Dalston and Ninh (No 2)

[2019] FamCA 811

FAMILY COURT OF AUSTRALIA

DALSTON & NINH (NO. 2) [2019] FamCA 811

FAMILY LAW – CHILDREN – Interim international relocation – where the Mother plans to move overseas for employment – where the Mother has been the primary carer – where the Mother has removed the child from Australia and returned the child – where the parties seek equal shared parental responsibility – consideration of benefits of relationship with each party – risk of noncompliance with orders – where either option represents significant change in child’s circumstances – presumption of equally shared parental responsibility – consideration of child’s views.

Family Law Act 1975 (Cth)

APPLICANT: Mr Dalston

RESPONDENT: Ms Ninh

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: SYC 8073 of 2014

DATE DELIVERED: 30 October 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT: Mr B Levet, OAM

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Father and Mother have equal shared parental responsibility for the child, Y, born … 2010.

2. That during such periods as the Mother lives in Sydney, Australia, the child live with the Mother and spend time with the Father as follows:

   (a)Each alternate weekend from 10.30am Saturday morning until before school on Monday morning; and

   (b)A block period of at least 10 days during each December/January school holiday period; and half of each school term holiday period;

   (c)Such other times as agreed.

3. That during such periods the Mother is not living in Sydney, Australia, the child live with the Father and spend time with and communicate with the Mother as follows:

   (a)In Australia only, during school holiday periods and for agreed periods of up to five consecutive days in any month that the Mother is in Australia, upon the Mother providing the Father with at least 28 days prior notice of her wish to spend time with the child.

   (b)By skype or facetime or any other similar app, three times each week in the evening for a up to 40 minutes each occasion, with the Mother to facilitate the commencement of the communication with the child, and the Mother will consult with the Father in relation to the child’s routine to ensure the communications best fit in with his evening routine.

4. Until further order the Mother, Ms Ninh, born … 1975, by her servants and/or agents be and are hereby restrained by injunction, from removing or attempting to remove or causing or permitting the removal of the child, Y, born … 2010, from the Commonwealth of Australia.

5. That Y’s name remain on the Family Law Watch List (“the Watch List”) in force at all points of arrival and departure in the Commonwealth of Australia until the Court orders its removal.

6. That each party is restrained from denigrating the other parent to or in the presence of the child to do so or discussing the matters relating to these proceedings with the child.

7. The parties are at liberty to seek the relisting of the matter to establish the priority of the matter for final hearing.

8. In the event the parties seek such a relisting they are to advise the Court of the steps they have taken to genuinely resolve the dispute between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalston & Ninh  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 8073 of 2014

Mr Dalston

Applicant

And

Ms Ninh

Respondent

REASONS FOR JUDGMENT

1. This matter involves an application for an interim relocation of the child of the relationship to City E in the Netherlands.

2. The Mother seeks to take up employment there for a period of two years.  She has had primary care of Y all of his life and but for this change would, on the Father's case, remain with that primary care.

3. The Father, however, opposes Y's move and says rather Y should move from Sydney to Canberra and live with him. 

4. The Mother says regardless of the outcome of these proceedings she will move to City E and so if unable to take Y the primary care of Y will fall to the Father. 

5. Despite significant criticism of each parent by each parent there is an underlying acceptance that each is capable of and has a sufficient relationship with Y to be the primary carer for him.  It may be observed that whatever the outcome of the proceedings that outcome will involve significant change for Y.  It would change where he lives either as to city or country, it would change his school, it will change potentially his primary carer and will change time with the parent who is not the primary carer.  It is in that context that this interim dispute falls to be determined.

6. In determining that, I am mindful that the law to be applied does not, save in respect of the specific matter concerning parental responsibility, differentiate between interim and final proceedings in a substantive sense.  I am required to regard Y's best interests as the paramount, but not the sole, consideration.  In determining that I am required to apply the s 60CC considerations, bearing in mind the objects and principles of Part VII of the Act.  If I make an order for equally shared parental responsibility I am required to reason in accordance with the legislative pathway for decision-making.  I must pay careful heed to the parties’ positions, although not bound by them.  I must also be mindful that a relocation case imposes no requirement on the mover to demonstrate any exceptional reasons.  The Mother’s move or proposed move to City E with Y is simply one of the proposals that I am asked to evaluate. 

7. As these are interim proceedings I am required to understand that decision making is in the context of significant limitation as to fact-finding as to contested matters and I am to rely where I can on uncontentious matters and matters supported by objective evidence, but I am also to consider and assess risks where they arise.

8. Interim proceedings because of this feature at times call for a degree of conservatism, although in this case where the true competing positions both involve major change a truly conservative position for Y does not exist.  In this case the s 60CC considerations that play the dominant role are - s 60CC(2)(a) as it relates to the benefits that Y might receive from meaningful relationship from each of his parents;  those are in turn related to considerations that deal with the nature of the relationships between Y and each of his parents, the considerations as they deal with Y's characteristics, and the considerations as they deal with parenting capacity;  prominent also is the consideration that relates to Y's views.

9. As noted already the Mother has always had the primary relationship with Y.  The Mother in these proceedings cited figures indicative of the Father having minimal time, at a frequency something less than one night each fortnight.  However, the Mother conceded that that of course did not paint the true picture, as for each of those nights the Father also spent all day Saturday and all day Sunday with Y.  He does not spend telephone time with Y.  The Father lives between two cities, Sydney and Canberra, and conducts a business so there are portions of each week because of that where he lives in either Sydney or Canberra which creates limitations on his ability to be present for Y or flexible in his care of Y.  His case is reliant upon the cooperation of his partner, Ms D.  Y has a good relationship with Ms D who has agreed in the event that Y remains in Australia to move to Canberra with Y to care for him.  It may be observed that the Father's relationship with Y is more limited than the Mother’s and he is limited in his ongoing capacity.  However, it is accepted by the Mother that the relationship that Y wants with his Father is one that is increased rather than diminished.

10. The positions adopted by the parties point to:

    a)The importance of each of their relationship in Y's life;

    b)Also to all other things being equal, the Mother being the preferred primary carer; and

    c)That each regards the other as a capable and appropriate full-time carer, albeit subject to criticism. 

11. However, in the current proceedings which involve a potential move to City E significant questions arise as to the support for, and the circumstances in which Y might have the benefit of each of those relationships.  On the one hand the Father has been critical of the Mother, but not in a manner that I consider would be indicative of a likelihood that he would undermine Y's relationship with her.  His criticism in large part is that she is undermining his relationship with Y.  On the other hand, a number of matters raised a serious question of whether the Mother will support a meaningful relationship with the Father.  In assessing these it is important to recognise that, at least until recently, the Mother appears to have been a strong supporter of that relationship. 

12. There are matters, however, that point to a risk of non-support.  The first is the attitude the Mother has betrayed during the litigation, albeit intermittently.  That may be seen exemplified at [85] of her affidavit of 3 October 2019 where it suggested that her position was one that she thought she had done wrong by encouraging the relationship between Y and his Father.  Further concern was raised by the potential parroting by Y in the Child Inclusive Conference of criticisms made by the Mother, although there are no definitive findings available about that at this stage.

13. The second matter is how the circumstances of Y's removal from Australia in the face of this litigation speak to the prospect of the Mother's compliance with orders if relocating.  Those circumstances call for some focus.  In short they are as follows.

14. In June 2019 the Mother advised the Father of her interest in a move to City E with Y as she had employment prospects.  By August 2019 the Father was repeatedly advising the Mother that he did not consent to Y being removed from Australia.  He offered that Y live with him and the Mother indicated that that was an option that she would accept.  During August 2019 the communication between the parties deteriorated.  The Mother advised that the Father would need to undertake a Family Dispute Resolution process which he participated in and obtained a s 60I certificate, that certificate being given because the matter involved international relocation.  The Father sought an undertaking from the Mother that she not remove Y from the country.  She declined to give one.  On 6 September 2019 the Father commenced proceedings by which stage, without notice to the Father, the Mother had left and removed Y from the country.  When she removed Y she removed him to attend an interview or interviews for herself in City E.  She booked return tickets for both herself and Y which would have seen him return by 24 September 2019.  However, and importantly, the Mother then returned without Y on 27 September 2019 having extended Y's return date.  She did so in the circumstances identified by her counsel as being under the spectre of the Father's allegation of breach of law regarding her removal of Y and with Y's passport due to expire in less than six months, meaning that he would not be able to depart Australia a second time at least until he got fresh passport.  Some emphasis was placed for the Mother on the return tickets as giving comfort as to her intention to return Y to Australia.  However, there are some matters that point in the other direction.  The Mother reported to the Father that they, being herself and Y, had moved to City E on 14 September 2019.  The Mother enrolled Y in a school there and thirdly, as noted previously, the Mother returned to Australia without Y.  Some emphasis was also given to an assertion on behalf of the Mother that she had returned for the court proceedings.  That proposition was not supported by the evidence, nor by the Mother's assertions to the Court on 30 September 2019 that she had only limited knowledge of the proceedings which had then come before me.  The Mother, on 30 September 2019, was restrained by the Federal Circuit Court from leaving Australia which was an order I declined to discharge on the Mother's application before me later that day.  It was in that context, with interim proceedings pending, with the Mother being restrained from leaving Australia, that the Mother caused Y to be returned to Australia and he recommenced his time with his Father.

15. While the point was made that at all times the Mother has complied with orders those were under circumstances where she was restrained, where she also represented to the Court a desperation to leave the country.  That is, the Orders had some degree of practical traction upon her. 

16. In summary then, the circumstances were then of removal against the Father's expressed view in the face of the litigation process which had been undergoing a Family Dispute Resolution process.  The Mother left Y overseas to return to Australia, she represented to the Father that they had moved there and enrolled in a school and she was effectively forced to return Y by the fact that she was restrained in Australia. 

17. These factors lead to significant doubt that the Mother would comply with orders without the sort of factors that the previous orders to return had in terms of the pressure that they applied on the Mother.  Against that, it was argued that the Mother is pursuing a position with her employer overseas, F Company, and that she would not jeopardise that by retaining Y overseas.  It is not clearly the case that F Company would have the least interest in such a factor.  She also points to the fact that if she retained him it would prejudice her future prospects in this Court.  That was a point made by submission only and I note that she has already removed Y in the past, albeit before the proceedings had actually commenced but in the face of the Father's clear opposition to the move.  It was also pointed out to me that the Netherlands is a Hague Convention country which gives some guarantees of Y's return if he was retained in the Netherlands.  However, if he was retained it would involve delays in return and further litigation.  It is still a significant hurdle even with the Hague mechanism to return Y to Australia and as noted to counsel while the Hague procedures are rapid in terms of litigation standards they are still slow in terms of a child’s or a parent’s life.

18. It was suggested to me that perhaps I could make a form of guillotine order to change residence if the Mother was non-compliant.  It is less than clear what sort of guillotine order might be appropriate under the circumstances.  It did not feature in the orders sought by the Mother.

19. By submission it was suggested to me that I could place a charge on unencumbered real estate held by the Mother.  As noted before giving these Reasons appropriately I was advised by counsel, who was apparently acting on instructions in making that submission, that the real estate identified save as to one particular block of land was not unencumbered although was debt free. 

20. The suggestion that I place a charge on the real estate was neither in the orders sought nor was any evidence produced to me as to the presence of such properties.  I note that if a charge was applied to such real estate one might anticipate there will be significant delays before that charge could bite if Y was retained.  Those last options appear to have been floated as an afterthought by the Mother. 

21. The Mother also emphasised appropriately Y's views.  He was interviewed as part of a Child Inclusive Conference process.  There Y expressed strongly views that he wished to move to City E with the Mother and not to Canberra with the Father.  There is a lingering question as to whether or not these really are Y's views or the product of influence by the Mother.  That conflict is not one that I am able to resolve at this stage.  What is also unclear is the degree of maturity or understanding brought by the nine year old Y to such a change in the move to the Netherlands.  The Consultant in the Child Inclusive Conference process expressed a tentative view that in light of Y's emotional reliance on his Mother that the move should take place, but on condition that it was highly dependent on the support of the relationship with the Father.

22. I am left with a conundrum.  Y faces major change whatever occurs.  He has expressed a view that he wants to move with the Mother although it is unclear his level of understanding of the implications or the level of influence by the Mother.  The Mother is a primary figure in Y's life.  The Father has been far less involved, but given my concerns about compliance there is a risk of significant disruption of the Father's and Y's relationship, whereas if Y lived with the Father I can be confident that his relationship with his Mother would continue, although in a much more limited form than it is currently taking place.  The face-to-face time will be limited to time in Australia and supplemented by regular Skype time.  If Y moved to City E with his Mother I have strong doubts that she will comply with orders providing for Y to return to spend time with his Father or otherwise spend time with his Father.

23. If Y is with his Father he has a meaningful relationship with both parents.  He has the benefits of those relationships with both parents, although in a very different way in respect of each of the parents and a different way to what he experiences now.

24. With the Mother he remains intimately connected with his most important relationship, but at risk of disruption of the relationship with the Father and the benefits that he has there.  With either parent he would be cared for appropriately. 

25. I will deal firstly with the question of parental responsibility.  The presumption applies for equally shared parental responsibility.  The Mother seeks no underlying change in parental responsibility but for authority regarding particular issues regarding schooling where Y lives.  The Father seeks equally shared parental responsibility. 

26. The present difficulty between the parties, while rendering equally shared parental responsibility difficult, do not displace the presumption as they do not establish that it is not in Y's best interest for such an order.  The obligation to involve both parties in major decision-making is a useful protection against unilateral long-term decision-making as to significant issues.  It has been seen in the current proceedings that the unilateral decision-making has not been in Y's best interests.  Following the pathway it is not reasonably practicable that there be equal time, it is not reasonably practicable that there be substantial and significant time and so the orders available are otherwise at large.

27. The essential contest is between Y living with the Mother in City E or with the Father in Canberra.  Given my previous analysis I do not place significant weight on Y's views at this stage, although that may well differ at a final hearing.  While there are significant matters pointing to allowing Y to move to City E, including noting the support of the Independent Children's Lawyer, the tentative support of the Child Inclusive Conference process and the weight of the Mother having the most significant relationship, the risk of the Mother's non-compliance and the associated risk of disruption of Y's important relationship with his Father is too great.  This is the case despite the views and the disruption and change in the major carer that would be involved in changing to have Y live with his Father.  If he lives with his Father he can have a relationship with both parents.  If he lives with the Mother in City E there is a significant risk of requiring Hague intervention with its associated delays.  That justifies adopting orders in large part sought by the Father.  Those orders provide for arrangements pending the Mother departing with Y continuing to live with her, but once departed provide for appropriate time with the Mother with Y in Australia.  While it was also sought that there be appointed a single expert it is premature pending establishing the priority of the case.  It is also appropriate given the resolution of this matter on an interim basis that the parties have the opportunity to engage in non-Court based dispute resolution.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 October 2019.

Associate:

Date:  31 October 2019