant included the following:-

   ·the child presented as well cared for and loved by each of her parents.

   ·the child demonstrated a positive and strong relationship with her father.  

3. There were allegations of family violence by the mother against the father.  The mother applied for an intervention order which was granted on an interim basis.  “The violence alleged appears consistent with separation and couple instigated violence which is characterised by a pattern of arguments, threats and can lead to constructed polarised and negative views of each other. [Ms Biondi] alleges that she has been subjected to verbal abuse and threats and that she will not be able to leave the country with the child.  [Ms Biondi] said she was scared as [Mr Koen] had a propensity to lose his temper and he would scream and yell.  She reported family violence in the early stages of her pregnancy when they argued about the marriage proposal.  [Ms Biondi] understood [Mr Koen] wanted her to pay him to marry her.”

4. The mother said that the father kept a baseball bat and cap by the front door and that she was scared although he never physically assaulted her.  The father said that it was merely hallway decoration and in no way a threat to anyone. 

5. The mother claimed that the father had previously used ice and marijuana which was denied by him and supported by recent cleared drug screens.  The father said the mother consumed alcohol whilst pregnant. 

6. The mother was presented as tearful and upset for much of the interview and said that she had previously experienced depression when she was in Brazil and was prescribed medication. 

7. The mother informed the family consultant that “[Mr Koen] does not understand the child’s needs and he pushes her to accept arrangements that may be overwhelming for the child, for example, the child was for a period breastfed in the car with other adults present.”  The mother also believed the father was rough with the child whilst changing her nappy and she could hear her crying, whilst she was waiting outside in the car for time spent to conclude.  [Ms Biondi] says she plays with the child and talks to her all the time and “the child never cries when she is with me”.  In this regard, she believes the father’s tendency to be short tempered and her view that the child cries the whole time she is with her father means that she is unsettled and distressed in his care.”

8. The family consultant concluded:-

   35:  [The child] is a very young infant who possesses no capacity for self-protection.  The allegations of family violence and the parental conflict increase the risk posed to her.  [The child’s] young age also increases her need for stability, consistency and emotional security from the key adults in her life. 

   36:  [The child’s] needs are well met by each of her parents, although whilst [Mr Koen] provides [the child] with consistent attention, he seemed to lack some understanding of her needs at this age and how to engage her in a way that is focused on stimulation and playfulness.”

   37:  At this time, it appears the parties’ relationship remains characterised by mistrust and grief; this is not uncommon given the short period of time lapsed post-separation.  The parties’ own emotional responses and feelings regarding their adult relationship may be influencing their state of proposals for the child’s future parenting arrangements. 

   38:  The present information in this limited intervention indicates that the emotional security of [the child’s] mother is likely to be a high consideration for her proposal to relocate with [the child].”

   39:  [Mr Koen] would benefit from attendance at a parenting program to assist his understanding of child development and age appropriate activities to stimulate and encourage the child’s achievement of her developmental tasks. 

   40:  [Ms Biondi’s] maternal gatekeeping and strong belief that Mr Koen is unable to care for the child and her own unresolved issues about Mr Koen may impinge on her capacity to facilitate time without conflict around any and every issue. 

   […]

   43:  [Ms Biondi] is seeking to relocate to Brazil, her home country, with [the child].  The geographical distance between the parties in those circumstances would place considerable risk on the child’s opportunity to maintain her establishing bond with her father.  The proposed relocation would not developmentally support [the child’s] ongoing relationship with her father and is not feasible with regard to the parents’ commitment and capacity to pay the cost of flights to and from Brazil, not to mention the flight and travel times of 27 hours plus for [the child].

9. The future directions or recommendations were for equal shared parental responsibility, for the child to spend times with the father on Wednesdays and Saturdays without the requirement for persons to be in substantial attendance and for the mother to continue her sessions with her psychologist to explore her experiences as well as her anxieties regarding the father.  The parents were recommended to attend parenting after separation programs. 

10. On 12 October 2017, orders were made by consent which provided on an interim basis that the child live with the mother and spend unsupervised time with and communicate with the father each Wednesday and Saturday from 12 noon to 3 pm, on Father’s Day and the father’s birthday from 12 noon to 3 pm and on 7 January 2018 from 12 noon to 3 pm.  Therefore, the father’s time with the child increased from two to three hours each Wednesday and Saturday.  An order was made “that the mother will continue to attend upon a psychologist and will follow recommendations of the psychologist”.  Both parties were required to attend a parenting after separation program and each provide a certificate of completion to the other.  The mother was to continue to have the use of a motor vehicle in respect of which the father was to pay registration, insurance and any loan repayments and the spousal maintenance of $250 per week was to continue.

Applications

1. There has already been an interim parenting determination. Normally the Court would not encourage successive interim hearings.  However, the child is young and the last orders were made a year ago and are restrictive.  This matter cannot be heard until May 2019.  By that time, the existing interim orders will have been in operation for 19 months having been made when the child was only 10 months old.  I am satisfied that it is appropriate and in the child’s best interests for the interim parenting arrangement to be looked at again.

2. By application in a case filed 13 August 2018, the father has sought an increase in time  to overnight on Christmas Eve – Christmas Day, four hours on other days and that any time the mother is engaged in employment in accordance with conditions of her visa, he have first option to care for the child.  The father has sought permission to participate in all maternal child health nurse appointments including immunisations, developmental checks and other medical appointments for the child.  The father has also sought “when the mother delivers the child to or collects the child from the father’s address, she be restrained from remaining within 200 metres of the address and if the father decides to take the child away from the home, the mother be restrained from following the father.”

3. The father has completed parenting courses “Circle of Security”, “Parenting After Separation and Bringing up Great Kids”.  The mother had not attended a parenting after separation course, although said that she was working on doing so. 

4. The mother has filed an application in a case on 14 August 2018 in which she seeks an increase of the time between the father and the child from 11 am to 3 pm, that the father be restrained by injunction from smoking cigarettes whilst the child is in care, that the father do all acts and things necessary to cooperate with her to obtain a Brazilian passport for the child, the cost of which were to be borne by the father. 

5. Further, the mother seeks that “the father do all things necessary and sign all documents as may be required to enable the mother to travel to Brazil with the child” for the period, December 2018 to January 2019 for a period of one month with the itinerary, flight details, accommodation and contact details to be provided to the father at least one month prior to the proposed departure.  The mother would facilitate Skype/FaceTime between the child and the father at least four times per week.  On an interim financial basis, the mother sought a payment from the father of $5200 for the purpose of her paying for her diploma course and a cluster of medical expenses including paediatric costs. 

6. The mother’s concerns about the father’s time with the child are set out in paragraph 7 of her affidavit affirmed on 13 August 2018 and include the child’s routinely return to her smelling of cigarette smoke, the child seeming reserved and quiet after spending time with the father and at times, the child had woken up crying which led the mother to believe “she is having nightmares and struggles to fall asleep after waking up”. 

7. The matter was allocated to my docket in July this year. 

8. In anticipation of the first day of hearing, on 2 August 2018 I made orders requiring the mother to file an affidavit by her therapist, Ms E, that an independent children’s lawyer be appointed and that a full family report be prepared to be released no later than 15 March 2019.

9. When the matter came before me today, Dr O’Brien appeared on behalf of the mother.  Mr Holmes of Counsel appeared on behalf of the father and Ms Kristie Hams appeared as independent children’s lawyer.  The first order of the day was an order for a further parent and children’s issues assessment.

10. In anticipation of the first day, each party filed and served applications for further orders.

Current s11f parent and children’s issues assessment

1. The parents were seen by family consultant Ms C in the morning for the purpose of a parent and children’s issues assessment.  The child was not seen as part of the process.  Ms C’s assessment was illuminating.  I accept her evidence.

2. Ms C returned to Court in the afternoon and gave an oral report, upon which there were a few questions put to her.  Ms C’s evidence will be transcribed and a copy of the transcript will be made available to the parties.  There will be no written report.  The gist of the oral report was as follows:

   a.Ms C provided a summary of the parent’s relationship history and previous and current interim orders.

The relationship between parents

b.Ms C detailed that there was an interim intervention order made against the father in respect of the mother and child on 23 March 2017.  According to the mother there was no final intervention order because the parties were no longer living together and the father provided an undertaking to the court not to commit family violence.

c.The mother alleged verbal abuse by the father and described his behaviour as volatile and unpredictable.

d.The father described the mother’s behaviour during the time they lived together as erratic and labile with significant mood swings.  He conceded that this may in part have been due to the hormonal changes she was experiencing during pregnancy.

e.The mother expressed considerable concern that the father would behave in an abusive manner with the child based on her own experiences with him.  The father reportedly said to the mother, “If you really want to hurt someone you should do something to someone that they love.”

Parenting courses

f.Ms C stated the father has completed several parenting courses.  She found that the father has been able to extrapolate his learning from these courses, including his increasing understanding of child development and the importance of effective communication and collaboration between parents regarding their child and her needs.

g.The mother is yet to participate in a parenting after separation course, the family consultant understood that she is registered

The mother remaining outside of the father’s house during the father’s time

h.Ms C reported that the mother remains outside the father’s home for the entire duration the child spends with him. According to the mother, it is only within the last five weeks that the child appears to be settled in the father’s care because she (the mother) does not hear the child crying from inside the house.  The father disputes that prior to the last five weeks the child used to cry all the time.  He acknowledges that when the child commenced spending time with him in April 2017 she was unfamiliar with him.  However, he said that within a period of four weeks she became more settled.

i.The parents agreed that the mother should breastfeed the child before changeover, which also helps to settle her.  The child is breastfed twice overnight, as well as first thing in the morning, before her daytime nap and before she goes to bed at night.  Ms C reported that given the child now has a balanced died of solid food, it is likely that this is not primarily as a source of nutrition, but as a source of comfort.

j.The mother believes that in May this year the father deliberately kept the child’s comfort toy from her as she reportedly could hear the child crying and asking for the toy.  Ms C considered, based on the information from the father, there appeared to be no substantive reason for the mother’s perception on this occasion.  The toy became soiled and the father put it in the washing machine.  It was not returned on the same day.

k.The mother has been attending psychological counselling since July 2018.  Ms C referred to the mother’s psychologist’s affidavit which was affirmed on 17 August 2018 stating that the mother had been diagnosed with post-traumatic stress disorder and depression.  The family consultant further referred to the psychologist’s affidavit that the mother previously suffered from depression when she was 14 Years old and was in an abusive relationship approximately four years ago.  Significantly, Ms C reported that the mother’s fears about the danger to the child in her father’s care appear to be “highly disproportionate to any of the father’s alleged behaviour.”

The mother returning to Brazil for a holiday with the child

l.Ms C reported that the father does not support the mother’s proposal that she and the child visit her family in Brazil for four to six weeks.  The father is concerned about the impact on the child’s relationship with him should she be separated from him for an extended period.

m.The mother says that she speaks to her family via the internet and believes that it is important for the child to meet with her family in person, as she is not used to interacting with them via electronic means.

n.The father is concerned about whether the mother will return and perceives that she has no real motivation to return to Australia with the child, given that it is her proposal to return to Brazil with the child permanently.  The father is also concerned about the impact on the child of being in transit for in excess of 30 hours and is concerned about whether Brazil is a safe country her to visit.

The child’s development, routine and behaviour

o.The mother advised that the child is meeting her developmental milestones and this has been confirmed by the maternal and child health nurse.

p.Ms C reported that the mother described an age-appropriate routine for the child, which includes a daytime nap of one to two hours from midday.

q.According to the mother, the child has started to display some aggressive behaviour, hitting her mother after spending time with her father.

r.The mother said that when she tells the child off, the child reportedly tries to hit herself.  Ms C reports that this is distressing for the mother and increases her concerns about the possibility of the child being exposed to the father’s aggressive behaviour. 

s.According to the father, the child is now quite comfortable with him and with his parents, clearly recognising them and actively engaging with all of them.

t.The father said that at times he has to wake the child from her daytime nap in order to return her to the mother’s care and this may account for why she might be teary at times.  He also notes that she has been teething lately and this too would contribute to her being tearful at changeover. 

Future directions offered to the Court

u.In regards to time a child of the child’s age and development stage should be spending with parents, Ms C reported that frequency of time rather than duration is important.  She added that it is equally important that children at this stage of development have positive experiences not only playing with but also being nurtured and cared for by both parents. She reported that the child “has had limited opportunities for this to occur at present with the time that she spends with her father.”

v.Ms C recommended that:-

i.     consideration be given to increasing the time the child spends with the father to three visits each week of four hours each visit;

ii.   the mother not linger outside the father’s home for the duration of the child’s visits with him and that she does not following the father if he takes the child out;

iii.     the parents use a communication book to provide details to each other about the child she is in their care;

iv.   the mother be psychologically assessed with the report being provided to the court to clarify the mother’s concerns about the child not being safe in the father’s care;

v.    given the mother’s fears about the child’s safety in the father’s care, that a “cautious” approach to the child staying overnight with the father should be considered at this stage; and

vi.   consideration be given to the father attending all the child’s appointments with the maternal and child health care nurse and with her treating paediatrician.  The father should be entitled to contact her general practitioner for information on any occasion that the mother advises him that the child is unwell and not able to spend time with him.

Responses to questions from the bench

w.In response to questioning from the bench Ms C noted that both parents should undertake court ordered psychological assessment.  Ms C suggested a psychological assessment, as opposed to a psychiatric assessment, as she was not of the opinion that either parent presented with a psychiatric condition.

x.Ms C agreed that the communication book could be in an electronic form.

y.In regards to the child spending overnight time with the father, Ms C clarified that there should be no overnight time at the moment.  Her reasoning for this recommendation was principally maternal anxiety.  Ms C observed that if, as now, the mother continued to remain outside the father’s home, it would not be in the mother’s or child’s best interests for the mother to spend the night outside the father’s house.

z.The family consultant explained that she understood that when the mother remains outside the father’s home during his time with the child that the mother remains in her car.

aa.In response to questioning from the bench about childhood development Ms C reported that a possible explanation for the child displaying aggressive behaviour when returned to the mother is that changeover occurs prematurely.  Ms C added that the mother had told her that the child was very reserved in the car on the way home after spending time with the father.  The mother said that generally the child is happy to sing and interact with the mother in the car, but after spending time with the father she does not wish to participate in those activities.  Ms C acknowledged that it was possible that the child behaved this way in response to the mother’s anxieties and tense behaviour.

bb.There was discussion about the father’s concern if the child went to Brazil for five weeks over Christmas. Ms C stated that it was possible, if the child had regular electronic interaction with the father, three to four times a week, she would be able to remember her father after an absence of five weeks.  However, Ms C added that the father told her that there are times where the mother advises him that the child is unwell and unable to spend time with him and the child does not see the father for a week.  The father mentioned that this can be disruptive and can take the child longer to settle with the father.

cc.In regards to the 30 hour journey to Brazil, Ms C acknowledged that the journey is a long time.  However, the mother told the family consultant that the child is well behaved and that the mother considers that she can manage the child for the duration.

dd.Ms C stated that she asked the father about deliberately keeping or retaining the child’s comfort toy.  The father stated that he did not remove the toy.  He explained that on the occasion the mother was referring to, it was the first time the child had brought the toy with her.  He said that on this day the child was unsettled and the he believed she may be teething.  The child vomited on her toy, which he cleaned up with wipes.  The child settled quickly and when she fell asleep the father took the toy to wash.  He explained to the mother what had happened and that he would return the clean toy to her at the next visit.  Ms C notes that the father did not return the toy to the mother, but on the day the mother was referring to, the father did not withhold the toy from the child.  The family consultant noted that the mother said that the child could not settle without the toy so she purchased a replacement.  Ms C said that she believed in retrospect the father realised that washing the toy was premature and the mother could have washed it at another time.  Ms C commented that this interaction between parents was “highly problematic.”  It is probably also emblematic of their relationship.

ee.In response to questioning about the maternal and child health care nurse visits, Ms C stated that the parents could have sequential visits.  The father explained to the family consultant that he wanted to participate in the visits to obtain information about the child and her development as well as receive guidance on what he should do and what else the child may need.  He does not suggest he attend all appointments with the general practitioner, but asks that he is able to contact the general practitioner for feedback when the mother tells him the child is too ill to see him.

ff.In regards to the days and times that the father spend with the child the family consultant stated if the child were to spend three consecutive days with the father it may provide the mother some respite.

Cross examination by Counsel for the mother

gg.Ms C clarified that she did not have a recommendation about whether the child should spend three days consecutively with the father or three days spread over a week.  She stated that she considered either arrangements would work.  However, she believed it was important to consider the mother’s anxiety and that a block of three consecutive days without time with the father could provide the mother some respite which could be good for the child.

hh.Ms C noted that she did not consider the fact that the child was or was not still breast feeding to assist in long travel journeys.  She also did not think that there was a significant difference if the child were aged two or three when travelling.  She noted that 30 hours duration of travel was onerous for adults, let alone for a young child.

ii.The family consultant recommended that increasing time with the father should be a staged approach and that the time should increase depending on the child’s response to increased time.  Ms C noted if the mother is unable to manage effectively her response to increased time, the impact of the mother’s anxiety on the child must be considered.  That is why she recommended the mother undergo psychological assessment.  That’s to determine what contributes to the mother’s response, which in the family consultant’s opinion appears to be disproportionate to any reported behaviour of the father.  She stated that the parents, and not the child should undergo psychological assessment

Cross examination by Counsel for the father

jj.Ms C noted that she considered the father had taken on board what he had learnt in the parenting courses.  He described age appropriate routines and activities in his home.  She stated that, to the father’s credit, he recognised that despite the child sleeping for a half to a third of the time she spends with him, this time is quality time and an essential experience for the child to recognise that her father can settle her and be there when she wakes from a nap.  She stated that, the father considered several explanations for why the child may be upset at changeover.  For example, the father often has to wake the child to return her to the mother, she is teething and she is of an age where crying or grizzling is a form of communication.  Ms C noted that the mother may overhear the child crying when she is hungry or needs her nappy changed.  The family consultant stated that she did not necessarily consider the child’s crying to be an indication that she is being exposed to aggressive or insensitive behaviour by the father.

Cross examination by of Family Consultant by Ms Hams (ICL)

kk.In response to questions by Ms Hams, Ms C stated that it was her understanding that the mother remained outside the father’s residence despite the mother considering that the child was settled with the father over the last five weeks.

ll.Ms C stated that the mother had said that the reason she remained outside the father’s residence was to protect the child.  The mother said that the father may not be able to sooth the child or may become angry, irate and violent.

mm.Ms C explained that she did not specifically recommend the father spend four hours with the child for a particular reason.  She considered that the time should be limited.

nn.The family consultant responded in the affirmative when asked by Ms Hams if children of the child’s age would usually be moving toward spending overnight time with the parent.  She confirmed that she was not aware of any other impediment than the mother’s concerns which would prevent moving toward overnight time with the father.

1. Following the evidence of the family consultant, the matter was stood down for the parties to engage in discussions.  There was general agreement that the time to be spent between the child and the father was to be increased, but not as the extent of the increase or how the increments would be timed.

2. In relation to the mother’s proposed trip to Brazil, she deposes:-

   25.      I came to Australia on 26 April 2015. I returned to Brazil in November 2015 as I missed my family dearly. I became pregnant with the child in … 2016. I have not returned to Brazil since.

   26.      My father [Mr H Biondi], my mother [Ms J Biondi], my brother [Mr K Biondi] and my sister [Ms L Biondi] also live in Brazil My sister is married to my brother in law [Mr M]. They do not have children.  We are a very close family. Prior to coming to Australia we would routinely holiday together as a family. [The child] is the only child in my family and is really loved by them.  My parents have been very happy to become grandparents for the first time.

   27.      I am concerned that [the child] does not yet have a relationship with her maternal family. I wish for her to join me on a short trip to Brazil to meet her family and get to know them. They have expressed a desire to get to know [the child] and be part of her life. I call my family nearly each day in order to speak to them and in order for them to speak to [the child]. I do so via Whatsapp and use the video settings. They are able to play with her, sing with her, read to her and show her things. I believe that by doing so, they have been able to form a connection and maintain one despite the distance.

   28.      I strongly believe that it would be in [the child’s] best interests to get to know her maternal family in Brazil.

3. The father’s response to the mother’s application in a case was filed on 17 August 2018 and sought that the mother’s application in a case be dismissed.  A concern of the father about overseas travel for the child includes the duration of the trip, the interruption of the child’s time with him for anything up to five weeks and also that the mother will not return with the child to Australia at the conclusion of any holiday or vacation.  The mother says she will return.  The father says she has no ties to Australia and would be unlikely to return and fears that if she does not return, the child will not be recoverable.  The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force between Brazil and Australia on 1 May 2000.

Direct Judicial Communication

1. In anticipation of the first return date, the parties gave their consent for there to be direct judicial communication between myself and the Hague Network Judge for Brazil on various questions such as in what Court in Brazil would proceedings be best instituted for parenting orders, would it be preferable to use a superior Court to minimise the risk of orders subsequently being unenforceable or appellable in Brazil, can the parents or either of them institute proceedings in Brazil for parenting orders whilst they and their child are in Australia, would it be necessary for the parents to be legally represented for proceedings in Brazil, is there any legal assistance or legal aid scheme for which the mother could seek assistance apply for proceedings in Brazil.

2. I asked, “What is the procedure in Brazil to enforce a parenting order in the event of an alleged non-compliance by one of the parties with orders made in Brazil?”  The response was, “Concerning the orders made by Brazilian Courts, as well as the foreign decisions recognised by the Superior Court, there is a special enforcement procedure regulated by the Brazilian Civil Procedure Code [Articles 515 and following] and their non-compliance could apply on the payment of penal fees.”

3. I also asked, “What is the procedure to vary a parenting order in Brazil?  It is not uncommon for a relocating parent to arrive in the other country and then try to change the order/arrangement to which they and the other parent earlier agreed which was imposed by the Court”.  The response was, “A parenting order can be revised any time in Brazil, of course, observing the due process of law, since one of the parties allege and make proof that the conditions, needs or other circumstances justify the modification of what was established in the judicial determination.”  There does not seem to be an expedited procedure for the recognition and enforceability of orders in Brazil, but orders could be obtained nonetheless.

4. Direct judicial communication is conducted in accordance with the Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges.  These relocation proceedings are proceedings to which the less adversarial trial provisions of the Family Law Act 1975 apply.  As such, not all rules of evidence apply to these proceedings, and hearsay evidence is admissible providing it is relevant. 

5. Direct judicial communications through the International Hague Network of Judges are, by their nature, organisational and practical.  They do not render answers to legal propositions.  They certainly do no deal with the merits of a case. This is clear from the Emerging Guidance regarding the development of international Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards to Direct Judicial Communications in specific cases, within the context of the international Hague Network Judges[1] wherein, at page 12, there is an inclusive description of the matters that may be the subject of judicial communications. 

   [1] Hague Conference on Private International Law, 2013

6. Direct judicial communications are capable of being put into evidence, by consent, as facts upon which the parties agree and may then have the quality of a stipulation.  Otherwise, direct judicial communication is a process of information gathering.  The information provided may be of assistance to the parties and lead them to be able to agree on certain facts and matters, but direct judicial communications are not, of themselves, evidence in the proceeding otherwise that by agreement. 

Annual Report on International Child Abduction 2017 published by the Department of State for the United States of America in relation to Brazil. 

1. The court has the relevant extract from the Annual Report on International Child Abduction 2017 published by the Department of State for the United States of America in relation to Brazil (“the USA Annual Report”).  This document is not an exhibit in the proceedings, but it was a document to which the counsel for the husband was going to refer me.  The first page is signed Rex W. Tillerson, the Secretary of State, Washington D.C.  It is addressed to the reader and begins:

   The protection of citizens abroad is one of the oldest and most important roles of the Department of State.  Every day, from our offices in Washington and our embassies and consulates around the globe, we work for the safety, security and stability of U.S. citizens throughout the world.  We have a special responsibility towards our most vulnerable citizens – our children.  When a parent wrongfully abducts or retains a child across international waters, this act has substantial long-term consequences for both the child and the parents…

   When an abduction or wrongful retention is reported to the Office of Children’s Issues, country officers provide information and resources to left-behind parents and collaborate with foreign government officials to encourage the prompt return of children to their country of habitual residence.  For countries who have not joined the Hague Abduction Convention, consular professionals work with government officials to encourage countries to join the Convention to resolve existing abduction cases.  For our partners under the Convention we actively promote compliance with all obligations.

   These efforts are bearing fruit […] Moreover, many countries cited for patterns of non-compliance in earlier reports to Congress have become reliable partners in implementing the Convention.

2. The report is designed to be used by “congress, parents, law enforcement judges and other general public with information regarding international child abduction”.  To that end, a data page is provided for every country with one or more abduction cases with the Office of Children’s Issues 2016.  These pages are organised into two sections.  The first section consists of 13 countries determined to have demonstrated a pattern of non-compliance as defined by section 101(b)(v) of the Sean and David Goldman Act.  Brazil appears under the section of non-compliant countries.  The country summary reads:

   
   
   

   The United States and Brazil have been partners under the Hague Abduction Convention since 2003.  In 2016, Brazil demonstrated a pattern of non-compliance.  Specifically, the judicial authorities in Brazil persistently failed to regularly implement and comply with the provisions of the Convention.  As a result of this failure, 68 per cent of requests for the return of abducted children under the Convention have remained unresolved for more than 12 months.  On average, they have been unresolved for 49 months.  Brazil has been cited as non-compliant since 2005.

3. The Department of State report is material published by the United States Government.  It is an expression of opinion from one contracting state (USA) as to the performance by another contracting state (Brazil) of its obligations under the 1980 Convention.  However, it is not opinion evidence for the purpose of these proceedings. 

4. Section 79 of the Evidence Act 1995 (Cwlth) provides “if a person has specialised knowledge based on a person’s training, study or experience, the opinion rule does not apply to evidence of an opinion that person that is wholly or substantially based on that knowledge.”  The USA Annual Report is not the expression of a “person”, it is a publication issued by a country.  One cannot know from whom the knowledge was drawn and the opinions therein cannot be tested in the proceedings by cross examination or otherwise. 

5. Section 67ZT of the Family Law Act 1975 provides, inter alia, that Part 3.3 of the Evidence Act 1995 (Cwlth), which deals with opinion evidence, does not apply to child-related proceedings such as these (s67ZT(1)(c)). The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying (s67ZT(2)). The court may apply one or more of the provisions of the Evidence Act if it is satisfied that the circumstances in the case are ‘exceptional’ is and has taken into account all relevant matters including the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence and the ability to adjourn the hearing, to make another order or to give a direction in relation to the evidence (s67ZT(3)). At this point I am not prepared to accord the USA Annual Report significant weight in its current form. I have not heard submissions on whether Part 3.3 of the Evidence Act 1995 (Cth), which deals with opinion evidence, should apply to this case so I make no final determination. On an interim basis, I regard the evidence as being very important, indeed pivotal to the case.

6. The ability to actually enforce parenting orders in Brazil during a brief holiday as well as after determination of the relocation proceedings is a real issue in these proceedings.  I am not be prepared to lift the watch list order in relation to the child on a temporary basis without knowing that her return could be compelled if necessary.  Even if Part 3.3 of the Evidence Act 1995 (Cwlth) does not apply, I must still observe principles of fairness and natural justice.  On an interim basis, I require expert evidence on the issue of the enforceability in Brazil of parenting orders made in Australia.

Legal principles

1. In determining whether I should make any of the orders sought, the paramount consideration is the child’s best interests pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 61DA of the Act provides a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Section 61DA is engaged whenever the court considers making a parenting order. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

1. In this case, parenting orders were made on 10 April 2017 and 12 October 2017 without any allocation of parental responsibility. Accordingly, pursuant to s61C(1) the parents each still have parental responsibility independently of one another. Neither parent asked me today to make an order for equal shared parental responsibility as part of the further interim order. In the circumstances, I will not alter the current position. It would be inappropriate, within the meaning of s61DA(3) to alter parental responsibility to equal shared parental responsibility without hearing from the parents or the independent children’s lawyer.

2. In Goode & Goode (2006) FLC 93-286 the Full Court mapped the legislative pathway to be followed in interim parenting cases. It is stated:-

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

3. The Full Court again considered the approach to be adopted in interim parenting cases in Banks & Banks (2015) FLC 93-637 (“Banks & Banks”).  At paragraphs 48 to 50 the Full Court stated:-

   …By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require a determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in an overcrowded Court list make it even more desirable to identify with precisions which can, or should be resolved on an interim basis. 

   …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.

4. I will proceed in accordance with the principles stated above. I will focus on the s 60CC factors that are most relevant to determining what order is in the child’s best interests.

5. The mother says that she will not linger outside the father’s home during time spend or follow the father and child in the event that they leave his property if I make an order to that effect.  I accept that is the case.  I will make the order.

6. The independent children’s lawyer will contact the maternal and child health care surface to ascertain whether it is workable for the father to attend appointments with the child.  As a matter of principle, I accept that the father’s involvement with the maternal and child health care centre is potentially constructive and beneficial to the child.  However, I do not want the father’s involvement to prove onerous for the maternal and child health care centre, the nurse or the child.  In short, I do not want the child to attend more appointments than she needs, or which are free of charge under government regulation.  The independent children’s lawyer should make her enquiries and then present the parties a proposal which she considers in all the circumstances to be reasonable.

7. The outstanding issues is the graduation of increases to the time which the child spends with the father and the mother’s application to take the child to Brazil for five weeks in the upcoming December/January period.

8. The central issue to emerge from the family consultant’s evidence in relation to the increase of time spent between the child and the father is maternal anxiety.  The family consultant does not know whether the maternal anxiety is culturally based.  It is clear that the mother’s anxieties have not been ameliorated by education such as that offered by a post parenting separation course because the mother has failed to comply with orders that she attend the course.  The mother does not advance the reason as to why she has not attended but at this point in time I must be mindful of the fact that she has not had the benefit of that education and information.

9. The child is primarily attached to her mother and has a secondary attachment to the father[2]. That does not mean that the attachment to the father is not very valuable. The social science routinely delivered as evidence in the court indicates that, unless the primary attachment is sound (not disrupted) the child may have lifelong difficulty in establishing and maintaining healthy relationships. In fact, disrupted attachment in childhood is the pathway to multiple difficulties. That is significant in this case because maternal anxiety can disrupt the attachment between the mother and the child.  The family consultant’s recommendation is that time spend be gradually increased at a rate with which the mother can genuinely cope.

   [2]60CC(3) the court is required to consider the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).

10. The mother seeks that the increase in time be contained to one hour for the two sessions per week.  The father initially sought an increase of time to one overnight and two, four hour sessions per week.  After hearing the family consultant’s evidence he now seeks five hours for three sessions per week.

11. In discussion with counsel for the mother, it seems that the mother will be comfortable with the graduation provided for in the Order.  The frequency of time will increase immediately from twice a week to three times a week. 

12. I have settled on Wednesday, Thursday and Saturday largely referrable to the mother’s convenience around activities which she attends with the child and to maintain the mother’s ability to socialise with friends on Sunday together with the child.  If, or when, the child progresses to spending overnight time with the father, the logical progression may be for that to occur on Wednesday night.  I note Ms C’s view that maternal anxiety appears to be the impediment to an introduction of overnight time at this stage.  

13. The next period of time spent will remain at three hours thereafter the time spent will increase to 4 hours per day until 1 November 2018 whereupon it will be five hours per day from 11 am to 4 pm.

14. I am satisfied that the progression is much more than she proposed but it seems that it is not too rushed for the mother.  The evidence of the family consultant indicated that it was not too much for the child.  I will order accordingly.

15. I give consideration to the fact that the father is making financial contribution to the support of the mother and the child[3].  One of the difficulties faced by the mother is supporting herself in Australia without any support from her own family.  She is also required to study.  The mother did not press today an application that the father pay her education fees.  In fact the matter has proceeded before me today with no mention being made of the imminent change in the mother’s immigration status in Australia in 2019.

    [3] S.60CC(3)(ca)

16. I give consideration to the capacity of each of the parents to provide for the child’s needs including physical emotional and intellectual needs[4].  The maternal anxiety identified by the family consultant has some bearing on the mother’s capacity to care for the child.  It is incumbent upon the mother to undertake the post parenting separation course.  The evidence of the mother’s psychologist is that the mother is progressing reasonably well.  I share the concern of the independent children’s lawyer about the apparent about the psychologist’s diagnosis of post-traumatic stress disorder which is one of the reasons why the next reportable counselling evidence will include a psychological assessment of both mother and father.

    [4] S.60CC(3)(f)

17. I take into account the attitude of each of the parents to the child and to the responsibilities of parenthood[5].  One of the things to be borne in mind is that the child is very young and the parents have many years ahead of them when it would be optimal if they could parent cooperatively.  How the parents relate to each other at this point they set the scene for their future relationship.  The father may succeed in retaining the child in Australia for the time being but if ultimately the mother succeeds with her relocation application, what will be the degree of trust and good will between the parents?  They have many years of parenting ahead of them.

    [5] S.60CC(3)(i)

18. The mother seeks to take the child to Brazil for four to five weeks this Christmas.  The mother’s evidence is that she wants the child to experience her maternal family in Brazil noting that it is been a significant time since the child’s maternal grandmother was in Australia and the mother received her day-to-day support.  I do not underestimate the significance of the mother’s desire to introduce the child to her family in Brazil and reacquaint the child with the maternal grandmother.  The mother has been separated from her culture and lifestyle[6] and her way of life in Brazil for an extended time.  Likewise she has been unable to introduce the child to life in Brazil.  It is not difficult to recognise this as a hardship for the mother and the matter about which she feels aggrieved.

    [6] S.60CC(3)(g)

19. The father’s objections to the child travelling to Brazil are threefold.  First, there is the journey by air of approximately 30 hours plus extra travel time.  Second, there is the fact that the child will be away for five weeks and that he and the child may lose the depth of familiarity which they currently have with each other if the child does not see him for that period.  Both of these were discussed by the family consultant in her evidence.  I am fairly confident that these issues could be overcome.  However, the third objection is not so easy.  The father is concerned that the mother will take the child to Brazil for a holiday but then refuse to return the child to Australia by the agreed date.  The 1980 Convention is in force between Brazil and Australia and if the father’s fears were realised that would, prima facie, constitute a wrongful retention.  Understandably the father has the same degree of caution about the actual enforceability of relevant laws in Brazil in relation to a short visit to Brazil as he has about the child relocating permanently.

20. The information which is published as the USA Annual Report or which was imparted by direct judicial communication does not constitute expert or opinion evidence.  It does, however, satisfy me that there is a need for evidence which is admissible or to which I can give some decisive weight.  In the circumstances of this case that would be evidence of a duly qualified expert.  No party was in a position to nominate an expert as a single expert witness. 

21. The mother’s application in relation to travel by the child to Brazil in December/January will be adjourned to a date to be fixed and await the evidence of the single expert witness or, if one cannot be agreed upon, for each party to make application nominating the expert which he or she says should be appointed pursuant to Division 15.5.2 of Part 15.5 of the Family Law Rules 2004.

Who bears the burden of proof at the final hearing about the enforceability of parenting orders in Brazil?

1. The mother says that she will return to Australia after four to five weeks in Brazil. The father does not accept this is the case.  Inferentially, the mother says that the father can avail himself of the mechanism of prompt and mandatory return of the child to Australia under the 1980 Convention in the event she does not do so.  In circumstances where the father contends that Brazil is non-compliant with the 1980 Convention does the onus of proving that Brazil is non-compliant with 1980 Convention shift to him?  At the hearing before me, Counsel for the father contended that the mother bears the onus of proving that the 1980 Convention will operate to repatriate the child to Australia in the event the mother is non-compliant.  Counsel for the mother contended that the onus is on the father to prove his assertion that the 1980 Convention will not operate as intended.

2. The shifting onus of proof was discussed by Thackray J in Hoult & Hoult [2013] FamFC.  In that case, the wife sought to set aside a binding financial agreement.  The husband opposed the application and relied on the certificate of advice.  The wife asserted that the certificate could not be taken at face value. Thackray J observed at [60] to [70]:-

   60.      In my view, the onus of establishing that an agreement is binding falls upon the party asserting that fact because the legislation provides that an agreement is binding “if, and only, if” the prescribed matters are established. It follows that the party relying upon the agreement must establish the existence of all those matters, including the giving of the requisite legal advice to both parties.

   61.      I recognise the potential forensic difficulty faced by a party who seeks to uphold a financial agreement when the other party claims not to have received the prescribed legal advice. However, the fact there is difficulty in proving something within the knowledge of only the other party and their solicitor does not mean the legal burden of proof passes to the party who seeks not to be bound by the agreement.

   62.      However, I consider that once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party’s solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate (especially when read with the recital in the agreement to the same effect).

   63.      This forensic obligation is properly conceptualised as the burden of introducing evidence and should not be confused with the burden of proof as a matter of law and pleading. For a discussion of the difference see Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 especially at 167-168 per Barwick CJ, Kitto and Taylor JJ and 170-171 per Windeyer J.

   64.      I turn now to consider how the trial Judge dealt with the burden of proof. As I have earlier recorded, his Honour accepted the propositions of counsel for the husband, which were summarised thus:

   25.     Mr Galloway, counsel for the husband, contends that there is a “shifting onus” consistent with the proposition that “the party who asserts must prove”. Thus, it is said, the onus of establishing that there is a financial agreement which is binding rests upon the husband while the onus of establishing that there are factors which render the agreement not binding within the meaning of s 90G, or that the agreement should be set aside by reason of, relevantly, unconscionability or fraud within the meaning of s 90K, rests with the wife.

   65.      With great respect, I find part of this proposition difficult to follow. The giving of the prescribed advice is a necessary element of a financial agreement that is binding within the meaning of s 90G. Read literally, the submissions which his Honour accepted could be seen as indicating that the husband carried the burden of proving that the advice was given and the wife carried the burden of proving that it was not. Both propositions cannot be right.

   66.      Notwithstanding my misgivings about this paragraph, it is clear his Honour ultimately concluded that the husband carried the burden of establishing that the legal advice was given. This can be inferred from what his Honour said at [74] (my emphasis):

   67.      Whatever might be in the contemplation of s90G as being advice that meets the required criteria, what is plain is that, if the agreement is to be binding, the section requires reliable evidence as to that which is said to have been the advice given which meets the criteria (even if, as in Senior, this advice was that there were “no advantages to the agreement”).

   68.      The fact his Honour was of the view that the burden of establishing all the facts necessary to prove the agreement was binding fell on the husband, can also be seen by reference to [88], [94] and [103] of his reasons, which I have cited above.

   69.      Accordingly, the premise upon which Ground 1 is based is made out, namely that the burden of proof concerning the giving of legal advice was cast upon the husband. But as I have said, that is where the legal burden should have fallen.

   70.      Ultimately, however, counsel for the husband accepted the proposition put to him that those parts of the reasons dealing with the burden of proof must be read with [91] to [93] of his Honour’s judgment. Those paragraphs demonstrate that the outcome did not depend upon which party carried the burden of proof, since his Honour made a clear finding accepting the wife’s evidence on the crucial issue.

   71.      Ground 1 therefore fails.

3. Counsel should give careful consideration to the relevant issue and who bears the onus of proof in respect of them.

Conclusion

1. The orders set out at the commencement of these reasons are consistent with the child’s best interests.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 September 2018.

Legal Associate: 

Date:  21 September 2018