Cranage & Hernandez
[2021] FedCFamC1F 259
•7 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cranage & Hernandez [2021] FedCFamC1F 259
File number(s): BRC 2550 of 2011 Judgment of: HOGAN J Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – INTERNATIONAL RELOCATION – Where both parents agree that it is in the child’s best interests to continue to live in Australia and be parented substantially in accordance with the parenting arrangement agreed in early 2013 – Where the mother seeks the child relocate to live with her in the Country J in the event that she and the child’s sisters are removed from Australia by the Department of Home Affairs – Where the father opposes the relocation – Where it is in the child’s best interests to live with the mother – Where, if it is not possible that this occur in Australia because the mother is removed from Australia, it is in the child’s best interests to continue to live with the mother outside of Australia – Where the mother’s application to restrain the Minister for Home Affairs from issuing a notice in relation to the visas by which she and the child’s sisters continue to live in Australia is dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cox v Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Sampson and Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 151 Date of hearing: 11 & 12 November 2019; 16 October 2020 Place: Brisbane Counsel for the Applicant: Mr Clift Solicitor for the Applicant: Cooper Grace Ward on 11 and 12 November 2019;
Lander & Rogers on 16 October 2020Counsel for the Respondent: Mr Brown on 11 & 12 November 2019 Solicitor for the Respondent: Harrigans Lawyers Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: TLG Law Counsel for the Minister for Home Affairs: Mr McGlade on 16 October 2020 Solicitor for the Minister for Home Affairs: Australian Government Solicitor on 16 October 2020 ORDERS
BRC 2550 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HERNANDEZ
Applicant
AND: MR CRANAGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
7 DECEMBER 2021
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All existing parenting orders are discharged.
2.The child, X, born ... 2009, live with the mother.
Orders which apply if the mother is removed from Australia by the Department of Home Affairs pursuant to the Migration Act 1958 (Cth)
3.In the event that the mother is removed from Australia pursuant to the operation of the Migration Act 1958 (Cth), the mother is permitted to relocate the residence of the child such that he continues to reside with her.
4.The parents shall have equal shared parental responsibility in relation to the major long- term issues (as that expression is defined in the Family Law Act 1975 (Cth)), relating to the child other than the issues of the child’s health and education.
5.In the exercise of their equal shared parental responsibility for the child, each parent shall:
(a)inform the other parent in writing by email of any decision that needs to be made about a particular issue; and
(b)within fourteen (14) days of receiving information about a decision that needs to be made, respond in writing (sent by email) to the other parent outlining his or her view about the decision; and
(c)in the event that the decision is an urgent decision or an emergency, the parent will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent to reach a decision; and
(d)use their best endeavours to consider the view of the other parent in reaching a decision.
6.The mother shall have sole parental responsibility in relation to the major long-term issues of the child’s health and education.
7.Other than in emergency circumstances, the mother shall, prior to making a decision about the major long-term issues of the child’s health and education:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter.
8.Notwithstanding the provisions of Order 6:
(a)the father shall be responsible for the daily care, welfare and development of the child when he is spending time with him; and
(b)the mother shall be responsible for the daily care, welfare and development of the child when he is spending time with her.
9.The child shall spend time with the father at all times as may be agreed between the parents in writing but, failing agreement, as follows:
(a)during the Country J summer school holidays: from the first week of April until the first week of May each year, with the father to be responsible for meeting the costs of the child’s travel to and from Australia; and
(b)for all of the Country J school holiday break in the third week of October each year, provided that such time occur in the Country J and the father gives the mother no less than 28 days notice in writing of his intention to spend this time with the child; and
(c)for all of the Country J school holidays at the end of each year, with such time to occur in Australia in even-numbered years, with the father to be responsible for meeting the costs of the child’s travel to and from Australia, and in the Country J in odd numbered years provided that the father gives the mother no less than 28 days notice in writing of his intention to spend this time with the child in the Country J; and
(d)on any other occasion the father is in the Country J provided that he has first given the mother no less than 28 days written notice of his intention to spend time with the child in the Country J.
10.Unless otherwise agreed by the parents in writing, the child shall communicate with the father by telephone, FaceTime or other suitable App:
(a)each Monday, Thursday and Saturday between 7.00 pm to 8.00 pm (Brisbane Australian time): with the father to initiate the communication and the mother to make the child available to receive the communication and allow the child privacy during the call; and
(b)on the child’s birthday (if the child has not otherwise spent time with him on that day): with the father to initiate the communication and the mother to make that child available to receive the communication; and
(c)on the father’s birthday (if the child has not otherwise spent time with him on that day): with the mother to cause the child to initiate the communication to the father.
11.If, for any unforeseen reason, the child misses the communication with the father by telephone, FaceTime or other suitable App as ordered by Order 10, the mother shall facilitate the child returning the communication to the father’s mobile telephone as soon as reasonably practicable.
12.The mother will keep the father advised of a mobile phone number to be used to contact the child and advise the father in writing of any change to the same within seven (7) days of the change occurring.
13.Unless otherwise agreed by the parents in writing, when the child is spending time with the father during school holidays, the child shall communicate with the mother by telephone, FaceTime or other suitable App each Wednesday at 6.00 pm, with the mother to initiate the communication and the father to make the child available to receive the communication and allow the child privacy during the call.
14.If, for any unforeseen reason, the child misses the communication with the mother by telephone, FaceTime or other suitable App as ordered by Order 13, the father shall facilitate the child returning the communication to the mother’s mobile telephone as soon as reasonably practicable.
15.The child shall be at liberty to communicate with either parent by telephone, FaceTime or other suitable App at all reasonable times and each parent shall take all reasonable steps to facilitate this communication.
16.During the time the child lives or spends time with or communicates with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the child: take all reasonable steps to remove the child from that location.
17.The mother and father shall:
(a)keep the other informed at all times of their residential address, contact telephone numbers (landline and mobile) and email address and advise the other of any change to the same within forty-eight (48) hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any medical professional whom treats the child; and
(c)inform the other as soon as is reasonably practicable of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by the child whilst in that person’s care and also provide details of the treatment the child has received in relation to the same; and
(d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.
18.In the event of the child being admitted to hospital for emergency treatment or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, the parent with the care of the child at that time shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment; and
(e)if the child is admitted to hospital: the name and contact details of that hospital.
19.By this Order, any medical practitioner who treats the child is hereby authorised to release to both parents such medical information about the child’s attendance and treatment and any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
20.By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress, including but not limited to copies of school reports, photographs, certificates and awards obtained by the child.
21.If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
22.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.
23.Pursuant to s 68B of the Family Law Act 1975 (Cth), each parent is hereby restrained and an injunction issue restraining each of them from physically disciplining the child, other than by use of reasonable domestic discipline.
24.The child, X, born … 2009, is permitted to leave the Commonwealth of Australia for the purpose of relocating with the mother should she be removed from Australia by the Department of Home Affairs pursuant to the Migration Act 1958 (Cth) and, in order to facilitate such travel:
(a)the name of the child shall be removed from any Airport Watchlist to allow the child to travel outside the Commonwealth of Australia; and
(b)the child is permitted to have an Australian travel document as that term is defined in, and for the purpose of, the Australian Passports Act 2005 (Cth); and
(c)the father shall, within three (3) days of being provided with the necessary documents by the mother, sign all documents and do all necessary things requested by the mother to enable the child to be issued with an Australian passport.
25.Following the removal of the child’s name from any Airport Watchlist as ordered by Order 24(a), the father is hereby restrained and an injunction is issued restraining him from taking any action to place the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Orders which apply if the mother is not removed from Australia pursuant to the Migration Act 1958 (Cth)
26.
The parents shall have equal shared parental responsibility in relation to the major
long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)), relating to the child.
27.In the exercise of their equal shared parental responsibility for the child, each parent shall:
(a)inform the other parent in writing by email of any decision that needs to be made about a particular issue; and
(b)within fourteen (14) days of receiving information about a decision that needs to be made, respond in writing (sent by email) to the other parent outlining his or her view about the decision; and
(c)in the event that the decision is an urgent decision or an emergency, the parent will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent to reach a decision; and
(d)use their best endeavours to consider the view of the other parent in reaching a decision.
28.Notwithstanding the provisions of Order 27:
(a)the father shall be responsible for the daily care, welfare and development of the child when he is spending time with him; and
(b)the mother shall be responsible for the daily care, welfare and development of the child when he is spending time with her.
29.The child shall spend time with the father at all times as may be agreed between the parents in writing but, failing agreement, as follows:
(a)every second weekend from after school Thursday to before school Tuesday; and
(b)for half of the Easter, June/July and September/October school holidays (being the first half in even numbered years and the second half in odd numbered years); and
(c)for half of the Christmas school holidays (being the first half in even numbered years and the second half in odd numbered years).
30.For the purpose of Order 29(b):
(a)the first half of the school holidays commences at 9.00 am on the first Saturday of the school holidays and concludes 9.00 am on the second Saturday on the school holidays; and
(b)the second half of the school holidays commences at 9.00 am on the second Saturday of the school holidays and concludes at 9.00 am on the last Sunday of the school holidays.
31.For the purpose of Order 29(c):
(a)the first half of the school holidays commences at 9.00 am on the first Saturday of the school holidays and concludes at 9.00 am on the third Saturday on the school holidays; and
(b)the second half of the school holidays commences at 9.00 am on the third Saturday of the school holidays and concludes at 9.00 am on the last Sunday of the school holidays.
32.The operation of Order 29(a) is suspended during school holidays and shall recommence on the first weekend after school recommences for the Term as if the holidays did not occur.
33.Irrespective of any other Order, the child shall spend time with the father:
(a)for the child’s birthday:
(i)if a school day: from 4.00 pm to 7.00 pm; or
(ii)if a non-school day: from 9.00 am to 1.00 pm in even numbered years or from 1.00 pm to 5.00 pm in odd numbered years;
(b)on Father’s Day: from 10.00 am to 4.00 pm;
(c)for Christmas: from 6.00 pm on Christmas Eve to 2.00 pm on Christmas Day in odd numbered years provided the father provides 28 days’ notice to the mother of his intention to spend such time with the child.
34.Irrespective of any other Order, the child shall spend time with the mother:
(a)if the child is not otherwise in the mother’s care on his birthday:
(i)if a school day: from 4.00 pm to 7.00 pm; or
(ii)if a non-school day: from 9.00 am to 1.00 pm in even numbered years or from 1.00 pm to 5.00 pm in odd numbered years;
(b)on Mother’s Day: from 10.00 am to 4.00 pm;
(c)for Christmas: from 6.00 pm on Christmas Eve to 2.00 pm on Christmas Day in even numbered years provided the mother provides 28 days’ notice to the father of her intention to spend such time with the child.
35.Unless otherwise agreed by the parents in writing, the child shall communicate with the father by telephone, FaceTime or other suitable App:
(a)each Monday, Thursday and Saturday between 7.00 pm to 8.00 pm (Brisbane Australian time): with the father to initiate the communication and the mother to make the child available to receive the communication and allow the child privacy during the call; and
(b)on the child’s birthday (if the child has not otherwise spent time with him on that day): with the father to initiate the communication and the mother to make that child available to receive the communication; and
(c)on the father’s birthday (if the child has not otherwise spent time with him on that day): with the mother to cause the child to initiate the communication to the father.
36.If, for any unforeseen reason, the child misses the communication with the father by telephone, FaceTime or other suitable App as ordered by Order 35, the mother shall facilitate the child returning the communication to the father’s mobile telephone as soon as reasonably practicable.
37.The mother will keep the father advised of a mobile phone number to be used to contact the child and advise the father in writing of any change to the same within seven (7) days of the change occurring.
38.Unless otherwise agreed by the parents in writing, the child shall communicate with the mother by telephone, FaceTime or other suitable App up to three (3) days each week from 6.30 pm to 7.00 pm with the mother to initiate the communication and the father to make the child available to receive the communication and allow the child privacy during the call.
39.If, for any unforeseen reason, the child misses the communication with the mother by telephone, FaceTime or other suitable App as ordered by Order 38, the father shall facilitate the child returning the communication to the mother’s mobile telephone as soon as reasonably practicable.
40.During the time the child lives or spends time with or communicates with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the child: take all reasonable steps to remove the child from that location.
41.The mother and father shall:
(a)keep the other informed at all times of their residential address, contact telephone numbers (landline and mobile) and email address and advise the other of any change to the same within forty-eight (48) hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any medical professional whom treats the child; and
(c)inform the other as soon as is reasonably practicable of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by the child whilst in that person’s care and also provide details of the treatment the child has received in relation to the same; and
(d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.
42.In the event of the child being admitted to hospital for emergency treatment or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment; and
(e)if the child is admitted to hospital: the name and contact details of that hospital.
43.By this Order, any medical practitioner who treats the child is hereby authorised to release to both parents such medical information about the child’s attendance and treatment and any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
44.By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress, including but not limited to copies of school reports, photographs, certificates and awards obtained by the child.
45.If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
46.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.
47.Pursuant to s 68B of the Family Law Act 1975 (Cth), each parent is hereby restrained and an injunction issue restraining each of them from physically disciplining the child, other than by use of reasonable domestic discipline.
AND IT IS FURTHER ORDERED THAT
48.In the event that either parent fails to comply with a request to sign and return any document necessary to put the terms of this Order into effect, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the parent who has declined to comply with such request.
49.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than any appeal in respect of these Orders or any future parenting proceedings or any future proceedings to enforce this Order.
50.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
51.All outstanding applications are otherwise dismissed.
52.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cranage & Hernandez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
X was born in Australia in 2009. Both his parents were born in the Country J; his 17 ½ year old sister B[1] was born in Country D; his 16 year old sister C[2] was born in the Country J.
[1]Who was born in 2004 and who, biologically, is X’s half-sister but whom I have no doubt he regards as his sister for all intents and purposes.
[2]Who was born in 2005 and who, biologically, is X’s half-sister but whom I have no doubt he regards as his sister for all intents and purposes.
X has always lived primarily with his mother and sisters. He has never visited the Country J. Previous proceedings about his parenting regime were finalised when Federal Magistrate Lapthorn[3] made orders by consent on 25 February 2013. The February 2013 orders, which have been implemented by the parents, provided for X’s parents to have equal shared parental responsibility for the major long-term issues relating to him and for him to live with his mother and spend time with his father in a graduated, increasing manner.
[3] as his Honour then was.
Since he started Grade 1 in 2016, X has spent time with his father as follows:
(a)every second weekend from after school Friday to before school Tuesday; and
(b)for half of the Easter, June/July and September/October school holidays (being the first half in even numbered years and the second half in odd numbered years); and
(c)for half of the Christmas school holidays (being the first half in even numbered years and the second half in odd numbered years) with changeovers to occur on Saturdays at 5.00 pm.
He has also spent time with his father, as specified in the February 2013 orders, on various “special” and celebratory days.
Despite the father’s evidence that he had concerns about the manner in which the mother has cared for X – both before the February 2013 orders were made and since then – the reality is that he agreed to the terms of that order; further, he has not, at any time since such orders were made by consent, initiated a return to Court to seek to vary them.
Given the information recounted above, one would be forgiven for wondering why these parents are again before a court invested with jurisdiction to make parenting orders about X.
The answer to such query may be stated simply: they are before the Court because, whilst X and his father are citizens of Australia, his mother and sisters are not. Whilst X and his father have the right to continue to live in this country, X’s mother and sisters do not – unless they are accorded the same by decision made by the Minister for Home Affairs (“the Minister”).
X’s mother and his sisters first arrived in Australia on 19 March 2006; they did so as dependants of Mr Hernandez (X’s sisters’ father), who was in Australia on a subclass 457 [Temporary Work (Skilled)] visa.
X’s mother and sisters have lived in Australia since 1 June 2007. It is unnecessary to detail matters relating to their visas at various times since then, other than to note that: an application made on 30 March 2012 for Protection (subclass 866) visas was refused on 31 July 2012; following further processes, they were granted Bridging E (subclass 050) visas; on 14 June 2018, the Department of Home Affairs determined that it would no longer issue any further bridging visas and required the mother and her daughters to leave Australia by about 11 July 2018; on 27 June 2018, the Assistant Minister for Home Affairs exercised his personal powers of intervention under s 195A of the Migration Act 1958 (Cth) (“the Migration Act”) to grant them Bridging (Removal Pending) (subclass 070) visas. Such visas, which permit X’s mother and his sisters[4] to remain living in Australia, do not have a ceasing date. However, it is uncontroversial that they would cease if the Minister gave each of X’s mother and sisters a notice stating that the Minister is satisfied that their removal from Australia is reasonably practicable or that they had breached a condition to which the visa is subject.[5]
[4]who, because of the grant of visas, are each regarded, for the purposes of the Migration Act, as “lawful non-citizens”.
[5] Migration Regulations 1994 (Cth), Sch 2 cl 070.5.
X’s mother initially applied to the Court for an order that, in the event that she and X’s sisters were removed from Australia pursuant to the implementation of the terms of the Migration Act, she be permitted to relocate X from Australia to live with her and his sisters in the Country J.[6] I accept that she sought such an order to ensure that, if she and X’s sisters were removed from Australia, X would accompany them and not be separated from them – not because she wanted to relocate X to live in the Country J or because she thought his best interests would be served by living in the Country J.
[6] Initiating Application filed 22 May 2018.
The urgency first associated with the mother’s initial application dissipated when, as noted earlier, the Assistant Minister for Home Affairs exercised his personal powers of intervention to grant her and X’s sisters the current visas pursuant to which they remain in Australia.
The mother now seeks that the Court make an order to restrain her from relocating from Australia until X’s 18th birthday; she also seeks that the Minister be joined to the proceedings and that the Court make an order restraining the Minister from revoking or cancelling her visa and those of X’s sisters – albeit that, after submissions were made by Counsel for the Minister about the effect of the Minister giving the mother and her daughters a notice in the terms noted in paragraph [8] above, Counsel for the mother intimated that the terms of the injunctions sought should be considered to include this action as well. I have proceeded on this basis.
The Minister opposed being joined to the parenting proceedings between X’s parents – proceedings which I consider are in existence only because of the prospect that the Minister might give the mother and X’s sisters the notice referred to above and thereafter act to remove them from Australia – on the basis that this Court does not have jurisdiction and, if it does have jurisdiction does not have the power, to make the orders sought by the mother insofar as the Minister is concerned.
Before expressing my conclusions about these issues, it is, I think, appropriate that I first express my findings about those considerations relevant to a determination of those parenting orders which are now in X’s best interests. This course is, I consider, appropriate because, if I determined that X’s best interests were met by moving to live with his father it would be unnecessary to consider the relief sought by the mother against the Minister.
In determining those orders which are in X’s best interests, the following is apposite:
(a)given that the statutory framework does not deal differently or specifically with cases involving a proposed relocation of a child, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[7] and, subject to s 61DA, s 65DAB[8] and Division 6 of Part VII of the Act, the Court may make such parenting order as thought proper;[9] and
(b)whilst I must regard X’s best interests as the paramount consideration[10] in deciding whether to make a parenting order, such interests should not be viewed in the abstract or separate from the circumstances of his parents:[11] the statutory exhortation to regard his best interests as the paramount consideration does not mean that the legitimate desires and interests of his parents are to be completely ignored – rather, where legitimate parental interests conflict with X’s best interests, the former must give way;[12] and
(c)whilst the matters to be considered in determining those parenting orders which are in X’s best interests are as prescribed by s 60CC of the Act, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[13]
[7] Family Law Act 1975 (Cth) s 60B.
[8] Parenting plans.
[9] Family Law Act 1975 (Cth) s 65D.
[10] Family Law Act 1975 (Cth) ss 60CA, 65AA.
[11]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[12]Ibid.
[13] Banks v Banks (2015) FLC 93-637.
It is also appropriate that I record that, where the evidence given by X’s parents differs, I prefer that given by his mother to that given by his father. I do so because I have concluded, based on, by way of example only:
(a)the evidence the father gave when cross-examined about the circumstances surrounding him bringing X to Court on the second morning of the trial – which started with the assertion that the child had been unwell that morning and he had been unable to arrange for anyone else to care for him but which ended with the clear demonstration that the father had, in fact, arranged with his brother after Court on the first day of the trial that each of them would bring their children to Court the following morning; and
(b)the difference between the assertion in his affidavit filed 21 October 2019 that his older son Y[14] “lives with his mother in Suburb E and spends regular time with me” and his evidence when cross-examined, which was to the effect that Y had not spent any time with him for about eight months prior to the trial and which included, ultimately, his acceptance that what he had said in his affidavit filed 21 October 2019 about Y spending regular time with him was untrue,
that the father is not a witness of truth.
[14] Who was born in 2001.
The competing proposals
The mother[15]
[15]Mother’s Case Outline filed 6 November 2019.
I accept that, when interviewed for a Family Report prepared by Ms F in 2012, the mother’s position was that, if she was required to leave Australia, she then believed it would be best for X’s future if he remained in Australia with his father.[16] It was after this that the parents entered into the February 2013 orders by consent, which reflected their agreement that X’s best interests would be met by him continuing to live primarily with his mother and spending regular and fairly significant time with his father.
[16]Family Report dated 28 February 2012 at [113(h)].
The mother proposed that X live with her; she also proposed that, if she was able to obtain a visa granting her permanent residency in Australia, he continue to spend time with his father as he has done since the February 2013 orders were made but, if she is deported from Australia to the Country J, she be permitted to relocate X to live with her and his sisters in that country. In that eventuality she proposed that X communicate with his father every Monday, Thursday and Sunday via telephone or other electronic means and spend time with him during the Country J school holidays in the Country J in odd-numbered years and in Australia in even-numbered years (with the father to accompany X on flights until he is 16 years of age) as follows:
(a)from the first week of April to the first week of May in each year; and
(b)for all of the semester break in the third week of October (that is, for a period of one week); and
(c)during the Christmas school break: from the fourth week of December to right after New Year.
I accept that, when interviewed by Ms H[17] in June 2018, the mother’s proposal was that, if X was permitted to relocate with her to live in the Country J, he should spend time with his father when the father could travel to the Country J and otherwise see him in Australia about once every three years, at the father’s cost.[18] She also proposed that X communicate with the father via Skype or similar means no less than three times each week (Tuesday, Thursday and Sunday).[19]
[17]a Family Consultant who authored a Family Report dated 27 June 2018 (arising from interviews conducted on 19 June 2018) and a Family Report dated 17 September 2019 (arising from interviews conducted on 17 September 2019).
[18]Family Report dated 27 June 2018 at [17].
[19]Family Report dated 27 June 2018 at [18].
I accept that the mother’s proposal, if she was removed from Australia and permitted to relocate X to live with her and his sisters in the Country J, ultimately involved X returning each alternate year to Australia to spend time with his father during the school holidays and that, on the proviso she receive appropriate notice, he spend time with his father in the Country J on any occasion the father travelled there. She also proposed regular and frequent communication by telephone or other electronic means.
Her proposal for X’s time with her if she was removed from Australia and not permitted to relocate X to live with her in the Country J was that he spend all of the Australian school holidays with her in the Country J, with the father to meet the costs of this travel.[20]
The father[21]
[20]Family Report dated 27 June 2018 at [19].
[21]Father’s Case Outline filed 5 November 2019.
The father’s evidence included that, if the mother remained living in Brisbane, the only change to the current orders he sought was that X spend an extra night (that is, Thursday night) with him. It is, I think, also pertinent to record that he also said that, in such a scenario, whilst he would love X to live with him, he was worried about how this would impact upon X and that he recognised the benefit and importance to X of continuing to live with his mother.
When interviewed by Ms H in June 2018, the father proposed that X live with him in Australia and spend time with the mother as often as she could travel to Australia.[22] Such proposal ignores the reality that, if the mother is removed from Australia by the Department of Homes Affairs, she will be unable to enter this country for three years from the date of her removal.
[22]Family Report dated 27 June 2018 at [21].
The father told Ms H that X should communicate with his mother no less than three occasions each week by Skype;[23] he said he could facilitate one visit by X to the Country J each year but on the basis that he would pay for his own flight to accompany X there and the mother would have to meet the costs of X’s return flights between Australia and the Country J.[24] He proposed that, if X lived in the Country J with his mother, he should spend all of his school holidays with him in Australia and communicate with him on no less than three occasions each week.[25] He told Ms H that he could only travel to the Country J once a year to see X.[26]
[23]Family Report dated 27 June 2018 at [23].
[24]Family Report dated 27 June 2018 at [22].
[25]Family Report dated 27 June 2018 at [24].
[26]Family Report dated 27 June 2018 at [24].
When he spoke with Ms H in September 2019, the father told her that, regardless of the outcome of the mother’s immigration status, he wanted X to live with him; he said this was because he believed that he was best able to care for and meet X’s needs.[27] In support of this expressed belief, the father told Ms H that, whilst he drove X to and from school, the child caught the bus when living with his mother. This appeared to be the entirety of what he told Ms H underpinned his position that X’s best interests would be met by changing his long-standing primary care arrangements and decreasing significantly the time he would spend with his mother and sisters.[28]
[27]Family Report dated 17 September 2019 at [24].
[28]Family Report dated 17 September 2019 at [25].
Despite the above, when Ms H told the father that X had expressed the wish to continue to live with his mother, but spend an extra day a fortnight with him (the father), the father indicated he would be agreeable to this.[29]
[29]Family Report dated 17 September 2019 at [26].
The father’s final position[30] was that he should be accorded sole parental responsibility for major long-term issues relating to X and that X should live with him, communicate with his mother on three occasions each week by telephone and, provided that such time occur in a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”), spend time with his mother as follows:
(a)in even-numbered years: for all of the Queensland gazetted school holiday periods in March/April (at the end of Term 1) and September/October (at the end of Term 3) and for the second half of the Christmas school holidays; and
(b)in odd-numbered years: for all of the Queensland gazetted school holiday period in June/July (at the end of Term 2) and for the first half of the Christmas school holidays.
[30] Amended Response filed 8 October 2019.
Given that the Country J is not a signatory to the Convention, this proposal would involve X travelling to a country other than the Country J on three occasions in even-numbered years and twice in odd-numbered years in order to spend in-person time with his mother (and sisters) if they have been removed from Australia by the Minister. It is obvious that X travelling to, and spending time in, a country other than where his mother and sisters would be living if removed from Australia by the Minister would be more costly than if X was able to spend such time in the Country J.
The father also proposed that the costs of X’s travel to spend time with his mother be shared equally by the parents: he suggested that the mother pay for the flight/s associated with X travelling to whichever country was agreed for their time together and that he pay for the flight/s associated with X’s return to Australia. Given that both parents appeared to agree that X should not travel as an unaccompanied minor for some time, any travel outside Australia would necessarily require his father to accompany him and would, therefore, involve this additional cost. Further, it was clear that the father expected that the mother meet all of the costs of accommodating X during his time with her; his evidence included that he could not commit to any order that required him to share in the costs associated with X’s mother and sisters travelling from the Country J to for example, New Zealand and their accommodation costs while they were in that country to spend time with X. Further, having accepted that his proposal for X to spend time with his mother and sisters, for example, in New Zealand would be very costly to implement (noting his estimate of costs was between $5,000.00 and $6,000.00 per trip), he accepted it was a possibility that, if the mother was unable to earn sufficient funds in the Country J to meet the costs associated with her and his sisters travelling to spend time with X, it would mean that X would not get to see them. I note that, when asked to comment on how possible he thought it was that X might not, in fact, be able to spend any time with his mother and sisters if they were removed from Australia and he remained living this country, the father stated that, if the mother really wanted her relationship with X to continue, she would make it happen: “if there’s a will, there’s a way”.
I consider that the father’s evidence, when cross-examined, overwhelmingly established the impracticality of his proposal. I am easily persuaded that, whilst the proposal summarised above may “read” well, it is nothing more than a theoretical prospect: if living in the Country J the mother simply would be unable to afford to meet half of the costs of the proposed travel and associated accommodation and other costs; further, the father’s evidence, in effect, included that he, too, would struggle to meet the costs associated with actually implementing his proposal. Following the father’s cross-examination, I was also certainly left with the very strong impression that he would not pay any more toward the costs of ensuring X would have the opportunity to spend time with his mother and sisters than, at best, meeting his own costs of travel and accommodation once each year.
Consequently, I have no doubt at all in concluding that the chances of the father’s proposal for X’s time with his mother and sisters – if they are removed from Australia and he moves to live with his father – actually being implemented are so remote as to deserve the description of “non-existent”. I think it much more likely than not that, at best, X might be afforded the opportunity to spend in-person time with his mother no more than once each year.
In the event that the mother is permitted to relocate X to live with her (and his sisters) if they are removed from Australia by the Department of Home Affairs after the Minister gives the notices referred to in paragraph [8], the father’s position was that X should spend the same time with him as he proposed him spending with the mother if he remained living in Australia (but moved to live with his father). However, it is obvious that, if the mother is permitted to relocate X to live with her and his sisters in the Country J, he will attend school there and, consequently, whatever time he spends with his father needs to occur during the Country J school holidays.
The benefit to X of having a meaningful relationship with both of his parents
The term “meaningful” is not synonymous with the term “optimal”. The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life. In McCall v Clark,[31] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach: that is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents.
[31] (2009) FLC 93-405.
I agree with X’s parents that he will benefit by having a meaningful relationship with each of them. I consider that both parents recognised that the most appropriate way to ensure that X reaped all of the benefits associated with having a meaningful relationship with each of them was to implement the terms of the February 2013 orders to which they agreed; I also consider that a consequence of the implementation of those orders to date has ensured that X has had the opportunity to develop and maintain meaningful relationships with both of his parents.
For reasons expressed later, I consider that the mother is the parent best able to ensure that X has a meaningful relationship with both of his parents; she has, I consider, the greater capacity to continue to support X in having an ongoing relationship with his father than his father has to support X’s relationship with his mother.
The need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[32]
[32]Family Law Act 1975 (Cth) ss 60CC(2)(a), (2A).
Whilst the resolution of allegations of physical and emotional abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in X’s best interests,[33] consideration of the same is clearly necessary given that the legislation imposes an imperative of protecting X from harm.[34]
[33] M v M (1988) 166 CLR 69.
[34] Family Law Act 1975 (Cth) s 60CC(2)(b).
The father maintained that X is at risk of suffering harm whilst in the mother’s care because he asserted she had left X with strangers and exposed him to persons who may have been paedophiles. However, such allegations did not, it seems to me, withstand the rigour of
cross-examination which revealed the father’s belief that he can tell, from the way a person moves their body, whether that person is a paedophile and that his concern about the mother’s asserted actions in this respect was based on his observations, at a party which he and the mother both attended, of how unnamed people moved their bodies – which apparently led him to conclude that they may have been paedophiles.
I accept the mother’s evidence that, whilst she may have left X with friends of hers who are not known to the father, she has not left X with people who are unknown to the child. I am certainly not persuaded that she has ever knowingly left X in the care of any person who may harm him.
I am not persuaded on the evidence that the mother has, in her parenting of X, done anything to place him at risk. I accept that, despite having alleged in the previous proceedings that the mother was a drug addict and alcoholic and an unfit parent, the father agreed in February 2013 that X’s best interests were met by orders which saw him continue to live primarily with his mother and spend regular time with him.
I am not persuaded that the mother has ever threated the father that, if she is forced to leave Australia and is permitted to relocate X to live with her in the Country J, he (the father) will never see X again: I simply do not accept that, in such a scenario, the mother would prevent X from travelling to Australia to spend time with his father here – especially given her evidence that, even if they are removed from Australia, her daughters intend to apply in the future to undertake tertiary study in this country.
I note the father’s concerns that, if X is required to leave Australia to relocate with his mother to live in the Country J, X will suffer serious psychological harm because he has never been to the Country J, does not know the language and will be separated from his family and friends in Australia. Whilst I accept that moving with his mother to live in the Country J would remove X from all (other than those from whom he has received his primary care and with whom he has primarily lived for all of his life) that is familiar to him, I consider that his mother is entirely capable of supporting him to deal with such a significant change if it is otherwise determined to be something which – if his mother is removed from Australia by the Department of Home Affairs – is in his best interests that he be required to do.
The mother’s concerns that, if he moves to live primarily with his father, X will be at risk of harm via exposure to family violence needs to be considered in the context of the following.
I note that, when Ms H asked X in June 2018 to describe his parents’ relationship, he shared with her a vague memory of his parents fighting, during which his father knocked a chair over and he saw his mother crying in the front door.[35] I accept that he told Ms H that he knew that his father was angry during arguments by his facial expressions and because he hit walls and doors.[36] I also accept that he told Ms H that his mother had showed him a police report which contained details of an occasion on which she had suffered a bloodied nose after intervening to protect his sisters from his father.[37] X’s comments to Ms H about his father’s behaviour are, it seems to me, similar in nature to those he made to Ms G, a psychologist with whom he spoke in early 2018.
[35]Family Report dated 27 June 2018 at [92].
[36]Family Report dated 27 June 2018 at [93].
[37]Family Report dated 27 June 2018 at [94].
When cross-examined, the father’s evidence included that, after Court on the first day of the trial, he told X he had been in Court about him; the father said he also told X there was a possibility he might go home to the Country J to live with his mother and asked him what he felt about that; he said he had told X not to worry about what he felt and that what he (the father) really wanted him to think about was what he (X) wanted, because they were talking about his future and what was best for him. I accept he told X it would break his heart if he was far away from him. Given all of these comments, it is entirely unsurprising that, on the father’s recounting, X then told him that: he would be sad if he went to the Country J and lived there as he would miss him; he wanted to stay here; his life is better here; whilst he would miss his mother and his sisters, his life would be better here as his friends are here, he was born here and he grew up here. Whilst his evidence about his actions also included the assertion that his purpose in telling X those things he recounted was not to influence or upset the child, both of these were, I consider, highly foreseeable consequences of the father’s conduct.
Other aspects of the father’s cross-examination also revealed, I consider, that, after Court on the first day of the trial, the father formulated a plan with his brother whereby he would bring X to Court with him the next morning and his brother would bring four of his children (three of whom were of school age) to Court that morning also. The father and his brother implemented this plan. As a consequence, the mother was required to seek assistance from others at Court to help her have X leave the Court building; I accept that the father’s conduct whilst the mother was trying to remove X from the Court building was such as to require intervention from security staff to ensure that the father moved away from the lift when X and his mother were in it.
I consider that X was exposed to unpleasantness, stress and conflict only because his father decided to bring him to Court rather than send him to school. That the father acted as he did persuades that his capacity to make child-focused decisions is, at its kindest, significantly impaired – as, I consider, is his capacity to appreciate the likely adverse impact on X of being exposed to entirely avoidable parental conflict that was generated only by his considered decision to bring X to Court and arrange for his brother to bring his children to Court also.
Whilst I fully accept that these proceedings are highly likely to have been very stressful for both of X’s parents, I consider that the father’s manifested inability to conduct himself calmly in front of X suggests that, as other aspects of the evidence raises, he has difficulty controlling himself on occasions and managing his behaviour so that X is not exposed to conflict.
Given that I accept that it is much more likely than not that, as X was being removed from the floor in the Court building, the father raised his voice toward the mother and others assisting her, the father’s conduct that day also buttresses the mother’s evidence that he has, on occasions, previously verbally abused her in front of X.
Further, the father’s conduct on the second morning of the trial certainly gives weight to the mother’s concerns about the possibility that, if he moves to live with his father, X may be exposed to family violence.
I consider that the father’s actions after Court on the first day of the trial and on the second morning of the trial demonstrate clearly an incapacity to act to shield X from exposure to Court proceedings; his attempt to rationalise his actions as being based on a desire to tell his son “the truth”, to always be honest with him and not to hide things from him was, I consider, little more than an attempt to cast his actions in a more favourable light once he realised the possible impact of them on his case.
The father’s conduct in bringing X to Court on the second day of the trial also demonstrates, in my view, that the mother’s concern that he is unable to meet X’s emotional needs appropriately is well-founded.
Given the father’s actions, I consider there is a real risk that X is likely to suffer some emotional harm if required to move to live primarily with his father. I consider that the risk and magnitude of such harm would be increased if X was unable to spend regular and frequent in-person time with his mother – as would be the case if she and his sisters are removed from Australia by the Department of Home Affairs following notice having been given by the Minister.
X: his views; his relationships, attachments and interactions with his parents[38]
[38] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (g).
Ms F’s 2012 report
Ms F, a Family Consultant, prepared a Family Report in 2012 in the course of the proceedings resolved by the February 2013 orders. I accept that, at that time, she assessed X as having a close bond with his sisters; I accept her assessment that he appeared settled and appropriately cared for in his mother’s primary care. I accept that, whilst she noted that X had a very strong attachment and bond with his father,[39] she also assessed his close primary attachment as being with his mother. I accept Ms F’s assessment that, overall, the indications then were that X was secure, settled and emotionally stable in his mother’s primary care and that she had demonstrated she was able to meet his emotional, physical and protective needs.[40] I accept Ms F’s evidence that, in 2012, it was reasonable to assume that, if X then moved to live with his father, he would experience significant loss and grief, to the extent that this would impact – I infer, negatively – on his overall emotional and psychological wellbeing.[41]
[39]Family Report dated 28 February 2012 at [153].
[40]Family Report dated 28 February 2012 at [167].
[41]Family Report dated 28 February 2012 at [165].
Given that the parents subsequently entered into the February 2013 orders in terms which provided for X to continue to live primarily with his mother and spend regular and frequent time with his father, it is open to infer that both of them accepted the thrust of Ms F’s opinions about the likely negative consequences for X of then moving to live with his father.
Ms G’s 2018 report
I accept that Ms G, a clinical psychologist engaged by the mother to evaluate the likely behavioural, emotional and cognitive impact on X of being separated from her, interviewed the mother[42] and X[43] on 30 January 2018 and spoke with the mother again by telephone on 13 and 19 February 2018.
[42] For an hour.
[43] For 30 minutes.
I accept that, despite having initially indicated a willingness to be involved in the interview process, the father did not participate in it. Consequently, Ms G’s report, dated 19 February 2018,[44] is based only upon accounts provided by X and his mother.
[44] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”.
I accept Ms G’s report that X presented as a polite, intelligent and engaging
eight-year-old boy who did not appear anxious and who was able to discuss his emotions with her openly. I accept he indicated to Ms G that he knew little about his Country J heritage and that he had conceptualised the Country J as a dangerous country. I accept X told Ms G that his relationship with his mother was close and that he preferred not to be away from her; I accept he became visibly upset when asked about his thoughts and feelings about his mother’s potential deportation: I accept he told Ms G that, if he was allowed to go to the Country J with his mother, he would – because “everyone needs a mum”.[45] I accept he told Ms G that he did not cry with his mother because he was “trying to be brave”, but often cried at night so that she did not know.[46] I also accept that he reported having some recent nightmares, which involved strangers attacking his family. I note Ms G thought that his reports of crying and nightmares indicated the psychological stress he was already experiencing and I have no reason not to accept her assessment in this respect.
[45] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 6 of 12.
[46] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 6 of 12.
I accept Ms G’s assessment that X’s discussion with her revealed that he had a good relationship with his sisters: whilst he told her he often argued with them, he also told her that they got along well at other times. I accept Ms G’s recounting that X displayed grief at the thought of losing his sisters; I accept he told her that: “if they had to go I would feel sad sad sad”.[47]
[47] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 6 of 12.
I accept that X told Ms G that he did not want to live with his father; I also accept that he told her that his father “yells a lot”.[48] The father’s conduct on the second morning of the trial, as discussed earlier, supports the conclusion that X was accurate in recounting his father’s behaviour to Ms G. I also note, though, and accept that, when she asked him about good times with his father, X told her that he spent time with his father “playing basketball or video games”.[49] I accept that X also told her that he had a paternal aunt and uncle “who are fun” and that he said that he saw his paternal grandparents “sometimes”.[50]
[48] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 6 of 12.
[49] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 5 of 12.
[50] Affidavit of the mother filed 22 May 2018, Annexure “MH-2”, page 5 of 12.
I accept that, during Ms G’s interaction with each of them, the mother and X both expressed their deep distress at the prospect of being separated.
As there was no challenge to Ms G’s opinions, I accept her report that literature indicates that children separated from a parent due to deportation are at increased risk of experiencing severe behavioural and psychological impacts; I have no difficulty at all in accepting her contention that separating X from his mother would likely negatively affect his development, particularly in relation to him developing his self-concept. Similarly, I have no difficulty in accepting her opinion that a child’s sense of security is rooted in relationships with familiar caregivers. Given X’s past parenting regime, I consider it much more likely than not that his sense of security is predominantly located in his relationships with his mother and, to a lesser extent, his sisters. Given that there was no challenge to it, I accept Ms G’s opinion to the effect that the available research indicated that, if X was separated from his mother and sisters, he would likely experience significant short and long-term developmental and mental health impacts, which, in turn, would likely impact adversely on his life trajectory.
Ms H’s 2018 report
X was eight years and nine months of age and in Grade 3 when he was first interviewed by Ms H (a Family Consultant who has authored the more recent Family Reports[51] prepared to assist the Court) for the preparation of the 2018 report. I accept Ms H’s description of him as being “confident and articulate” and her report that he thought he was being assessed so his mother could stay in Australia and that what she was writing was going to go to the Minister for Home Affairs.[52]
[51]Dated 27 June 2018 (arising from interviews conducted on 19 June 2018) and dated 17 September 2019 (arising from interviews conducted on 17 September 2019).
[52]Family Report dated 27 June 2018 at [69].
I accept that, whilst he told Ms H that he and his sisters fought sometimes, X spoke positively about his living arrangements with his mother; I accept he said he had more fun at his mother’s home than at his father’s. I accept he told Ms H “I think he’s being nice so I stay with him, but I want to go with [m]um”.[53] I also accept he described crying when his father hurried him up to get to school by screaming at him.[54] Not only is X’s recounting about his father’s behaviour toward him consistent with his report to Ms G,[55] it is supported by his father’s conduct in raising his voice at the mother and those assisting her to remove X from the Court building on the second morning of the trial.
[53]Family Report dated 27 June 2018 at [74].
[54]Family Report dated 27 June 2018 at [75].
[55] As summarised in [47].
I accept X told Ms H that his father had shown him “bad stuff” about the Country J in order to persuade him to stay with him: he said the father had shown him images of a river with rubbish in it and had told him about the risk of murder in the Country J.[56] However, he also told Ms H that his mother’s home in the Country J was not near a river with rubbish and reasoned that there are murders and bad people everywhere.[57]
[56]Family Report dated 27 June 2018 at [76].
[57]Family Report dated 27 June 2018 at [77].
I accept that, when Ms H explored X’s comment about wanting to “go with [m]um”, he told her that he wanted to live with his mother because “if I live with [d]ad, he might do bad stuff to me. He is kind of, do you know when I said he was mean to me and yells at me. If I stay with him, maybe, I will become a bad person… he will teach me bad stuff in life”.[58] I accept he also told Ms H that, if he stayed with his mother, she would teach him “morals”, which he described as “good stuff” – which he identified as including: “don’t lie, be kind, sometimes don’t fight back, be nice to everyone”.[59]
[58]Family Report dated 27 June 2018 at [78].
[59]Family Report dated 27 June 2018 at [79].
I accept that, when Ms H asked him what morals he thought his father would teach him, X said “maybe all men for themselves. He is kind of selfish. Once I gave him something and he didn’t say thank-you”.[60]
[60]Family Report dated 27 June 2018 at [80].
I accept that, in the course of discussing moving to the Country J, X told Ms H that he imagined moving there would be kind of hard as he did not know the language; however, he also said that, as his mother planned to send him to an English-speaking school, he thought he would be okay in relation to speaking English;[61] he told her that he thought making friends in the Country J may be hard but he would make them easily if he joined a soccer team, as this had been his experience in Australia.[62]
[61] Family Report dated 27 June 2018 at [82].
[62] Family Report dated 27 June 2018 at [83].
I accept that X told Ms H that, if he lived with his mother in the Country J, he would not see his father for three years: something he said his mother had told him.[63] I also accept he said that he imagined he would feel “kind of sad” not seeing his father for three years, but then added “but I can kind of deal with it because I don’t want to live with someone mean for a couple of years before I go back to the Country J to visit mum”.[64]
[63] Family Report dated 27 June 2018 at [84].
[64]Family Report dated 27 June 2018 at [85].
I accept X told Ms H in June 2018 that, if he lived with his father, he would feel “kind of depressed” – which he explained meant “really really sad”;[65] I accept he said living with his mother would be more fun than living with his father, because he would have no one to play with; I accept he said his mother was “kind of fun, little mean, not all the time” and that his father was “mean, selfish, not that selfish… kind of fun”.[66]
[65] Family Report dated 27 June 2018 at [88].
[66]Family Report dated 27 June 2018 at [89].
I accept Ms H’s assessment that, as at June 2018, X was not then of an age or maturity whereby he could fully understand the consequences of his articulated wish to relocate with his mother to the Country J.[67] I note and accept her conclusion that X did not then fully understand the “actual totality of what would lie ahead of him” in making such a move;[68] I accept she did not believe he fully appreciated how difficult it would be for him to adjust to living in a different country, particularly one that did not share many similarities with Australia, where he has lived all of his life.[69]
[67]Family Report dated 27 June 2018 at [119].
[68]Family Report dated 27 June 2018 at [119].
[69]Family Report dated 27 June 2018 at [120].
I accept that, having observed his interactions with each of his parents, Ms H considered that X appeared comfortable with both of them. I also accept, though, that she assessed X as having then predominantly experienced his mother as his primary care provider; I accept that, consequently, a change to this circumstance would likely be “worrisome” for him.[70] I also note that, with this in mind, Ms H considered that X’s stated wish to live in the Country J related more to his primary desire to live with his mother and sisters.[71] There is no reason on the evidence to discount this latter assessment.
[70]Family Report dated 27 June 2018 at [122].
[71]Family Report dated 27 June 2018 at [122].
Given that I accept the mother was truthful when she told Ms H in 2018 that X had been really clingy and had reported having nightmares, I accept Ms H’s assessment that these behaviours suggested that he was then experiencing some emotional difficulties about the prospect of being separated from his mother.[72]
[72]Family Report dated 27 June 2018 at [36].
Ms H’s 2019 report
X was nearly 10 years old and in Grade 4 when Ms H interviewed him for the 2019 report. I accept that, when Ms H spoke with X about his father’s assertion that he (X) had told him that he wanted to live with him (his father) X cried and appeared stressed.[73]
[73]Family Report dated 17 September 2019 at [30].
I accept Ms H’s account that X proposed to her that he spend an extra day with his father because he sometimes missed him when he was with his mother; I accept he told her that he had spent most of his life with his mother and did not really get to see his father.[74] However, I also accept that, when he was asked about living with his father, X told Ms H that “he kind of wouldn’t like that”, as he thought a son should not be separated from his mother “because she made you”.[75] I accept that, when Ms H asked X whether his views about his living arrangements changed if his mother and sisters lived in the Country J, he told her that he still wanted to live with his mother because “you’re not supposed to be separated” from your mother; when she asked him how he formed these thoughts, he told her “it’s just a feeling that I have”.[76]
[74]Family Report dated 17 September 2019 at [33].
[75]Family Report dated 17 September 2019 at [34].
[76]Family Report dated 17 September 2019 at [36].
I accept that, when Ms H asked X whether he had told his father that he wanted to live with him, he told her that he had – I accept he told her that he had done so when his father asked him that directly. I accept he also said that he had told his father that he wanted to live with him because he was concerned about how his father would react if he told him that he wanted to live with his mother: “he might yell at me”.[77] I accept he said that he had just had a feeling that his father would yell at him.
[77]Family Report dated 17 September 2019 at [34].
I also note that, when interviewed by Ms H in September 2019, the father told her he thought X would be “ecstatic” if his mother remained living in Australia because the child had expressed such a view to him.[78]
The parents: the relevant s 60CC considerations[79]
[78]Family Report dated 17 September 2019 at [26].
[79] Sections 60CC(3)(c), (f), (g) and (i) of the Act.
The mother
The mother has always been the primary carer for all three of her children. Despite the father’s assertions to the contrary, I accept that she has encouraged all of the children to have relationships with their respective fathers and that she does not want to prevent X from having a relationship with his father.
I accept that the mother has done everything she can to remain in Australia and that she is desperate to remain in this country. I accept that she would prefer to remain living here with her daughters and X and to continue to raise him in Australia. I accept entirely that, if the mother and X’s sisters are removed from Australia by the Department of Home Affairs pursuant to the provisions of the Migration Act following the issue of notices by the Minister, such removal will be completely against the mother’s wishes.
I accept that the mother was truthful when she told Ms H in June 2018 that it was not her preferred option that X grow up in the Country J.[80] I accept the mother was truthful when she told Ms H in June 2018 that she had told X that he could stay in Australia if he wanted to and that she would support this; I accept she was truthful when she told Ms H that X had told her that he wanted to remain living with her and his sisters. I accept the mother was truthful when she said that she thought that this was “psychologically way better” for him.[81] I accept that, from her perspective, X would be “alone” if he moved to live with his father.[82]
[80]Family Report dated 27 June 2018 at [33].
[81]Family Report dated 27 June 2018 at [33].
[82]Family Report dated 27 June 2018 at [37].
I do not accept the suggestion that the mother has been selfish in wanting to relocate X to live with her in the Country J if she and his siblings are removed by the Department of Home Affairs from this country. I consider that the mother has simply sought to be able to relocate X to deal with the very real prospect that she and his siblings will be removed from Australia. I accept that the mother has acted as she has in these proceedings because she genuinely and sincerely holds the view that, if she and X’s sisters are removed from Australia, X’s interests will be better served by remaining with her and his sisters (so that he can continue to be parented within their family unit as he has primarily been for the entirety of his life) than being separated from them and being required to live primarily with his father – particularly given that his circumstances in that scenario will include that X will, practically speaking, be highly unlikely to be able to spend frequent in-person time with them.
I accept that the mother fully appreciates that, if she is removed from Australia and permitted to relocate X to live in the Country J with her, he will have difficulty adjusting there because, whilst he can understand some Country J language, he does not speak it. I also accept, though, that she will do everything she can to support him to adjust to his changed circumstances.
I accept that, if the mother has to return to live in the Country J, she is likely to be financially dependent on her family and her daughters’ father for some time because, whilst she will most likely take up employment in a business operated by a family member, such employment is unlikely to provide her with sufficient funds; I accept that, provided her daughters’ father continues to pay her the $1,000.00 per month he currently provides for their support, she will be able to provide adequately for the family. I accept her evidence that her daughters’ father has never left them in dire financial circumstances and that she is confident that he will continue to provide for them financially in the same manner as he has in the past. I also accept that she is confident that, if she asked him to, he would continue to provide her with sufficient financial support and assistance to enable her to care properly for the children. I accept that she and the children will likely live in a property, situated in a gated community, she owns with her daughters’ father. I accept that she intends that X attend a school located within this community.
Whilst I accept the mother’s evidence to the effect that there is a possibility that, because X is fluent in English, he may be targeted by some of the local children, I also accept that she would do everything she can to support him should this occur. I accept that, should the school into which the mother proposes enrolling X turn out not to be suitable for him, she will investigate and locate an appropriate alternative and do her best to give X the best education she can.
The father
I accept that the father has consistently spent time with X in accordance with the terms of the February 2013 orders. As noted earlier, whilst he has been critical of the mother’s parenting capacity and her attitude to his relationship with their son, he did nothing to seek to change the existing parenting orders before the mother returned the matter to Court. Given that the father has never parented X as his primary care provider, his capacity to do so is unknown. Whilst Ms H commented in the 2018 report that, as X had not appeared to have experienced harm whilst in his father’s care, this suggested that he likely possessed the qualities needed for him to assume the role of X’s primary care provider,[83] such comment was obviously made well before the father’s actions during the trial.
[83]Family Report dated 27 June 2018 at [131].
The mother’s concerns about the father’s capacity to support X emotionally and psychologically if he moves to live with him if she and his sisters are removed from Australia need to be assessed having regard to the following.
I accept that, in her 2012 report, Ms F raised that the father was dismissive of the impact on X if he had moved then to live primarily with him; I note her report that the father told her, in essence, X was then still very young and had not formed a really strong bond with his sisters. I consider such comments to demonstrate a failure by the father to appreciate the almost inevitable negative impact on X of being separated from his mother and siblings.
Neither of X’s parents wants him to live permanently in the Country J: if his mother had the option, there is no doubt that she and X’s sisters would remain living with him in Australia. But that is not an option which I consider to be within her control.
The options facing X’s parents – and the Court – are stark: should he remain in the care of the parent with whom he has always lived primarily and accompany her if she and his sisters are deported to the Country J or should he be removed from his mother’s care to live, for the first time in his life, primarily with his father, in circumstances where it is uncontroversial that, if she is removed from Australia, his mother will be unable to return to this country for three years and, on the evidence before me, it is highly unlikely that he will be able to spend frequent in-person time with her?
Which of these stark options is in X’s best interests, despite neither being what either of his parents consider to be in his best interests?
As noted by Ms H, these proceedings and the parental dispute about those parenting orders which are in X’s best interests are not really of his parents’ making.[105] Rather, as I have already noted, they have been, in essence, required to deal with the prospect of X being separated from his mother and sisters if they are removed from Australia by the Department of Home Affairs. Absent that prospect, there is no doubt whatsoever that these parents would continue to co-parent X in the manner that they have since the February 2013 orders were made, particularly given the father’s evidence that, if the mother is permitted to continue to live in Australia, they should keep following the current orders whereby X lives primarily with his mother and spends time with him. Absent the mother and X’s sisters being removed from Australia by the Department of Home Affairs, it would clearly be in X’s best interests that his parenting regime continue substantially as it has been for all of his life.
[105]Family Report dated 27 June 2018 at [116].
I accept that both of X’s parents love him and want to be involved in his life. I accept that the mother does not want to be required to relocate X to live in the Country J but that she genuinely believes that, if she and his sisters are removed from Australia, it is in his best interests that he accompany them so that he can continue – albeit in a different country – to receive the benefits of her primary parenting of him as he has in the past. I accept that the father does not want X to move to live in the Country J and that he genuinely thinks that it is in X’s best interests that he remain living in Australia, even if that means he has to be separated from his mother.
There can be no doubt that it is in X’s best interests to have a meaningful relationship with each of his parents; similarly, there can be no doubt that it is in his best interests that he have the opportunity to continue to develop and maintain meaningful relationships with each of his sisters. That his parents agreed to the February 2013 orders in the terms that they did and that they have implemented them to date easily persuades me that both parents consider that X’s best interests have been, and will continue to be, met by him living primarily with his mother and spending regular time, during school term and on school holidays, with his father.
As the father accepted when cross-examined, it would clearly be beneficial for X if his mother is able to remain in Australia because this will enable X to have the benefit of regular and frequent time with both of his parents – as has been the case for all of his life. Further, as he also accepted, it was obviously also in X’s best interests for his sisters to be able to remain living in this country as well.
Whilst Ms H also concluded there was no pathway forward that was not going to have an adverse impact upon X and that, given this, the deciding factor was to determine which option was likely to have the “least harmful” effect on him,[106] such assertion ignores the pathway that would see X being able to continue to be cared for primarily by his mother and sisters in Australia and spending time with his father substantially in accordance with his historical parenting regime – a pathway which could continue if his mother and sisters are not removed from Australia. That, I consider without doubt, is the parenting regime that remains in his best interests.
[106]Family Report dated 27 June 2018 at [139].
I accept Ms H’s assessment that the quality of X’s relationship with each of his parents would most likely be adversely affected by long separations from either of them; I also accept her evidence to the effect that, whilst regular and frequent Skype (or other similar) communications might preserve the current quality of X’s relationship with each parent, this would not compensate for, or equal, the benefits he would experience from being able to continue to spend regular and frequent time with both of his parents.[107] Given these matters, I think it is unquestionably in X’s best interests for him to be able to have his current parenting regime continue in a manner that is substantially unchanged to that which has existed since February 2013.
[107]Family Report dated 27 June 2018 at [136].
I accept Ms H’s opinion, as expressed in the 2019 report, to the effect that she did not believe there were any grounds to warrant X living with his father. I also note that, in that report, she outlined that she did not have a strong view about whether it was in X’s best interests to spend an additional night with his father.[108] Whilst X has, I accept, a relatively close and established relationship with his father, this relationship is, in my view, secondary to the relationship he has with his mother; given Ms H’s evidence in particular, I am easily satisfied that X’s sense of stability and security in the world is predominantly obtained from his interactions with his mother. She is the parent from whom he has obtained the vast majority of his support to date; she is the parent who has, to date, ensured that his physical and emotional needs have been met; she, of his parents, is the parent better attuned to his emotional needs and, I consider, to acting so as to ensure his emotional needs are met in the future.
[108]Family Report dated 17 September 2019 at [51].
I am not persuaded that the nature and strength of X’s existing relationship with his mother, forged as it is out of the reality of her role as his primary carer, would be able to be maintained if X was to remain in Australia if his mother and sisters are removed by the Department of Home Affairs from Australia. I think the impost on X of what would be a forced separation from his mother would result in a seismic and fundamentally deleterious change to the nature of their relationship; it would remove from X the opportunity to continue to obtain the support and succour he has previously obtained from his mother’s care and presence throughout the entirety of his life to date. I am not persuaded that there is likely to be any benefit at all to X of such an occurrence or change. Similarly, I am not remotely persuaded that being separated from the familiar presence of his sisters would be in any way beneficial to X: in fact, such separation would, I think, be highly likely to cause him significant distress, as well as impacting negatively on the ongoing development of the sibling relationships which Ms H identified as being so important in his development.
These matters though, are only some of the factors to be considered. The most obvious and most significant is whether, if his mother and sisters are removed from Australia and he relocates with them to live in the Country J, X will be able to maintain a meaningful relationship with his father.
Whilst the nature of X’s relationship with his father is highly likely to be adversely affected if he is unable to continue to spend frequent in-person time with him, I do not accept the suggestion that it will be “impossible” for the father to maintain a relationship with X if he relocates with his mother to live in the Country J if she is removed from Australia. Given my conclusion that the mother has supported X’s relationship with his father since the parental separation, I consider that there is nothing to suggest that she would not continue to do so even if – contrary to her wishes and X’s best interests – decisions beyond her control result in the creation of significant geographic distance between X and his father.
I certainly accept, as I have already noted, that relocating to live in the Country J would disrupt every aspect of X’s life (other than his primary care arrangement) as he has experienced it to date and require him to adapt to a new educational system and learn and develop new language skills. However, being removed from the primary care of his mother and the ongoing presence of his sisters if they are removed from Australia and he remains living in this country would, I consider, cause X to suffer an even greater and fundamental disruption.
Consequently, if the mother is removed from Australia by the Department of Home Affairs, I consider it is in X’s best interests – in the circumstances which will be created as a consequence of such action – that she is permitted to relocate him to live with her and his sisters in the Country J.
Allocation of parental responsibility
I note that the father’s evidence included that, if an order was made for X to move to live with him and the mother was removed from Australia, he considered that it would be appropriate for the Court to accord him sole parental responsibility for the major long-term issues relating to X because to do so would minimise the difficulties associated with obtaining the mother’s consent whilst she was living in the Country J and it would be less confusing. However, when cross-examined, he did not accept the proposition that his own reasoning about the problems of distance for communication and decision-making suggested that, if X relocated to live with the mother in the Country J, she should be accorded sole parental responsibility for major long-term issues: instead, his view was that, in such a scenario, there should be an order for equal shared parental responsibility for major long-term issues.
The mother’s position was that she and the father should have equal shared parental responsibility for the major long-term issues relating to X.
The presumption that it is in X’s best interests that his parents have equal shared parental responsibility for him[109] does not apply in the present case. Given this, the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to X’s best interests being the paramount consideration.[110]
[109] Family Law Act 1975 (Cth) s 61DA.
[110] Cox v Pedrana (2013) FLC 93-537 at [19]; Family Law Act 1975 (Cth) ss 60CA, s 65AA.
In determining whether it is in X’s best interests for an order that his parents have equal shared parental responsibility for major long-term issues relating to him is made, it must be remembered that such an order requires the decision about major long-term issues to be made jointly[111] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[112]
[111] Family Law Act 1975 (Cth) s 65DAC(2).
[112] Family Law Act 1975 (Cth) s 65DAC(3).
It is, I think, particularly pertinent to note that, despite the matters discussed earlier in relation to the parental relationship, these parents agreed in February 2013 that it was in X’s best interests for there to be an order that they have equal shared parental responsibility for the major long-term issues relating to him. Should the mother be permitted to continue to live in Australia, it is, I think, clearly in X’s best interests for this position to continue. However, if the mother is removed from Australia by the Department of Home Affairs and, acting on the order to be made to permit her to relocate X to live with her and his sisters in the Country J, relocates X to live in the Country J, I consider his best interests will be better met by according the mother sole parental responsibility for issues relating to his education and health so as to ensure that there are no delays in attending to such matters. Whilst the orders will only require the mother to consult with the father about the issues of X’s health and education, there is nothing to prevent her from proceeding on the basis that she will not make any particular decision about those major long-term issues without first obtaining the father’s agreement to the same.
Otherwise, I consider X’s best interests will be met by orders which accord to his parents equal shared parental responsibility for be other major long-term issues relating to him.
Matters relevant to the terms of those other parenting orders that are in X’s best interests
The mother was unable, I think understandably, to say what financial contribution, if any, she would likely be able to make to the cost of X returning to Australia to spend time with his father. I consider that it is highly unlikely that, if the mother and X’s sisters are removed from Australia and live in the Country J, the mother will be able to make any financial contribution towards the cost of X’s flights to return to Australia to spend time with his father. In such a scenario, the father’s financial position will be overwhelmingly superior to that of the mother.
In the event that the mother and X’s sisters are permitted to continue to live in Australia then, it is appropriate, given the mother’s evidence that X had told her that he wanted to spend another night with his father if they stayed living in Australia, to make an order in those terms. To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in X’s best interests because such orders will, for example: enable both parents to be kept informed about him and his progress; afford X the opportunity to maintain communication with each parent in the time between face to face interactions; ensure, as far as possible, that X is protected from the harm which may be caused to him as a consequence of exposure to derogatory comments about each of his parents.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in X’s best interests.
OTHER RELIEF SOUGHT BY THE MOTHER
As noted earlier, the mother sought an injunction restraining her from relocating X to live with her in the Country J at any time before his 18th birthday. Whilst subsequent submissions made on behalf of the father did not oppose the Court making an order in such terms, it is, I think, relevant to record that this relief was not something the father sought in the Response filed in the Court. That is, the injunction proposed by the mother was not proposed to quell any controversy between herself and the father about the issue of X’s relocation.
Authority[113] clearly establishes that s 114(3) of the Act gives the Court a wide power to grant injunctions, including, provided that it is no more than is necessary to secure the best interests of a child, in terms that require a parent to relocate and discharge a parenting role in circumstances not of that parent’s choosing (the so-called “coercive” order).[114]
[113] Such as R v Ross-Jones; Ex parte Green (1984) 156 CLR 185.
[114] See, for example: Sampson and Hartnett (No 10) (2007) FLC 93-350.
However, in seeking that she be restrained from relocating X to live outside of Australia, the mother is not, in my view, seeking an order of a coercive nature, particularly given that that term may generally be regarded as meaning “something which is intended to make a person do something that they are unwilling to do”.
In the absence of any binding authority to the contrary[115] I am not persuaded that it could be thought “just” to make an order with which the mother will simply be unable lawfully to comply if the Minister issues the notice referred to in paragraph [8] of these Reasons and, in compliance with the relevant terms of the Migration Act, the Department of Home Affairs subsequently removes her from Australia.
[115]And noting that Counsel for the mother accepted that it is “unusual” for a party to ask the Court to restrain their own actions and that there do not seem to be any relevant cases to assist in this regard.
Consequently, I decline to make an order restraining the mother from relocating X to live with her in the Country J at any time before his 18th birthday.
RELIEF SOUGHT BY THE MOTHER AGAINST THE MINISTER
The mother also sought that the Court restrain the Minister from cancelling or revoking the visas, by which she and X’s sisters currently continue to live in Australia, until X’s 18th birthday. As noted earlier, I have proceeded on the basis that the relief sought includes restraining the Minister from issuing the notice referred to in paragraph [8] of these Reasons.
In arriving at my conclusions about this aspect of the mother’s application, I have been greatly assisted by the written and oral submissions made by Counsel for the mother and for the Minister. Having regard to the same and to the authorities to which I was referred, I have concluded as follows:
(a)s 114(3) of the Act does not confer jurisdiction on the Court but only confers a power which may be exercised by the Court only if it already has jurisdiction; and
(b)whilst wide, the injunction power conferred on the Court by s 114(3) of the Act does not enlarge the ambit of the Court’s jurisdiction; and
(c)given the clear statutory scheme enacted by Parliament via the specific terms of the Migration Act, absent a specific statutory grant of jurisdiction and then power to make injunctive orders of the sort sought by the mother, this Court does not have the jurisdiction or the power to make such orders in the circumstances considered here – namely, where there are no proceedings on foot between the mother and the Minister in which it is alleged or asserted that the Minister will act unlawfully in the discharge of his statutory functions and/or duties under the Migration Act; and
(d)if I am wrong in my conclusion about the absence of jurisdiction, the Act does not, by its provisions, empower this Court, in the circumstances which exist, to restrain the Minister or officers from the Department of Home Affairs from performing mandatory actions or duties cast upon them by the terms of the Migration Act – even if the performance of such actions or duties are likely to have a serious, detrimental impact on the welfare of a child who is a citizen of this country.
Given the conclusions expressed above, I decline to express an opinion about whether if, contemporaneously with proceedings in this Court, proceedings were on foot between a party and the Minister in which it was alleged that the Minister had or would act unlawfully in the discharge of his functions and/or duties under the Migration Act, this Court would have, because of the associated jurisdiction of the Court,[116] jurisdiction to hear and determine any application for injunctive relief pending the resolution of the dispute involving the Minister or whether, if such jurisdiction existed, it is specifically removed by the operation of s 484 of the Migration Act.
[116] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 29.
For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are the orders which are in X’s best interests in the circumstances which now confront him and his parents.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 7 December 2021
0
5
5