C and G - [2007] FMCAfam 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & G

[2007] FMCAfam 308

FAMILY LAW – Unilateral removal of child from Malaysia to Australia by wife – Malaysia not a signatory to the Hague Convention – both parties and child are Malaysian citizens – husband seeks summary return of child – wife wishes to remain with child in Australia – child has behavioural and developmental problems likely to be an autism spectrum disorder – wife alleges violence by husband – wife alleges she will not obtain a fair trial in Malaysia – if child remains in Australia he will be separated from husband, extended families and his own culture – best interests principles apply – order for the return of child to Malaysia.

Family Law Act 1975, ss.60B, 60CA, 60CC.

In re J (a child) (FC) [2005] UKHL 40
AMS v AIF; AIF v AMS (1999) FLC 92-852
Kwon v Lee (2006) FLC 93-287

Applicant:

Respondent:

File Number:

MLM 6690 of 2006

Judgment of:

Hughes FM

Hearing dates:

16, 17, 18, 19, 20 April & 11 May 2007

Date of Last Submission:

11 May 2007

Delivered at:

Melbourne

Delivered on:

18 July 2007

REPRESENTATION

Counsel for the Applicant:

Ms Nikou SC

Solicitors for the Applicant:

Taussig Cherrie & Associates

Counsel for the Respondent:

Mr Geddes QC with Ms Stewart

Solicitors for the Respondent:

Hall & Wilcox

Counsel for the Independent Children’s Lawyer:

Mr Hoult

Solicitors for the Independent Children’s Lawyer:

Donald S Lampe

ORDERS

That the child JG born 8 September 2001 be returned to Malaysia.
That the proceedings be adjourned to 2 August 2007 at 9.30am for finalisation of the arrangements for the child’s return.

AND IT IS NOTED:

That the purpose of the adjournment is to allow the parties to discuss the following:
a)the details of the arrangements for the child's return to Malaysia;
b)the arrangements for the child immediately upon his return; and
c)the possibility of entering into consent orders to be filed in an appropriate court exercising family law jurisdiction in Malaysia concerning the long-term arrangements for the child.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 6990 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

(As Corrected)

In these proceedings the wife seeks an order for sole parental responsibility in relation to the child JG, born 8 September 2001. She wishes to continue living with the child in Australia. The husband seeks the immediate return of the child to Malaysia.
The husband, the wife and the child were all born in Malaysia and are Malaysian citizens. The wife came to Australia with the child on

1 December 2005
without the knowledge or consent of the husband. She kept her location secret from the husband.
The wife alleges a history of lack of interest in the child by the husband. She alleges periodic violence by the husband towards her in the presence of the child which, she says, exacerbated the pre-existing behavioural and developmental difficulties of the child. She says the child’s difficulties have settled significantly in Australia with appropriate professional help which, she asserts, is largely unavailable in Malaysia. She alleged regression in the child’s behaviour following contact with his father in Australia.
Malaysia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
On the first day of the trial, Mr Geddes QC for the husband made a preliminary application that the husband's application for the return of the child to Malaysia be dealt with summarily. He submitted that any substantive trial in relation to the welfare of the child ought to be conducted in Malaysia rather than Australia.
After hearing submissions, I declined to conduct a summary hearing. I gave brief reasons for decision, relying primarily on the fact that the parties were both present in Australia, had filed affidavit material, had organised witnesses and were fully prepared for the trial for which five days had been allocated. The option of requiring the parties to litigate the substantive issues in Malaysia rather than Australia remained open but a decision would not be made until there had been a proper testing of the evidence before me. It was my view that the Court would be in a better position to determine what course was in the best interests of the child after the evidence had been tested.

Brief history

The parties met when they were both undergraduate law students at the Australian National University in Canberra. The wife had attended school in Melbourne for the last year or so of her high-school education.
The parties married in a church ceremony in Kuala Lumpur on

15 August 1998
after which they commenced living together. They also had a civil marriage ceremony on 10 October 1998.
The husband works with his father in a family business. He is the Vice President (Administration) of a private company and Executive Director on the board of the holding company.
Prior to J’s birth in September 2001, the wife worked as a law lecturer at the University of Malaya. There is no dispute that the wife was the primary caregiver to the child during the marriage.
The wife alleges the parties separated on 12 May 2005 when she and the child moved out of the former matrimonial home into another apartment in Kuala Lumpur. The husband asserts that he had no knowledge of the separation until 20 August 2006 when he was served with the wife's initiating documents in these proceedings. He does not dispute that the wife moved into another apartment but says that the wife had told him she wanted more space and he was happy to accommodate her in that regard. He said the wife and J spent significant time at the former matrimonial home each week and he had no reason to think the marriage was over.
The wife and J went to Singapore for a month in late May 2005. The wife tried to find employment in Singapore and says she would have remained in Singapore had she been successful.
The wife says that she and the husband attempted to reconcile when she and the child returned from Singapore in June 2005. It is common ground that the parties participated in marriage counselling during the second half of that year. The wife maintained her separate accommodation but, from late July to early September 2005, she and J spent a lot of time at the former matrimonial home and frequently stayed overnight.
The wife says that when she was in Singapore she had come to the conclusion that she needed further qualifications in order to obtain academic work at a university. In July 2005 she began to formulate a research proposal and made a decision to apply for scholarships in Australia, England and New Zealand. She said she had a number of conversations with the husband about her desire to obtain an academic scholarship and do a Ph.D. overseas. She said the husband was content for her to pursue such a scholarship and to take J overseas on the basis that she and J would still spend as much time as possible in Malaysia.
The husband said the parties never had discussions about the wife relocating away from Malaysia with J. He said there was some discussion about applying for permanent residency in New Zealand. This discussion occurred at a time when a number of the wife's friends were considering migrating. He said he was prepared to consider an application for permanent residency in New Zealand because he believed the residency requirements were such that very little time needed to be spent New Zealand to qualify. He said that obtaining permanent residency in another country would enable the parties to keep various options open, especially in relation to J's education. He said middle-class Malaysia families often send their children overseas for part of their high-school or university education.
In September 2005, having completed her research proposal, the wife began to make contact with potential supervisors for her Ph.D. She says that, by October 2005, as a result of the husband’s ongoing abuse of her, she had decided that the relationship could not be reconciled. She says that, while she had previously considered travelling between Malaysia and another country for the purpose of pursuing her Ph.D., she then decided to relocate to another country in order to escape the husband's behaviour.
In October 2005, the wife formally applied for admission to the Ph.D. program at both the University of Melbourne and the Australian National University in Canberra. She enrolled J into childcare in Melbourne in accordance with Melbourne University’s recommendations for international postgraduate students. She booked flights and obtained tourist visas for herself and the child to spend time in Australia in December 2005. She planned to stay with friends in Melbourne while investigating longer term accommodation options and familiarising J with Australia.
The wife says that an incident occurred towards the end of November 2005 in which the husband was not physically aggressive but was so hostile in his attitude towards her that she feared for her safety. She says she decided to bring forward her trip to Melbourne and to try to stay permanently in Australia once she arrived. At that time she had not been accepted into any Ph.D. program. She had become aware, however, that she would be eligible for permanent residence if she was admitted to legal practice in Australia. She applied for admission to the Leo Cussen Institute in Melbourne to do a Graduate Diploma of Legal Practice.
The wife and child left Malaysia on 1 December 2005, arriving in Australia on 2 December 2005. On 5 December 2005 the wife was advised she had been offered a place at the Leo Cussen Institute for the following year.
The child commenced day-care at the Queensbury Children’s Centre in late January or early February 2006.
In September 2006 the wife completed the Diploma Course at the Leo Cussen Institute and was granted a scholarship from the University of Melbourne to undertake a Ph.D over four years commencing in November 2006.

History of proceedings

The wife commenced proceedings on 3 August 2006. She sought sole parental responsibility for the child, an order that the child live with her and an order reserving the issue of the time the child should spend with his father. She sought an interim order that the husband be restrained from removing the child from Australia.
Both parties were represented when the matter first came before the Court on 2 October 2006. The husband had not filed any documents at that stage.
Interim orders were made by consent on 2 October 2006. Those orders provided that the child live with the wife and spend specified periods of time with the husband, supervised by the husband's aunt, PG. Orders were also made appointing an independent children’s lawyer and restraining both parties from removing the child from Australia. The child's name was placed on the Airport Watch List. Orders were made for preparation of the matter for trial for two days commencing 24 January 2007.
The husband was ordered to file a response within seven days, which he did. He sought orders for the immediate return of the child to Malaysia.
The husband filed an amended response on 3 November 2006. In that application he continued to seek final orders for the immediate return of the child to Malaysia but, in the alternative, he sought orders for shared parental responsibility, for the child to live with him and for the child to spend time with the wife for no less than 14 days on two separate occasions each year in Melbourne, for the same period in Malaysia each year and communication by telephone and “webcam” every second day. These orders were apparently sought on the assumption that the wife would continue living in Australia if the child was returned to Malaysia.
On 30 October 2006 the January 2007 hearing date was vacated at the request of the parties and the matter listed for five days commencing 19 March 2007. Further orders were made by consent for J to spend time with his father. The previous requirement for supervision was reduced to a requirement that any one of a number of specified people were to be in substantial attendance with J and his father.
Due to illness of counsel, the hearing date was again vacated and the matter listed for five days commencing 16 April 2007. The trial was heard over five days from 16 to 20 April and submissions were heard on 11 May 2007.
Since October 2006, the husband has travelled to Australia and spent time with the child for several days each month.

The wife’s case

The five major planks of the wife's case were as follows:
i)The husband has a volatile temper. He was aggressive, verbally abusive and physically violent during the marriage.
ii)The child suffers from autism or an autism spectrum disorder, the symptoms of which were exacerbated during the marriage by the husband's aggressive behaviour.
iii)It is not in the best interests of the child to spend substantial time with his father because there is a strong correlation between the child seeing his father and regression in the child's behaviour.
iv)There are inadequate services and facilities to cater for the child’s special needs in Malaysia, whereas they are readily available in Australia. The child is well settled and thriving as a result of having access to them.
v)The wife would not obtain a fair trial in Malaysia because the wealth, power and influence of the husband’s family could be used to affect even the outcome of legal proceedings.
I will consider the evidence in relation to each proposition.

Violence

In her affidavit material, the wife described the husband as having "temper tantrums" from the beginning of 1999 in which he shouted angrily, drove recklessly and broke things in the apartment. She says on different occasions he smashed a multimedia remote control, his mobile phone, some of the wooden slats on the wife's wardrobe and cracked the shower screen with his fist. The wife said the husband’s hand was cut and bleeding as a result of hitting the shower screen and later became infected. She said the husband's father noticed the injury but the husband told him it was the result of an accident.
The wife said the husband was first physically violent to her when she was pregnant with J, pushing her roughly on several occasions between January and September 2001. She said the husband frequently threw things at her, although on most occasions she was not actually hit by the objects thrown. She described a particular incident in which she tried to leave with the child during one of the husband's outbursts. She said the husband flung the child's stroller at the door as she was approaching it with the child.The husband conceded throwing the stroller, although he says he flung it away from, rather than in the path of, the wife.
The wife said she was hit by the husband on at least three occasions during 2002. After one particular incident in which the husband hit her across the head with an open hand, the wife says she became dizzy and felt the effects of the blow for about two days. The husband conceded that he slapped the wife on one occasion.
At paragraph 17 of her affidavit filed 21 February 2007, the wife describes an incident in early 2004 in which she said the husband was angry and shouting at her. She said she had the stationery drawer open and was holding a pair of scissors as she was about to do something with them. She said she became afraid of the husband as he approached and told him not to come any closer. The husband snatched the scissors from her and held them a few inches away, pointing upwards towards her neck. She said the husband then saw how scared she was and walked away.
The wife said she was frightened by the fact that the husband had two samurai swords and a gun in the home. She said the husband did not ever use them against her or threaten to do so but they made her nervous nonetheless. The husband conceded that the wife had told him she was worried she might come to harm because there was a gun in the house.
The wife said the husband stopped physically hitting or pushing her in late 2004, after he became aware she had complained to some friends about his violence. She said his angry outbursts continued.
At paragraph 15 of her first affidavit filed 3 August 2006, the wife said that she avoided leaving J in the husband's care after she came home one day in 2003 and found red marks on J's bottom. She said the husband admitted he had hit J in frustration. She was not asked about this particular incident but did say unambiguously during cross examination that the husband had not been physically or verbally abusive of the child.
The wife also alleged in her initial affidavit that the husband had tried to control her financially, by restricting what she could do even with her own wages, and socially, by making it very difficult for her to maintain relationships with her family and friends. This evidence was not explored during the trial.
The wife says the child was present on most occasions when the husband was verbally or physically abusive towards her. She described the child as being very frightened during these incidents, crying, screaming and clinging to her. She said she raised the issue of J's distress with the husband but that he did nothing to modify his behaviour. On the contrary, she said that J's crying sometimes precipitated the husband's outbursts.
In his affidavit filed on 7 December 2006, the husband responded to the allegations of violence first made by the wife in her affidavit filed 3 August 2006. He said as follows:
“4.With respect to paragraph 10 whilst I do not deny that the wife and I would have arguments from time to time and that there would be shouting and slamming of doors I deny any violence upon the wife. Specifically I deny any violence toward the wife during her pregnancy or that I became uncontrollably angry and verbally abusive towards her.
5.As to paragraph 11 again I say that on the occasion referred to by the wife, that we were having a serious argument during the course of which I did fling J's stroller aside when the wife attempted to go out.
6.As to paragraph 12 I deny that I slapped the wife on several occasions and denied the general assertions of throwing objects at the wife and abuse.
7.As to paragraph 13 I recall the incident referred to by the wife and say that it was during an argument in 2002 that I did slap the wife. The wife did not appear to be giddy for any period of time. I deny that this incident or any behaviour by me or the wife caused any distress to our son J as he was simply a baby at the time and could not have been aware of what was occurring other than that there was shouting. I deny that my behaviour was in anyway precipitated by J's crying.”
It appears from this last paragraph that the husband lacks insight into the potential adverse effects on the child from being exposed to violent or aggressive behaviour.
After she came to Australia, the wife sent e-mails to the husband's parents and sister giving an account of the husband's behaviour. She received an e-mail in reply from the husband’s sister, Ms FF, on 11 December 2005. Part of the e-mail reads as follows:
"I don't know what to say except that I am shocked. Always knew he had an uncontrollable violent temper since we were very young, but we all thought that he calmed down a lot after your wedding thanks to your positive influence. Pls do not blame yourself anymore for this trouble. It is not your fault if someone is violent against you or your child. There is no justification for this kind of violent behaviour.”
The husband’s sister swore an affidavit which was filed on 19 March 2007. She said in paragraph 4 of her affidavit the following:
“When I write e-mails, I have a tendency to use colloquial language and adopt a casual informal tone. In my e-mail I tried to convey emotional support for the wife. I could not and did not make any direct comment upon the wife's allegations against my brother. I have not seen any signs of violence, either by a word or deed by the husband to the wife or J. The wife's e-mail to my father was the first time I had heard or read of her allegations. I am distressed that the wife has chosen to use my e-mail to support her allegations against my brother.”

Ms F was ultimately not required for cross examination. In submissions I was urged by Counsel for the husband to read Ms F's e-mail as simply offering emotional support to the wife, rather than as any concession by Ms F that the husband has any anger management issues. I do not accept that submission. While I accept Ms F’s evidence that she has never witnessed any violence by the husband towards the wife or child, it seems to me that she clearly acknowledges problems with the husband's temper in the past. The personal e-mail was written at a time when there were no proceedings on foot. It appears that in her affidavit, the husband’s sister tried to "play down" the contents of her e-mail, presumably out of loyalty to her brother.

I note the careful wording of the affidavit and the fact that Ms F makes no retraction of her statement that the husband had an uncontrollable, violent temper in the past.
The husband's father also responded sympathetically to the wife's initial e-mail in which she described the husband's behaviour and its effect on J. In a series of e-mail correspondence with the wife the husband's father repeatedly offered reassurance to the wife about what he and the husband were doing to address the issue of the husband's volatile temper.
The husband's father, TG, provided an affidavit and gave oral evidence in the proceedings. The gravamen of his evidence was that he did not ever believe the husband had a volatile temper and that his e-mails to the wife were designed to reassure her and cajole her into thinking the problem was being addressed so that she would return to Malaysia.
At the end of the day, I do not know whether the husband's father really did believe the husband had a problem when he wrote to the wife in response to her e-mail. His e-mails to the wife were also written at a time when there were no proceedings on foot. There is, however, no evidence that the husband actually obtained the professional assistance his father told the wife he did. If the husband's father was simply humouring the wife to encourage her to believe he was taking the issue seriously when he was not, it is not surprising that the wife does not trust the husband's family.
In his own evidence, the husband denied that he had ever had an uncontrollable, violent temper. He was asked by Senior Counsel for the wife whether, in light of his sister’s e-mail, he should reconsider whether he has an anger management problem. He responded "I do not have an anger management problem”.
The husband sent a long e-mail to the wife on 25 January 2006, part of which read as follows:
“V, please, please understand that I would never harm you or J.

I know there have been times I blew up in the past; but dear, you both mean so much to me, that I would never want any harm to come to you.”
The cross examination of the husband by the wife's Counsel in relation to the issue was as follows:
“Isn't that an acknowledgement from you that you ‘blew up’, meaning you really lost your temper seriously? Isn't that what ‘blew up’ means?---- My wife and I had quarrels, yes. We had our quarrels.
But the word ‘blew up’ is beyond just a quarrel, a disagreement. It's an expression of volatile temper, isn't it?---- It's an expression that meant that yes, we have, when we quarrel, lost our temper sometimes.
But when you referred to ‘I know there have been times I blew up’, isn't that an admission that you had a volatile temper? ‘There have been times I blew up in the past’?---I think it admits what it says but not more than that.
But not an issue that you need to address. You're still maintaining that line. You don't need to address anger management? ----I still maintain that line.
In cross examination, the husband did eventually concede that J was affected by quarrels in the former matrimonial home, notwithstanding what he had previously said in his affidavit material. He also said that, after the wife took J to see a child therapist, Mr Kinzley, she reported to him that Mr Kinzley had said J's speech may be adversely affected by anxiety caused by his exposure to arguments between his parents. The husband said he agreed at the time, and still agrees, that the child should not be exposed to parental conflict.
When asked about the incident in 2002 in which he admits slapping the wife, the husband acknowledged that his actions would have caused the wife to feel angry, humiliated and frightened of him. The husband justified his actions by saying that he slapped the wife after she had called him a liar.
The husband’s account of the stroller incident is as follows:
"It was one evening. We had been having an argument and she threatened to walk out of the marriage. She carried J and made her way to the door, and on the way she went to grab the stroller because J, at that age, he would be sitting in the stroller when he goes out, and I was very angry. I took the - before she grabbed the stroller, I took the stroller and flung it aside so that she will not be able to have the stroller to walk out.”
He conceded the incident would have been frightening for the wife.
After hearing the evidence, I am satisfied that the wife accurately described the husband's behaviour during the marriage. She was particular in her evidence about the incidents of physical violence, some of which were conceded by the husband. Her evidence did not change during extensive cross examination. I had the impression she was recalling actual events when describing them.
The wife's evidence was supported by the evidence of her friend, Dr RH. From time to time during the marriage, the wife told Dr Hew about the husband's violent behaviour. Dr H gave evidence in these proceedings and was cross-examined. It was submitted on behalf of the husband that I should discount Dr H's evidence because Dr H said that the wife had told her the husband had threatened to harm her and kill himself if she left the marriage. This particular piece of evidence was not supported by the wife. Notwithstanding this inconsistency,

I found Dr H to be a credible witness. She gave her evidence in a considered and forthright manner. I accept her evidence that the wife complained about the husband's violence and expressed fear of leaving the husband due to what she perceived as the power and influence the husband's family and the lack of protection for her in Malaysia.
The wife says made a complaint to the police in May 2005 about the husband's behaviour. It is common ground that the police did not investigate the complaint. The wife's beliefs about why the police failed to act are set out at paragraphs 55 and 56 of her affidavit filed

21 February 2007
as follows:
"55.As the husband's family is influential, the Police regarded it as a sensitive case and did not investigate it. The husband's father has the prestigious title of ‘Tan Sri’ bestowed by royalty. In addition, the husband's family is very wealthy and they employ bodyguards to protect themselves from possible kidnappings. The guards are mostly former police personnel and continue to maintain close links with friends in the police force.
56.The husband's parents also have many influential friends in the government including chief ministers and judges many of whom attended my wedding. From the husband's parent’s conversations, I also gathered that they had often given material benefits to people in the government and obtained favours from them in return. I believe that it is highly probably [sic] that the police are unwilling to offend influential and wealthy persons of high standing such as the husband's family, and therefore, would be unlikely to intervene in a domestic violence complaint against the husband. I am also aware of the Malaysian police’s reluctance to intervene in domestic violence situations as they are commonly perceived as being private matters.”
This evidence was not seriously challenged. I am not able to tell on the evidence before me whether or not the wife's perceptions are realistic but I accept that she genuinely believes them.
I adopt the submission of Counsel for the Independent Children's Lawyer that the husband demonstrated very little understanding or insight in relation to the impact of his behaviour on the wife, the child and the family structure. I am not certain, even now, how seriously the husband takes the issue. It appears that the statements made to the wife by the husband's father about the husband taking steps to address his anger management problems were probably false. The husband appeared genuinely remorseful about his behaviour during his oral evidence but this was a late development and he had been fairly dismissive of the issue in his affidavit material.
I accept the wife's evidence that she was frightened by the husband and had no confidence in the police or legal system to protect her. I accept that she felt that relocation to another country was an option which would provide some security for her. Australia was the obvious choice, given her previous residence here.

The child’s special needs

The wife says that J was a difficult baby and from 2003 frequently “threw tantrums”. She says that, from about August 2004, J's preschool teachers expressed concerns about his behaviour. In January 2005, J began to hit his head with his hands and scratch his face when upset. From that point, the wife attempted to obtain treatment or therapy for J. She took him to the following professional people and services:
·March 2005 – to a child psychiatrist at the University of Malaya Medical Centre.
·April 2005 – to a child therapist, Mr Kent Kinzley, in the United States (while the wife and J accompanied the husband on a business trip).
·April and May 2005 – to a speech therapist at the Sunway Medical Centre in Kuala Lumpur.
·June 2005 – to Dr Jennifer Kiing, a paediatrician employed by the Child Development Unit of the National University Hospital of Singapore.
·July 2005 – to social skills therapy conducted by the Adolescent and Child Unit of the University of Malaya Medical Centre.
·August or September 2005 – to a speech therapist, Ms Wong Tze Peng.
·Between September and November 2005 – to a play therapist, Mr Andrew Ng.
·Late September 2005 – back to Dr Jennifer Kiing in Singapore.
·November 2005 – to Dr Noel Chia, an art therapist in Singapore on referral from Dr Kiing.
The wife asserts that she told the husband about each of the appointments she arranged for J and invited the husband to attend. It is common ground that the husband did not attend any of the appointments. Although the husband denied knowledge about some of the appointments it was clear he had been told about others. It appears he did not take seriously the wife’s concerns about the child. The following passage from his evidence in chief is an example:
“Mr Geddes: Mr G, your wife says in August 2004, when J was approximately three years old, J's preschool teacher began to inform her of their concerns at his behaviour. You've read that?

---I've read that.
Did she ever tell you anything about that? --- She never told me that anything was serious, only that he had some issues relating and adjusting to school.
In January 2005 she says J began to hit his head with his hands and scratch his face when upset. Did you see anything of that or discuss that with your wife? --- I have seen some tantrums from J where sometimes when he was frustrated he would hit his head lightly like that but never anything as serious as the wife is describing in her affidavit.
What do you say about the level of behaviour or self harm or whatever it is that the wife alleges about J that you've observed?

--- There was no self harm. I believe that it was just nothing unusual for a three-year-old boy.”
The husband was asked whether he was aware of the appointment with Mr Kent Kinzley when the family was in Pasadena. The husband replied:
"I went there for a seminar and my wife and J accompanied us for a holiday and while we were there she said, 'look, we happen to be here, there happens to be a therapist there. Can I bring J to have a look?’ It was quite an incidental thing and wasn’t planned until we were in Pasadena itself.”
In much of the wife's affidavit material, the child's behaviour is described as being the result of, or at least aggravated by, the husband's aggressive behaviour. The wife agreed in cross examination that, in making such statements, she was putting her own interpretation on the child's behaviour. She said she did so because she observed that, once an outburst by the husband had ended and the husband had left the home, the child would mimic the behaviour of the husband, such as banging doors and throwing things.
The wife said that when she described the husband's behaviour to the various professional people from whom she sought assistance, they each advised her that the child's behaviour would be exacerbated by being exposed to violence and aggression. It was submitted on behalf of the husband that no reliance could be put on such statements as they were not reflected in any of the reports prepared by the professionals. The wife agreed the reports do not refer to the issue but she was adamant that they each said that J's behavioural problems were linked to emotional distress arising from the husband's behaviour. As noted above, the husband himself agreed that the wife told him that Mr Kinzley had made the connection between J's speech difficulties and his exposure to arguments between the parties.
The speech therapist, Ms Peng, diagnosed J as suffering from severe oral dyspraxia. In her report, Ms Peng said she believes that J's communication difficulty was stress and anxiety related. It was suggested to the wife in cross examination that her own distress was being communicated to J. The wife agreed with this proposition. She also agreed that she did not suggest to Ms Peng that the child's emotional distress was connected to his father at all until the fifth session with Ms Peng.
At paragraph 54 of her affidavit filed 21 February 2007, the wife said as follows:
“By [November 2005] I observed that J's behavioural problems and developmental delay were not improving despite all the attempts at various forms of therapy. I regularly kept the husband aware of J's difficulties but the husband showed no interest at all. I noticed that J was being referred to more professionals for additional forms of therapy. From the professional advice and from the increased anxiety I had observed in J while we were in regular contact with the husband, I concluded that I needed to protect J from the husband's violence as the husband could not control himself in J's presence or was prepared[sic] to modify his behaviour for J's benefit.”
This last paragraph seems clearly designed to justify the removal of child from Malaysia.
The wife said there was an immediate improvement in J’s behaviour when she and the child arrived in Australia. She said that J began sleeping soundly through the night and that his bedwetting decreased significantly soon after arriving.
At the childcare centre, however, the child’s difficulties were noticed immediately. Within days of J commencing at the Queensbury Centre in late January or early February 2006, the preschool teacher sought the assistance of the Preschool Field Officer, Karalynn McDonell, to advise about strategies for managing J's behaviour. An integration aide was apparently provided for five hours each day at the child care centre. Ms McDonnell also referred J to a paediatrician, and to early intervention services provided by the Department of Human Services.
The wife was cross examined extensively about the initial referral to the Preschool Field Officer. She said she told the preschool teacher, Ms Clancy, about the domestic violence she had suffered. This translated to a note in the referral of "history of abuse". The words "Diagnosed with post-traumatic stress" also appear in the referral. The wife said she told Ms Clancy that some of the professional people she had seen in Malaysia had suggested J may be suffering from Post-Traumatic Stress Disorder. The wife agreed that there was no written reference to this in any of the reports prepared by the professionals at that point. It was put to her that this was her own subjective interpretation of J's difficulties. The wife denied that and said it had been suggested to her by Dr Noel Chia.
The preschool referral also noted that J's cousin has autism. The wife said that this came about because Ms McDonnell told her she thought J was possibly autistic. She said she told Ms McDonnell that her nephew was autistic. She confirmed that this was the first reference to autism in any document relating to J.
It was suggested to the wife in cross examination that some of J's behaviour at the child care centre in early February 2006 could be attributable to him missing his home, his father or his extended family. The wife agreed that this was possibly so.
The Preschool Field Officer referred J to a paediatrician, Dr Dominic Cincotta who made a further referral for J to see another consultant paediatrician, Dr Jennifer Anne Smith. J also saw a psychologist, Sally Rigley, and a speech pathologist, Bridget Knol.
Following a referral from the Preschool Field Officer, outreach workers from the Department of Human Services provided information to the wife about various services available to assist autistic children and their families. The wife joined a toy library for children with special needs and participated in activities organised by Autism Victoria.
J currently attends the Western Autistic School. He will be assisted to integrate into a mainstream school in the future if he remains in Australia.
The wife's evidence is that the professional intervention and services available in Australia have made a big difference to J. In her affidavit filed 21 February 2007, she says the following at paragraphs 68 and 69:
“68.I have implemented and continue to implement many of the strategies used to assist autistic children. I have found that J responds well to many of the strategies such as regular adherence to routines and providing encouragement and incentives when he is faced with challenges. I have been very pleased and comforted by the wealth of support available for J in Australia. Malaysia on the other hand, had little to offer me to help J.
69.I have observed very significant improvements in J's behaviour since coming to Melbourne. His speech and ability to express his needs verbally have improved tremendously. He is now able to spontaneously converse, express his thoughts and assert himself. He throws tantrums much less frequently and any tantrums are of a much shorter duration and a significantly milder. He can engage in imaginative play and storytelling. His play no longer consists of chaotic crashing and large vehicles running over small animals, but usually involves creative play, interaction and conversation among his toys. He interacts with other children and is able to get along with other children a lot better than when he was in Malaysia. He can initiate conversation with people we meet and often chats quite happily with my friends he is meeting for the first time. He is affectionate with my friends whom he sees regularly. He is much less anxious and more confident and is also a lot more peaceful and happy than he was prior to coming to Melbourne. ”
The husband's evidence seemed initially directed at discounting the wife's view of the child’s difficulties. During cross-examination by the wife's Counsel the husband was asked whether he thought the child had special needs. He responded:
"I can say, your Honour, that when he's with me and my family he does not seem to demonstrate any of those problems. He speaks very well, he’s communicative, he’s chatty, your Honour. I'm sure the DVDs will show that as well.”

The DVDs referred to were recordings of many hours of the time the husband had spent with the child in Australia after interim orders were made.
The husband was asked about his observations of J during the periods he spent with him between October 2006 and March 2007. The husband said:
"I did not observe any developmental delays during the time child was with me.”
Later in the cross examination, however, the husband conceded that he had turned off the video recorder whenever J's behaviour became difficult.
The husband said that he had seen J hitting his own head in the past, as described by the wife. The paternal grandfather also said in oral evidence that he had, on a few occasions, seen J hitting his head repeatedly. He said that he did not think the behaviour unusual.
The husband relied upon an affidavit of a Malaysian clinical psychologist, Dr Alvin Oon, filed in court on 16 April 2007. In that affidavit, Dr Oon critiques the professional evidence relied upon by the wife and suggests that there ought to be a more comprehensive investigation and assessment of J to determine the precise nature of J's difficulties.
Throughout most of his evidence I had lingering doubts about how seriously the husband takes the issue of J’s developmental difficulties. Late in the proceedings, however, in answer to questions by Counsel for the Independent Children's Lawyer, the husband did seem to accept that J has behavioural problems and that he needs ongoing assistance. He seemed prepared to obtain whatever help J needed.
I accept the wife's evidence about her observations of the child during the marriage. It is clear that the child was displaying behaviour which caused the wife to think he may be suffering from some developmental problem. Putting aside the wife's interpretation of the child’s behaviour and play, I accept her evidence that the child became distressed during outbursts of the husband's temper. As a matter of common sense, it is likely that the husband's behaviour would aggravate the child's symptoms.
I find that the wife was highly motivated to obtain assistance for the child, that she tried to engage the husband in the process and that he was either disinterested or was content to leave all aspects of the child's care to the wife.
In Australia, the wife has made good use of the resources available for the child. She has actively engaged with medical and other professional services. It appears that the child has benefited as a result.
The issue of whether or not J suffers from autism, an autism spectrum disorder or some other form of developmental difficulty occupied a lot of time during the trial. J’s current treating paediatrician, Dr Jennifer Anne Smith, said that she believed Autism Spectrum Disorder was the most comfortable fit in terms of a diagnosis. She said in her oral evidence "Other diagnoses such as post-traumatic stress disorder, anxiety, [and] developmental delays not within the autistic spectrum have been considered. But the most appropriate diagnosis, I believe, is Autism Spectrum Disorder.” She said that J was at the high functioning end of the spectrum of the disorder.
Dr Smith’s evidence is that Autism Spectrum Disorder is not something that can be cured. The treatment involves behaviour modification in which socially acceptable behaviour is reinforced and unacceptable behaviour eliminated. She said the educational program at the Western Autistic School, which J attends, focuses on behaviour modification and is structured to meet the broad needs of children with the Disorder. She said that J also needs ongoing speech therapy.
I accept the submission of Counsel for the Independent Children's Lawyer that, at the end of the day, the precise diagnosis is not critical because it is clear that J does have significant behavioural and developmental problems and that he requires ongoing assistance. Dr Smith agreed with the proposition that the treatment for J in terms of behaviour modification and speech therapy would be the same regardless of what label is put on his difficulties.

Correlation between regression in the child's behaviour and visits with his father

As a result of the wife keeping her location secret, J did not see his father at all for a period of 10 months from 1 December 2005 until 3 October 2006. J has seen his father for several days each month since then. In her evidence, the wife said there was a regression in the child's behaviour every time he had contact with his father in Australia. Given the medical evidence that J benefits from stability, regularity and predictability in his arrangements, it might be expected that there would be some level of disturbance in his behaviour when he began seeing his father from October 2006. The wife, however, significantly overstated her case in this regard. At paragraphs 116 and 117 of her affidavit filed 21 February 2007, the wife said as follows:
“116.Initially I thought it would be good for J if his father took an interest in him and spent time with him. However, I have observed J regress every time for an average of about two weeks after each visit. I believe his development has been substantially hindered and his behavioural problems regularly exacerbated by visits with his father since October. I now believe the frequency of visits and amount of time spent with his father since October have been detrimental to J's development and well-being. I am particularly concerned about the effect such contact will have on his long-term development.
117.During the first 10 months that we were in Australia and prior to any contact with his father, J progressed very rapidly growing out of many autistic traits which he had earlier. I had hoped, based on discussions with his paediatrician in particular, that a reassessment in a few years time would show he had overcome his autistic traits. I had been advised by various professionals in the past that J's behavioural problems were linked to emotional distress. Since he has been spending time with his father his overall progress has slowed down and he has regularly reverted to his previous behaviour. I am very concerned that this contact if ongoing may hamper J's prospects of overcoming his behavioural problems and developmental delay.”
The wife relied upon the evidence of Ms Melinda Clancy, J's kindergarten teacher, who swore an affidavit on 21 February 2007. That affidavit annexes a report she prepared which is undated but refers to specific observations made of J’s regressed behaviour during the month of October 2006.
During cross examination in relation to this issue, documents subpoenaed from J's child care centre were put to the wife. It was clear from those documents that the regressed behaviour of J as noted in the report by Ms Clancy was documented by the kindergarten on 2 October 2006. It is common ground that J did not see his father until 3 October 2006. His behaviour on 2 October 2006, therefore, could have nothing to do with his father.
In the light of this evidence, the wife conceded the husband could not be responsible for J's behaviour on 2 October 2006. She agreed that the behaviour may in fact have been attributable to her own stress. She said that, until the afternoon of Friday 29 September 2006, she had assumed the proceedings which were listed on Monday 2 October 2006 would be undefended. She said she felt very stressed when she realised the husband would be in attendance at Court on 2 October and that she would see him for the first time since she left Malaysia. She agreed that J was likely to have been affected by her stress.
The connection drawn between the child's regressed behaviour and visits with his father found its way into the evidence of three professional witnesses called by the mother, although sometimes only in the form of a report of the wife's concerns.
Ms Clancy said at paragraph 9 of her affidavit:
“In or about October 2006 J's behaviour regressed and we had to reinforce our strategies to assist J in managing his behaviour. I understand from the wife that J commenced spending time with his father in or about October 2006 for periods of time when his father visited from Malaysia.”
Dr Smith swore an affidavit in the proceedings which was filed on 22 February 2007 and which annexes two reports in relation to J, dated 18 May 2006 and 15 November 2006. The first report was written in support of the wife's application to the Department of Immigration for permanent residence in Australia. The second was written for the purpose of these proceedings.
The reports are almost identical. In the first report, however, Dr Smith was very positive about J's prognosis. She states that J has benefited from intervention and "it appears that many of the symptoms previously attributed to Autism Spectrum Disorder have dissipated.”
The concluding paragraph reads as follows:
"At this time, it appears that J's development is mildly delayed but that he has shown a very significant improvement during recent weeks. I believe that he will be capable of independent living as an adult but that we will need to continue to monitor his developmental progress closely during the next few months to years. Because J has shown such significant improvement with stabilisation of his living arrangements, it is likely to be in J's best interests that current arrangements be continued.”
In the second report six months later, although there is still reference to a dramatic improvement following early intervention, the general tone of the report is much less positive. The concluding paragraphs are as follows:
"Overall, his developmental progress is delayed and he has shown behavioural and emotional difficulties consistent with the diagnosis of Autism Spectrum Disorder. He requires close monitoring in relation to his emotional well-being and developmental progress but at present it appears that his needs are being met.
I recommend J's continued involvement with Early Intervention Services and attention should also be focused to maintaining stability and appropriate stimulation in relation to his developmental problems.”
A third report by Dr Smith in the form of a letter dated 14 March 2007 was tendered during her evidence in chief. That report is very short and reads as follows:
"I am writing to confirm that I have been consulted about JG on an additional visit, the 23rd of February 2007. His mother reported that J's development and behaviour had deteriorated. She described an escalation in aggressive behaviour and an increase in autistic behaviours. She stated that he had vomited when emotionally distressed. J has apparently vomited at school and he has also vomited on the school bus. It is unclear whether this is due to emotional factors, travel sickness or illness.
His mother reported that J's emotional well-being had deteriorated in association with contact with his father and separation from herself.
Physical examination did not reveal abnormalities in addition to previously noted developmental delays and behaviours consistent with autism spectrum disorder.”
In cross examination by Counsel for the Independent Children's Lawyer, Dr Smith said she had been optimistic when she prepared the May 2006 report and was even wondering whether the diagnosis of Autism Spectrum Disorder was accurate given J's progress at that time. As a result of her subsequent observations of J and information provided by the wife, she was satisfied that the diagnosis was accurate given his persistent developmental delays.
Dr Smith confirmed that the third report was little more than a documentation of the mother's reports in relation to the child's behaviour.
J's speech therapist, Ms Bridget Knol, swore an affidavit on 13 April 2007. The affidavit annexed a report prepared by Ms Knol to support an application for J to have access to a particular program for students with autism spectrum disorders.
Ms Knol saw J each week from 15 April 2006 until the end of the year and then on a fortnightly basis during 2007. In her affidavit Ms Knol said that J was making good progress until October 2006 when she noticed a change in him. She said she had a very difficult session with J on 7 October 2006, for the early part of the session on 4 November 2006 and for the first session in 2007 which occurred on 23 February.
On 31 March 2007, J was taken to speech therapy by his father. This was the first time Ms Knol had met Mr G. The child was initially agitated and non-communicative but eventually settled and participated in the session. At paragraph 13 of her affidavit, Ms Knol said in relation to her observation of the husband the following:
"I observed that Mr G did not seem to know how to deal with J's behaviour. He tried to explain J’s behaviour as a result of him having only collected J a few hours before coming to the appointment and that J needed time to adjust to being with him.”
Ms Knol agreed in cross examination that there were a number of possible explanations for the child's behaviour, including a reaction to the change to the usual arrangement in which his mother takes him to speech therapy; that it was a reaction to J seeing his father in the context of very little contact; or that it was result of J preferring to spend time with his father rather than participate in speech therapy. She agreed that the husband's explanation about J's behaviour was perfectly plausible and that she should have left out the words "tried to" in relation to his explanation. She confirmed that she was not suggesting in any sense that J was scared of his father or had any concerns about him.
Ms Knol confirmed that J had asked his father to come into the session with him and that the session had proceeded with Mr G present.
Ms Knol gave oral evidence about the most recent session she had with J which occurred on 14 April 2007. For the second time, J's father took him to the session. Ms Knol said in evidence in chief that J was slightly more reserved than normal on the day. She said he had a cough and he vomited. The session was cut short as a result. The husband said the child complained of feeling car sick that day.
In cross examination Ms Knol agreed that J had been responsive from the beginning of the session. She agreed that after J vomited the husband had called his mother and aunt who were shopping nearby and they came with a change of clothes for J. She said that the husband changed J's clothes and was very appropriate and caring in his dealings with the child.
The wife’s assumption that regression in the child's behaviour was the result of visits with his father is not borne out by the evidence. It is likely that it resulted from a combination of the mother's anxieties being passed on to the child and the change in the child's routines when his father was visiting. There is certainly no evidence that it occurred as a result of the child being fearful or apprehensive about his father.

Availability of appropriate services in Malaysia

The husband strongly disputed the wife's contention that the services and facilities available for J’s special needs in Australia were superior to those available in Malaysia. He presented comprehensive evidence about the facilities and expertise available in Malaysia.
The husband relied on two affidavits provided by Dr Alvin Ng Lai Oon, a clinical psychologist in Kuala Lumpur who has particular expertise in relation to the assessment and treatment of children with developmental disabilities, including autism. In his affidavit filed 13 March 2007, Dr Oon lists the services available in Malaysia for children and young adults who suffer from autism and developmental disabilities.
The husband also relied upon the affidavit of Dr Zasmani Shafiee, a child and adolescent psychiatrist in Malaysia, filed on 14 March 2007. She is highly qualified in relation to children and adolescents with autism spectrum disorders. Dr Shafiee gave oral evidence and was cross-examined. She was an impressive witness.
Dr Shafiee set up the first specialist multidisciplinary team in Kuala Lumpur to assess children with autism spectrum and complex communication disorders. In 1987 she helped to found the National Autistic Society of Malaysia (NASOM). She is a founding member, past president and past chairman of the board of the Autistic Educational Centre.
In 2001 Dr Shafiee co-founded a separate non-government organisation which provides services for adolescents and adults with autism and learning disabilities.
In her affidavit and oral evidence, Dr Shafiee described the services available for children, adolescents and adults with autism and learning disabilities in Malaysia. I am satisfied on the basis of her evidence that there are very good diagnostic and treatment facilities available in Malaysia. As in Australia, assessment and treatment is available from multidisciplinary teams comprising paediatricians, psychiatrists, clinical psychologists, speech and language therapists and occupational therapists.
Dr Shafiee’s evidence is that there are programs available through the Malaysian Ministry of Education to integrate high functioning autistic children into mainstream schools with the help of specialist assistants in the classroom.
In the event J is returned to Malaysia, Dr Shafiee recommended that a diagnostic evaluation be carried out to determine the level of his cognitive functioning. An individualised treatment and educational plan would then be developed for J.
On the basis of the evidence of Dr Oon and Dr Shafiee, I reject the mother's assertion that Australia offers superior facilities to Malaysia for J's special needs. I am satisfied that high quality services are available in Malaysia generally and in Kuala Lumpur in particular. There is no doubt that the father and his family have sufficient resources to ensure that appropriate services and facilities are available for J if he were to return to Malaysia.

Malaysian legal system

The last matter relied upon by the wife was her concern that, if the child was returned to Malaysia, either to live or to visit his father, the husband could retain the child and any Australian orders would be unenforceable. If proceedings were commenced in Malaysia, given the influence of his family, the wife fears the husband would ultimately obtain a custody order in relation to J.
Both parties relied on expert evidence concerning the Malaysian family law system. After a conference of the two experts, a joint statement was tendered and became exhibit A2 in the proceedings. The statement was in the form of a series of questions and answers. The experts agreed that an Australian court order could not simply be registered in a Malaysian court. They agreed a Malaysian court would have regard to any order of a foreign court of competent jurisdiction but would not be bound to give effect to it if the order was not considered to be in the child's interests.
The experts agreed that the parties could enter into consent orders to be registered in the High Court of Malaysia at Kuala Lumpur. The Court could refuse to make the orders sought if it considered it was in the interests of the child's welfare to do so.
I am not a position to assess the likelihood of success of any application brought by the parties for custody in Malaysia but it is clear from the evidence of the two experts that the welfare of the child is the paramount consideration in any such proceedings. I am satisfied the wife believes the husband will have a significant advantage in Malaysia. Her experience of the police failing to act on her complaint of violence by the husband reinforces her fears.
During his oral evidence, the husband said that he did not anticipate commencing any proceedings in Malaysia. He was asked whether he would make an application to a Malaysian Court in the event that parenting orders were made for the child to live with the wife in Malaysia. He responded as follows:
"I believe that the access would be reasonable, your Honour, and certainly there should be no reason why I will want to initiate a separate action, which will only be detrimental to everyone.”

The wife also expressed some fear that the husband might convert to Islam in order to obtain the benefits of the Sharia Courts in Malaysia. The mother's legal expert, Shanmuga Kanesalingam, said at paragraph 5.1 of the affidavit filed 15 March 2007 that the Sharia law favours a Muslim spouse against a non Muslim, and that a non Muslim parent will not be given custody of a child unless the child is very young.
In his oral evidence, the husband said that he is a practising Christian. When asked by his counsel whether he proposed to convert to Islam he said "no, never have, never will”. He also said he would consent to an order restraining him from converting. There is no evidence to suggest that the husband is likely to convert to Islam to obtain a custodial advantage. If he did, it would be a cynical strategic exercise and one would expect that a secular court would not defer to the jurisdiction of the Sharia court in those circumstances.

The law in Australia

Part VII of the Family Law Act 1975 sets out the law applicable in children’s matters. Section 60B sets out the objects of Part VII and the principles underlying those objects as follows:
“60B(1) [Object of Part] 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.
60B(2) [Principles underlying object] 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 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 the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA provides as follows:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In matters where one party wishes to relocate from their usual place of residence with the child, the best interests of the child remain the paramount consideration. It is not, however, the sole consideration. Other matters, such as “the legitimate interests and desires of the parents”[1] and the right of a parent to freedom of movement are important considerations and must be taken into account. A parent is not required to demonstrate compelling reasons for wanting to relocate the child’s residence.
[1] AMS v AIF; AIF v AMS (1999) FLC 92-852 at p86,041 per Kirby J
In relocation matters neither party bears an onus of proof to demonstrate that the child’s best interests will be better served by either the relocation or a return to previous arrangements for the child. The Court must evaluate each of the party's proposals and consider how each proposal might advance the best interests of the child. The Court is guided by the matters set out in ss.60CC, 61DA and 65DAA of the Act.
There is no doubt that the wife knew the husband would resist any attempt by her to leave Malaysia with the child and that she did so surreptitiously. If Malaysia was a signatory to the Hague Convention it is likely the child would have been returned very promptly following an application under the Convention.
Senior Counsel for the husband relied upon a UK House of Lords decision in the matter of In re J (a child) (FC) [2005] UKHL 40. In that matter the House of Lords dealt with the proper approach to applications for the summary return of children to countries which are not parties to the Hague Convention. The case involved a young child, born on 5 April 2000, who was a citizen of the United States, the United Kingdom and Saudi Arabia. The family lived in Saudi Arabia. The marriage broke down during a period in which the mother and child were living in the United Kingdom while the mother undertook a one-year master’s degree course. The mother applied to the English court for a divorce and for a residence order. The husband applied for a stay of the proceedings and sought an order for the summary return of the child to Saudi Arabia.
In his reasons for decision, the trial Judge said that he would have found it in the best interests of the child to be returned to Saudi Arabia except for one factor which was that the husband had raised, and subsequently withdrawn, allegations about the mother's association with another man. In the context in which the proceedings in Saudi Arabia would be dealt with by the Shariah Courts, the trial Judge was concerned that the best interests of the child would be seriously damaged by the consequences which would flow if the husband again raised those allegations.
The Court of Appeal allowed the husband's appeal. The House of Lords overturned the decision of the Court of Appeal, restoring the trial Judge's decision. In the course of her judgement, with which the three other Lords of Appeal agreed, Baroness Hale of Richmond set out the principles to be applied in cases of this sort. In summary, those principles were as follows:
·Firstly, the welfare of the child is the paramount consideration.
·Secondly, the welfare principal may be specifically excluded by statute, such as domestic legislation giving effect to the Hague Convention. There is, however, no basis for extending the principles of the Hague Convention to countries which are not signatories to the Convention and in those cases the welfare principal remains paramount.
·Thirdly, the Court has power to order the immediate return of a child to a non Hague Convention country without a full hearing on the merits if it is in the best interests of the child to do so.
Baroness Hale of Richmond then considered how the Court should determine what is in the child's best interests. She said a reasonable starting point was "the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there". Important factors to be considered include the degree of connection of the child with each country, the length of time the child had spent in each country and the matters set out in section 1(3) of the Children's Act 1989 (or, I interpolate, section 60CC of the Family Law Act 1975 in the Australian context).
Her Honour said the relevance of differences in the legal system of each country will vary according to the facts of each case. Evidence that there is no real prospect of a party being able to prosecute a relocation application in the other country may weigh heavily in a determination of the best interests of the child. On the other hand, such a fact may be of little weight compared to the degree of connection of the child with the other country. The effect of the decision on the child’s primary carer is also a relevant consideration, although not decisive.
Her Honour said (at paragraph 41):
"These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be fought and decided here. Our concept of child welfare is quite capable of taking cultural and religious factors into account in deciding how a child should be brought up. It also gives great weight to the child’s need for a meaningful relationship with both his parents. It does not follow, therefore, that a Saudi Muslim boy who is mainly cared for by nannies and nursery schools will be better off living with his mother and maternal grandparents in multi-cultural London than with his father or some other female relative in his home country.”
The husband’s Counsel also relied upon the case of Kwon v Lee (2006) FLC 93-287, in which the Full Court of the Family Court of Australia dealt with the issue of the return of a child to a non Hague Convention country. In that case both parents and the child were Korean citizens. The mother had commenced proceedings in Korea before unilaterally taking the child from Korea and ultimately to Australia. Korea is a non Hague Convention country. The mother commenced proceedings in Australia in which she sought an order for the child to live with her. The father sought orders for the immediate return of the child to Korea. The matter was dealt with summarily. The mother's parenting application was dismissed and an order made for the return of the child to Korea.
The trial Judge determined that matter using the "clearly inappropriate forum" test but also found that it was in the best interests of the child to be returned to Korea.
On appeal, the Full Court considered the appropriate law to be applied. Their Honours said at paragraph 84 of the judgement;
"We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles.”
The appeal was not successful because the trial Judge had also considered the matter having regard to the best interest principles.
In hearing the appeal, the Full Court undertook a lengthy consideration of the authorities from which it distilled a number of principles. Those principles are set out at paragraph 83 the decision. The relevant principles for the purpose of these proceedings are as follows:
"….
(iv)in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child's best interests as its paramount consideration (s 60CA);
(v)if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi)in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child's best interests as its paramount consideration;
…”
In the current matter, both parties seek parenting orders, although the husband seeks parenting orders only to the extent necessary to facilitate the return of the child to Malaysia. The proceedings must, therefore, be determined having regard to the child's best interests as the paramount consideration.
Section 60CC of the Family Law Act 1975 sets out the matters which the Court must consider in determining what is in the child’s best interests. The primary considerations are set out in s.60CC(2) as follows:
(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.
In this case, the two primary considerations pull in different directions. I have no doubt that the child would benefit from having a meaningful relationship with both of his parents. There has, however, also been a need to protect the child from psychological harm as a result of being exposed to abuse or family violence. I am satisfied on the evidence, including the admissions of the husband, that the child has been exposed to abusive behaviour by the husband towards the wife.
Section 60CC(3) sets out the additional considerations the Court must consider.
Subsection (a) requires the Court to consider any views expressed by the child. Although the wife asserted the child has made statements about being happy living in Australia, I do not place any weight on such views given the age of the child, his developmental difficulties, the circumstances in which the statements were made (which permit a number of different interpretations) and the likelihood that J would not have any reasonable comprehension of the long-term implications of his stated views.
Subsection (b) requires a consideration of the nature of the relationship of the child with each parent and other significant people. It is clear that the child is very closely and affectionately bonded with his mother. She has been his primary carer for all of his life. The only time he has spent away from her are the periods of time spent with his father since October 2006.
Although J is not as close to his father as he is to his mother, I am satisfied on the evidence that he nevertheless has a warm and loving relationship with him. The wife conceded this was so. None of the video recordings of J's time with his father ultimately came into evidence but they were the subject of a number of discussions during the course of the trial. I infer from those discussions that the DVDs show J enjoying perfectly appropriate interactions with his father and extended paternal family. The fact that J was comfortable with his father notwithstanding a separation of 10 months is an indication of the strength of that relationship.
Mr Michael Hodgman prepared a family report in these proceedings. As part of the assessment for that report Mr Hodgman observed the interaction between J and his father on 24 October 2006. He gave a very short account of the observation at page 11 of his report which is as follows:
"The author witnessed the reunion between the father and son and the father was very demonstrative with J. Dad asked for and received a big hug from J and Dad was happy to have J sit on his knee and show him three packets of photos concerning J and himself. J was happy with his father.”
On the two occasions J was taken to see the speech therapist, Ms Knol, J sought comfort from his father and his father cared for him appropriately.
I am satisfied on the evidence that J has a loving relationship with the extended family of both of his parents. J has a special place in the husband's family as the first male grandchild. Both parties agreed that this was so and that J was expected to play a pivotal role in that family.
Much of the evidence in these proceedings is relevant to subsections (c), (f) and (i) which concern the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent; the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs; and the attitude to the child to the responsibilities of parenthood demonstrated by each parent.
The mother's unilateral removal of the child from Malaysia knowing the husband would oppose it, and the consequent interference in the relationship between the child and his father is, on its face, a failure by her in relation to each of these three factors. I am satisfied, however, that the wife genuinely believed she needed to leave Malaysia to escape the husband's abusive behaviour and to protect the child from its effects. She had tried unsuccessfully to persuade the husband to moderate his behaviour for J’s sake and she had been unable to obtain any assistance from the police when she complained to them about the husband's behaviour. I accept that the wife genuinely feared that the wealth and influence of the husband's family would result in J living with the husband and his family if she divorced the husband in Malaysia and that such an outcome would not be best for J.
Both parties have the ability to facilitate and encourage a close and continuing relationship between J and the other parent. The wife’s willingness is tempered by her distrust of the husband and his family. She has, however, complied with Court orders and conceded in her evidence that the relationship between J and his father was improving over time. The parties have also reached agreement about J spending time with his father for periods not covered by the interim orders.
Both parties have the capacity to provide for the physical and intellectual needs of the child. The wife has demonstrated a capacity to provide for the emotional needs of the child in trying to protect him from exposure to domestic violence. She has also been highly motivated in trying to obtain assistance in the nature of therapy or treatment for J's special needs.
The husband demonstrated a lack of capacity to understand let alone provide for the emotional needs of the child when he said in his affidavit that what he described as heated arguments between the parties would have no effect on the child as he was just a baby and did not know what was going on.
It appears that, during the marriage, the husband was content to leave the parenting of J almost exclusively to the wife. He did not demonstrate any interest in the child’s special needs until after the wife and child moved to Australia. Even during the proceedings, it was difficult to tell whether or not he really believed J had any difficulties and, if so, whether he thought they were serious. It was not until the cross examination by Counsel for the Independent Children's Lawyer on the fifth day of trial that the husband properly acknowledged J had difficulties which needed attention. It is clear, however, that the husband desires a proper relationship with his son. It may be that, following the demise of his relationship with the wife, the husband has a new appreciation of the importance of his relationship with his son. If so, he has a lot to offer him in a material and emotional sense.
Sub paragraphs (d) and (e) of s60CC require the Court to consider the likely effect of any changes in the child's circumstances and the practical difficulty and expense of a child spending time with and communicating with a parent under proposed orders. If the wife remains in Australia with the child, the practical difficulties are enormous. The child will remain separated from his father and the members of each of his parents’ extended families. Given the nature of his employment, it is not practical for the husband to move to Australia, nor is it practical for him to visit with sufficient frequency to enable the child to have as meaningful a relationship as would be possible if they lived in close proximity to each other.
The wife's evidence is that, if orders are made for the child to be returned to Malaysia, she will return as well. This is likely to increase the anxiety levels of the wife as she believes that the husband's family will try to bring about a situation in which J lives with the husband. Her distrust of the husband's family was no doubt heightened by the evidence of the husband's father that his words of reassurance to her about the husband obtaining professional help for his anger management issues were not genuine and were simply designed to cause her to think things had changed when they had not.

It was submitted on behalf of the wife that a move back to Malaysia would cause great disruption to a child with J's special needs. There is no doubt that a return to Malaysia would be a significant upheaval for J. He is currently well-settled in Australia and, on the evidence, does not cope well with change. It is reasonable to suppose, however, that the move from Malaysia to Australia was just as disruptive but that, at that time, the wife assessed the disruption as being in the best interests of the child. On her evidence, the child settled well after a short period in Australia. There is no reason to think J would not settle equally well if he were to be taken back to Malaysia with appropriate arrangements made for his care and comfort.
The wife’s distress about a return of the child to Malaysia is likely to be transmitted, at least in part, to J. Overall, however, the disturbance to J arising from the relocation is likely to be minimised if he remains in the care of his mother during the transition.
Cultural issues are a significant factor to be taken into account in determining J's best interests. J's cultural heritage is Chinese Malaysian. He is entitled to enjoy his own culture in the company of other people from that culture. Obviously that can best be achieved in Malaysia.
Subsections (j) and (k) concern issues of family violence which I have already dealt with extensively in these reasons.
Subsection (m) refers to any other fact or circumstance the Court thinks relevant. A significant matter not already dealt with in these reasons is the issue of the wife's Ph.D. studies. The wife asserted that she is required to spend significant time in Australia as part of her studies. She produced no independent evidence about the requirements for face-to-face contact with her supervisor but suggested she would need to travel to Australia for that purpose every six weeks. I find it difficult to accept that international students would be expected to meet in person with their supervisor every six weeks. I think it likely that a less frequent regime could be set up if she returned to Malaysia.

Credit issues

It was submitted on behalf of the husband that the wife's credibility was substantially undermined in these proceedings and that, in any conflict between the evidence the parties, the Court ought to prefer that of the husband.
It is clear on the evidence that the wife made a careful and calculated plan to move to Australia. She made applications to universities and the Leo Cussen Institute and enrolled J in child care prior to leaving Malaysia. She surmised, partly as a result of obtaining legal advice in Malaysia, that she was more likely to obtain a favourable outcome from the Australian family law system than the Malaysian. She gathered evidence from some of the professionals J had seen long before making any application to a Court. She knew that she had a good chance of obtaining a visa entitling her to permanent residence in Australia once she was admitted to legal practice. She withheld from the husband and his family all information about where she and the child were living. She made no application to a Court until it became clear she would not obtain a residence visa for J without parenting orders in her favour.
All of these matters, on their face, adversely affect the wife's credit.

I agree with the submission of Senior Counsel for the wife, however, that the issue of violence is central in these proceedings and that the wife’s actions must be seen in that context. The violence admitted by the husband, and even the violence alleged by the wife, is towards the lower end of the scale. That does not mean it did not have a profound effect on the wife. It was clear during the husband's evidence that he had no idea of the impact of his behaviour on the wife. I accept the wife's evidence that she found the situation intolerable. She is not a rash or impulsive person. She made careful plans before leaving.

I accept that she felt she had no reasonable options in Malaysia and that she genuinely believed her actions in relocating would benefit J.
Some parts of the wife's evidence did negatively affect her credit. In her description of J's behaviour, the wife repeatedly strayed into interpretation of that behaviour and projection of her own feelings on to J. She said for instance that J had been pleading with her to protect him and that J blamed himself for his father's outbursts. There is no evidence that J did either of these things.
When the trial began it was clearly part of the wife's case that the husband had acquiesced by failing to take any action to have J returned to Malaysia until after the wife commenced proceedings. This is disingenuous on the part of the wife when she had kept her location secret from the husband and even more so in the light of the e-mails sent to her from the husband pleading with her to return to Malaysia. The wife had put into evidence the e-mails of the husband's father and sister which she thought supported her case but did not make mention of the husband's e-mails which did not. The argument of acquiescence was not open to the wife given the husband's e-mails and ought not to have been raised.
In a similar vein, the Court may well have been misled by the evidence of the wife and the preschool teacher, Ms Clancy, into believing that regression in J's behaviour was caused by J seeing his father. I accept that the wife initially genuinely believed there was a causal connection but she had seen the notes subpoenaed from J's kindergarten by the time the trial began and knew his behaviour had deteriorated before he saw his father. She ought to have amended her evidence in light of that knowledge. She failed to take the opportunity when she was asked in examination in chief whether everything contained in her affidavit material was true.
I do not put into the same category the wife's initial evidence about the child being afraid of his father. A submission made on behalf of the husband was that the wife was inconsistent in her evidence about this. It seems to me that the wife’s position changed over the period of time between filing the application and the conclusion of the trial. I accept that the wife initially believed the child was afraid of his father and was concerned for his well-being in the event he spent time with him. The wife’s anxieties and concerns were likely to have caused the child to be unsettled and to display symptoms which reinforced the wife's beliefs about the child being stressed as a result of seeing his father. Over time, however, evidence accumulated in the form of the observations by Mr Hodgman and the DVD material which indicated J was comfortable and happy in the care of his father, even if he did display disturbed behaviour at times. This resulted in the wife adjusting her views and agreeing in oral evidence that J did enjoy his time with his father and that the relationship was improving over time.
Overall, I did not find the wife's credibility seriously damaged. She was emotionally contained in the witness box but struck me as an honest person who was under significant stress. I accept that she is very devoted to the child and that her actions, whether misguided or not, were predominantly taken in furtherance of his well-being.
There were no major credibility issues in relation to the husband. He, too, struck me largely as an honest witness. The problems with his evidence stemmed from his minimisation of his violence. It seemed to me that this was partly due to the fact that it appears he has never been called to account for his behaviour before. It may be that his loss of temper, slamming of doors and throwing and damaging things is hardly noticed by him because it is normal behaviour. His justification for physically assaulting the wife, however, was not impressive. He has agreed to obtain some professional help about these issues. This is important for his relationship with his son, for the role modelling he will provide for J and for his future co-parenting relationship with the wife.

The parties’ proposals

The wife's proposals centred entirely on J remaining in Australia. She proposed that J continue to live with her, continue to attend the Western Autistic School and become integrated into a mainstream school with the assistance of an integration aide when he is ready to do so. She proposed that J continue with his existing speech therapy and remain under the care of his current paediatrician, Dr Smith.
The wife recognised that there were benefits for J returning to Malaysia. Primarily these involved J having easier access to his father, being able to spend time in his father's home and being able to see the extended family of both parents. Notwithstanding these benefits, the wife maintained that J should not travel to Malaysia, even to visit his father, until he was a lot older, possibly 10 to 12 years of age. This was because she feared J would not be returned to her, even if there were Australian court orders providing for J to live with her. She did not trust the father or his family not to withhold J.
Consequently, the wife proposed during her evidence that the father travel to Australia every two months and spend two or three nights with J. By the end of the trial, this proposal had increased to the husband spending seven nights every two months with the child with extra time during the Christmas school holidays.
Each time the husband has come to Australia he has rented an apartment. The wife acknowledged that it was not good for J to see his father in different physical surroundings each time. Her solution to that problem was for the father to buy an apartment in Melbourne for the purposes spending time with J.
In the event that orders are made for J to return to Malaysia, the wife will return as well. She presented no proposals about where she will live and what arrangements she will make for J's schooling and medical treatment. She is however an intelligent and resourceful person and would no doubt arrange perfectly suitable accommodation for herself and the child. She would continue her Ph.D. studies and would need to fly periodically to Australia to see her supervisor. The husband gave evidence that he was prepared to pay for her airfares to enable her to do so.
The husband's proposal is that J be returned to Malaysia and live with him. The husband would move in with his parents so that they could help with J's care. The husband currently leaves home for work between about 8:00 a.m. and 9:00 a.m. each day. He gets home between 7:00 p.m. and 8:00 p.m. each evening, although sometimes it is later. He said if J lived with him he would make more of an effort to be home for dinner in the evenings. He has some flexibility in his work hours. When asked by Counsel for the Independent Children's Lawyer whether he could take time off during the day if needed, he said "I believe so… to the extent permitted by the level of my responsibility”.
The husband said he would take J to school each day and that his mother and a driver would collect J in the afternoon. He gave evidence about a number of different schools which J could attend in Kuala Lumpur. Some of those schools were private international schools.
The husband was open to the wife spending as much time she wanted with the child. He said, for instance, that the wife could spend time with the child every day after work for several hours. He imagined that the wife would be home from work by 6:00 p.m. each day. In saying this he seemed to recognise that any work undertaken by the wife would involve shorter hours than his own.
The husband said he would have J assessed as to his developmental needs and would arrange for whatever therapy or treatment was required.

Conclusion

Having heard all the evidence I am satisfied that it is in J's best interests that he is returned to Malaysia. His return will facilitate both parents having a meaningful involvement in his life. It will also allow J to spend time on a regular basis with other significant people, such as his grandparents, and to enjoy his own culture in the company of other people who share his culture. The “degree of connection” of J with Malaysia is a weighty matter and dictates that any dispute about his long term arrangements ought to be determined in that country.
The weight of the concerns initially raised by the wife was reduced by the balance of the evidence in the proceedings. For instance, the wife said in evidence that she is now much less concerned about violence, given the time that has elapsed since separation. Her concerns about the lack of treatment and therapy options for J in Malaysia have been comprehensively dealt with by the evidence of Dr Oon and Dr Shafiee. It may be that the wife was unaware of the services about which those two witnesses gave evidence because J was not diagnosed with Autism Spectrum Disorder until he was in Australia. The wife said that a diagnosis of autism was mooted at one stage before she left Malaysia but was discounted on the basis that J was too friendly to be autistic. Presumably, she would not therefore have been referred to any autism specific services.
The conclusion I have reached is at odds with the recommendation of Mr Hodgman, the psychologist who prepared the family report in these proceedings. Mr Hodgman's report is dated 29 October 2006. Most of the evidence in the proceedings was filed after the release of Mr Hodgman's report. Mr Hodgman relied significantly on the first report by Dr Smith dated 18 May 2006 which was written for the purpose of the mother's application for a permanent residency visa. Dr Smith’s report recommended a continuation of the current arrangements for J in light of the dramatic improvement in his presentation at that time. Mr Hodgman did not have the benefit of seeing the next two reports by Dr Smith, nor did he hear Dr Smith’s oral evidence or any of the evidence about the facilities available in Malaysia.
It would not have been fair to Mr Hodgman for Counsel to attempt to summarise for him the huge amount of additional evidence heard by the Court and ask whether or not he still held to his recommendations. At the end of the day each Counsel, pragmatically, decided Mr Hodgman was not required for cross examination.
The Independent Children's Lawyer supports a return of the child to Malaysia.
In order to address the wife’s concerns that the husband will commence litigation in Malaysia, it was requested on behalf of the husband that, before finalising the proceedings, I allow the parties some time to try to negotiate a set of consent orders to be registered in the High Court of Malaysia. There is merit in the proposal and I am willing to do so. If the parties are able to reach agreement and consent orders are prepared for registration in the Malaysian court, the wife's fears may be ameliorated. The arrangements for the child in Malaysia would then be clear before he leaves Australia. Presumably this would assist the transition for the child as both parents will be able to tell him the same thing about his future arrangements.
An agreement between the parties would also facilitate the smooth transfer of information from the child's current medical practitioners and therapists to his new ones in Malaysia.
I do not propose to make long-term parenting orders. I will make orders to facilitate the child's return and to provide for the child's arrangements in the short term following his return. Those arrangements would apply until orders are made either by consent of the parties or by a court in Malaysia exercising family law jurisdiction. I will set out the broad parameters of the orders I am minded to make and allow parties to have some discussion. If agreement cannot be reached between the parties about the details, I will make the orders.
The broad parameters are as follows:
·that J be returned to Malaysia within, say, 30 days
·that the wife be given first option to travel with the child but, if she elects not to, the child return to Malaysia with the husband
·that the wife be entitled to travel separately from the husband to Malaysia
·that upon arrival in Malaysia, the child live with his mother and spend substantial time with his father
·that the parties jointly decide which school J could attend and what medical and other treatment or therapy he should receive.
I will list the matter in two weeks for finalisation of the orders.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of Hughes FM

Associate: J Commins

Date: 6 September 2007

CORRECTIONS

1. Paragraph 129 – change to wording of legislation as follows:

“60B(1) [Object of Part] 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.”