Fujiwara & Suzukaze (No 2)
[2022] FedCFamC1F 357
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fujiwara & Suzukaze (No 2) [2022] FedCFamC1F 357
File number(s): BRC6591 of 2021 Judgment of: CAREW J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – BEST INTERESTS OF CHILD – Where the parents were born and lived in Country B – Where the father moved to Australia in 2004 and is self-employed – Where the mother moved to Australia in 2019 to be with the father and a child was born – Where the mother does not speak English and has no support or family in Australia – Where mother wishes to return to Country B with the child – Where the father has previously withheld the child from the mother – Where the father’s alcohol consumption poses a risk to the child – Paramount consideration – Where a parent’s legitimate interests must yield to the child’s best interests –Where the mother is at liberty to relocate to Country B. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Convention on the Civil Aspects of International Child Abduction
Cases cited: Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 99 Date of hearing: 30, 31 March, 1, 4 April 2022 Place: Brisbane Counsel for the Applicant Ms Davison Solicitor for the Applicant: Jurgensen Horne Lawyers Counsel for the Respondent on 30, 31 March and 1 April: Mr Cahill Solicitor for the Respondent on 30, 31 March and 1 April: A P Hodgson & Associates The Respondent on 4 April: Self-represented Counsel for the Independent Children’s Lawyer: Mrs Horsley Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 6591 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FUJIWARA (AKA MS TANAKA)
Applicant
AND: MR SUZUKAZE
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.All previous parenting Orders are discharged.
2.The child X Suzukaze (also known as X Fujiwara or X Tanaka) born in 2020 (“the child") shall live with Ms Fujiwara (also known as Ms Tanaka) (“the mother”).
3.The mother shall have sole parental responsibility for major long-term issues (as that term is defined by s 4 of the Family Law Act 1975 (Cth)) affecting the child.
4.Except in the event of an emergency involving the child, the mother shall consult Mr Suzukaze (“the father”) about decisions to be made in the exercise of her sole parental responsibility, as follows:
(a)The mother shall inform the father of the issue about which a decision needs to be made, the decision she would like to make and the reasons for that proposed decision, in writing; and
(b)the mother shall give the father fourteen (14) days to provide his written response to her; and
(c)the mother shall consider the father’s views/response (if provided) when coming to her decision; and
(d)the mother shall inform the father of the final decision she has made with respect to that issue in writing as soon as practicable thereafter.
5.Each party shall have parental responsibility for day to day decisions about the child whenever the child is in her or his respective care.
6.The mother shall be at liberty to relocate with the child to live in Country B.
7.The Court requests that the Australian Federal Police remove the name of the child, X Suzukaze, (also known as X Fujiwara or X Tanaka), born in 2020 (a boy) from the Family Law Watch List at all points of international arrival and departure in Australia.
8.Until such time as the mother and child depart Australia to live in Country B pursuant to paragraph 6 above, the child shall spend time with the father as agreed between the parties but failing agreement, every week from 7.30 am until 5.30 pm on each of Friday and Saturday, in Sydney, with changeovers to take place outside McDonald's at Suburb F train station and with the parties to each ensure the "Line" App remains open for communication between them about changeover.
9.Until such time as the mother and child depart Australia to live in Country B pursuant to paragraph 6 above, the father shall be at liberty to communicate with the child at all such times as agreed between the parties but failing agreement by telephone or the "Line" App, or via other electronic communication on Sundays and Wednesdays between 7.30 am and 8.30 am (time for the child) or between 5.45 pm and 6.15 pm (time for the child), with the mother to use her best endeavours to ensure the child is available to receive the communication during one of the two said times, and the father to initiate communication to the child in the first instance at the earlier time of day but if that communication does not connect then at the later time of day.
10.After the mother and child depart Australia to live in Country B pursuant to paragraph 6 above, the child shall spend time with the father as agreed between the parties, but failing agreement:
(a)In Country B, provided the father gives to the mother no less than fourteen (14) days written notice in advance, then:
(i)Until 20 April 2023, between 7.30 am until 5.30 pm each day, on up to three days per week;
(ii)After 20 April 2023 and until 20 April 2024:
A.between 7.30 am one day per week, overnight until 5.30 pm on the following day; and
B.on an additional day each week at midday until 5.30 pm that day, with the father at liberty to collect the child from day-care;
(iii)After 20 April 2024 and until 20 April 2025, for up to:
A.every alternate weekend from 5.30 pm on Friday until 5.30 pm on Sunday; and
B.from after school until 7.30 pm one additional day each week;
(iv)From 20 April 2025, for up to:
A.every alternate weekend from 5.30 pm on Friday until before school on Monday during school terms; and
B.for the first half in even numbered years of the child's winter and spring school vacations, and for the second half in odd numbered years of the child's winter and spring school vacations;
(b)In Australia:
(i)From 20 April 2026 until 20 April 2027, during the child's long summer school vacation for a period of up to three (3) weeks, as a block of one (1) x fourteen (14) consecutive day period and one (1) x seven (7) day consecutive day holiday, with the child to be returned to the care of the mother for no less than five (5) days and nights between the exercise of the first and the second block periods;
(ii)From 20 April 2027, each year during the child's long summer school vacation for a period of up to three (3) weeks as a three (3) week uninterrupted block period; and
(iii)The mother shall accompany the child to Australia until such time as the earlier of the mother advising the father in writing that the child has reached an age and level of maturity when he can travel as an unaccompanied minor or the child reaching the age of 15 (fifteen) years after which the child may travel as an unaccompanied minor; and
(iv)The mother shall be responsible for the cost of her own airfare and travel including accommodation; and
(v)The mother shall notify the father of the child's winter, spring and long summer school vacation dates for the following year by no later than 31 December each year; and
(vi)The father shall give the mother no less than one (1) month’s notice in writing of the dates on which he proposes the child travel to Australia; and
(vii)the mother shall book the child's return travel by air and notify the father of the cost of the child's travel by providing a copy of the airline receipt and itinerary, and, within seven (7) days thereafter the father shall reimburse to the mother one half of that cost by payment to the bank account nominated by the mother.
11.After the mother and child depart Australia to live in Country B pursuant to paragraph 6 above, changeovers for time will take place as agreed between the parties, and where before or after day-care or school then at day-care or school (as the case may be) and otherwise as follows:
(a)in a public location nominated in writing by the mother to the father no less than 48 hours prior to a changeover time;
(b)once the child commences to travel as an unaccompanied minor, then the father shall collect the child from City C International Airport at the start of time, and shall return the child to that Airport for the return journey to Country B, with the mother delivering and collecting the child from the relevant Country B Airport that the airline tickets have been booked for.
12.The father must not consume any alcohol during the times the child spends with him nor for a 24 hour period prior to the time commencing.
13.After the mother and child depart Australia to live in Country B pursuant to paragraph 6 above, and when the child is in the care of the mother, the father shall be at liberty to communicate with the child at all such times as agreed between the parties and failing agreement by telephone or the "Line" App, or via other electronic communication on Sundays and Wednesdays between 7.30 am and 8.30 am (time for the child) or between 5.45 pm and 6.15 pm (time for the child), with the mother to use her best endeavours to ensure the child is available to receive the communication during one of the two said times, and the father to initiate communication to the child in the first instance at the earlier time of day but if that communication does not connect then at the later time of day.
14.Once the child commences to spend block school vacation periods of time with the father and when he is in the care of the father, the mother shall be at liberty to communicate with the child at all such times as agreed between the parties and failing agreement by telephone or the "Line" App, or via other electronic communication on Sundays and Wednesdays between 7.30 am and 8.30 am (time for the child) or between 5.45 pm and 6.15 pm (time for the child), with the father to use his best endeavours to ensure the child is available to receive the communication during one of the two said times, and the mother to initiate communication to the child in the first instance at the earlier time of day but if that communication does not connect then at the later time of day.
15.The parties shall keep each other informed at all times of their contact telephone number and an email address to be used for the purposes of parental communication and maintain use of an agreed communications App (presently the "Line" App, or as otherwise agreed) and each shall notify the other of any change to these details within 24 hours of such change.
16.The father shall keep the mother informed of the location and address details for the child's accommodation when the child is spending time with the father, if not at the home address of the father.
17.The parties shall each:
(a)keep each other informed in writing of the names, addresses and contact details of any medical and other health professional who regularly treats the child or who has treated the child in an emergency; and
(b)inform each other as soon as reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child.
18.The mother shall keep the father informed of the details of any day-care, school, educational facility or extra-curricular activity provider attended by the child.
19.By this Order, any day-care, school, educational facility or extra-curricular activity provider attended by the child is hereby authorized to provide to each of the mother and the father (at the requesting party's own cost if any) all information about the child's educational progress and school related activities and the mother shall sign all necessary documents and do all necessary things to ensure such authorization is recognized in Country B.
20.Subject to any conditions imposed by the child's day-care, school, educational facility or extracurricular activity provider, this Order hereby authorises each party to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, speech events, plays and parent/teacher interviews and the mother shall sign all necessary documents and do all necessary things to ensure such authorization is recognized in Country B.
21.By this Order, any medical or other health professionals who treat the child are authorized to provide to each parent (at the requesting parent's cost if any), all information about the child's treatment and attendance lawfully able to be provided and the mother shall sign all necessary documents and do all necessary things to ensure such authorization is recognized in Country B.
22.Neither party shall denigrate the other, their family or any close friends to or in front of or within the hearing of the child.
23.The mother shall provide a recent photograph of the child to the father each week.
24.In the event that the father provides written notice to the mother that he seeks to affiliate the child pursuant to Article 779 of the Civil Code (Act No. 89 of 1896) (Country B), the parties shall each, separately and, where necessary or indicated, jointly, do all acts and things and take all reasonable steps to make the necessary notifications pursuant to the Family Registration Act (Country B).
25.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) this order permits the child X Suzukaze, (also known as X Fujiwara or X Tanaka), born in 2020 (a boy) to have an Australian travel document and travel internationally.
26.All outstanding applications are dismissed.
NOTATIONS:
A.The child X Suzukaze (also known as X Fujiwara or X Tanaka), born in 2020, has dual Australian and Country B citizenship.
B.In the event of future dispute between the parties about the parenting arrangements for the child which comes before the Country B Family Courts, the Country B Family Courts are respectfully requested to recognize and enforce this Order, by reference to Article 118 of the Code of Civil Procedure (Country B).
C.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in this Order.
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 Fujiwara & Suzukaze has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Ms Fujiwara (aka Ms Tanaka) is the mother of X Suzukaze (aka X Fujiwara or X Tanaka) and Mr Suzukaze is his father.[1]
[1] For convenience and to assist with the later anonymization of this Judgment I will refer to Ms Fujiwara as “the mother” and Mr Suzukaze as “the father” and X as “the child”. No disrespect is thereby intended.
As a result of a brief relationship, the child (a boy) was born in Australia in 2020. Both parents were born in Country B and met via a marriage agency in Country B in 2018 and commenced cohabitation in Australia in February 2019. The parents physically separated on a final basis in October 2020 when the mother and child left the home in which they had been residing with the father. The father is an Australian citizen having lived in Australia since 2004 and having completed part of his schooling in Australia prior to that. Both parents are professionals but only the father works in his profession in Australia. The mother does not speak English and she wishes to return to live in Country B with the child. The father opposes her relocation with the child and contends that the mother and child should live near him in City C so that the child can spend time with him each week.
For the reasons which follow I propose to order that the child live with the mother and that she be at liberty to relocate to Country B with the child. The child will spend regular time with the father in Country B and from 2026 the child will spend regular time with the father in Australia as well (if the father elects to maintain his relationship with the child).
PRELIMINARY MATTERS
Before setting out my Reasons it is necessary to formally record a couple of matters.
Both parties were represented during the trial and the proceedings were translated from English to Country B language. On the last day of the trial and after the conclusion of the evidence and part of the independent children’s lawyer’s (“ICL”) submissions (i.e. on the previous Friday, noting that there was a weekend in between the third and fourth day of the trial), the father withdrew his instructions to his lawyers. On the Friday, the ICL had indicated her support for an order that the child live with the mother in Country B. When the trial resumed on the Monday, the father was very emotional and indicated that he did not want to make any submissions. Notwithstanding that indication, the father was later provided with a transcript of the submissions made on behalf of the ICL and on behalf of the mother and he was afforded time to submit written submissions. The parties were provided with the transcript on 6 April 2022. The order made on 4 April 2022 included the following:
4. By no later than 4:00pm on 11 April 2022, the Father file and serve any written submissions upon which he wishes to rely in support of his case.
5. By no later than 4:00pm on 13 April 2022, the Mother and the Independent Children’s Lawyer file any written submissions in reply solely on a matter of law.
No submissions were filed by the father within the time prescribed and no application was made by the father to extend time.
Nevertheless, I note that submissions were filed by the father on 18 April 2022 which included an attempt to adduce further evidence. In the absence of any application to re-open his case, I do not propose to formally receive the additional evidence, and as his submissions were not filed in the time prescribed and there is no evidence that they have been served on the mother or the ICL, I do not intend to formally receive the submissions either. The father was given every opportunity to adduce evidence and make submissions in a timely manner.
In adopting this approach I am acutely conscious that a litigant must ordinarily be afforded an opportunity to be heard and to present evidence that is material to the issues to be determined in a case.[2] However, this Court cannot force litigants to adduce evidence that may assist their case or to make submissions.[3] A re-listing of the matter (which would be necessary in order to afford the mother an opportunity to be heard about the late filing of submissions and the attempt to adduce further evidence) would not only delay the finalisation of these proceedings but would also impact on the rights of other litigants who are awaiting trial dates and additionally, would impact on the public interest in the efficient operation of the Court.[4]
[2] Allesch v Maunz (2000) 203 CLR 172 at 183-186 (Kirby J).
[3] Ibid.
[4] Ibid.
In this case, trial directions were made on 16 December 2021 which, among other things, required the father to file his affidavit of evidence in chief by 9 March 2022 (which he did). On 25 February 2022, at the instigation of the ICL, a discretionary ban on personal cross-examination was made pursuant to s 102NA(1)(b) and (c)(iv) of the Family Law Act 1975 (Cth) and, as a consequence, both parties were afforded legal representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
In making the decision not to further delay the finalisation of the proceedings, and perhaps somewhat unusually, I have nevertheless perused the submissions (they are very brief) and the proposed additional evidence, and I am not persuaded that anything contained therein is of such a consequence as to require me to receive the submissions or the additional evidence. This is particularly because the father not only had every opportunity to make submissions both during and after the trial but he was also cross-examined about the topic of his proposed additional evidence i.e. the provision of financial assistance to the mother, and he made concessions at the time. Those concessions are discussed later in these Reasons.
Before concluding on these preliminary matters, I also note that the father was already granted leave to re-open his case on the last day of trial in order to adduce further evidence contained in an email sent to the parties and to the Court including various attachments. This additional evidence became Exhibit 25 in the proceedings. Included in his email was the following:
At the moment, realistically, I can only provide AUD 10,000 for [the mother] to relocate [Country B] for the arrangement for [the child] to relocate comfortably.
I know that this is not enough but that is what I can do.
I have no experience in borrowing moneys.
However, I can transfer [the child’s] money $36,503.19 into the ICL’s trust account by deceiving my parents.
I have already persuaded my parents, by deception, to fund me $100,000 for [the child] and this money can be transferred into ILC’s trust account within next few days.
The father then confirmed during cross-examination that it was his intention to transfer AUD 100,000 into the ICL’s trust account if the mother is able to relocate with the child to Country B.
Exhibit 25 also included the father’s corrections to information contained in Mr J’s report. The father was not granted leave to further cross-examine Mr J given the nature of the further evidence, which was not relevant to the determination of what parenting order is in the best interests of the child.
ISSUES
In considering what parenting order will best meet the interests of the child, the parties identified the following significant issues as requiring determination:
(1)Is it in the best interests of the child to live in City C, Australia so that the child can live in a shared care arrangement or continue to live in Sydney with the mother or to relocate and live in Country B with the mother?
(2)Will the mother facilitate the child’s relationship with the father if she relocates to Country B or remains living in Sydney?
(3)Does the father’s consumption of alcohol or abuse of prescription medication pose a risk of harm to the child, and if so, how can the child be protected? If the magnitude of the risk is unacceptable should the father spend time with the child under supervision?
(4)Has the child suffered serious psychological harm from experiencing family violence directly or indirectly and is there an unacceptable risk to the child of being exposed to family violence in future?
(5)Can the parents make joint decisions about major long-term issues that affect the child?
A further issue, namely: “Can the father relocate to Country B or Sydney if the mother and child live there?” - was ultimately not pursued by either party (or the ICL) and it was agreed that it was not an issue requiring determination.
Before considering the issues, it will be helpful to set out some background and the legal principles that apply to all parenting matters.
BACKGROUND
The mother is 32 years of age. Prior to moving to Australia in February 2019 she worked as a professional in H City, Country B.
The father is 42 years of age and has his own legal practice in City C, Queensland, Australia. His clients are from Country B and the majority of his work can be performed via email. He has lived in City C since about 2004.
As already noted, the mother and father met in Country B in 2018 and the father travelled back and forth numerous times (about eight times in a 12 month period for a week or two at a time) before the mother moved to Australia and cohabitation commenced in February 2019.
In November 2019, the mother returned to Country B without informing the father beforehand. The mother was pregnant. The parents have different versions about why they were having problems in their relationship at this time. The father contends that it was due to the mother’s argumentative nature and unwillingness to contribute to household duties. The mother contends that it was due to the father’s heavy drinking, her social isolation and financial dependence on the father. In any event, it is common ground that the father persuaded the mother to return to Australia after promising to cease drinking alcohol and promising to provide her with sufficient funds for her support. The mother returned to Australia on 1 February 2020.
It is also common ground that their relationship did not improve. Two days after giving birth to the child by caesarean on 20 April 2020, the mother was assisted to move into a refuge by social workers engaged through the hospital. Hospital records note the mother’s complaints about the father’s emotional and financial abuse. The mother had no income of her own and had no independence from the father who generally accompanied her everywhere. The mother had no friends or family in Australia.
The mother returned to live with the father about a week after she left the hospital as she was firmly of the belief that the child should have both parents in his life.
The parties separated under the one roof in May 2020 and the mother left the home in October 2020. In order to obtain the father’s consent to her leaving, she signed a loan agreement (in English) agreeing to repay the father $15,000 that he was to provide to her so that she could obtain alternative accommodation. The payments to the mother were to be made in instalments and the repayments to the father were to be made over a 12 year term together with interest. During the trial, the father said he had no intention of enforcing the loan agreement and in his additional evidence (Exhibit 25) said that he thought the mother already had access to significant funds at the time of the loan agreement.
The loan agreement was attached to a parenting plan (also in English) which provided for the child to spend time with the father, initially for one hour on weekdays and two hours on a weekend until the child turned one and then increasing from 9.00 am on a Sunday to 4.00 pm on the following Tuesday. The effect of the parenting agreement required the mother to travel by public transport to the father’s house each day (about 30 minutes each way) so that the child could spend one hour with the father. The mother had no car and no driver’s licence. The father had both.
The parenting plan was varied in November 2020. The mother contends that she found the arrangements exhausting for herself and the child and obtained legal advice. It was agreed that the hourly visits on weekdays and the two hourly visits on weekends would occur at her home rather than the father’s.
The mother contends that, as a result of her lease expiring and her financial hardship and the scarcity of rental properties in City C, she rented a room in a house also occupied by another woman. The father withheld the child from 5 May 2021 to 25 May 2021 ostensibly because of his concerns about the mother’s accommodation. He also conceded during cross-examination that he withheld the child because the mother had failed to reimburse him for day-care fees. The mother did not see the child at all during that time despite the child still being breastfed. A recovery order issued on 25 May 2021 and the child was returned to the mother with the assistance of police.
On 15 June 2021, the mother unilaterally relocated to Sydney with the child after obtaining employment with a Country B company. The mother did not disclose to the Court on 25 May 2021 that she had received a job offer in Sydney on or about 18 May 2021. The mother contends that she had no financial support (she was not eligible for Centrelink payments) and no prospects of employment in City C as she had been unsuccessful in her 80 job applications. In this context, I note that the parenting agreement records in the recital part of the agreement that “[t]he mother emigrated to Australia in 2019 and has limited earning capacity and no family members present in Australia”.
The mother was granted permanent residency in Australia in late 2021, at which time she became eligible to receive a child care subsidy through Centrelink (although this did not commence until December 2021) but not the parenting payment.
After the child moved to Sydney with the mother, he did not see the father again until 19 February 2022. The mother contends this was because of Covid-19 pandemic restrictions and the closure of the border between New South Wales and Queensland. At some point (shortly after an Order was made by consent on 22 July 2021) the mother commenced to facilitate the child interacting with the father regularly via video calls each week and sending him weekly photographs of the child. While the father is critical of some of the photographs that were sent, and also about the times and duration of some of the video calls, it seems common ground that the mother largely complied with this Order.
The mother currently rents a small one bedroom unit in an inner suburb of Sydney for which she pays $510 per week. The mother’s lease expires in mid-2022. The child attends day-care five days per week for which the mother now pays a subsidised fee of $200 per week. The mother was secretive and avoidant about her employment in Sydney, although this may relate to the basis upon which the company has offered her employment, and a concern the father may harass her at work. The mother did provide the name and address of her employer to the Court which was placed in a sealed envelope not to be opened unless by order of a judge. There was no objection by any party to this course.
The mother was also quite secretive and avoidant about providing the full name of the person she had been dating for about three months. The mother met this man on a dating App and he regularly spends nights at her home each week and as such spends regular time with the child. Ultimately, the mother did provide his full name and it too was placed in a sealed envelope not to be opened unless by order of a judge. Again, no objection was taken to this course. The mother contends that this man is about to return to live in Country B and she may continue the relationship with him if she too returns to Country B. The mother denies that her relationship is the impetus for her wish to relocate. I note that the mother had conveyed her wish to return to Country B to the father by at least September 2021 i.e. well prior to meeting this man.
The mother works 40 hours per week full time and in addition to her full time job she also works up to an additional 20 hours in the evenings and on weekends (sometimes even more than that). The mother is paid in Country B, (Country B Currency 427,600 per month) being the equivalent of about AUD 4,000 per month (according to the mother) for her full time work. She is yet to pay tax on her income and has not yet submitted a tax return. The mother also undertakes work online for the company she used to work for in H City. The mother’s income from this additional work can be as much as AUD1,180 per month but mostly the mother contends she earns about AUD200 – 500 per month. In her Financial Statement the mother estimates her average weekly income is AUD1,372 and her expenses are AUD1,272 (although included in that sum is AUD100 for superannuation deducted each week which the mother said was a mistake). Accordingly, her average surplus of income over expenses is about AUD200 per week. The mother also has savings in Australia of about AUD500 and in Country B of about Country B Currency1,000,000.
The father continues to live in rental accommodation in City C and is self-employed. The father’s taxable income for the 2021 financial year was only AUD35,038 and in his Financial Statement the father contends that his average weekly income is AUD2,000 and that his expenses are AUD2,312. However, the father further disclosed that his parents provide a financial resource for him at their discretion.
During cross-examination, the father agreed that the combined total of his personal account transfers and payment of his lawyer’s fees was AUD90,030 in the 12 months from 23 December 2020 to 23 December 2021. The father further agreed that the AUD90,000 was available to him to dispose of at his discretion. In his Financial Statement the father disclosed two bank accounts in his name with a total balance of about AUD17,000. The father revealed that, in addition, he had AUD40,000 in cash (which he said he had saved for the child) and additional money of AUD60,000 in his cousin’s bank account which he conceded he could access if he asked for it. The father said that he had had the AUD40,000 in cash for over a year. He conceded that he had not been truthful in his Financial Statement when failing to disclose these sums. As noted earlier in these reasons, the father was granted leave to reopen his case and tendered evidence of his preparedness to transfer AUD100,000 to the ICL’s trust account to be used by the mother.
Mr J is a very experienced social worker who lived in Country B for about five years many years ago. He speaks some Country B language but only at a conversational level. He prepared a Family Report in this matter and for that purpose travelled to Sydney to interview the mother at her home and also observed the child with the father during his time with the child. A second video conference interview was conducted with the mother from Brisbane. Mr J utilised an interpreter during his interviews with the mother. Mr J also interviewed the father in person in Brisbane without utilising an interpreter. He was satisfied that the father’s understanding of English was more than adequate and noted that he has lived in Australia for a very long time. Mr J also interviewed the mother’s parents but the father was unable to make his parents available. It was divulged by the father during the trial that he had not told his parents about the trial.
Subsequent to the commencement of the proceedings by the mother, the father has become an Australian citizen and has apparently been required to forfeit his Country B citizenship.
WHAT LAW GOVERNS THE DETERMINATION OF A PARENTING DISPUTE?
A parenting case involving relocation is just another parenting case.[5] There are no special tests that apply. Neither parent has to establish a compelling reason for wishing to live where they want to live.[6] Nor is the enquiry one directed to whether or not a parent should be ‘permitted’ to relocate.[7] The best interests of the children remain the paramount though not the sole consideration.[8] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[9]
[5] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[6] AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”).
[7] Babcock & Waddell [2019] FamCAFC 129 at [141]–[142] (Aldridge J), quoting AMS v AIF (1999) 199 CLR 160 at 223, [188] (Kirby J) and at 231–232, [217]–[218] (Hayne J).
[8] AMS v AIF (n 6) at 225, [193].
[9] Ibid.
Every parenting decision requires the application of the relevant parts of Part VII of the FLA which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[10]
[10] Family Law Act 1975 (Cth) (“the FLA”), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[11] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[12] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[13] Where it is not possible to positively reject an allegation as groundless the Court is nevertheless required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[14] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[15] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[16]
[11] Evidence Act 1995 (Cth), s 140.
[12] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[13] Ibid.
[14] M v M (n 12) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[15] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68].
[16] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[17] and said from [38]:
[17] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[18] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[18] Ibid.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[19] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [20] on each and every factual dispute.[21]
[19] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[20] M v M (n 12) at 76.
[21] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the FLA I have considered all sections as required when making my determination.[22]
[22] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
IS IT IN THE BEST INTERESTS OF THE CHILD TO LIVE ON THE CITY C, AUSTRALIA SO THAT THE CHILD CAN LIVE IN A SHARED CARE ARRANGEMENT OR CONTINUE TO LIVE IN SYDNEY WITH THE MOTHER OR TO RELOCATE AND LIVE IN COUNTRY B WITH THE MOTHER?
The child is very young and has already experienced disruption to his attachments from both parents. Regrettably, the father withheld the child from the mother (who was still breastfeeding the child) from 5 May until 25 May 2021 when the child was retrieved late at night by the Police. The mother shortly thereafter relocated to Sydney and the father did not see the child again until February 2022.
Since 18 February 2022, the father has spent time with the child in Sydney each week on Fridays and Saturdays during the day.
It is common ground that whatever the outcome, the child will remain living primarily with the mother.
The father is well established in City C. He runs his own business from the property where he lives. He does not wish to move to Sydney or to return to live in Country B. During cross-examination the father made it clear that he would make a substantial financial contribution to assist with the mother relocating back to City C. Initially, he said he would pay her removal and accommodation costs. He then said he would “pay for everything so that [the child] can have a comfortable home and comfortable experience”. He followed that up with a statement that he would “offer to pay for the bond and any other expenses that she needs to move into a new accommodation and if she needs to pay off the remainder of the lease in Sydney, I would also pay for that as well”. He concluded by stating that he was “happy to pay $20,000 to start with and then we will discuss and determine that – how long or how much that I will continue to pay depending on the situation after that”.
The ICL submits that there would be significant uncertainty for the mother if she were required to relocate back to City C “in terms of what she can offer [the child]”. The uncertainty relates to her capacity to find employment, her ability to learn English and “immerse herself in Australian society and assist [the child] to do likewise” in circumstances where the mother has no friends in City C who could offer her support.
The father contends that he would be unable to move to Country B as he has relinquished his Country B citizenship. During his interview with Mr J, the father became very emotional when asked how he would cope if the child relocated to Country B. Mr J reports as follows:
He was uncharacteristically emotional in response to the question as to how he would cope if [the child] did in fact transfer to [Country B] with his mother. He responded with 'my life is at an end. I don't see much future', and it would be 'probably the hardest thing by far - I've never experienced before'.
During the trial, the father indicated that if the child relocated to Country B he would cease all contact with the child. The reasons for that were somewhat difficult to understand and his evidence was at times inconsistent with such a statement e.g. at other times during his evidence he indicated that he would comply with court orders requiring him to give notice to the mother prior to travelling to Country B to spend time with the child. When asked about the father’s stated intentions during cross-examination and whether this would change his recommendation that the mother be able to live with the child in Country B, Mr J said as follows:
I can’t see that it would change my recommendations. I think that is something to consider seriously though. I – I’m – I’m quite surprised that he might have said that. Sometimes people say things like that in the heat of proceedings and because of stress, so I’m – if one was to rely upon his statement as – as something that’s going to occur and therefore his relationship with [the child] would be reduced, it appears to me that it reflects more on the father’s capacity as a parent more generally if he were to adopt that position.
When Mr J was asked why he was surprised by the father’s statements during the trial that he would cease contact with the child if he relocated to Country B, he said - “[The child] is the most important thing to him. That’s why”. Given the father’s obvious devotion to the child, as assessed by Mr J, I consider it unlikely that the father would follow through with his statement of cutting all contact with the child.
The mother does not want to remain in Australia but if she had to, she would prefer to stay in Sydney. The mother is coping in Sydney where her employment prospects are better than in City C. She currently works for a Country B company in Sydney and continues to receive some work from the company she used to work for in H City. She was not challenged about her 80 failed job applications in City C. Given her limited English and lack of relevant skills it seems conceivable that she would have great difficulty finding employment in City C as claimed and I note the concession about her earning capacity difficulties contained in the Parenting Agreement. The mother is not able to utilise her qualifications in Australia.
The mother works in two jobs at the moment and provides care for the child without assistance from the father (other than his weekly visits on Fridays and Saturdays) and with a minimal amount of child support (although he is meeting the costs associated with seeing the child in Sydney each week). The work the mother does for the H City company she does from her home at night after the child has gone to bed. The child attends day-care during the day while she is at work. While the mother has a boyfriend in Sydney she contends that she has few supports and relies for emotional support upon her weekly contact with her family and friends in Country B. If the child is sick she cannot go to work. In my view, her solitary parenting role in Sydney is not sustainable long term. It is apparent the mother has at times struggled emotionally.
On 1 September 2021, the mother wrote to the ICL and the father expressing her significant unhappiness about having to remain in Australia. On 7 September 2021, she wrote again expressing her desperation and that it was “a matter of life and death” and that her parents had run out of money to support her. In late 2021, the mother’s residency visa was granted by the Australian Government but that did not entitle her to any Centrelink payments. In December 2021, she began to receive child care subsidies. On 9 November 2021 at 3.21 am, the mother again wrote to the ICL and the father stating among other things:
I am exhausted. I cannot wait anymore. I want to go back to [Country B] with [the child] immediately. I do not want to live anymore. I want to see my family.
When the mother was asked about this email, she became very distressed because she said it brought back distressing memories of the time she wrote the email. Subsequent to sending the email, the mother contacted a General Medical Practitioner and obtained a referral to a Country B psychologist, Ms K, whom she first saw on 21 November 2021 and last saw on 20 January 2022.
On 16 December 2021, the mother sent a further email to the ICL and the father in which she said, among other things:
If the judge ordered that I and [the child] should return to [City C], that means my death. I cannot live any more. I have no job and no friends, no family [in City C]. This is not best interest for [the child]. He needs me and he wants me to be happy.
During cross-examination, the mother maintained that she still felt that way although she eschewed any suggestion that she would harm herself, rather, that if she could not find employment she could not provide for herself and the child. Mr J expressed concern for the mother if she had to remain in Australia against her will. He said:
If it is considered that [the child] should remain in Australia, I have concerns as to whether [the mother] could continue to cope if the current duress were to continue.
I must say I share those concerns despite the mother’s resilience to date.
There seems little point in the mother remaining in Sydney, if she stays in Australia. She does not want to live in Sydney and her current working hours combined with sole parenting duties are not sustainable long term. On the other hand, the possibility of the father spending more time with the child if he remained in Sydney would be a significant consideration for finding that the child should not relocate to Country B. However, even if the mother stayed in Sydney, the father contends that in the future he will not be able to afford to fly down to see the child with anywhere near the frequency he is currently undertaking.
If the mother relocates to H City with the child, she would initially stay with her parents but plans to obtain accommodation in the locality where she used to live and has been offered a job at the company she used to work at prior to relocating to Australia. Her remuneration from that job (Country B Currency10,000,000 or about AUD120,000) is certainly far better for her financially than the jobs she could obtain currently in Australia. The mother has established friendships in Country B. The mother contends that the child will be able to see both his maternal and paternal grandparents regularly if she relocates to Country B. The mother’s parents were interviewed by Mr J for the purposes of the Family Report and they confirmed their support for her including having her live with them for a period so that she can have a rest.
The mother proposes that the father see the child regularly in Country B and he could stay with his parents as he has done in the past. She points out that after they first met he travelled eight times to Country B in a 12 month period staying between one and two weeks on each occasion. The father concedes that he did this.
While the father has relinquished his Country B citizenship there is no evidence that he could not obtain a visa to travel to Country B to see the child, even if it were just a “sightseeing visa” (as the father referred to it) and which he acknowledged would be available to him in the future.
The ICL adopts Mr J’s recommendations and supports the child living with the mother in Country B in circumstances where she is the unchallenged primary carer for the child and can provide a stable and supportive home environment including with extended family. I accept that the mother’s financial and emotional support in Country B is far superior to that available to her in Australia even after considering the father’s offer to provide additional financial support. A determination of whether or not it would ultimately be in the child’s best interests to live with the mother in Country B requires the consideration of the other issues identified by the parties.
WILL THE MOTHER FACILITATE THE CHILD’S RELATIONSHIP WITH THE FATHER IF SHE RELOCATES TO COUNTRY B OR REMAINS LIVING IN SYDNEY?
In making a determination about a party’s likely future conduct, their past conduct is often a good indication.
The mother returned to Australia in February 2020 just prior to the birth of the child because she thought the child, when born, should have a relationship with both parents, and again in May 2020, shortly after the birth of the child, the mother returned to the father from the refuge because she considered the child should have both parents in his life. Her actions at those times indicate a commitment to the child having an ongoing relationship with the father.
The mother did unilaterally relocate to Sydney in June 2021 but her actions have to be considered in the context of her having been offered a job in Sydney when all of her efforts to obtain work in City C had been unsuccessful and the father was not providing ongoing financial support.
Since July 2021, the mother has largely facilitated the child communicating with the father by video link several times per week and she has provided numerous photographs of the child to the father to keep him involved in the child’s life. The father is critical of the mother’s facilitation of the calls at times e.g. between 23 July 2021 and 16 December 2021 there were three weeks when no video calls were facilitated; in many weeks during that time period there were only two calls rather than three calls; and although three calls have occurred each week in 2022 the calls are mostly made during the child’s dinner time. In my view, the father is unfairly critical of the mother’s facilitation of the calls. Firstly, when the calls commenced the child was only 15 months of age. The duration of many of the calls in 2021 were quite lengthy for such a young child e.g. between 20 to 30 minutes. Secondly, the father fails to take into account that the mother is managing on her own while holding down two jobs with the child in day-care from 7.30 am to 5.30 pm each day. The child also goes to bed at 6.30 pm. I accept the mother’s evidence that she tries to make the calls when the child is in a good mood and that initially the child did not seem interested but with her assistance the child is now more engaged with the father during the calls. Lastly, one would have thought the opportunity to observe the child while he was having a meal would be a source of pleasure rather than a reason to criticise the mother for making the call at a time when the child was having his evening meal. The father is also critical of some of the photographs sent to him by the mother e.g. the father contends that the mother “just forwarded me the photographs she received from the day-care without any inputs or thoughts”. Again, I consider such criticisms to be unfair.
In a well-reasoned email to the father dated 21 September 2021, the mother set out the advantages (as she saw them) for the child being able to relocate with her to Country B and the disadvantages (as she saw them) for the child remaining in City C and living in a shared care arrangement between his parents. Importantly, in my view, the mother makes the following concessions:
(a)“If I and [the child] go back to [Country B], you can see him as much as you want, and you can stay with [the child] in Australia during long holidays. Your job allows you to go back to [Country B] once a month for a week or two, so you can see [the child] every day in [H City] during that time”;
(b)“When a child is young, the mother is better suited to take care of the child's needs. On the other hand, as they get older and start to learn social skills, there are times when it is more appropriate for the father to show them how to behave and think socially”;
(c)“[A]s [the child] grows older, the role of his father will be required more and more”.
In February 2022, the mother consented to the father spending weekly time with the child in Sydney and this has been occurring without incident.
This history, in my view, demonstrates that the mother is committed to the child having an ongoing relationship with the father and I find the mother will facilitate the child’s ongoing relationship with the father even if she relocates to Country B.
DOES THE FATHER’S CONSUMPTION OF ALCOHOL OR ABUSE OF PRESCRIPTION MEDICATION POSE A RISK OF HARM TO THE CHILD, AND IF SO, HOW CAN THE CHILD BE PROTECTED? IF THE MAGNITUDE OF THE RISK IS UNACCEPTABLE SHOULD THE FATHER SPEND TIME WITH THE CHILD UNDER SUPERVISION?
The father concedes that he has consumed excessive amounts of alcohol to help him cope with stressful situations e.g. after the child was removed from his care by police in mid-2021 he drank a significant amount of alcohol in a short period. There are some inconsistencies about how much he consumed and for how long e.g. Exhibit 1 records the father stating to the Family Consultant on 8 June 2021 that he drinks alcohol regularly[23] and that since the child had been taken from him he drinks one bottle of whiskey every day.[24] The father’s most recent alcohol and drug test indicated that the father’s urine sample was diluted. There is no satisfactory evidence to explain why that would be the case but it certainly raises the possibility of the sample being tampered with. The father gave inconsistent and implausible evidence about his past use of prescription sleeping pills. On the last day of trial the father conceded that he had consumed an excessive amount of alcohol over the weekend (in between the third and final day of the trial).
[23] During cross-examination the father said he had said “weekly” not regularly.
[24] During cross-examination the father said that he had said he drank a bottle of whiskey the “next day” not every day but later said that although he was not able to finish a bottle of whiskey per day he was “drinking every day for about one week, from morning to the evening”.
On the last day of the trial, some of the father’s behaviours raised a concern that he may have consumed alcohol or sleeping tablets. He appeared to be asleep at one point and was difficult to contact on occasion. The father also presented in a highly emotional state at times. Despite those behaviours the father did participate in the hearing and responded to questions, although he declined to make submissions.
It is not contended on behalf of the mother or the ICL that the father’s use of alcohol and possibly prescription medication presents an unacceptable risk of harm to the child but rather that it is a risk that justifies the restriction on the father’s time with the child occurring during day time only until the child is three years of age. I accept that to be the case.
It seems more likely than not that in times of stress the father relies upon alcohol and sometimes sleeping tablets to help him cope. The father would be well advised to seek psychological support.
Having regard to the history, and to the father’s presentation at times during the trial, I am satisfied that the father should be restrained from consuming alcohol during the time the child is with him or in the 24 hour period beforehand as proposed by the ICL.
HAS THE CHILD SUFFERED SERIOUS PSYCHOLOGICAL HARM FROM EXPERIENCING FAMILY VIOLENCE DIRECTLY OR INDIRECTLY AND IS THERE AN UNACCEPTABLE RISK TO THE CHILD OF BEING EXPOSED TO FAMILY VIOLENCE IN FUTURE?
The mother’s case at its highest is that the father has belittled her and verbally abused her both before and after the birth of the child and failed to support her and the child financially. There is no evidence that the child has been of an age where he would have suffered serious psychological harm by being exposed to such conduct. The child has only just turned two years of age and there is no evidence that the changeovers have been problematic. The parents barely communicate it seems. Accordingly, the evidence does not support a finding that there is an unacceptable risk of the child being exposed to family violence in the future or that he has suffered serious psychological harm. I note that neither the mother nor the ICL contends to the contrary.
CAN THE PARENTS MAKE JOINT DECISIONS ABOUT MAJOR LONG-TERM ISSUES THAT AFFECT THE CHILD?
Neither the parents, nor the ICL, submitted that the presumption in favour of equal shared parental responsibility did not apply despite competing allegations of family violence between the parents (verbal, emotional and financial).
I note the opinions of both the Family Consultant who prepared the Child Inclusive Interview Memorandum (see Exhibit 1) and Mr J, the Family Report writer, that there is a serious power imbalance present in this case, in favour of the father. While that may or may not be the case, it is common ground that the parents do not communicate, other than in a most perfunctory way, and do not wish to communicate with each other. While that may very well change once the mother feels more secure and supported living in Country B, I note the father’s evidence that the parents are not capable of discussion or negotiation and that future parenting arrangements should be made in a way that no communication occurs between the parents. Mr J also opined that “[t]here is unlikely to be any relationship between the parents which would be of benefit to [the child]”.
In my view, given the absence of any communication or relationship between the parents it is not feasible for them to have to make decisions jointly. The presumption in favour of equal shared parental responsibility is rebutted. As the child will be living primarily with the mother, she will have sole parental responsibility for making major long term decisions that affect the child. As proposed by the ICL and adopted by the mother, she will involve the father in such decisions to the maximum extent possible but will ultimately make the decision.
WHAT PARENTING ORDER IS PROPER?
The mother is the unchallenged primary carer for the child and the child has a secure primary attachment to the mother. Despite considerable disruption to the child’s relationship with the father, it seems that they have an ongoing loving relationship and it is common ground that it is in the child’s best interests to maintain a relationship with the father.
The mother wishes to return to Country B to live with the child where she has far superior employment prospects and family and friendship support. The mother has struggled in Australia in circumstances where she is not proficient in English and has limited employment prospects. Her current life in Sydney is not sustainable. She works very long hours and has no support either financial or emotional. Her level of desperation has at times been evident e.g. the emails sent to the ICL and the father, and she has sought psychological assistance, but she is vulnerable emotionally if she is effectively forced to remain in Australia against her will. The mother does not wish to return to City C, even with financial support from the father to do so. The difficulties with obtaining employment and the absence of support from family and friends would not be overcome with financial assistance from the father. I accept the ICL’s submissions that if the mother were required to return to City C, the child would experience uncertainty, arising in particular as a result of the isolation that the mother and child would likely endure.
The father loves the child but also demonstrates a level of desperation if the child relocates to Country B, even suggesting that he will cut all ties with the child. I am confident his commitment to his child will prevent him from doing so. The child needs to have both parents in his life and in my view, he can have both parents in his life if he lives in Country B with the mother. The father has the proven capacity to travel frequently to Country B if he so wishes and this will be likely to continue despite his loss of Country B citizenship.
There was no satisfactory evidence before me that any order I make will be recognised and enforceable in Country B. The mother purported to rely upon evidence from “an expert” but her expertise was not established and it was also revealed during cross-examination that she knew the mother when this had not been disclosed in her affidavits.
Doing the best she could in the circumstances, counsel for the ICL identified the process by which an Australian order might be recognised in Country B and the process by which unmarried parents of a child may be amenable to the relevant family law in Country B. I propose to include in the parenting order the suggested provisions and notations that will hopefully assist that process but recognition of the Australian order in Country B is not a pre-condition for the parenting order I propose to make. The mother and father should join with each other in doing all they can to give effect to such provisions. Country B is of course a signatory to the Convention on the Civil Aspects of International Child Abduction which provides remedies in certain circumstances for a person seeking to enforce “rights of access” i.e. a parenting order made in Australia that provides for the child to spend time with the father.
Cases such as these are very difficult because each party’s legitimate interests and desires are perfectly understandable but when a parent’s legitimate interests conflict with the best interests of a child, the former must give way. In the circumstances of this case, I conclude that it is the father’s legitimate interests that must give way in the best interests of the child. The child will continue to live with the mother and she will be at liberty to relocate with the child to Country B.
There will be provision in the Order for the father to spend regular time with the child, initially in Country B but later in Australia. I have largely adopted the Minute of Order proposed by the ICL, and adopted by the mother, but I have included in the order a provision for the mother to provide the father with a weekly photograph of the child because she contends that she is currently doing that and I see no reason why that should not continue. The proposed Minute of Order did not include the continuation of communication between the father and child prior to the mother and child departing Australia, so I have included a provision for that to continue. I will also include a provision for the mother to be able to obtain an Australian passport for the child and to travel internationally, as sought by her.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 23 May 2022
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