Collu and Rinaldo

FAMILY COURT OF AUSTRALIA

COLLU & RINALDO

[2009] FamCA 461

FAMILY LAW – CHILDREN – With whom a child lives – Mother overseas

APPLICANT:

Ms Collu

RESPONDENT:

Mr Rinaldo

FILE NUMBER:

PAC

1204

2008

DATE DELIVERED:

31 March 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

1, 3, 4 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Curran
SOLICITOR FOR THE APPLICANT:	Paul Marsh

COUNSEL FOR THE RESPONDENT:

Mr Schroder

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

That all existing parenting orders in relation to the child … born on … December 2005 (“the child”) be discharged.
That the parties have equal shared parental responsibility for the child.
That the mother do all things necessary to return the child to Sydney no later than 30 days from the date of these orders.
That the child lives with the father in Sydney in the event that the mother resides in Dubai or north Queensland.
That, in the event that the mother lives in Dubai or north Queensland, the child spend time with her as follows:
5.1until he commences his formal education, for three periods each of three weeks in the vicinity of her place of residence or at such other location as the parties may agree in writing from time to time
5.2from the time that he commences his formal education, for the whole of the Terms 1, 2 and 3 school holidays and for half of the Christmas vacation, being the first half in odd-numbered years and the second half in even-numbered years
5.3for up to four periods, each of one week’s duration, in Sydney upon the mother’s providing 28 days written notice of the proposed dates to the father.
That, in the event that the mother resides in Sydney, the child lives with the mother at all times other than the periods specified below, during which he will live with the father:
6.1until he commences his formal education:
6.1.1from 3:00pm on Friday until 9:00am on Monday in each alternate week and from 6:00pm on Sunday until 9:00am on Wednesday in each other week
6.1.2for one continuous week from 9:00am on Friday until 9:00am on the following Friday in each of April, July and October, with the father to provide to the mother 28 days written notice of the proposed dates
6.1.3for three weeks from 9:00am on 20 December in even-numbered years and 10 January in odd-numbered years
6.1.4the operation of order 6.1.1 is suspended for the purposes of orders 6.1.2 and 6.1.3.
6.2from the commencement of his formal education:
6.2.1for alternate weeks during school term time, with changeovers to occur at the conclusion of school on Friday
6.2.2for one half of all school holidays, being the first half in even-numbered years and the second half in odd-numbered years
6.2.3from 12:00noon on Christmas Day until 6:00pm on Boxing Day in 2009 and each alternate year thereafter and from 6:00pm on Christmas Eve until 12:00noon on Christmas Day in 2010 and each alternate year thereafter.
That each of the parties do all things and execute all documents required to ensure that the child is registered and known for all purposes by the surname “Rinaldo-Collu”
That 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.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1204 of 2008

MS COLLU

Applicant

And

MR RINALDO

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Rinaldo (“the father”) and Ms Collu (“the mother”) are the parents of a little boy, who was born in December 2005 and is now three years old. The child’s parents are unable to arrive at their own arrangements for his care.
The mother sought orders which would allow her to live in Dubai with the child until 2011, or for such shorter period as the court may determine, and in far north Queensland on her return to Australia. Her proposals for the child to spend time with his father, in each of these situations, are outlined below in these reasons.
The father proposed that the child live in Sydney and spend six nights per fortnight in his care, moving to a week-about arrangement when he commences school. The proposals of each of the parties contained provision for special occasions and telephone communication.
The father sought an order that the child be registered and known by the surname “Collu-Rinaldo”. The mother sought no order in relation to the child’s surname and said that she would “prefer his name to stay [Collu]”. She also said that she would accept a hyphenated surname, by way of compromise, and would favour “Rinaldo-Collu”.

Background

The father, who is now 41, and the mother, who is now 35, met in 2002 and began a relationship in May 2003. They disagree as to what periods they spent living together, between May 2003 and the mother’s departure for Dubai with the child on 1 March 2007.
At the commencement of the relationship the mother owned a home at T in Sydney. Early in 2005 the parties jointly purchased a property at R in Sydney. It is not necessary, for present purposes, for me to attempt to make findings as to the periods they spent together in each of these two homes.
The child was born in north Queensland, which is close to the home of the mother’s mother and members of her extended family. The father was present for the birth and stayed in north Queensland for approximately one week. When the child was about one month old the mother returned to live in her home at T. The parties disagreed as to whether they lived together in the period immediately after her return to Sydney.
The mother maintained that the parties lived together in her home at T during 2006. The father said that he lived between that home and the R property. He claimed that he and the mother were not in an intimate relationship.
Early in 2006 the mother’s aunt moved to Sydney from north Queensland to help with the care of the child. She lived with the mother and the child at the T property.
In September 2006 it was discovered that the child is allergic to peanuts. The mother and her aunt attended an allergy training course soon after this diagnosis. The father and his mother undertook a similar course in 2008.
On 12 December 2006 orders were made by consent, which provided that the child live with his mother and “spend reasonable time with the father as agreed between the parties”. These orders also provided that “the mother be permitted to remove the child from the Commonwealth of Australia any time on or after 27 December 2006 for a period of 13 months for the purpose during that time of residing in Dubai”.
On 30 October 2006 a Dubai-based company known as N Company offered the mother a three year contract, subject to a three month probationary period. She signed this contract on 4 March 2007, three days after she arrived in Dubai. On 11 February 2008 she received a promotion, which was backdated to 1 January 2008.
On 27 May 2008 the mother entered into a lease of an apartment in Dubai for a term of nine months. She has never revealed the address of these premises to the father.
On 19 September 2006 the mother obtained a passport for the child. She did not consult the father about this application.
The mother first raised with the father her proposal to relocate to Dubai with the child in the latter months of 2006. On 23 November 2006 her former solicitors sent to him an application for consent orders, together with proposed terms of settlement. The consent orders made on 12 December 2006 provided that the mother return the child to Australia no later than 1 April 2008.
On 26 February 2007 the mother informed the father that she intended to leave for Dubai with the child on 1 March 2007. At this time the parties both occupied their home at R, as the mother had leased her T property. The mother’s aunt was also staying there, in preparation for the departure for Dubai.
An incident occurred on 19 February 2007, which resulted in police attending the R property. The relevant COPS entry (exhibit 3) recorded that the father verbally abused the mother and woke the child at about 9:30pm. She attended a police station at approximately 1:00pm the following day and reported the incident. The COPS entry recorded that the mother told the police that “there was no violence” and that she “does not have any fears for her safety”. In her affidavit the mother gave an account of this incident which alleged more concerning behaviour on the father’s part. I will consider below the parties’ competing versions of this incident.
Police officers again attended the R property on 1 March 2007. Another incident between the parties occurred as the mother, the mother’s aunt and the child were preparing to leave for the airport to board a flight to Dubai. Again the parties gave differing accounts of this incident, which I will consider below.
According to the father he had changed his mind about the child’s living in Dubai when these two incidents occurred. He said that he had realised how much he would miss his son and told the mother that he no longer consented to her leaving Sydney with the child. He said that he believed that the parties were trying to negotiate an outcome to this dispute. He said also, and I am inclined to accept, that there was uncertainty as to the status of their relationship at this time.
The father travelled to Dubai on two occasions in 2007. On the first trip in July 2007 he was accompanied by his daughter, G, who was born in December 1998. The father and G’s mother seem to have a co-operative, flexible arrangement for their daughter to spend time with him.
The mother would only permit the father to spend time with the child in her presence during both of these visits. She would not allow him to spend any time with the child at her apartment.
On 22 November 2007 the mother emailed to the father a proposal that she remain in Dubai with the child until 6 April 2009. On 23 February 2008 she wrote: “I wish to remain in Dubai with [the child] beyond the dates contained in the present consent orders”. She advised him that she had instructed her solicitor to commence fresh proceedings, if he failed to accede to her proposal. The foreshadowed application was filed on 11 March 2008.
The mother failed to return with the child to Australia by 1 April 2008, as required by the consent orders of 12 December 2006. Her fresh application was returnable on 31 March 2008. A Judicial Registrar refused to deal with the mother’s application to remain in Dubai with the child until she returned him to the jurisdiction of the court. On 18 June 2008 interim orders were made which provided, in essence, that the child live with each parent on a month-about basis in Dubai and Sydney.
On 17 April 2008 the mother entered into a six month lease of her home in T. She claimed that there is a shortfall of approximately $1,615 per month between the rental income and mortgage repayments.
The father is employed as a sales and marketing manager in a family business. The business has established a factory in China and the father regularly travels to that country for work purposes. He made four trips to China in 2007, the longest of which was of three month’s duration. He also makes business trips to Italy and within Australia.

The Evidence and Witnesses

The applicant, the mother, relied on the following affidavits:
1.The mother sworn 11 November 2008
2.The mother’s aunt sworn 11 November 2008
3.Mr L sworn 5 November 2008
4.Mr H sworn 5 November 2008
5.Mr M sworn 5 November 2008
Only the mother and the mother’s aunt were required for cross examination.
Mr L is the mother’s immediate supervisor within the N organisation. His affidavit set out the history of her employment by the company and indicated that a degree of workplace flexibility is available to her.
Mr L was present at a changeover at Dubai airport on 1 September 2008. He said that the child cried and told his mother that he wanted to stay with her.
Mr H has been a friend of the mother for approximately four years. He recounted in his affidavit attempts to help her to find employment in Sydney. It was part of the mother’s case that she has experienced difficulty in finding secure employment in Sydney.
Mr H was present at a changeover at Sydney airport on 1 August 2008. There was an apparent mixup concerning the precise meeting point. The parties had arranged to meet at a café but the father forgot its name. He said that the mother refused to inform him of the name of the café for approximately one hour, despite several text-messaged requests.
Mr M is a co-worker with the mother in Dubai. He was present at a handover at Abu Dhabi airport on 1 November 2008. He recounted that the child said that he did not want to go with his father and cried when they reached the airport.
For reasons which appear below I have some doubts as to the credit of the mother. I did not form the view that she set out to mislead the court but, certainly, my impression was that she was prepared to exploit past incidents between the parties in an attempt to strengthen her position in these proceedings.
The respondent, the father, relied on his affidavit sworn on 12 November 2008 and an affidavit of his mother, the paternal grandmother of 24 November 2008. It was clear that the paternal grandmother has an unfavourable opinion of the mother. It was equally clear that these feelings are reciprocated by the mother and extend to the paternal grandfather.
It was my impression that the father attempted to be frank and forthright when giving his evidence. It seemed to me that he is still emotionally involved with the mother, a circumstance of which she is fully aware and of which she has taken advantage.
I had the benefit of a report and oral evidence from a Family Consultant, Dr E. Counsel for the mother contended that Dr E’s report was “unbalanced”, “as is demonstrated by the papers he has written”. On my direct enquiry, counsel said that he “stop[ped] short of accusing Dr [E] of bias”.
Dr E’s curriculum vitae was attached to his report, in these terms:
[CV omitted]
Apparently on the strength of the titles of Dr E’s papers, counsel for the mother submitted that he had “decided wrongly that this case falls into that category”. The nature of the alleged “category” was never defined but seemed to encompass fathers who are distanced from their children by the actions of mothers. I asked counsel whether he had read any of Dr E’s papers, as it seemed to me that knowledge of their contents would be an essential prerequisite to his submission. Counsel informed me that he had read nothing of Dr E’s writings, which must mean that his submission was based solely on the titles of the papers set out in the curriculum vitae. In my view, this submission thus lacks credibility.
For these reasons I reject the suggestion that the report of Dr E is “unbalanced” or unreliable in any other way. I accept all of his evidence, to which I will attach appropriate weight.

Approach to these Proceedings

Since the 2006 amendments to the Family Law Act, a number of first instance decisions have held that well established previous law governing “relocation” cases remains applicable. That law is set out in authorities such as AMS v AIF (1999) FLC 92-825 (High Court of Australia); A & A (Relocation Approach) (2000) FLC 93-035 (Full Court of the Family Court of Australia) and U & U (2002) FLC 93-112 (High Court of Australia).
The principles which govern the determination of parenting proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each parent to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the court is satisfied that its application would conflict with the best interests of the child: section 61DA(4)
When this presumption is applied, the court must first consider making an order for equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2)
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing him or her to share events of special significance with each parent. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement
If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined at large in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.
The 2006 amendments to the Family Law Act introduced, inter alia, an obligation on the court to focus on two primary considerations and a number of additional considerations, in assessing what orders are in a child’s best interests: section 60CC. The primary considerations are the benefit to a child of having a meaningful relationship with each parent and the need to protect children from physical and psychological harm. These two considerations reflect the objects of Part VII, as set out in section 60B(1).

The Proposals of the Parties

Neither party sought an order for sole parental responsibility. Independently of this mutual concession, I am firmly of the view that the father and the mother should have equal shared parental responsibility for their son. They are both devoted to the child and love him dearly. In my view there was nothing in the evidence which even suggested that the presumption has been rebutted or that equal shared parental responsibility would be contrary to the child’s best interests.

The Mother’s Proposal

The mother proposed that the child live with her in Dubai until either 4 April 2010 or 4 December 2011 and thereafter in the vicinity of N in north Queensland. The child would spend a maximum of three periods, each of up to one month, with his father in Sydney until he turns six years of age on 3 December 2011. The mother required a written undertaking from the father that all of such time would be spent in Sydney. The basis for this requirement was never enunciated. Her proposal contained provisions for special occasions and telephone communication.

The mother’s alternate proposal was that the child live with her in north Queensland. Implicitly, she proposed that she live with her mother near N on a rent-free basis. She suggested that the child spend three months in each year with his father in Sydney. It seemed that she proposed to live with the child in north Queensland forthwith, if court orders require his return from Dubai, or after any extension of time in the United Arab Emirates.
The mother’s proposals did not address the prospect that the child would live in Sydney. The only evidence which covered that possibility was contained in the Family Report, where Dr E stated:
“[The mother] suggested that, if living in Australia, she was not opposed in principle to an equal care arrangement for [the child], but thought that the success of such an arrangement very much depended on how it was introduced. She wondered, though, what [the child] would make of such an arrangement. [The mother] also indicated that she would resign her position in Dubai and return to Australia if the court were to order [the child] to live with [the father].”
The mother sought an order that the child be raised in the Lutheran religion. None of her evidence addressed this proposal or provided any basis upon which I might contemplate making such an order.
As noted, the mother proposed that there be no change to the child's surname although she conceded in cross-examination that she would accept a hyphenated name as a compromise. She proposed that one of the child’s given names be abandoned, if he has a hyphenated surname. The given name which she selected was “O”, being that of the father.

The Father’s Proposal

The father proposed that the child live with him, in the event that the mother resides in Dubai or north Queensland. He suggested that the child spend three periods per year, each of three weeks, with his mother in Dubai or north Queensland until he starts school. From that point he would spend all of the short holidays and half of each Christmas vacation with his mother. There was also provision for the mother to spend four periods, each of a maximum of one week’s duration, in Sydney with the child on provision of one month’s notice.
In the event that the mother returns to Sydney the father proposed that the child live with him, until he starts school, from 3:00pm on Friday until 9:00am on Monday in each alternate week and from 6:00pm on Sunday until 9:00am on Wednesday in each other week. He would live with his father for one week in April, July and October and for three weeks in December/January in each year. These arrangements would replace the two-weekly cycle.
The father proposed that the child live with each parent on a week-about basis, with changeovers on Friday morning, once he commences his formal education. He would share school holiday time equally between his parents.
The father’s proposal contemplated that the child spend time with each parent on special occasions. There was also provision for telephone communication.

The Presumption of Equal Shared Parental Responsibility

As noted, there will be no change to the statutory conferral of equal shared parental responsibility. I am thus obliged to consider making orders that the child spend equal or substantial and significant time with each of his parents.

Equal Time or Substantial and Significant Time

Both of the mother’s proposals, being that the child live with her in either Dubai or north Queensland, mean that equal or substantial and significant time with each parent is a practical impossibility. I should note that it was not put to the father that he could move to Dubai or north Queensland. Nonetheless, I am prepared to infer that his involvement with his family’s business would make it difficult for him to relocate from Sydney. Similarly, the father’s proposal that the child live with him in Sydney if the mother remains in Dubai or moves to north Queensland, means that equal or substantial and significant time would be impossible for geographical reasons. The only proposal which could accommodate equal or substantial and significant time is the father’s scenario in which both parents live in Sydney.
I will thus proceed to determine what orders are in the child’s best interests by reference to the considerations set out in section 60CC and the objects and principles which underpin Part VII of the Act. It remains open to me to make orders for equal or substantial and significant time at the end of this process, if either of those results are found to be in the child’s best interests.

Section 60CC(2): The Primary Considerations

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

I have no doubt that the child currently has a meaningful relationship with both of his parents. He has spent much of his life to date in the primary care of his mother and/or his great aunt. His time with his father has greatly increased since the interim orders of 18 June 2008. The father seems eager to assume a significant paternal role in the child’s life and has begun to do so, to the extent which time permits in the present circumstances.
The evidence of Dr E demonstrated that the child currently enjoys a loving, secure and high quality relationship with both his mother and his father. Clearly, he will benefit from an ongoing meaningful relationship with each of his parents.
In terms of this consideration, the least advantageous proposal to the child’s best interests would see him in Sydney and the mother in Dubai or north Queensland. As noted, however, the mother told Dr E that she would return to Australia if the child is unable to remain in Dubai. In terms of this consideration, the proposal that the child lives in north Queensland with the mother is less disadvantageous to his best interests but certainly entails fewer advantages than a scenario where both parents live in Sydney.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother’s case emphasised incidents between the parties on 19 February 2007 and March 2007, to which I have already referred. There is no doubt that the father behaved inappropriately on each of these occasions, particularly on 1 March 2007. He conceded as much in his affidavit and oral evidence.
The mother said that the father drank alcohol during the evening of 19 February 2007, while watching television at the R home. She went to bed in a room which she shared with the child. The father then sent her several text messages, asking her to come out of the bedroom to talk to him. After she refused he stood in the doorway of her room, flicking the light on and off. He then entered the room and shook the bed in which she and the child were sleeping. He threw pillows and cushions at her and said: “I want to sleep with [the child] now”. He then sat on the bed and the mother pushed him off with her legs. She asked him to leave the room, which he did, and she and the child then spent the night in her aunt’s bedroom.
The father disputed several of the details of this account. He admitted that he was angry and said that he was feeling very stressed. He conceded that he had been “loud” and that he had woken the child. He said that an apology was warranted for those reasons.
As noted, the mother reported this incident to police at approximately 1:00pm on the following day and stated that she did not have “any fears for her safety”. The relevant COPS entry (exhibit 3) indicated that she said that there had been “no violence” and that she did not wish the police to contact the father.
The incident on 1 March 2007 certainly entailed unacceptable behaviour on the part of the father. He attempted to prevent the mother’s departure from the R home to catch a flight to Dubai. He said in his affidavit that he “deeply regrets” his behaviour and that he has apologised to the mother on numerous occasions. He said that he was “upset and fretful” and that his intention was to prevent the mother from departing for Dubai with the child.
I do not consider that these two incidents constitute a basis for a finding that there is a need to protect the child from physical or psychological harm. I accept that the father was very upset and concerned about the child’s impending departure for Dubai. I accept that he believed that there was a prospect that he and the mother could reach agreement about the future of their relationship and how they would care for the child. I accept that he harboured hopes for marriage and family life at this time. It thus seems to me that these two incidents occurred in a highly emotionally charged environment and are not reflective of the father’s general mode of behaviour. I accept that he was sincere in his apology for his conduct.
The mother also complained about the father’s alleged behaviour during his two visits to Dubai in 2007. Essentially, she recounted in her affidavit occasions of arguments and conflicts in the child’s presence. I am far from persuaded that these alleged incidents, which the father largely disputed, constitute a basis for a finding that there is a need to protect the child from physical or psychological harm. Obviously, he should be spared from exposure to conflict between his parents but the evidence falls far short of establishing that he has been or is likely to be exposed to physical or psychological harm. I thus regard this consideration as neutral in terms of the advantages and disadvantages to the child’s best interests of all proposals put by the parties.
I diverge at this point to record my impression that the father and the mother were in a state of uncertainty as to the status of their relationship when she left Sydney with the child in March 2007. The father said, and I accept, that they discussed the prospect of a continuing relationship and marriage during his visits to Dubai. He also said that she initiated occasions of intimacy while he was in Dubai. Although the mother denied that she did so, I accept the father’s evidence in this regard. I cannot determine whether the mother shared the father’s uncertainty as to the status of their relationship or whether she deliberately held out false hope of a family life, for some purpose of her own. I would note Dr E’s observation during cross-examination that “this is not just about [the child]”. The effect, however, must surely have been to create a volatile emotional landscape between the parties. My impression was that the mother attempted to use these arguments and confrontations to secure an advantage in these proceedings.

Section 60CC(3)

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

The child is only three years old. There was no evidence that he has expressed any views relevant to these proceedings. Any views which he may have expressed would carry little or no weight in any event, on account of his very young age. This consideration is neutral, in terms of the advantages and disadvantages to the child’s best interests of all proposals put by the parties.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The Family Report provided independent evidence as to the nature of the child’s relationship with each of his parents and the father’s daughter G. Dr E reported:
“[The child], aged 2 years and 11 months, presented as a healthy looking, well developed, handsome young boy who seemingly has obtained the appropriate milestones for a child of his age. When initially brought to the court by his father to begin time with his mother, [the child] enthusiastically and warmly greeted [the mother] when he first saw her in the reception area. He kissed and cuddled his mother, clearly delighted to see her. On the second occasion when he attended with his father and [G], [the child] initially wanted his sister to accompany him from the childcare room to the observation room. He soon accepted that she would later join him and his father. When alone with the reporter, [the child] was not very communicative.
When observed with his parents, [the child] displayed a long concentration span, being content to play for extended periods at the sand tray. He was far more vocal when observed interacting with his mother than he was with his father. His attitude and behaviour suggested that he was comfortable with both parents who are able to enter successfully into his play world. When [G] entered the observation room, [the child] accepted her presence without any obvious reaction. They were seen to play together in a manner that indicated a comfort and ease between them.
Until the equal care arrangement ordered by the court in June 2008, [the child] had spent little time with his father, and that time was always in [the mother’s] presence. Consequently, [the child’s] opportunity to attach to his father and [the father’s] scope to bond with his son had been extremely limited during what is considered a key stage of a child’s development. Not surprisingly, [the child] appears to be more strongly attached to his mother than to his father. Nevertheless, after spending a couple of months in his father’s care thousands of kilometres distant from his mother, [the child] appears to be at ease with [the father].”
This expert evidence demonstrates that any proposal which would see the child separated from his mother for lengthy periods would hold more disadvantages than advantages to his best interests. On the other hand, the mother’s proposal to remain in Dubai with the child and allow him limited time with his father would impinge on the development of his relationship with all of his paternal family. Similarly, his relationship with his maternal family would be compromised, in these circumstances, by lack of opportunity to spend time with them.
It follows that the proposal for the child and both of his parents to live in Sydney holds more advantages than disadvantages to his best interests. The mother’s proposal that the child live with her in north Queensland holds fewer disadvantages to his best interests than any proposal which involves her living in Dubai, in terms of this consideration.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Dr E expressed concern about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and his father. He reported:
“By making it difficult for [the father] to be involved in [the child’s] life, [the mother] displays a limited capacity to focus on her child’s needs. [The child] may well not share her belief that he has little to gain from [the father] playing a paternal role in his life. The child has the right to experience his father’s presence and that of his paternal extended family in his life and to come to his own conclusions about what they have to offer him. By way of contrast, [the father] presents as keenly aware of his responsibility to encourage and support [the child’s] relationship with [the mother].”
In my opinion the evidence offered several examples of occasions when the mother was obstructive at worst, or indifferent at best, to the facilitation of the child’s spending time with his father. The following is not intended to be an exhaustive list of such instances.
The father maintained that he and the mother agreed that she and the child would live in Dubai for 13 months, on the basis they would be together as a family when he was able to visit in the course of his business travel. Despite this understanding, she severely restricted his time with the child and insisted that she always be present. She refused to allow him to spend time with the child at her apartment, in her aunt’s presence, while she was at work.
One of the mother’s alleged reasons for refusing to allow the father to stay in her premises was that it is unacceptable for an unmarried man and woman to occupy the same premises in an Islamic country. She also indicated that she was concerned that the father was unable or unwilling to care for the child himself. Her underlying insinuation seemed to be that the father was more focussed on her than the child. Further, she drew attention to what she described in her affidavit as “the father’s threatening behaviour in Dubai”. This “threatening behaviour” seemed to amount to arguments between the parties about the father’s wish to stay at the mother’s home.
There may be some validity to the mother’s alleged concern about unmarried people occupying the same premises in a Muslim state. Otherwise, it seemed to me that the mother was taking advantage of the father’s unresolved feelings for her when these incidents occurred and that she sought to use the resulting arguments to advance her case.
The father also maintained that the mother made telephone communication between him and the child difficult. The mother alleged that he failed to make calls at the prescribed time. It was my impression that they were both at fault in this respect.
My overall impression was that the mother found herself in a position of power over the father, once she arrived in Dubai, and she then used this advantage to severely curtail his time with the child. There was little that the father could do, especially if he had unresolved feelings for the mother and she held out promises of a future life together as a family.
The mother maintained that the current month-about arrangement is “traumatic” for the child. She gave graphic descriptions of his distress when leaving her to begin time with his father. The father maintained that the mother added to the child’s distress by saying to him, for example:
“Mummy is going to miss you [child].
You don’t want to go with Daddy.
You want to stay with Mummy.”
I accept the father’s evidence and thus take the view that the mother could have made the changeovers easier for the child, had she chosen to do so.
The father seemed to have a co-operative co-parenting arrangement with the mother of his daughter G. As noted, G accompanied him to Dubai in 2007. She has also been on trips to China with her father. It thus appears that the father is capable of negotiation and flexibility in circumstances where these qualities are reciprocated by his child’s other parent
These matters leave me with real concerns as to the mother’s willingness and/or ability to facilitate the child’s relationship with his father and paternal family. If the child remains in Dubai, these concerns become heightened by the problems of distance and the mother’s apparent perception that she holds a position of power over the father. To a lesser extent, these same observations apply to the mother’s proposal to live with the child in north Queensland. In my view, both of these proposals hold many more disadvantages than advantages to the child’s best interests, in terms of this consideration.
By comparison, I am persuaded that the father is genuinely committed to facilitation and encouragement of the child’s relationship with his mother and maternal family, as Dr E assessed. I am thus of the view that the father’s proposal that the child lives with him in Sydney, if the father resides elsewhere, offers more advantages than disadvantages to his best interests.
The proposal whereby the child and each of his parents live in Sydney would seem to be most advantageous to his best interests, in terms of this consideration. Regular and frequent time with his father would do much to counter any unwillingness or inability on the mother’s part to encourage and facilitate the child’s paternal relationships.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The mother’s case focussed considerable attention on the financial detriment which she would suffer, if she is unable to remain in Dubai. I accept that she is in a favourable financial position in Dubai. I doubt that her employment prospects in Australia are as bleak as she suggested, for the reason that she has had a series of jobs in Sydney. I have real reservations about her contention that she has better prospects of obtaining suitable employment in north Queensland than in Sydney. I would observe that she chose to lease her home at T in April 2008, with full knowledge that one outcome of these proceedings was that the child may return to live in Sydney.
In any event, this consideration focuses on the likely effect on a child of a change in circumstances. It is not directly concerned with the financial impact on a parent of a change in living arrangements. Obviously, the child benefits from the mother’s current financial security and that fact is not lost on me.
The Family Consultant directly addressed the likely effect on the child if he remains in Dubai with his mother. He also considered the likely effect of the child’s living with the father in Sydney and the mother’s remaining in Dubai. Dr E reported:
“If the court were to allow [the mother] to remain in Dubai with [the child] for another two to three years, the amount of the time the child will spend with his father will inevitably be very limited. Although this may not stress [the child], it will impede the ongoing development of his relationship with his father who is keen to play a paternal role. If the court were to direct [the child] to live in Australia with [the father] and [the mother] were to remain in Dubai, [the child] is likely to exhibit stress by being separated from his mother for long periods. The optimal arrangement for [the child] would be to live with his mother but to spend substantial and significant time with his father. The practicality of such an arrangement is presently problematic and will continue to be so if [the mother] were to move with [the child] to north Queensland on her return from Dubai.”
I have no reason to doubt that Dr E correctly assessed the implications for the child of an extension of time in Dubai and consequent separation from his father. The same observations would apply in respect to the child’s relationship with his paternal family and half sister G. Of course, he would also have a very limited opportunity to spend time with his maternal family in these circumstances.
A similar outcome could be expected for the child if he lives with this mother in north Queensland. The difference would be that he could spend substantial amounts of time with his maternal family. It seems to me that the mother’s proposals to remain in Dubai or to move to north Queensland with the child hold more disadvantage than advantage to his best interests, in terms of this consideration. I rely on the expert opinion of Dr E in reaching this conclusion. Either of these scenarios would impinge on the development of the child’s relationship with his father and paternal family.
The proposal which offers most advantage to the child’s best interests, in terms of this consideration, is the scenario whereby he and both is parents live in Sydney. That arrangement would allow his current relationship with his mother to continue, yet enhance the development of his closeness with and trust in his father.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There are obvious practical difficulties and expense in the child's spending time with his father if he continues to live in Dubai. The flight between Sydney and the United Arab Emirates is of 14 to 15 hours duration and is unlikely to be an enjoyable experience for a young child. Travel between Sydney and far north Queensland is less problematic but still involves distance and expense.
The father travels internationally in the course of his business activities, usually to Italy and China. He said, and I accept, that he will limit his business travel substantially if the child lives in Sydney. As he rightly suggested, there was no incentive for him to refrain from international business travel while he was unable to spend time with the child.
It is true that the father’s business travel affords some opportunity for him to spend time with the child in Dubai. This fact, however, is small compensation for the overall lack of opportunity for the child to develop his relationship with his father.
The mother maintained that the current month-about arrangement is “traumatic” for the child. This opinion was unsupported by any expert evidence. Nonetheless, neither party proposed a continuation of the present regime.
I accept that the child becomes upset at handovers but I believe the father’s evidence that the mother contributes to his distress. It may be that she has a view that the child’s upset at changeovers would enhance her case, as a basis for a change to the current regime. I accept the father’s evidence that the child quickly settles with him after changeovers.
In terms of this consideration, it is obvious that the proposal which offers most advantage to the child’s best interests is the scenario whereby he and both of his parents live in Sydney. The least advantageous proposal is the child’s continued residence in Dubai, followed by the prospect that he lives in north Queensland.
Section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have already referred to my concerns as to the mother’s willingness or ability to foster the child’s relationship with his father. The contents of an email which she sent to the Family Consultant, two days after her interview (exhibit 5), amplify these concerns. She levelled numerous criticisms at the father and his parents and took the opportunity to promote her skills as a parent.
One specific criticism which the mother levelled at the father in her email to Dr E was that he is a user of cocaine and mixes in a circle of people who regularly use drugs. The father said that he was an infrequent user of cocaine and last took this drug on New Years Eve 2007. The mother was not in a position to dispute this evidence, as she has lived in Dubai for most of the period since New Years Eve 2007. In any event I accept the father’s evidence as to his drug use.
The father said that he would reduce his employment hours and carry out some of his work responsibilities from home, so that he could care for the child himself. His mother would assist and he would use the services of a daycarer who has previously looked after G. I am satisfied that the father would make proper arrangements for the physical care and supervision of the child, for whatever period may be stipulated by orders of the court.
The mother’s aunt gave evidence that she would not live in Sydney if the child returns to Australia. She said that she did not enjoy living in Sydney and does not wish to be in the same place as the father. She said that she would return to live in far north Queensland. I have some suspicion that this evidence was intended to bolster the mother’s alternate proposal to live near N with the child.
The only concern which I have about the mother’s two proposals, in terms of these considerations, is her ability to provide for the child’s emotional need for a close relationship with his father and the paternal family. I have real concerns that she underestimates the significance and importance to the child of his father and paternal family, including his half-sister G. Otherwise, I accept entirely that she is capable of meeting his physical and intellectual needs. I am thus of the view that the mother’s proposals to live with the child in Dubai or north Queensland hold more disadvantages than advantages to the child’s best interests, in terms of these considerations.
The most advantages for the child’s best interests, in terms of these two considerations, are offered by the proposal that he and both of his parents live in Sydney. Frequent and regular time with his father would do much to counter any lack of capacity in the mother to meet the child’s emotional need for a close, loving relationship with his paternal family.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother is of Papua-New Guinean heritage. Obviously it is important that the child grows up with familiarity with his cultural and ethnic background. In my view no proposal put by either party would impinge on his right to do so.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
I have dealt already with the evidence relevant to this consideration which, in my opinion, is neutral in terms of advantages and disadvantages to the child’s best interests.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There was nothing to suggest that orders in accordance with any particular proposal would be least likely to lead to the institution of further proceedings in relation to the child. Accordingly, this consideration is neutral in terms of advantages and disadvantages to his best interests.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

Section 60CC(4)(a):has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and

(iii) to communicate with the child; and

Section 60CC(4)(b): has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and

(iii)communicating with the child;

It is clear that the father has taken every opportunity to participate in major long-term decisions about the child’s welfare and spend time and communicate with him. It is less evident that the mother has facilitated the father’s involvement in the child’s life, for reasons to which I have already referred.
The mother registered the child with her sole surname and sought to suggest that she had no choice, due to the father’s lack of cooperation. That explanation may have some validity, given the father’s apparent emotional volatility at the time. It does not account, however, for her current preference that the child retain the sole surname of “Collu”. Neither does it explain her preference to drop the given name “O”, in the event that the child has a hyphenated surname. Both of these proposals seemed to me to indicate a wish to diminish the father’s importance in the child’s life.
As noted, the mother obtained a passport for the child without consulting the father. It may well have been the case that the application form which she used was the only alternative available to her, because there is no reference to the father on the child’s birth certificate. Nothing prevented her from informing the father of the passport application and, in my view, she gave no satisfactory explanation for her failure to do so. Again, I suspect that her actions reflect a desire to diminish the father’s role in the child’s life.
In my opinion, this tendency on the part of the mother to diminish the father’s significance in the child’s life would be allowed to flourish on her primary proposal to remain in Dubai. The same observation applies, to a lesser extent, to her proposal that the child live with her in north Queensland. The scenario of the child and both of his parents being resident in Sydney best addresses this potential threat to the strength of the child’s relationship with his father.

Evaluation of the Proposals of the Parties

It will be obvious from what I have indicated so far that I consider that the mother’s proposal to remain in Dubai with the child offers fewer advantages and more disadvantages to his best interests than any other scenario which has been advanced. I have real concerns as to the strength of her commitment to fostering the child’s relationship with his father and the paternal family. My concerns are exacerbated by the distance and power imbalance between the parties which flow from the child’s residence in Dubai. Further, I am mindful that the child is only three years old and the mother’s proposal would necessitate lengthy delays between periods in the care of his father.
These observations also apply to the mother’s proposal to live with the child in north Queensland, although with somewhat less force because the distance factor is diminished. This proposal has the advantage, over the option of remaining in Dubai, that the child would have much greater opportunity to spend time with his maternal family.
The mother provided no details of her proposal to live with the child in north Queensland. This suggestion seemed to me to be very much an afterthought to her proposal to remain in Dubai. Accordingly, I suspect that this option arose from a desire on the mother’s part to distance the child from his father. I am unattracted to a proposal which so lacked detail and seemed to stem from such a motive.
There are obvious disadvantages to the father’s proposal that the child live with him in Sydney, if the mother remains in Dubai. Clearly the child would be very distressed by lengthy separations from his mother. On the other hand, I am satisfied that the father would do all that he could to promote the child’s relationship with his mother in these circumstances.
For reasons to which I have already referred, I am of the view that the proposal which would best meet the child’s interests would be that he and both of his parents live in Sydney. The mother made no proposal to cover this eventuality in the Minute of Orders submitted on her behalf. She did, however, discuss this option with the Family Consultant and indicated that she would agree, in broad terms, to an equal time arrangement in these circumstances. Nonetheless, I cannot and do not assume that she will leave Dubai if I make orders for the return of the child to Sydney.
In my assessment, the father’s proposed orders essentially do as much as is possible to meet the child’s best interest in each of these situations. I will allow the mother 30 days from the date of my orders to arrange the return of the child to Sydney. It will then be a matter for her whether she remains in Sydney or returns to Dubai or moves to north Queensland.
Because the mother made no proposal to return with the child to Sydney, my orders must be framed in the alternative. I will make orders which address both her being resident in Sydney and, alternatively, that she will remain in Dubai or move to north Queensland so that the child lives with the father in Australia.
The issue of the child’s surname involves an arbitrary decision. I can see no reason why he should be known by a surname which contains no reference whatsoever to his very committed father. I thus propose to make orders for a hyphenated surname. There is no obvious reason for preference of one hyphenated alternative over the other. As the child has been known by the surname “Collu” for the whole of his life, I will order that he henceforth be registered and known as “Rinaldo-Collu”. I certainly will not make an order which has the effect of removing his given name of “O”.
The father sought an order which would prevent the circumcision of the child. Neither party adduced any useful evidence on this issue, which I will therefore leave to them as parents to determine.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: March 2009

[2009] FamCA 461

31 March 2009

Key Legal Topics

Areas of Law

Family Law