Bray and Constable
[2011] FMCAfam 1397
•16 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAY & CONSTABLE | [2011] FMCAfam 1397 |
| FAMILY LAW – Children – father working in the United Arab Emirates – UAE not a signatory to the Hague Convention – mother opposed to child travelling overseas to spend time with father – child able to maintain a meaningful relationship with father in Australia – existing injunction against overseas travel maintained. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61C, 64B, 65D |
| Goode & Goode (2006) FamCA 1346 Mazorski & Albright (2007) 37 FamLR 518 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 |
| Applicant: | MR BRAY |
| Respondent: | MS CONSTABLE |
| File Number: | ADC 3301 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 1, 2 and 29 August 2011 |
| Date of Last Submission: | 29 August 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 16 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Basheer |
| Solicitors for the Applicant: | Adey Lawyers |
| Counsel for the Respondent: | Mr J Bowler |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
Paragraph 3(a) of the orders of 7 October 2008 is suspended for the duration of the husband’s employment outside of Australia.
In lieu of the previous orders the child [X] born [in] 2000 shall spend time with the father as follows:
(a)during school terms for one week in every four at times at be agreed between the parties;
(b)for one half of each short school holiday period at times to be agreed between the parties and in default of agreement from 10.00am on the first Saturday until 5.00pm on the Saturday one week following;
(c)for a period of three consecutive weeks during the Christmas school holidays each year (or such longer period as may reflect one half of [X]’s Christmas school holiday period each year) to commence at 10.00am on 27 December 2011 and each alternate year thereafter and at 10.00 am on Christmas Eve in 2012 and each alternate year thereafter;
(d)at such other times as may be agreed between the parties;
PROVIDED THAT any handover times not specified shall take place no later than 9.00pm on the relevant day.
The father shall provide the mother with at least 7 days notice in writing of his intended arrival dates to spend time with [X], together with his address and contact details while [X] is in his care.
The parties do all things necessary to facilitate regular communication between the father and [X] by telephone, Skype, email or any other electronic means.
The mother is at liberty to communicate regularly with [X] by telephone, Skype, email or any other electronic means while [X] is in his father’s care.
The father’s amended Application filed 1 July 2011 is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bray & Constable is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3301 of 2007
| MR BRAY |
Applicant
And
| MS CONSTABLE |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is 11 years old. He was living in a shared care arrangement between his parents’ households until mid 2010, when his father moved to live in the United Arab Emirates.
The current orders provide for [X] to live in his father’s care for one week in four. The father, Mr Bray, is seeking the Court’s permission for [X] to spend school holiday time with him in the UAE, but the mother, Ms Constable, is vehemently opposed to this outcome.
Background
[X]’s parents separated in 2006. Despite a hostile and highly conflictual co-parenting relationship, final parenting orders were made by consent on 7 October 2008. Those orders provided for [X] to live on a week about basis with each parent commencing in Term 2 2009, on the condition that either parent is generally present to care for him. The orders further restrained each party from removing [X] from Australia without the prior written consent of the other parent.
Unfortunately the parties’ co-parenting relationship has not improved over the intervening years.
In 2009, relatively shortly after [X] began living week about in each parent’s care, the father commenced employment on a “fly in / fly out” basis in Dubai, in the United Arab Emirates. It seems he did not inform the mother of his work commitments.
When Ms Constable became aware of this, she filed a Contravention Application, alleging the father was failing to be “generally present to care for [X]”. The father responded by filing his own Contravention Application alleging the wife was failing to comply with various other parenting orders. The parties were directed to attend mediation which was successful inasmuch as both Contravention Applications were eventually discontinued by consent in June 2010.
The father’s trial affidavit is vague regarding the commencement date of his “fly in/fly out” employment in Dubai. He is similarly vague regarding when he commenced living full time in the UAE although he does tell the Court that his employment in the UAE was made permanent in mid 2010.[1]
[1] Father’s trial affidavit filed 1 July 2011, para 51
The father remarried in December 2008 and he and his partner have a new child, [Y], born [in] 2011. His wife and new child joined Mr Bray in the UAE on or about 8 October 2010, the same date that the father filed this present application.
The mother filed her Response opposing the father’s Application on 10 November 2010. Accordingly, the Court must now determine whether it is in [X]’s best interests that he be able to travel overseas to spend time with his father in the United Arab Emirates.
The current proceedings
The father’s Application was listed on 1 November 2010 and on that occasion the parties agreed to suspend the operation of week-about shared parenting, which was clearly no longer feasible.
To their credit, Mr Bray and Ms Constable then consented to orders for [X] to spend time with his father for one week in every four during school terms and for three weeks during the Christmas 2010 school holidays. Orders were also made confirming regular communication between [X] and the father by Skype or email.
The parties attended a child inclusive dispute resolution process pursuant to s.11F and the family consultant, Ms H, provided an Advice to Court on 12 January 2011. A further directions hearing occurred on 24 February 2011. The parties agreed to commence family therapy with Ms T at [omitted] Psychology as recommended by Ms H, but the issue of overseas travel remained in dispute.
The matter was listed for a two day trial commencing 1 August 2011, with the usual trial directions in place. Subsequently Mr Bray filed affidavits from eight supporting witnesses. A further directions hearing took place and the Court concluded that the father did not require eight witnesses to properly present his case, given the discrete issue in dispute. In an effort to conclude the hearing within a reasonable timeframe, the Court allowed the father to call three supporting witnesses, including his wife. As it transpired, the trial proceeded to a third hearing day in any event.
The father relied upon the following documents:
a)His Amended Initiating Application filed 1 July 2011;
b)His trial Affidavit filed 1 July 2011;
c)Affidavit of Mrs Bray filed 21 July 2011, together with paragraphs 1-27 of her Affidavit filed 19 September 2008;
d)Affidavit of Mr O filed 21 July 2011;
e)Affidavit of Mr H filed 1 July 2011.
The mother relied upon the following documents:
a)Her Response filed 10 November 2010;
b)Her trial affidavit filed 6 July 2011.
After the hearing was adjourned part heard, the mother filed an Amended Response on 5 August 2011 raising child support/child maintenance issues, however, Counsel conceded that those matters could not be dealt with during the current hearing.
Assessment of witnesses and their evidence
Both parties gave evidence and were available for cross examination, as were Mr Bray’s supporting witnesses. The parties sought to refer to Ms H’s Advice to Court. Ms H gave sworn evidence confirming her Advice to Court and was also available for cross examination.
I am satisfied that both parties generally endeavoured to give their evidence honestly and to the best of their recollection. However, the parties’ recollection of past events has been tainted by their ongoing hostility and animosity. Neither party has any trust in, or respect for the other parent. This leads me to view much of their evidence with considerable caution, particularly where the evidence relates to each party’s perception of the other parent, or allegations about the other parent’s behaviour. I consider both parties were unreliable historians on particular topics and I will return to this issue in the course of my reasons, where necessary.
Both parties included within their trial affidavits a great deal of historical information about their past relationship. Ms Constable sought to raise a range of criticisms and concerns about the father’s behaviour, dating back to the parties’ marriage. She believes the father’s past behaviour indicates some level of psychological or personality disorder.
Given the subsequent consent orders entered into between the parties, I consider this evidence is irrelevant to the current dispute and I disregard it, save to the extent that it demonstrates the depth of ongoing hostility and distrust Ms Constable feels towards Mr Bray.
The father’s affidavit was more moderate, but the depth of Mr Bray’s dislike and distrust for the mother was evident in the witness box. The father believes the mother is emotionally abusive towards their son and is unable to accept anything that Ms Constable might say, whether on oath or not.
The mother was an articulate witness, not easily swayed from her position. The father is an equally intelligent and articulate individual. His demeanour in the witness box was appropriately measured and careful. He generally answered the questions that were asked of him succinctly and eloquently, responding precisely to the question asked and no more. In many ways he was the perfect example of a good witness. Bearing this in mind, his evidence on certain topics was surprisingly uncertain and unreliable.
The father’s wife Mrs Bray was frank and open in the witness box but again, her evidence was undermined by the hostility she clearly feels towards the mother. I am satisfied that Mr O and Mr H gave their evidence openly and honestly.
Ms H was cross examined and, as always, her evidence was of great assistance to the Court. Ms H did not prepare a full family assessment and had very limited opportunity to engage with the parties and [X], however, she was able to provide the Court with clear evidence regarding [X]’s views. Given the limited nature of the dispute a more complete family assessment was not necessary.
The parties’ proposals
The father argues that it is clearly in [X]’s best interests to travel overseas with him and experience life in Abu Dhabi. Mr Bray is of Italian descent; Ms Constable is of Scottish descent, and the father believes it will be hugely beneficial to [X] to travel to these and other international destinations, which are readily accessible from the UAE.
The mother opposes the father’s application. She believes the father will eventually refuse to return [X] to her care. As the UAE are not signatories to the Hague Convention, Ms Constable would have very few options available to her in seeking the return of [X] to her care. The father denies he has any such intention and says the mother’s concerns are baseless.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper, subject to certain limitations set out in that section. Section 64B (2) (i) confirms that a parenting order can include an order with respect ‘to any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.’ Clearly the decision to allow a child to travel overseas is an exercise of parental responsibility.
When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. Given the limited nature of the issue for determination, I will limit my discussion to the s.60CC considerations that are directly relevant to the question of overseas travel for [X].
Whenever one parent wants to travel overseas with a child and the other parent is opposed, the Court must assess whether there is a risk that the travelling parent will not return the child to Australia. In Line & Line [2] the Full Court confirmed that there are a range of factors to take into account when assessing that risk and weighing it up within an assessment of the child’s best interests. These include:
a)The existence of continuing ties between the “departing parent” and Australia, such as ownership of property, business links, family ties or strong social ties;
b)The possibility of motives not to return, including parental conflict over child related issues;
c)The possible motives for the travelling parent to remain in the other country, such as ownership of property, business interests, close family ties;
[2] Line & Line (1997) FLC 92-729
In addition the Court should consider whether the proposed destination may expose the child to any risk or threat of harm and whether the travelling parent has satisfied the Court regarding their bona fides.[3]
[3] Kuebler & Kuebler (1978) FLC 90-434
The evidence and the Court’s findings
It is important to remind the parties that the Court is not required to rule on every issue that may be in dispute on the evidence. I will set out my findings on those matters that have directly affected my decision regarding the issue of overseas travel for [X] and my assessment of his best interests.
The benefits and risks associated with overseas travel for [X]
I have no doubt [X] would enjoy the opportunity to travel overseas with one parent or the other. [X] himself has expressed a clear wish to visit his father, even to live with him in Abu Dhabi.
Overseas travel allows children to experience different cultures and to develop a greater appreciation of the world around them. [X] would have the opportunity to explore his parents’ cultural heritage in Europe and Scotland. The father argues that, given these obvious benefits, the Court should allow [X] to travel overseas, unless there was a clear risk that the father would not return [X] to Australia.
Ms Basheer argues there is no evidence to suggest that the father would not comply with orders of the Court. In the absence of any such evidence, she argues that the Court should not simply react to the mother’s fears and concerns, particularly when those fears present at a level of virtual paranoia rather than any rational assessment of the benefits and risks involved with such travel.
I agree with Ms Basheer insofar as the starting point of my deliberations cannot and must not be the mother’s fear that the father will fail to return [X] to Australia. While the mother believes Mr Bray’s past behaviour indicates he has a psychological/personality disorder, there is no evidence to support this conclusion. Indeed, the father clearly enjoys a very positive reputation in his professional life.
The mother believes the father has a long term plan to retain [X] in Abu Dhabi, but again, there is no evidence that Mr Bray has deliberately flouted Court orders in the past or would do so in the future.
My starting point must be and will always be an assessment of [X]’s best interests. [X]’s best interests are intricately entwined with and affected by the co-parenting relationship that exists between his parents. The father’s behaviour within the co-parenting relationship is a highly relevant factor in my determination, as is the level of mistrust that exists between the parties.
While [X] may benefit from the opportunity to travel overseas, that benefit must be weighed up, not simply against the risk that the father will retain [X], but against the impact such an order may have on [X]’s parenting arrangements overall.
The situation in the United Arab Emirates
Ms Constable argues that it would be unsafe for [X] to travel to the UAE, but I disagree. I accept that there are additional risks that may arise, but I take judicial notice of the fact that there are thousands of foreign nationals living and working in the UAE, often accompanied by their families. Tourists regularly transit through the UAE. I am confident that [X] would not be exposed to an unacceptable level of risk should he be permitted to spend time with his father in the UAE.
I do not consider the father’s employment with the [omitted] would expose [X] to any additional risk that would not be properly managed within the father’s usual employment arrangements. I am confident that Mr Bray would not expose his wife and daughter to such risks, if they did exist.
The father sought to rely upon evidence from Mr O regarding the implications for his employment, should Mr Bray fail to comply with orders from an Australian Court. I accept Mr O’s evidence regarding the high personal and professional standards expected of employees within the [omitted], but I remain unconvinced that Mr Bray would be immediately dismissed and required to exit the country, if he failed to return [X] in accordance with Court orders. Even if Mr Bray was dismissed from the [occupation omitted], there is no reason why he could not seek employment from another agency within the UAE, as he has done previously.
Limited information was provided regarding the legal system in operation within the UAE, beyond an internet printout tendered by Ms Constable[4]. That document indicates that uncodified Islamic law applies in the UAE and that family law matters are heard by Sharia Courts. I accept that it would be almost impossible for the mother to seek any effective redress for the return of [X] through the legal system in Abu Dhabi.
[4] Exhibit M2 - Printout from Reunite International Child Abduction Centre dated 24/8/2005
There is no dispute that the UAE are not signatories to the Hague Convention.[5] Accordingly the mother could not utilise that process or receive any governmental assistance through that forum in the event the father failed to return [X] to Australia.
[5] The Hague Convention on the Civil Aspects of International Child Abduction
[X]’s relationship with his parents and significant others
There is no dispute that [X] enjoys a close and loving relationship with his father and gets on well with his stepmother Mrs Bray. The mother concedes as much and Ms H’s evidence confirmed this.
I accept that Mr Bray had valid reasons to seek employment overseas and that his financial circumstances made this opportunity “too good to miss”, so to speak. However, the father’s decision has significant implications for [X]’s care arrangements.
[X] may well miss spending alternate weeks in the care of his father, given the strength of their relationship. However, this change in care arrangements has not diminished the strength of [X]’s relationship with his father. They communicate regularly by email and Skype in the weeks between their time together here in Australia. I am confident that [X] will maintain a meaningful relationship with his father, despite their more limited time together.
If anything, Ms H’s observations in January 2011 raised concerns about the quality of [X]’s relationship with his mother. It was those concerns that led to Ms H to recommend that the family as a whole participate in family therapy, the goal of which would be “to shift the child’s views of one parent as ‘all bad’ and the other parent as ‘all good’ into more realistic and measured ones”.[6]
[6] Ms H’s Advice to Court, p.4
The father is not seeking to discharge the existing parenting orders and there is no dispute that [X] will remain in his mother’s primary care while Mr Bray is living in Abu Dhabi. Accordingly, [X]’s relationship with his mother is not at issue in the present proceedings and the progress of that therapeutic intervention is not relevant. I note in passing that Ms Constable described feeling ‘shocked’ by [X]’s demeanour during their session with Ms H. The mother considers that she has a close and loving relationship with her son. She says that [X] is happy and relaxed in her care and that their relationship has continued as normal across 2011, despite his behaviour in the interview with Ms H in January.
The father is highly critical of the mother’s relationship with [X]. Despite this, Mr Bray has been content to leave [X] in Ms Constable’s care while he pursues his career in the UAE. Whether he would be content to force [X] to return to Australia against his wishes is another matter.
I have no doubt Mr Bray genuinely believes he would comply with orders of the Court, as the situation now stands. I have considerable doubt about his actual response, if he was faced with a situation where [X] was complaining about his mother’s behaviour, or was refusing to board a plane and return to his mother’s care in Australia.
Each party’s attitude to their parenting responsibilities and their willingness to support [X]’s relationship with the other parent
The current orders provide for [X] to spend every fourth week in his father’s care. Mr Bray travels back to Australia to spend this time with [X] and has negotiated his employment contract to enable him to do so. I note that Mr Bray has not been able to travel back as regularly as he would have liked across the past 12 to 18 months, but this does not reflect any lack of commitment to his relationship with [X].
Clearly the existing arrangements require a degree of flexibility as the father is unable to commit to a set pattern of travel back to Adelaide every fourth week. I am satisfied that Ms Constable has facilitated [X]’s time in the father’s care pursuant to the existing orders and has co-operated with the father’s availability even when Mr Bray has not been able to travel on a strict four week rotation. I note a recent email exchange indicates the parties are able to maintain a degree of pragmatic civility around these arrangements, even if occasional messages may be somewhat provocative in their tone or content.
The parties’ ongoing hostility and distrust towards each other continues to be a matter of concern, however. The father’s distrust of the mother and her parenting was evident in the witness box. His wife is equally hostile towards the mother. Mrs Bray’s emails indicate the level of her hostility and her willingness to engage [X] in discussions about adult issues that should not concern him[7]. I appreciate these emails date back to 2009 but in the course of cross examination Mrs Bray did not see anything inappropriate about these discussions with [X].
[7] Annexure A to the mother’s affidavit sworn 29 October 2010
Ms Constable is equally mistrustful of the father. Neither party seems to have created a home environment where [X] would feel safe to express any affection for his other parent. This places a huge burden on [X], who has to cross an emotional “no man’s land” as he moves from one parent’s home to the other, a situation that is further complicated by the reality that the time he spends with his father is based in hotel style accommodation, which may also be unsettling for [X].
Co-parenting communication
While the parties’ email communication is currently occurring at a functional level, I am concerned about the lack of co-parenting communication around more significant issues, such as the father’s decision to work overseas and then move to live in the UAE.
Mr Bray did not inform the mother that he had commenced working on a regular basis in the UAE in 2009. He could hardly be surprised when the mother expressed concern that he was “not generally available” to care for [X] while working in the UAE across periods when [X] was to have been in his care. Mr Bray’s response at the time, to the effect that he was only absent for a night or two here and there, was singularly unhelpful, in my view. I accept [X] gets on well with his stepmother, but she was not the person charged with responsibility for his care in those alternate weeks.
The father’s evidence was unclear about the extent of his overseas travel across 2009, and when precisely he commenced working full time in the UAE. This uncertainty seems surprising, given the father’s general demeanour and precision in the witness box.
Mr Bray was also unclear about when, if ever, he informed
Ms Constable that he was intending to live in the UAE. I am satisfied that the father did not inform the mother that he was moving to live overseas before commencing these proceedings on 8 October 2010.
Ms Constable was not consulted about these changes, nor was she able to provide any support to [X] as he dealt with this major development in his life.
Even more surprisingly, Mr Bray was uncertain about what discussions he had with [X] regarding the intended move overseas. It seems to me that there are two possibilities here – one, the father failed to talk with [X] about this dramatic change that was about to occur and thereby failed to support [X] through a significant transition; or alternatively, [X] was aware that his father and stepmother were moving to live overseas and he did not feel free to talk about it with his mother over the weeks leading up to their departure. Neither outcome is satisfactory, from [X]’s point of view.
I consider it is highly unlikely that the father failed to tell his son about the planned move overseas. Whether [X] failed to mention this to his mother because he was told not to, as Ms Constable alleges, or because that is how [X] deals with all information about each household in his bisected emotional landscape is not a matter I can determine.
Mr Bray’s failure to communicate properly about these matters with Ms Constable has done little to improve the level of trust between the parties. On the contrary, it has added to the mother’s fear that the father is manipulating a situation where he will eventually retain [X] in the UAE, away from the jurisdiction of the Australian courts.
I conclude the father misled the mother about his living arrangements across 2009 and 2010. Mr Bray’s behaviour across this period falls well short of the degree of communication one would expect between parents engaged in shared parenting and enjoying equal shared parental responsibility. More importantly, his evidence on this topic raises a doubt in my mind about the father’s bona fides overall.
These comments should not be taken to imply that I accept the mother’s characterisation of the father or his past behaviour as set out in paragraphs 33-95 of the mother’s Affidavit. As previously indicated, that evidence is irrelevant to my determinations, save and except as an indication of the poisonous relationship of mistrust between the parties.
The father’s employment and Visa entries
The father was cross examined about his past and present employment in the UAE. He was understandably reluctant to provide copies of his current employment contract, until specific orders assuring confidentiality were made. His current contract for employment is as an [omitted] with [G]. This contract was forwarded to the father in January 2010 and presumably signed shortly thereafter.
Previously he was employed by a company called [S] in 2009. Both positions entitled Mr Bray to obtain a Residence Visa in the UAE.[8]
Mr Bray was unable to explain why the visa issued in 2008 listed him as a [occupation omitted] sponsored by [D], nor could he explain why his 2010 Visa listed him as an [occupation omitted], rather than an [occupation omitted].
[8] Annexure K of the Father’s trial Affidavit, pages 88,90
Mr Bray appeared unconcerned about these errors. I might have accepted the father’s evidence on this topic if there was only one such error, but both Visa entries are materially incorrect. The father’s evidence is in sharp contrast with his general presentation as someone who is precise and careful. It seems inexplicable to me that an intelligent person such as Mr Bray, from a [omitted] background where protocol and procedure are vitally important, would not be concerned that his entry Visa to the UAE was inaccurate.
The father’s future plans
Mr Bray’s affidavit was silent about how long he envisaged living and working in the UAE. It was only in the witness box that he disclosed any detail about his future plans. He subsequently gave evidence about that issue, together with evidence about a range of other relevant topics that Counsel conceded should have been dealt with in his affidavit, such as his family connections here in Australia.
The Court heard that the father anticipated remaining in the UAE for another 5 years, until 2016. Mr Bray gave evidence that his wife was keen for [Y] to attend [school in Sydney omitted] which presumably means the family may decide to live in Sydney upon their return. He gave evidence about his future political ambitions, as a further indication that he would not risk his reputation by breaching an order for [X]’s return.
I accept the father’s evidence on these topics and that he intends to return to live in Australia at some stage. However, I cannot draw any conclusion from this evidence relating to Mr Bray’s future response in the event [X] was reluctant to leave his care and return to Australia, or in the event the father became concerned about [X]’s safety or welfare in the care of Ms Constable.
The father’s family and financial ties to Australia.
Mr Bray and his wife are Australian citizens. They both have extended family living here and these family relationships are significant to both Mr and Mrs Bray – and indeed, to [X]. I have no doubt that the father is in regular communication with his immediate family and makes every effort to spend regular time with them. Clearly he has been able to maintain these relationships whether living in Sydney, Adelaide or the UAE and will continue to do so in the future.
Neither the father nor his wife own any assets of significant value in Australia. They do not own any real estate that could be offered as financial security for [X]’s return. The father is not in a position to offer any other financial security as a guarantee. While he presently earns a very comfortable income, he also has a considerable debt outstanding to the Australian Taxation Office, which he is in the process of repaying. He is travelling back and forth between the UAE and Australia which also involves considerable expense.
Conclusion
The Court’s obligation is to make orders that are in [X]’s best interests. The present care arrangements make ample allowance for [X] to be cared for by both of his parents and to have his mother and father involved in his life in a meaningful way.
[X] is able to spend regular time in each parent’s care, including time across weekends, the school week, school holidays and special occasions. Clearly these care arrangements meet the Objects and Principles set out in s.60B and allow [X] to spend substantial and significant time with each parent. While [X] may enjoy visiting his father in the UAE and travelling to other overseas destinations, it is not essential to his welfare or development.
The injunction against overseas travel was entered into by consent between the parties. My assessment of the parties’ evidence and the relevant s.60CC considerations does not indicate that the relationship between the parties has changed or improved to any great degree over the intervening years.
In determining this matter I consider that the father’s hostility toward the mother and his concerns regarding [X]’s safety in her care could well provide a strong motive not to return [X] in the future. The mother would have very few legal options open to her, should this occur.
I do not consider the father has deliberately set out to dupe or mislead the Court in his evidence. However, he has previously demonstrated a willingness to mislead the mother about major issues affecting the care of their child and his evidence on certain other topics was unconvincing.
I am not satisfied that the father’s current determination to return [X] would prevail in circumstances where he may genuinely believe his son was at risk in the mother’s care. Given the father’s general attitude towards Ms Constable, it may not take very much by way of complaint from [X] for Mr Bray to decide that [X]’s physical or emotional safety could only be guaranteed if the child remained in his care, in
Abu Dhabi.
Ms Constable would experience a high level of stress and anxiety around any such overseas travel for [X]. This would invariably impact upon her present role as [X]’s primary caregiver. The mother believes that the father is sufficiently manipulative that he may indeed return [X] from any initial overseas trip before eventually failing to comply with the orders. Whether her belief is justified or rational, it is certainly a genuine fear that she holds. That is to say, she would continue to experience the same level of anxiety around each and every trip that [X] may undertake.
The father is unable to provide any surety or financial security for [X]’s safe return. While Mr Bray has strong family ties in Australia, his own family life is now based in the UAE, and will continue to be based there for the next five years.
I am not satisfied that it is in [X]’s best interests overall that the existing injunction should be discharged, in light of the above discussion. In the circumstances I dismiss the father’s application for [X] to travel with him outside the Commonwealth of Australia. I make final orders as set out at the commencement of these reasons.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 16 December 2011
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