Cadena & Beltran
[2010] FMCAfam 1165
•28 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CADENA & BELTRAN | [2010] FMCAfam1165 |
| FAMILY LAW – Children – parenting orders – spend time with – overseas travel – child nearly 3 – high conflict – no evidence that child affected by exposure to high conflict – significant benefit to child of travel – high risk of non-return – security for return – amount of security to reduce if mother obtains Australian residency or citizenship and full recognition of [omitted] qualifications in Australia. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAC |
| Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 P & P & Children’s Representative, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MR CADENA |
| Respondent: | MS BELTRAN |
| File Number: | PAC5206 OF 2008 |
| Judgment of: | Halligan FM |
| Hearing dates: | 19, 20, 21 July 2010 |
| Date of Last Submission: | 21 July 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 28 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | York Family Law |
| Counsel for the Respondent: | Mr Tockar |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
All prior parenting orders in relation to the child [X] born [in] 2007 are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Until [[X]’s birthday] 2011, the child shall spend time with the father on a fortnightly cycle, from 1.30pm Thursday until 9am Friday and from 7.30am Saturday until 9am Monday in alternate weeks when the mother currently works on Saturday and Sunday, and from 1.30pm Thursday until 9am Friday and from 2pm Sunday until 9am Monday in each other week, the mother to deliver the child to the father's home at the commencement of his time and the father to deliver the child to the mother's home at the conclusion of his time;
From [[X]’s birthday] 2011 until the child commences to attend school, the child shall spend time with the father on a fortnightly cycle, from 1.30pm Thursday until 9am Friday and from 6pm Friday until 9am Monday in alternate weeks, and from 1.30pm Thursday until 9am Friday and from 2pm Sunday until 9am Monday in each other week, the mother to deliver the child to the father's home at the commencement of his time and the father to deliver the child to the mother's home at the conclusion of his time;
When the child commences to attend school, the child shall spend time with the father on a fortnightly cycle, from after school Tuesday to before school Friday in the first week, and from after school Friday to before school Monday in the second week, the father to collect the child from and return the child to the child’s school at the commencement and conclusion of his time.
In addition to the above times, the child shall spend time with the father:
(a)In 2011, on two occasions of four consecutive days (three nights), provided that the father gives the mother not less than 28 days notice of his intention to spend time with the child under this order, and further provided that the two occasions are at least 3 months apart and are not taken concurrently with any other period of time the father is to spend with the child so as to have the child spending more than four consecutive days with the father;
(b)In 2012 and each other year, if any, until the child commences to attend school, on two occasions of one week provided that the father gives the mother not less than 28 days notice of his intention to spend time with the child under this order, and further provided that the two occasions are at least 3 months apart and are not taken concurrently with any other period of time the father is to spend with the child so as to have the child spending more than one week with the father at a time;
(c)In the first year the child attends school, on three occasions of one week each during school holidays at the end of the first, second and third terms as agreed between the parties, and failing agreement, being the first half;
(d)From the second year the child attends school, on two occasions of two weeks and one occasion of one week, during school holidays at the end of the first, second and third terms, the father to notify the mother of the dates on which he seeks to spend this time not less than 28 days in advance.
Notwithstanding the above orders, and if the child is not then otherwise spending time with the father, the child shall spend time with the father-
(a)On Father’s Day, from 9am until before school the following day;
(b)On the father’s birthday, from 9am to 6pm or, if the father’s birthday falls on a school day, from after school to 8pm;
(c)On the child’s birthday from 10am to 2pm or, if the child’s birthday falls on a school day, from after school to 7pm;
(d)In 2011, from 9am 23 December to 9am 26 December;
(e)
In 2013 and each alternate year thereafter, from 9am
19 December to 9am 26 December;
(f)In 2014 and each alternate year thereafter, for one week during the Christmas school holidays, otherwise than when the mother is travelling with the child to Brazil in accordance with these orders;
(g)From 9am Good Friday to 8pm Easter Monday in 2011 and, from when the child commences to attend school and Easter falls outside school holidays, on the first such occasion and each alternate occasion thereafter.
Notwithstanding the above orders, and if the child is not then otherwise spending time with the mother, the child shall spend time with the mother-
(a)On Mother’s Day, from 9am until before school the following day;
(b)On the mother’s birthday, from 9am to 6pm or, if the mother’s birthday falls on a school day, from after school to 8pm;
(c)On the child’s birthday from 10am to 2pm or, if the child’s birthday falls on a school day, from after school to 7pm;
(d)From 9am Good Friday to 8pm Easter Monday in 2012 and, from when the child commences to attend school and Easter falls outside school holidays, on the second such occasion and each alternate occasion thereafter.
Both parents are restrained from moving their place of residence beyond a 25 kilometre radius of the Sydney GPO without the written consent of the other parent.
The child may travel with the mother from Australia to Brazil and return by the most direct route in the Christmas school holidays subject to the following conditions-
(a)Before undertaking any trip, the mother shall at her expense cause this court’s orders to be reflected in orders of like effect of the appropriate court in Brazil and shall serve the father with a sealed or otherwise authenticated copy of the Brazilian orders;
(b)Before each trip, the mother shall-
(i)At least 28 days in advance provide the father with a full itinerary for the trip including the addresses at which the child will stay in Brazil and contact telephone numbers while in Brazil;
(ii)At least 14 days in advance pay to the father’s solicitors, or, if he has no solicitors with current instructions at the time, pay to the mother’s solicitors, $200,000 security to be held by those solicitors in a controlled moneys account, to be repaid to the mother if the child is returned to Australia in accordance with these orders, or, if the child is not so returned, to be applied in payment of the father’s expenses incurred in seeking the child’s return to Australia, including legal costs and disbursements in Australia and Brazil and travel and accommodation costs incurred in travelling to Brazil to seek the child’s return, provided that, if the mother secures unconditional registration in Australia as a [occupation omitted] and secures [omitted], the amount of the security shall be $50,000;
(c)The child shall not be absent from Australia on any occasion of travel for more than two weeks until the child is four, and thereafter for more than four weeks;
(d)The child may undertake one trip until he turns four, and thereafter may undertake no more than one trip each year;
(e)In the 2010/2011 Christmas holidays and each alternate Christmas holidays thereafter, the trip may include Christmas Day, and in other Christmas holidays shall commence after 26 December;
(f)The mother shall cause the child to communicate with the father by Skype on at least three occasions each week while the child is outside Australia;
(g)The child shall spend time with the father from 2pm Friday to 8pm Sunday on the two weekends following any trip before the child turns four, and from 2pm, or after school if the child is at school, on Friday to 9am, or before school if the child is at school, on Monday on the four weekends following any other trip.
In the event an immediate family member of the mother in Brazil falls seriously ill, the child may travel with the mother from Australia to Brazil and return by the most direct route for a period of one week subject to the conditions set out in order (11)(a), (b) and (f), provided that in an emergency, the times set out in order (11)(b) shall not be strictly enforced if the mother gives the father as much notice as reasonably practical and lodges the security prior to the child leaving Australia.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Halligan delivered this day will for all publication and reporting purposes be referred to as Cadena & Beltran.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC5206 OF 2008
| MR CADENA |
Applicant
And
| MS BELTRAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested proceedings under the Family Law Act 1975 about the parenting arrangements for [X] ([X]), who is almost 3.
Both parties propose that they have equal shared parental responsibility for the child, and that the child live for a majority of the time with the mother. They are in dispute about the amount of time [X] should spend with his father, and about at what age and subject to what conditions the child should be permitted to travel annually to the mother's country of birth, where the mother's parents and one of two siblings live. The mother's other sibling lives in Victoria.
Background
The father was born in Australia [in] 1967, and is aged 43. The mother was born [in] 1972 and is 38. The parents met in person for the first time in September 2006, after having made contact with each other on an internet dating site some months earlier. They cohabited in Australia from late 2006 or early 2007 until the mother had to return to her country of birth under the terms of her tourist visa on 11 March 2007. The parties became engaged the day before the mother returned to her country of birth, having discovered that the mother was pregnant. They married there [in] June 2007.
The mother returned to Australia under a 457 employment visa on
14 June 2007. This visa is valid until 8 June 2011. The mother is confident that if she has not by then secured permanent residency, she can gain a further 457 visa.
Both parents are [occupations omitted], the father having Australian qualifications, the mother having qualifications in her country of birth. The mother's [omitted] qualifications are not yet fully recognised in Australia. She is in the process of seeking that recognition.
After the mother came to Australia on the 457 visa, she worked at the same [workplace] at which the father held [omitted] appointments. She is currently employed as a [omitted] there, working about 25 hours per week.
The mother left the former matrimonial home, taking [X] with her, on 13 May 2008, the parties having separated under the one roof on about 20 January 2008. The parents were divorced with effect from
14 September 2009.
The father has repartnered, and he and his current partner have a daughter, [Y], born [in] 2010. [Y] was born with a flattened nasal bridge, causing breathing, and hence feeding, difficulties. The father's current partner also has another daughter, [Z], aged 9.
By agreement between her parents, [Z] lives Monday to Friday with her father and on weekends with her mother. This parenting arrangement was arrived at after discussion between [Z]’s parents and having regard to the child’s views, and is a model of cooperative, child-focussed, post separation parenting. The situation I am called on to resolve by orders in these proceedings is a rather sad contrast with that situation.
On 5 December 2008, consent interim orders were made providing for [X]’s parents to have equal shared parental responsibility for him, for [X] to live with the father from 2pm each Thursday to 9am Friday, each alternate week from 9am Saturday to 7pm Sunday, each other week from 9am Sunday to 9am Monday, from 2pm Christmas Day to 5pm Boxing Day in 2008, and from 2pm 9 April 2009 to 9am
11 April 2009, and for [X] to otherwise live with the mother.
On 3 June 2009 further interim orders were made after a hearing providing for the parents to have equal shared parental responsibility for [X], and for [X] to live with the father each week from 2pm Thursday to 9am Friday, each alternate week from 9am Saturday to 6pm Sunday, each other week from 9am Sunday to 9am Monday, from 2pm on the child’s birthday until 9am the following day, from 3pm Christmas Day to 5pm Boxing Day in 2009 and each alternate year thereafter and from 9am Christmas Eve to 3pm Christmas Day in each other year, and from 9am Good Friday to 9am the following Tuesday in 2011 and each alternate year thereafter. The orders provided that otherwise [X] live with the mother. The father was to collect the child from and return the child to the mother's place of residence at the beginning and end of his time with the child. An application by the mother to take [X] to Brazil between 19 June and 17 July 2009 was then dismissed.
There are no apprehended violence orders (AVO’s) between the parties, and the mother is not asserting in these proceedings that there has been any family violence between her and the father. However, proceedings for an AVO were instituted by the NSW Police against the father for the protection of the mother on her complaint. The father defended the application. The proceedings were withdrawn by the police after the first day of the hearing.
Credit of witnesses
I am not satisfied that the credit of the witnesses other than the parties was successfully challenged in any respect. I accept them as honest and reliable witnesses.
The father's evidence was shown to be inaccurate or misleading on occasions. For example, his assertion that he paid the medical bills for the mother's confinement was untrue, as the doctors, who were his friends, charged nothing. His evidence that the mother was not entitled to claim the hospital costs of her confinement from her medical fund was also untrue, as the mother was repaid the hospital costs in full.
Similarly with the mother, there were aspects of her evidence that caused concern. She said she took action to withdraw from the AVO proceedings after an interview with the Court expert, Dr M. However, she said in cross-examination that the police discontinued the AVO proceedings without reference to her. I am satisfied, as asserted by the father and contrary to the mother's assertion in her evidence in chief, that the AVO proceedings were withdrawn by the police in early August 2009, more than two months before the interviews with Dr M, after representations on the father's behalf by his solicitors to the effect that the father had produced recordings of incidents at changeover on 3 and 9 April 2009 which refuted the mother's version of events on which the AVO application was brought.
I am also concerned that the mother's complaint that lead to the AVO proceedings, that there had been family violence, is at odds with her concession in these proceedings that there was no family violence, despite the definitional differences in relation to family violence between the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the Family Law Act.
The mother raised with the Court expert allegations against the father of child abuse that formed no part of her case. It was a very serious allegation to make, and it troubles me that the mother made it in criticism of the father with the Court expert but neither made allegations, nor gave evidence, of child abuse in her case.
Overall, I was not satisfied that the credit of either parent was completely destroyed. There are however grounds for treating the evidence of both parents with some caution.
The evidence
Child care before separation
By the time of [X]’s birth, the parties lived in relatively close proximity to the [workplace] where they worked. There were already relationship issues between the parents before [X]’s birth, and they appear to have deteriorated quickly after his birth.
The father was present at [X]’s birth. He continued to work full time but took parental leave of a day at a time on five occasions, when he said he stayed home with the mother and [X]. The mother said the father used his parental leave to [work] on the NSW North Coast.
The father did two [occupation omitted], on the weekends of 8 and 9 December and 22 and 23 December 2007. He said he did them to raise extra money to meet the costs of the mother's caesarean section and hospitalisation. He said she was not entitled to public health coverage and not entitled to claim under her private health coverage, and that “I paid all the medical bills for (the mother's) caesarean and [X]’s birth”.
When he made these statements, he knew them to be at best misleading. He knew some of them were untrue. There were no medical bills to pay, as the doctors who attended the mother were the father's friends and charged nothing. The father’s initial suggestion in cross-examination that his doctor friends who attended on the mother did it “cheaply” further clouded his credit as a witness. In January 2008, the health fund refunded the whole of the hospital costs associated with the mother's confinement, so that, whatever the father may have thought when he did the [omitted] work, by the time he swore his affidavit he knew the mother was entitled to claim a refund from her health fund, contrary to his assertion on his oath that she was not entitled to claim.
Because of the father's dishonesty on his oath on these matters, and as the mother disputed the father's evidence, I am not satisfied the father used all five days of parental leave to assist the mother with [X].
The child’s maternal grandmother lived with the parties from before [X]’s birth until late December 2007. I infer she was present to give the mother moral and practical support and advice in caring for [X] as a new mother.
I am unable on the evidence to definitively determine the extent of the father’s involvement in the care of [X] up to separation. Nor is it necessary for the determination of these proceedings that I do so. I am satisfied that the father was involved with his son when present, and did provide some care for him. But it is unarguable that the mother was the primary carer of [X] during the parties’ cohabitation. He was breast fed, despite some difficulties with the mother's milk supply necessitating additional complementary bottle feeding.
The father said that after [X]’s birth, the mother said things to him such as “[X] is afraid of you and when he is old enough he will be ashamed of you”. The mother said the father was unsupportive and critical of her parenting of the child, accusing her of causing the child’s reflux by medicating him for reflux.
The parents made a variety of other allegations against each other. For example, the father alleged that the mother would try to restrict his involvement with the child, and the mother alleged that the father spent a lot of time away from the home drinking with friends and neighbours when not working. Because of my reservations about the credit of both parties, I am reluctant to make concluded findings on matters where it is unnecessary that I do so. I am satisfied of a high level of bitterness and acrimony between the parents, even before they separated, and that their recollections and retelling of events is highly coloured by their attitude to each other.
The father asked that the mother and [X] accompany him to a memorial luncheon for a relative on 27 December 2007. The mother declined and requested that the father not attend and remain and assist her in the care of [X]. This was at a time when the child was seven weeks old, was suffering from oesophageal reflux, a condition about which the father said he “was always concerned”, and according to the father was having undisturbed sleep of between 40 minutes and three hours at a time, and when according to the father the mother was getting only one to three hours sleep a day. The mother said the child at night was waking frequently, often every 15 to 20 minutes in his first six to eight weeks. She also said he would often cry for seven or eight hours at a time. There is thus significant consistency between the parties’ evidence about these matters.
The father attended the memorial service alone, and on returning home after it, expressed to the mother his “disappointment” at her decision not to accompany him, making it plain to the mother that he did not think their marriage was “real”, or that they had “real love” or a “real family”. I accept the mother's evidence that the father returned home extremely angry, complaining of being a “disgraced man”.
On the one hand, this suggests that the father was most insensitive to the mother's position, being seriously sleep deprived caring for a new born baby whose sleep was very disturbed and who was crying and distressed for long periods with reflux, and failed to appropriately support her in parenting [X]. The mother would understandably have been anxious about the child, her first child having died in infancy. The father professed to understand that the mother would be anxious about [X], having lost her first child in infancy.
However, at this time the maternal grandmother was staying with the parties, as was the mother's sister from Victoria and her family, so the mother had support available to her from her mother and sister in the care of [X]. Thus, the father's insensitivity to the mother's plight and his failure to assist her in parenting [X] at this time was not as significant as it might otherwise have seemed. This was a situation where the father might reasonably have attended the memorial service and the mother might reasonably have stayed home with [X] and her maternal grandmother and sister. The criticisms each parent made of the other on this occasion seem unwarranted.
However, this dispute and the way it escalated is typical of the interaction of the parents. They both regard their own views as unarguably correct. They are both rigid and inflexible. They are both forceful personalities, and there appears to be an element of intractability to their conflict. Both appear to have sought to exert control and dominance over the other. However, their conflict has not been marked by any violence, and [X] seems, at least since separation, to have been shielded from open displays of inter-parental conflict.
After this argument on 27 December 2007, the father left the matrimonial home until the mother and [X] accompanied the mother's sister and her family and her mother to her sister’s home in Victoria on 29 December 2007, where the mother remained until about 20 January 2008. While in Victoria, the mother said her milk supply improved and [X] became more settled. I accept this evidence. During this time the parents were not constantly arguing, which must have been beneficial to both the mother and the child.
On her return to the matrimonial home, the mother moved into a separate bedroom. The mother said this was not because she considered she and the father had separated, but to avoid further arguments if she disturbed the father getting up to the baby during the night. However, in cross-examination she accepted that the parties did separate under the one roof at this time.
The mother said [X]’s disrupted sleep patterns recommenced in early February 2008. In March 2008, the mother and [X] spent four days in a Tresillian residential facility. On returning home from the residential program, [X] was more settled.
The mother said there were “various occasions” when the father shouted at her while she was breastfeeding [X]. She said this would startle [X] and he would become less settled. The mother did not identify any particular occasion when this occurred, nor did she say what she alleged occurred or what the father said on any occasion covered by this allegation. The mother's allegation that the father on “many occasions” between 20 March 2008 and 16 April 2008, when the child’s maternal grandmother stayed with the parties, “acted inappropriately towards me including yelling at me when [X] was present or within hearing distance” was similarly lacking in specificity. I am unable on such vague evidence to make any finding adverse to the father.
In mid March 2008, the mother returned to work. She worked 2.30pm to midnight each Thursday and Sunday, returning home at around 12.30am or 1.00am. [X] usually spent a few hours on Thursday afternoon in Family Day Care, and the father collected [X] from day care after work between 3.00pm and 6.00pm and cared for him until the mother returned home after work. He cared for [X] for the whole time the mother was at work on Sunday afternoon and evening. This arrangement continued until the mother and child left the matrimonial home on 13 May 2008.
Child care from separation to interim orders of 5 December 2008
When the mother left the matrimonial home [X] was only six months old. She lived with a friend for about six weeks until she found her own rental accommodation near the [workplace] where both parties worked.
The father refused the mother's request to take a cot when she left the matrimonial home. When cross-examined about this, the father said that the mother always had [X] sleep with her, not in a cot, and he was concerned that if he did not retain the cot the mother would use the lack of a cot at the matrimonial home as a reason to refuse him overnight visits with the child. He then conceded that at separation the parties had two cots. One was given to them and the other was in the house they rented and was available for their use so long as they remained in the house. When it was put to him that he could have let the mother take [X]’s cot and still have had a cot for [X] to sleep in when with him, he sought to justify his actions by saying that their cot was a gift from close friends and they had asked for its return about six to nine months ago, that is in late 2009 or early 2010. The father refused to let the mother take it in 2008. He conceded the friends had not requested the cot’s return by the time the mother requested it.
The father's attempts to justify his refusal to let the mother take the child’s cot were spurious. It demonstrated a lack of candour by the father in his evidence and damaged his credit as a witness. More tellingly, it reflected poorly on his ability to place [X]’s needs ahead of his need to prevail in conflicts with the mother.
There is broad consistency in the parents’ evidence about child care from separation until the first interim orders in December 2008. Initially, the father had [X] each week from 2pm Thursday to 9am Friday and from 10.30am Sunday until 9am Monday.
In June 2008, the mother asked the father to increase the time [X] spent with him each alternate weekend to 8.30am Saturday to 9am Sunday. That is, from mid 2008 when he was only about eight or nine months old, and at the mother's request, [X] commenced spending time with the father on four occasions each fortnight totalling five nights out of 14.
The father also had [X] from Saturday morning to Monday morning on the weekend at the end of May/beginning of June, 2008. The mother attended the father's home on the Sunday morning. The mother said it was to breastfeed [X], which the father denied. The mother gave evidence critical of the father's treatment of her, and implicitly of [X], on this occasion. I cannot resolve the conflicts on the evidence as to what in fact occurred. However, the mother initiated the ongoing change to the care arrangements providing for [X] to spend two consecutive nights with the father each alternate weekend despite whatever happened on this weekend.
The mother said that after a few occasions of spending two overnights each fortnight with the father, [X] was much more unsettled. She said on returning on Monday, [X] slept for three to four hours whereas he normally slept for about one and a half hours in the morning, and he was much more clingy, crying for the mother to pick him up and hold him. She said she asked the father to return him to her on Sunday evenings but he refused.
The maternal grandmother returned to Australia to live with the mother and [X] in August 2008 to assist the mother, and remained until June 2009. The maternal grandfather also visited the mother and [X] in Australia between February and March 2009. There appears to be no issue that [X] developed a close relationship with his maternal grandmother.
The father declined an invitation from the mother to attend a celebration of the child’s first birthday she arranged. He said he declined as he believed the mother was having a gentleman friend attend. He had his own first birthday celebration for the child.
The father collected the child on Sunday morning 30 November 2008, having been told by the mother the day before that the child had been vomiting and had diarrhoea, and having been told by the maternal grandmother when he picked up the child that he had been awake from 3am to 5am that morning.
The father said the child seemed normal after he picked him up, and had no fever, cough, vomiting or diarrhoea. He said the child ate a large brunch and played normally. The father had accepted an invitation to attend a barbecue. He delayed his departure to ensure the child was well enough to attend, before leaving with the child to attend the barbecue. The child slept for 80 minutes in the car on the way to the barbecue. The child remained well and the father returned him to the mother the following morning.
The mother said the father's actions in taking [X] out on this occasion was an example of the father putting his own needs ahead of the child’s. However, the mother gave no evidence of the child on returning to her care being unwell or showing any adverse effects of the father's care for him.
I am not satisfied on the evidence that the father's actions on this occasion demonstrated any disregard for the child’s welfare. This incident evidences a mutual distrust between the parents and a mutual lack of respect for the other’s opinions about the care of the child. It also illustrates the parents’ propensity for adversarial and conflict-ridden, rather than cooperative, parenting.
This is further illustrated by the fact the parents could not agree on the child’s Christening arrangements, resulting in each parent arranging their own Christening for the child. The “solution” to their impasse of two Christenings did not then affect [X], as he was too young to know what was happening. But when he gets older, and if details of his Christening become significant, for example in his ongoing religious instruction, there will be yet further fertile ground for parental conflict that may directly involve the child. If he has to produce evidence of his Christening, which one will it be? If each parent presses for “his” or “her” Christening to be the relevant one, the child may become embroiled directly in the parental conflict and be faced with a highly damaging conflict of loyalties. Both parents seem unable or unwillingly to think through the short, medium and long term consequences for [X] of their conflict-ridden parental relationship, and of some of their parallel parenting decisions.
Child care from interim orders of 5 December 2008 to interim orders of 3 June 2009
On 5 December 2008, consent interim orders were made providing for [X]’s parents to have equal shared parental responsibility for him, for [X] to live with the father from 2pm each Thursday to 9am Friday, each alternate week from 9am Saturday to 7pm Sunday, each other week from 9am Sunday to 9am Monday, from 2pm Christmas Day to 5pm Boxing Day in 2008, and from 2pm 9 April 2009 to 9am 11 April 2009, and for [X] to otherwise live with the mother.
Thus, through these interim orders, the father agreed to [X]’s return to the mother at 7pm Sunday rather than 9am Monday when the father's time commenced on Saturday, as the mother said she had been seeking unsuccessfully, reducing his time with [X] from five nights a fortnight to four.
The father said that despite the provisions of the December 2008 orders, [X] in fact lived with him at Easter 2009 from 2pm Thursday
9 April to 9am Sunday 12 April, three consecutive nights. This evidence was unchallenged and I accept it.
The father said the change in his time under the December 2008 orders did not work well as he said [X] was less settled at changeovers on the Sunday evening. The mother said the new arrangements under the December 2008 orders were more settling for [X] than the previous arrangements. I cannot resolve this issue.
The father also said that loss of the Sunday overnight stay made it difficult to visit his sister in the country, his uncle and cousins living in the Illawarra area, and his aunt living on the Central Coast. However, he gave no specific evidence of taking the child to visit these relatives in these locations in the period when he had the child for two consecutive nights each alternate weekend.
In January 2009, the mother asked the father in emails to care for [X] for a week in lieu of his weekend on 17 October 2009, from 8 to 14 June 2009, and for an unspecified period in June 2009. The father agreed to the October and June requests but heard nothing more about it from the mother. This indicates the mother was unconcerned about [X] occasionally spending a week with the father when the child was not yet two years old, despite expressing concerns about the effects on him of spending two consecutive nights each fortnight with the father.
Child care from interim orders of 3 June 2009 to the present
On 3 June 2009 further interim orders were made after a hearing providing for the parents to have equal shared parental responsibility for [X], and for [X] to live with the father each week from 2pm Thursday to 9am Friday, each alternate week from 9am Saturday to 6pm Sunday, each other week from 9am Sunday to 9am Monday, from 2pm on the child’s birthday until 9am the following day, from 3pm Christmas Day to 5pm Boxing Day in 2009 and each alternate year thereafter and from 9am Christmas Eve to 3pm Christmas Day in each other year, and from 9am Good Friday to 9am the following Tuesday in 2011 and each alternate year thereafter. Otherwise, the orders provided that [X] live with the mother. The father was to collect the child from and return the child to the mother's place of residence at the beginning and end of his time with the child. An application by the mother to take [X] to Brazil between 19 June and 17 July 2009 was then dismissed.
Thereafter, the father generally spent time with [X] in accordance with these orders, for a total of four nights a fortnight, but, as had been the case since the December 2008 orders, taken on four separate occasions.
The father commenced to cohabit with a new partner in March 2010. He met her in August 2009 and he said their relationship became “serious” in about September 2009. They discovered his partner was pregnant in late October 2009. Nonetheless, he did not mention her in his affidavit sworn on 29 October 2009. His failure to do so was not satisfactorily explained.
The father denied to the mother in November and December 2009 that he had a new partner. He first informed the mother of his new partner in January 2010, and first advised the mother his new partner was pregnant in March 2010, when she was six months pregnant.
As mentioned, the father and his partner now have a daughter, a half sibling of [X]’s. I accept the evidence of the father and his partner that the new partner’s daughter and [X] have a good relationship. The father's new partner has Australian and foreign tertiary qualifications and is an Australian citizen. She has a good relationship with [X]. While the father generally provides care for [X] when the child is spending time with him, on the occasions when his new partner has cared for him, [X] has seemed happy and was well behaved. While [X]’s new half sister is only an infant, [X] has held her and is very happy to be a big brother.
The mother expressed concern that the father had not been frank and forthcoming about his new relationship, and had “refused to enter into discussions with me about how [X] was affected by his new relationship”. While that may have been the ideal, it is hardly surprising that it did not occur given the fraught relationship and total lack of trust between the parents.
In fact, the father's reticence in disclosing his new partner to the mother is understandable in the context of the highly offensive, and in relation to the father's new partner racist, comments about them exchanged between the mother and her friends in emails, copies of which were mysteriously sent to the father over a significant period of time despite the father's complaints to the mother about them.
The mother seemed to suggest that she believed that the father had somehow gained access to her computer and changed the set up so that these emails were copied to him in a way she could not change. She also suggested that she had included the father in an email group comprising her mother’s group friends, and that was why he was getting the emails. Her explanation of why she included the father in the email group for her mother’s group friends simply defied logic.
The father's reticence to keep the mother informed about his personal life is also understandable in the context of a similarly offensive email sent by the mother to the father in December 2009 asking him for information about his new partner in which the mother implied that the father might repartner with a person who was a drug user, an alcoholic or a person affected with psychological problems that may adversely impact on [X]. The mother's statements in cross-examination that she did not believe the father would repartner with such a person suggest the purpose of the email was to be gratuitously offensive. The mother provided no other reasonable explanation for the content of this email, and I view her statements in cross-examination that she did not intend to offend the father by this email, and that she would not find such an email from the father to her offensive, to be quite disingenuous. Bearing in mind the matters about which the mother has caused lengthy letters of complaint to be sent by her solicitors to the father's solicitors, and the level of distrust and conflict between these parents, I have no doubt that the mother would react very strongly indeed if the father cast such an aspersion on her judgment.
Put in this context, it is hypocritical in the extreme for the mother to criticise the father for failing to be forthcoming with information about his new partner, lamentable though that failure may be.
In early 2010, the mother refused two requests from the father for an extra night with the child so he and the child could attend the christening in Melbourne of triplets, children of a friend and for whom he was to be godfather, and to attend the wedding of another friend in country New South Wales where both the father and [X] were invited to be in the bridal party.
Not only did the mother not agree to extend the father's time with the child, she also advised him that due to work commitments she could not assume care of the child on the relevant weekends to allow the father to attend these celebrations on his own, suggesting through her solicitor in relation to the christening that if he attended, he should nominate “a family member or someone familiar to [X] who will care for him” in the father's absence.
Despite the mother's refusal of the father's requests, he and [X] were able to attend the wedding, but not the rehearsal the evening before. He was unable to attend the christening.
The reason the mother gave for her refusal of the father's requests was that she did not believe it was in [X]’s best interests to spend two consecutive nights away from her. The basis for that belief is not apparent when the child had spent two consecutive nights with the father on many prior occasions with the mother's agreement, and spent two consecutive nights with the father at Easter 2010, about six weeks after the christening, again with the mother's agreement. In fact she agreed to [X] spending three consecutive nights with the father at Easter 2009.
The mother sought to further justify her refusal in relation to the wedding on the basis it would entail a drive of some distance to the country and return on consecutive days. However, even when the father arranged flights to attend the wedding, the mother withheld her agreement.
In relation to the christening in Melbourne, the mother said that while attending a party to celebrate the christening may not have been contrary to [X]’s interests, spending time in a church would have been. Yet part of the mother's objection to the father's proposals to have [X] each weekend is that she wishes to take the child to church every Sunday.
The mother seems totally incapable of appreciating the hypocrisy in her position on this and other issues. I note that the mother has taken [X] to Melbourne on occasions to stay with her sister, and she agreed he is quite tolerant of the flights, albeit her trips have usually been for about a week.
By May 2010, both parties had moved to live some distance from the [workplace] where they worked. The father was the first to move away, and his criticism of the mother for her subsequent move is hypocritical.
As a result of the moves, the prior changeover arrangements were no longer practical. The attempts to negotiate altered arrangements generated reams of correspondence between the parties’ solicitors full of accusation and recrimination, undoubtedly at very significant cost to both.
In May 2010, the father proposed that his partner care for [X] for about half an hour on Thursdays, between the time the mother would deliver the child to his home on her way to work, and the time the father would arrive home from work. The mother refused because she had not met the father's partner. She claimed never to have left [X] with someone the father had not met. That claim was untrue. She admitted leaving [X] with a neighbour before the father had met the neighbour, and on the day she gave this evidence, she admitted having left [X] in the care of a babysitter the father had not met. Her attempt to rely on a concession by the father a few months earlier that [X] was distressed being in the care of a friend or stranger was irrelevant. The father's partner by then was not a stranger to the child, and the mother had left the child with friends and strangers.
Similarly the mother's statement that she wanted information about the father's partner’s child and why the father's partner was not caring for her was disingenuous. The father's solicitors had advised the mother's solicitors in early April 2010 that the parenting arrangement for the father's partner’s child was a cooperative and flexible one that was not subject to court orders. The mother did not explain why she apparently did not accept this explanation. In fact, both of [X]’s parents would do well to look to the example of child-focussed, cooperative parenting set by [Z]’s parents and attempt to emulate it.
The father considered the mother to have been unreasonable in refusing his suggestion to have someone she had not met care for the child, observing that she needs to trust him to make proper care arrangements for the child. While that would have been the preferable situation, for this couple, the level of mutual suspicion, animosity and distrust is such that it was simply not a reasonable expectation.
The mother said that she has now met the father's partner, and she seems a nice lady. The mother said she was not now opposed to [X] being left in the care of the father's partner for a short period, but if the father could not be with the child for longer than a short period, the child should be with her.
In about mid 2010, a rostering error by her employer meant the mother could not be available to care for [X] on alternate Sundays when he was to be with her. At the mother's request, the father’s time with [X] consequently increased each alternate weekend to two consecutive nights. That is, [X] recommenced spending five nights a fortnight with the father, as had happened from mid 2008 until the interim orders were made in December 2008. This arrangement was put in place despite the mother suggesting that from late 2009, [X] had commenced to display aggressive behaviour, which the mother believed was a result of changes in the father's household on the father forming a new relationship and his new partner falling pregnant.
Parental conflict
In addition to issues already mentioned, there was evidence of many issues, disputes and demonstrations of a lack of trust between the parties since separation. They included-
a)The mother caused changeovers to be filmed on occasions. In raising this in his evidence, the father failed to acknowledge that he had made sound recordings of changeovers. It seems sound recordings of two changeovers the father made contradicted the complaint of the mother on which the AVO proceedings were brought against the father, resulting in the police withdrawing the AVO proceedings.
b)When the mother obtained her driver’s licence in mid 2008, the father offered to give the mother a twelve year old motor vehicle, being one of two cars he had. When the mother indicated she intended selling it and buying a newer model, the father withdrew his offer because he did not wish the car to be sold “in this manner”. What aspect of the manner of proposed sale he objected to remains a mystery.
c)In June 2008, believing the father to have lied to her when he said he was at home with [X] when she believed he was on his way to a café with [X], the mother wrote melodramatically to the father complaining of the suggested deception. Instead of correcting what the father said was the mother's incorrect assumption about where he was, he asserted his right to take the child where ever he wished without the mother's prior agreement or knowledge. I cannot resolve on the evidence where the truth lies on this occasion. Its significance lies in the illustration it affords of the lack of trust, suspicion and conflict between the parents.
d)On 30 May 2010, when she attended to deliver [X] to the father at 7.30am, he was dressed formally. She asked if he was intending to leave [X] and go to work. He did not respond and closed the door. The mother later phoned the father and he told her it was not for her to know his movements.
e)The mother lied to the father when she told him she was in a new relationship with Mr H. I accept the evidence of both the mother and Mr H that while they are good friends who provide each other with support, there is not and has not been any sexual or romantic relationship between them. The mother said she lied to the father as he became angry on discovering that Mr H had stayed overnight at her home, and she thought he would be less aggressive if she told him Mr H was her new partner.
Restraint on relocation
At the commencement of the hearing the father sought an order restraining the mother changing the child’s place of residence to an address outside a five kilometre radius of the Sydney GPO without his prior written consent. The father was concerned that the mother intended moving some distance away from where both parties lived and worked, albeit still within the metropolitan area. The mother indicated to the Court expert that she was considering seeking employment, and living, a significant distance from where both parties then lived and worked. Since the interviews with the court expert, both parties have moved, but not so as to significantly interfere with the parenting arrangements.
The father suggested he was not concerned about the mother moving per se, but was concerned about changeover arrangements, proposing that if the mother moved any significant distance away, he wished her to collect the child from him at the end of his time with the child, instead of him both collecting and returning the child. Despite this, instead of seeking those changeover arrangements, he sought to restrict the mother's freedom of movement.
It was clear from cross-examination that the father had not thought about the order he sought to restrain the mother's freedom of movement. He did not know what suburbs were inside or outside the area in which he sought to keep the mother, and conceded the order was ill-conceived. He said a well-conceived order would extend the geographical area within which the child should remain, and suggested a better definition of that area might be a 20 kilometre radius of the Sydney GPO. The Minute of Order ultimately pressed on behalf of the father included an order requiring both parties to live within a 25 kilometre radius of the Sydney GPO. The mother sought an order keeping the parties within “the Sydney metropolitan area”.
Overseas travel with the child
The mother wishes to be able to take [X] to her country of birth once a year to enable him to know her family better, to experience her culture, and to enable him to have a relationship with the mother's extended family and friends in her country of birth. The father concedes that when the child is older, and subject to his concerns that the mother may not return [X] to Australia, travel to the mother's country of birth to spend time with the extended maternal family and experience their culture and heritage would be beneficial to [X].
As mentioned, the maternal grandmother spent 15 of the first
24 months of [X]’s life living with him, and [X] has a close bond to her, the continuation of which will benefit [X]. However, the maternal grandmother overstayed her visa on her last visit to Australia and has been refused a visa to return to Australia. She is not eligible to seek a further visa until June 2012.
The mother misses her overseas family very much, particularly her parents and her twin brother. The mother's only other sibling, her sister, lives in Melbourne and may be relocating with her family to Sydney to live in the same area as the mother.
The mother has not had a holiday in more than three years. She has had short breaks of about a week at a time with her sister in Victoria.
The mother has a circle of friends here, and she intends completing the requirements necessary to obtain full [occupation omitted] registration and [omitted] accreditation in Australia. The mother had difficulty saving the significant funds to pay for her [omitted] exams, the father having refused her request to pay for her. She was to sit the [omitted] exam on 17 July 2010, having saved sufficient to pay the necessary fees.
The mother said she was confident of obtaining an extension of her current 457 visa when is expires in mid 2011, if necessary. However, she said she intended seeking a permanent visa when she obtained full [omitted] registration and could seek wider employment opportunities.
In 2008, the mother raised with the father the prospect of her returning to her country of birth with [X]. At that time her [occupation omitted] registration had lapsed because of an error by the administration at the [workplace] where she worked. She was unable to work, she had financial difficulties in consequence, and she said the father refused to assist her financially. However, she gave no evidence of informing the father of her situation. The father said he did not know of the mother's difficulties until just before her [omitted] registration was renewed, and he gave her $250, which the mother conceded receiving, when he learned of her situation.
The mother said she wished to obtain two passports for [X], an Australian one and one from her country of birth. She said her sister’s two children travel on dual passports and it assists them clearing customs when travelling between the two countries.
The mother said that with assistance from her family, she could place $20,000 in her solicitors trust account as security for the child’s return, if he was permitted to travel overseas with her. The mother told the father her family would provide one, two or three million dollars for her to fight these proceedings. They in fact had provided about $80,000 in legal costs for the mother as at the second day of the hearing. I am not satisfied on this evidence that $20,000 is the limit of the mother's ability to provide security for [X]’s return to Australia if he is permitted to leave the country.
I was concerned by the mother's evidence in cross-examination that she did not agree that if she travelled to her country of birth with [X] before he turned six and stayed for a significant time it would damage the child’s relationship with the father. She said she did not know how long an absence would damage that relationship. She said her sister travelled overseas with her children to visit their family each year for a longer period without damaging those children’s relationships with their father, but conceded that those children’s parents’ relationship remained intact.
The mother also said she did not accept Dr M’s opinion that it was contrary to the child’s interests to go on the basis the mother sought before he turned four. In relation to Dr M’s opinion that the effect on the child may be less if the trip was shorter, she said she would accept a shorter trip of about two and a half weeks or, say, 18 days.
The father opposed the child travelling overseas with the mother until he was old enough to remember the father and to speak to him on the phone. His position was thus that overseas travel by the child should not occur until he was older - he suggested not until [X] was six - that the frequency and duration of absences overseas should be limited, and that the mother should provide substantial security for the child’s return.
The father’s primary concern was that the mother would not return the child to Australia if permitted to take him overseas. Most of the mother's family live overseas. The mother's [omitted] qualifications are not yet recognised in Australia but are recognised in her country of birth. The mother does not have Australian citizenship or permission to remain permanently in Australia. In 2008 the mother had raised with him the prospect of returning to live in her country of birth. He also said the mother had told him she intended replacing him as [X]’s father, she intended remarrying, her former partner in her country of birth was still waiting for her, [X]’s life would be better in her country of birth, and she wanted him to grow up with her culture. This evidence was unchallenged and I accept it. However, the mother had also acknowledged to the father the importance of [X] having a relationship with him.
The father believed that if the mother did not return [X] to Australia he would have difficulty securing the child’s return, despite the country of the mother's birth being a Hague Convention country. He said that if overseas travel could not occur until the child was six and the mother then failed to return the child, there was a greater chance the child could remember him. He also said that by then, the mother may have full [omitted] registration in Australia, may have permanent residency in Australia, and may be in a new, stable relationship, thus reducing the risk of her not returning to Australia.
The father said the mother's parents and brother travel “regularly” to Australia to visit her and [X]. However, it appeared that since separation two and a half years ago, the mother's brother had not visited Australia and the maternal grandfather had visited once. There is no issue that the maternal grandmother, with whom [X] has a close relationship, cannot visit Australia until after mid 2012.
The father conceded it may do much for the mother's peace of mind to be able to visit her family overseas, and that this beneficial effect on the mother may be of benefit to the child.
Both parties propose that, as a pre-condition to any overseas travel by [X], any parenting orders made in Australia be mirrored by orders in the relevant court of the mother's country of birth. However, in cross-examination the father said he was not reassured by such an arrangement, saying he did not understand the significance of mirror orders, and he had not had time to seek legal advice about the proposal.
The father sought an order that if [X] was to travel to the mother's country of birth, it be via New Zealand. The father explained that order by saying the travel could be via either New Zealand or the USA, and that his legal advice was that it would be harder to divert to a non-convention country if travelling via New Zealand. The father placed no evidence before the court to prove this was so.
In his report, the court expert supported the mother taking [X] to visit extended family in her country of birth for regular annual visits, but not before the age of four due to the few cultural benefits for [X] at any earlier age being outweighed by the risk of an extended separation from the father. He said that when the child is four or five, the child will be better able to handle separation from his father and benefit from cultural experiences. He said that whether the age from which he could undertake overseas travel should be four, five or six was difficult to say, observing that it had to do with school readiness, the child being able to handle separation and being put in a new environment. He said his view was predicated on the length of absence being for four weeks. If it was shorter, say one or two weeks, he would be more supportive of travel when [X] turns four, but for the more extended period the mother sought, it would be better if it were delayed.
In cross-examination by the mother's counsel, the Court expert said when he expressed his opinions about the age at which the child should travel overseas, he was unaware the maternal grandmother could not return to Australia before mid 2012. He said that the child’s relationship with the maternal grandmother was a significant and important one, and the maternal grandmother’s inability to return to Australia until mid 2012 was a reason to allow travel sooner. He said it would improve the mother's peace of mind to be able to do so, and this would assist the child. However, he noted the father's concerns that the mother may not return the child to Australia. He was not asked to be, and was not, more specific about at what age earlier than four, if any, he would support overseas travel by the child taking into account the maternal grandmother’s inability to return to Australia before mid 2012.
The parties’ proposals
As mentioned at the outset, both parties sought orders for equal shared parental responsibility and for the child to live with the mother for the majority of the time. The issues revolved around how much time [X] should spend with the father, when that time should fall, and the mother's wish to travel overseas with [X].
The father’s proposals
The father’s proposal, as set out in a Minute of Order submitted on the final day of the hearing, was that-
a)Until [X] turns 4, on [date omitted] 2011, he spend time with the father from 8pm Friday to 8pm Sunday each week, a total of four nights a fortnight.
b)From [X]’s fourth birthday until he commences school, [X] spend time with the father in a two week cycle of 2pm Friday to 8pm Monday on week one and 2pm Friday until 8pm Sunday in week two, a total of five nights a fortnight.
c)Once [X] commences school, [X] spend time with the father on a two week cycle from after school Wednesday until 11am Saturday in week one and from after school Friday until before school Monday in week two, a total of six nights a fortnight.
In addition, the father proposed that [X] spend time with him-
a)For two periods of three nights in 2011 on the father giving the mother 48 hours notice “of his intended holiday”;
b)From the time the child commences school, for half of all school holidays, provided that for the first two years the Christmas school holidays be spent on a week about basis with each parent;
c)On the child’s birthday for four hours as agreed, and failing agreement, from 10am to 2pm or, if a school day, from after school to 6pm, provided that if the child is otherwise with the father, the child shall spend time with the mother on the same basis;
d)Each alternate Easter commencing 2012, from 9am Easter Friday to 9am Easter Tuesday, with the child to spend the same time with the mother at each other Easter;
e)
Each alternate Christmas commencing 2010 from 9am
23 December to 9am 26 December, with the mother to spend time with [X] from 6pm Friday to 9am Monday on the weekend before Christmas in those years, and in each other year from 6pm Friday to 9am Monday on the weekend before Christmas with [X] to spend time with the mother from 9am 23 December to 9am
26 December in those years;
f)From 9am on Father's Day to 9am or before school the next morning, provided that the child shall spend the same time with the mother on Mother's Day.
The father did not propose any changeover arrangements for [X] to pass between the parents. He did seek an order restraining both parents from changing their residence outside a 25 kilometre radius of Sydney GPO.
In relation to overseas travel by [X], the father sought an order restraining the mother from removing the child from Australia before [date omitted] 2013, that is, [X]’s sixth birthday. Thereafter, if the mother is permitted to take the child out of Australia, the father sought that specific conditions be imposed on that permission. Thus, he was not proposing that [X] be permitted to travel on turning six, but instead seeking that specific terms be attached if the court was prepared to permit travel once [X] is six. The conditions the father sought be attached to any permission to travel were that-
a)Both parties, at the mother's cost, first cause this Court’s orders to be mirrored in the equivalent of the Family Court in the mother's country of birth, with the mother to serve a certified copy of those orders on the father not less than 28 days before any proposed travel;
b)The mother serve on the father not less than 28 days before travel evidence of-
i)[omitted] registration in Australia;
ii)Permission to reside permanently in Australia or Australian citizenship;
c)The mother cause a deposit of $200,000 to be lodged with the father's solicitors not less than 28 days before travel, and the father be entitled to use the deposit to travel to the mother's country of birth and engage lawyers to recover the child pursuant to this Court’s orders;
d)The mother only be permitted to travel to her country of birth via New Zealand, and the mother not remove the child from her country of birth except to return to Australia via new Zealand;
e)The mother provide the father with a travel itinerary with contact addresses and numbers at which the child may be contacted by the father by phone not less than 28 days before travel; and
f)The mother cause the child to Skype the father on three occasions each week while in the mother's country of birth.
The father also sought a mutual non-denigration order in the usual terms.
The father is presently living in rented accommodation with his partner and their child, and on weekends, with his partner’s older child [Z]. He continues to work at the same [workplace]. There was no suggestion that he may lose the flexibility in working hours that has facilitated the mid week time he has had with [X] since separation.
The father has extended family in the Sydney metropolitan area, including his mother and one of his sisters and her husband and two children. His other sister, her husband and two children live in the country but have a home on the Northern Beaches of Sydney to which they intend returning to live this year. He has a close first cousin who lives in the metropolitan area with her husband and child, who is very close in age to [X]. He has a group of about eight close friends from his school days living in the metropolitan area, most of whom are married with young families. About once every four weekends, the father takes the child to visit, and on occasion stay overnight, with the paternal grandmother or other family and friends.
The orders sought by the father have had various iterations since he first filed his application. He initially sought an equal time parenting arrangement. The child was then 11 months old. When asked in cross-examination whether he then thought this was in the child’s best interests, he said that was what his lawyer told him. When asked whether or not that was what he then wanted, he said it was. When asked again whether he then thought this was best for the child, he again sought to deflect the question by saying this was what he was advised.
I am not satisfied that in formulating the orders he sought before the hearing commenced the father has been guided by what he thought was best for [X]. His formulation of the orders in my view has been driven by his conflict with the mother regardless of the impact of what he sought on [X]. He did significantly modify what he sought in the Minute of Order submitted on the final day of the hearing.
The mother's proposals
The mother proposed that the child “live with” the father (rather than, as the father sought, “spend time with”)-
a)until [X] is three ([date omitted] 2010), on a fortnightly cycle of 2pm Thursday to 9am Friday in week one and from 2pm Friday to 8pm Sunday in week two (three nights a fortnight);
b)Between ages three and four ([dates omitted), on the same fortnightly cycle and two additional three day periods each calendar year on the father giving the mother 28 days written notice and the periods being not less than three months apart, and following the child’s trip with the mother to her country of birth at Christmas 2010, for four consecutive weekends from 2pm Friday to 8pm Sunday;
c)Between ages four and five ([dates omitted]), on a fortnightly cycle of 2pm Thursday to 9am Friday in week one and 2pm Friday to 9am Monday in week two (four nights a fortnight), and two additional one week periods each calendar year being not less than three months apart, and following the mother's trip with the child to her country of birth at Christmas 2011, for four consecutive weekends from 2pm Friday to 8pm Sunday;
d)Between the ages of five and six ([dates omitted]), on a fortnightly cycle of 2pm Thursday to 9am Friday in week one and from 2pm Friday to 9am Monday in week two (four nights a fortnight), and three one week periods in NSW school holiday periods on the father giving the mother 28 days written notice, and subject to the order the mother sought to travel with the child to her country of birth, and following her trip with the child to her country of birth at Christmas 2012, for four consecutive weekends from 2pm Friday to 8pm Sunday;
e)On Father's Day and the father's birthday, from 9am to 6pm, and if the father's birthday falls on a school day, from after school to 8pm;
f)On the child’s birthday in 2010 and each alternate year thereafter from 9am to 6pm or if a school day from after school to 8pm;
g)In 2011 from 9am Good Friday to 8pm Easter Monday;
h)Once the child commences school, if Easter falls outside school holidays, from 9am Good Friday to 8pm Easter Monday on the first occasion this occurs and each alternate occasion this occurs thereafter.
From the child’s sixth birthday ([date omitted] 2013), she proposed [X] spend time with the father-
a)On a fortnightly cycle of 2pm Thursday to 9am Friday in week one and from 2pm Friday to 9am Monday in week two (four nights a fortnight);
b)Half of NSW school holidays excluding Christmas school holidays;
c)For two weeks in the Christmas school holidays, being the first two weeks in the holidays in 2013 and each alternate year thereafter and the last two weeks in the holidays in each other year
The mother proposed that changeovers be effected by her delivering the child to the father's home at the commencement of his time and that the father deliver the child to her home at the conclusion of his time.
The mother sought that if the child was otherwise not to be in her care, then despite the provisions for the father's time with the child the child should spend time with her -
a)On Mother's Day and the mother's birthday from 9am to 6pm, or if the mother's birthday falls on a school day, from after school to 8pm;
b)On the child’s birthday in 2011 and each alternate year thereafter from 9am to 6pm or if a school day from after school to 8pm;
c)In 2012 from 9am Good Friday to 8pm Easter Monday;
d)Once [X] commences school, if Easter falls outside school holidays, from 9am Good Friday to 8pm Easter Monday on the second occasion this occurs and each alternate occasion this occurs thereafter.
In relation to overseas travel by [X], the mother sought that she be permitted to travel with the child to her country of birth for up to four weeks each year in the Christmas school holidays as follows:
a)In 2010 and each alternate year thereafter, for four weeks including Christmas Day as nominated by the mother in writing 28 days before departure;
b)In 2011 and each alternate year thereafter, for four weeks commencing 26 December as nominated by the mother in writing 28 days before departure.
The mother proposed that she provide the father with a full travel itinerary for the child including contact addresses and phone numbers 14 days before travel, and that 14 days before travel she cause a deposit of $20,000 to be made to the trust account of the father's solicitors.
The mother also sought to be able to travel with the child to her country of birth for one week to visit any immediate family member there who falls seriously ill.
The mother also proposed that before any international travel by the child, she cause this Court’s orders to be mirrored in the equivalent of the Family Court in her country of birth and that she serve a certified copy of those orders on the father no less than 28 days before travel.
The mother sought an order restraining both parties relocating outside the “Sydney Metropolitan Area” with the child without the agreement of the other parent or a court order. Such an order is uncertain as to its scope, the “Sydney Metropolitan Area” not being a defined area.
While saying she was prepared to consider [X] spending an extra night each fortnight with the father in addition to the three nights per fortnight she was proposing, the mother did not agree with the father's ultimate proposal, namely each week from 2pm Friday to 8pm Sunday until [X] turns four. She said she preferred [X] to spend time with the father from Friday to Sunday each alternate week, and from Thursday to Friday and from 2pm Sunday to 9am Monday each other week, making a total of four nights a fortnight, the same number of nights the father ultimately sought until [X] turns four. She said this would give her some time with [X] each alternate weekend.
The mother lives with the child in rented premises in the Eastern Suburbs. Her sister stays with her for two or three nights each fortnight. The mother's sister lives with her husband and children in Victoria, but is undertaking part time employment in Sydney. The mother's sister anticipated this part time work becoming full time towards the end of 2010, at which time she would relocate her family to Sydney and seek accommodation near the mother.
As mentioned, the mother is yet to achieve full recognition in Australia of her [omitted] qualifications. Once she does so, she intends seeking employment at a different [workplace]. She also intends seeking permanent residency in Australia when her [omitted] qualifications are fully recognised here.
The mother works every Thursday from 2pm until 1am Friday morning, and each alternate weekend of both Saturday and Sunday from 8am to 6pm. Each other weekend, she works on Sunday from 2.30pm to 1am Monday. She has no current plans to change her work hours, although she may do so when [X] commences school. She may then consider seeking full time employment. Gaining full [omitted] registration may also prompt the mother to change her current place of employment, if not her hours of employment.
The mother currently delivers [X] to the father's home at 2pm each Thursday and the father returns the child to her home at 9am Friday morning. Each alternate Sunday she delivers [X] to the father’s home at 7.30am and the father returns the child to her home at 8pm the same day. On each other Sunday, she delivers [X] to the father’s home at 7.30am and the father returns him to her home at 9am the following day.
The mother has placed the child on the waiting lists of a number of pre-schools in the area where she currently lives. She has commenced to research schools in the area, and said she hoped to reach agreement with the father on a list of schools the child could attend in due course.
The Court expert’s evidence
The court expert, Dr M, is a child, adult and family psychiatrist. His report indicates he saw the parties and [X] on 26 October 2009. In fact, the interviews were held on two consecutive days, 26 and 27 October 2009.
Dr M said the mother told him [X] had been exposed to domestic violence and that the father was unwilling to acknowledge domestic violence and child abuse. Dr M reported that the mother expressed surprise when he indicated that he did not find any evidence of child abuse. As mentioned, it was not part of the mother's case that there had been any family violence. Nor were there any allegations of child abuse raised in the proceedings, much less any evidence of it.
In cross-examination, the mother denied referring to family violence with Dr M, but admitted mentioning child abuse. But while the mother canvassed Dr M’s report in her affidavit of 25 June 2010 and disputed the accuracy of some things attributed to her in Dr M’s report, she did not attempt to correct the reference to family violence. In any event, the mother agreed mentioning child abuse to Dr M, which formed no part of her case before me. Why the mother made such an allegation to the Court expert has never been explained.
Dr M reported that the father “noted that the mother had a history of use of substances of abuse, such as ecstasy, marijuana and cocaine”. The father gave no evidence and made no allegation of drug abuse against the mother in his case. The mother said Dr M did not tell her of this allegation by the father, and hence she did not have the opportunity to emphatically deny the allegations to him.
The father said he was misreported by Dr M. He said he told Dr M that the mother told him she used marijuana and ecstasy in the past, and had friends who had tried cocaine. In cross-examination Dr M could not remember in detail what the father told him. He said the father's comment came when he sought the father's response to the mother's allegations to him of alcohol abuse by the father, an issue not raised as relevant in the mother's case as presented to me. He said the father acknowledged binge drinking in the past but not currently and in that context referred to the mother's past drug use. Dr M said his notes merely recorded the mother's name with three illegal drugs named. He conceded the father’s version of what he told him may be correct. He said it was not something the father was raising as a relevant current issue, confirming the father's explanation of why he did not seek to correct the misreporting of his statement in the expert’s report during his evidence in chief.
The mother appeared concerned that Dr M was critical of her for arriving late for her interview. Some time was taken up in cross-examination of both parties and Dr M about the arrangements for these appointments. These matters do not assist me in the decision I must make and I disregard them.
The mother said that Dr M misquoted her as describing the father as “vulnerable to depression, eccentric, creepy, weird and a bully”. She said what she told Dr M was that these were the words the father told her his own colleagues used to describe him. This was not put to Dr M in cross-examination. I disregard both versions of this comment.
Dr M reported his observations of the child with each of the parents in turn, first the mother, then the father, and then when he returned to the mother's care. He described enthusiastic, responsive and creative play between mother and child, and the child delighting in his interactions with his mother. On the father arriving, he described the child’s face as lighting up, the child jumping up and down enthusiastically, and running into his father's arms. He reported noticeably more masculine play by the father and son, and the child enthusiastically sitting in his father's lap to read a book together.
When the child was left in the mother's care after his time with the father, Dr M reported that [X] became distressed and agitated, calling after his father when he left the room. Despite the mother actively engaging the child and attempting to comfort him and distract him with toys, Dr M said the child continued to cry and call out for his father for “a few minutes”. While he then settled and re-engaged in his play, he continued to point to the door and say “Daddy”. In cross-examination, Dr M confirmed that the mother was in the room when [X] was distressed.
In cross-examination the mother said she was not present when [X] became distressed at separation from the father. She then said that [X] was crying out for both parents in her presence. It was never put to
Dr M in cross-examination that [X] was calling out for both his parents. The mother said the child was with his aunt and was simply distressed and tired.
The mother's evidence on this point was confused, inconsistent, and unconvincing. I accept Dr M’s report of what transpired, that the mother was present and saw the child’s reaction to separation from the father, and that [X] was calling out for his father but not for his mother.
The mother denied seeing the child distressed on leaving the father after spending time with him, but said on occasions, including the previous weekend, he has said he wanted to stay and play when it was time to return to her. This is a counterpoint to the mother's contention that the child displayed separation anxiety on occasions on leaving her care to go to the father.
There would be very significant difficulty and expense in the father having an ongoing relationship with [X] if the mother travelled to her country of birth and failed to return [X] promptly to Australia. The fact the mother's country of birth is a party to the Hague Convention provides little reassurance at [X]’s young age. The father would need to either activate the inter-Governmental processes, through the respective Central Authorities, for action to be initiated under the Convention to secure [X]’s return, or would need to take legal action himself overseas to seek [X]’s return. There would be an inevitable delay in [X]’s return to Australia which could have profound adverse effects on [X] and his very close relationship with his father.
I accept Dr M’s evidence that the child’s developmental needs were well attended to by each of the parents. He described them both as highly competent parents. I am satisfied both parents can meet [X]’s needs.
The father is deserving of some criticism in relation to his attitude to the child for refusing the mother's request for [X]’s cot at separation with no reasonable justification. I am not satisfied he should be criticised for not providing the mother, and hence the child, with some additional financial support when the mother's [omitted] registration lapsed due to an error by her employer, as I am not satisfied the mother informed the father of her plight until immediately before her registration was renewed. The father has always accepted opportunities to spend extra time with [X] offered by the mother, with only one exception when a prior commitment and the shortness of notice from the mother prevented him doing so.
The mother too is deserving of some criticism in her attitude to the child and her responsibilities as a parent in professing not to see the risk of harm to [X]’s relationship with the father from an extended stay overseas. I in fact am confident the mother does recognise the risk, but was not prepared to admit it in cross-examination as it would have harmed her application to take [X] overseas, something she wants and personally feels a strong need to do. To that extent, she subjugated [X]’s needs to her own. I acknowledge, as the father acknowledged in cross-examination, that if the mother can visit her parents, twin brother, and other family and friends in her country of birth, it will be beneficial to her and vicariously beneficial to [X]. I also acknowledge, as
Dr M indicated, that visiting his maternal grandmother, who cannot return to Australia until after mid 2012, would be beneficial to [X]. I also note that the mother has always turned to the father to care for [X] when she has been unable to do so for any significant period.
I note [X]’s young age, which is linked to the effect on him of changes in his parenting, and the fact of his dual cultural background, which is particularly relevant to the mother's application for permission to take him to visit her family overseas.
In my view, the most significant of the additional considerations is the likely effect on [X] of the changes in his current arrangements each of the parties’ proposals would entail. Because of his young age, Dr M was concerned at the time the father was seeking to spend with him. Because of his young age, Dr M was concerned at the effect on the child’s relationship with the father if the mother travelled to her country of birth and did not return within a month.
Dr M made no specific recommendations in his report about what time [X] should spend with the father now or at any time in the future. However, his evidence in cross-examination provides useful guidance in formulating appropriate orders. The effect of that evidence was that more than two consecutive nights with the father would be inappropriate until [X] turns four, that when he is four the maximum continuous time [X] should be with the father was three nights, and that should not occur more often than fortnightly. He also expressed the opinion that occasional block time of four days and three nights may be appropriate if the child successfully spent three consecutive nights with the father, and that block periods of a week at a time would not be appropriate before [X] is of school age. Dr M was clearly concerned about the effect on [X] of either initially reducing the time with the father, as the mother proposed, and the amount of time and rate of increase in that time as sought by the father.
In my view, despite some apparent confusion during Dr M’s cross-examination as to the time [X] was then spending with the father, his evidence is strongly persuasive. I am not satisfied that any confusion Dr M may have had about the then current parenting arrangements affected his evidence as I have set it out. I have already noted that both parties proposed that [X] commence spending week long block time with the father earlier than Dr M recommended.
Assessment of competing proposals and decision
Parenting arrangements
Somewhat surprisingly given the level of disagreement and disputation between the parents, both proposed an equal shared parental responsibility order. Under such an order, they must consult each other about decisions on major long term issues in relation to [X], they must make a genuine effort to come to a joint decision about such issues, and such decisions must be made jointly (s.65DAC).
There appeared to be a significant inconsistency in the submissions on behalf of the mother. It was submitted that the parents’ relationship was quite toxic, and that there was a significant level of conflict and lack of cooperation between the parents, sufficient to bring this case within the scope of the literature about the adverse effects of shared care arrangements on young children in high conflict situations. Yet it was put on behalf of the mother that an equal shared parental responsibility order was in the child’s best interests, as the parents could effectively exercise equal shared parental responsibility. I have difficulty reconciling these two positions.
I am pessimistic about the parents’ current ability to engage in genuine consultation on long term decisions about [X]. They will in the next few years need to decide where he is to go to school. The mother has already commenced researching schools in her local area to present the information to the father so they can try to agree on a school. But already the mother has made an assumption about the area in which the child should go to school with no apparent prior consultation with the father.
Ultimately, despite my pessimism about the parents’ ability to cooperate, I am satisfied an equal shared parental responsibility order would be in [X]’s best interests. Both parties seek it. It will require them to genuinely try to reach agreement, requiring a degree of mutual trust and respect for the other’s views and a willingness to compromise. Despite the history of the parents’ conflictual interaction, hope springs eternal. They are not unintelligent people. Hopefully, in time, as the heat of battle engendered by these court proceedings subsides, as both parties get on with their lives independent of each other apart from their shared parental responsibility for [X], they may realise the futility of conflict and dispute and focus on what is best for [X], rather than constantly seeking to gain the upper hand over the other.
Having determined that there should be an equal shared parental responsibility order, the court must consider the child spending equal time with each parent (s.65DAA(1)). Ultimately, the father conceded that this was not in [X]’s best interests for the foreseeable future, although he had sought it in his initiating application. Dr M was clearly of the view equal time was inappropriate for [X]. I accept Dr M’s opinion and agree with the father's concession. The lack of any evidence as to how the father would provide care for [X] if he had him for half the time also suggests the court could not be satisfied an equal time arrangement would be reasonably practicable.
I must next consider a substantial and significant time arrangement (s.65DAA(2)). Without limiting other matters the court may take into account in determining whether time is substantial and significant (s.65DAA(4)), to be substantial and significant time, the time the child spends with each parent must-
a)include both days that fall on weekends and holidays and days that do not fall on weekends or holidays,
b)allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
c)allow the child to be involved in occasions and events that are of special significance to the parent (s.65DAA(3)).
There is no issue that the mother should have care of [X] for the majority of the time for the foreseeable future. She has been [X]’s primary carer, his primary bond is with her, she is more available to the child due to her part time work, and removing [X] from the primary care of the mother at a young age would have serious adverse effects on him. It is clearly in his best interests to remain primarily in the mother's care, at least in the foreseeable future.
As already mentioned, the critical issue is how much time [X] should spend with the father now and into the foreseeable future.
The father's proposals for his time with [X] do not include time that falls other than on weekends or holidays, apart from special occasions such as birthdays, Christmas, and Father's Day. There is no provision for [X] to spend regular mid-week time with him. I am not satisfied the father's proposals satisfy the requirements of substantial and significant time.
I am not satisfied there is any basis for reducing the father’s time under the current interim orders with [X], as the mother sought until [X] is four. In fact, the mother's proposals for [X]’s regular time with the father remained less than the time he was spending with the father on a fortnightly basis at the time of the hearing even when [X] is at school.
In the absence of any evidence of adverse effects on [X] of the most recent arrangement of five nights a fortnight with the father, and considering how long [X] has successfully been spending four single nights a fortnight with the father, I do not understand why the five nights a fortnight arrangement recently implemented would not be appropriate in the immediate future. However, this is more time that either party in fact sought in the short term.
[X] has developed his current very good relationships with both parents predominantly through an arrangement of four single nights a fortnight, but with occasions of five nights involving one of the single night occasions being extended to two nights. As already mentioned, some of the parenting arrangements since separation have confounded the accepted wisdom about very young children needing more frequent but shorter periods of time away from their primary attachment figure and with the other parent. That suggests that these parents, despite their conflict with each other, have been able to make parenting arrangements that might as a general proposition seem contra-indicated work well for [X]. The proof of that is in his strong and secure attachments with both parents. In my view, the reason they have been able to do so is because each parent has had an investment in making those arrangements work, the father because he has wanted to maximise his time with [X], the mother because, at least in part, they have met her work commitments. However, even when they have been in excess of the mother’s work commitments or she has been concerned at their appropriateness, she has remained committed to making those arrangements work.
I am satisfied that for these parents and this child at this age, two consecutive nights a fortnight is appropriate for [X] and in his best interests. It has occurred already without any evidence to satisfy me it has had a detrimental effect on [X]. I am satisfied it has contributed to his close relationship with the father without damaging his relationship with his mother. However, I am satisfied that at present, and until he turns four, there should be only one period of two nights with the father each fortnight.
I am satisfied that spending all of every weekend from Friday evening to Sunday evening with the father, as the father seeks, is not in [X]’s best interests as it will deny him the opportunity to spend weekend time with his mother, and it ignores the practical consequences of the mother's working hours, which include 2.30pm Sunday to 1am Monday each alternate weekend. The mother is simply unavailable to receive [X] from the father at 8pm on alternate Sundays as he proposed. This appears to be yet another example of the father failing to think through the orders he seeks.
I am satisfied that an appropriate arrangement is that [X] spend time with both parents on weekends, that [X]’s time with the father on weekends be maximised having regard to the mother's restricted availability through work commitments on weekends, and that [X] continue to spend one night during each week with the father. If the mother delivers the child to the father's home on the way to work on Thursdays and alternate Sundays, [X] could spend time with the father from early afternoon each Thursday until 9am Friday, each alternate weekend when the mother works on Saturday and Sunday from Saturday morning to Monday morning, and on each other weekend when the mother works on Sunday afternoon and night from 2pm Sunday to 9am Monday. Delivering [X] to the father’s home in the early afternoon each Thursday, say at 1.30pm, would mean [X] being in the care of the father’s partner for an hour or two until the father arrives home from work. The mother said she has no objection to the father’s partner caring for [X] for short periods. I am satisfied it is an appropriate arrangement in any event.
When [X] turns four, I am satisfied that time should be increased so that on weekends when the mother works on Saturday and Sunday, [X]’s time commences on Friday evening and continues until Monday morning, with the other time remaining unchanged. [X] has already spent one occasion of three consecutive nights with the father, at Easter 2009, with no evidence of adverse consequences.
When [X] commences school, the mother's work commitments may change, either or both of the parties may have moved residence, and it is unknown where [X] will attend school in relation to each of the parties’ residences. It is thus uncertain what practical considerations may impinge on the formulation of appropriate orders. I am not satisfied on the evidence before me that it would be in [X]’s best interests to further increase his time with the father when he commences school. I am satisfied that [X]’s regular time with the father should remain at five nights a fortnight, but that it should be aggregated into two periods. I am satisfied that both parents should have significant involvement with [X] during the school week and on weekends. I therefore propose to order that on commencing school, [X] spend time with the father on a fortnightly cycle from after school Tuesday to before school Friday in one week and from after school Friday until before school Monday in the other week.
In relation to block holiday time, I note Dr M’s evidence that he would support [X] spending block time of four days and three nights with the father if [X] had spent three nights successfully with the father, and I am satisfied he has, at Easter 2009. It was Dr M’s opinion that stays of three nights should not commence until [X] was four, but both parties propose they commence when [X] is three.
As both parties proposed that block time commence sooner than
Dr M recommended, I am satisfied it is in [X]’s best interests that block holiday time with the father commence in 2011, when [X] should commence spending block holiday time with the father on two occasions of no more than four days and three nights up to his fourth birthday.
The mother proposed that [X] commence spending block periods of one week with the father from his fourth birthday. There appears to be a lacuna in the orders sought by the father, in that he sought block time in 2011 and from the time [X] commences school, but nothing in between. I assume this was an oversight, and that the father does seek block time from 2011 until [X] commences school.
As the mother proposed block time of a week commencing when [X] is four, and despite Dr M’s opinion, I am satisfied [X] should commence spending block periods of one week with the father from 2012. There should be two occasions each year until [X] commences school, and four occasions from his commencement at school. I am satisfied longer block periods with the father would be appropriate for [X] once he commences his second year at school.
The father's holiday time when the mother commences to travel to her country of birth for the majority of the Christmas holidays will have to predominantly fall in the remaining school holidays, and in those circumstances it would be appropriate, once [X] commences his second year at school, for the father to have the option of having [X] in his care on two occasions of two weeks and two occasions of one week during school holidays. The father should have [X] for one week of the Christmas holidays from when [X] commences school.
Both parties proposed arrangements for special occasions, and it is appropriate they be catered for in the orders I make.
In relation to the order restricting the area in which the parties may live, both sought such an order, albeit the areas each proposed differed. The area proposed by the mother is uncertain. The area proposed by the father does not suffer from that deficiency. There was no serious challenge by the mother to that area, and I propose to make the order sought by the father.
No submissions were addressed to me about the non-denigration order sought by the father. I am not satisfied either party has denigrated the other to or in the presence of the child, despite the level of dispute and contention between them. I am not satisfied such an order is necessary.
Overseas travel
In relation to the mother's wish to take [X] annually to her country of birth, it would clearly be in [X]’s interests to renew his relationship with his maternal family living there, especially with his maternal grandmother face to face, and he would even at this young age gain some, albeit minor, benefit from exposure to the culture of the mother's country of birth. The benefit to [X] from exposure to the mother's cultural heritage as he grows older would increase, and would be of significant benefit in the development of his sense of identity.
However, there is a real risk the mother may not return with [X] if permitted to take him overseas. Her connections with Australia are tenuous. She has only one family member here. The rest of her family lives overseas, and she misses them acutely. Her mother, who provided significant support to the mother in the past on extended visits here, cannot return until after mid 2012. The mother's [omitted] qualifications are not recognised in Australia yet, and she must pass certain exams to gain unrestricted [omitted] registration in Australia and membership of the relevant [omitted]. She is a fully qualified [omitted] in her country of birth, and could immediately resume her [employment] there. Her father and brother are [occupations omitted] there, albeit in a different area of [omitted].
If the mother were to take [X] overseas and not return him, it would have a profoundly negative effect on him, especially in his younger years, by placing in jeopardy [X]’s close relationship with his father and denying him regular ongoing contact with him. The fact the mother professed not to accept there was any such risk in my view raises the risk of non-return.
The mother intends pursuing full recognition of her [omitted] qualifications in Australia, and if successful, intends seeking permanent residence here. If she achieves these goals, her connection with Australia would be greatly strengthened, and the risk of her non-return if permitted to take [X] overseas would be significantly reduced, but it would not be eliminated.
Another protection against non-return of [X] was suggested to be the mirroring of this court’s orders in orders of the relevant court of the mother's country of birth. However, neither party put any evidence before me as to what that may entail, or as to the level of protection that may provide against non-return. While I will include such a provision in my order, and I accept that the fact both parties propose such a provision suggests it is common ground such a provision will mitigate the risk of non-return, I cannot on the evidence assess to what extent such a provision will mitigate that risk.
I am satisfied it would be in [X]’s best interests to travel with the mother to the mother's country of birth, provided the risk of non-return was greatly reduced, and provided the length of any trip takes account of [X]’s level of development and ensures no significant adverse impact on the child’s relationship with the father. I accept Dr M’s evidence that the loss of direct contact between [X] and the maternal grandmother until after mid 2012 warrants travel for [X]’s benefit even before he turns four, provided any trip is for no more than two weeks. Once [X] turns four, I am satisfied an absence overseas of up to four weeks would not cause undue harm to [X]’s relationship with the father, especially if time with the father lost as a result of the trip is compensated for before and/or after the trip.
The minimisation of the risk of non-return is problematic. The father seeks as conditions to permission to travel that the mother have full Australian [omitted] registration and permanent residence and lodge a $200,000 security for [X]’s return before undertaking any travel. The mother proposes security of $20,000.
Of the two purposes of ordering security identified in Line (above) - to provide a sum which will realistically entice the person removing the child to return and to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the child – there is no evidence as to the possible cost to the father of seeking the return of [X] if not returned when he should be. The purpose of security therefore must be focussed on providing strong enticement to the mother to return.
As mentioned, [omitted] registration and permanent residence increase the mother's connection with Australia and reduce, but do not eliminate, the risk of non-return. In my view, until the mother achieves full recognition of her [omitted] qualifications in Australia, including entry into the relevant [omitted], and gains permanent residency, the relatively high risk of non-return should be addressed by requiring a significant security for return. In fact, if the mother was not able to provide a significant security for [X]’s return, thus providing a very strong enticement to return, I would not be satisfied that the travel was in [X]’s best interests.
Having regard to the mother's indication her family could provide up to three million dollars to fight these proceedings, and considering the significance of the risk of non-return until the mother secures Australian recognition of her [omitted] qualifications and permanent Australian residency, I am satisfied the security should be as sought by the father, $200,000. However, once the mother secures that recognition and residency, the reduction in the risk of non-return warrants a reduction in the amount of security. In my view, it should reduce at that time to $50,000.
Having regard to all these matters, I am satisfied it would be in [X]’s best interests to permit the mother to travel with him to her country of birth, subject to lodging the security as just mentioned and to other conditions. Until [X] turns four, one trip of no more than two weeks’ duration would be in his best interests. Once [X] turns four, one trip a year of no more than four weeks’ duration would be in [X]’s best interests. Before any trip is undertaken, this court’s orders should be mirrored in the relevant court of the mother's country of birth.
In the absence of any evidence to support the father's contention that travel via New Zealand would reduce the risk of the mother diverting to a non-Convention country, I am not satisfied this restriction is warranted. In any event, the risk identified by the father is not that the mother may divert to a non-Convention country, but that she may overstay in her country of birth, which is a Convention country.
I am also satisfied that, subject to the same conditions as for annual travel, the mother should be permitted to travel with [X] to her country of birth for up to one week if an immediate family member falls seriously ill.
In relation to any overseas travel by [X], the mother provide the father with a full itinerary and contact details in advance, and arrange Skype communication between [X] and the father on no less than three occasions each week while overseas.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 28 October 2010
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