Collu and Rinaldo (No 2)
[2010] FamCA 439
•2 June 2010
FAMILY COURT OF AUSTRALIA
| COLLU & RINALDO (NO. 2) | [2010] FamCA 439 |
| FAMILY LAW – CHILDREN – With whom the child is to live – where child has been living between the United Arab Emirates and Australia – where the mother seeks various residence situations based on prospective employment – where the father cannot relocate due to other parenting obligations – equal shared parenting – equal time FAMILY LAW – CHILDREN – Where the mother seeks payment to assist relocation – Where the case was not presented on the basis that the parties were living in a de facto relationship – Insufficient evidence to support that application FAMILY LAW – PRACTICE AND PROCEDURE – Adducing further evidence – Where evidence is unlikely to change the result – Where allowing further evidence to be adduced will be prejudicial – Where an extension of the hearing is not in the child's best interests |
| Child Support (Assessment) Act (Cth) Family Law Act 1975 (Cth) |
| Love & Henderson (1996) FLC 92-653 U v U [2002] HCA 36 |
| APPLICANT: | Ms Collu |
| RESPONDENT: | Mr Rinaldo |
| FILE NUMBER: | PAC | 1204 | of | 2008 |
| DATE DELIVERED: | 2 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 - 29 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Curran |
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Rees, senior counsel |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
Orders
All existing parenting orders in relation to the child Z born … December 2005 (“the child”) be discharged.
The parties have equal shared parental responsibility for the child.
Subject to orders 4, 5 and 6, in the event that the mother lives within a 30 kilometre radius of the child’s school in Sydney, the child shall live with the mother in Sydney at all times except the child shall live with the father:
3.1.Until 9am 4 June 2010;
3.2.During school term from after school Friday (or 3pm up until the child commences school) until before school the next Friday (or 3pm up until the child commences school) in each alternate week, the first Friday to be 11 June 2010;
3.3.Subject to any other order, for one half of all school holidays being the second half in even numbered years and the first half in odd numbered years.
The child shall spend:
4.1.From after school on 2 December (or 4pm if not a school day) until before school on 4 December (or 9am if not a school day) with his mother in 2010 and each alternate year thereafter;
4.2.From after school on 2 December (or 4pm if not a school day) until before school on 4 December (or 9am if not a school day) with his father in 2011 and each alternate year thereafter;
4.3.From 4pm 24 December to 9am 26 December with his mother in 2011 and each alternate year thereafter;
4.4.From 4pm 24 December to 9am 26 December with his father in 2010 and each alternate year thereafter;
4.5.From 9am to 6pm with his mother on Mother’s Day; and
4.6.From 9am to 6pm with his father on Father’s Day
Provided that the mother’s time with the child is conditional upon her being in Sydney at the time.
In relation to the father’s birthday on … October, the child spend time with his father on the weekend closest to his birthday in substitution for his scheduled weekend (as long as it is not the weekend referred to in order 6 if that weekend is closer).
In relation to the mother’s birthday on … October if she is in Sydney at the time, the child spend time with his mother on the weekend closest to her birthday in substitution for her scheduled weekend (as long as it is not the weekend referred to in order 5 if that weekend is closer).
In the event that the mother lives outside a radius of 30 kilometres of the child’s school in Sydney, the child shall live with the father in Sydney and shall spend time with the mother as follows:
7.1.In even numbered years, for all the school holidays at the conclusion of terms 1 and 3, and the second half of the Christmas vacation;
7.2.In odd numbered years, for all the school holidays at the conclusion of term 2 and term 3 and the first half of the Christmas vacation;
7.3.The child’s time with his mother pursuant to orders 7.1 and 7.2 shall be exercised only within the Commonwealth of Australia unless the parties otherwise agree in writing or there is a court order, and the mother must provide the father with an address and contact phone number for the child during the time when he is with the mother;
7.4.Subject to Order 4, for up to six occasions each calendar year, providing:
7.4.1.Each occasion shall be up to two weeks duration but if such two week periods or parts thereof are scheduled consecutively, then:
7.4.1.1.No more than a total of 42 days (six weeks continuously on one occasion per annum) shall be scheduled in such manner; and
7.4.1.2.Periods of 28 days duration or more shall not be scheduled within 28 days of any other period;
7.4.1.3.To remove any doubt, a period of no more than two weeks is to be taken consecutively with any period of school holidays.
7.4.2.The mother shall notify the father in writing at least four weeks in advance of her intention to spend this time, including the commencement and concluding date and time;
7.4.3.The child shall remain in the same general area as his school and the mother is to provide her own accommodation and travel;
7.4.4.The mother during these periods shall be responsible for the child’s day-to-day welfare including accommodation and transport for the child and ensure the child attends his normal schooling and any extra-curricular activities;
In the event that both parties are living in Sydney, the child shall communicate with the parent with whom he is not residing by telephone or Skype on Monday, Wednesday and Saturday between the hours of 6:00pm and 6:30pm or at other times as agreed between the parties. These times shall be the local time of where the child is residing. The parent with whom the child is not residing at the relevant time shall initiate such communication. The parent with whom the child is living at the relevant time shall facilitate such communication and shall:
8.1.Ensure the telephone calls are not made using a speaker phone function;
8.2.Avoid distractions for the child during the call;
8.3.Not interfere with the call and allow privacy during the conversation for the non-resident parent;
8.4.Ensure as far as possible there is good telephone transmission and reception;
8.5.Use a headset when telephone calls are made to/from a mobile telephone call that the child is using;
8.6.That in the event the mother is living at a place that permits the use of “Skype”, that the communication made on Wednesday, if at all possible, be made using “Skype” to provide weekly video communication between the child and the parent with whom he is not living at that time.
In the event that the mother is not living in Sydney, the child shall communicate with the parent with whom he is not residing by telephone or Skype (if the mother has that facility available to her where she is living) on Monday, Wednesday and Saturday between the hours of 6:00pm and 6:30pm or at other times as agreed between the parties. These times shall be the local time of where the child is residing. The parent with whom the child is not residing at the relevant time shall initiate such communication. The parent with whom the child is living at the relevant time shall facilitate such communication and shall:
9.1.Ensure the telephone calls are not made using a speaker phone function;
9.2.Avoid distractions for the child during the call;
9.3.Not interfere with the call and allow privacy during the conversation for the non-resident parent;
9.4.Ensure as far as possible there is good telephone transmission and reception
9.5.Use a headset when telephone calls are made to/from a mobile telephone call that the child is using;
9.6.That in the event the mother is living at a place that permits the use of “Skype”, that the communication made on Wednesday, if at all possible, be made using “Skype” to provide weekly video communication between the child and the parent with whom he is not living at that time.
In the event the mother is living in Sydney, the Director of Child Dispute Services or her nominee facilitate arrangements to enable the parents to attend for appropriate post separation parenting counselling and the parties each do all things to attend at any appointments that are arranged by the provider of that service and each party pay half the costs of that counselling.
Both parties are restrained from removing the child from the Commonwealth of Australia without prior written consent of the other parent or further court order.
The father is to hold the child’s passport in his possession and control at all times and such passport is only to be released to the mother in the event that there was a written agreement between the parties or court order.
The child’s name remain on the airport watch list unless the parties agree in writing or there is a further order.
Liberty granted to their party to relist this matter if there is a dispute between them as to which school the child attends in 2011.
Each of the parties do all things necessary and execute all documents required to ensure that the child is registered and known for all purposes by the surname Rinaldo-Collu.
The parties do all things necessary to execute all documents required in order to have the Father’s name entered on the child’s Birth Certificate.
The child be raised in the Lutheran religion.
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.
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 SYDNEY |
FILE NUMBER: PAC 1204 of 2008
| MS COLLU |
Applicant
And
| MR RINALDO |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Z (“the child”) was born in December 2005. In March 2007 the child moved with the mother to the United Arab Emirates (“UAE”) after Consent Orders had been made allowing the mother to remove the child from Australia for a period of 13 months. The child was due back in Australia on 1 April 2008.
In March 2008 the mother filed an application seeking permission to remain in the UAE for a further two years. Somewhat ironically it is now over two years since that application was made. The father opposed the mother’s March 2008 application. On 18 June 2009, Collier J made interim orders which provided that the child live each second month with his father in Sydney. I infer his Honour only meant this month about arrangement to last until the anticipated final hearing at the end of 2008. A final hearing (“the first hearing”) took place in December 2008 before Stevenson J and her Honour reserved her reasons for Judgment.
At the first hearing, the mother put forward two alternative proposals:
3.1.If the child was permitted to remain in the UAE with the mother for another 2 – 3 years, then the child would spend three periods of one month duration with the father in Australia until the child reached the age of six, with an option for the father spend time with the child in the UAE on up to six occasions, each of a two week duration (that is a total period of nearly six months of the year).
3.2.If the mother was not permitted to remain in the UAE with the child, she and the child would reside in North Queensland. The child would live with the father on three occasions each year, for up to one month on each occasion. It was unclear to me as to whether the mother proposed additional extended time, if the father came to North Queensland, but I infer the mother would have been amenable to such an outcome given that she proposed the child spend time with the father if the child lived in the UAE and his father travelled to the UAE.
At the first hearing the father put forward proposals depending on where the mother was living. In both, the child would reside in Sydney.
4.1.If the mother remained in the UAE or in North Queensland the child would live with the father and spend time with the mother for up to three weeks on three occasions each year until the child turned six, and thereafter half of the Christmas school holidays and all of the other three school holidays. He also provided for the mother to have four occasions where she could spend up to one week with the child in Sydney.
4.2.If the mother lived in Sydney, the child would essentially live with the father for six nights and the mother for eight nights each fortnight before starting school and on a week-about basis once the child had commenced school.
On 31 March 2009 Stevenson J delivered her reasons for judgment and made final orders which were essentially in accordance with the father’s proposals set out in paragraph 4 above. The mother filed an appeal against these orders.
Coleman J stayed Stevenson J’s final orders pending appeal and the interim arrangements were continued where the child lived with the mother and father on a month-about basis in Dubai and Sydney.
The grounds of appeal were:
7.1.That the Judge made an error in law by putting substantial weight on her findings about the mother’s attitude towards the father’s relationship with the child, and the capacity of the mother to provide for the emotional needs of the child.
7.2.That the trial judge made an error of law by failing to adequately weigh up the appropriate considerations to establish the best interest of the child. The judge inadequately assessed the parties’ proposals.
7.3.That the trial judge made an error of law by failing to adequately consider s 65DAA by considering whether it was in the child’s best interests to spend equal or substantial time with both parents.
On 25 March 2009 the appeal against the orders made in the first hearing was upheld and the matter has been remitted by the Full Court for redetermination. The child is now 4 and a half years old.
From July 2008, when the child was two and a half years old, up until shortly before the rehearing before me, the child continued to travel each month between Dubai and Sydney, but that has recently been stopped. Both parties are in Australia awaiting the outcome of the second hearing.
APPLICATIONS
Mother
Before me at the final hearing, the mother sought orders that were set out in her case outline. At a mention before me on 26 May 2010 I made an order giving the mother leave to reopen her case for the purposes of amending the orders that the mother sought on a final basis. The following sets out the orders that appeared in the mother’s case outline as amended as a result of the leave given on 26 May 2010:
1The Mother have sole parental responsibility for [Z] (“[the child]”), including responsibility for major or long-term decisions and possession of [the child’s] passport, other than when he travels with the Father in accordance with order 4 herein, when the passport shall remain with the Father.
2[The child] shall live with the Mother.
3For the purposes of the Mother obtaining employment or an income, the Mother is permitted to live with [the child]
at any location wherein the United Arab Emirates, Qatar, Papua New Guinea or Australia, in the order of preference as written herein in the event that not all locations are permitted, provided that:(a)There are at least two (2) commercial flights per week to a nearby town/ city, with local surface travel to/from the airport not normally exceeding two and a half (2.5) hours; and
(b)The shortest commercial actual flight duration, when combined if
connectionsconnecting flights are necessary, is not greater than2216 hours from Sydney; and(c)There are age-appropriate schools in the area that permit [the child] to attend whilst living with the Mother; and
(d)There are adequate medical facilities in the area that permit [the child] to receive medical attention if required, other than specialist medical services; and
(e)Telephone communication is possible and short-term accommodation is available;
3A.In the alternative to (3), for the purposes of obtaining employment or an income, until 31 December 2010, the Mother is permitted to live with [the child] in United Arab Emirates (UAE), Qatar, Papua New Guinea, or Australia
or the United Kingdom for the purposes of employment or earning an incomein the order of preference as written herein in the event that not all locations are permitted.3B.That in the event that the mother becomes unemployed, the mother is permitted to live with [the child] in the general vicinity of her family in north Queensland, Papua New Guinea or Darwin.
3C.In the alternative to order 3
and3A and 3B, the Mother is permitted to live with [the child] in the general vicinity of or with the Mother’s family in north Queensland, Papua New Guinea or Darwin.3D.In the alternative to order 3, 3A, 3B and 3C and in the event that [the child] is ordered to live in Sydney:
(a)[The child] shall live 14 days with his mother and then 7 days with his father during school terms, with change of residence occurring at 2.30pm on Friday, at his school;
(b)[The child] shall spend:
i. His birthday with his mother in 2010 and each alternate year thereafter;
ii. His birthday with his father in 2011 and each alternate year thereafter;
iii. All of Christmas Day with the parent with whom he did not spend his birthday in any given year;
(c)[The child] shall spend the first half of all the school holiday periods with his mother in 2010 and the second half with his father and this shall alternate each year thereafter;
3E.That in the event that [the child] is ordered to live anywhere other than with the mother in the UAE, the father shall pay the mother AUD $10,000 being the relocation and re-establishment costs, into the mother’s nominated bank account within fourteen (14) days of the date of this order being a once-off payment and not in lieu of any other payment.
4That in the event that [the child] is not ordered to live in Sydney, [the child] shall live with the Father in Sydney:
(a)During all school vacations except for those in December as follows:
(i) Excepting one (1) day after commencement and one (1) day prior to the conclusion of any vacation period between 7 - 14 days duration including weekends, and
(ii) Excepting three (3) days after commencement and two (2) days prior to the conclusion of any vacation period between 15 -29 days duration including weekends, and
(iii) Excepting 14 days after the commencement and two (2) days prior to the conclusion of any school vacation of 30 days or longer duration including weekends;
(b)For every second year starting from 2010, half the December vacation to include Christmas Day;
(c)For every second year starting in 2011, for half of the December vacation to include [the child’s] birthday, but if [the child’s] birthday does not fall within the school vacation the Father may spend time with [the child] in accordance with Order 5.
5Should the Court make Order 2, 3, 3A, 3B, 3C and/or 4 hereof, the Father may spend time with [the child] at other times whilst [the child] is normally living with the Mother, provided:
(a)Such time shall be up to
six (6)seven (7) occasions each calendar year other than 2010, when it shall befour (4)three (3) occasions;(b)Each occasion shall be up to two (2) weeks duration
and not scheduled within two (2) weeks of any other period with [the child]but if such two (2) week periods or pats thereof are scheduled consecutively, then;(i) No more than a total of 42 days (six weeks continuously on one occasion per annum) shall be scheduled in such manner; and
(ii) Periods of 28 days duration or more shall not be scheduled within 28 days of any other period; and
(iii) [The child] shall spend overnight time from 2.30pm or end of school hours with the mother on the 22nd, 29th and 35th days and nights, where the mother delivers [the child] the following morning (of the 23rd, 30th and 36th day) to school during a school week, or to the father at 9am otherwise; and
(iv) To remove any doubt, in the event such periods are scheduled adjacent to a school holiday where [the child] shall go to Sydney with the father in accordance with order 4 herein, [the child] shall spend time with the mother in accordance with order 4(a) herein;
(c)The father shall over at least 14 days make attempts in writing to seek agreement with the mother (without an obligation to obtain agreement) as to the dates for his
timeperiod with [the child], and following this 14 days shall then notify the mother in writing at least four (4) weeks in advance of the start and end dates for him to spend thistimeperiod with [the child], including the commencement and concluding date and time, and his local address where [the child] will be living and contact telephone numbers;(d)That [the child] shall remain in the same general location (town/area) as the Mother, and the Father provide his own travel and accommodation;
(e)The Father shall be responsible for [the child’s] day-to-day welfare including accommodation and local transport for [the child], and ensuring [the child] normally attends his schooling and any extra-curricular activities;
(f)The period does not include the Mother's birthday as celebrated on […] October or Mother’s Day as observed in the local area, or if it does, [the child] is returned to the Mother for those days at 9am and resumes time with the Father at 9am the following day;
(g)The Father does not seek to learn the location of, or visit or enter or remain within 200 metres of the Mother's residence.
6That:
(a)The Father shall pay AUD $2,630 to the Mother within 7 days, being for [the child’s] school fees;
(b)In the event that the Mother or Father does not have an employment contract or employment-related benefit that provides for [the child’s] education and medical costs, the Father and Mother shall equally contribute to all of his education and medical costs respectively, and the Father shall pay the Mother for such costs within 7 days of the Mother providing documentation to him about expenses due or incurred;
(c)The Mother shall have sole responsibility for selecting [the child’s] schools and kindergartens, but will consult with the Father regarding school and curriculum selection.
7The Father is responsible for all matters in relation to [the child’s] travel to live with him, including:
(a)Booking and payment of return travel for him and [the child];
(b)Collecting [the child] to travel to Sydney and returning [the child] from Sydney to the Mother;
(c)Notifying the Mother or her solicitor of [the child’s] travel details in writing at least 14 days ahead of travel dates, including the date, time, flight number and airline for all flights, meeting location for [the child’s] handover. The Mother shall promptly confirm such advice received from the father;
(d)Returning any items provided by the Mother to him or [the child] for the purposes of assisting [the child’s] travel or improving his comfort, including but not limited to luggage, food travel packs, clothing and footwear.
7AIn the alternative to order (7), the parent to whom [the child] will travel to live with shall be responsible for:
(a)Booking and paying for all travel arrangements for [the child’s] travel;
(b)Collecting [the child] and travelling to Sydney if time with Father is about to commence, or collecting [the child] and travelling to the Mother's home location if time with the Mother is about to commence;
(c)Notifying the other parent of [the child’s] travel details in writing to the other parent or their solicitor no less than 14 days prior to the travel date, including flight number, airline, departure time, meeting location for [the child’s] handover. The other parent shall confirm such advice promptly;
(d)Returning any items provided by the other parent at previous changes in residences for the purposes of assisting [the child’s] travel or improving his comfort, including but not limited to luggage, food travel packs, clothing and footwear.
8The parent
to whom [the child] will travel to live withwho is accompanying [the child] during travel shall be responsible for ensuring that [the child’s] allergy medication accompanies him during his travel and is stored appropriately at all times.9That on any occasion when [the child] is passing from one parent to the care of the other parent, his passport (if necessary), appropriate food for travel, and any medication additional to [the child’s] allergy medication is provided to the parent to whom [the child] is going to live with by the other parent.
10That where an arrangement is planned for [the child’s] child care
is plannedwhere the carer is someone other thanaeither parent or [the mother’s aunt], whether for fee or reward or not, either parent shall make available the following details to the other regarding any person/s whose care [the child] is entrusted with, in writing at least 48 hours before [the child] is placed into such care:(a)Name of person designated as responsible for [the child] in absence of either parent ("designated responsible person");
(b)Contact telephone number;
(c)Name, location and phone number of the organisation, where the care is performed by a person employed by an organisation to do so;
(d)Address where the care is to occur, if anywhere other than either parent's home address;
(e)Other adults or children normally present or living at that location when the care is to occur;
(f)Duration and dates that [the child] will be there;
(g)Advice whether the designated responsible person has received education in allergy management as it relates to [the child], and whether his medication is kept on the premises and available to the person designated as responsible for him.
11That each parent shall have telephone communication on Monday, Wednesday and Saturday of each week when [the child] is not living with that parent between the hours of 6pm and 6.30pm local time
ofwhere [the child] is living. Such telephone calls shall be instigated by the parent with whom [the child] is not living at the time. The parent with whom [the child] is living shall facilitate such calls and shall at least:(a)Ensure telephone calls are not broadcast or made using a "speakerphone" function, unless this is by prior agreement between both parents in writing;
(b)Avoid distractions for [the child] during the call;
(c)Not interfere in the call, and allow privacy during the conversation for the non-resident parent;
(d)Ensure so far as possible there is good telephone transmission reception;
(e)Use a headset when telephone calls are made to/from a mobile telephone that [the child] will be speaking on, to limit his exposure to electric and magnetic fields;
(f)In the event that the Mother lives in a state that permits the use of "skype" and where an adequate internet service is available to support its use, both parents shall ensure that the calls on Wednesdays as provided by this order are made using "skype" to provide weekly video communication.
12The Father shall be restrained from contacting the Mother's employer or contacting the Mother using the Mother's work email address or landline telephone, except in event of an emergency affecting [the child].
13The Father shall sign all documents and do all things required to assist [the child’s] travel and residence in the country nominated by the Mother, including such documents or things required for any enrolment in schooling, visas or issue of a new passport, without delay.
14[The child] shall be raised as a Lutheran. Both parents shall have individual responsibility for encouraging and supporting this.
15That the Father pay the Mother’s costs of applications filed on 18 November 2009, 1 February 2010 and 8 March 2010 as well as the costs of hearings on 2 December 2009, 1 February 2010, 19 March 2010 and 26 March 2010.
At the commencement of the hearing Counsel for the mother was asked to confirm the mother’s proposal in descending order of preference. At that point it seemed applications 3(a)–(e) of the document contained in the mother’s case outline would not be pursued.
Counsel for the mother indicated that the mother’s primary proposal would be that she live in one of the seven UAE countries. Her second proposal would be that she live in Qatar. The mother’s third alternative proposal in the amended proposal would be to live in Papua New Guinea which is home to a lot of her family, including her father (this was the fourth proposal at the hearing). Her fourth proposal would be that she live in Australia and that would have a condition with it that she would be permitted to live anywhere in Australia where she could obtain employment. Pressed further, Counsel for the mother said that the mother would primarily like to live with her mother in a place called A which is one and a half hours out of Cairns.
Notwithstanding the fact that counsel for the mother conveyed his clear instructions regarding the four proposals above, the Mother indicated in oral evidence that what she really wanted was order 3 as sought in the case outline that is she wanted to retain the right to go anywhere in the world, subject to the ‘five minimum conditions’ contained in paragraphs 3(a) - (e) of her case outline document. This freedom to relocate would be supported by way of her application for sole parental responsibility (contained in Orders 1 and 6(c) as sought by her).
The mother has changed her position again by the Amended Proposed Final Orders of the mother, of 10 May 2010, extracted above. The mother has removed the words “at any location where” and changed in air flight times from 22 hours to 16 hours. The mother’s formal application is that she no longer wants a ‘blank cheque’ to live almost anywhere in the world. That amended formal application will have to be considered in light of her sworn evidence. The mother has said she filed the Amended Application in “an attempt to mitigate an unfavourable outcome.”
The Amended Application also refers to the mother living in Darwin. The mother has some family in Darwin. It is unclear what work the mother would propose doing in Darwin.
It can be seen that if the child lives with the mother overseas, the mother now proposes that the child spend time with the father:
16.1.For each school holiday period, minus days at the beginning and end to account for jetlag, increasing with the length of holiday period;
16.2.Half of the December holidays to account for either Christmas or the child’s birthday
16.3.Visits of two weeks on seven occasions per year in the child’s residential locality, and these periods could be aggregated up to six weeks (combining three two week periods), subject to a number of conditions.
The mother records term dates in the UAE are:
17.1.April – June 2010: term 3
17.2.September – December 2010: term 1
17.3.January – March 2011: term 2
The mother has also made an Application for the father to pay money towards the child’s school fees.
Father
The father seeks the following parenting orders in his Response dated 16 April 2010:
1.That all existing parenting orders in relation to [Z] born […] December 2005 (“[the child]”) be discharged.
2.That the parties have equal shared parental responsibility for [the child].
3.That [the child] live with the Father in Sydney.
4.In the event that the Mother lives in Dubai, Qatar, North Queensland or any other destination outside the Commonwealth of Australia [the child] shall spend time with the her as follows:
4.1In even numbered years all the school holidays at the conclusions of terms 1 and 3 and the second half of the Christmas vacation.
4.2In odd numbered years, for all the school holidays at the conclusion of term 2 and Term 3 and the first half of the Christmas vacation.
4.3For up to four periods, each one of one week’s duration in Sydney upon the Mother’s providing 28 days written notice of the proposed dates to the Father.
4.4At other times as agreement between the parties.
5.That [the child’s] time with the Mother pursuant to Order 4 herein shall be exercised only within the Commonwealth of Australia and the Mother must provide to the Father an address and contact telephone number of [the child] during time spent with the Mother.
6.In the event that the Mother resides within 30 kilometres of [the child’s] school in Sydney, [the child] shall live with the Mother at all times other than for periods specified below during which time he shall live with the Father.
6.1From after school Friday until before school the next Friday in each alternate week.
6.2For one half of all school holidays being the second half in even numbered years and the first half in odd numbered years.
7.That each of the parties do all things necessary and execute all documents required to ensure that [the child] is registered and known for all purposes by the surname [Rinaldo-Collu].
8.That the parties do all things necessary to execute all documents required in order to have the Father’s name be entered on [the child’s] Birth Certificate.
9.During periods that [the child] is living with the Father [the child] shall communicate with the Mother by telephone or Skype on Tuesday, Friday and Sunday between the hours of 5 and 5:30pm or other times as agreed between the parties and the Mother shall initiate such communication.
10.That the Mother is restrained from removing [the child] from the Commonwealth of Australia without the prior written consent of the Father.
11.That the Father is to hold [the child’s] passport in his possession and control at all times and such passport will only be released to the Mother in the event that there is a written agreement to do so.
12.That the name [Z] born […] December 2005 be removed from the Airport Watch List.
The father only made one proposal and that is based upon the child living with him in Sydney. He is not prepared to live in the UAE because of the relationship he has with G who is aged 10 and who lives in a flexible arrangement between the father and G’s mother in Sydney. That arrangement from a practical point of view seems on the evidence of G’s mother to be an equal time arrangement. The father did not set out what proposal he would make if Z lives away from Sydney. I am, in that event, only left with the mother’s proposals for Z seeing his father in the UAE.
The father proposes in his application that if the mother is not in Sydney, the mother sees the child for four periods, each one of one week’s duration, together with two out of three school term holidays and half the Christmas holidays in Sydney.
The father says of his ability to live in North Queensland (in para 251 of his affidavit) “If I lived in Dubai, Qatar or North Queensland, I would have to fund my accommodation, living costs and regular travel back to Sydney to see [G]”
He later says in para 253 “I could not live in Dubai or Qatar and abandon my responsibilities towards [G]”. It was part of the father’s position that he wished to continue fulfilling his parenting responsibilities to G.
He also worries about Z’s relationship with G if Z lived in Queensland (or by inference the Northern Territory or anywhere more distant).
He says in paragraph 258 that if Z and the mother lived in Nth Qld and the father lived in Sydney that he would face the same difficulties as if they lived in the UAE or Qatar – that is, difficulty in maintaining a relationship with the child, expense of airfares and accommodation to spend time with the child, the arrangement threatening his employment and his relationship with G due to frequent time away. He reiterated this in cross examination and said he would not agree to Z living in North Queensland.
The mother indicated both in the current proceedings and the hearing of December 2008 that if the Court was to order the child to live in Sydney with his father then the mother would return to Sydney.
CONSENT ORDERS
At the commencement of proceedings the mother and father had agreed upon certain matters and consent orders were made in the following terms on 27 April 2010:
27.1.That each of the parties do all things necessary and execute all documents required to ensure that the child is registered and known for all purposes by the surname Rinaldo-Collu.
27.2.That the parties do all things necessary to execute all documents required in order to have the Father’s name entered on the child’s Birth Certificate.
27.3.That the child be raised in the Lutheran religion.
27.4.That each parent shall have telephone communication on each Monday Wednesday and Saturday when the child is not living with the parent, between the hours of 6pm and 6:30pm in the place where the child is living. Such telephone calls to be instigated by the parent with whom the child is not living and facilitated by the parent with whom he is living.
Given that I will be discharging all previous orders, I will be incorporating these orders into the final orders which I make.
DOCUMENTS RELIED UPON
The mother wished to rely on the following documents:
29.1.Mother’s Case Outline, superseding the orders sought in the Mother’s Initiating Application.
29.2.Affidavit of the mother sworn 23 April 2010, filed in court in 27 April 2010.
29.3.Mother's Financial Statement filed 22 April 2010
29.4.Affidavit of the mother’s aunt J filed 5 February 2010
29.5.Affidavit of Ms P filed 5 February 2010
29.6.Affidavit of Mr L sworn 25 April 2010, filed in court 27 April 2010.
29.7.Affidavit of Mr M filed 10 November 2008
29.8.Affidavit of Mr H filed 5 November 2008
29.9.The mother sought to rely on the following tendered documents:
29.9.1.Transcript of Proceedings of the Full Court 4 March 2010 (specific parts of this transcript are referred to later in these reasons)
29.9.2.Consent Order 12.12.06
29.9.3.Order of Judicial Registrar Johnston 31.3.08
29.9.4.Order of Justice Collier 18.6.08
29.9.5.Interim Orders Justice Stevenson 5.12.08
29.9.6.Orders on Stay Application by Justice Coleman
29.9.7.Order by Full Court declining to amend interim orders 1.9.09
29.9.8.Order of Justice Coleman 2.12.09
29.9.9.Order Justice Collier 1.2.10
29.9.10.Full Court Order 4.3.10
29.9.11.Order Justice Collier 19.3.10
29.9.12.Full Court Order 25.3.10
29.9.13.Full Court Reasons 25.3.10
29.9.14.Order Justice Collier 26.3.10
29.9.15.Order Justice Collier 31.3.10
29.9.16.Directions Order Justice Watts 16.4.10
29.9.17.A document entitled ‘Amended Proposal Final Orders of the Mother, 10 May 2010’
The father relies on the following documents:
30.1.Amended Response filed 16 April 2010
30.2.Affidavit of the Father filed 15 April 2010
30.3.Father’s Financial Statement filed 16 April 2010
30.4.Affidavit of Ms F (the father’s former wife) filed 16 April 2010
30.5.Affidavit of the paternal grandmother filed 18 March 2010
30.6.Affidavit of Mr R filed 18 March 2010
The parties agreed by consent to tender the transcript of proceedings before 1, 3, 4 December 2008 – and I have considered those transcripts to the extent to which they record the oral evidence of the mother, father, the paternal grandmother and the mother’s aunt J.
The Court also has a Family Report from Mr O dated 23 April 2010.
CREDIT
Mother
The mother did not make a good impression in the witness box. Whilst obviously an intelligent woman, she often had difficulty focusing upon the questions asked and providing simple answers to simple questions. I often found the manner in which she gave her answers to be evasive. There were a number of issues where I find the mother gave evidence untruthfully.
The family report interviews were conducted on 14 and 16 April 2010. On 7 March 2010, while on a holiday in Queensland before these interviews, Ms J sent the mother an email saying that she did not wish to return to the UAE. Ms J, the mother’s aunt, was a member of the mother’s household in UAE and played a central role in the child’s care when he was with his mother. This email is in evidence as exhibit G. The mother did not report this to the family consultant in her interview, instead mentioning the advantages of having Ms J with her to help in the child’s care. The mother said she did not mention it because after receiving the letter from Ms J she was ‘shocked’ and telephoned her to discuss the issue. She asserted that Ms J changed her mind before the interviews and said she would return to the UAE with the mother and child. This directly conflicts with Ms J’s interview with the family consultant where she said she ‘did not know if she would return to Dubai and did not know what is happening’. When asked by the family consultant whether she would return to the UAE if only to train a new nanny, Ms J replied “That is a possibility and I think it might be so”. The mother said she had discussed this option with Ms J and that Ms J would return to the UAE until the end of the year for that purpose. I find that the mother created a deliberately untruthful impression in her family report interview by pretending there was no change to Ms J’s availability to provide child care for the child.
Also in the family report interview in April 2010, the mother appeared to make untruthful comments about her current employment. At paragraphs 20 and 21 of the Family report, Mr O states:
“[The mother] advised she had been working in Dubai on a three year contract and initially gave notice as she had an offer to work in Doha. She commented she had ‘been head hunted’ by a company in Qatar but was still currently working in Dubai as she was concerned that her option to take up the contract in Doha might expire due to the current court matters. She stressed that both contracts made specific provisions for [the child] for medical and educational costs and return airfares once a year and other benefits. She considered the offer was an ‘amazing recognition’ of her work and of her status as a single mother in a Moslem country, to have been offered the prestigious position.
[The mother] reported that she works in environmental management with the development company ‘[N Company]’ in Dubai and could not obtain permanent work in her professional field for three and a half years in Sydney. She stressed that the work in Dubai offered her permanent employment plus relocation cost and a package for [the child] and similar conditions are offered for her employment in Qatar. She noted that she had not had similar offers or work opportunities in Australia. She stated ‘I would rather stay in Dubai as I don’t want to uproot us again’ and advised she has an option to work in Dubai on a new project. She believed that the experience and status of working with such large scale world renowned development in a significant opportunity for her. She noted that if ‘other offers come up’ she would consider them and might ‘drop back to part time’ employment. She considered it might be better for her to continue to stay in Dubai if her work could continue ‘as there are more flights in and out of Dubai and it is a transport hub’.”
Part of the information recorded by the family consultant is plainly incorrect. The mother had not given notice. The mother had been retrenched from her job in Dubai in September 2009, and had known about the imminence of that retrenchment since July 2009. The first contract and its medical, educational, oral and travel benefits were not ongoing. The mother’s current employment was not permanent.
The mother suggested the family consultant was mistaken and confused the mother giving notice with the mother being given notice. In cross-examination, the family consultant checked his notes and confirmed that his report was a correct representation of what the mother had told him during the interview. It is inherently unlikely Mr O would have mixed this up, having regard to the context in which the statement was being made by the mother. He also mentioned that the mother was ‘hesitant’ when answering questions about her employment.
Counsel for the wife said that I would infer the mother would not be so foolish as to ‘cut her own throat’ by misleading the family consultant and that she had nothing to lose by telling the report writer about her employment. Senior counsel for the father quite rightly submitted that the mother ‘had everything to lose’ if she did not demonstrate stability to the report writer. Also the mother wishes to remain overseas, and is motivated to emphasise the strength of her employment prospects overseas. The mother was placed in the witness box during final submissions to give her version of what she had told the family consultant. I am not persuaded by this sworn evidence and am conversely rather troubled by it. I find that the mother deliberately mislead the family consultant in regards to the nature, permanence and benefits of her employment. I discuss later the fact that the mother also kept her retrenchment from the father and the Court.
There is a third piece of untruthful evidence by the mother, which is connected to the family report interviews. During the interview, the child asked “is [O (the father)] here?” to which the mother responded “not now, we are having a little game”. In oral evidence the mother said that she followed this comment by telling the child words to the effect of “no don’t say that” in a whispered voice. The family consultant was questioned about this assertion and responded that he did not hear or see any whispered response other than what he recorded. The family consultant said he couldn’t ‘categorically’ say that nothing further was said, but noted that the reception and acoustics were clear when he was observing the mother and child. Although the family consultant stressed he could not categorically say that a whisper didn’t occur I find on the balance of probabilities that it did not. The mother was concerned about being seen as failing to discourage the child from using the father’s name rather than ‘Dad’ or ‘Daddy’, and covered this concern with an untruth.
Having regard to Ms P’s evidence, I do not accept the mother’s evidence that she has never referred to the father by his first name in her conversations with the child.
For a period of time, the only phone in the mother’s house in the UAE was her personal mobile. This meant that the father could not contact his son except through the mother, and only when the mother was home from work. The father therefore gave Ms J a mobile during his visit in July 2007 which he used to telephone the child. The mother removed the sim card from this mobile. She said that she took this action because “Ms [J] complained to [the mother] of the number of calls…she said there were a lot of calls”. The mother said she herself had experience of the father calling up to 16 times a day. When questioned further the mother added that that had only happened once and that in general the father might speak to the child once every one to two days, but the mother ‘wouldn’t be surprised’ if he called 2 to 3 times each day to achieve this. Whilst the father agrees he may have made regular calls when the mother first moved to the UAE in March 2007, I find the mother has exaggerated the number of calls after the mobile was given to Ms J in order to justify her behaviour in removing the sim card. The mother’s evidence and it does not seem to be corroborated by Ms J. When Ms J was asked in cross examination about the mobile she said that when the phone rang the child would excitedly call out “Daddy Daddy!” She further explained that it was the only phone in the house and if she needed to make an emergency call of some sort she would have to visit a neighbour or the building’s security. Ms J did not mention in her evidence during the second hearing that she complained about a lot of calls from the father on the mobile. I do note that Ms J made some comment about this in the December 2008 hearing, saying “he gave me the phone but it ring all the time – [the mother] said it and [the mother] took the sim card out of it.” It is unclear from this statement whether Ms J or the mother was saying the phone rang ‘all the time’, however I note that Ms J also said that the phone rang a lot when the mother and child first moved to the UAE, and this was specified as 2 to 3 times a week. That level of contact does not justify the mother giving evidence that the father called “a lot” and so much so that it justified the mother’s action in removing the sim card from the mobile phone the father had provided, so that the father could not make calls to the mother’s residence.
The following findings are also made later in this judgment and should be noted here in relation to the mother’s credibility:
42.1.The mother gave a disingenuous reason as to why she did not give address of her employment in the UAE.
42.2.The mother gave an implausible explanation as to why it was not possible for the child to spend time with his father in June 2008.
42.3.I find that the mother has selectively presented email correspondence, as discussed later. I do not accept the mother’s explanation to the meaning of the email dated 8 January 2008.
42.4.I do not find that the mother’s stated fears that the father will “intimidate, harass, or do worse” and “use aggression towards [the child]” are genuine.
42.5.The mother has given inconsistent evidence about the father’s willingness in 2008 for her to go overseas for three years.
42.6.The mother, in my view, failed to comply with an order to produce financial records, notwithstanding my warning that she should do so. I do not accept her reasons for not doing so.
Father
Counsel for the mother suggested that the father was a ‘tricky and experienced’ litigant who ‘played dumb’ and feigned lapses in memory. There were many occasions where the father said he did not remember a telephone call or an email, but I find this was a result of the examination style of the mother’s Counsel. Frequently the father was asked to recall a specific email or letter of a specific date without being shown the relevant document. In December 2008 the father said that there here ‘thousands’ of emails. Asking the father to recall one example from such a wealth of correspondence is problematic. I do not make the finding that the father was evasive when he failed to remember the specific contents of a particular email or letter.
Counsel for the mother also refers to a number of ‘lies’ that the father told. The first was the inability of the father to remember a telephone conversation with the mother soon after the Court hearing on 4 March 2010. The mother had court ordered phone contact with the child that evening but the father was in court and then with his lawyers, and the child was at the home of the father’s former wife. The father initially said he did not remember a telephone call from the mother, then that he had a missed call, then that he had a text. The father said in any case, the mother knew that the child was at the former wife’s house and the mother had the telephone number there. The mother says she called the paternal grandmother who spoke to the father while the mother was still on the phone, but that the father still did not call her back. She says she was never told the child was at the home of the former wife. The father agreed he had received a call from the AFP saying they had been telephoned by the mother with concerns for the child so the father collected the child from the former wife’s house and the AFP met him at home. I am unable to find that the father “lied” in the evidence he gave.
Next Counsel for the mother referred to the father’s evidence about the incident of 19 February 2007. The father refers to this incident briefly in his primary affidavit, saying that he sat on the end of the mother’s bed, who he thought was pretending to sleep. He then gave the bed head a light shake. In oral evidence, the father said he flicked the light a few times then woke the mother up by shaking her lightly, which he then altered to ‘tapping’ her lightly. The mother hit him with a pillow and kicked him twice.
In the proceedings in December 2008, the father said he did not remember this incident well, but that he thought he wasn’t drinking, and if he was it would only have been one to two drinks. He texted the mother to come out to talk and she refused so he entered her room. When she ignored him he flicked the lights on and off then sat on the bed. When she continued to ignore him he said he shook the mother, but changed this to say he tapped the mother. He said he may have shaken the bed and he may have sat on the bed, but doesn’t remember. He admitted he threw a cushion at her but does not remember her kicking him off the bed. I see no major discrepancies in his evidence, certainly not enough to accept the suggestion of the mother’s counsel that he lied.
The next incident about which the father is said to have lied took place on 1 March 2007, the day the mother and child left for the UAE. The father’s affidavit says he became quite emotional that the mother was taking the child and was yelling loudly. He tried to block their departure by calling the Federal Police and refusing to give the mother her suitcases. He says he regrets his behaviour.
In oral evidence the father was asked about the Power of Attorney he asked the mother to sign that day. This document was to allow him to sell the R property. The father says he was upset and had told the mother she had to sign the Power of Attorney or he wouldn’t allow her to leave. This is mentioned in the father’s affidavit at paragraph 235 where he says he had asked the mother to sign the Power of Attorney a number of times in the preceding 3 months, and this was just one element that caused the argument to escalate that day. In oral evidence the father said he had discussed the requirement for legal documents with her earlier but possibly only presented the specific document to her that day.
The mother’s account is not dissimilar. She says the father wished her to sign the Power of Attorney and when she declined he refused to drive her to the airport and tries to stop her from retrieving her luggage. However the mother also says the father pushed her away from the door behind which he put the luggage, and that she had not seen the Power of Attorney document before, and that this was the source of the argument.
The father’s evidence during the December trial was quite consistent. He said that discussions had occurred about the mother signing over the property to the father so he could sell it, and that the mother had agreed ‘in principle’ to sign the necessary document. The father only obtained the necessary document, which he discovered to be a Power of Attorney, a day or so before the mother’s departure. This was because she had given him 3 days notice for her departure and his lawyers had to draw up the document. The father admitted he told the mother she couldn’t leave until she’d signed the document, but this was just one element of the heated arguments, because he had changed his mind about them leaving. He admits to putting the suitcases behind a closed door and standing in front of the door, but denies that he pushed the mother or that she pushed past him or that there was a struggle over the phone. The father denies he was threatening. The police and lawyers were called.
I find no major discrepancies in the father’s evidence which cause me to doubt in the father’s credit, arising from his version of this incident.
In Court on 4 March 2010 the father acknowledged that he considered himself bound by the orders of 15 May 2009, in essence requiring that monthly changeovers were to occur on the 11th of each month. The mother says the father wrote to her on 4 March 2010 telling her that he would not be returning the child. This issue is dealt with more thoroughly in relation to breaches of orders below. Representing to the Court that you intended to do one thing and then at a later time choosing to do another, reflects poorly on the father. Having said that, both parties alleged the other had breached orders, and I later discuss those issues fully.
An inaccuracy was supposedly noted in the father’s affidavit where it was stated that the father owned 2 shares in CP Pty Ltd. I note that the financial statement does not record that the father owns two shares, but that space is blank. The father did say in oral examination that he owned two shares. Counsel for the mother noted that official documents put his ownership at 10 shares. The official documents are annexed to the mother’s affidavit. The father readily agreed that if that is what the documents say then that must be the case – he said they had very little value and he was unaware of exactly how many shares there were.
Conclusions when comparing the credit of the mother and father
When comparing the presentation of the mother and father, the father impressed me as a more truthful witness. As I said I often found the mother’s manner in answering questions to be evasive. At times her evidence was untruthful. Where there is a direct difference between the evidence of the mother and that of the father, I prefer the evidence of the father unless I indicate otherwise.
CHRONOLOGY
The father was born in 1967 and is aged 42 years. The father is a sales and marketing manager in a family company, which probably has the name CP Pty Ltd (It is referred to differently in different parts of the evidence).
The mother was born in 1973 and is aged 36 years. She is an environmental engineer.
The father’s first child G was born in December 1998. She is currently aged 11 years. The mother is Ms F. The father and Ms F were divorced in 2002.
The parties commenced a relationship in 2003.
In 2003 the mother fell pregnant and the parties agreed to terminate the pregnancy. This occurred on two further occasions in 2004.
The mother purchased a house in T, subject to a mortgage in August 2003.
In 2005, after the mother fell pregnant for the fourth time, a decision was made to have the baby. The father moved in to the mother’s T property.
The parties bought a R property in joint names in April 2005. The father maintained this as a separate home but still spent most nights at T.
The only child of the relationship, Z, was born in December 2005 and is aged 4 years and 5 months old. The child was born in Cairns where the mother’s family resided. The maternal grandmother was a midwife. The father was in Cairns for the birth.
On 10 January 2006 the mother and father had a conversation about the registration of the child’s birth. They disagreed about the child’s surname.
The mother moved to T NSW with the child on 8 January 2006. There is disagreement about whether the father lived with the mother until April 2006 as the mother contends, or whether he lived between the T property and the R property. Ms J, in the first trial, also said the father moved out in April 2006. The father said he moved to R for Capital Gains Tax purposes but would spend nights back at T. Annexed to the father’s primary affidavit is an email from the mother dated 22 May 2006 where the mother says “let me slug a bit (half) of my mortgage off, and I’ll marry you the very next day.” I do not need to determine a precise date of separation.
In March 2006 Ms J (the mother’s Aunt) moved to Sydney from North Queensland to assist the mother in the care of the child.
The mother registered the child in her surname without the father’s signature in March 2006. The father’s name was not on the birth certificate.
The mother first raised the issue of moving with the child to the UAE in late July 2006.
In September 2006 the mother was informed that her contract with Energy Australia would not be renewed after February 2007.
In September 2006 the child was discovered to have a serious peanut allergy. The mother invited the father to attend the specialist appointment regarding the allergy and an allergy training seminar. The mother attended both but the father has business to attend to in Perth.
The mother obtained a passport for the child on 19 September 2006 without consulting the father.
On 30 October 2006 the mother was offered a three year employment contract in Dubai, UAE. The mother says this employment was purely a financial decision, doubting her ability to otherwise obtain full time employment. This was accepted by the father at the time.
Negotiations between the parties about the mother going overseas with the child resulted in Consent Orders being made on 12 December 2006 providing that the mother would take the child to the UAE for a period of 13 months. The mother was to return the child to Australia by 1 April 2008.
The maternal grandmother suffered an aneurysm and heart attack in January 2007 which delayed the mother’s UAE departure. In February 2007 the father invited the mother, child and Ms J (the mother’s aunt) to stay at the R home until she departed, which she did. The mother had already rented out her T home.
On 19 February there was an incident which the mother reported to the police. The father entered the mother’s room and woke her, and an argument ensued.
On 1 March 2007 the father tried to stop the mother and child from leaving the country. The police attended the R home.
On 1 March 2007 the mother moved to the United Arab Emirates (“UAE”) with the child and Ms J.
In July and November 2007 the father visited the child in the UAE.
On 17 October 2007, 22 November 2007 and 23 February 2008 the mother or her lawyers contacted the father to advise that she would like to stay in the UAE beyond the dates stipulated in the Consent Orders. She informed him that his refusal to agree to this change would lead to Court action, which is what occurred. Proceedings were instituted on 11 March 2008.
On 17 April 2008 the mother leased out her T property for a further 6 months, notwithstanding that the child was to return to Australia (presumably with the mother) by 1 April 2008.
In June 2008 the month-about arrangement began in accordance with the interim Order of Collier J (outlined in chronology of court proceedings below).
On 1 August 2008 the father was half an hour late to hand-over the child to the mother at Sydney Airport. This was witnessed by Mr H. The father said this was due to difficulties about the location of the changeover point.
In late August 2008 the mother was travelling in Europe with the child and refused to meet with the father who was also in Europe at this time.
On 1 September 2008 the child was handed over from mother to father and cried, saying he wanted to stay with the mother. This was witnessed by Mr L. A similar thing happened at the change-over of 1 November 2008 and was witnessed by Mr M.
On 25 September 2008 the father would not let the child speak to the mother unless she told him her location. The father made admissions to this effect in the original trial.
Interviews with the first family consultant occurred on 1 October and 11 November 2008 and the report was prepared, dated 19 November 2008.
The mother was made redundant in September 2009 but did not disclose this detail to the Court. She then commenced working for MG Company in October 2009.
The mother received a job offer in Qatar on 22 November 2009. She emailed the father on 25 December 2009 to tell him she had accepted the job offer.
CHRONOLOGY OF COURT PROCEEDINGS
Consent Orders were made on 12 December 2006 allowing the mother to take the child overseas for 13 months.
On 11 March 2008 proceedings were initiated, with the mother filing an Application seeking to vary the December 2006 Orders. This was opposed by the father.
On 31 March 2008 the Consent Orders dated 12 December 2006, which were effective until 1 April 2008, were extended until 23 June 2008. The mother’s application was stood-over until 16 June 2008, and was then postponed to 18 June 2008. The mother returned to Australia for the interim proceedings as required under the orders of 31 March 2008.
On 18 June 2008 interim parenting Orders were made so that the child lived with both parents on a month-about basis until the final proceedings. The travel time between the mother and father’s countries is 14.5 hours. Until this arrangement was instituted, the father had spent little time alone with the child. The monthly changeovers occurred as ordered for the most part.
Proceedings for final parenting orders ran on 1, 3 and 4 December 2008. Interim orders were made on 5 December 2008 continuing the month-about arrangement. Final Orders were handed down on 31 March 2009 by Stevenson J and are outlined in the introduction.
A Notice of Appeal was filed by the mother on 24 April 2009.
A stay of the Orders was sought on 27 April 2009 and was made on 15 May 2009. The month-about arrangement continued, as per the interim orders of 18 June 2008.
The appeal against the final parenting orders occurred on 1 September 2009 and 4 March 2010. The Full Court delivered Reasons on 25 March 2010. The appeal was successful, resulting in remitting the matter for trial before me.
MOTHER’S EVIDENCE
The mother’s relationship with the child
The mother says the child’s primary bond is with herself. She refers to the family consultant’s report of November 2008 in support of that contention. I note that the weight Stevenson J otherwise gave to this expert report and various aspects of that report were criticised by the Full Court. That family report was not in evidence and I had a family report from a different report writer before me. The most recent expert evidence does not support the conclusion that the child had his primary bond with his mother.
The mother said the child gets upset at separation and becomes clingy when he is returned to her. One particular example the mother records is on 2 February 2010 the child was crying that he did not want to go to Sydney. Among the things the child was reported to have said was that Sydney “takes too long”. I don’t doubt that is so. The demands placed upon the child by nearly two years of monthly international travel have been extreme. The mother has, on occasions, been less able that the father to emotionally prepare the child for changeover.
The mother says that until 2010 the child was attending daycare a couple of days a week, and otherwise Ms J would care for him when the mother was at work. Currently, the child attends daycare 5 days a week, and the mother would have a late lunch at work to be able drop the child home from daycare at about 2pm. Ms J would then care for the child from 2pm until the mother returned home from work at 5pm. When the mother was working from home or otherwise at home, she said that she was the primary carer, not Ms J. The mother said she is currently mostly working from home unless she is attending site inspections.
The father’s relationship with the child
The mother asserts that the father is minimally involved in the child’s life and that before moving to the UAE with the child, the father had only cared for the child on his own on one occasion. The mother says this was his choice as he was uncomfortable with the baby, could not settle him and could not bottle feed him. She says he was also often away at dinner or on business trips. The mother says she received little help from the father and he seemed disinterested in the child.
Senior Counsel for the father asked the mother whether or not she had any regard to the difficulties the child might experience with developing a relationship with his father as a result of her wish to take him from the country when he was about 6 - 7 months old in July 2006 (the child was about 14 months old when he eventually left the country). The mother responded by saying that the father had consented to an order in that regard. In the December 2008 proceedings her response to this question was that she recognised the child would have less time with his father but she considered visits would be sufficient, stating “I felt we could make sure [the child] got time with [the father]”. When questioned in relation to her preference to live in Queensland rather than Sydney, the mother stressed that the child would need regular and constant contact with the mother, however in relation to the father the mother stated “he definitely needs a father in his life, yes”. These statements seem to reflect a lack of appreciation of the need for the child having significant time with his father to develop a relationship with him, when he was three years old.
The mother was asked questions as to why she was not prepared to provide her address in UAE to the father. She was originally asked that question in the context as to why her address and that of her employer Mr L was not on the financial statement. Her response was that she was not sure of street numbers and street names as such a system doesn’t properly exist in Dubai. That answer was disingenuous because it is fairly clear the mother does not want the father to know any details about her place of residence or place of employment in UAE. I note that all witnesses from Dubai could provide their Dubai addresses when they were sworn in.
The mother seeks that the father does not make inquiries to learn her address, at least while she is in a Sharia Law country. She says this is because the father has caused disturbances at her home there before, and that such disturbances are not tolerated in that system of law. Senior Counsel for the father suggested this would effectively require the mother from prohibiting the child from telling his father where he lives, as children are prone to do. The mother said she did not consider that, but said if the father didn’t ask then she could not imagine why the child would offer that information.
In June 2008, the month-about contact arrangement began, with the child to spend a month with the mother in June and with the father in July, and so on. Before this time, the father had not been given any non-supervised contact with the child. Instead of the mother suggesting she come to Sydney in June to ease the child into contact with the father, she suggested that she stay in Sydney in July to do so – thereby maximising her time with the child rather than the converse. The mother told me that she had suggested she stay in Sydney in July and that Collier J said this was inappropriate as it was eating into the father’s time. She did not offer the alternate arrangement. The mother said she did not offer to come earlier in June because accommodation was difficult to find. I fail to see how accommodation would be obtainable in July but not in June. As it eventuated, the mother stayed in Queensland before the changeover on 1 July 2008.
The mother suggested in relation to this incident, that she had prepared the father for the transition by answering his requests for information. Three emails were tendered by Senior Counsel for the father to show the inadequacy of this communication. The emails of 22 June 2008 and 23 June 2008 detailed the information the father wished to know to help the child with a smooth transition including the type of bed the child was used to, the child’s daily routine, if he had experienced any allergic reactions, if he had gone to swimming and other lessons. A response was only received on 26 June 2008 which gave minimal and insufficient information, to which the father again responded on 27 June 2008 seeking particulars. Senior Counsel for the father accused the mother of doing nothing to help with the child’s transition from the mother to the father. The mother contended that she had already provided such information by telephone and text. Even if she had already provided such information I see no reason why the mother could not reply to the father’s email in a helpful manner so that he had something in written form to refer to in the transitional period. The father says he sent a number of emails in the first week of July asking for more details and that these were ignored. I accept that evidence.
The mother suggests at paragraph 199 and 200 that she fears the father will “intimidate, harass, or do worse” and “use aggression” towards the child. I find no evidence to support the mother’s belief and find that it is unfounded and the mother is not being genuine when reporting these fears.
In December 2008 when the mother was asked about the father’s good points, the mother offered that the father loved the child, he promoted the child’s sister to him, and he had a backyard in which the child can play. This answer demonstrates the lack of insight the mother had in relation to the benefits the father offered the child as a parent.
Mother and father’s relationship in Australia and the child’s birth
The mother says that the father “heavily pressured if not coerced” her into having three abortions prior to having the child. She says the father admitted this to the family consultant in December 2008 however that report has not been placed in evidence before me. In relation to the three terminated pregnancies, the father says that he and the mother discussed them at length, and their readiness to be parents, and ultimately decided on termination. I accept the father’s evidence about that. In his email to the mother dated 27 August 2007 the father said “We both must take equal responsibility for the abortions…the decision rests on both our heads”. The mother says the father was not happy with her decision to continue the pregnancy with the child, but I am unable to place weight on that statement.
The mother said the father pressured her not to accept an advantageous job offer with K Company during her pregnancy. The father was concerned about commute and the responsibilities in caring for the child. The mother did not take the job, relying on the father’s promise to support her for 6 months.
The mother said she and the father were never engaged and that they lived separately until just prior to the child’s birth. Upon returning to T after the birth the mother said the father never moved in, but just brought clothes with him. The father’s evidence does not contradict this, but he does not see this as indicative of absence of a relationship. The mother records April 2006 as the end of their relationship. She says the father moved out of the T home in April 2006 to R, which the mother says was set up as a ‘bachelor pad’ and was not suitable for a child.
The child was born in Cairns so that the mother could have the support of her family at this time. The father came to Queensland in late November 2005 but left again the day before the child was due, because he had business to attend to. The father said it was a safe move because the birth was not imminent. He returned when the mother went into labour and was present at the birth.
The mother returned to Sydney four weeks after the birth, and the maternal grandmother assisted her for 10 days. The mother obtained all the nursery supplies for the child. The mother says the paternal grandmother never visited or assisted. The paternal grandmother states in her affidavit that she had come to Queensland for five days after the child’s birth, and upon returning to Sydney called every day to check on her welfare. She said she tried to see the mother and child but the mother would always tell her it was ‘inconvenient’. The maternal grandmother made similar comments in December 2008, saying the mother would never pick up her mobile to the paternal grandmother, and on the few occasions she was allowed to see the child she was not allowed to pick him up and was made to wash her hands before touching him. The mother does not seem to dispute this allegation.
There were disagreements about the child’s surname. The father wanted the child to have the surname ‘Rinaldo’ but the mother refused because they were not married. The mother said she offered a hyphenated name but the father did not accept. The mother says ultimately a deal was struck where the father would make the decision about circumcision and the mother about the surname. The mother filled in the child’s and her section of the birth registration form and the father filled in his section. Although the father’s name was on the registration form, the form was not signed by the father, and so was not accepted by the authorities when issuing the birth certificate. The father refused to sign the registration form as he did not agree with the last name ‘Collu’.
The mother says the father pressured her into signing the mortgage overdraft form if she wanted him to sign the birth registration papers. She signed the overdraft and he still refused to sign the registration documents. The mother sent off the registration regardless, with a letter explaining the absence of the father’s signature. The birth was registered without the father’s name.
I note in relation to the pressure to sign the mortgage overdraft, Counsel for the mother put it a little differently in December 2008, putting to the father that the mother had said “you needn’t pay the mortgage for the next four and a half months. I’ll sign the application for the 20,000 overdraft over [R[. You just sign the document”. This version of the conversation does not seem to be in accordance with the Mother’s evidence that the father said he wouldn’t sign the birth registration papers unless the mother signed the overdraft.
The mother says the father has since said he would get the registration corrected but he still has not. The mother wishes to remove ‘O’ from the child’s name if ‘Rinaldo’ is added because Z O U Collu-Rinaldo is too long. This matter was resolved by consent orders made early in the proceedings, the terms of which are set out above.
The mother says that between December 2006 and March 2007 she had observed the father with a demeanour and physical appearance suggestive of cocaine use. The mother says the father admitted to one use of cocaine on the New Year’s Eve of 2006/07. I note that the transcript of 1 December 2008 records that the mother admitted to cocaine use before becoming pregnant, and the father admitted to using cocaine only on one occasion – New Years Eve 2006/07. The mother had earlier alleged that the father had been investigated by police in relation to drugs, a notion which the father outright denies, and for which there is no evidence.
Abusive Conduct
The mother cites three occasions of abusive conduct, and further examples of threatening conduct.
The first occurred on 19 February 2007 and I have referred to it when dealing with the parties’ credit. On this occasion the mother says the father was drinking, which the father denies. She said he sent her a text when she was in her room to come out and talk, which she refused. He entered the room, flashing the lights on and off, shook the bed she was lying on and demanded he sleep next to the child on their last night together. The mother refused. She said the father threw pillows at her and she kicked him off the bed. She slept in Ms J’s room that night with the child. The father does not refute the majority of this evidence. The mother reported the incident to the police the next day and told them there was verbal abuse but that she did not have concerns for her own safety. She did not tell them about flicking the lights, shaking the bed, throwing the pillow or kicking the father. The mother says she understated the event because she didn’t want an investigation.
The second incident occurred on 1 March 2007 when the mother was due to leave for the UAE. The father demanded she sign the Power of Attorney and tried to prevent her from leaving. This evidence is discussed elsewhere.
The third event occurred on 18 June 2009 when the mother was to have half an hour with the child and the father refused if she did not come inside. The mother says this was not the agreement and the father forcibly took the chid from her arms. This incident is covered in more detail elsewhere.
Threatening behaviour was reported by the mother in November 2007 when the father was visiting in the UAE and refused to get out of the mother’s car because he wanted to know where she lived. She claims he became volatile on two such occasions. In the December 2008 proceedings the father tried to explain his behaviour, saying the mother was constantly ‘dangling a carrot’ during his visit, promising that he would come to her and the child’s home but only when she thought she could trust him. The father said the two incidents where he refused to get out of the car were but two heated examples of exchanges relating to ‘trust’ and whether he would come to the mother and child’s home. The father admitted that he stood his ground ‘for a minute or two’ and was upset.
The mother also says there were abusive and harassing texts, phone calls and emails. The father says that his persistence was in reaction to the mother’s lack of cooperation.
I find that the mother has elevated behaviour by the father, to a level and character which is inaccurate and she has done that for forensic purposes to advance her application in this case.
Initial Move to the UAE
The mother claimed that the father had agreed to the mother moving to the UAE on a three year contract. The father firmly denies this assertion, saying that a term of 13 months was negotiated, 12 months for the contract and a further month to get settled. He said the mother had raised the option of her living there for three years, but he had flatly refused it. Besides the mother’s oral statement I am shown no evidence to support her assertion that the father had agreed to three years. On the other hand, there is plenty to dispute it. One example is the father’s email of 4 December 2006 at exhibit H which says in very clear terms “Ill change it to 13 months. Not a DAY LONGER. If need be [the child] and aunty comes back and you stay! THAT’S IT!” The mother said that further ‘important’ issues came to light after these emails were sent when the father changed his mind to allow the three years, but did not expand upon this. This last assertion stands in stark contrast to her evidence in December 2008 that the father had agreed to a three year arrangement but then changed his mind towards the end of negotiations to refuse the three years.
Senior Counsel for the father claimed that the mother agreed to the 13 month negotiated term for consent orders, thinking it was easier to extend the time once she was overseas than have to negotiate the full three year term with the father initially. The mother denied this assertion. I note that the contract at exhibit D stipulated a term of three years and was signed by the mother on 4 March 2007. The mother says that regardless of what the contract says, her employer was well aware of the 13 month consent orders. I am unable to accept that evidence.
Apart from the mother’s oral evidence, there is nothing to indicate that the father did agree to the mother going for a period of three years at any time. It is clear the mother entered into a three year employment contract and left Australia in my view with her mind set on staying overseas. The agreement that she had reached with the father that it only be for thirteen months, in her mind, in my view was not one that she ever thought was binding upon her and one that she always thought she would be able to get around when the time came.
With that in mind, I approach with some scepticism the mother’s “Amended Proposed Final Orders of the Mother, 10 May 2010” in which she deletes the words “at any location where” from Order 3. As indicated, the mother says that she amends her application “in an attempt to mitigate an unfavourable outcome”. I am unsure that is a true statement of the mother’s current intentions. I would place weight upon her sworn evidence about her current intentions. If the mother was to live away from Sydney with the child, I have no real confidence that the mother would intend to abide, other than in the short term, with any order made which restricted her from working in “any location” where she can obtain employment in which she wishes to engage.
Ms J as the child’s Caretaker
Ms J has been caring for the child since he was a newborn and has travelled to the UAE to continue that role. Ms J cares for the child when he is home from care and the mother is at work. The child attends daycare 5 days a week until 2pm.
On 7 March 2010 Ms J had written to the mother from a holiday in Queensland, telling her that she does not wish to return to the UAE. I have dealt with this issue in relation to the mother’s credibility.
The mother acknowledged that if she was to return to the UAE and Ms J was unwilling to accompany her, then Ms J had agreed to return temporarily to train a new nanny for a ‘handover’ period. The mother also acknowledged that she had not discussed the possibility of working and living anywhere except the UAE, Qatar and Sydney despite, during the hearing, her seeking orders to be allowed to relocate to a wide number of regions.
When asked about the child being cared for by a string of Nannies, the mother said that she did not want to continue working full time and wanted some days to care for the child herself, but that litigation was thwarting those efforts. Her affidavit does not mention this sentiment however, and details the normality of live-in nannies in the UAE and PNG, that are available through well-established hiring companies and relatively inexpensive. I note the evidence of the family consultant read into evidence in the 2008 trial that the mother said “her move to Dubai was feasible only because her maternal aunt was prepared to accompany her and wanted to care for [the child]”.
Senior Counsel for the father suggested that there could be no certainty at all about whether Ms J was to remain the child’s carer and therefore no finding could be made in relation to maintaining the child’s relationship with her.
Changeovers
The mother says that the child is anxious and cries when changeovers occur from mother to father. When asked what she could do to improve this, she suggested that her farewells be ‘swift’ and that she could distract him. She admitted getting upset also, but she claimed only in response to the child’s anxiety.
The mother says that at about half the changeovers, the father has presented a sick child to the mother. On 11 March 2009 the father had warned the mother that the child had a temperature the night before but only had a small cough in the morning. The mother says upon receipt of the child, it was obvious that the illness was far more serious but had no choice at that point than to continue with the travel arrangements. The mother says the child cried and was in pain when the altitude changed. The mother took the child to the doctor the next day, who said the child had ‘viral bronchitis and an upper respiratory tract infection’ which would have been ongoing for a few days. The doctor’s report attached to the mother’s affidavit does not record this diagnosis but notes a congested throat and some mild wheezing. Two syrup medicines were prescribed.
On 1 September the father again notified the mother that he was a little unwell, before the child’s 6am flight to PNG. He provided the medicine, but the mother was critical that he did not provide any measuring device to take administer the medicine and it was too early in the morning to buy one. The mother therefore did not give the child the medicine. The mother says that she took the child to a doctor in PNG. The doctor’s report citing ‘otitis media’ (middle ear infection) is dated 8 September 2009. I find it inherently unlikely that the child had a middle ear infection for eight days before the mother took the child to a doctor.
The mother tells of the changeover of 31 July 2009 where she asked the father if she had the child’s allergy medicines. The father was irritated at her question and became angry, saying “I am offended at your question. I don’t have to answer that”.
The mother says that the UAE is a particularly good place for long distance changeovers as it is a transit hub and many airlines fly there. She said that the relevant airlines all have frequent flyer programs and the father could get a free flight for every five that he paid for. The mother also says, I think somewhat audaciously, that the father need not have to pay for accommodation in the UAE if he had a shorter stopover before catching a return flight.
The child’s Schooling
The child currently attends daycare in the UAE, initially attending 3 days a week but now attending 5 days a week. The mother usually takes him there and brings him home. The mother says she conferred with the father when choosing schools for the child. However I note the father’s email of 12 February 2010 annexed to the mother’s affidavit which says “I didn’t approve any of the schools u booked in Dubai and u just forced them on me knowing I could do little about it.” I accept the father was not properly involved in this decision.
The mother wishes for the child to begin the school year in the UAE in September 2010. Counsel for the father sought to demonstrate there was no certainty that the child would be accepted into a school in the UAE. Schooling in this region is competitive, and although the child has been subject to an observation assessment, he has received no schooling offers. The mother explained that offers were made in the holiday period preceding the school year, and so it was entirely reasonable not to have received an offer as yet. The mother said that other mothers she had spoken with reported that a place in a school is almost certain, just not necessarily the preferred school.
An equal time arrangement will have many positive impacts for the child particularly in the long term although I acknowledge there may be some negative impact in the short term while the parents find their feet and learn to improve the effectiveness of their communication.
I find that it is reasonable practicable for the child to spend equal time with both parents in Sydney.
I do note that their may be a difficulty in coming to a decision about the child’s schooling next year, as the father wishes for him to continue at B School and the mother does not agree. The child will remain in this school until the end of the 2010 school year. Thereafter, if the mother and father cannot agree on an appropriate school the matter may be relisted, after the parents have attended a parenting program, so that the Court decides the issue.
In relation to the Lutheran upbringing of the child, both parties have agreed to have the child raised as a Lutheran. The mother is Lutheran. The father does not agree to the further proposed order sought by the mother that ‘both parents shall have individual responsibility for encouraging and supporting this’. The father is not Lutheran and can not be taken to know what that order might entail. I have insufficient evidence to know what obligation the mother means to impose upon the father by an order in these terms. This is probably not an order that would be easily enforceable. I decline to make that order in the terms sought.
Substantial and significant time – Child’s best interests
I note Section 65DAA(2) FLA only mandates the Court consider substantial and significant time if an equal time order is not made.
I will consider substantial and significant time order is feasible if the parties are to live in different cities. I find it is not the preferred option if the parents both live in Sydney.
Substantial and significant time is defined in section 65DAA(3) in the following terms:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Arguably the time which the mother proposes the child spends with his father in the UAE is getting close to equal time, if not it is substantial and significant time. The question is whether the proposal is in the child’s best interests and reasonable practicable.
The time the mother proposes (her evidence does not allow a precise calculation) is most of each school holidays except December school holidays which will be shared. During school term she now proposes 7 occasions of up to two weeks (14 weeks in total). Birthdays will alternate each year.
Although the father made no proposal about what would happen if the child remained in the UAE with the mother in terms of the amount of time that he would visit the child there, the mother did so and I am therefore able to properly consider that proposal.
The mother now proposes only to live in the UAE or Qatar or PNG or Australia with actual air time not to exceed 16 hours and travel time not to exceed 2.5 hours. This 18.5 hour journey does not take into account time to wait for the flight to depart, time through customs and time to wait for connecting flights.
There is another proposal the mother makes for the child to spend substantial and significant time with the father rather than equal time. The mother in her most recent application (order 3D sought by her) proposes that in the event the child is ordered to live in Sydney, the child live with her for 14 days and with his father for 7 days in each 21 days during school term. She also proposes that the child spend half the school holidays with his father and other special days with his father. So, in the event that the child is ordered to live in Sydney, the mother’s proposal is that the child spend not equal but substantial and significant time with the father. Given that this application was made after the conclusion of the hearing, it was not the subject of any investigation during the hearing. Neither party was tested as to why it might be that substantial and significant time would be more appropriate than equal time. Counsel for the mother did not seek to make any further argument in relation to this issue after I granted the mother leave to amend her application. It might be argued that the current level of communication between the parties is such that whilst substantial and significant time might be practicable, equal time would not be. I am not particularly attracted to that argument when considering all the other matters that I have discussed in these reasons.
This application also flies in the face of what appears on its face to be an offer by the mother for the father to close to equal time with the child if he is prepared to make up to 7 trips a year to UAE and otherwise travel to pick the child up from UAE on three other occasions per annum for school holidays.
The arrangement which is in the child’s bests interests is one which sees the child developing and maintaining a meaningful relationship with both parents. This means it has to be often enough, given the child’s age, so that emotional attachment and development can progress properly.
Separation from either parent for periods may be detrimental to the child where both parents have a trouble in fully encouraging the child’s relationship with the other parent. More time with one parent, where that parent does not facilitate the other’s relationship, may result in a weaker relationship with one parent.
I find that the father’s proposal for equal time, that the child reside with both parents in Sydney, to be more in the child’s best interests than either of the mother’s proposals.
Substantial and significant time – reasonable Practicability
If I was not of that view, distance would still be an issue in deciding whether either of the mother’s proposals are reasonably practicable. Now that the child is close to school age, he cannot be removed from his primary home for extended periods. He must stay at his primary home 5 days a week to attend school, during school term or at least during most of each school term. Where distance is a factor, the only viable option for significant time is holidays, and the father residing for periods during school term where the child is residing. The family consultant told me in no uncertain terms that just holiday time was not sufficient to develop firm and continuing relationships with a parent at Z’s age. The mother did seek to address this by the offering of the seven visits. This arrangement is problematic for the father, as it interrupts his normal parenting pattern with G. The details, practical viability, expense and probably longevity of such an arrangement were not fleshed out in the evidence.
The father has not lived in the UAE up until this time. The parties would be better able to work on their skills in working with one another as parents, by a post separation parenting course, if they both settled in the same city.
I do not need to consider substantial and significant time if both parties are in reasonable proximity in Sydney, given I have found that in those circumstances equal time is both reasonably practicable and in the child’s best interests.
Rather than substantial and significant time, I find the child’s relationship with each parent will be better maintained with an equal care arrangement.
CONCLUSION
I find it would be easier to facilitate time together between the child and Ms J if the travel was to take place within Australia rather than from overseas. I find however that having the child move to northern Queensland with the mother to maintain the intensity of this relationship will only impede upon the child’s relationship with his father. It is not practical for the father to live there. Nor is it in my view practical for the father to live with the child away from Sydney for any significant part of the year.
Moving to Sydney with his father, and mother once she returned (as she indicated she would), is the most stable proposal for the child. The child would still have significant time with both parents. He would have a strong extended family network around him, including his half-sister.
Whilst I accept the mother may have some short term difficulty in relocating to Sydney, she indicated she would will do this and I find she will be able to do so. Her preference for living in the UAE is for employment. However as the situation currently stands, she has only verbal and emailed promises of work in the UAE. I have said earlier I find the mother will be able to support herself in Sydney.
Taking into account all matters which I must consider under section 60CC, I find that the proposal, which would be in the child’s best interests and reasonably practicable, is for him to live in Sydney, in close proximity to both his parents.
I do not find anything “inherently sexist” (to use Gaudron J’s words) in this finding because had the gender roles been reversed, and the father had been the one overseas with the child, on the facts of this case, my decision about what was in the child’s best interests would have been the same.
PROPOSED ORDERS
The orders about the child’s time with each of his parents in Sydney will be made in accordance with the proposal of the father. Additional orders will be made to ensure that the child has his birthday with his parents in each alternate year and spends Christmas with each of his parents in each alternate year.
The parent’s birthdays are very close together. I have attempted to make an order that will maximise the child’s opportunity to spend the closest weekend to his parent’s birthday with each of them.
In the event that the mother continues to normally live in the UAE, she seeks a restraining order against the father that he not seek to learn the location of or visit, enter or remain within 200 metres of the mother’s residence. Given that that application is predicated on the fact that the mother would continue to reside with the child in the UAE, I do not need to further consider that order given that the pre-condition is something which is excluded by the orders I otherwise intend to make.
The mother has sought orders relating to who would be responsible for the child’s travel. Again, I do not intend to make orders about travel. The mother would be restricted from travelling with the child within the Commonwealth of Australia unless she obtains the father’s written consent to travel overseas or otherwise obtains a court order to do so. The reason for me making an order in those terms is, notwithstanding the significant history of the mother returning the child to the jurisdiction, it is her case that she intends if an order was made for the child to live in Sydney, to resettle in Sydney.
I acknowledge it may be that she will wish at some point to visit relatives in Papua New Guinea. If the father does not agree with her leaving Australia at any particular time, the mother will need to make an application at that time. Any such application should be dealt with by looking at the mother’s situation at that time. Her ties to Australia (including employment and property ownership), her travel plans and any possible ulterior motives could be looked at and considered at that relevant time, initially by the father and then by the court if that is needed.
Exposure to the child’s PNG heritage does not necessarily mean that the child has to travel to Papua New Guinea (just as it does not mean he would have to travel to Italy to be exposed to Italian culture). Each parent has the ability to provide teaching in relation to their respective cultures to the child. The child also of course will be free to travel to far north Queensland where Ms J will be living.
The mother seeks an order in relation to allergy medications. The father has in the past taken offence at the mother’s assumption that he is unable to properly manage the child’s allergy medication. I do not believe there is any need to make such an order. I have found that each party has a proper attitude to parental responsibilities and a capacity as a parent as they relate to the child’s physical needs.
The mother seeks an order where if the child is in the care of someone other than either of the parent or Ms J, the other parent will be provided with details of the person to whom the child was entrusted. Order 10 as sought sets out a detailed list of the information the mother wishes to be given. Again there is in my view insufficient evidence that would indicate that such an order is necessary. It creates one new thing for the parents to complain to the other about in terms of potential breach of an order. Both parents are in my view sufficiently responsible to place the child in proper alternate care should that become necessary and to ensure that the person who is responsible for looking after the child during that period has sufficient knowledge of any medical condition that the child has and is provided with any appropriate medication.
Orders were made about telephone communication on 27 April 2010. I have incorporated that telephone order in the main orders that I make today and I have made some further orders to facilitate that telephone contact. An issue has arisen between the parties as to whether or not a speaker phone should be used. It seems to me that now the child is old enough to be able to use a handset and in my view there should be some privacy given during the conversations with the parent with whom the child is not living at the time. Accordingly I will make an order that telephone calls not be made using the speaker phone function. The father has complained that the child has been distracted during telephone calls in the past and I will make an order that both parents avoid distractions for the child during the telephone call. Skype should be used at least once a week if that is feasible.
The mother wishes to have an injunctive order made against the father restraining him from contacting the mother’s employer or contacting the mother using the mother’s email address or landline telephone except in the event of an emergency affecting the child. There is in my view insufficient evidence to make such an order. The mother has failed to make out her allegations that the father has perpetrated family violence and has harassed her. In the event that he behaved that way in the future, the mother has the ability to seek remedies arising from that future behaviour by the father but I do not anticipate, on the history that I have found, that any such a problem will arise.
The father’s application (and not the mother’s application), caters for a default situation where an order is made for the child to live in Sydney, but the mother changes her mind about returning to Sydney to reside here in circumstances where that is where the child is ordered to live. The father expresses it in terms of the mother not living within a 30 kilometre radius of the child’s school in Sydney. I will delineate the default order in that way. The mother has not proposed she live at a place sufficiently near Sydney to make some intermediate order (for example alternative weekends) a feasible option. The order I intend to make in the mother’s favour is similar to the order that she originally proposed during the hearing that could be made in the father’s favour in a situation where the child lived with the mother in the UAE. In the event the mother is unable to live within 30 kilometres of the child’s school, then an opportunity should be given to the mother for up to six occasions each calendar year to spend two weeks in the Sydney region so that she might be able to share in the child’s day to day schooling life. Three of those two week periods could be taken continuously.
As I have indicated, it is in my view important for the parties to attempt to obtain some professional assistance to improve their ability to relate to and work with one another as parents. Accordingly I will ask the Director of Child Dispute Services or her nominee to facilitate arrangements to enable the parents to attend appropriate post separation parenting counselling.
I have already mentioned that I intend, pending further order and/or the written consent of the parties, to restrict the child’s movement from Australia. The child’s name will remain on the airport watch list unless the parties agree in writing or there is some further order and the father is to hold his passport to be released to the mother only in the event of a written agreement or further court order.
I have envisaged that there may still be some inability of the parties to agree on what school the child goes to next year and I give the parties liberty to relist the matter if there is a dispute between them about the child’s schooling for next year.
The mother has made an application for the father to pay money towards the child’s school fees in the UAE.
This is an application that can properly be made under the Child Support (Assessment) Act. Given my determination, the mother will not be paying school fees for the child overseas. It is probable the mother will not have an employment contract which will provide for the child’s educational costs. It would be inappropriate and premature (particularly given my level of knowledge about the respective financial positions of the parties) to make any order under the Child Support (Assessment) Act. The mother of course is not precluded, particularly after she settles back into Sydney, from availing herself of normal assessment processes through the Child Support Agency and if she is not satisfied with those processes, reviewing a decision made by the Agency in the normal way.
APPLICATIONS MADE BY THE MOTHER ON 26 MAY 2010
The matter was relisted before me on 26 May 2010. I indicated at that time it was my intention to make orders in the final hearing and deliver reasons for those orders at 4.15pm on 2 June 2010. The existing interim orders, made 5 May 2010, for the child to live with his parents on a week-about basis in Australia concluded at 9am on 27 May 2010. In those circumstances I indicated that I intended to make a further order that would expire on 3 June 2010.
Counsel for the mother, who appeared at this mention by electronic means, sought to rely upon an affidavit sworn by the mother on 26 May 2010 (a copy of which was handed to me from the bar table by the solicitor for the father). That affidavit supported a number of applications which counsel for the mother sought to make orally.
Annexure B to that affidavit contained a document entitled “Amended Proposed Final Orders of the Mother, 10 May 2010”. Counsel for the mother sought to substitute the orders that the mother sought at trial with those orders (notwithstanding they started with the words “pending further order”). That course was not opposed by the solicitor for the father on the basis that those applications would be considered on the basis of what was already before the court at the conclusion of the final hearing.
I accordingly made an order by consent granting leave to the mother to reopen her case for the purposes of providing the court with a document entitled “Amended Proposed Final orders of the Mother, 10 May 2010”.
The mother in her amended proposed final orders of 10 May 2010 at paragraph 3E seeks an order in the following terms:
“That in the event that [the child] is ordered to live anywhere other than with the mother in UAE, the father shall pay the mother AUD $10,000 being for relocation and re-establishment costs, into the mother’s nominated bank account within fourteen (14) days of the date of this order being a once-off payment and not in lieu of any other payment.”
I note that during the final hearing, neither party explored the issue as to whether or not the parties have ever lived in a de facto relationship. I was told, notwithstanding the fact the parties had a child and jointly owned property, that there was still some contention in relation to whether or not the parties lived in a de facto relationship. Given the date of separation, the de facto property provisions of the Family Law Act would not be operative to govern the parties’ financial relationships, but some other accrued jurisdiction might have been available had it been argued.
Clearly the provisions of s 66BA Family Law Act prohibit the court from making an order for the child maintenance. Any provision for the support of the child would ordinarily be made pursuant to obligations that arise under the Child Support Legislation.
Counsel for the mother submitted that the court’s power to make such an order can be found in s 64B(2)(i) which is in the following terms:
The parenting order may deal with one or more of the following:
(i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.
In support of his submission, counsel for the mother relied upon Love & Henderson (1996) FLC 92-653. In that case, Kay J dealt with an application by a father that a mother provide financial support to enable him to have access to the two children of the parties. In the circumstances of that case and at that time, there was no provision under the child support legislation for an application to be made on behalf of the parent, who was anything less than the substantial access parent, for support.
In Love & Henderson, Kay J found that the then s 64 Family Law Act provided that the court could make an order it considered proper having regard for the welfare of the child as the paramount consideration (s 64 FLA was the previous successor to s 60CA FLA).
His Honour found that where the legislation did not otherwise allow for provision of financial support to an access parent, His Honour could rely upon the general power to make orders which would promote the welfare of a child as the source of the necessary power.
Whilst counsel for the mother referred to s 64B(2)(i) as providing the court’s power, the power actually is not in s 64B(2) but rather is in s 65D(1) which is the power given to the court to make parenting orders as it thinks proper. Section 64B(2) sets out what is a parenting order.
The solicitor for the mother submitted on 26 May 2010 that the definition in s 64B(2)(i) was not wide enough to encompass the order as sought.
I am reticent given the minimal nature of the argument relating to the width of s 64B(2)(i) FLA to determine that issue if I do not need to.
In the event I assume there is power to make the orders sought by the mother the question is whether or not on the evidence that I had at the end of the hearing, that evidence was sufficient to support such an application.
I have already commented upon the evidence I have about each of the parties’ financial circumstances, and particularly the difficulty I have with the mother’s financial disclosure. I consequently conclude that it would be not a proper exercise of discretion to make the orders sought given the state of the financial information I have available to me.
Secondly, counsel for the mother sought to rely upon the mother’s affidavit of 26 May 2010 as evidence in the final hearing. For that purpose, counsel for the mother made an oral application seeking to reopen the mother’s case to call that further evidence.
Generally, a party is bound by the conduct of her case at trial. The court has a discretion which may be exercised more generously in children’s cases, to allow a party to reopen his or her case to call further evidence. Whether or not that is allowed however is ultimately a decision about the overall justice in an individual case of doing so. As I indicated to counsel for the mother during his submissions, the general criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered, would include consideration of the following matters:
499.1.Whether the further evidence is so material that the interest of justice require its admission;
499.2.The further evidence, if accepted, would most probably affect the result of the case;
499.3.The further evidence could not, by reasonable diligence, have been discovered earlier;
499.4.No prejudice would ensure to the other party by reason of the late admission of the further evidence (see Reid v Brett (2005) VSC 18 (8 February 2005, Habersberger J)).
The evidence which the mother wished to call was as follows:
500.1.A statement which she said the child made to her “repeatedly over the past weeks” to “take him home to Dubai”. That evidence is not so material that the interests of justice require its admission. Given the child’s age it would most probably not affect the result of the case.
500.2.A statement that “over the past few months and up to this week”, the child is more “clingy and unsettled” when he comes back from his father’s. Evidence of what happened “over the past months” up until the date of the final hearing was evidence that the mother could have led at trial should she thought it was important enough. Evidence of the child being “clingy and unsettled” since the final hearing is not evidence that is so material that the interest of justice would require its admission and is not evidence which would most probably affect the result of the case.
500.3.The mother sought to give evidence about the child’s schooling. That evidence was not different from the evidence given at final hearing and if there were any subtle differences or new pieces of information contained in that evidence, it is unclear as to why the mother could not have led that evidence at trial.
500.4.The mother seeks to give evidence about her “extreme financial hardship”. I comment in the reasons for judgement extensively about the financial information that the mother has supplied the court.
500.5.The new information that the mother wishes to put into evidence is “I have no money left”. The mother gives evidence as to travel and accommodation costs, both from Sydney to Cairns and Sydney to the UAE. The mother seeks to lead evidence confirming that she has stayed in Australia since interim orders were made in March 2010 and that in that time she has been unable to work in UAE. The mother wishes to lead evidence that she sought and was granted a temporary suspension (one month) of payments of her mortgage to the ANZ Bank on the T property in mid May and that she has insufficient monies to pay the difference between the income on that property and the regular mortgage commitments. The mother then lists a number of events that have taken place, both before the conclusion of the final hearing and after, that have required her to expend money. Whilst giving details of the quantum of some of those costs, no detail is given in relation to others and no overall amount is given. Even if an overall amount had been given, it is difficult to assess the relevance of this evidence given the unsatisfactory nature of the mother’s disclosure of her financial position. The mother asserts she fears bankruptcy. The mother (inadmissibly) asserts that the option of remaining in Australia, whether northern Queensland, Sydney or elsewhere, “are completely financially unviable for me”. This is despite the fact that one of her alternative proposals in her amended application is that she resides in Northern Queensland. It is unclear in what context the mother is making that general statement. The statement is made in paragraph 19 and is followed by an estimate of weekly expenses for living in Sydney and then is followed by a statement by the mother that she very much doubted whether or not she could comply with any interim order which required her to have time with the child in Sydney or north Queensland. It appears that the mother wanted to lead evidence that she did however have the capacity to pay for she and the child to return to UAE. Counsel for the mother told me, in his oral submissions, that the mother does have credit facilities on a credit card available to her that would allow her to fund the cost of travel of herself and the child back to UAE (the mother quotes a return airfare between Sydney and UAE at $2,500, but not a single airfare for herself and a single airfare for the child). The mother also seeks to lead evidence about logistical problems that she has had whilst she has been away from UAE.
500.6.The last part of the evidence the mother wished to bring is allegations that she made that the father had failed to cooperate in interim arrangements since the orders were made by me on 5 May 2010. Without providing the document the mother says she had written to the father asking for financial assistance and he had completely refused. There are allegations as to statements made to her by the solicitor for the father of an insensitive nature. There is an allegation that the father failed to agree to vary the terms of my interim orders in circumstances where the mother asserts that she made a reasonable request that the father consent to a variation of the orders I had made. The allegation the mother makes is that the father lacks flexibility. Counsel for the mother also submitted that the evidence indicated that the father’s evidence at trial that he might provide some financial assistance to allow the mother to relocate should be seen in light of this additional evidence.
In relation to information that the mother wishes to lead in respect of her financial position, the question is whether or not that evidence is so material that the interest of justice requires its admission.
I discuss at some length the mother’s financial position in my reasons for judgment and the difficulties I have with her lack of financial disclosure. It was clear that the lawyers for the father, had the trial been reopened, would be placed in a position of attempting to examine the mother about her financial circumstances in similar circumstances to those that existed at the time of the final hearing. In exchange for counsel for the mother, I gained no confidence that the mother would better comply with her obligations for financial disclosure in this case if she was given yet another opportunity to do so and the testing of her statements made in this affidavit would be as equally problematic as they were at the final hearing. Much of the information provided by the mother could have, by reasonable diligence, been presented by the mother at the final hearing. There was considerable prejudice for the father that would flow by reason of the late admission of this further evidence, which centres around the fact that he would be put in the position where the rehearing would not be concluded. That prejudice has to be seen in the context of the history of this litigation which can be properly described as unfortunate. It is in the child’s best interest to make a final determination about what is in his best interests and what arrangements are reasonably practicable.
In respect of the mother’s “evidence” as to the father’s lack of cooperation with interim arrangements, I find that nothing in that affidavit is so material that the interest of justice would require its admission and further, I find that if accepted it would most probably not affect the result of the case and further, that prejudice would flow to the father by reason of the late admission of the evidence and that the trial would have to be reopened in order to explore and test the evidence and provide the father with the opportunity to lead evidence in reply.
I dismissed the mother’s oral application to reopen her case.
Counsel for the mother also relied upon the mother’s affidavit sworn 26 May 2010 to support an application for leave to make an oral interim application in the terms of annexure A to that affidavit. In summary, those interim orders sought that the mother be able to take the child back to UAE from 27 May 2010 to 8 July 2010. Consequential orders were sought in relation to passports and airport watch list and other orders that extended through to 19 August 2010 which involve the child coming back to Australia to be with his father between 8 July 2010 and 19 August 2010.
Any application for leave for the mother to make the application which she sought would have meant that the father would have been entitled to an opportunity to file further material in opposition to that application. The father opposed the child being taken out of the country pending the delivery of the final judgment.
Given that I intended to deliver the judgment within one week, it would be logistically inappropriate to attempt to hear an interim application in that period of time. Accordingly I dismissed the application by counsel for the mother for leave to make an interim application to take the child overseas.
The current week-about arrangements only extend to 9am 27 May 2010. The child is with his mother up until that time. The mother is in northern Queensland. Counsel for the mother provided information from the bar table that the mother would not have transportation available to her to get the child from her location to Cairns airport until Sunday 30 May 2010. In those circumstances the father indicated that he could get to northern Queensland by 11am on Saturday and accordingly I make an order that the child live with his father from 11am Saturday 29 May 2010 with changeover to be at the N post office. That is an order to which the father consented.
I certify that the preceding five hundred and eight (508) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 2 June 2010
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