COBURN & SAKURA

[2011] FamCA 640

FAMILY COURT OF AUSTRALIA

COBURN & SAKURA [2011] FamCA 640

FAMILY LAW - CHILDREN – Where child resident in Japan – Where due to earthquakes in Tokyo and nuclear incident in Fukushima mother and paternal grandparents move child temporarily to Country 1 to stay with paternal grandparents – Without the mother’s consent child removed from Country 1 and brought to Australia by the father–  Parenting proceedings in Japan and Australia – Whether proceedings in Australia should be stayed and parenting issues determined in Japan - Kwon & Lee (2006) FLC 93-287 applied – Where child’s best interests paramount consideration – Father’s adjournment application refused - Weight given to evidence of the Family Consultant that the child feels isolated and lonely in Australia – Where child’s strongest relationship is with the mother – Where evidence of mother’s emotional emails outweighed by known facts – Where child has a close relationship with the mother’s family in Japan – Where child has strong Japanese cultural influence – Not established that living in Tokyo because of proximity to Fukushima child’s health or safety at risk – Where any outstanding parenting issues can be determined in Japan – Ordered that the child return to Japan with the mother.

Family Law Act 1975 (Cth) s 60CA

Kwon & Lee (2006) FLC 93-287

APPLICANT: Mr Coburn

RESPONDENT: Ms Sakura

FILE NUMBER: SYC 988 of 2007

ORDERS MADE: 11 August 2011

DATE DELIVERED: 17 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 8 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders made 11 August 2011

1. All prior orders made in these proceedings are discharged.

2. That the child N (aka … and …) born … November 2000 (“the child”) live with Ms Sakura (“the mother”).

3. That the mother is permitted to forthwith remove the child permanently from the Commonwealth of Australia.

4. That Mr Coburn (“the father”) forthwith deliver the child to the mother and give her the child’s original current passports issued by the Japanese and Country 1 Governments.

The court having granted the mother’s application

By consent it is ordered

1. That the child is to spend time with the father as follows:-

   (a)From 24 to 31 of December in each year in Australia or elsewhere if such place is agreed in writing by the parties.

   (b)That to facilitate the time in Order 5(a) above the mother is to ensure that the child boards a flight from Japan no later than the morning of 24 December in each year, and the father will ensure that the child boards a flight from Australia to Japan no later than the morning of 31 December in each year.

   (c)In Japan for one week in each year as nominated by the father provided that the father gives the mother at least two calendar months notice of his intention to exercise such time.

   (d)That in the event that the time in Order 5(c) is during a school term the father will take the child to and from school and to any extra-curricular activities that he is obliged to attend during the time that he is with the child.

   (e)For the first three weeks in August in each year in Australia or elsewhere if such place is agreed in writing by the parties and in this regard the mother is to ensure that the child boards a flight from Japan at the agreed time and the father is to ensure that the child returns to Japan at the agreed time.

   (f)Such other times as agreed between the mother and father in writing.

2. That the father will meet the costs of the child’s travel for him to spend time with the father as set out in Order 5.

3. That the mother advise the father in writing at the commencement of each academic year of the dates of the child’s school holidays.

4. That the mother is restrained from sending emails to the father from the child’s email address on behalf of the child or otherwise.

5. That the mother ensure that no person other than the child sends emails from the child’s email address.

6. That all communication and correspondence between the parties be in a businesslike manner pertaining to the parenting of the child only.

7. That in the event that the child has any accident or other trauma the mother will forthwith notify the father and provide him with full details of the accident or trauma and the medical treatment and the names of the doctors providing that treatment.

8. That the child be allowed to have liberal telephone communication with the father and that the mother will ensure that the child has privacy during these calls.

9. Notation: That the mother does not oppose the father seeking to have orders made in the Family Court in Japan in the same terms as Orders 5 to 12 inclusive as set out above.

10. Notation:  That the father has leave to apply to vary Orders 5(a) and (e) in the event the parties cannot reach agreement about the child spending time with his father other than in Japan or Australia and in the event that he makes application the mother will not raise a Rice v Asplund defence.

11. The father is restrained by injunction from removing the child from Japan or Australia except in accordance with these orders, or any agreement in writing between the parties pursuant to these orders.

12. That the child be removed immediately from the PACE Alert System in operation at all points of arrival and departure from the Commonwealth of Australia.

13. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

14. All outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Coburn & Sakura is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 988 of 2007

Mr Coburn

Applicant

And

Ms Sakura

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings which relate to the parties’ ten years old son, N (“the child”).

2. From when the parties separated in late 2005, by agreement, the child lived with the respondent mother.  This included agreement they would move to Japan, which is the mother’s country of origin, and that the applicant father would, for the foreseeable future, live in Australia.

3. In June 2006, the mother and child moved to Tokyo where, until the events which unfolded in March 2011 and are the catalyst for these proceedings, the child also lived.

4. In early March 2011, a series of earthquakes hit Tokyo and a nuclear incident at Fukushima unfolded.  Because the future was uncertain, the mother and the child’s paternal grandparents (who are from Country 1) agreed the child would visit them until the situation in Tokyo settled.  Thus, on 17 March 2011, on a return ticket, the child left Tokyo for Country 1 in relation to which he was ticketed to return to Tokyo on 1 or 2 April 2011.

5. In response to the paternal grandparents’ request that the child stay longer, the mother agreed he could remain with them until July 2011 when she would collect him and they would return to Tokyo.

6. On 18 May 2011, the father informed the mother by email of his intention to collect the child and take him to Australia.  He said that no earlier than the end of 2011, he would allow the child to decide whether to remain in Australia or return to Japan.  The following day the father left Australia for Country 1 and returned to Australia with the child on 24 May 2011.  It is agreed that the father did not have the mother’s permission to take the child from Country 1 or bring him to Australia.

7. The father commenced these proceedings on 30 May 2011.  Summarised, he sought sole parental responsibility, that the child live with him and spend time with the mother in the Sydney metropolitan area.  Interim orders were sought to a similar effect with additional orders which would enable him to travel overseas with the child and prevent the child’s removal from Australia.

8. The mother filed her response on 28 June 2011.  Essentially, she sought a permanent stay of the father’s application and interim parenting and allied orders to enable her to return with the child to Japan.  She sought a suite of parenting orders in the alternative which would achieve the same outcome qua the child’s departure with her for Japan effectively forthwith.

9. Ultimately the parties asked that the Court decide whether the child would return with the mother to Japan.  If that was the Court’s decision they agreed a suite of parenting orders could be made which addressed parenting issues and the child’s time with the father thereafter.  With the parties agreement the orders set out earlier were made on 11 August 2011 with the Court’s reasons for judgment to follow.  These are those reasons.

The applicable law and the hearing

1. Japan is not a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).  Nor is there any doubt that this Court’s jurisdiction in relation to the child has been regularly invoked.

2. On 9 January 2008, the Tokyo Family Court appointed the mother “as [the child’s] parent/guardian for his wellbeing”.  The effect of this order is that:

   (a)[The mother] has the legal right to make all the decisions parents usually make in respect of their children, including long term issues of where the child should be educated, health decisions, and where the child should live;

   (b)The child lives with [the mother] under her custody;

   (c)If the child is removed from her custody, [the mother] has the right to apply for the return of the child into her custody at the Family Court in Japan;

   (d)The father has the right to apply to change the owner of the parental rights, and has the visitation rights with the child.  (affidavit,  [Ms M] affirmed 5 August 2011) 

3. Not long afterwards the Tokyo Family Court orders were served upon the father in Australia.  Although he did not receive a service copy of the mother’s application for this order, which had been sent to him by post, no action was taken by him to change the orders. 

4. Japan is not a prescribed overseas jurisdiction for the purposes of Reg 23 of the Family Law Regulations 1984 and there is no mechanism for registration and enforcement of those orders in Australia.

5. On 8 June 2011, the mother applied to the Tokyo Family Court for an order that the child be returned to Japan.  Documents have been filed by the father in the Japanese proceedings which are adjourned until 13 September 2011.

6. The Full Court of the Family Court in Kwon & Lee (2006) FLC 93-287 set out the principles to be applied in non Abduction Convention cases where an Australian court’s jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) is properly invoked and the subject child is in Australia. Relevantly, at par 83 their Honours (Holden, Coleman & Boland JJ) held:

   We have already noted the differing circumstances of the decision in B v B (Re Jurisdiction) (supra) coming before the Court by way of a stated case, when the children were not in the jurisdiction, in contrast to this case where the issue of the return of the child to Korea has focused our attention on the actual orders made by the Court. We are satisfied this matter is distinguishable from B v B (Re Jurisdiction) (supra). We discern the principles espoused in paragraphs 37, 38 and 39 of the judgment in that case were made obiter dicta, are perhaps too widely stated for general application, and require some clarification and refinement. Read as a whole, and as recognised in paragraph 50, the answers given to the case stated referred to the special circumstances of that case where the granting of a stay was appropriate. We consider the following principles can be distilled from authority:

   (i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;

   (ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;

   (iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;

   (iv) in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);

   (v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;

   (vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;

   (vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and

   (viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter. 

7. Their Honours explained (par 84) that:

   …where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles…

8. It was contended by the father that the proceedings should not be dealt with summarily and that an Independent Children’s Lawyer and expert report from a psychiatrist (at least) would be required before the matter could be determined.  In the meantime, no change should be made to the child’s circumstances.  Counsel for the mother pressed for an immediate summary hearing.  Reliance was placed upon the child being unquestionably resident in Japan, his having been in the mother’s sole care in the years since separation and that the father brought him to Australia without her consent.  In addition, the mother arrived from Japan on 1 August 2011 for this hearing with a ticketed departure scheduled for 13 August 2011.  In the event a hybrid between a full and summary hearing was undertaken.

9. Counsel for the father summarised the risk issues which it was submitted made anything less than a full hearing inappropriate and the child’s return to the mother in the short or long term unsafe.  These are set out below:

   ·    That [the child] is at serious risk of psychological abuse in the mother’s care

   ·    That the mother has medical issues that impact upon her parenting capacity

   ·    That [the child] has been unhappy in the mother’s care

   ·    That [the child] has been unhappy living in Japan with the mother

   ·    [The child’s] wishes

   ·    That there are some risks to [the child’s] health and safety if he returns to reside in Japan

   ·    That if [the child] resides with the mother in Japan his relationship with the father will be extremely limited if not curtailed altogether.

10. Filed in the father’s case are numerous emails which, it was claimed, evidenced suicidal ideation in the child and him being placed under extreme pressure by the mother to reject his father.  Further emails from the mother were said to demonstrate that she too was not coping and also contemplated suicide.  Primarily because of these matters, when the matter was first called, I ordered that the parties and child attend upon a Family Consultant (Mr L).  It was requested that he provide a Children & Parents Issues Assessment and, if they could be discerned, the child’s views about where he wants to live. 

11. Because the child has limited English, the Family Consultant’s interview with him was conducted with the assistance of an interpreter.  The Family Consultant gave oral evidence and was briefly cross-examined.  With him the child was very guarded and appeared to be extremely uncomfortable.  The child explained that in Australia he misses his mother and a cousin to whom he is close and in Japan he missed his father.  He does not want to choose between them.  To the Family Consultant, the child looked sad and confused and he said that the strongest emotional content of their interview was when the child spoke about being lonely and isolated in Australia.  The point being in Australia he has no friends and, possibly because he cannot speak English, even at school he is isolated.  The child claimed to be unaware of the emails, including those sent from his email address.  This is consistent with the mother’s evidence that she and not the child sent the troubling emails.  If this was correct; while it invited questions about her willingness and ability to promote the child’s relationship with the father; it seemed that the even more serious concerns that arose from the emails might be clarified by cross-examination. 

12. Thus brief cross-examination was facilitated as a consequence of which the mother was questioned for about 45 minutes.  Counsel for the mother did not seek to cross-examine the father.  So that it is clear, having heard the mother’s evidence I was reasonably satisfied she, and not the child, authored the emails sent under his name and that they did not reflect his emotional state.  Also that the mother’s threats of suicide; which primarily coincided with the father obtaining a divorce and proposed reduction in financial support, were designed to prompt an empathetic response from him.  In short, she wanted him to acknowledge his guilt for divorcing her, taking a “mistress” and not fulfilling his obligations contained in a Binding Financial Agreement.  I accept her evidence that the emails bespoke her struggle with the father and not a risk she might suicide. 

13. In permitting the matter to proceed as listed rather than grant the adjournment, I took into account that the parties were given about two months notice of when the father’s application was listed and more than four weeks notice that the mother’s application would be considered simultaneously.  In this regard, the father filed his initiating application in the Federal Magistrates Court where it was allocated a hearing on 3 August 2011.  Before that date the Federal Magistrates Court transferred the proceedings to this Court where all applications were listed for hearing on 8 August 2011.  Thus each party had sufficient time to present a well prepared case.

1. On 8 August 2011 judgment was reserved until 2.00 pm on 11 August 2011.  On the date nominated for delivery of judgment the father applied for leave to reopen his case which was granted.  This resulted in the admission of a Child Dispute Conference Memorandum prepared by Mr L, the father’s proposed parenting orders in the event the child returned to Japan and an affidavit from his brother that annexed three emails he received from the mother in May and June 2011.  The Child Dispute Conference Memorandum supplemented the Family Consultant’s evidence by the provision of case management recommendations if the proceedings continued in Australia.  As would be apparent the parties were given the opportunity to consider the father’s proposed orders and agreed upon orders which would be made if the child returned to Japan.  So that it is clear the pivotal return issue was not resolved.

2. The agreed orders are set out below:

   1.That [the child] born [in] November 2000 is to spend time with [the father] as follows:-

   (a)From the 24^th to 31^st of December in each year in Australia or elsewhere if such place is agreed in writing by the parties.

   (b)That to facilitate the time in Order 1(a) above [the mother] is to ensure that [the child] boards a flight from Japan no later than the morning of the 24^th December in each year, and the father will ensure that [the child] boards a flight from Australia to Japan no later than the morning of the 31^st December in each year.

   (c)In Japan for one week in each year as nominated by the father provided that the father gives the mother at least two calendar months notice of his intention to exercise such time.

   (d)That in the event that the time in Order 1(c) is during a school term the father will take [the child] to and from school and to any extra-curricular activities that he is obliged to attend during the time that he is with [the child].

   (e)For the first three weeks in August in each year in Australia or elsewhere if such place is agreed in writing by the parties.

   (f)Such other times as agreed between the mother and father in writing.

   2.That the father will meet the costs of [the child] travel for him to spend time with the father as set out in Order 1.

   3.That the mother advise the father in writing at the commencement of each academic year of the dates of [the child] school holidays.

   4.That the mother is restrained from sending emails to the father from [the child] email address on behalf of [the child] or otherwise.

   5.That the mother ensure that no person other than [the child] send emails from [the child] email address.

   6.That all communication and correspondence between the parties be in a businesslike manner pertaining to the parenting of [the child] only.

   7.That in the event that [the child] has any accident or other trauma the mother will forthwith notify the father and provide him with full details of the accident or trauma and the medical treatment and the names of the doctors providing that treatment.

   8.That [the child] be allowed to have liberal telephone communication with the father and that the mother will ensure that [the child] have privacy during these calls.

   9.Notation: That the mother does not oppose the father seeking to have Orders made in the Family Court in Japan in the same terms as Orders 1 to 8 inclusive as set out above.

   10.Notation:  That the father has leave to review Orders 1(a) and (e) in the event the parties cannot reach agreement about [the child] spending time with his father other than in Japan or Australia and in the event that he makes application the mother will not raise a Rice v Asplund defence.

   11.The father is restrained by injunction from removing [the child] from Japan or Australia except in accordance with these orders, or any agreement in writing between the parties pursuant to these orders.

Background facts

1. The child was born in Country 2 in November 2000.  He has Japanese and Country 1 citizenship and is neither a citizen nor permanent resident of Australia. 

2. The parties and child lived in Country 2 until the child was about 18 months old.  During that period the father worked full-time and the mother, who did not have paid employment, was primarily responsible for the child’s care.

3. When the child was 18 months the parties moved to Melbourne.  Again, the father worked full-time.  The mother worked three mornings a week.  While she was at work the child was in day care.

4. When the child was three the family moved to Sydney where the father continued to work long hours and, when the child was not in preschool, the mother was primarily responsible for his care. 

5. In October 2005, the father told the mother he loved someone else.  Distressed by this news, in November 2005, I infer with the father’s agreement, she and the child went to Japan.  They returned to Australia for Christmas 2005.  Again, I infer with the father’s agreement, the mother returned to Japan with the child for January 2006.  During this period the father vacated their home in Sydney.

6. Between late January 2006 and June 2006 the child resided with the mother in Sydney.  Most weekends, from Saturday morning until Sunday afternoon the child spent with the father.  It follows that without orders, the mother willingly promoted the child’s relationship with the father.

7. In June 2006, the mother and child returned to Japan where they have lived ever since.  Although the parties agreed this would happen, the mother departed eight weeks earlier than anticipated and without forewarning the father.

8. On 19 July 2006, the parties executed a Child Support Agreement and Binding Financial Agreement. Prior to these proceedings, no orders under the Act or Parenting Agreement in relation to the child were made.

9. In accordance with the agreements referred to above, from about 31 July 2006 until February 2011 the father paid a monthly allowance of $6,000.00 (indexed to $6,700.00) to the mother for her and the child’s support.  In addition, not long after the mother and child returned to Japan in 2006, the father paid her $250,000.00 property settlement.

10. Between May 2006 and March 2011 the child spent time with the father and/or his European based paternal relatives as follows:

    ·    7 August 2006 to 30 August 2006 in Sydney. The paternal grandmother and the father’s brother stopped in Tokyo on the way from Country 1 where they collected the child and returned him on their way back;

    ·    one week in March 2007 during which the father took the child skiing in Prefecture 1, Japan;

    ·    one week in August 2007 which was spent in Prefecture 2, Japan;

    ·    26 July 2008 to 18 August 2008 in Country 1 with the father and his paternal relatives;

    ·    3 August 2009 to 29 August 2009 with the father and paternal relatives at a family home in Country 3;

    ·    for three weeks in August 2010 at the paternal grandparents’ homes in Country 2 and Country 3.

11. In June 2010, the father was asked to retire from the professional (international strategic) partnership where he worked as a consequence of which, as a part-time employee, his annual salary was “much reduced” to $150,000.00.  This prompted discussions with the mother about his inability to pay her $6,700.00 per month, the effect of which was he reduced his payments to $4,500.00 and then $2,000.00 per month.  The email traffic which passed between the parties shows reference by the mother to the difficulties this occasioned.  She discussed the effect on her health, the modest income she earned as in skilled employment, probably needing to move to social housing as well as curtail expenditure on the child’s tuition fees and that he may not be able to attend a private senior school.

12. As was earlier mentioned, following the earthquake and tsunami which devastated Fukushima and resulted in a nuclear power station meltdown the mother and paternal grandparents agreed the child would go to them for a couple of weeks.  Accordingly, on 17 March 2011 the child went to his paternal grandparents in Country 1.  At the behest of the paternal grandmother, at the end of March 2011, the mother agreed his stay with them would be extended until July 2011.

13. With the mother’s agreement the child was enrolled in a Japanese school in Country 1.  Every day the mother spoke with the child’s teacher.  It is common ground that during this period the child missed the mother and that the father’s parents asked her to join him in Country 1.  She was offered self-contained accommodation for herself and the child and financial support.  In addition, they offered to pay her airfares.  The mother declined and made plain she saw her and the child’s future in Japan.  She maintained contact with the child and made the necessary arrangements to collect him in July 2011.

14. During this period the father tried to persuade the mother to move with the child to Australia; or if she was unwilling to do this, for the child to live with him.  Her emails explain her not unreasonable refusal to accommodate either request.

15. When the father arrived in Country 1 in May 2011 he told the child he would try and persuade the mother to join them in Australia so that the child could have both parents living in the same city.  Before he left Country 1, the child spoke with the mother about this and she told him she would not move to Sydney.  Although the child told her he would not leave for Sydney, as is self-evident, he did.  Within days of his arrival in Sydney he emailed the mother and said “I want Mum to come and live in Sydney”.  Again, she explained this was not possible.  The mother was furious that the child’s Country 1 relatives allowed the father to take him to Australia.  It is easy to understand why she viewed them as betraying her trust and sent a number of emails in which she said they would never see the child again.  However, in this hearing she agreed the father would continue to see the child in relation to which there is no impediment to members of his family simultaneously spending time with him in Australia and Japan.  The mother is unlikely to arrange, as she has in the past, for the child to visit his paternal relatives. 

16. In Australia the child resides with the father and his partner, Ms H, in a home they own at Sydney Suburb 1.  They do not have children together.  The father’s partner is in full-time employment.  She does not speak Japanese or the language of Country 2 and because of the child’s language limitations in English, their ability to communicate is limited.  None of the father’s extended family lives in Australia.

17. The child attends a public school in Sydney.  The father takes him to and from school.  A letter from the child’s teacher commented favourably on his attendance and behaviour.  The teacher’s assessment is that the child has “become considerably more comfortable communicating in English”, has settled in well and made friends.  Greater weight is given to the child’s description to the Family Consultant of feeling isolated and lonely than the teacher’s observations which suggest the contrary.

18. When the mother and the child lived in Australia each had permanent residence which has been lost. After the father brought the child to Australia, the mother refused to jointly apply for Australian permanent residence for the child. According to the father, the child “is on an electronic visa” and is permitted to remain in Australia until 20 August 2011. “Electronic Visa” is not a visa category known to the Court. Interestingly the father, who has the child’s passport and knew that the child’s ability to remain in Australia was an issue, did not, in the considerable volume of material provided by him, produce even a copy of the passport. An Australian Electronic Travel Authority is available which grants a visitor/tourist visa that is valid for 12 months and permits stays of up to three months. It is likely that this is the “electronic visa” to which the father referred. According to the father, if orders are made in his favour, the child is eligible for a Resident Return visa. I infer he means a five year Resident Return visa (subclass 155) the criteria for which are contained in Schedule 2, Migration Regulations 1994 (Cth). Although one cannot be certain, I am satisfied that if the father succeeds in this application, it is highly likely that the child would be granted a visa of this type. Accordingly, it is appropriate to proceed on the basis that the child is able to live in Australia. I am bolstered in my view that the child is probably present in Australia on a visitor/tourist visa by the fact that the father is obliged to pay $220.00 per week for the child’s attendance at a public school.

19. Further particulars of the child’s life in Australia are set out in an email dated 25 July 2011 which the father sent to the mother.  This demonstrates plenty of activities that the child would enjoy.

20. It is common ground that there has been relatively little contact between the child and the mother in Australia.  While they have spoken on a number of occasions the terribly difficult issue for the child of whether to remain in Australia or return to Japan has distressed him.  The mother denies the father’s suggestion (from remarks attributed to the child) that she told him she would kill herself if he does not return.  There would appear, however, to be no issue that the child has indicated he would like his parents to live in the same city and he does not want to be forced to choose between them.  Although the child has Skype access through which the mother has sought to maintain contact this has rarely happened.  While the mother is suspicious about the father’s role in her inability to make contact by Skype, I accept his evidence that he has not interfered with this.  Nonetheless, it is revealing that while the child was with his paternal grandparents the mother and child spoke often and the communication problems which have arisen in Australia were absent.  Lest it be thought that the child’s lack of contact with the mother from Australia might warrant an inference that the child was not strongly attached to her, the evidence from the Family Consultant that he said he missed her is accepted as the child’s true feelings.  Rather, the lack of contact almost certainly reflects the child’s distress about his situation.

21. In Japan, the mother (who has not repartnered) and child live in a rented apartment in central Tokyo.  It is a five minute walk to her parents’ home and a few minutes walk to her brother, Mr T’s, company.  The mother’s brother has two children, a daughter who is the same age as the child and a son who is four years his junior.  According to her the child and his male cousin have grown up like brothers.  I accept her evidence in relation to which it is noteworthy that the child told the Family Consultant he missed his cousin and friends.  The mother and child regularly dine with her parents and her brother’s family.  I place greater weight on the mother’s account of her family relationships than the father’s indirect account that these relationships are fractured and fraught with difficulty.

22. In the recent past she had two years full-time employment during which period her parents cared for the child after school.  If the mother was unwell or the child became ill while she was at work, her mother cared for him.  Her father takes the child cycling and fishing while she and her brother’s family share family outings, such as skiing and Disneyland.  That the mother had full time employment puts her circumstances into a more balanced perspective than the extravagant language used in her emails to the father about the limitations her poor health imposed upon her capacity for paid employment.

23. In accordance with the father’s desire that the child be educated in a Country 2, in Tokyo he commenced school at the Country 2 school.  This was not successful and, with the father’s agreement, the child was enrolled in a local school from the start of Year 1 where he has attended ever since.  There is a degree of conflict between the mother’s evidence about the child’s academic performance and a number of her emails to the father.  In some she used quite emotive language to describe the child’s difficulties at school.  Her affidavit, however, indicates his grades have been better than average and he studies hard.  He attended cram school to enhance his academic performance. 

24. The mother has kept the father informed about issues in relation to the child and, for example, accepted his advice, when the child was bullied at school to enrol him in karate.  The father is enthusiastic about martial arts and it appears the school bullying issue was transient and has resolved.

25. Financial issues feature in the email exchanges between the parties and it is beyond doubt that the mother is distressed by what she regards as the father’s unconscionable failure to honour his financial obligations contained in their Binding Financial Agreement.  As was earlier referred to, the father’s employment conditions have changed with a commensurate salary reduction.  Although the Binding Financial Agreement is not in evidence the tenor of the parties’ email exchanges tends to suggest that the agreement may not contain termination provisions which enable the father to unilaterally reduce his monthly payments even if his income falls.  It appears to be common ground that the Binding Financial Agreement provides for him to pay her an indexed monthly payment until the child is 18.  It is the father’s evidence that instead of the $6,700.00 per month payable in accordance with the Binding Financial Agreement, after two months in which he paid $4,500.00, he informed the mother that from about May 2011 she would receive $2,000.00 per month.  Her emails of 31 March 2011 and 2 April 2011 set out the practical reality for her and the child of the father’s significant reduction in their financial support and her expectation that he abide the Binding Financial Agreement and/or subsequent order.  In any event, the mother works part-time in a skilled role which produces a modest income. 

26. The parties met when they studied at University 1 where each obtained a business qualification.  The mother is employed in a skilled role.  Prior to the parties’ marriage she was employed in Australia as a consultant at two high profile international financial institutions.  This prompts the father to assert that if the mother moved to Australia she would be able to find paid employment.  Even if this is the case, the mother makes plain she will not reside in Australia.  Not only would this require her to leave family whose support she values, her emails suggest she could not bear the shame (she would feel) inherent from living in the same country as the father while he lives with another woman.  There is a separate issue about her eligibility for a Resident Return or other visa.  Although there is some uncertainty about whether she meets all eligibility criteria, I proceed on the basis she would be given permission to live here in order to be with the child.

Discussion

1. There are competing fora, namely Australia and Japan, which, consistent with Kwon & Lee (para 83 sub-paragraph (iv)) requires that the Court determine the proceedings on the basis that the child’s best interests are the paramount consideration (s 60CA).  There are elements of para 83 sub-paragraph (vi) of Kwon &Lee that also apply.  Because both sub-paragraphs require that the ultimate determinant is the child’s best interests, it is unnecessary to strictly categorise this as a sub-paragraph (iv) or (vi) case.

2. Turning then to consideration of what outcome is in the child’s best interests.  It is clearly established that from when the child was born the mother has been his primary carer.  Whatever concerns the father now raises about her parenting capacity prior to mid 2006 were insufficient to cause him to seek to change the child’s reliance upon her.  Indeed, he was sufficiently confident about her parenting capacity that no challenge was made by him to her proposal that she and the child live in Japan.  At that time he had legal advice and I infer he was aware of the steps he could take to alter the child’s living arrangements if the mother’s ability to care for him was compromised. 

1. It was wrong of the mother to implement the parties’ agreement that the child live with her in Japan before the detail about the frequency and circumstances under which the child would spend time with the father was settled and documented.  While her girlfriends may have advised her to take matters into her own hands and leave Australia with the child without informing the father of their departure date, when she did this the mother must have known she betrayed his trust.  It does not follow, however, that the mother cannot be trusted to facilitate the child’s relationship with the father or abide orders for contact between them.  Her actions since then suggest differently.

2. Within a few months of her and the child’s move to Tokyo, without the necessity for orders, the child visited the father in Australia.  According to the mother, who did not accompany the child, he was deeply upset by the extent to which the father’s partner was included in their time together and insisted to the mother he would never again see his father in Australia.  The child’s views about the involvement of the father’s partner on this occasion are the same as the mother’s.  At that time, the child was not quite six.  The extent on his reliance upon the mother and his young age would have enabled her to guide the child towards a softer view about that situation and help him embrace the notion he could continue to visit his father in Australia and establish a relationship with his father’s partner without compromising the mother’s relationship with him.  The evidence would suggest this did not occur and that after the child returned to Japan, the mother refused to agree to further visits in Australia.  However, I note that email exchanges in 2010 show her willingness for the child to visit Australia provided the child was willing.  For reasons which are not clear this did not occur. 

3. It would appear that for the child, spending time with the father’s partner remains an issue which the father addressed with the mother in an email dated 13 April 2011.  He said:

   [The child] is not that keen to go back to Japan and he would like his mama to join him (his words again).  [B] has even found a 750 euro per month apartment for you.

   His mama is glued to Japan and she does not want to leave.

   His father is offering to live separately from his partner to offer [the child] the chance to live with him in Australia.

   [The child] is ok with his father’s proposal but does not want to because he does not want to leave his mama alone.  Unless his mama agrees and he is confident that she will be OK.  Basically [the child] is his mama’s protector.

   His mama thinks [the child] wants to go back to Japan and is concerned that his character is not formed, so he can’t change environment.  [The child] however looks like he knows what he wants. [my emphasis]

4. In the event the child has lived with the father and his partner for the last two months about which he made no complaint to the Family Consultant.  I infer that whatever problems the child had with this idea have largely resolved. 

5. Although the child did not return to Australia, there is no doubt he maintained telephone contact with the father and spent time with him in Japan and Europe.  The parties’ email exchanges evidence the father’s requests to spend longer periods with the child (including in Australia) and, on occasion, in Japan than was generally agreed to by the mother.  In her responses, she referred to the child’s often negative views about aspects of the father’s proposals and, more recently, his extra-curricular activities.  However, her emails do not read as an ill-considered fait accompli about how the child’s time with the father should be balanced with the child’s other commitments.  Indeed, those which comprise Appendix B to the father’s affidavit filed 28 July 2011 (dated 28 September 2007 and 14 April 2010) indicate her thoughtful engagement with the father about this issue.  In this regard, the latter email refers to proposal that the child attends only some and misses other holiday activities, which almost all his classmates would attend, to be with the father.  The child’s involvement in activities of this type support the mother’s evidence that in her care the child enjoys age appropriate activities and detracts from the father’s case that he is basically friendless and has little life other than to care for the mother.

6. So that it is clear, the father received a number of emails from the mother (which includes emails she sent in the child’s name) which created a picture of the child’s life consistent with the fears expressed in his affidavits.  It must have been confusing for him to receive, on the one hand, emails from the mother which indicated that the child was generally doing well compared to the emotional emails filled with recrimination about the poor quality of life she and the child endured.  It is not difficult to understand how the father became frustrated about the mother’s attitude towards his leaving her and taking a new partner.  Whether the mother’s views about this issue are culturally embedded or result from other influences, there is no doubt that she believes the father betrayed her trust in him for which he must apologise.  As she gave her evidence, it is clear that her emotional emails about her and the child’s circumstances, threats of self-harm and the like, were her attempts to shame the father and by overpowering him with guilt to force him to apologise.

7. If the father believed the information in the mother’s emotional emails reflected the reality of her and the child’s lives, he would have acted sooner.  The emails relied upon by him go back years.  Yet he did nothing.  Even the emails which emanate from the child’s email address which suggest that the child is suicidal are dated before the child spent about a month with the father in 2010.  The father’s failure to act in a timely way suggests he realised the emails did not reflect reality, were not from the child and were created for the reason and in the manner described by the mother.  His lack of timely action tends to suggest his removal of the child was opportunistic and warrants strong criticism.  There is an element of hypocrisy about his complaint the mother left with the child for Japan sooner than they agreed yet he took the child contrary to her expressed wish.  Even if I am wrong about the father’s opinions about the emotional emails, I am satisfied that they do not reflect the reality of the mother and child’s circumstances.  

8. Attached to the father’s affidavit are articles published by an organisation “Japan Children’s Rights Network” which claim institutionalised discrimination against fathers and non Japanese parents in custody cases determined in Japan.  As I understood it, the information contained therein is relied upon to explain the father’s lack of court action in Japan and that, in the event the child is returned to Japan, why if the mother is unwilling to promote his relationship with the child no better outcome in this regard can be expected from Japanese courts.  In relation to the latter point, it is said that the child’s return to Japan will see their relationship destroyed.  However, I give greater weight to the father’s explanation for his inaction over the years contained in his affidavit filed 28 July 2011; as follows:

   …Further more no custody arrangements were ever made for which I was given a fair hearing.  I have never recognised the Japanese ex parte orders of May 2008 which was subsequently served on me by the Sheriff of the Supreme Court at Queens Square.  The Respondent Mother obtained these Orders notwithstanding that our marriage was celebrated and divorce declared in Australia.  I expected that custody arrangements would be settled in Australia as well.  The reason why I never challenged the status quo of my son living with the Respondent Mother until now is that I believed as a young child he was happier with the Respondent Mother.  However now, [the child] is neither happy nor safe living in Japan.  I am also very concerned about [the child’s] mental state while living with the Respondent Mother in Japan.  [my emphasis]

9. This explanation is consistent with the father’s agreement that the child lives with the mother in Japan and his lack of timely action in relation to the emotional emails.  In other words, the father’s lack of court action in Japan does not relate to asserted institutionalised discrimination, but rather his being satisfied until now that it was in the child’s best interests to live there with the mother.  So that it is clear the father did not establish he would be denied an appropriate hearing of the parenting issues he wished to agitate in Japan. 

10. I agree with the submission made by counsel for the mother that it is important to note the dates and circumstances under which the mother’s emotional emails were sent.  Essentially, they coincide with the father divorcing her, reducing his financial support and then taking the child from Country 1 to Australia without her consent.  In contrast to the material contained in the emotional emails, the evidence established that the mother and child live well ordered lives in Japan.  For years they have had stable accommodation and ongoing family support.  The child has stable education and participated in extra curricular activities.  He saw his father and paternal relatives at least annually and was in good health.  It is noteworthy that although the mother claimed ill health made paid work impossible, she has had full-time employment for a number of years.  The known facts compared to the picture created in the emotional emails, makes it clear that the child’s strongest relationship is with his mother.  Since separation she competently cared for him with relatively little assistance from the father. Culturally, the child’s strongest influence is Japanese.  All of these are important factors that weigh heavily in favour of the child returning with the mother to Japan and for any disputed matters in relation to the child’s best interests to be determined there.  The evidence adduced from Attorney Matsumo made it clear that the father has the right to apply to change the orders made by the Family Court at Tokyo. 

11. The Family Consultant’s evidence to the effect that in Australia the child is sad, lonely and isolated are also important matters which weigh heavily in favour of changing the child’s circumstances in the manner sought by the mother.

12. The father claimed that the child’s return to Tokyo exposed him to a risk of radiation exposure (from Fukushima) equivalent to Chernobyl.  Attached to the mother’s affidavit are Department of Foreign Affairs & Trade travel advisories issues subsequent to the 11 March 2011 tsunami and earthquake.  In short, these warn against travel within 80 km of the Fukushima nuclear plant and advise travellers to reconsider travel to identified coastal areas of Northern Honshu.  Tokyo is 240 km from Fukushima.  It is well outside the evacuation zone declared by the Japanese Government (20 km) and the precautionary zone advised to Australians.  The Japanese Government has not restricted access to Tokyo and it remains a thriving metropolis.  I am not satisfied that in ordering the child to return to Japan his health or safety is compromised as a consequence of the Fukushima nuclear incident.

13. The child’s best interests require his prompt return to Japan and for any outstanding parenting issues to be determined in the country where he is resident and where, with the parties’ agreement, he has lived for years.  

14. In light of this determination orders will be made to effect the child’s return and in accordance with the parties agreement.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 August 2011.

Associate:     

Date:              17 August 2011