Blakey & Blakey
[2020] FamCA 647
•7 August 2020
FAMILY COURT OF AUSTRALIA
| Blakely & Blakely | [2020] FamCA 647 |
| FAMILY LAW – CHILDREN – Application by father for parenting orders including orders for joint parental responsibility – Mother seeks for orders sole parental responsibility – Allegations that children are at an unacceptable risk in the care of the father – Allegations of risk of sexual abuse and family violence – Allegations of alcohol abuse - Orders that the children live with the mother and the elder child spend time with the father only as agreed to by the mother and the younger child spend limited time with the father building up to alternate weekends – Permission for the mother to travel regularly with the children to Japan as a State which ratified the 1980 Hague Abduction Convention – Use of Hague Convention liaison Judges – Question of mirror orders in Japan and/or bond regarding travel |
| Family Law Act 1975 (Cth) s 60B and s 60CC Hague Convention on the Civil Aspects of International Child Abduction |
| J v C in [1969] 1 ALL E.R. 824 Donnell & Dovey [2010] Fam CAFC 16 Mauldera & Orbel (2014) FLC 93-602 Yamada & Cain [2013] FamCAFC 64 Keane & Keane [2020] FamCA 99 |
| APPLICANT: | Mr Blakely |
| RESPONDENT: | Ms Blakely |
| Independent children’s lawyer: | Ms Cope |
| FILE NUMBER: | CSC | 905 | of | 2016 |
| DATE DELIVERED: | 7 August 2020 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 13, 14, 15 & 16 July 2020 and final submissions 5 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC |
| SOLICITOR FOR THE APPLICANT: | Collier Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICiTOR FOR THE RESPONDENT: | Cuthberston & Co. Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Williams |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cope Family Law |
Orders
Previous parenting orders
All previous parenting orders made in relation to Y born …2009 (‘the daughter’) and Z born … 2013 (‘the son’), collectively referred to as ‘the children’ are discharged.
Parental responsibility
Ms Blakely (‘the mother’) shall have sole parental responsibility for the children.
(a)This sole parental responsibility Order shall include decisions about:-
i.the children’s education both current and future;
ii.the children’s religious and cultural upbringing;
iii.the children’s health; and
iv.the children’s names.
(b)This sole parental responsibility Order is subject to the following:-
i.where reasonably possible, the mother will contact the father in writing, including electronically, and provide him with her proposed decisions about any prospective major long term decisions concerning the children before making a final decision about any such issue;
ii.the mother will consider and take into account any reasonably prompt response she receives from the father when making her decision/s about any such issue/s;
iii.the mother will inform the father of any decision made by her about any such issue; and
(c)Such parental responsibility includes that the mother is solely permitted and authorised to apply for the issue and renewal of both Australian and Japanese passports for the children or either of them and she may do so without the father’s consent or authorisation.
(d)IT IS DECLARED for the purpose of any travel overseas that the children are habitually resident in Australia and that neither parent may change or seek to change the children’s place of habitual residence without the written consent of the other parent or an Order or Declaration by a Court exercising jurisdiction and power pursuant to the Family Law Act1975 (Cth).
(e)IT IS ORDERED that the mother shall deposit the children’s passports, both Australian and Japanese, at the Cairns Registry of the Family Court for safe keeping within seven (7) days of their receipt by her on issue or re-issue of the passports or after the children’s return from overseas travel and shall inform the father by email within one (1) day of their deposit with the Court.
(f)Such parental responsibility does not include changing the children’s place of residence to a place beyond 50 kilometres outside the B Town local government area (‘the B Town area’) without the consent of the father or leave of a Court exercising jurisdiction and power pursuant to the Family Law Act1975 (Cth).
Residence Order
The children shall live the mother in the B Town area.
Spend time with Order
The daughter
The daughter shall spend time with the father only at times and under conditions that are agreed to in writing by the mother.
The son
The son shall spend time with the father at all times agreed between the parties in writing or failing agreement:
(a)During school terms as follows: -
i.from the date of these Orders until the commencement of school term one in 2022:-
1.from after school on Friday“(or 10.00 am Friday if it is a student free day) to 7.00 pm on each alternate Friday commencing the first week of school; and
2.between 9.00 am and 4.00 pm on each of the alternate Saturdays and Sundays commencing the second week of school;
ii.from the commencement of school term one in 2022:-
1.each alternate week from after school on Friday (or 10.00 am Friday if it is a student free day) to 4.00 pm on Sunday (or 4.00pm Monday if the Monday is a student free day or public holiday);
2.to commence on the first week of term if the son lived substantially with the mother the last week of the preceding school holiday and to commence the second week of term if the son spent time substantially with the father the last week of the preceding school holiday.
(b)During gazetted mid-year school holiday periods, as follows:-
i.for the years 2020 and 2021 in the Easter, mid-year and September/October school holiday periods, from 8.00 am to 4.00 pm on each of Wednesday, Thursday, Friday, Saturday and Sunday during the first week of each such school holiday period; and
ii.for the years 2022 and onwards for one half of the Easter, mid-year and September/October school holidays, being week one in 2022 and each alternate year thereafter and week two in 2023 and each alternate year thereafter.
(c)During gazetted Christmas/New Year school holiday periods, as follows:-
i.for the Christmas/New Year 2020/2021 school holiday period, during the second week of the school holidays between 8.00 am and 4.00 pm on each of Wednesday 23 December 2020, Thursday 24 December 2020, Friday 25 December 2020, Saturday 26 December 2020 and Sunday 27 December 2020 and each alternate Wednesday, Thursday, Friday, Saturday and Sunday until the start of term one in 2021;
ii.THE COURT NOTES that this 2020/2021 year is to include the son spending time with the father on Christmas Eve, Christmas Day and Boxing Day and is not to include the son spending time with the father on New Year’s Eve 2020 and the time spent is each day not cumulative days;
iii.for the Christmas/New Year 2021/2022 school holiday period, during the first week of the school holidays and each alternate week thereafter between 8.00 am and 4.00pm on each of Wednesday, Thursday, Friday, Saturday and Sunday until the start of term 1 in 2022;
iv.THE COURT NOTES that this 2021/2022 year is not to include the son spending time with the father on Christmas Eve, Christmas Day and Boxing Day and is to include the son spending time with the father on New Year’s Eve 2021 and the time spent is each day not cumulative days;
v.for Christmas/New Year 2022/2023 school holiday and each year afterwards the son shall spend time with the father on each alternate week from 10.00 am on Saturday until 10.00 am the following Saturday until at the latest the last Saturday before the commencement of the new school term and such time shall commence:-
1.the second week of school holidays in 2022/2023 and each alternate year thereafter, and
2.the first week of school holidays in 2023/2024 and each alternate year thereafter.
3.IT IS NOTED that:-
a.these Orders are structured to enable the son to spend Christmas Day with the father in 2020 and each alternate year afterwards and with the son shall live with the mother and the daughter on Christmas Day in 2021 and each alternate year thereafter.
b.these Orders are structured to enable the son to spend time on New Year’s Eve with the father in 2021 and each alternate year afterwards and live with the mother and the daughter on New Year’s Eve 2020 and each alternate year thereafter..
If it is not otherwise occurring pursuant to these Orders, the son shall spend time with the father on special days, as agreed in writing between the parties but failing agreement as follows: -
(a)
with the father each Father's Day, for up to four hours in 2020 and 2021 and as from 2022 onwards from 4.00pm the Saturday before Father’s Day until 4.00 pm on Father’s Day;(b)on the son's birthday, for up to four hours; and
(c)on the father's birthday, for up to four hours.
If the son is not in the care of the mother, he will live with the mother on special occasions as follows:
-(a)each Mother's Day in 2020 and 2021 (and with the mother arranging the son to spend either the preceding or following Sunday with the father as make up time) and as from 2022 onwards from 4.00pm the Saturday before Mother’s Day until 4.00pm on Mother’s Day;
(b)on the son's birthday, for up to four hours;
(c)on the mother's birthday, for up to four hours;
(d)Festival 1 in each year;
(e)Festival 2 in each year;
(f)the Japanese New Year, generally about 4 January in each year;
(g)Festival 3 in each year; and
(h)In respect of the Japanese special days the mother shall notify the father of the date of each of these festivals at least three (3) months in advance and at the same time offer equivalent make-up time in relation to the son’s time with the father.
Changeovers shall take place as follows:
(a)at the son’s schools on school days, with the delivering parent to deliver the child to school at the commencement of school and the collecting parent to collect the child from the school at the end of the school day;
(b)on a non-school day the changeovers shall take place at the McDonald’s Restaurant at Suburb A; or
(c)such other place as may be agreed by the parents in writing.
Communication
The parent who does not have the children in their care will have telephone or other electronic communication, such as FaceTime, Skype et cetera with the son on Monday of each week, with the parent who has the son in their care to initiate the call between 6.00 pm and 6.30 pm.
Such Monday communication may be changed by the mother to another weekday to meet the needs of the son and provided the mother gives the father twenty-eight (28) days’ notice in writing or email of such change and the reason for the change.
Both parents shall facilitate the children communicating with the other parent at all reasonable times as requested by the children.
The mother and the father shall keep each other informed of their email addresses and telephone contact numbers and advise each other within forty-eight (48) hours of any change.
The parents will communicate with each other concerning issues relating to the children through the use of email unless there is an emergency.
Overseas Travel
As and from the date of these Orders the mother is permitted to travel with the children to Japan on two (2) occasions each year for a period of up to two (2) weeks and on each occasion, unless otherwise agreed in writing between the parties, the following terms and conditions shall apply:-
(a)Unless there is a serious issue of heath or the death of a close member of the mother’s family in Japan (a family emergency), the mother must give the father at least two (2) months’ written notice of the intention to travel, or twelve (12) hours’ email notice if there is a family emergency.
(b)A Registrar of the Family Court is permitted to release the children’s passport/s to the mother, upon her producing the documents set out in order (c) below and such release shall be permitted at any time from two (2) weeks prior to the date of departure or in the event of a family emergency (provided the father is notified by email) on the giving of twenty four (24) hours’ notice to the Court.
(c)Two (2) weeks prior to departure or as soon as is practicable in the event of a family emergency the mother is to provide to the father:-
i.copies of return tickets for herself and the children;
ii.copies of itinerary for the children; and
iii.an address and telephone contact for the children during the period they are away.
(d)The travel period must not exceed two (2) weeks unless otherwise agreed by the parents in writing. The mother must facilitate equivalent make up time to the father for any period of time that the son would have otherwise spent with the father while the son was overseas with the mother.
(e)Such travel periods must not include Christmas Eve, Christmas Day or Boxing Day where the son is to spend time with the father, unless otherwise agreed by the parties in writing.
In addition to the provisions to travel to Japan set out above, as and from 1 January 2023 the father and the mother will each be permitted to travel overseas with the children during the time that children are spending time with her or him pursuant to these Orders or by agreement, subject to:-
(a)the travelling parent giving the other parent art least two (2) months’ written notice of their intention to do so; and
(b)provided that the State or Nation of the proposed travel is not listed on the Australian Smart Traveller website ( with a travel advice warning as Level 3 – Reconsider the need to travel or Level 4 – A direct warning not to travel.
Within fourteen (14) days of the date of receipt of the written travel notice both parents are to sign the necessary documents to release the children’s passports.
Immediately upon booking overseas travel for the children and at least two (2) weeks before travel (except for the mother in the case of a family emergency in which case it will be 12 hours before departure), the travelling parent will provide the other parent with:-
(a)a copy of each child’s itinerary;
(b)details of where the children will be staying whilst overseas; and
(c)Skype or telephone contact details that can be used while the children are overseas.
The mother and father are expressly permitted to remove one or both of the children to a place outside the Commonwealth of Australia provided it is done in accordance with these Orders or in accordance with s 65Y(2)(a) of the Family Law Act 1975 (Cth).
Counselling Therapy and Health Orders
Counselling
The parents will do all acts and things to ensure the daughter’s continued attendance on her treating psychologist, currently Ms C, for the purpose of assisting the child to develop strategies to better manage adjusting to the parenting arrangements as set out in these Orders.
The parents will share equally in the cost of the daughter’s attendances on her psychologist, with the mother to use her best endeavours to obtain a mental health care plan.
The parents will attend on the daughter’s psychologist as requested by that psychologist and each parent will be responsible for their own cost of any such attendance.
The mother will within seven (7) days provide a copy of these Orders and the Reasons upon which they are based to the daughter’s treating psychologist, currently, Ms C.
The mother shall not change the daughter’s treating psychologist unless recommended by Ms C or if she is no longer available, the daughter’s treating General Practitioner.
IT IS NOTED the parents agree that they will share the cost of the daughter’s attendance at the psychologist and that the mother will use her best endeavours to obtain a mental health care plan each year. Any such payment by the father for such psychologist is by this notation not to be treated as a payment to otherwise reduce any child support obligations to which he may be liable.
Family Therapy
Within four (4) weeks of the date of these orders each of the parents shall contact psychologist, Mr D and arrange for family therapy in an effort to find safe ways for the daughter to spend time and/or communicate with the father and for the parents to undertake better skills in their communication.
The parents are requested and permitted to provide a copy of these orders and the Reasons upon which they are based to Mr D.
In relation to such family therapy:-
(a)The father is requested to meet the cost of that therapy, but may request the mother to seek a mental health plan in relation to herself and the daughter to assist in facilitating such report and may use his own entitlement to any mental health plan for that purpose.
(b)If the father chooses not to meet the cost of therapy it need not go ahead.
(c)The father and mother shall not be interviewed together by Mr D without the express consent of the mother and father in advance.
(d)The daughter shall not be required to meet with the father without her clear and express consent in advance.
(e)If the mother is concerned about attending a male psychologist she should be permitted to have a female friend attend with her at such appointment.
(f)The father and mother shall accept the reasonable directions of the family therapist.
Medical and Health Issues
The parents shall advise each other of the name and contact details of the children’s medical practitioners and shall keep each other advised of the name and contact details of any medical practitioner providing treatment to the children. The parents shall be at liberty to contact the children’s medical practitioners to ascertain the children’s progress from time to time.
The parents shall advise each other of any specialist medical appointment made for the children not less than seven (7) days before such appointments. Both parents shall be entitled to attend any such specialist appointments.
The parents shall inform each other of any emergency medical procedure concerning the children, including any attendance by them at a hospital or doctor/medical centre whist the children are in the care of that parent, as soon as practicably possible and not more than within three (3) hours of any such attendance.
These Orders shall, without more, act as authority to each of the children’s medical and allied health practitioners (including therapists, counsellors and psychologists) to provide each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of medical records and reports.
School and Extra-curricular Activities
Both parents shall be at liberty to attend all educational, extra-curricular functions, events and activities the son may be involved in or to which parents are normally invited, subject always to the discretion/policy of the school or institution.
Neither parent shall enrol the son in any extra-curricular activities which are to be fulfilled during the time that the son is with the other parent without first consulting the other parent in relation to those commitments.
Both parents are to be responsible for taking the son to any extra-curricular activities in which the son is involved when the son is in their respective care.
These Orders shall, without more, act as authority to the children’s schools to provide each parent (at that parent’s expense) information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents.
When enrolling the son in any educational, day-care or extra-curricular activity, the enrolling parent will ensure that the other parent’s name, address and contact numbers are noted on the enrolment form as well as the son’s Australian legal name given at birth, with a direction that the other parent be noted also as an emergency contact on the records of that institution or facility.
Injunctions
During the time the children are with the other parent, that parent shall use their best endeavours to:-
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent, and
(b)speak of the other parent respectfully.
The father shall not consume alcohol to excess or consume any illicit substances while the children are in their care, and shall remove the children from the presence of others who may be doing so.
Neither parent shall physically discipline the children, or allow any other person to do so.
The father shall not co-sleep with either of the children and when and if the children (or either one of them) stay overnight with him, he shall have separate beds available for each child and he shall not share such bed with either child.
On or before 31 January 2022 the mother shall arrange for the children to have their own beds and sleep in those beds. After that date the mother shall not co-sleep with either of the children
Neither parent will discuss these proceedings with the children or in the hearing or presence of the children and both parents shall ensure that no third party discusses these proceedings in the hearing or presence of the children and shall ensure the children do not have access to documents filed in these proceedings.
Each parent is restrained from denigrating, abusing demeaning or insult the other parent or members of the other parent’s family in the presence or hearing of the children and each parent shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
The father shall not consume alcohol to excess or consume any illicit substances while the children are in his care, and shall remove the children from the presence of others who may be doing so.
Generally
Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The mother and the father be and are granted leave to provide (now and into the future) to their respective health care providers and the health care providers copies of:-
(a)these Orders;
(b)the Reasons for Judgment upon which these Orders are based;
The Independent Children’s Lawyer appointment will be extended for a period of twelve (12) months, and:-
(a)The Independent Children’s Lawyer is requested to meet with the children within fourteen (14) days after the making of these orders and explain these Orders to the children. The mother shall make the children available for that purpose;
(b)The Independent Children’s Lawyer is requested to forward to the Queensland Child Protection Authorities copies of the following:-
i.these Orders;
ii.the Reasons for Judgment upon which these Orders are based; and
All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
At the expiry of twenty eight (28) days from the date of this order or such other time as is agreed or ordered all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
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 Blakely & Blakely 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 Hobart |
FILE NUMBER: CSC 905 of 2016
| Mr Blakely |
Applicant
And
| Ms Blakely |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
This is a difficult case relating to the children of a marriage between Mr Blakely (‘the father’), an Australian born man and Ms Blakely (‘the mother’), a Japanese woman. They have two children, a daughter, Y, aged 10, almost 11 (‘the daughter’) and a son, Y, aged 7 (‘the son’).
The father was born and brought up in Australia and has lived in Australia the whole of his formative years and beyond. The mother was born in Japan and had lived in Japan the whole of her formative stages of her life. She and the father commenced a relationship in March 2007 and married later in 2007. They have lived in Australia since that time.
Marriages between people from different cultures can, in the best of circumstances, offer significant cultural and philosophical challenges to the parents and their children.
In the case of these parents, it is part of a toxic mix of various factors.
The parents separated in December 2016 and issues existed and have arisen which have added further dimensions to the conflict that bedevils the parties and more importantly, the children.
In January 2020 and March 2020 the daughter made disclosures that the father had either sexually abused her or engaged in sexualised behaviour towards her.
The father vehemently denies any such behaviour and contends that the mother has, either maliciously or unconsciously, alienated the children from him. He says the daughter was either coached or induced (presumably by the mother) to make the disclosures of sexual abuse. Alternatively, he contends that the disclosures have an innocent explanation, including the circumstance that the children and the mother (and possibly the father) continue to co-sleep. This is a Japanese cultural practice.
The mother believes the daughter was sexually abused by the father and the mother is endeavouring to be protective of her. On the evidence, it is clear that the mother will emotionally struggle to manage any time the daughter has with the father, if ordered to do so. I am satisfied that the daughter will also struggle in spending time with the father.
The mother seeks orders that the daughter only spend time with or communicate with the father as the mother considers is appropriate. Yet, such is the mother’s culture and her character that she supports an order that the son spend time, eventually overnight time, with the father.
There is a well-founded allegation by the mother of family violence and coercive and controlling behaviour by the father to her and the children. The father mendaciously denies any family violence on his part.
The communication between the parents is, at best, basic and given the period of almost four years since separation, it is unlikely to improve.
The father believes that the mother is mentally unwell and despite expert psychiatric evidence to the contrary, he has not been disabused of that belief.
In addition to the allegation of risk of sexual abuse to the daughter, the mother contends that there are elements of the father’s violent and coercive behaviour, combined with a likely long past history of drug abuse and a current history of alcohol abuse, which must be taken into account in any parenting orders. These include allegations that the children may be at risk of harm in the father’s care by virtue of his alcohol use, alleged drink driving, violence and anger.
An Independent Children’s Lawyer was appointed and she was a great assistance to the Court. Although, the decision finally made by the Court was substantially different from that submitted by the Independent Children’s Lawyer. As always, the particular orders are the final decision of the Court once the contentious facts have been decided.
There are serious issues of credit raised by each of the parents. Both the father and mother were cross examined by counsel (including senior counsel) for the other party and the Independent Children’s Lawyer.
Evidence was provided by a family reporter in her 2017, 2018 and 2020 psychological and family dynamics reports.
A psychiatrist provided an expert psychiatric assessment of each of the parents.
The children have had a treating psychologist (‘the Counsellor’) for at least the last 12 to 18 months. The Counsellor gave evidence of the therapeutic treatment provided by her and of disclosures by the daughter of sexual abuse or sexualised behaviour made to her.
The competing applications
The orders the mother seeks are set out in her Second Amended Response filed 13 July 2020 and repeated in her Outline of Case.[1] The mother’s application remained substantially constant during the hearing.
[1] Exhibit E3 the mother’s Outline of Case dated 13 July 2020 by Ken Cuthbertson - attachment B.
The mother seeks orders that she has sole parental responsibility for the children and that they live with her.
The mother asks that there be no contact or communication between the daughter and the father other than on the conditions approved by her. This is effectively a no time or communication order.
As to the son, the mother seeks a long graduated approach to time between the son and the father. For the next 18 months or so the mother seeks day time only orders for the son to spend time with the father on alternate Friday afternoons and alternate Saturdays and Sundays during school terms. Over the school holiday periods she seeks four separate days in one week of each of the mid-year school holiday periods and the same over the Christmas/New Year school holidays, except that they are alternate weeks over that six to eight week break.
After March 2022 the mother seeks orders that the son spend alternate weekends with the father and half of all school holidays.
The orders the mother proposes set out times for special occasions, arrangements for changeover and communication.
Prior to separation, the mother and the children had travelled regularly to spend time with the mother’s family in Japan. The father has not permitted the mother to travel with the children to Japan since separation. The father does not object to the travel, subject to a $10,000 bond payable by the mother. I accept the mother’s evidence that she does not have the resources to meet this or even a significantly reduced bond. She offered a bond of $1,000 in her 5 August 2020 submission.[2]
[2] Exhibit E18.
On 24 January 2014 Japan ratified the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Abduction Convention’). In that context the mother seeks permission to travel to Japan up to two times per year for durations of no more than two weeks. Included in those orders were machinery provisions for passports, notice, itinerary et cetera. The mother sought provision for emergency travel to Japan in the event of any serious illness or the death of a member of her family. The mother also sought a broader travel provision.
Finally, the mother sought orders relating to schools and extracurricular activities, medical and health issues and orders about the conduct of the parties.
The father initially sought orders that he and the mother have equal shared parental responsibility of the children. He accepted that the children should live with the mother.
In final submissions, he sought orders that the mother have sole parental responsibility of the children, but seek his input and keep him informed of relevant decisions regarding the children.
As to spending time, the father sought orders that the children live with him, during school terms, for five nights per fortnight increasing to equal time after three months. He sought equal time over school holidays. Later he joined with the Independent Children’s Lawyer seeking alternate four night weekends and half of school holidays, with a submission that the Court consider five or six nights per fortnight during school term.
In addition the father sought communication orders, non-denigration injunctions and other restraints, as set out in his Case Outline.[3]
[3] Exhibit E2 the father’s Outline of Case dated 7 July 2020 by Nardine Collier.
The Independent Children’s Lawyer relied upon her Outline of Case.[4] Sensibly, the Independent Children’s Lawyer made no formal recommendations as to orders until the evidence had concluded. As an aide to her counsel’s final submissions the Independent Children’s Lawyer relied upon a draft minute of order.[5] Much of the detail of those orders were the subject of consent by the parents, although substantial matters of parenting needed to be determined.
[4] Exhibit E1 Independent Children’s Lawyer’s Outline of Case dated 8 July 2020 by Patricia Cope.
[5] Exhibit E13.
The parents agreed that the mother should have sole parental responsibility of the children as suggested by the Independent Children’s Lawyer. I have made that order. The father sought a variation that the mother inform him, where possible, of her proposed decisions and take into account his replies. I have adopted that course, which is not intended to derogate from the mother’s authority to make the final decision.
The Independent Children’s Lawyer, the father and the mother each sought orders that the children live with the mother. I have adopted that course. The father sought a condition that the mother live in B Town. Given the mother’s evidence of her intention to live in B Town and the reality that if she chooses to move out of the B Town area (given the orders I will make) the mother will need the father’s permission or an order of a court. The term ‘B Town area’ was vague and could be as small as the B Town central business district or broader. To avoid further conflict, I have defined the area as 50 kilometres outside the B Town local government area (the B Town area). It is broad, but contained.
The Independent Children’s Lawyer submitted that the children should each spend overnight time with the father. Given the role and experience of this Independent Children’s Lawyer, I carefully considered that recommendation, but determined another course.
The time suggested by the Independent Children’s Lawyer was alternate weekends during school time from after school Thursday to the commencement of school Monday, a four day per fortnight arrangement. In addition, the Independent Children’s Lawyer submitted equal time over the school holiday periods.
The father adopted the Independent Children’s Lawyer’s submissions and this approach sought a five or six day per fortnight arrangement. He accepted the equal time over school holidays period. Either way, it was to be significant and substantial time.
The Independent Children’s Lawyer sought provision for special days including Christmas, New Year, parents’ birthdays, and children’s birthdays, Father’s Day, Mother’s Day and the like. The parents were substantially in agreement as to these occasions. The mother sought a number of special Japanese days, with provision for make-up time, to which the father agreed. Given the high level of conflict and the poor communication, I have structured the orders relating to the son so that the son spends alternate Christmas days with each parent and alternate New Year’s Eve with each parent. It is hoped that the orders will mean that the child spends Christmas with one parent and New Year with the other, in each year.
The Independent Children’s Lawyer sought an injunction requiring the parents to arrange for the children to sleep independently in their own beds. I have made this order in terms of the father, as it accords with his evidence and submissions. As to the mother, I have made an order for her to wean the child off co-sleeping over the next 18 months or so.
The Independent Children’s Lawyer sought changeover orders, which were non contentious, and communication orders. There was no object to an order that the children could communicate with either parent when reasonably requested by the child. I have made that order. The Independent Children’s Lawyer submitted that the children should contact the father each alternate Sunday. The mother accepted this in terms of the son, but not the daughter. The father sought weekly communication. This was a relatively innocuous dispute (except as regard calls to and from the daughter) and I have discussed this later in the Reasons. I have also changed the day from Sunday to Monday.
The Independent Children’s Lawyer proposed orders enabling both parties to travel overseas and for the making of mirror orders in Japan, this approach was ameliorated after the reply from the Japanese Hague Convention Judge. There was no objection to the mother and children travelling to Japan. The dispute was initially the question of whether mirror orders ought to be a pre-condition, including if the mirror orders were not in place whether a bond be necessary and, if so, the amount of the bond.
The parents both agreed to broader overseas travel and that the children’s passports be held by the Court.
The remaining orders sought by the Independent Children’s Lawyer related to school and extracurricular activities, medical and health issues, counselling and the conduct of the parents. These were essentially agreed between the parties. The father also sought family therapy as recommended by the family reporter.
There were a number of modest issues to determine in respect of those substantially agreed areas and I have made those determinations. I also restructured some of the orders.
With regard to the question of mirror orders, it was clear that the father did not oppose the children travelling overseas to Japan provided those mirror orders were in place or these was a bond.
Consequently, with the consent and approval of the parties, an email[6] was forwarded to Bennett J, the Australian Hague Liaison Judge, in the following terms [formal parts omitted]:-
I commenced a hearing in this parenting matter today. It relates to the parenting arrangements for the parties two children; their daughter, [the daughter] aged 10 almost 11 and their son, [the son] aged 8.
The mother in this case was born in Japan and seeks orders that she and the children be permitted to travel to Japan on a regular basis (twice per year for up to two weeks) to visit the mother’s family.
I raised with Senior Counsel for the father, Counsel for the mother and Counsel for the Independent Children’s Lawyer whether I could contact you as Hague liaison judge as to how mirror orders can be made in Japan. They all agreed and permitted me to make this enquiry.
Further, when giving evidence in chief in response to a question from his senior counsel, the father deposed that he has no objection to the mother travelling to Japan from time to time to visit her family, provided there were mirror orders in place in Japan.
Obviously, the nature and extent of such orders will be a matter for me once the evidence is concluded, submissions made and reasons reserved.
I propose to make a copy of this email and any reply available to the parties, excluding your email address etc.
[6] Exhibit E8.
The reply from the Japanese Hague Convention Judge was received by this Court on the evening of 30 July 2020. The next day, Friday, 31 July 2020, an email was sent to each of the parents’ legal representatives and the Independent Children’s Lawyer. [7] That email set out the Japanese Hague Convention Judge’s reply, which read:-
Unfortunately, we do not have mirror order system in Japan, therefore, mirror orders cannot be made by agreement between the parties. Generally speaking, under our domestic law, it is possible for parents to make an agreement which is binding by way of mediation, however, there is no guarantee that the agreement is enforceable in that children will be returned to the country where he or she previously lived, since the enforceability of the agreement depends on actual content of each clause of the agreement and the interpretation of the related law.
[7] Exhibit E15.
As a consequence a Chambers Order was made that day requesting that any further submissions be made on or before Wednesday 5 August 2020.
Issues
The significant issues I need to determine are:-
a)whether the children are at an unacceptable risk of harm in the father’s care;
b)the mother’s belief that the daughter has been sexually abused by the father and the relevant impact of this;
c)whether the mother should be required to engage with the father in terms of her exercise of sole parental responsibility;
d)whether there should be orders that the daughter spend time with the father and, if so, for what time periods and whether it should include overnight time;
e)the extent of time the son spends with the father, including any build-up of time;
f)the nature and extent of the father’s telephone communication with the children;
g)whether the mirror orders in Japan should be a pre-condition before the mother and children travel to Japan; and
h)in the event mirror orders are not made, whether the mother should be required to leave a money bond behind in Australia and the amount of that bond.
These issues need to be determined in the context of the allegations of sexual abuse, family violence, coercive and controlling behaviour and alcohol use by the father.
BACKGROUND
The father is aged 48 and according to the family reporter he was raised in Melbourne and his family supports are Victoria.[8] The father was born in Australia and has disclosed no physical health issues. Dr E described him as: -[9]
36.… an intelligent man, well educated, generally has good work record and I do not see him as having serious underlying psychiatric problems
[8] The first family report 10 October 2017 paragraphs 45 to 60.
[9] Dr E’s report 10 October 2017 paragraph 36 (page 19 of 31 of Dr E’s affidavit).
The father in his application describes his occupation as a professional.
The mother is aged 45. She was born in Japan and has apparently lived in Japan most of her life. She met the father in F Town in 2006. They started a relationship in March 2007 and married in Japan later in 2007.
The mother informed the family reporter that she was of good health. The mother says, and I accept, that she does not consume alcohol, does not smoke and has not taken recreational drugs.
The mother identifies as being of Japanese culture. English is her second language. She says, and I accept, that she wishes to bring the children up to be connected to their Australian culture and that she wants them to be connected to their Japanese culture.
Her evidence is that the children speak both English and Japanese.[10] The mother’s first language is Japanese and she speaks adequate English, although I observed that she struggles with the subtleties of the English language and she cannot be said to be fluent in English.
[10] The first family report 10 October 2017 paragraphs 20 to 35.
The two children of the marriage are the daughter and son to whom I have earlier referred. They live primarily with the mother. At the present time they have limited or no contact with the father.
The daughter attends the local school and is in grade 5. The son attends the local school and is in grade 2. The children are citizens of both Australia and Japan.
In terms of the current arrangements in relation to the children, they are set out in the third family report, being the June 2020 report of Ms G (‘the family reporter’).[11] The children have resided with the mother since separation. As from January 2020, apart from telephone exchanges with the son, there has been no contact between the children and the father until the family reporter’s appointment on 11 June 2020 at the Cairns Registry at the Family Court and an inadvertent contact at a supermarket a few days later.
[11] The third family report paragraphs 4 to 6.
The mother describes her occupation as homemaker.
Prior to separation the mother asserted that in 2016 the father held the daughter by the neck while bathing her and said the child was very distressed. This claim is denied by the father.
The parents separated on 17 December 2016 when the mother moved into a Women’s Refuge with the children.
On 19 December 2016[12] the mother wrote a letter to the father in which she alleged that the father had been violent to her and the children, and that the father was allegedly controlling and abusive. The mother said at that time:-
[12] Mother’s trial affidavit paragraph 62, Exhibit M2 page 65.
I had left you because of your verbal abuse and violence towards me and children. This has been going on for 3 years now. Once your anger switch is on, you call me names such as “fucking stupid” “bitch” “fucking psycho” and yell and threatened even in front of children.
You got angry to me in front of [the daughter]. [The daughter] said to me “Daddy is scary” and hid behind me. You pushed me into the wall. Your attack let me a bruise and soreness on my body. I had to say to you “I will call a police” in front of children.
14/12/16 When the children were fighting about soft toys, you took away and hid them. [The daughter] was completely in panic. Her breathing was very strange. When I let the children enter the another room, you kept saying to her even I asked you “please wait until [the daughter] is calm down.”
15/12/16 I said to you “how about separation?” when I was just with you. You started talking about this matter in front of children.
You stealed [sic] up to me and whispered about something in my ear from behind. You had been ridiculing me with big voice when I talked to the children. Children hug my body and kept saying “Daddy is strange, scary”. You made big noises in the night after we went to the bed.
I am not only frightened for my own safety, but also for our children's safety.
I need some “time out” to think about what I want to do, and what is best for the children. We are safe where we are staying.
I am not taking the children away from you, we just need a break. I will contact you as soon as I feel up to it and arrange for you to see the children.
If you want to contact us, you can write to this address.
The father asserts that his behaviour was not as claimed by the mother and that the mother had serious mental health issues and that she was and is engaged in parental alienation.
After separation the father commenced proceedings in the Federal Circuit Court on 22 December 2016. In his application he sought an order that the children live with him. Given his history of violence to the mother and the children and his previous abuse of drugs and his abuse of alcohol such parenting order was ambitious at best and was, in all the circumstances, intimidating and controlling behaviour by him.
There have been four consent interim parenting orders made in the Federal Circuit Court namely: 13 June 2017, 20 April 2018, 2 November 2018 and 6 December 2018. I have read and considered those orders.[13]
[13] Exhibit E1 Independent Children’s Lawyer outline of case ‘documents to be read’ page 1/29.
On 1 May 2019 these proceedings were listed for final hearing in the Federal Circuit Court on a date to be fixed, likely in 2020.
On 26 May 2020 the proceedings were transferred to the Family Court, presumably as a consequence of the alleged disclosures by the daughter in January 2020. On 3 June 2020 I made orders fixing the proceedings for an audio visual hearing before me commencing 13 July 2020.
On 7 January 2017 the mother provided a statement to police setting out her allegations of family violence suffered by her and the children.[14]
[14] Mother’s trial affidavit Exhibit M3 pages 75 to 78 and Exhibit E5 ICL tender bundle pages 39 to 42.
The mother made an application for a family violence order by application sworn 13 January 2017.[15] On 2 February 2017 the mother was granted a temporary protection order in a Queensland Magistrates Court.[16] That order was varied on 23 February 2017.[17]
[15] Mother’s trial affidavit Exhibit M3 pages 67 to 74 and Exhibit E5 ICL tender bundle pages 31 to 38.
[16] Exhibit E5 page 43.
[17] Ibid page 44.
The father filed two affidavits in response to the family violence proceedings, the first sworn 1 June 2017[18] and the second sworn 2 June 2017.[19]
[18] Exhibit E9.
[19] Exhibit E10.
After a defended hearing in the Queensland Magistrates Court a final protection order was made on 16 October 2017 and that order remained in force until 15 October 2018.[20]
[20] Exhibit E5 page 49
An Independent Children’s Lawyer was appointed early in the parenting proceedings and remained involved in the Family Court proceedings. Over the years she has requested the family reporter to prepare three family reports.
The family reporter interviewed the family on 26 September 2017 and prepared a report dated 6 October 2017(‘the first family report’).[21]
[21] Affidavit Ms G filed 12 October 2017 with first family report dated 6 October 2017.
Also on 26 September 2017 the mother and father were each interviewed by Dr E who provided a report as to the psychiatric status of each of the parents. Dr E provided an affidavit[22] annexing his curriculum vitae and the separate reports as to each parent (‘Dr E’s reports’).
[22] Affidavit Dr E filed 19 October 2017 with annexed report dated 10 October 2017.
In anticipation of a hearing in the Federal Circuit Court on 30 October 2018 the family reporter again interviewed the parties and prepared a report dated 6 November 2018 (the second family report). That report was annexed to her affidavit filed 4 December 2018.
The counsellor provided a statement on 3 December 2019 was filed.
In anticipation of a hearing before me on 11 June 2020 the family reporter again interviewed the parties and children and she prepared a report dated 29 June 2020 (the third family report). That report was annexed to her affidavit filed 30 June 2020.
The conflict between the parents was continuous between separation, early 2020 and the hearing.
On 14 January 2020 the mother asked the daughter leading questions in relation to sexual abuse. The following day, 15 January 2020, the Counsellor saw the daughter who made disclosure to the Counsellor.
On 20 January 2020 the daughter was interviewed by Queensland Police, I have seen and considered that interview.[23]
[23] Exhibit E6.
After the first police interview the mother was concerned that the daughter had not fully informed the police about the events. She spoke to the Counsellor and sent an email to police.[24] As a consequence, there was a second interview between the daughter and the police on 9 March 2020. I have seen and considered that interview.[25]
[24] Mother’s trial affidavit paragraphs 296 to 298.
[25] Exhibit E7.
Since that time, neither child has had face to face contact with the father other than the meeting with the family reporter. The family reporter provided an updated report in her affidavit sworn 29 June 2020[26] and filed 30 June 2020 and containing a report of 29 June 2020 (the third family report).
[26] Third family report of the family reporter.
On 15 July 2020 senior counsel for the father said that there was an agreed fact that the father had, that day, obtained employment with H Company commencing on 20 July 2020.
In these proceedings any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE LAW
The provisions of the Family Law Act (Cth) 1975 (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[27]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[27] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
McEvoy J elegantly set out the law regarding principles in parenting proceedings involving allegations of abuse and corroboration of evidence of family violence in Keane & Keane [2020] FamCA 99 where his Honour said:-
Principles in Parenting Proceedings Involving Allegations of Abuse
63.The central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made.
64.As the High Court observed in M v M (1988) 166 CLR 69 at 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
65.How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. Frequently it will not be possible to resolve with certainty whether particular allegations of abuse are made out. That this is so is unremarkable in the present context and was the subject of specific attention by the High Court in M v M (at 76) in a much cited passage:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
66.Where one parent alleges that the other has engaged in the sexual abuse of a child it is for the Court to make an assessment of the relevant facts and conduct the fact finding exercise by reference to the civil standards of proof. Again, as the High Court said in M v M (at 76-77):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Citations omitted)
67.In Fitzwater & Fitzwater [2019] FamCAFC 251, at [13]-[15] Strickland and Aldridge JJ referred to parts of this passage, and noted the observations of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 at 82,713-82,714, approved by the Full Court in Napier v Hepburn (2006) FLC 93-303 at 81,115 and Johnson and Page (2007) FLC 93-344 at 81, 888-81,889, that:
… the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
68.How the Court is to go about assessing whether there is an unacceptable risk of sexual abuse or risk of harm to the child involves, on the one hand, making findings of basal facts on the evidence before the Court and, on the other, using such facts as part of the predictive exercise in making findings about the possibility of the wider issue, that is any risk of harm posed to the relevant child or children which inform the parenting orders needed to resolve the dispute. The basal facts found, assessed in the light of all other relevant matters, form the factual substratum for an assessment of the unacceptability or otherwise of the risk.
69.The fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 and referred to in M v M as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
70.As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence. Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.
71.In Malec, Brennan and Dawson JJ said (at 639 - 640):
… facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities… the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history… the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
72.In Fitzwater & Fitzwater, Austin J noted that although the High Court in Malec was referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction: see Oswald v Karrington (2016) FLC 93 – 726 at [60] and Bant & Clayton (2015) 54 FamLR 621 at [99], [107], [171] and [172]. His Honour considered, and I respectfully agree, that such application of principle is consistent with the principles essayed by the High Court in M v M.
73.Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
74.Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged, their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.
75.As the Full Court said in Napier v Hepburn (2006) FLC 93-303, at [82]:
…But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father’s denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child’s life. What potential there was for these events to continue to occur if they have previously occurred in the past might well be diminished by the bright lights that have been shone upon the parties and their conduct in the course of these proceedings.
76.As the majority in Fitzwater & Fitzwater makes plain in relation to s 140(2) of the Evidence Act, the nature of the cause of action and the gravity of the allegations are relevant to the degree of satisfaction that the Court must hold to accept the proffered case. Thus, their Honours observe, the nature of the allegations of the alleged sexual abuse are relevant to a finding (that is the future projection) that there was a possibility of such abuse.
77.The process of evaluating whatever allegations are made must be conducted vigorously, and the termination of a relationship between the child and the allegedly abusive parent ought generally be the course of last resort. As the Full Court observed in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, at 79,217-8 (Kay, Holden and O’Ryan JJ):
Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times…
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
78.Having regard to these principles it is necessary to assess the relevant facts – here the allegations of psychological, physical and sexual abuse of the mother and the child made by the mother, and the father’s denials – and to conduct the fact finding exercise by reference to the civil standards of proof. If the father’s denials are to be rejected, there must be reasons given for doing so. The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Part VII of the Act.
Corroboration of Evidence of Family Violence
79.Having regard to aspects of the mother’s written submissions, and the evidence more generally in this case, it is also convenient to say something in this context about the corroboration of evidence of family violence. The mother has submitted, referring to the decision of the Full court in Hendy & Penningh [2018] FamCAFC 257 at [72], that in relation to the alleged incidents of violence and abuse, it is “well settled that a party does not require their evidence to be corroborated before evidence of family violence can be accepted”. The Full Court there referred to Amador & Amador (2009) 43 FamLR 268 at [79], where it was observed that given the tendency of domestic violence to occur in circumstances where there are no witnesses other than the parties to the marriage and perhaps their children, it cannot be accepted that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. The mother emphasises, relying on Hendy & Penningh, the importance of identifying a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence. On the subject of corroboration more generally, the mother refers to the well known passage about corroborative evidence in Doney v The Queen (1990) 171 CLR 207, 211.
80.The mother’s submissions as to the nature of corroboration in circumstances where family violence is being alleged and the importance of identifying a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence in particular cases may be accepted at the level of general principle. The importance of such an approach is readily apparent in the circumstances confronted by the Full Court in Hendy & Penningh.
81.It may also be accepted, consistently with these and other authorities, that evidence of family violence (as with evidence of other things) does not need to be corroborated to be accepted. However the importance of identifying a core consistency in the evidence of an alleged victim of family violence, while undoubtedly important in certain circumstances, does not permit a court to ignore or otherwise dismiss inconsistences in that evidence. The assessment of the evidence in a civil proceeding must be undertaken by reference to the standard of proof prescribed in s 140 of the Evidence Act. Consistently with s 140, the Court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities, having regard to the nature of the cause of action or the defence, the subject-matter of the proceeding, and the gravity of the matters alleged. The reference to the importance of identifying a core consistency, while important in cases involving family violence, must not obscure the reality that there cannot be a finding of family violence otherwise than in accordance with s 140 of the Evidence Act, and having regard to all relevant matters. Where allegations of family violence are made it is necessary for the Court to make findings where the evidence enables that to be done.
The parents and the Independent Children’s Lawyer submit that with the son, there should be a move to overnight time. The mother proposes that this occur in March 2022, when the son attains the age of nine. While I accept the generality of that approach, it seems to me that such change should occur at the commencement of school term in that year, probably late January or early February rather than March 2022. The parties also agree that at some stage there should be a split school holiday arrangement. The father asserts that overnight time and half school holidays should start immediately and the mother asserts that it should start in March 2022 (which is when the son attains the age of nine years).
The son has not spent significant time with the father for some time and it is likely, given other orders, that the parties will undertake family therapy for the next six months at least.
As such, I intend to make the orders in relation to the son’s time with the father as submitted by the mother to cover the period between the date of the orders and the end of school holidays in 2021/2022.
That will essentially mean that the more expansive orders will commence when the son attains the age of nine years.
Counsel for the mother said that in addition to the special events referred to in the draft minutes of orders[136] there should be permission for the children to spend the following days with the mother:-
a)Festival 1 in each year;
b)Festival 2 in each year;
c)The Japanese New Year, generally about 4 January in each year; and
d)Festival 3 in each year.
[136] Exhibit E13 order 6.
These should be days the son spends with the mother. I intend to make provision for that to occur. The father accepts that approach provided there is make up time.
If the son is returned to the mother on those days, then there should be appropriate make-up time to the father.
Communication
The parties have asked me to make orders for electronic communication. The Independent Children’s Lawyer suggests Sunday in each alternate week and this is supported by the mother. The father seeks more regular communication given that on his orders there may be up to 10 days between visits.
Given the orders I will make, there is good reason for the son to have electronic communication on a weekly basis. Sunday would not work as for each alternate Sunday during school term, the son will be returned on a Sunday at 4.00 pm and will need to make a call a short time later.
Further, the time between the son and the father is limited until early 2022 and weekly calls seem sensible.
I will leave in the provision for both children to make calls if they wish to do so. It leaves the door open for the daughter, should she wish to make such a call.
Injunction regarding alcohol
The parties and the Independent Children’s Lawyer seek consent orders that neither party consume alcohol to excess or consume any illicit substances while the children are in their care, and shall remove the children from the presence of others who may be doing so.
I understand the logic behind the making of orders ‘mutual’.
In this case there is ample evidence that the father has, at least in the past, abused alcohol and that he has been narcissistic, argumentative, angry, violent, controlling, demanding and awful when under its influence.[137] I have no difficulty making the order insofar as it relates to him.
[137] Exhibit E5 - the father’s words from his medical records – pages 15, 16, 17 and 19.
However, with the mother there is no evidence that she uses or has in any way been affected by alcohol. There are no facts to base the order against the mother, and as such, I decline to make the order to apply to her.
Sleeping in same bed
There was much discussion about the children co-sleeping in the same bed as the mother and the father. It is a culturally appropriate practice for many Japanese families to co-sleep.
The father seeks orders, as does the Independent Children’s Lawyer, that the practice of co-sleeping cease with both parents.
Insofar as the father is concerned and given the issues before the Court, such an order should be made and will be made. It will have little application in terms of the father given the orders that I will make. The son will not commence overnight time with the father until about February 2022, just before the son’s ninth birthday.
The family reporter recommends that the mother’s co-sleeping practice stop. She made that recommendation in a particularly culturally insensitive way.
Submissions were made by the Independent Children’s Lawyer that co-sleeping end, given that it may impact on the children in terms of their peers at school and the like. There is some strength to that submission. What worries me is that the children will see this as a significant change in the light of these proceedings, of which they already know too much detail.
I do not want the cure to be worse that the problem it seeks to address. As such, what I propose to do is order the mother to commence the process of moving the children to sleep in their own beds. She can do this in a manner which best meets the particular needs of each child. Whatever course the mother adopts, co-sleeping will need to end by January 2022, about 18 months from now.
This should not be taken as preventing the mother from lying with one or other of the children from time to time in her primary role of caring for them, but it should be in the child’s bed and the exception rather than the rule.
Overseas travel and travel to Japan
The mother wishes to travel to Japan up to two times per year for periods of up to two weeks for each trip. The father does not object to that overseas travel, but seeks to impose conditions. He seeks mirror orders in Japan or a substantial bond. In his final submissions he sought a bond of $10,000.
The children travelled regularly to Japan with the mother following their respective births. There were up to 10 trips prior to separation. However, since separation the father has not trusted the mother to return to Australia if she was to take the children to Japan.
The mother said as to the daughter, and was not challenged, that:-
43. We [the family] would normally go to Japan every six months so that [the daughter] could attend a doctor. She has a medical condition - "…". She was receiving treatment from a Doctor in Japan every six months.
It is clear that the mother and children are close to the mother’s Japanese family and prior to separation the family travelled to Japan between five and 10 times. The mother and children travelled to Japan in April 2015[138] and again in July 2016.[139]
[138] Mother’s trial affidavit paragraph 35.
[139] Ibid paragraph 44.
The father told the mother’s sister that he would not permit her to take the children to Japan.[140]I have mentioned elsewhere in the Reasons where the father had suggested that the mother should return to Japan without the children.
[140] Ibid 355.
In December 2016 the mother sought to travel to Japan to visit an ailing great grandmother, the father declined permission for her to go. That relative died in March 2017.[141]
[141] Ibid paragraph 356.
I am satisfied that the father uses or used the mother’s desire to take the children to Japan to visit her family as part of his coercive controlling behaviour.
On 13 July 2020, during the trial and with the consent of the parties, I forwarded an email to Justice Bennett who is the Australian Hague Convention Judge,[142] the detail of which I have set out earlier in these Reasons.
[142] Exhibit E8 - email Benjamin J to Bennett J.
On 30 July 2020 a reply was received from the Japanese Hague Convention Judge, as is set out earlier in these Reasons.[143] The response by the Japanese Hague Convention Judge seems to shows that registration of mirror orders or similar may be either impossible or impracticable.
[143] Exhibit E15.
On 31 July 2020, I requested the parties make any submissions in regard to the reply from the Japanese Hague Convention Judge on or before Wednesday 5 August 2020.
On Wednesday 5 August 2020 the Independent Children’s Lawyer,[144] the father[145] and the mother[146] each provided submissions in respect of this issue.
[144] Exhibit E16 further submissions by Independent Children’s Lawyer.
[145] Exhibit E17 further submissions on behalf the father.
[146] Exhibit E18 further submissions on behalf the mother.
The Independent Children’s Lawyer made submissions about considerations in determining overseas travel. In this case, the parties agreed that some overseas travel should occur. The question was the terms to enable such travel. Given the history outlined in these Reasons, I accept that the mother’s desire to travel with the children to Japan is bona fide and, for the reasons set out below, she is likely to return the children to Australia. The Independent Children’s Lawyer supports the mother traveling, but only after a lacuna of two years and without mirror orders and without a bond. The children have not seen their Japanese family since 2016, about four years ago, and this lacuna would add another two years. Six years is a long time in the lives of children to be separated from their much loved Japanese family and an important part of their culture. I see no utility for the children in imposing that time restriction on them and their mother. In any event, no one knows how long the current international travel restriction will remain in place, it could be weeks, months or years.
The father adopts most of the Independent Children’s Lawyer’s submissions and his counsel went on to submit that there was no evidence that the mother’s family could not visit Australia. I have had regard to that submission.
In the father’s submissions, he seek orders that the mother be restrained from permanently removing the children from Australia. The Independent Children’s Lawyer and the father sought a declaration of Australia being the place of habitual residence of the children, which was not opposed, and a requirement that the mother and children continue to live in the B Town area, which was not opposed. I have made that declaration and that order. Consequently, the order sought by the father seeking to restrain the permanent removal of the children from Australia, is superfluous.
The father seeks to limit the visits to Japan to once per year and seeks extended notice. Given the circumstance and discussion elsewhere in these Reasons, I see no cogent reasons for such limitation. These children have a close relationship with their Japanese family and had been regular visitors to Japan prior to separation. Visiting their broader Japanese family for up to twice per year for not more than two weeks, is hardly excessive in the circumstances of the broader orders I will be making.
In relation to the issue of the children’s passports being held at the Court, that issue was the subject of agreement, as was the provision of information regarding their return tickets to Australia. The time for notice of travel as sought by the father seems excessive, particularly in the circumstances of the agreement as to general travel. I have discussed the question of the bond elsewhere.
Is seems pointless to require the mother to try and have mirror orders made in Japan. If mirror orders are requested, it would likely amount to an exercise in futility. As such, I have determined that I will not make travel for regular family visits subject to the making of mirror orders in Japan or an attempt to do so.
As I said earlier, in 2014 Japan ratified the1980 Hague Abduction Convention, and Australia has also ratified the agreement. As such, the 1980 Hague Abduction Convention provides a significant level of protection in terms of the mother’s removal of the children to Japan or retention of the children in that State. If the mother goes to Japan with the children and does not return them to Australia, I infer that it is likely that the children will be repatriated to Australia and that the cost of those proceedings would be at the expense of the Australian and/or the Japanese Governments.
I accept that the mother has tenuous links to Australian. I have considered and had regard to the comments of the family reporter in the third family report when she said:-
49. Culture: [The mother] identified as being of Japanese culture, with English as her second language. [The mother] remains connected to her Japanese culture, currently working as a “relief teacher” for the Japanese School.
50. Family of Origin and Current Supports: [The mother] has family in Japan and no current supports in Australia, other than the Japanese community.
However, the mother and the children are dual Australian and Japanese citizens. The mother works in Australia as a casual educator. [147] She has completed training in healthcare.[148] This training seems to have been going on since 2017.[149] She has established some roots in Australia.
[147] The third family report paragraph 49.
[148] Ibid paragraph 52.
[149] The first family report paragraph 29 and the second family report paragraph 28.
I raised the question of the amount of the bond with counsel for the father and the mother during final submissions. The mother is in receipt of a pension and she has no income. For her, accumulating a bond of $20,000 is a large and overwhelming amount, as is $10,000. I accept the mother’s evidence that setting a bond of any meaningful level would, in the circumstances of this mother, effectively prohibit visits by the children to their Japanese family.
Given that the issue is not whether the children should spend some time with their family, but rather the security to ensure the children’s return, I am satisfied that the security comprising of the threat of repatriation of the children pursuant to the 1980 Hague Abduction Convention is significant. This is particularly in the circumstances of the almost inevitable inability for the children to again travel to Japan if there is a wrongful removal or retention by the mother in breach or contravention of Family Court orders or agreements. The combination of these two factors will likely be sufficient to ensure that the children are returned to Australia by the mother.
I considered the submission by the mother of a bond of $1,000. It would be meaningless and would impose an unnecessary financial burden upon her and consequently, the children. I will not make such an order.
In the context of this part of the decision I took note that both the father and mother have asked this Court to make a general order to enable the parties to travel overseas as and from 2023, and as set out in the Independent Children’s Lawyer’s draft orders.[150]
[150] Exhibit E13 - draft orders by Independent Children’s Lawyer orders 14 to 18.
Given all of those circumstances, I will be giving the mother general permission to take the children for visits to Japan as sought by her.
Overseas travel and travel generally
In addition, I will be making the general overseas travel order, commencing in 2023 as recommended by the Independent Children’s Lawyer and supported by the parents. I have dealt with the issue of passports and the holding of passports elsewhere in these reasons.
Counselling & Family Therapy
The Independent Children’s Lawyer sought orders that the children continue to attend on the Counsellor, given her evidence in these proceedings.
Those orders were the subject of consent by the mother and the father and I intend to make those orders sought by them with the exception of draft order 21. That order seems to impose a child maintenance type payment.
However, what I will do is treat it as an agreement between the parties. It is important that these children continue having the Counsellor assist them given the levels of conflict that exists between the parties.
I made a request that the parties each contribute to the cost of counselling, and noted that the father’s share should not be set off against his child support liabilities, as this would effectively mean the mother meets the whole of that cost.
The family reporter recommended the parties engage in family therapy. The parents and the Independent Children’s Lawyer supported that approach. The mother struggles with medical costs with little or no support from the father.
I have structured the family therapy orders in accordance with the recommendations and that it should occur with Mr D. I have included a direction that the family therapy seeks to find safe ways for the daughter to spend time and/or communicate with the father and for the parents to undertake better skills in their communication.
I have requested that the father meet the cost of that therapy but, that he may request the mother to seek a mental health plan in relation to herself and the daughter to assist in facilitating that process. Such request would be subject to the availability of a mental health plan, given the priority of the counselling of the children with the Counsellor.
If the father is unable or unwilling to fund the therapy, then it need not go ahead.
I have directed the therapist not to interview the parents together, without the express consent of the mother and the father in advance. Similarly, I have directed the therapist not to interview the daughter with the father without her clear and express consent in advance. I have also directed that the mother may take a support person with her and that the parents shall otherwise accept the reasonable directions of the family therapist.
Generally
I have made the orders consented to by the parties in relation to school and extra-curricular activities, mental health issues and conduct of the parties.
With regard to the order consented to as to not consume alcohol, I have directed that order to the father. On the evidence it is clear that the mother does not drink alcohol, nor has she taken illegal drugs. There must be some legal basis upon which to make such an order against the mother and I see no factual platform upon which that order can be based.
In the circumstances I have determined that that order should be solely directed to the father.
Extending the appointment time of the Independent Children’s Lawyer, explaining the Orders and document release
The children in this case are very fortunate to have a highly skilled Independent Children’s Lawyer. I sat part time in Cairns for about seven years up until about 2013 and as a result, I became aware of the high quality of the legal practitioners in far North Queensland. The Independent Children’s Lawyer is a very fine children’s lawyer.
Given the age and maturity of the children and the complexity of the orders, I will be directing the Independent Children’s Lawyer to explain the orders to the children so that they know that she is available for them for the next 12 months and so. They will be informed of the nature of the parenting arrangements which the Court considers are in the children’s best interests. There is no need for the Independent Children’s Lawyer to go into the Reasons with the children unless requested and only to the extent the Independent Children’s Lawyer considers necessary.
This will provide the children with an explanation by someone who is legally trained and has the high quality skills to speak with children.
Over the next year there will be the possibility of family therapy and the continuing counselling for the daughter. These may need the input of Independent Children’s Lawyer.
Counsel for the Independent Children’s Lawyer indicated that she would be content for her appointment to remain in place for a period after judgment, and given the circumstances, I have taken up that option and I thank her for it.
I have given leave for the parties and the Independent Children’s Lawyer to distribute the Orders and un-anonymised Reasons to treating medical providers for the father, the mother and the children, given the complexity of the circumstances of these parties.
I have not given leave for the distribution of the three family reports, given the concerns I have expressed about those reports.
I certify that the preceding five hundred and forty (540) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 August 2020.
Associate:
Date: 7 August 2020
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