DUMKY & BREARLY

[2015] FamCA 238

FAMILY COURT OF AUSTRALIA

DUMKY & BREARLY [2015] FamCA 238

FAMILY LAW – CHILDREN – Best interests – Where the father lives in Country A – where the mother lives in Australia – where the child was born and spent the majority of his life in Country A – where at the time of trial the child was thirteen years old – where the child currently resides with his mother in Australia – where the father perpetrated family violence against the mother and child – where the child does not wish to go back to Country A to live with his father – where substantial weight is given to the child’s views – order that the child live with the mother in Australia.

Family Law Act 1975 (Cth)

APPLICANT: Mr Dumky

RESPONDENT: Ms Brearly

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: BRC 6760 of 2007

DATE DELIVERED: 10 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 April and 1 May 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Alexander of Counsel

SOLICITOR FOR THE RESPONDENT: Dean Kath Kohler Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders

1. That all previous parenting orders, including Orders (1), (2) and (3) of the Orders made by Registrar Dittman on 1 August 2006, be discharged and the child’s name shall be removed from the Airport Watch List maintained by the Australian Federal Police as from the 1^st day of December 2015.

2. That the child, B, born … 2001, (“the child”) shall live with the mother.

3. That the mother shall have sole parental responsibility for making all decisions about the “major long-term issues” (as that term is defined in the Family Law Act 1975) in relation to the child.

4. That when the mother is to make a decision about “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth)) in relation to the child:

   (a)       She shall inform the father in writing of the decision to be made;

   (b)       She shall invite written input from the father;

   (c)She shall take the father’s input into account when making the decision; and

   (d)       She shall inform the father in writing of the decision she makes.

5. That the child shall spend time and communicate with the father as agreed between the mother and the father but failing agreement as follows:

   (a)Via internet Skype initiated by the father at 10:00 am Queensland time each Saturday for up to 1 hour in duration, and at all other reasonable times as the child may request of the mother with the mother to initiate or to assist the child to initiate such calls, and in the event that Skype is for any reason unavailable, the communication shall be facilitated by telephone;

   (b)Via internet Skype initiated by the father on the child’s birthday and Christmas Day each year if the child is not otherwise spending time with the father on those days at such time and for such duration as the mother and the father and the child agree;

   (c)Via internet Skype initiated by the mother or the child on the father’s birthday each year if the child is not otherwise spending time with the father on that day, at such time and for such duration as the mother and the father and the child agree;

   (d)The father shall be entitled to send the child letters, cards or parcels by postal service at his own discretion and the mother shall ensure any such letters, cards or parcels are passed to the child upon receipt;

   (e)The father shall be entitled to send the child emails at his own discretion and for this purpose the mother shall take all steps to ensure that the child has his own email address for the purpose of receiving any such emails from his father and that such email address, once established, is conveyed to the father, with the mother to respect the child’s privacy in respect to any such emails received from the father and the child to have the discretion as to whether he shows his mother any of the emails he receives from his father; 

   (f)In Australia, for extended periods during any of the child’s school holidays up to the entirety of those holidays, with the father to advise the mother in writing of his intentions to travel to Australia and spend such time with the child during any or all of the Queensland school holidays at least six weeks prior to the commencement of the particular school holiday period during which he intends to spend time with the child and he shall also advise the mother in writing of his travel itinerary and plans, including detail as to where he will be staying with the child during such holiday time;

   (g)In Country A, for up to three weeks during the child’s Queensland Summer school holidays, conditional upon:

   (i)B confirming in advance in writing to his mother and his father that he wants to travel to Country A for that time; and

   (ii)The father paying the cost of the child’s travel; and

   (iii)The travel arrangements for the child having been confirmed in writing between the father, the mother and the child at least six weeks before the proposed departure date; and

   (iv)The father having caused the clear sum of $10,000 to be deposited into the trust account of a firm of solicitors in C Town nominated by the mother, to be held as security for the child’s return to Australia at the end of his holiday in Country A, with such sum only to be released back to the father on the return of the child to Australia at the end of the holiday or otherwise to be released to the mother to pay legal and travel costs she might incur in seeking the child’s return to Australia through the proper legal processes.

6. That the Independent Children’s Lawyer shall, with or without the family report writer’s assistance, as may be determined by the Independent Children’s Lawyer, speak with the child at a time to be arranged with the mother and explain to the child the outcome of these proceedings, the nature of the parenting Order made and the fact that the child’s views, as conveyed to the Court, carried substantial weight in the determination process.

7. The Independent Children’s Lawyer shall be discharged after compliance with the obligation imposed upon her by paragraph (6) of this parenting Order.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6760 of 2007

Mr Dumky

Applicant

And

Ms Brearly

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. The parents of fourteen year old the child B live almost half a world apart. The father, an Australian man, lives in Country A. He has lived and worked there since 1999. The mother, an Australian woman, lives in C Town in Queensland. the child was born in Country A in 2001, whilst his parents were married and both living there. The child’s mother and father separated in 2003 and his mother brought him with her back to Australia to live. His father stayed living in Country A.

2. In the middle of 2004, the father came back to Australia and the couple attempted to reconcile, but that was unsuccessful and he returned to Country A.

3. Around October 2004, the mother took the child back to Country A to see his father on what was to be a short visit. She was staying with a friend there and 3 year old the child was spending time with his father by agreement between the parents. The father somehow persuaded the mother to let him have the child’s passport and then refused to return it to her. He also unilaterally retained the child in his care.

4. The mother was, by Country A law, forced to return to Australia without the child, who remained there in his father’s care. Thus began years of travel for the mother between Australia and Country A as well as unsuccessful litigation in the Courts of Country A and litigation in this Court in respect to the parenting of the child.

5. Unlike the mother, it seems that the child’s father was himself able to obtain Country A Government permission to continue to live and work in Country A, apparently on an uninterrupted basis.  I understand this to have something to do with the missionary status he obtained through working with a Christian ministry in Country A as well as his ability to continue to obtain English teaching contracts with the Country A Government.  I also understand that his right to live and work in Country A is one that is only temporary at any time and must be regularly renewed, falling well short of being a right of permanent residency.

6. Although being forced to return to Australia without the child, the mother never gave up the pursuit of a parenting relationship with the child and the determination to have meaningful involvement in his life.  Although he clearly did not positively involve the mother in a co-operative parenting relationship, the child’s father nevertheless permitted the child a continued relationship with his mother and over the years the mother was able to obtain Country A Government permission to live and work, albeit temporarily from time to time, in Country A. During these times she actively engaged in parenting the child when her former husband permitted it.

7. In December, 2012, the mother travelled from Australia to Country A and collected the child and brought him back to Australia for an agreed holiday visit. It was the first time the father had ever allowed the child to travel to Australia with his mother since he had retained him in Country A in late 2004.

8. When the child flew from Brisbane to Sydney to catch the plane back to Country A at the end of that holiday, he was stopped at the immigration barrier by the Australian Federal Police as a result of his name being listed on the Airport Watch List. His mother had completely forgotten that more than six years before, she had obtained an order from this Court that put the child’s name on that Watch List even though he was living in Country A at the time. She had not intended to retain him on this holiday. However, when the child returned to his mother’s care in C Town, she resolved to keep him in Australia with her and not send him back to his father in Country A.

9. A few months later, the child’s father commenced proceedings in this Court for orders that the child be returned to live with him in Country A. The mother opposed that application and sought orders that the child stay living with her in C Town. Those proceedings eventually came before me, with the two day trial of the competing applications being heard in April and May of last year.

10. I have determined not to make orders that the child be returned to Country A to live with his father. I am satisfied that the child does not want to do that.  Although that is not alone determinative, given his age and the reasons he expresses for not wanting to go back to live with his father in Country A, I am satisfied much weight should be given to the views the child has expressed about the matter. That weight and my findings about other matters that I must consider in determining what is in the child’s best interests have satisfied me that it is proper to order that he continue to live with his mother here in Australia.

11. My judgment in this matter has been reserved for almost a year. I attribute that to the obligation to hear and determine so many other matters in this Court in that time. I regret any distress the delay in delivering the judgment may have caused to the parties, additional to that which they would likely already be experiencing being involved in parenting proceedings in this Court.

Some more background

1. The father and the mother commenced their relationship in C Town in 1998.  At that time, the father was about thirty-two years of age and the mother was only about seventeen years of age.  They dated briefly before the father left Australia for Country A in 1999. The mother followed him to Country A soon after and they began living together in that country.  Sometime in 2000, whilst the couple were back here in Australia for a holiday, the mother learned she was pregnant. They married later that year and the child was born in 2001. 

2. When the mother left Country A with the child and returned to Australia in late 2003 she was suffering from depression and said she needed to “take a break” from Country A. She complained that during their relationship the father would have regular outbursts of anger and would throw things across the room, yell, scream and destroy items of furniture and punch holes in the wall.  She also stated that he was physically abusive towards her and that this worsened when the father was drinking alcohol. 

3. The father did not dispute that he suffered from alcoholism and drank excessively between 2001 and 2003, but he denied that he physically abused or was violent towards the mother.  He did, however, report to the family report writer that the mother would “get physical with me and I’d push her away to stop it”. He is also recorded by the report writer as having told her that on another occasion when the mother was trying to go past him during an argument, “I put my hand up to stop her, she ran into my hand and fell … when I bent over to pick her up she starting (sic) screaming”. In his affidavit evidence he said, “On one occasion she tried to push past me to get into my apartment. As I resisted she stepped back and tripped.”

4. Further in respect of this, the family report writer reported that the father acknowledged that there were occasions when he “exploded … I’m big and strong … can be scary when I’m upset”. In the father’s own evidence he describes himself as having a loud voice and a “persevering demeanour”.  He said, “I can yell louder than any gun, any explosion, and if I lose my temper I’m scary”.

5. When interviewed by the report writer the child also told her that he had been hit by his father and that he was scared of his father. The father’s current wife, Ms D, who the father met through the church he works for and married in 2011, also gave information to the report writer about the father and his sometimes angry demeanour that adds weight to the evidence of the mother that the father had been physically abusive of her. I accept that he was, and that such behaviour contributed to the breakdown of the marriage.

6. In June 2005, the mother commenced proceedings in the Family Court in Country A seeking orders that the child be returned to Australia to live with her.  The father opposed the mother’s application and the matter was unable to be resolved. The matter was concluded by the mother withdrawing her application in February 2006 which she said she did as she had decided she would have a much better chance of being part of the child’s life if she cooperated with the father rather than pursuing the matter in the Country A court. 

7. In June 2006, the mother then, rather hopefully it must be said, commenced proceedings in the Family Court of Australia seeking the return of the child to her care and it was during those proceedings that the child’s name was placed on the Airport Watch List.  Other than that, those proceedings achieved nothing for the mother.

8. After some failed attempts, the mother obtained a visa from the Country A Government that allowed her to stay for up to six months in Country A on a Working Holiday Visa. She was able to have that visa renewed on two subsequent occasions, allowing her to stay in Country A over eighteen months.

9. In February 2008, the father informed the mother that he was going to marry a woman named Ms E who lived in Country F and that he would be moving to the Country F with the child.  The father did not move to the Country F and did not marry this woman, telling the Court that he was never actually engaged to be married to her, although accepting that he had been in a relationship with her and that they had discussed marrying. 

10. In October 2008, the mother returned to Australia and immediately applied to the Country A Government and obtained another Working Holiday Visa.  She returned to Country A the following month and stayed there for another eleven months.

11. The mother, who has a family history of depression, has suffered herself from depression and anxiety during these difficult years for her. The father’s attitude towards the mother and the part she played in the child’s life is, in my view, demonstrated by evidence he included in an affidavit relied upon in these proceedings where he said that the mother’s visits to Country A were so that she could  “collect evidence, disrupt and distress the family an [sic] coax the child back to Australia”.  He also gave evidence that the mother did not respect the Country A cultural expectations of separated families that he claimed included an expectation that children of separated couples are to be raised by one of the parents with the other parent stepping right back into the background.  I am quite satisfied, whether that is a Country A cultural expectation or not, the father himself expected that of the mother in this case.  His unilateral retention of their three year old son whose principal attachment, I accept, was to his mother at that time, his refusal to return the child’s passport to the mother, her subsequent obligation to leave Country A and return to Australia without the child, the difficulties she experienced obtaining permission to return to and stay in Country A, living alone in Country A and having to support herself whilst separated from family and friends in Australia and having to negotiate a co-parenting relationship with the father who had anger management issues and a lack of respect for her position in the child’s life would all have taken its toll on the emotional wellbeing of the mother. With the pre-existing vulnerabilities she had, it is unsurprising that she experienced depression and anxiety episodically through this period.

12. To the mother’s credit, whilst she was still in Country A she was able to identify her need for assistance and she obtained help from an Australian psychologist through what she called “[G] Lifeline”.  In October 2009, the mother returned to Australia and was not able to return to Country A again until early 2011.

13. In March 2011, the mother made the acquaintance of Mr H, a Country I man who was also involved in a high conflict parenting dispute with his former wife, a Country A woman, who had unilaterally taken their three children and returned to Country A from Country I to live. The mother and Mr H met up in Country A in 2012 and commenced a relationship that still continues.  At the time of the trial of this matter, they were living together as a couple in C Town.

14. In July 2012, the father and his current wife had a baby girl and she is now approaching three years of age.

15. In Country A, the child attended mainstream Country A school. There is no dispute between the parents that the child’s life in Country A was highly structured around his schooling, the church his father worked and worshipped in, sports practice and modelling engagements (apparently obtaining modelling work in and around City G is not too difficult for European children and adults). The father placed enormous value on the benefits of this lifestyle for the child, asserting a belief that the boy would not thrive and succeed in C Town as he could be expected to in Country A. There is little doubt that life for a junior high school child in urban greater City G would be different to life for a junior high school child in C Town. the child’s own experiences of those differences have seemingly greatly influenced his views about where he prefers to live. Those views came to the surface when he came to stay with his mother over the Australian Summer holidays of 2012 – 2013.

1. The mother asserts that the child repeatedly and consistently told her whilst with her during that holiday that he did not want to return to Country A. She said he was devastated for days leading up to his departure date and was very upset when he boarded the plane for Sydney to meet the plane back to Country A. She asserts that he was “overjoyed” when he discovered he was actually prevented from leaving Australia.

2. On the child’s return from Sydney to C Town, the mother sought legal advice, set about enrolling him in a local school and arranged some counselling for him to help him through adjustment difficulties. She notified the father and put in place arrangements for the father and the child to communicate regularly by internet video channels.

3. B has been attending a local State High School since he has been living with his mother in C Town. The mother has also facilitated contact between the child and his paternal grandparents who still live in C Town.

4. After the father commenced proceedings in this Court in May 2013 seeking orders for the child’s return to Country A, an Independent Children's Lawyer was appointed and a family report writer, a Senior Family Consultant from the Child Dispute Services section of this Court, was engaged. The family report writer prepared two reports for the Court – the first dated 9 September 2013 and the second dated 8 April 2014.

5. The father, his current wife and their baby girl came to Australia from Country A for the interviews in late August 2013 and also had the opportunity to spend time with the child during that visit. They were interviewed by telephone from Country A in March 2014 for the second report.   

6. The report writer met and spoke with the child by himself during both sets of interviews. She reported in some detail on this in each report. In the first report, she said that the child perceived living in Country A as negative and he expressed feeling a sense of being different. She records him saying “it’s not my country, … I don’t belong there”. He said that he felt his racial difference impacted on his friendships in Country A which he said he felt were not as good as his friendships in Australia. He said he did not feel the same sense of difference in school in Australia.

7. The report writer recorded in the first report that the child spoke positively of his mother and her new partner, Mr H and less positively about his father and his new partner. She recorded that the child, overall, expressed a strong preference to remain in Australia and expressed concern that if he had to return to Country A that he would not be allowed to come back and visit Australia again.

8. The report writer did remark that the child was a quiet and somewhat reserved child who was polite and friendly and a little nervous. She expressed a sense that the child is somewhat insecure and probably experiences low self-esteem.  She also observed him interacting with his mother and with his father, but afterwards expressed the opinion that he seemed to be well settled, conveying a sense of feeling accepted and of belonging in Australia which he did not convey in respect of Country A.

9. The report writer did express some concerns about things in the mother’s home – notably, the newness of her relationship with Mr H, and the mother’s working hours and tendency to leave the child unsupervised at home for time after school each day whilst she worked – but ultimately recommended that the child continue to live in Australia with his mother. Apparently then concerned about the likelihood of the father retaining the child in Country A if he travelled there to spend time with his father, the report writer recommended that the child’s time in the physical presence of his father be limited to visits by his father to Australia and internet video communication on a weekly basis.

10. In her second report, the writer expressed the opinion that the child seemed a little more relaxed this second time around and appeared more comfortable talking about his views than he had the first time. Again, the child is reported as having spoken negatively about Country A as a whole and as having expressly said “I lived there long enough, I don’t want to go back”.  He also spoke of a feeling of not belonging there and expressed a great reluctance to return there, even for a holiday.

11. During this second interview, the child spoke again of his father being “unpredictable, angry and unreasonable” and of being fearful that his father might hit him again. He spoke positively again of living with his mother and of his relationship with her. However, he was, this time, less positive about Mr H and said he was not looking forward to living with him. The report writer though still reported that the child expressed a strong preference to remain living with his mother and was still scared of his father because of his father’s strictness and the physical punishment he remembered receiving from him.

12. The report writer’s ultimate recommendation that the child continue to live with his mother in Australia did not change. However, she had changed her opinion in respect of the child visiting his father in Country A, recommending that the child spend time with his father and his family in Country A once a year for up to two weeks, in addition to such times as the father is able to visit Australia.

13. In her second report and in her oral evidence, the report writer expressed the changed opinion that the father would now likely comply with orders of the Court and not retain the boy in Country A if he visited him there. The report writer also observed awareness that Country A has since the first report become a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which now provides an extra layer of comfort to the mother and the child in respect of the likely outcome of any attempt by the father to retain the child in Country A at the end of any such visit.

14. Notably, when the father and his family travelled to Australia for the trial of the matter, the father had made no effort to try to arrange with the mother to spend time with the child whilst he was here, even though he was planning to visit his parents in C Town.  When he was asked his reasons, he asserted that it was because of difficulties he had previously experienced in trying to arrange time with the mother. The Court was quickly told after that that an agreement had been reached that the child would spend the weekend immediately after the trial with his father and his family. I was not satisfied at all that the father’s expressed reason for not pre-arranging time with the child was a reasonably held, honest belief. I was surprised by his apparent lack of determination to see the child whilst in Australia for that visit.

Some Applicable Legal Principles

1. Of course, parenting disputes in this Court are determined according to law and it is the provisions of the Family Law Act 1975 (Cth) (“FLA”) that apply. Pursuant to those provisions, this Court is to make such parenting orders as the Court thinks “proper”, and in doing so, the Court must regard the best interests of the subject children as the paramount consideration.

2. In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. Significantly, in this case, they also include consideration of any views expressed by the child, of which the Court may inform itself by having regard to matters contained in the reports given to the Court by the Family Consultant.

   [1] That list is set out in s 60CC of the FLA

3. The ‘best interests’ inquiry can be a broad one. That is made clear by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks is relevant”.  Additionally, in determining the proper parenting orders to make the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of the Part of the FLA within which the power to make parenting orders is conferred on the Court. The actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings.  The Act makes it clear that consideration of the child’s maturity and level of understanding are indeed relevant to the weight that should be given to the views expressed by the child, so it naturally follows that the older and more mature the child, the more weight that can be given to the child’s views.

4. Determining what are “proper” orders to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, that the presumption should not apply.

   [2]          Section 61DA(1) and s 61DA(2) of the FLA

5. “Parental responsibility” is defined in s 61B of the FLA. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It seems to matter most when it comes to decisions about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that nature about the child’s education (eg what school he goes to), the child’s religious and cultural upbringing (eg should he be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should he have elective surgery to have his tonsils removed or not), and the child’s name.

Application of those Principles

1. I consider in this case the presumption in favour of equal shared parental responsibility is displaced by the fact, of which I am satisfied, that the father has engaged in ‘family violence’, as that term is defined in s 4AB of the Act. I am satisfied he has hit the child, as the child says he has. I am satisfied that he was abusive to the mother, as she says he was.

2. Of course, even where the presumption is displaced in this way, an order for equal shared parental-responsibility can still be made if considered in the child’s best interests.  In this case, during the trial, each parent asked for orders conferring sole parental responsibility upon them, at the same time as providing for the child to live in his or her principal care. The Independent Children’s Lawyer ultimately advocated for orders that the child live with the mother in C Town and that she have sole parental responsibility.

3. During his oral evidence, the father attributed his request for sole parental responsibility to an acceptance of the inability of him and the mother to communicate reasonably with each other about their child’s day to day life and what each considers is best for him. However, the father then remarkably asserted that if the Court determined that the child should continue to live with the mother in C Town, that parental responsibility should, in fact, be equally shared.  Unsurprisingly, he was unable to explain how he reconciled in his own mind this fundamentally inconsistent position but, to his credit, in his submissions at the end of the trial he did concede that the parent with whom the child is to live, be that him in Country A or the mother in Australia, should also have sole parental responsibility. 

4. It was quite clear that the parents in this case have a clear inability to communicate reasonably with each other about their child. An order conferring equal shared parental responsibility upon them would bring into operation the provisions of s 65DAC of the FLA that requires any decision about a major long-term issue in relation to the child to be made jointly by the parents after consultation with each other and also requires genuine effort to be made to come to that joint decision. There is no default provision if the parents cannot make the decision jointly, even after genuine effort. If the decision cannot be made jointly, neither parent can make it unilaterally.

5. It is difficult, in my view, to see how, when parents themselves concede that they cannot communicate reasonably about their child, it could be in the child’s best interests to require decisions about major long-term issues to be jointly made by them or not made at all, except by the Court. As such, I am quite satisfied that it is in the child’s best interests for the parent with whom he will be living – his mother – to have sole parental responsibility for him. I am quite satisfied that she will make decisions in the exercise of that responsibility after careful, child focused consideration. I am also satisfied though, that the child’s best interests still require the father’s views about such decisions to be sought and considered by the mother before such decisions are made and for the father to be kept advised of such decisions. I will make orders that provide for the mother to consult with the father and to take into account his views, but will give her the right to solely make such decisions that she considers are in the child’s best interests at the end of that process. That way, important decisions in the child’s life will still get made as they need to be without necessarily coming back to this Court in the event of a stalemated decision making process.

The decision for the child to continue to live with his mother

1. During cross-examination at the trial, the father demonstrated a somewhat arrogant, authoritarian personality consistent with the assessment that the family report writer had made of him following her interviews with the parties, the child and the father’s new wife. He clashed strongly with counsel for the mother and was quite disrespectful to him at times. He created difficulty for himself in answering questions about an order that he sought for the child to live with him in Country A “or other country of residence with the father” by not really explaining what that was about other than flippantly suggesting that no person really knows what they are going to be doing tomorrow.

2. I understood the father to mean that he wanted an order that not only required the child to return to live with him in Country A but also allowed him to take the child to live with him in any other country that he chose to move to if for some reason he leaves Country A. This, in my view, is the father’s clear acknowledgment of the fact that he has no right of permanent residence in Country A and that his right to live there is only ever temporary and subject to regular review by the Country A Government, along with the expression of a wish to be able to take the child to any other country, not necessarily Australia, in which the father decides to live if he has to leave Country A or decides to in any event.

3. This position was concerning having regard to the fact that the father was also strongly pushing the case that the child should be returned to Country A because he was accustomed to and familiar with Country A and his lifestyle there and that it offered advantages, particularly educationally, that life in C Town does not. As I have observed though, the father could not offer any certainty that the child would be staying in Country A for long at all even if he was returned to that country. Furthermore, once the child reaches adulthood, I do not understand him to have any right to expect that he would be allowed to continue to live in Country A even if he wanted to. In such circumstances, it is relatively easy to understand the child feeling that he is an outsider in Country A and feeling far more at home and comfortable with his identity and place in Australia, particularly at this point in his life when independent identity is generally being developed.

4. In the same circumstances, in my view, the nature of the relationship that the child has with each of his parents becomes a matter of sharp focus in the determination of which proposed living arrangement will serve his best interests. I am satisfied from what I accept the child told the family report writer and from what she reported she observed of the interaction between the child and his parents, that whilst he loves each of his parents and wants a relationship with each of them, that his relationship with his mother is such that living with her in C Town through the balance of his mid-teens is in his best interests, as opposed to sending him back to Country A against his wishes to live with his father whose more authoritarian, confrontational style is likely to compound the conflict that so often can happen as adolescents seek out more independence in their lives.

5. The mother demonstrated courage, resilience and commitment as well as a selfless determination to put the child’s interests uppermost in her life through the years from 2004 to 2011. There was much personal and financial sacrifice on her part during these years. I do not get a sense of the same degree of commitment and personal sacrifice on the part of the father in respect of his efforts to maintain his relationship with the child since the child has been back in Australia.  Indeed, his parents still live in C Town and it came out in the trial that he owned a house in C Town for twenty years which he sold just a few months prior to the trial, receiving AUD $150,000 for it, yet he has only been back to Australia once before the trial since the child stayed here. Furthermore, he made it clear that he does not intend returning to Australia to live in the future, even though he conceded in evidence that he could earn more money working in Australia than he does in Country A. I hasten to say that I do not doubt the father’s love for the child and his desire to have involvement in the child’s life, but there is no doubt, in comparison, that the mother clearly demonstrated her love and commitment to the child for many years when a person with less commitment might just have returned to Australia from Country A and given up.

6. As the family report writer also observed, the mother has also demonstrated a general willingness and ability to facilitate regular communication between the child and his father – for example, by taking the laptop computer into the child’s bedroom each Saturday morning when the father calls in by internet video and putting it on the child’s bed so that the father can start to talk with the child even when the child is reluctant to wake up and participate in the communication. The evidence does not support a finding that the mother has been obstructionist in respect of this. Similarly, she has continued to facilitate contact between the child and his paternal grandparents who live in the same town.

7. In contrast, the family report was left with the perception, which I accept was correct, that the father did not fully respect and promote the mother’s role in the child’s life in the years when the child was living with the father in Country A.

8. The mother has experienced some more episodic depression in the period since the child has been living with her in C Town and it has to be said that appears to have impacted somewhat on her availability for the child and her capacity to parent him. However, as she did in similar circumstances in Country A, she apparently recognised her need for some assistance at the time and obtained professional medical and counselling assistance. I have no reason to consider that she would not do that in the future if she needs it or that she will suffer depression to such a debilitating extent in the foreseeable future that it will unreasonably compromise the child’s well-being. Indeed, there is evidence that the mother is taking positive steps to maintain her fitness, health and wellbeing such as attending at a gymnasium a few times per week.

1. The mother also appears to have paid some heed to the family report writer’s concerns, expressed in her first report, about leaving the child at home by himself for excessively lengthy periods. She still works in C Town but her hours are fewer. She told the Court that she finishes work now at 4:30 in the afternoon. She also gets assistance from her sister, who picks the child up from school of an afternoon and takes him home and, in any event, Mr H had arrived in Australia to live in the mother’s household not long before the trial.

2. Mr H gave evidence at the trial and candidly admitted that there had been a few difficulties in his relationship with the child but informed the Court that they had been attending family counselling in order to help them build and improve their relationship. I considered him sincere when he said that he stood back and allowed the mother to take responsibility for the child’s discipline and that he wanted to be a friend to the child. I also considered him sincere when he expressed strong support of the child’s right to have contact with his father and to maintain a relationship with him. Having been cut off from his own children by their Country A mother, he expressed acute understanding of the father’s desire to maintain a relationship with his son. I am satisfied that he will encourage the mother in this regard and be supportive of the child’s ongoing contact with his father.

3. The mother also quite candidly told the Court that the child’s behaviour had worsened upon Mr H’s arrival in the home. Like Mr H, she gave a sincere impression of appreciating that there was some adjustment for them all to deal with, particularly the child, and they were getting professional assistance in dealing with this.

4. The father did not file and rely upon any affidavit evidence from his current wife, so the Court did not get the opportunity to see and hear her give oral evidence or assess any affidavit evidence from her. She was, as observed already, interviewed on two separate occasions by the family report writer and, through her reports, provided useful and relevant information to the process of determining the parenting orders to make in this case. In particular, I am referring to that which she related about the issue of the father’s anger management and use of physical discipline and force in his family relationships.

5. On balance, I considered the father’s current partner to probably be a good, stabilising influence in the father’s life and a good mother to their little girl. the child’s relationship with her and his little sister seems satisfactory, although it certainly was not such to cause him to say he wanted to return to Country A to live with them. The sibling relationship with his sister is not one that causes me to consider that the child must go back to Country A to be with her, but it is clearly appropriate for that relationship to be fostered where possible.

6. Weighing up all of the evidence in this case, I was, as I have already observed, readily convinced that the child should remain living in Australia and not now be made subject to an order to return to live with his father in Country A.

Communication between the child and his father and the time they are to spend together

1. The more difficult part of the determination of the proper orders in this case was that pertaining to the communication the child is to have with his father on an ongoing basis and the time that he is to spend with his father, more particularly, as to whether any of that should be ordered to take place in Country A.

2. At the time of the trial, the child and his father were having internet video contact via Skype for around forty-five minutes each Saturday morning. The parents had actually agreed to change to that from that provided for in an interim order where the mother was required to take the child to the C Town Children’s Contact Centre for such Skype contact.

3. Although there were some complaints on all sides as to the working of the Saturday morning Skype session, particularly surrounding the not unusual tendency of teenagers to sleep in late on Saturday mornings, I am satisfied that it generally worked well and permitted the child and his father to maintain a relationship with regular contact.

4. The mother sought arrangements to continue on that one occasion per week. The father sought an order that he have Skype contact three times per week. The Independent Children’s Lawyer supported the father’s position.

5. B is now fourteen years of age and much of the communication with his father will depend on the child’s willingness and desire to participate in that communication. At a stage of the child’s life where the development of his relationships with his peers takes on increasing importance, I am of the view that to obligate him to have three Skype sessions per week with his father is a touch too much. I consider that a continuation of the one mandatory Skype session per week remains appropriate, albeit at a slightly later hour on Saturday mornings if the parents are unable to agree on a more suitable time. An order that obligates the mother to facilitate more Skype sessions between the child and his father as requested from time to time by the child is also appropriate, acknowledging the child’s age and maturity and his capacity to determine a greater level of contact with his father in accordance with his own wishes.

6. I do also consider it proper for mandatory Skype contact on special days such as the child’s birthday, Father’s Day, the father’s birthday and Christmas Day, if the child is not spending time with his father on any of those days.

7. I also consider it proper to make orders permitting the father to send cards, letters and parcels to the child at his own discretion. I consider it proper, given the child’s age, for the child to have his own email address and for his father to be able to send emails to the child at that address at his discretion. I consider that it should be for the child to decide whether his mother sees the emails he receives from his father. I am of the view that if the father sends inappropriate emails to the child it will be the father’s own relationship with the child that is likely to suffer detriment, with such conduct likely to discourage rather than encourage the child to continue to pursue the relationship with his father. I am optimistic that the father would be aware of that when communicating with the child via Skype or in writing.

8. As to time that the child is to spend with the father, I am quite satisfied that he should spend extended time with his father during his Queensland school holidays on any such occasion that the father comes out to Australia, with the father, of course, providing reasonable notice of his intention to travel to Australia and details of his plans as to where he will be staying with the child during such times. As it is unlikely that the father will come out to Australia during every such school holiday, the orders will provide for him to have the child with him for the entirety of any school holiday period during which the father does come to Australia if the father can so arrange it.

9. I am satisfied that the father can pay his own costs of any such trips. Whilst the father was not earning a great income from his work in Country A, as I have noted already, he told the Court that he had received about AUD $150,000 upon the sale of his property in C Town a few months before the trial and that he had invested that. Clearly, therefore, he has some capacity to pay for travel for himself to Australia to spend time with the child.

10. As to the child travelling to Country A, both the mother and the Independent Children’s Lawyer opposed orders being made that required the child to travel to Country A for holiday time with his father. The father, of course, sought orders that the child travel to Country A for holidays with him if he is to continue to live in Australia with his mother. The mother and the ICL each made clear their concerns that the father would not send the child back to Country A. Additionally, it is to be remembered that the child was reported as having himself expressed the view that he did not want to travel back to Country A, even for a holiday.

11. Relevantly, I have already observed that the family report writer in her first report in 2013 did not consider that the child should go to Country A to see his father. She was apparently as concerned then as the mother that the father might retain the child and not send him back to Australia and she was conscious that Country A was not a signatory to the Hague Convention then. Additionally, the child was only twelve years old at that time and far less likely to be able to assert himself than he might be able to now at fourteen. But in her second report in early 2014, and in her oral evidence, the family report writer expressed the opinion that the father probably would comply with an order of this Court to send the child back to Australia if the child goes to visit him for a holiday there and she recommended that he do that once a year for up to two weeks. She also expressed comfort with that recommendation having regard to the fact that Country A had become a signatory to the Hague Convention in the time since her first report.

12. I must say, notwithstanding the report writer’s expressed opinion, that I was not quite so convinced. The father demonstrated to me a great love of, and loyalty to Country A culture and institutions. When I asked him how I could be confident that he would place his expressed adherence to an Australian Court order ahead of potential adherence to a Country A Court order, he could not answer the question in a way that filled me with confidence that he would.

13. I am quite conscious of the fact that Country A has become a signatory to the Hague Convention. That is a very welcome event that will greatly assist in the orderly determination, according to law, of international parenting disputes crossing the borders of Country A and many other countries, including Australia. However, I am also acutely conscious of the fact that exceptions to return orders can be established in the domestic courts of a country from which a left-behind parent is seeking to have a wrongly retained child returned. I was not totally confident that the father in this case would not, if he considered the opportunity right, seek to retain the child pursuant to one of these exceptions.

14. That said I am not totally convinced that the child should not be permitted to travel to Country A to spend time with his father if he wants to, particularly at this point in his life. After all, he is now fourteen years old. I have determined to make an order that permits the child to travel to Country A for up to three weeks during his Queensland Summer school holidays if the child wishes to, but if he does, he is not to travel to Country A unless and until his father deposits $10,000 into the trust account of a firm of solicitors in C Town to be kept as security until the child’s return at the end of the holiday, to be released to the mother to be used by her to pay for legal assistance and travel costs she may require to seek the child’s return through appropriate legal channels if the child is not returned at the end of the holiday. Of course, the money is to be  released back to the father immediately upon the child’s return to Australia at the end of the scheduled holiday visit.

15. I am satisfied that the father has the funds to meet such an order for security and to pay for the child’s trip to Country A given his investment of AUD $150,000 from the sale proceeds of his house only weeks before the trial. On the other hand, I do not consider the mother has the financial capacity to contribute to the cost of any travel by the child to Country A. I certainly was not convinced that the mother and Mr H were financially very well off. In fact, Mr H told the Court he had no assets and at the time of trial, Mr H was in Australia on a “Partner Visa” and was looking for employment. He was confident of finding employment and being able to contribute financially to the household he shares with the mother and the child, but at the time of the trial, the mother was principally financially supporting herself, Mr H and the child from her income. She did not have capacity to fund trips by the child back to Country A. If the father really wants the child to go and spend time over there with him and his family instead of him visiting the child here in C Town, and the child wants to go visit Country A, then I consider it appropriate that the father pay for that and, from the $10,000 security, costs incurred by the mother in seeking the child’s return if the father does not return him at the end of the three weeks holiday.

16. I will order that the Independent Children’s Lawyer, with or without the family report writer’s assistance as the ICL determines, shall speak with the child and explain the outcome of these proceedings, the nature of the Orders I make and the fact that the child’s views, as conveyed to the Court, carried substantial weight in the determination process.

17. I make the parenting Order set out at the commencement of these Reasons.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 April 2015.

Associate: 

Date:  10 April 2015