CARLSON & FLUVIUM
[2010] FamCA 480
•28 May 2010
FAMILY COURT OF AUSTRALIA
| CARLSON & FLUVIUM | [2010] FamCA 480 |
| FAMILY LAW – CHILDREN – Interim application to remove a child from Australia for six months for the purposes of spending time with the mother – Whether it is in the child’s best interest – Whether the mother is a flight risk – Whether six months is excessive in duration – Security conditions to be met by the mother FAMILY LAW – COURTS AND JUDGES – Application for Judge to stand aside on the grounds of apprehended bias – Whether the Judge said words to the effect that the truth may lie somewhere in the middle – Application dismissed FAMILY LAW – CHILDREN – Application for final orders – Whether the matter should be heard on an undefended basis – Principles of undefended proceedings – No application made pursuant to Rule 11.02 – Where there would be a denial of natural justice – Where the Judge is not prepared to make final orders – Current interim orders to continue – Application stayed |
| APPLICANT: | Mr Carlson |
| RESPONDENT: | Ms Fluvium |
| FILE NUMBER: | BRC | 9490 | of | 2008 |
| DATE DELIVERED: | 28 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 18 May 2010 and 21 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Smith of Counsel appearing for the Applicant Father |
| SOLICITORS FOR THE APPLICANT: | Richard Gray & Associates |
| COUNSEL FOR THE RESPONDENT: | the Respondent Mother appearing in person by telephone |
| COUNSEL FOR THE APPLICANT: | Mr Thiele of Counsel appearing for the Independent Children’s Lawyer |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O’Brien Lawyers |
Orders
IT IS ORDERED UNTIL FURTHER ORDER THAT:
Paragraphs (1), (2) and (3) of the Orders made in the Federal Magistrates Court of Australia on 22 October 2008 are discharged.
The Mother is permitted to remove the child, D born … June 2006, from the Commonwealth of Australia to travel to Canada in accordance with the terms of these Orders.
Notwithstanding any previous orders the child spend time with his Mother in Canada subject to the following conditions prior to the handover of the child:
a.the Mother deposit her passport with the Independent Children’s Lawyer by forwarding such passport by Registered Post to the Independent Children’s Lawyer’s postal address;
the Independent Children’s Lawyer is to return the Mother’s passport to her by Registered Post upon being notified of the return of the child pursuant to the terms of these Orders;
b.lodge a bond in the sum of A$10,000 with the Independent Children’s Lawyer’s Trust Account. The Independent Children’s Lawyer is given authority to invest such funds in an interest bearing bank account at the highest rate obtainable from the Commonwealth Bank. The sum of $A10,000 together with interest is to be returned to the Mother by the Independent Children’s Lawyer upon notification that the child has been returned pursuant to the terms of these Orders. In the event of the child not being returned the Father may apply to the Court seeking to have the moneys released to him to assist with legal expenses;
c.the Mother is to sign an undertaking in the following terms:
“I, [the mother] of […], Canada, UNDERTAKE that while the child [D] spends time with me pursuant to Orders made by the Family Court of Australia on 28 May 2010 I will not institute proceedings in any Court in Canada seeking to set aside or otherwise alter the effect of such Orders.
In the event the child makes any disclosure of abuse of any kind against his Father, I will immediately notify in writing the Independent Children’s Lawyer and the Father’s legal representative with full details of the nature of such allegations.
I will immediately arrange for the child to be returned to the care of the paternal grandmother pending the allegations being examined by the Family Court of Australia.”
When the Independent Children’s Lawyer is satisfied the Mother has complied with the above conditions she is to provide a letter to that effect addressed to the maternal grandmother.
Handover
D is to be collected from and returned to Australia by his maternal grandmother.
The Mother is to liaise with the Independent Children’s Lawyer and advise a time the maternal grandmother is able to collect D from the counselling section of the Family Court of Australia, Commonwealth Law Courts, Brisbane.
The Independent Children’s Lawyer is to notify the Father to deliver D with his passport to the Counselling Section of the Family Court in Brisbane one hour prior to such time as the Mother has nominated as the collection time.
In the alternative to paragraph (6) above the paternal grandmother and the maternal grandmother may liaise in writing to arrange for handover to be at a time and place as they may mutually agree.
The Mother is to have sole responsibility for the day to day decisions whilst the child is in her care.
The Mother is to ensure the child communicates with the Father via webcam twice a week in a regime similar to that which has been in place save that the time cycles are to be reversed.
The Father is at liberty to speak to the child by telephone twice a week at such times as may be agreed upon by the parties or as otherwise determined by this Court.
D is to be returned by the maternal grandmother to the paternal grandmother or such other person approved by the Father on the same date (Australian Eastern Standard Time) one (1) month from the date D departs Australia or such later time as may be further determined in provided for in paragraph (13).
Legal Aid Queensland is requested to arrange through the Independent Children’s Lawyer for a child psychologist in either Ontario or Australia to assess D after he has been in his Mother’s care for a period of two (2) weeks. If it is reported the child appears well settled in the Canadian environment the return date for the child to Australia to be extended to a date three (3) months from the date of his departure.
NOTE: If by way of example the child has left on the 15 July he is to be returned on 15 October (Australian Eastern Standard time).
The proceedings are adjourned for further mention to 10.00 am on 27 August 2010 at the Brisbane Registry of the Family Court.
IT IS FURTHER ORDERED THAT:
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Carlson & Fluvium is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC9490/2008
| MR CARLSON |
Applicant
And
| MS FLUVIUM |
Respondent
REASONS FOR JUDGMENT
On 18 May 2010 I heard submissions on behalf of the Applicant Father that the Court should make orders in final form that the child live with the Father as set out in the Applicant’s Case Summary Document produced that day. The application for final orders in favour of the Father was supported by the Independent Children’s Lawyer though there were differences between the orders sought by the Applicant and those proposed by the Independent Children’s Lawyer. The primary differences were whether any time spent by the Mother with the child should be supervised, and what orders should be made in relation to parental responsibility.
As I understood the Father’s position by the conclusion of the hearing he was not pressing for the whole of the Mother’s time to be supervised but only an initial period of supervision to gauge the child’s reaction to being reunited with his mother.
The Respondent Mother who appeared by telephone link, opposed the making of orders in final form. There were interim orders already in existence that the child reside with the Father and he was granted sole responsibility by those orders made by Federal Magistrate Howard in August 2009.
For her part the Mother sought to pursue her applications that the child spend time with her in Canada for the next six months.
The Father opposed an order in such terms.
Counsel for the Independent Children’s Lawyer supported the Mother spending time with the child and noted that provided appropriate conditions were in place to ensure the return of the child, it mattered little whether that time was spent in Canada or Australia.
Counsel for the Independent Children’s Lawyer was also concerned about the issue of how much time the child should spend with his mother in the event the Court was minded to accede to the Mother’s application. It was generally considered that a period of six months was too long.
Ms T, a psychologist, had prepared a Family Report in this matter in August 2009.
Counsel for the Father submitted before making any orders there was a need to have evidence from an expert as to the impact on a three and a half year old child of being separated from his father with whom he had spent the last eighteen months.
The matter was adjourned to take evidence from Ms T. The Father objected to Ms T as he had reported her to the Board of Psychologists on the grounds of bias and incompetence in relation to the terms of her first report.
He requested the matter be further adjourned and another report writer be appointed. I overruled the Father’s objections to Ms T giving evidence as to the impact on the child of a return to Canada.
On the adjourned date, Friday the 21 May 2010, Counsel for the Father sought to file an affidavit setting out in detail the basis of his client’s criticism of
Ms T’s report. There was already an affidavit to this effect in the material relied on as set out in the Father’s Case Summary Document.
Largely because of the lateness in production of the affidavit I did not give leave for it to be relied on.
Counsel for the Father in further urging the receipt of the affidavit submitted that at the 18 may 2010 hearing the Father had anticipated no appearance from the Mother and the matter would proceed on a default or undefended basis. He also did not anticipate the Court would hear the Mother’s application that the child spend time with her in Canada.
This was the first occasion that the Father had had legal representation since the transfer of the proceedings to this Court.
The Mother has not had legal representation at any time since February 2009.
The matter has been before the Court on the following dates:
· Federal Magistrate Howard 25 March 2009
· Federal Magistrate Howard 11 June 2009
· Federal Magistrate Howard 25 August 2009 – matter transferred to Family Court
· Registrar Spink 28 October 2009
· Registrar Sturgess 23 November 2009
· Barry J 7 December 2009 – listed for trial for 16 February 2010 and adjourned for trial directions and determination of jurisdiction of the younger child to 12 January 2010
· Barry J 12 January 2010
· Barry J 3 February 2010
· Barry J 10 February 2010 – new dates of trial set for 18 May 2010
· Barry J 16 February 2010
On each occasion the Mother has appeared by telephone link.
The Father’s solicitor instructs Counsel he was informed by my Legal Associate that the Mother would not be attending the hearing on 18 May 2010. My Legal Associate denies making any such statement. The Mother made it clear she would not be attending “in person” but there was no suggestion she would not be appearing by telephone.
The Father contends that he spoke to the Mother some weeks earlier and she indicated she would not be attending, even by telephone. As I understand the position the Mother denies making such a statement to the Father.
It is but one more example of the conflict in accounts given by the parties.
On each of the occasions listed above approval was given for the Mother to appear by telephone. She has filed numerous affidavits. She has filed applications seeking that the child spend time with her in Canada on
6 November 2009, 15 February 2010 and 17 May 2010.
The application of 15 February 2010 was specifically mentioned on
16 February 2010 at the hearing on that date.
I forestalled her applications in December 2009 and February 2010 by promising an early hearing on a final basis. At the time it was not anticipated there would be any difficulty for her to appear by way of Skype or webcam.
The Mother’s three applications for interim orders for the child to travel to Canada have never previously been dealt with. The Father had an outstanding application that he be permitted to relocate to Canberra. The Mother opposed such relocation. That outstanding application had never been dealt with.
The order of 23 February 2010 makes specific reference to any outstanding matters being dealt with on 18 May 2010. The outstanding matters I had in mind in framing the orders were the Mother’s application for the child to travel to Canada and the Father’s application to relocate.
I was mindful of the fact having regard to the level of conflict there could well be other issues that had arisen in the intervening period.
The Mother has no notice of address for service in Australia. She was ordered by a Registrar to provide such an address but having heard from the Mother on an earlier occasion such a requirement seemed impractical where she had no legal representation and no friends or relatives she could nominate. It appears the notice of address for service of the solicitors in this matter had not been served on the Mother and she had no inkling that the Father would be legally represented on 18 May 2010.
For reasons soon to be given it is not clear at all why the Father should be of the view that he could obtain orders in default in terms as he seeks regardless of whether the Mother appeared or not.
It would seem that the Father’s legal representatives had not searched the Court file to ascertain what applications had been filed and what orders had been sought in response documents.
It was also obvious from the dialogue between the Bench and the Bar Table that Counsel for the Father had not been briefed with all affidavit material filed by the parties.
The view that I take is that the Father should have been fully appreciative that there were outstanding matters still to be dealt with, in particular the Mother’s application on an interim basis the child spend time with her.
Based on the Mother’s attendance at all previous hearings, if the Father’s legal representatives were of the view the Mother would not be attending by telephone they could have made such enquiry directly to her.
According to the Father’s Case Summary Document filed at the hearing on
18 May 2010 the Father relies on an Application for Final Orders filed on 11 June 2009.
I cannot find any such Application of that date. There was an affidavit filed by the Father on that date and there was also an Order made by Federal Magistrate Howard.
In any event the Minute of Orders the Father now seeks are set out on page 2 of the Case Summary Document produced by his Counsel. Those orders are in the following terms:
“(a)That the child, [D] born […] June 2006 live with the Father.
(b)That the Father have sole responsibility for the child.
(c)That the Mother have such physical contact with the child as the Father may in writing agree but in no case shall such contact be other than supervised.
(d)Should the Mother intend to travel to Australia for the purposes of such contact, she shall notify the Father in writing of the precise period of her stay, the address at which she intends to stay, a contact telephone number to be used during the currency of such stay and her then current residential address in Canada no later than 28 days prior to her intention to undertake such travel.
(e)That the Father facilitate webcam contact between the Mother and the child twice a week at times to be agreed on by the parties.
(f)Such further or other order as the Court may determine.”
The material relied on as set out in the opening paragraph of the Father’s Case Summary relates to three affidavits of the Father filed 11 June 2009,
15 December 2009 and 6 January 2010. On behalf of the Father leave was sought to file an affidavit sworn the previous day. That affidavit had not been served on the Mother. It could easily have been forwarded electronically to her. I do not propose to allow the Father to rely on that affidavit. Having read the affidavit, the primary thrust of it is the Mother’s non-attendance for communication with the child via Skype transmission. The Father asserts that she has missed 24 of 39 scheduled contacts for this year and further says that she has missed over eighty contacts by phone or webcam since the child’s arrival back in Australia in October 2008.
The Mother says that her computer for a period of time was not functioning properly and needed to be repaired. The Mother as I understand it disputes the assertions by the Father. In the circumstances because of the lack of service I do not propose to allow the Father to rely on this affidavit.
As the matter has been in my Docket since transfer from the Federal Magistrates Court I am familiar, for the most part, with all of the material that has been filed. There were numerous affidavits of the Father on file which have not been relied on as specified in the Father’s Case Summary Document produced at the hearing before me on 18 May 2010. I propose to make reference to an additional affidavit of the Father filed on 17 November 2009. This affidavit was sworn on 12 November 2009 and it is the affidavit which contains the determination of Justice Thompson in the Superior Court of Justice in Ontario. It also contains numerous photographs of the child in the Father’s environment and a series of email messages the Father says he was forwarded.
I shall make further reference to this affidavit later in these reasons.
The matter was set down to proceed as a contested hearing over three days commencing 18 May 2010 subject to the Mother (who currently resides in Canada) either attending in this country to appear by video link from another Registry or by arranging a video link from Canada.
The previous Orders required that the video link had to be in a form approved by the Manager of the Court’s IT system.
The Mother elected not to attend in Australia and was unable to fund a video link from Canada to the necessary standard.
The matter previously was set down for hearing in February this year with the obligation on the Mother to satisfy the Court’s IT Manager that her proposed method of video link attendance was satisfactory. She was unable to do so.
For the Father and the Independent Children’s Lawyer it was submitted that for both the February and the May trial dates the Mother had not complied with the direction requiring the Mother to notify the Court of her intentions by a given date.
I am satisfied from a perusal of the correspondence and emails on file the Mother has either complied with the directions or made reasonable attempts so to do.
By way of example, prior to the February deadline the Mother says she endeavoured to telephone the Court’s IT Manager, but could not make contact with him. She then telephoned the Manager of the IT systems at the Brisbane Registry and left a message for him. The Brisbane IT Manager only works certain days of the week. The Brisbane IT Manager was able to confirm that the Mother had tried to communicate with him. The Mother left a message she would telephone him back. She did not do so. She apologised to the Court on 16 February 2010 for failing to do so and proffered an explanation.
For the purposes of the current hearing the Mother relied on affidavits filed on 3 July 2006, 6 November 2009, 7 January 2010, 15 February 2010 and 17 May 2010.
These were the affidavits that had been extracted by my staff as being the Mother’s material. They are the affidavits that I read and I described to her and she accepted that that was the material she intended to rely on.
Application by Counsel for Judge to Stand Aside on the Grounds of Apprehended Bias
Submissions were made by Counsel for the Father drawing my attention to various passages of the transcripts of 7 December 2009 and 12 January 2010 and asserting that I made certain comments on 18 May 2010 to the effect that I would ordinarily not believe either party but that the truth lay somewhere in the middle:
COUNSEL SUBMITTED: “I am not quoting your Honour precisely; I don’t have the transcript. But there was an intimation to your Honour to the effect that the truth may well lie somewhere and again I am not sure whether the word ‘may’ was used ‘but the truth is usually in the middle’, I think your Honour, something close to it.””
I have since had a transcript made of the hearing of 18 May 2010.
At page 58 of the transcript for 18 May 2010 I observed:
“On a hearing often the truth lies somewhere in the middle and the Judge sort of says, “I accept this part of the evidence of this witness and reject other parts of the witness’ evidence but if we go with a possibility - - - that the Mother’s evidence is 90% right.””
Division 12(A) of the 2006 amendments are in the following terms:
“… 69ZN Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
…
69ZP Powers under this Division may be exercised on court’s own initiative
The court may exercise a power under this Division:
(a)on the court’s own initiative; or
(b)at the request of one or more of the parties to the proceedings.
Subdivision C—Duties and powers related to giving effect to the principles
69ZQ General duties
(1)In giving effect to the principles in section 69ZN, the court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and
(e)make appropriate use of technology; and
(f)if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.
(2)Subsection (1) does not limit subsection 69ZN(1).
(3)A failure to comply with subsection (1) does not invalidate an order.
69ZR Power to make determinations, findings and orders at any stage of
proceedings
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.”
I am satisfied I have not made any finding of fact in this matter though I have made observations on the evidence. When this litigation was transferred to my docket I was faced with two litigants in person living on opposite sides of the world. One was unable to travel to Canada and the other unwilling to travel to Australia. I am not prepared to find at this point in time that the Mother’s concerns about travel to Australia are not genuine. Whether her concerns are reasonable is another matter all together and I have made observations on that aspect and intend to revisit that aspect shortly.
However, it would be anomalous if a Judge is not required under s.69ZR(3) to disqualify himself or herself if a finding of fact has been made but should disqualify himself or herself if observations have been made.
In taking this matter on I was conscious of the ruling of Justice Thompson in the Superior Court of Ontario.
Justice Thompson’s ruling is annexure M to the Father’s affidavit filed on
17 November 2009. In that ruling his Honour had observed in paragraph 12 on page 4:
“I specifically note that the test in determining whether [D] should be returned to the jurisdiction of the Australian Courts is not what is in the best interests of the child. That determination is an issue to be considered by the Australian Courts. It may well be that had [the mother] not decided to flee the jurisdiction of the Australian Courts, she would have been awarded custody of [the child] by the Australian Courts. It may well that, if she chooses to participate in Court proceedings in Australia concerning [the child’s] custody, she will be successful. I specifically make no finding as to [the child’s] future custodial arrangements because I have no jurisdiction to make such a determination. It is for the Australian Courts to make that determination if they are asked to do so.”
In a further paragraph 12 on page 5 his Honour continued:
“[The mother] in her material filed with the Court, alleges that [the father] is dysfunctional as a parent and a disreputable citizen. She alleges that he is incapable of serving [D’s] best interests. It is her allegation that [the father] possesses no parenting skills, has no legal source of employment/ income, is an active participant in the drug sub-culture and indeed is a producer and seller of illicit drugs. She further alleges that he has been physically, verbally and emotionally abusive towards her. She alleges that he is a violent criminal. It is her position that should [the child] be returned to the care of his father that [the child] will be exposed to physical or psychological harm and that consequently this Court should refuse to return [the child] to the jurisdiction of the Australian Courts. The Father denies the allegations put forward by [the mother].”
At page 7 of his reasons for judgment his Honour quoted from the correspondence he had forwarded to the legal representatives in this matter:
“The contents of the affidavits filed in this matter cause me considerable concern. I am concerned for [D’s] welfare pending any Court determination of his residency and custody. Quite simply I am most uncertain about the atmosphere I would be sending [the child] back into should I simply send [the child] back to Australia and into the care and control of his father. I wish to be assured that [the child] will be safe until the Australian Courts assume jurisdiction.
…
The allegations set out in the affidavits concerning [Mr Carlson], [D’s] father, are serious if accurate and include a history of violence, involvement of the drug sub-culture, uncertain employment, an allegation of drug trafficking and an inability to properly parent [D].”
His Honour had noted in the course of his reasons at page 6:
“I note that the evidence before this Court relates to physical assaults between the parents not directly involving the child. I further note that the lifestyle of the Father, his apparent disregard for societal rules and lack of parenting skills, as alleged by the Mother were not of sufficient concern to her while in Australia and residing with the Father to cause her to take any action to alleviate those concerns.”
I was cognisant of the fact that the Federal Magistrate had made a determination on an interim basis in this matter which had not been the subject of any appeal.
The Federal Magistrate had made an order that the Father was no longer required to reside at W with his parents but that he had to remain living in Queensland.
As I understood it Justice Thompson’s orders for the return of the child to Australia had required the Father to reside with his parents.
Where the child was in the Father’s care and he was no longer residing with his parents I was concerned to ascertain the child’s welfare was protected in his current environment. I was comforted by the report of Ms T of August 2009.
In relation to the issue of apprehended bias Counsel referred to the decision of
re: Watson[1976] FLC 9509. The Judge in that case had made the comment to the legal representatives:
“As the judge of the facts in this matter I propose to proceed on the basis that credit is a non-issue because I require corroboration of any issues.”
The intent of his Honour’s words were he was not prepared to believe either party and required corroboration of any issues.
The Father’s Counsel submitted that on 18 May 2010 I commented in not too dissimilar terms that in this matter the truth may lie somewhere in the middle.
The transcript for 18 May 2010 at page 53 reveals in discussion with Counsel for the Independent Children’s Lawyer I noted:
“I hasten to add, today is on the papers. I’m not saying I disbelieve the Father or I disbelieve the Mother. But you are inviting me, just on the papers alone. To disbelieve the Mother. And I am not prepared to do that.”
To my mind this statement read in conjunction with the passage from page 58 quoted earlier is quite different from what Counsel asserted in his submissions to me on 21 May 2010.
In re:JRL 161 CLR at 352 Mason J (as he then was) observed:
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (above) and Livesey [1983] 151 CLR 288 has led to an increase in the frequency of applications by litigants that Judicial Officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the Judicial Officer will not decide the case impartially or without prejudice, rather then that he will decide the case adversely to one party. There may be many situations in which previous decisions of a Judicial Officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties but this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in a sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be “firmly established”.
…
Although it is important that justice must be seen to be done, it is equally important that Judicial Officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
In the matter of Johnson v Johnson 26 FAM LR 627 the High Court once again considered the issues of bias. This was an appeal from Anderson J sitting in the Family Court of Western Australia in Perth. At page 630 the Court observed:
“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Judge the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary Judicial practice. The rules and conventions governing such a practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a Judge to remain, until the moment of a pronouncement of judgment, as inscrutable as the Sphinx.”
In Vakauta v Kelly [1989] 167 CLR 568 at 571 Brennan, Dean and Gaudron JJ referring both to a trial and the appellate proceedings spoke of:
“The dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. Judges at trial or Appellate level, who, in exchange with Counsel express tentative views which reflect a certainty tendency of mind are not on that account alone to be taken to indicate pre-judgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary they will often form tentative opinions on matters in issue and Counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
There was argument in this Court prompted by Anderson J’s explanation of what he intended to communicate, about whether the effect of a statement that might indicate pre-judgment can be removed by a later statement which withdraws or qualifies it. Clearly in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements or some behaviour may produce an ineradicable apprehension of pre-judgment. On other cases however a preliminary impression created by what is said or done may be altered by a later statement. It depends on the circumstances of a particular case. The hypothetical observer is no more entitled to make snap judgments then the person under observation.”
Counsel drew attention to questions of the Father when he was affirmed to give evidence on 12 January 2001 and having given his name he gave his address as at W. There was voluminous material in this matter but nowhere in that material in any of the documentation had the Court been advised of the Father’s residential address. At the hearing in December 2009 he had advised the Court he was living at H but did not give a specific address. I took the Father to task in saying that when an individual is asked his address he does not give his address for service as lodged with the Court. It is expected that a litigant would give his then correct residential address. In the circumstances it may have been preferable to refer to the Father’s response as inaccurate rather than false or simply request him to give his residential address, but I am not satisfied that the observations made on that occasion would be sufficient to reveal an apprehension of bias.
Counsel referred to other passages in the transcript which I find unnecessary to particularise other than to observe I am not satisfied that those statements or observations meets the test required for a ruling of apprehended bias.
The exchange on 18 May 2010 was largely directed to Counsel for the Independent Children’s Lawyer. The intent was not to challenge the credibility of the Father’s allegations nor support the credibility of the Mother’s allegations. It was to challenge the submission Counsel made that at that point in time the Court should accept the Father’s version of events as more credible than the Mother’s.
With the benefit of hindsight I observe there is never any need for a Judge to persuade an advocate. The reverse is the standard procedure. However, I was challenging Counsel to explain to the Court how the Court could possibly make a finding along the lines suggested in the written submissions Counsel had produced.
Before moving on from this aspect I wish to make it clear that I am perfectly cognisant of the points in favour of the Father. There is firstly the fact that he has interim orders in his favour which have not been appealed. He has favourable observations made of his interaction with the child in Ms T’s report, notwithstanding that he takes exception to various other observations made by her.
In relation to the serious allegation made by the Mother of drug dealing the Father says he has had no drugs for years. He points out that he recently submitted to a hair follicle test requested by the Independent Children’s Lawyer which test returned negative.
In the circumstances the issue of drug dealing can largely be seen as relevant as a credibility issue where the Mother asserts and the Father denies. I am aware the Father has Mr N as a witness and Ms C who in their affidavits filed 25 January 2010 corroborate his account of his relationship with his child prior to the events of late 2007, corroborate his account of involvement in assisting with the care of the child and are corroborative of his account of inappropriate behaviour by the Mother. The Father’s affidavit of 17 November 2009 annexes photos of the child both prior to and subsequent to separation. The photos taken after the child’s return to Australia in October 2008 would indicate the Father engaging in a wide range of activities with him.
I note the Mother’s evidence that for a period of time each week she was working in what appears to be a newsagency or a place that sold lottery tickets and the Father would bring the child to her to allow the Mother to breastfeed. The inference is the Mother was prepared to leave the child as a one year old in the Father’s care. The Father is entitled to argue, and presumably will, that the Mother’s concerns could not be of the alarmist nature she now asserts if she was prepared to leave the child in his sole care.
To his material the Father has appended a large number of character witness statements, as has the Mother.
I do not propose to detail at this point in time who the character witnesses are or what they say. Suffice it to say if this matter ever comes to trial those witnesses would need to file individual affidavits. As a matter of record I would point out to the parties that generally speaking the Court is not greatly assisted by reliance on a plethora of character witnesses. It may be helpful to adduce evidence from one or two individuals of good repute who have had ample opportunity to observe the party and the party’s interaction with the child.
The observations I made on 18 May 2010 were directed to challenging the assertions made by Counsel for the Independent Children’s Lawyer in two respects, one is that the matter should proceed on an undefended basis and secondly, that in doing so the Court would prefer the Father’s version of events to the Mother’s version.
I accept that in certain areas such as by witnesses N and C, the Father’s evidence is corroborated but in relation to the allegations of anti-social behaviour I noted there was some corroboration of the Mother’s allegations.
One such area of contention was the Mother’s claim of domestic violence and the Father’s denial of same. Counsel for the Father attempted to make light of the Mother’s allegations even taking them at their highest. The point I addressed to Counsel for the Independent Children’s Lawyer was simply that a litigant attending at a shelter both in this country and in Canada around the time of separation could be conduct indicative of domestic violence. Counsel for the Father contended it could be she needed a place to stay. That can be argued, but it would hardly support such a contention in relation to the Mother’s arrival in Canada as she already had her parent’s address at which to stay.
I do not propose to stand down from the further hearing of this matter on the grounds of apprehended bias.
I place on the record at the present time with the state of the evidence as it is, it would not possible to make any findings of fact on disputed issues with any degree of confidence. I am in no way predisposed to accepting the Mother’s account any more than I am predisposed to accepting the Father’s account.
Application for Final Orders to be Made
At the commencement of the hearing Counsel for the Independent Children’s Lawyer handed up written submissions and draft orders as proposed by the Independent Children’s Lawyer.
At paragraphs 18.5 and 18.6 of his submissions he notes:
“18.5The Mother has put no material before the Court that would assist it to understand the Mother’s reluctance to appear in Australia in a safely managed way (and seemingly far more affordable for the Mother than her proposal for securing an overseas video link).
18.6For those reasons, the Independent Children’s Lawyer supports the matter proceeding in an undefended way.”
The Mother has filed extensive material since the return of the matter to this jurisdiction pursuant to the Orders of the Canadian Courts on the hearing of the application under the Hague Convention.
I had previously indicated that in the event the Mother did not comply with the requirements of the February Order to attend via another Registry in Australia by video link or to arrange a satisfactory video link from Canada, I would stay her application seeking final orders for the child to reside primarily with her in Canada.
That however is not to say she is not entitled to be heard opposing the Father’s application that orders on a final basis be made in the terms as sought by him.
Because the Mother’s application for final orders is stayed it does not follow the Father is automatically entitled to the orders he seeks.
At all times the Court must be satisfied any orders made are in the best interests of the subject child.
I do not accept the hearing on the 18 May 2010 could in any way be classified as an undefended hearing.
Rule 11.02(2) is in the following terms:
“(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a)dismiss all or part of the case;
(b)set aside a step taken or an order made;
(c)determine the case as if it were undefended;
(d)make any of the orders mentioned in rule 11.01;
(e)orders costs;
(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).”
In the Full Court determination in the matter of Zhu and An [2008] FamCAFC 115 the majority judgment of the Full Court, Finn and Thackray JJ observed:
“7.It seems clear from his Honour’s reasons for judgment (published on 16 September 2005) in relation to the Orders of 16 August 2005 that his Order that the property settlement proceedings should be the subject of “an undefended final hearing” was made pursuant to the power contained in Rule 11.02(2)(c) …
…..
8. The expression “undefended” is not defined, or otherwise explained in the Rules. However, the Explanatory Guide to the Rules (which is expressly stated not to be part of the Rules) explains the term “undefended basis” in the following way:
“…the Court may order that a hearing or trial may proceed because of the Respondent’s failure to comply with the Rule or Order as if a response has not been filed. The Court may make Orders set out in the application on being satisfied by evidence that the Orders should be made.”
66.The term “undefended proceedings” was also referred to in Lanceley v Lanceley [1994] FLC 92 – 491. The Full Court …Barblett DCJ, Fredrico and Lindemayer JJ said at 81,104:
“A Respondent who merely wishes to ask the Court to dismiss the Appellant’s application (and seeks no other Order) and who wishes to place no evidence before the Court, but who wishes to submit that the application should be dismissed even on the Applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a Respondent then attends the hearing and in fact makes no submissions against the application (as the Husband did in this case) then, in anyone’s language the application is ‘undefended’ or ‘unopposed’.
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the Applicant, because the Court must still decide, on the evidence before it, that the Applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion it is appropriate to grant that relief.
…”
The view that I have formed is that to have a matter proceed on an “undefended basis” requires an Order to that effect pursuant to Rule 11.02. No such application has been and consequently no Order has been made in such terms. I do not wish to be seen to be pre-determining any application that may be foreshadowed but in view of the material filed by the Mother and the contents of same and her regular appearance at all of these hearings it would prima facie seem to be a denial of natural justice to rule that the matter should proceed on an “undefended basis” with the consequence that the Mother loses the right to be heard.
Even if my interpretation of the procedure pursuant to Rule 11.02 is not be correct I can indicate that in the exercise of my discretion I would certainly permit the Respondent (as I have done) to read her affidavit material and make submissions why the Orders sought by the Father should not be made.
In the Mother’s material she makes serious allegations which would go to the heart of the finding as to the Father’s capacity to appropriately parent a young child. Her allegations include:
·Drug taking.
·Drug dealing.
·Engaging in domestic violence consisting of both physical and verbal abuse and denigration towards herself.
·Threatening to attempt suicide on a number of occasions.
·Attempting suicide.
·Failing to comply with Court Orders – one such Order being a breach of the bail conditions imposed on him by the Criminal Courts in Canada.
·Committing an offence of violence which led to his conviction in the Canadian Courts and deportation from that country.
·Evidence via the paternal grandmother’s report to the Department of Community Services of the Father behaving in a very controlling and inappropriate manner towards the child.
·That the Father makes up stories such as the occasion of sending a message to the Mother when she was in Canada that he was dead.
The Father denies all of the allegations made by the Respondent and in turn makes serious allegations about her behaviour. The allegations of the Father whilst not fully explored at this stage to my mind in a number of instances do not fall into the same category of seriousness as those made by her.
In making these observations about the allegations in dispute I am fully conscious of the fact that some relate to events in a time frame of four to six years ago.
I am only too well aware the Father and the Mother’s allegations have not been tested or subjected to the scrutiny of a full hearing.
As I observed on 18 May 2010 if the evidence is eventually tested the Father may be believed, the Mother may be believed, or the Court may elect to accept some of the Father’s evidence and parts of the Mother’s evidence. The Court may be in a position of not being able to make findings in certain instances.
At this point in time I am not prepared to make orders in final form. I am also not prepared to make a finding in terms set out in paragraph 18.9 of the Independent Children’s Lawyer’s submissions which I have previously quoted, namely for that for the reasons he gives the Court would be entitled to find that the Father’s version of events is more likely to be the case than the Mother’s.
As I have noted on numerous occasions at the various mentions of this matter, I find the Mother’s behaviour in not electing to attend at another Registry of this Court for a contested hearing puzzling in the extreme. She says she would be in fear of the Father. I find such a belief, if genuinely held by the Mother, to be fanciful and not based on any realistic appreciation of risk. The facts upon which I make this assessment are self obvious and I do not propose to elaborate any further. I note that Counsel for the Independent Children’s Lawyer in his written submissions makes observations in similar terms as did Counsel for the Father in his oral submissions.
However, simply because the Mother’s behaviour in adamantly refusing to attend in Australia may not appear rational, it is not to say that her allegations should be disbelieved particularly where in a number of instances there is a level of corroboration of her evidence.
The current Orders are as made by Federal Magistrate Howard on
22 October 2008. The Mother did not have any legal representation at that time. Those Orders provided (in summary form):
“Until Further Order:
·The child live with the Father.
·The Father have sole parental responsibility with regard to the child.
·That the child communicate and spend time with the Mother as agreed between the Father and the Mother.
·That the Father is to ensure that the child communicate by telephone with the Mother at least twice per week.”
At the present time, for the reasons given, I am not prepared to make final orders in terms as sought by the Father or as proposed by the Independent Children’s Lawyer. The current interim Orders can remain in force.
The matter cannot remain in stalemate indefinitely but at the present time I do not deem it appropriate to treat the matter as an undefended hearing nor do I deem it appropriate to make the final orders in the face of serious but untested allegations.
It is possible at some point in the future the Mother would be able to borrow or otherwise raise the money to fund a video link. How much additional time the Mother should be given, is a matter that it is not necessary for me to determine on today’s date. Because I have stayed her application for relief the Mother cannot proceed to seek Orders that the child D be returned to her on a permanent basis to reside in Canada.
Father’s Application to Relocate to Canberra
In early 2009 the Father was released from his undertaking to reside with his parents but an order was made requiring him to remain living in Queensland until further order.
The Father lodged an application to relocate to Canberra. The Mother opposed such an application. On 18 May the Father, through his Counsel, did not press the application for relocation and his application was accordingly dismissed.
I now turn to consider the Mother’s application for the child to reside with her in Canada for the next six months.
Mother’s Proposal for the Child Spending Time with her in Canada
In her affidavit in support of her application for the child to spend time with her in Canada, the Mother says in her affidavit filed 17 May 2010:
“5.It has now been 17 months since [D] has had any physical contact with his mother, siblings, and extended family members in Ontario, Canada.
6.I am again asking that the Court allow [D] to travel to his country of citizenship to visit his mother, brothers and extended Canadian family.
7.It is unknown as to when [D’s] parental responsibility will be determined and while and until this is determined [D] needs to have physical contact with his mother, siblings and extended family as well as being able to preserve his Canadian identity.
8.[D’s] psychological wellbeing by being separated from his mother for such an extended period is a very real concern.
9.Also of concern is [D’s] emotional wellbeing while solely under his father’s care.”
The Mother annexes a series of emails. The first is an email to the Independent Children’s Lawyer of 3 May 2010 complaining of the Father’s behaviour during the course of webcam communications.
The Father makes similar complaints about the Mother’s conduct at such times.
The Mother also annexes emails passing between the parties which seem typical of the allegations and counter-allegations each makes of the other.
The Mother’s proposal is for her mother to collect D and return with him to her address in Canada. A statement to this effect signed by the maternal grandmother appears as Annexure 1 to the Mother’s affidavit of 15 February 2010.
At paragraph 6 of that affidavit the Mother deposes:
“6.Whilst Skype webcam interactions have enabled [D] to continue his relationship with me, this type of contact has its limitations, and no physical contact, which is important to the parent/child bond is possible.
7.It is obvious to me that [D’s] bond to me is still strong as it is difficult for him to say goodbye to his mother during our Skype interactions. This has been noted by [the father] on a number of occasions.
8.All Skype interactions are being supervised by [the father] when no supervision has been ordered or is required.
9.[The father’s] presence results in appropriate actions or statements on his part.
10.Prior to going to Australia [D] had significant relationships with his elder brother, [R] eight year old, his maternal grandmother […], his uncle, [J] 12 years old and his step-grandfather […].”
I indicated to the Mother that if the Court was to accede to her application it was my usual practice to impose at least three conditions namely:
·The Mother deposit her passport with the Independent Children’s Lawyer prior to any handover by forwarding such passport by Registered Post to the Independent Children’s Lawyer’s office.
·The passport would be automatically returned to the Mother upon the return of the child.
·Lodging a bond in the sum of A$10,000 with the Independent Children’s Lawyer’s Trust Account. The Independent Children’s Lawyer given authority to invest such funds in an interest bearing bank account. The sum plus interest would be returned to the Mother upon the return of the child. In the event of the child not being returned the Father may seek to have the moneys released to him to assist with legal expenses.
·Prior to the handover of the child to the maternal grandmother the Mother is to sign an undertaking to the effect she would not during any period the child was in her care institute proceedings in Canada seeking child related orders and further that in the event D made any disclosures of abuse for which his father was said to be responsible, the Mother is to forthwith return the child to the paternal grandmother’s care and to forthwith notify the Independent Children’s Lawyer of full details of the allegations of abuse.
Whilst expressing some difficulty with depositing A$10,000 as security the Mother indicated she would be accepting of such conditions.
For his part the Father adamantly opposed the child travelling to Canada under any conditions.
His Counsel submitted the Court would need evidence of an expert as to the impact on a three year old of being removed from his father’s care when he has been with his father for the past 18 months.
Counsel asked the Court to accept the Father by now would be seen as the primary caregiver.
It was further submitted there was evidence that the Mother had on occasions been less than diligent in attending via webcam to communicate with the child on all occasions that she could have.
The parties are in dispute over this and there are numerous annexures to the affidavits already filed. The Father sought to file an affidavit on 18 May 2010 but leave was refused.
Counsel for the Father made submissions the Mother’s explanation for her refusal to come to Australia are not reasonable. He further submitted there was a risk the child would be damaged by removal from his father’s care for such a lengthy period of time.
The Father’s Counsel also submitted there should be a psychiatric assessment of the parties before the Court would consider allowing the child to travel to Canada.
In this regard I note the affidavit of the Independent Children’s Lawyer previously filed on this aspect which reveals she had taken exhaustive steps to engage a psychiatrist in Brisbane who would assess the Father and then attempt to assess the Mother by webcam interview. She was unable to find any psychiatrist willing to adopt this methodology.
It was submitted that to remove the child from the Father’s care could damage the bond now established between the child and his father.
Counsel further raised the difficulties inherent in the event the Mother made complaints to Canadian authorities that the child had made disclosures of abuse by his father.
It was suggested that in those circumstances the Canadian Courts might see fit to exercise jurisdiction notwithstanding the undertaking given by the Mother and the previous Order made under the Hague Convention.
Whilst I accept there is some merit in this submission, if the Court accedes to a submission in these terms no Order would ever be made for a child to travel out of the jurisdiction because of this possibility. I am satisfied the undertaking to be given by the Mother more than covers this contingency. I would have every confidence the Canadian Courts would once again confirm the appropriate jurisdiction for a determination of child related orders is Australia.
Finally it was submitted the Mother was a flight risk. It was suggested having the Mother surrender her passport would not prevent her from moving to whereabouts unknown within Canada.
Counsel for the Independent Children’s Lawyer expressed the view the time sought by the Mother appeared excessive but it was reasonable to conclude that with the conditions imposed the Mother did not present as a flight risk and in the circumstances it was appropriate for her to spend some time with the child be it in Australia or in Canada.
The Mother conceded in the course of her submissions that the Father was doing, “an okay job” in his care of the child. She added:
“It is wonderful he has bonded with [D].”
The Father’s care of the child is not in issue before me in determining the Mother’s application. The issue for determination is whether it is in the child’s best interests he should spend time with his Mother in Canada.
Report of Ms T
Ms T prepared a 40 page report on 14 August 2009. The interviews consisted of a home visit to the Father and she observed the Mother interacting with the child via webcam.
At paragraph 28 of her report at page 10 under the heading “Issues in Dispute” she observes:
“28.For the Father the main issue is the Mother’s refusal to relocate to Australia. He has voiced his intention to not allow the child to travel to Canada to spend time with his mother and siblings in the event the Court orders that the child lives with him and therefore according to his stance in the event the child lives with him the Mother will not be afforded contact unless she travels to Australia. His main issue is that the Mother is a flight risk. Given that he would be prepared to agree to a shared parenting arrangement, there are no other significant issues for the Father.”
Paragraph 29:
“29.The main issue for the Mother is the Father’s refusal to allow the child to travel to Canada to spend time with her in the event that the Court orders that the child lives with the Father. She has more than one child to consider and feels that it is only reasonable that the child travels to Canada to spend time with her.”
At paragraph 104 of her report Ms T records:
“104.During webcam observations with his mother there was nothing extraordinary to note. [The child] displayed a great affection for his mother going right up to the camera on the screen and continually kissing her. The Mother was holding [K] and had a little toy that she held up and used as a means of helping the interaction with [D]. [D’s] concentration level for and ability to use the webcam is clearly limited by his age and level of development and the Mother obviously takes that into consideration. [D’s] speech is at times difficult to understand in person and that is clearly magnified by a webcam. If not for the visual aspect, which is blurring at best, interactions would be undoubtedly much more difficult. The Mother was warm, affectionate and as interactive as one could expect given the difficulty communicating with a three year old on webcam.”
At the time these observations were made the child had been separated from his mother for about 10 months.
At paragraph 114 of her report Ms T observes:
“114.It is my view that the Mother is not a flight risk. There is evidence that she is most capable of an open, equitable and amiable approach to parenting in a situation where the parents of the child are separated. She has clearly demonstrated this in her co-operative parenting of her son [R]. Her ex-husband supports this. Further, her language and thereby a reflection of her thoughts and feelings have been consistently reflective of a considerate mind that wishes to ensure balance and harmony for the child. From the information provided it appears that on both occasions when she left Australia, while she was not offering the Father any hope for a future for them together as a couple, there is evidence to suggest that she did ensure contact with the Father was established within a reasonably short time and that she sought to encourage and help facilitate the Father’s contact with the child and that she was not using the child against the Father so to speak.”
At paragraph 117 she concludes:
“117.The child needs to enjoy a significant relationship with each of his parents and with his siblings. He requires a good warm and positive relationship with each of his parents in a family environment which is safe and stress free. He needs to receive love, nurture and guidance from both parents and to be exposed to each of the parent’s skills and positive attributes. Ideally the child and his siblings need to live together and spend equal time with both parents and their extended family. If this could be achieved then the child will develop optimally.”
Ms T gave evidence on 21 May 2010 date limited to the Mother’s application with particular regard to the appropriateness of the duration of the stay.
Whilst I note the Father’s complaints about Ms T I am not prepared to reject her expertise on that basis alone.
Her report prepared in August last year is before the Court in evidence and she gave oral evidence. I reserve the right to qualify my view in the event of any adverse ruling by the Psychologist’s Board.
In her oral evidence she expressed the opinion there would be little impact on the child spending time with his Mother. She expressed the view that the parents by adopting a co-operative view to the process could assist in removing any pressure the child may feel.
She noted the child had spent about 18 months of his life with both parents, the next 10 or 11 months with his mother, and the last 18 months with his Father.
The Mother has had Skype sessions with the child on a regular basis over the last 18 months. There is no evidence of the child experiencing trauma at the separation from his Father in late 2007.
She was of the view that there was no evidence of the child being traumatised upon his return to Australia in late 2008.
It was put to her that there is evidence from the Father that when the child was returned to his care the child was biting, hitting other children and behaving in an unruly and uncontrolled fashion.
There is no report of any counsellor who may have given treatment to the child at that period of time. There is no evidence of exactly how long such conduct continued.
Ms T expressed the view, which for present purposes, I accept, that the child appears to have a secure attachment with both parents.
She initially suggested the child spend a month with his mother. He could then be assessed by a child psychologist, either in Canada or by a child psychologist communicating with the child by webcam or telephone. In the event the child is well settled with his mother, siblings and extended family the time could be extended for a further period.
I have reached the conclusion that the Mother would not be a flight risk. She resides in a stable environment. The evidence would indicate that apart from a period of time living with her parents she has stayed at the one address despite assertions by the Father to the contrary. She resides with her two other children. R attends the local school. If the Mother was to change her address she would have to uproot R from his current school much to the chagrin of R’s father I expect. She would be on the run with three young children and very little money to allow her to travel.
She appears to have extended family in the region including her parents. To become a flight risk would of necessity involve estrangement from members of her extended family.
I accept as does Ms T (paragraph 114 of her report quoted above) the genuineness of the statements made by the Mother that whatever the outcome of the dispute as to where the child is to live he should see each parent on as a regular basis as possible. In making this finding I am mindful this is an interim hearing on the papers but I have had the benefit of hearing the Mother’s oral submissions on this aspect on a number of occasions together with a consideration of her affidavit material.
At paragraph 52 she records the Mother as saying:
“52.Within a few days of arriving in Canada she called the Father and told him the relationship was over and she would always ensure he would be involved in the child’s life. She said at no time did she ever consider standing in the way of the Father having a relationship with the child. After that the Father started calling her regularly and they were talking.”
The Father relied on an affidavit of the 15 December 2009. That affidavit consists of a lengthy commentary on the aspects of Ms T’s report with which he disagrees.
He makes no reference to the terms of paragraph 52 – in other words he does not appear to dispute the account given by the Mother of the communication with the Father shortly after her arrival in Canada.
The parties have emailed each other on a regular basis. On occasions the communication may be seen as acrimonious but at other times it represents quite a practical level of communication.
The parties have adhered to communication by webcam and the Mother is certainly agreeable to an Order that if the child is to live with her for any extended period of time she would reciprocate the current arrangements and allow the child to communicate with his father by webcam.
How Long Should the Duration of the Mother’s Time with D Be?
I am more than satisfied it is in the child’s best interests to re-establish a relationship with his Mother. Because of the expense involved it needs to be for a significant period of time to justify all of the arrangements that have to be put in place as well as the cost.
The Mother seeks six months and to my mind that period is excessive.
I am prepared to make an order as recommended by Ms T that the Mother have a minimum of one month with the child and that that period be extended for a further period of two months on the recommendation of a child psychologist to be engaged if possible by the Independent Children’s Lawyer. If that course is not feasible, I will convene a further hearing of this matter prior to the end of the one month period to take any further submissions on this aspect.
I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry
Associate:
Date: 28 May 2010
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