GORDON & WESTMEAD

[2011] FamCA 956

FAMILY COURT OF AUSTRALIA

GORDON & WESTMEAD [2011] FamCA 956

FAMILY LAW - CHILDREN – Interim parenting Orders – Whether Mother be permitted to take child on visit to USA – Where Father alleges evidence of plan by Mother to remain in the USA – Whether conditions be imposed as sought by the Father

FAMILY LAW - CHILDREN – Relocation – Assessment of likelihood of Mother remaining in USA – Assessment of likely outcome of Hague Convention proceedings in USA

Family Law Act 1975 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

Goode v Goode [2006] 36 Fam LR 422

APPLICANT: Mr Gordon

RESPONDENT: Ms Westmead

FILE NUMBER: SYC 2433 of 2011

DATE DELIVERED: 16 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Kent J

HEARING DATE: 24 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: McDonnell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. All previous interim parenting Orders be discharged.

Orders Until Further Order

1. The child, K, born … October 2007 (“the child”), live with the Mother.

2. The parties have equal shared parental responsibility but each will have responsibility for the child’s day to day care during periods when the child is living with them.

3. The child spend time with the Father as mutually agreed in writing between the parties or, failing agreement, as follows:

   (a)       The Father is to collect the child from the Sydney city based day care centre the child attends at 4.00pm on Wednesday and to return the child to the same day care centre by 10.00 am on the next day, being Thursday;

   (b)       The Mother is to deliver the child to the Father at an establishment in Suburb C for a changeover to occur at 9.00 am each Sunday with the Father to deliver the child to the Suburb C day care centre the child attends by 9.00 am the following day, being Monday.

4. Order 3 is to be suspended for the dates 24 and 25 December 2011, on which dates the child is to spend time with the Father from 11.00 am on 24 December 2011 until 4.00 pm on 25 December. On those dates, the Father is to collect the child from the Mother’s residence on 24 December 2011 and the Mother is to collect the child from the Father’s residence on 25 December 2011.

5. The Mother is permitted to remove the child from Australia and to travel to the United States of America on and from 26 December 2011, with the child to return to Australia by midnight on 23 January 2011. For the purposes of this travel:

   (a)       The Mother shall be deemed to be in breach of this Order should an action of the Mother cause the child not to return by midnight on 23 January 2011. If a flight due to return by midnight on 23 January 2011 is delayed or cancelled due to circumstances beyond the Mother’s control, the Mother will not be deemed to be in breach of these Orders if she returns the child to Australia on the next available flight after the abovementioned delayed or cancelled flight.

6. The Mother will provide to the Father by 5.00 pm Wednesday 21 December 2011 the following information in relation to the trip permitted by Order 6:

   (a)       The dates of departure and return from Australia for herself and the child for the trip;

   (b)       The itinerary provided by the travel agent or airline;

   (c)       A copy of the return tickets for the mother and the child;

   (d)       The cities in which the child will be staying for a period of more than two (2) days whilst the child is not in Australia;

   (e)       A landline telephone number (if possible) or otherwise a mobile telephone number upon which the child can be contacted whilst away from Australia.

7. When the child is in the United States of America (“USA”) during the trip permitted in Order 6, the Mother shall facilitate the Father’s contact with the child by telephone, Skype and/or Apple “face time” on no fewer than three (3) occasions per week for not more than 30 minutes on each occasion. Such contact shall take place at 11.00 am Australian Eastern Standard Daylight Savings Time on each Tuesday, Thursday and Saturday the child is in the USA.

8. The Australian Federal Police shall do all acts and things necessary to remove the name of the child, K (a male), born … October 2007 from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia, and to remove the child’s name from the PACE alert system for the period 26 December 2011 until midnight on 23 January 2011.

9. During the period that the Mother is in the USA with the child, Order 4 relating to the time the Father is to spend with the child be suspended.

10. Notwithstanding any provision in these Orders to the contrary, on the child’s birthday the child will live or spend time with the party that does not otherwise have the care of the child on that day under these Orders, for at least three (3) hours at times as agreed and failing agreement, from midday to 3.00 pm if the day is not a week day and from 4.00 pm until 7.00 pm if it falls on a week day (Monday to Friday).

11. On the Mother’s birthday, if the child is not otherwise in the Mother’s care, the child will spend at least three (3) hours with the Mother at times agreed between the parties or, failing agreement, from midday to 3.00 pm if it falls on a weekend and from 4.00 pm and 7.00 pm if it falls on a week day (Monday to Friday).

12. On the Father’s birthday, if the child is not otherwise in the Father’s care, the child will spend at least 3 hours with the Father at times agreed between the parties or, failing agreement, from midday to 3.00 pm if it falls on a weekend and from 4.00 pm and 7.00 pm if it falls on a week day (Monday to Friday).

13. On Mother’s Day, if the child is not otherwise in the care of the Mother, the child will spend Mother’s Day with the Mother from 9.00 am to 6.00 pm.

14. On Father’s Day, if the child is not otherwise in the care of the Father, the child will spend Father’s Day with the Father from 9.00 am to 6.00 pm.

15. During the Easter holiday period, Order 4 will be suspended and the child will spend time with the parties as agreed or, failing agreement, as follows:

    (a)       In 2012, the child will spend time with the mother from 4.00 pm on the Thursday preceding Good Friday until midday on Easter Sunday and will spend time with the father from midday on Easter Sunday until 9.00 am on the Tuesday following Easter Monday;

    (b)       The reverse shall be true for the following year.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17. There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gordon & Westmead 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: SYC 2433 of 2011

Mr Gordon

Applicant

And

Ms Westmead

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Mr Gordon (“the Father”), and the Respondent, Ms Westmead  (“the Mother”) are in dispute as to the interim parenting arrangements for their child, K, born in October 2007 (“the child”).

2. This interim determination of parenting arrangements occurs against the background that in the substantive parenting proceedings for final Orders to be determined at trial, the Father seeks an Order for the child to live with the Father and spend time with the Mother, inter alia, for five nights per fortnight whilst the Mother seeks final Orders including Orders that would permit her to relocate the residence of the child to the United States of America.

3. A further interim issue in dispute is whether the Mother be permitted to travel with the child to the United States of America for the Christmas period this year on dates she nominates, and whether there ought be conditions imposed, as sought by the Father, in relation to any travel by the Mother with the child to the United States of America.

4. As is common in interim parenting cases, the parties’ dispute as to what constitutes the interim parenting arrangements in the child’s best interests is driven by significant issues of disputed fact contained in their respective fact-laden affidavits. Obviously, on the interim hearing before me on 24 November 2011, neither party had the opportunity to test matters in contention by cross-examination so that the Court, by that facility, might resolve disputed issues of fact.

5. The Court must therefore focus upon any agreed or uncontested relevant facts; the inferences that might reasonably be drawn from such facts; consider any internal inconsistencies or inherent improbabilities affecting reliability, and carefully consider any documentary or other evidence, particularly expert evidence, independent of the parties.

6. More particularly, as the Full Court outlined in Goode v Goode [2006] 36 Fam LR 422 (“Goode”), the Court must follow the legislative pathway set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”) and take the steps set out in paragraph [82] of the judgment in Goode.

Relevant Background

1. The Mother was born in the United States of America (“USA”) in 1970, and is thus 41 years of age. The Father was born in Australia in 1972, and is thus 39 years of age.

2. In 1998, prior to the parties’ meeting, the Father was involved in an incident leading to criminal convictions relevant for present purposes only to the question of the Father’s capacity to obtain a visa to enter the USA and the prospect of such conduct being relevant to potential Hague Convention proceedings to secure the child’s return to Australia if the Mother sought to keep him in the USA in breach of an Order permitting a temporary visit.

3. The incident referred to led to the Father being convicted in 2002, of a number of personal violence offences. In consequence of those convictions, the Father was sentenced to five years and two months imprisonment with a non-parole period of three years, four months. The Father was released from gaol in 2005.

4. The parties met in the USA in late 1999, and commenced cohabitation in the USA in February 2000. They married in the USA in 2001, but commenced to reside in Australia that same month. They have essentially resided in Australia ever since.

5. It is the Mother’s case that the parties had initially planned to live in Australia for about twelve months to enable the Father to stand trial on the criminal charges and to commence studies which would be transferrable to the USA. The Father does not specifically traverse those assertions. However, in the event, as noted, the Father was convicted following his trial and was sentenced to imprisonment.

6. Both parties agree that the Mother was supportive of the Father throughout the period of his incarceration. It is the Mother’s case that the parties continued to discuss relocating to the USA upon the Father’s release. The parties are in dispute as to whether the Father has actively taken the steps he might have taken to secure visa entry to the USA.

7. The Mother qualified as a professional in the USA in 1996 and had subsequently gained employment in a professional capacity in Australia and has essentially worked in a professional capacity in Australia throughout the period since she has been living here.

8. In the early years of their relationship, the Father worked as a sports instructor . Subsequent to the period of his incarceration, the Father has undertaken work in outdoor maintenance and some work in personal services. For a period, the Father pursued an ambition as a professional athlete whilst also undertaking some university study in various courses which it appears he has not completed. I understand that the Father is a certified sport’s instructor and for a time also pursued a business associated with a sporting activity..

9. I note that whilst it was not the subject of any evidence in the sworn evidence from the Father, I was informed from the Bar table by Mr Lethbridge of Senior Counsel for the Father at the hearing before me on 24 November 2011 that the Father was about to take up employment four days per week at M Business at Suburb T in the Wollongong area. It was suggested that the four days per week were flexible in the sense that the Father would be able to “work around” parenting arrangements for the child.

10. The Mother’s current work as a professional involves her working four days per week, Monday to Thursday inclusive, but the Mother is able to work from home on a Tuesday.

11. As noted, the child was born in October 2007. There is a profound degree of dispute between the parties as to the extent to which each party has been responsible for the child’s care since his birth.

12. Both parties claim to have been the child’s primary carer. The Father suggests that the parties agreed and decided the Father, “…would be a house parent,” to allow the Mother to continue working as a professional, “…as she wanted to pursue her career.”[1]

    [1] Para 21 of Father’s affidavit filed 9 June 2011.

13. For her part, the Mother refutes any such agreement.[2] The Father’s affidavit evidence and the submissions made on his behalf in the hearing before me sought to support the conclusion that because of the Mother’s working arrangements over the period since the child’s birth, the conclusion could be reached that the Father has in fact been the child’s primary carer. For her part, the Mother’s affidavit material and the submissions made on her behalf by Mr Lloyd of Senior Counsel urged the conclusion that despite the Mother’s work commitments, she remained at all times the child’s primary carer and specific reference was made to the Father’s travel to pursue his sporting activities as confirming the conclusion that the Mother has in fact been the child’s primary carer.

    [2] Para 22 of the Mother’s affidavit filed 27 June 2011.

14. This issue is discussed further below.

15. It appears that in January 2010, the parties agreed to separate, but thereafter attempted to reconcile their relationship.[3] I note from the affidavit of the Family Consultant, Ms R (“the Family Consultant”), that the Family Consultant understood the history to be that the parties separated in early 2010 but reconciled and separated again in early 2011, with final physical separation occurring in April 2011. For his part, the Father deposes in paragraph 66 of his affidavit filed 9 June 2011 that, “In January 2011, [the mother] and I agreed that the marriage was over.” At paragraph 7 of his affidavit filed 19 April 2011, the Father deposes, “In March 2011, we separated on a final basis. [The mother] requested that I vacate our home and I did so.”

    [3] Para 89 of Mother’s affidavit filed 27 June 2011.

16. For her part, at paragraph 132 of her affidavit filed 27 June 2011, the Mother deposes that it was in February 2011, the night before travelling to Western Australia, that the Father told her that he did not feel like he was married anymore.

17. In any event, it appears that in about March or April 2011, the parties physically separated, having decided at some time earlier in 2011 that their marriage was at an end.

18. The parties agree that, on a number of occasions, the child has travelled to the United States with the Mother. At paragraph 160 of her affidavit filed 27 June 2011, the Mother has detailed the dates and duration of these visits.

19. Notably, the child travelled with his mother to the USA between 14 April 2010 to 31 May 2010, and there is no issue between the parties that a further trip was planned for November 2010 which did not proceed, partly because of an illness the child was suffering.[4]

    [4]  Para 160.5 of Mother’s affidavit filed 27 June 2011 and para 62 of Father’s affidavit filed 9 June 2011.

20. There is no issue between the parties that subsequent to their final separation, it was agreed that the Mother and the child would be able to travel to the USA, although there are differences between them as to the precise terms of that agreement.

21. At paragraph 74 of his affidavit filed 9 June 2011, the Father deposes:

    74. In mid-April 2011, [the mother] wants to return to the USA for a number of months. I agreed to her going at that time, but do not agree that this should be one trip. I suggested that there be two trips, and a trip was planned from 20 April 2011.

22. For her part, the Mother refers, at paragraph 29 of her affidavit filed 27 June 2011, to discussions for the April 2011 trip commencing in January 2011, and at paragraph 140 of that same affidavit, refers to the booking of the trip and the Father’s suggestion that she extend the planned date of return by several days.

23. The Father advances a case that in April 2011 when he became aware of certain e-mail exchanges between the Mother and her father, Mr J (“the maternal grandfather”), over several days in early to mid April 2011, he was convinced that the Mother intended that rather than returning from the USA as planned in May 2011, that there was a covert plan by the Mother to remain in the USA with the child. I deal with the relevant e-mails referred to in some further detail below.

History of these Proceedings and Proposals

1. By his Initiating Application filed on 19 April 2011, the Father sought injunctive Orders designed to prevent the Mother from taking the child to the USA on the previously planned trip where the Mother was due to depart in April 2011.

2. That application did not seek parenting Orders on either an interim or final basis, although paragraph 10 seeks an Order, “…that leave be granted to amend the above Application to including parenting Orders,” and it would seem that the Application was prepared with some haste given that the affidavit filed in support of it refers to the triggering event of the Father sighting the relevant e-mails on the previous day, 18 April 2011.

3. Before dealing with those e-mails, I note that paragraph 19 of that affidavit of the Father filed on 19 April 2011 refers to the parties’ initial separation in early 2010. Notably, in paragraph 19 the Father deposes:

   19. In early 2010, when [the mother] and I initially separated, [the mother] said to me:

   19.1 “I have nothing here in Australia. [K] and I are going to America permanently.”

4. Relevant to that deposition, as already noted, paragraph 160 of the Mother’s affidavit filed 27 June 2011 details the dates of the child’s travel with her to the USA. Relevantly, after “early 2010” there was the visit from mid April 2010 until the end of May 2010; the further trip planned for November 2010 and of course the initially agreed April 2011 visit. Thus, to the extent that the Father advanced this evidence as showing an intention of the Mother to take the child to the USA without returning, the Father in fact has had the experience of the Mother travelling and returning, as planned, with the child, from the USA despite her stated intention, on his case. Whilst that is in the context of attempts to reconcile the relationship after early 2010, the factual history is that after difficulties in the marriage arose, the Mother has travelled to the USA with the child and has returned.

5. Given the heavy emphasis placed by the Father upon them, it is necessary to consider the specific content of the e-mail communication between the Mother and her own father to determine whether it can reasonably be concluded that the Father’s suspicions are well-founded.

6. Set out below is the relevant sequence and content of the e-mails referred to in various parts of the evidence before me, including the e-mails tendered as exhibits in the hearing before me. I have left out specific times and dates as it is the content and sequence which is important. I will include my comments and interpretation of the e-mails in that process. The dates and transmission details are in the e-mails admitted into evidence, but the substance of the relevant e-mails is as follows:

   a)April 9, 2011 e-mail from the Mother to her father:

   We’ll get [Mr S] to talk to the VW guy as soon as they get back from Canberra.

   Yesterday, [the father] asked me if I wanted to stay in [the USA] till the 14^th of May. Generous of him. Then he asked me how long I was thinking of going for in July – said I hadn’t really thought about it yet.

   b)Reply from the maternal grandfather to the Mother:

   Ok. Don’t let [the father] dictate how long you stay. Tell him whatever you think he wants to hear, but that will not determine what you do. Bat mitzvah just ended – non-stop subwoofers for 4 hours! DJ actually very good.

   c)Further e-mail from the Mother to the maternal grandfather in response:

   Was it fun?

   I already booked trip back here for the 10^th – so would have to pay the change fee to stay till 14^th anyway.

   d)E-mail from the maternal grandfather to the Mother

   That’s what I thought. If you stay later, it will be because there is a good reason and U want to. It was fun: just long and loud. Temple service almost three and a half hours! Back at motel changing, then to [Mr E’s] house for post-party pizza.

Comments and Interpretation

1. From paragraph 13 of his affidavit filed on 19 April 2011; paragraph 79 of his affidavit filed 9 June 2011 and the submissions made by the Father’s Counsel before me, the Father implies a sinister connotation to the statement by the maternal grandfather in the above e-mails, “…don’t let [the father] dictate how long you stay. Tell him whatever you think he wants to hear but that will not determine what you do.”

2. The first point to be made is that this is a statement by the maternal grandfather, not an indication by the Mother herself that she intends to ignore the Father’s views on the matter.

3. More importantly, put into context, it can be seen from these exchanges that the Mother is recording that she proposes to decline the Father’s suggestion to extend the return date from 10 May until 14 May because this will occur a “…change fee…” Taken from paragraph 140 of the Mother’s affidavit filed 27 June 2011, this was a fee of $400.00.

4. If the Mother had a settled plan not to return from the USA at all, or to extend her time in the USA beyond 10 May 2011, it makes no sense that she confirms to her own father that she is not changing her plans from a planned return on 10 May 2011. Not only does this not demonstrate any plan to extend her visit, it is evidence demonstrating the Mother’s intention that, as planned, she would be returning from the USA on 10 May 2011.

5. In these circumstances, it is unsurprising that the Mother herself caused this series of e-mails to be tendered in evidence when the matter came before Le Poer Trench J on 29 June 2011 (Exhibit W1).

6. It is relevant to note that at the time of these e-mails, there were no formal proceedings on foot between the parties. Paragraphs 138 and 139 of the Mother’s affidavit filed 27 June 2011 record the Mother’s version of discussions between the parties after the Father’s return from Noumea in early April 2011, which includes a reference to the April 2011 visit and the fact that the Mother had consulted a lawyer. Notably, that discussion included the Mother telling the Father that she would stay in Australia until all legal issues were, “…sorted out.” Even on the Father’s version in paragraph 76 of his affidavit filed 9 June 2011, he acknowledges that the Mother told him that she had seen a lawyer.

Further E-mails 9/10 April and Following

a)E-mail from the maternal grandfather to the Mother:

Is [the father] coming home today or recuperating at the beach for a few days?

b)Mother’s reply:

Supposedly coming back with [Ms D (“the paternal grandmother”)] – something about her not having to drive both ways of (sic) she comes back here with [the father] and then takes train home later.

c)Reply from the maternal grandfather:

OK. Don’t let [the paternal grandmother) engage you in conversation about you and [the father] if you can avoid it. Make sure you tell her nothing about what your intentions are. If she insists on talking just listen.

(I infer that the reference to “Ms D” in this message is a reference to the Father’s mother who has filed an affidavit in the proceedings before me).

d)Further e-mail from Mother to the maternal grandfather:

Meeting with Doolan. Much more grounded, far less optimistic advice. Reckons 30% or so chance winning relocation – said really hard to win and would take year to year and half to get to a hearing. Lots of time for father of the year to emerge. Gave me lots of advice though and things have to figure out and need to get this process going sooner rather than later. He’s has (sic) half a dozen or so relocation cases in last five years – 50% success rate. Says they almost never settle and could cost 60k easily and like most litigation here, will depend hugely on the judge, which we won’t know until day before. Not great news, but I think it’s definitely more realistic than previous advice.

e)Reply from the maternal grandfather to the Mother:

Are you comfortable with him? If so, you should hire him so we can strategise with him when you come home. Otherwise, go see another attorney before you leave. I am still optimistic because I am sure I know how to manipulate [the father] and his mother, although obviously nothing is certain. Can’t wait till you guys are here. Hotel very fancy. Off to shop and see the sights. E-mail when you wake up. Love.

Dad

f)Further e-mail from the Mother to the maternal grandfather:

Am up now bc can’t sleep and feeling really sad and emotional about everything tonight – really can’t believe this is all happening. Talked to [the father] a bit tonight before he went to the boat – told me he applied to rent an apartment but didn’t get it and that his mom might buy an investment apartment for him to live in. Then told me he thought I was the best mother in the world. I’m feeling really sad – all I really want is my family together and functioning and happy and it’s making me so sad that that’s just not going to happen. And no matter what happens, the biggest loser on this whole thing is [K], who doesn’t deserve any of this. The whole thing sucks.

g)E-mail from the maternal grandfather to the Mother:

[K] is not a loser because he has you. And neither are you because you have him and a family that loves and supports you. The only real loser is [the father] who actually has nothing and never will. Don’t let this get you down. You must accept it and move forward. You will become stronger because of it and you will wind up happier. I also think you will wind up here if that is what you really want. I’m sure it’s no fun and very depressing, but you must look to the future and try to make the best of this. I am positive that there will be good things that grow out if (sic) this misery, even if it may be difficult to see that now.

Comments and Interpretation

1. Taken from paragraph 13 of his affidavit filed 19 April 2011, the Father seeks to place some sinister connotation upon the admonition from the maternal grandfather in his e-mail above, “Don’t let [the paternal grandmother] engage you in conversation about you and [the father], if you can avoid it. Make sure you tell her nothing about what your intentions are. If she insists on talking, just listen.” At paragraph 15 of the same affidavit, the Father expresses concerns about the maternal grandfather noting that he knows how to manipulate the Father and his mother.

2. It is to be remembered that at the time of these e-mails, no formal proceedings had been instituted. Plainly enough, the Mother was considering the prospect of relocating to the USA and that is indeed now her formal application before the Court. However, it is a quantum leap to suggest that discussions between the Mother and her father via e-mail about her plans to conduct a “relocation” case i.e. to seek parenting Orders permitting her to relocate with the child to the USA is in fact discussion of a covert plan to travel to the USA and remain there with the child.

3. I have earlier referred to the Mother’s rejection of the Father’s suggestion of extending her trip from a return date of 10 May to 14 May. It seems clear that the encouragement by the maternal grandfather to the Mother not to discuss with the Father’s mother, her “intentions”, when taken in context, plainly refers to the intention to formulate a case seeking relocation. The reference to “Doolan” is a reference to the Mother’s current solicitor, Mr Paul Doolan. The Mother goes to some lengths to discuss with her own father the outcome of the meeting with her solicitor, Mr Doolan. Nothing in the Mother’s message to the Father about that discussion with Mr Doolan indicates that rather than pursue formal court proceedings in Australia, the Mother intends to remain in the USA. To the contrary, the Mother expresses her resignation that as difficult as the case may be in terms of prospects and the delay involved in having it determined, that is the course that she is reconciled to and that she, “….need[s] to get the process going sooner rather than later.”

4. Notably, in her message to her father, the Mother refers to a low settlement rate advised by Mr Doolan. In the maternal grandfather’s response, he suggests, in effect, that if the Mother is comfortable with Mr Doolan, then Mr Doolan should be engaged (“you should hire him”) and the maternal grandfather says, “…so we can strategise with him [a reference to Mr Doolan] when you come home.” Plainly enough, that seems to be a reference to the prospect of strategising the case and potential exhausting of any prospects of settling the case. It is clear to me that it is in that context that the maternal grandfather says, in his message, “I am still optimistic because I’m sure I know how to manipulate [the father] and his mother, although obviously nothing is certain.”

5. If the settled plan was as simple as the Mother travelling to the USA and remaining there with the child, what would be the point of engaging Mr Doolan? What possible “strategising” could occur between the Mother and the Father on one hand, and Mr Doolan, an Australian-based lawyer, on the other, if the Mother and the child were living and remaining in the USA? What would be the point of the maternal grandfather suggesting that he knows how to “manipulate” the Father or the Father’s mother? There would be nothing for the maternal grandfather to talk about with the Father or the Father’s mother if the plan was as simple as the Mother and the child travelling to the USA with the intention of remaining there without the knowledge or consent of the Father.

6. Again, there are no sinister words, even on the Father’s interpretation of these messages, which can be attributed to the Mother. The only specific references the Father makes in his affidavits are to the words used by the maternal grandfather.

7. Aside from that, I cannot conclude that it is reasonably open to place the sinister connotation upon the e-mail exchanges that the Father seeks to place upon them. I reject the contention of the Father that the only inference open from the correspondence between the Mother and her father (a professional practising in the USA) is that no notice was intended to be given of the Mother’s intention to attempt, whilst in the USA, to remain in that country.

8. The final message from the maternal grandfather uses the expression, “I also think you will wind up here if that is what you really want.” (emphasis added) That is hardly consistent with an already settled plan for the Mother to remain in the USA on the forthcoming planned visit, then only a matter of some days away. That, in context, can only be reasonably taken to be a reference to the medium or long-term future, or at least a point in time well after the forthcoming visit due to commence in a matter of days.

9. Whilst I can accept that the Father took exception to the references he emphasises in his affidavit material as to the contents of these e-mails, I have difficulty in accepting the proposition that he became genuinely of the view that these e-mails indicated a covert plan of the Mother to remain in the USA. Even if he did, I could not conclude that this was a reasonable conclusion based on the contents of the e-mails.

10. I find that, read as a whole and in context, there is nothing sinister in the contents of the e-mails relied upon by the Father for the proposition he mounts in this respect.

11. Rather, the e-mails read as a whole and in context, are entirely consistent with the visit commencing in mid April 2011 being temporary (with a return on 10 May 2011) against the background that the Mother had in mind a “relocation” case via the Australian courts i.e. formal Orders permitting her to relocate with the child, consistent with the Orders sought as now contained in her Response; whilst her father may also have had in mind attempts he might make to “manipulate” the Father and his mother into some agreement, albeit with the caveat, “…although obviously nothing is certain.”

12. At paragraph 191 of her affidavit filed 27 June 2011, the Mother deposes:

    191. I had contemplated applying for relocation when I returned from my holiday, an advice I sought and references to plans, etc. in my e-mails were in relation to a relocation application through the Australian courts.

13. Given my findings, I accept what the mother says in this respect.

14. The Mother confirms in paragraph 192 of the same affidavit that the e-mail communication with her father involved canvassing a number of options at a time when she was feeling distressed, alone and isolated and she confirms it was not her intention, and had never been her intention, to not return to Australia with the child. I have no reason to reject that evidence.

15. In paragraph 193, the Mother deposes to her admission to practice in both New South Wales (Australia) and the,USA and that she has worked as a professional for over 15 years. She refers to her employment here and her home here and to the child’s enrolment in preschool here. She then confirms arrangements she made which were consistent with her returning to Australia. For his part, the maternal grandfather has sworn an affidavit on 17 November 2011 which is filed in these proceedings. In paragraphs 2 and 3 of that affidavit, the maternal grandfather deposes the details of his practice as a professional for over 35 years. He records his appointment by the government of the United States of America in an official capacity.

16. At paragraph 5 of his affidavit, the maternal grandfather deposes:

    5. I am informed and believe that it is asserted on behalf of [the father] that I would encourage or assist [the mother] to remove [the child] from the jurisdiction from the Family Court of Australia. I am aware of the nature and intention behind the Hague Convention relating to the abduction of children. I would never encourage or assist my daughter … to violate the terms of the Hague Convention or to act in any way contrary to an Order of the Family Court of Australia. I would not encourage or assist [the mother], or indeed anyone, to engage in any illegal or criminal activity whatsoever. I would not jeopardise my career, my family’s happiness or security by violating or encouraging [the mother] to violate the Hague Convention or any Order of a Court.

17. I have no reason to reject this evidence, and I rely upon it as fortification of my interpretation of the content of the e-mail exchanges as outlined above.

18. The Father filed an Amended Initiating Application on 13 May 2011, in which he sought parenting Orders on an interim basis, including the following:

    22. That the parties have equal shared parental responsibility for the Child.

    23. That the Child live with the Mother.

    24. That the Child spend time with the Father as follows:

    24.1 Each Tuesday from 4.00pm to Wednesday at 6.00pm, with the Father to collect the Child from childcare and return him to the Mother’s residence; and

    24.2 Each Friday from 12.00pm to Saturday at 5.00pm, with the Father to collect the Child from swimming lessons and return him to the Mother’s residence; and

    24.3 That the Father be at liberty to contact the Child by telephone or Skype each night that the Child is not in his care between 7.00pm and 7:30pm.

    24.4 At all other times as agreed by the parties.

    25. That Mother be permitted to take the Child out of Australia on holidays to the United States of America, for a period not exceeding two (2) weeks provided that:

    25.1 The Mother gives to the Father no less than twenty-eight (28) days prior to the proposed departure written details of the holiday including:

    25.1.1 Dates of departure from and return to Australia

    25.1.2 Copy of itinerary provided by travel agent or airline

    25.1.3 Copy of return airline ticket/s

    25.1.4 Places it is intended to visit whilst away from Australia

    25.1.5 Details of how the child can be contacted whilst away from Australia including contact telephone number and address (if known)

    25.2 The Mother deposits the sum of $10,000 in a bank account in her solicitor’s trust account together with an irrevocable authority to said solicitor that such sum may be released to the Father in the event the Mother has not returned the child to Australia within two (2) days of the due date for return in accordance with the airline ticket provided pursuant to 25.1.1 above.

    26. That the Mother facilitate the child telephoning the Father and/or videoconferencing with the child by Skype on not less than three (3) occasions each week.

    27. That the parties attend family dispute resolution with Ms B on a date and time to be arranged with Ms B.

    28. That a notation be made that the Child’s country of habitual residence is Australia.

19. Thus, the Father’s then-considered position was that the child’s best interests would be served by living with his mother and spending two overnight periods with the Father each week. I note in passing that the relevant condition on the proposed travel for the Mother and the child to the USA was a requirement for the Mother to deposit the sum of $10,000.00.

20. Notably, the final Orders sought by the Father in that Amended Application (paragraphs 5, 6, 7 and 8), are in a similar form, with provision being made for different time being spent with the Father once the child commences school. That is, even in the final Orders, the Father sought an Order for the child to live with the Mother and for the Father to spend two overnight periods with the Father per week.

21. It is against the background of those Orders sought by the Father that the consent Orders of 23 May 2011 were made. Notably, the consent Orders provide for the child to spend time with the Father for two overnight periods each week, albeit on different days to those nominated in the Father’s Amended Application.

22. Mr Lethbridge SC for the Father submitted to me that the consent Orders of 23 May 2011 were effectively entered into under sufferance by the Father because the matter was not to receive a hearing by the Court on that day. Mr Lethbridge SC suggested that it was a matter of the Father, “…taking what he could get,” in terms of an agreement in the circumstances. In essence, that it was better for the Father to agree to the provision of some time in consent Orders at the Mother’s behest, rather than there being no Orders at all.

23. I accept the force of the submission of Mr Lloyd of Senior Counsel for the Mother in response that Mr Lethbridge’s submissions in this respect are somewhat disingenuous when regard is had to the Orders sought by the Father himself as outlined above.

24. I infer that the Orders sought by the Father in the Amended Initiating Application referred to (when he was then represented by his current solicitors) were the product of careful consideration by the Father as to Orders in the best interests of the child.

25. In the Final Orders sought in the Amended Initiating Application filed on 13 May 2011, it can be seen that the Father sought a progression of time referable to the child commencing kindergarten, progressing to an Order for the child to live week about from the commencement of year two at school.

26. On 9 June 2011, the Father’s further affidavit was filed. It is far more detailed than the relatively short initial affidavit filed on 19 April 2011, and I have already noted that the earlier affidavit was apparently prepared in some haste given that it referred to events only the day before. The same exigencies did not apply with respect to the affidavit filed on 9 June 2011, and importantly, at paragraph 115 of the 9 June 2011 affidavit, the Father deposes as follows:

    I am aware that [the mother] wishes to take [the child] to lived (sic) in the United States with her. I am presently seeking on an interim basis that he be with me for at least two and hopefully three nights a week. When he is a little older, I will be seeking orders for shared parenting or in the alternative that [the child] has significant time with me.

    (emphasis added)

27. I have already noted the dispute between the parties on the issue as to which of them was or has been the child’s primary carer. Much of the Father’s affidavit filed 9 June 2011 is devoted to detailing the extent of the Father’s involvement with the child from the time of the child’s birth. It is against all of that background detailed in the affidavit that the Father deposes as he does in paragraph 115.

1. The only sensible conclusion that can be drawn from the content of paragraph 115 is that despite all that the Father has to say concerning the extent of his involvement with the child (in support of the proposition that he has in fact been the child’s primary carer), paragraph 115 iterates the Father’s position as to what is in the child’s best interests. The corollary of the child spending two or possibly three nights per week with the Father is that he would be spending possibly four or five nights per week with the Mother, and again it must be inferred that this is how the Father then viewed the child’s best interests being served.

2. In the face of that position, it seems to me unnecessary to attempt the exercise of resolving the issue between the parties as to the extent of their respective care of the child or which of them can be said to be, historically, the child’s primary carer (which each of them contend for).

3. I am satisfied, taking into account the assessment of Ms R, Family Consultant, that whichever of the parents’ histories are accepted, it is likely that the child has developed an attachment and relationship with each parent.

4. On 15 June 2011, only six days after filing his affidavit of 9 June 2011 containing paragraph 115 as referred to, the Father filed his Further Amended Initiating Application, seeking Orders profoundly different, both interim and final, to those contained in his earlier application and to his position reflected in paragraph 115. Those Orders included an Order that the child live with the Father and spend time with the Mother essentially on a five nights per fortnight basis. Both the interim and the final Orders sought in the Further Amended Initiating Application seek Orders from the time that the child commences school, with provision for half school holiday time with the Mother, but there is no proposal for a week about arrangement.

5. The further significant amendments relate to the proposed travel of the Mother to the USA. On the Further Amended Initiating Application, the Father imposes the further condition on travel that he be able to obtain a valid visa to enter the USA, and there is an increase from $10,000.00 to $100,000.00 of the amount the Mother would have to deposit as a condition of travel.

6. No further affidavit of the Father accompanied the Further Amended Initiating Application, and whilst the Father filed a further affidavit for the purpose of the hearing before me on 24 November 2011, that affidavit is largely responsive to the affidavits filed in the Mother’s case by herself and her father on 21 November 2011 and 17 November 2011 respectively.

7. There is therefore no specific evidence from the Father explaining why he considered, as he apparently did, that the proposal reflected in his earlier affidavit filed 9 June 2011 (containing paragraph 115) and his previous Application was then thought by him to be in the child’s best interests, but this altered to such a profound extent as reflected in the Further Amended Initiating Application. Aside from any evidentiary explanation, there were no submissions before me on behalf of the Father directed to reconciling these profound changes in the Father’s position.

8. In those circumstances, I am concerned that the Father’s proposed Orders in the final iteration of Orders he seeks may be driven by or at least influenced by a perceived need to defend the Mother’s proposed relocation case rather than reflecting the Father’s dispassionate views about what interim Orders would best serve the child’s best interests.

9. On 27 June 2011, the Mother filed her Response to Initiating Application. The final Orders sought by the Mother in her Response reflect her proposal that she relocate with the child to the USA. Her interim Orders reflect a proposal for the child to live with the Mother and spend time with the Father for two overnight periods each week. Essentially, as far as interim orders are concerned it is the Mother’s proposal on an interim basis that Orders be made to continue the existing arrangements, subject to her proposal for travel.

10. The interim Orders sought by the Mother detail proposed arrangements for holiday periods, including overseas visits to the USA, although the case and submissions before me were directed to a forthcoming proposed Christmas time visit to the USA, and no doubt further travel can be addressed in the final hearing of this matter.

11. On 1 and 9 August 2011, Ms R, Family Consultant, undertook interviews of the parents both individually and jointly, and on the latter date, made observations of the child with his parents. Ms R’s report, as to her preliminary assessment, is attached to her affidavit sworn 16 August 2011. Ms R records in her assessment the documents she read for the purpose of undertaking her assessment.

12. By the time of Ms R’s assessment in August 2011, the child had experienced his parents’ physical separation (noted in Ms R’s report to have occurred on 18 April 2011). He was attending a daycare centre in the Sydney CBD and a daycare centre at  Suburb C. Pursuant to the Consent Orders made on 23 May 2011, he had been living with the Mother but spending from Wednesday afternoon and overnight until 6.00 pm on Thursday and Sunday from 9.00 am and overnight until 10.00 am Monday with the Father.

13. Thus, since the parties’ physical separation, it is the child’s experience that he has lived primarily with the Mother, but has spent regular time with the Father, including the two overnight periods on Wednesdays and Sundays with the Father.

14. In her assessment, Ms R describes the child as follows:

    [The child] (age 3 years 10 months) presented as a confident, sociable and playful child with verbal skills and an apparent independence. [The child] was observed playing with his mother and with his father. He was not interviewed due to his young age, but he spontaneously engaged in play related conversation with the Family Consultant throughout the observations. [The child] appeared comfortable with each parent and was settled throughout several separations and reunions. [The child] appeared slightly more receptive to [the father’s] interactions and play, but appeared confident, physically affectionate and responsive to direction with each parent.

15. In her assessment, Ms R notes the competing proposals of the parties, both on an interim and final basis involving the relocation proposed by the Mother and summarises the parties’ respective positions as to the issue of primary care of the child since his birth.

16. Ms R records:

    From the parents’ reports and from observation of the parents in a brief session together, it is apparent that they struggle to communicate and have a basic lack of trust in each other’s intentions. [The father] reports that [the mother] displays controlling behaviour and is passive-aggressive in her communication style. [The mother] reports that [the father] is volatile, critical, demanding and aggressive. Based on the parents’ descriptions at changeovers, it would appear that [the child] has been exposed to feelings of tension, lack of communication and aspects of conflict. Each parent reports that the other parent has, at times, behaved inappropriately at changeovers. It is encouraging to note that each parent reported that the most recent changeovers had been positive and that the other parent had appeared to adjust their general attitude in such a way as to improve the changeover experience for [the child] and reduce his feelings of distress.

17. In relation to perceived regression by the child in toileting behaviours, Ms R records the competing positions of the parties. She notes:

    [The father] reported that he feels that this indicates that he [the child] has been affected by the parents’ separation and particularly affected by his not having daily contact with him. [The mother] reported that she feels that [the child’s] regression in toileting behaviours and increasing clinginess and unsettled behaviour at home is a response to the parents’ separation, his changed routine, and his ongoing adjustment to spending time away from her.

18. In summary, each party was agitating the position that more time spent by the child with them, and conversely less time with the other parent, would address the child’s difficulties.

19. Ms R expresses that her assessment was the provision of only preliminary expert advice.

20. In her summary, Ms R notes:

    [The child] has had only a few months to adjust to the changes in his family constellation. It is likely that this adjustment process is ongoing and that it will be facilitated by consistent routines, time with each of his parents, and protection from his parents’ conflict.

21. Ms R notes the following in her summary:

    At the moment, [the child] spends three days per week in childcare, two days with his mother and two days with his father. He has opportunities for education, social interaction with peers, and time with each parent across a range of activities. Any change to this routine would need to take into account his childcare arrangements and both parents’ work schedules. The current arrangement, and any change to it, requires the parents to be responsive to [the child’s] needs and for them to be open to considering each other’s opinions with respect to [the child’s] needs.

22. Ms R’s assessment therefore emphasises [the child’s] continuing adjustment to the changes in his family constellation, and refers in particular to his routine.

23. Ms R does not specifically recommend any change to that current routine in the context of the child’s continuing adjustment.

24. In her affidavit filed 21 November 2011, the Mother details, in paragraph 9, what she says to be the child’s behaviours as reflecting the child’s difficulties with coping with, “….the current arrangements…” noting a particular deterioration since about mid-September. For his part, in what he describes as a limited opportunity to reply to some of the paragraphs of that affidavit, the Father, in his affidavit filed on 24 November 2011, disputes much of the content of paragraph 9 and highlights differences in the child’s behaviour which the Father alleges occur in his home as compared to that described by the Mother.

25. Whilst the Mother deposes in paragraph 10 to having consulted a child psychologist, Ms L, on a number of occasions to seek her assistance as to management of the child’s “behaviour and distress”, and the Mother deposes that it is Ms L’s advice or view, “…that the child may benefit from a more settled arrangement with greater security in his primary home,” the limitations with respect to that advice are obvious. Ms L has not made observations of the child directly and, more importantly, has not had any input from the Father or the opportunity to make observations in the usual way of the child interacting with each parent. As the Father deposes in paragraph 10 of his affidavit filed 24 November 2011, he was not consulted about any input from the Child Psychologist.

26. Thus, on the preliminary expert evidence of Ms R available to the Court, it cannot be concluded that more or less time with either parent is supported by expert evidence. The conclusion to be drawn from the expert evidence, for interim purposes, is that the child is continuing to adjust and perhaps struggling to adjust, to the changed family circumstances.

27. Ms R, as already noted, refers to the adjustment process being facilitated by consistent routines, time with each of his parents, and protection from his parents’ conflict (emphasis added). The child has routine and has time with each of his parents, but it would seem apparent from the material before me that he is not protected from his parents’ conflict as well as he should be, on the version of either parent.

28. On the disputed issues of fact before me, I am unable to make a finding one way or the other as to whether more or less time with either parent will address any perceived difficulties in the child’s adjustment process as opposed to that process being better facilitated by the parents being keenly aware of the effect of any conflict between them being exposed to the child.

Legislative Pathway

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:

   65D Court’s power to make parenting order

   (1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

6. Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act). Section 61DA (3) provides that in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim Order.

7. As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:

   (1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

8. Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

9. “Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:

   (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

10. The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.

Relevant s 60CC Considerations

1. I approach the relevant s 60CC considerations having in mind the objects expressed in s 60B(1) and the principles underlying those objects set out in s 60B(2). I have earlier referred to the parties’ respective proposals on an interim basis.

2. I find that there is benefit to the child of having a meaningful relationship with both of his parents (s 60CC(2)).

3. I find that there is no evidence before me which constitutes a basis for there being any need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). The risk of harm to the child is in respect of the potential psychological harm that may be caused to the child if his exposure to the parental conflict continues. As to this aspect, I rely upon the features that I am satisfied that both parents love the child and have his best interests at heart. Both parents have had highlighted to them by Ms R, perhaps also by what each of the other has had to say in affidavit material, potential areas of conflict that may expose the child to detriment. There is the in-built safeguard that these are interim proceedings and there will be further assessment in an expert sense of the child and his interactions with his parents. Both parents remain in the focus of the Court whilst the proceedings continue.

4. Having recently turned just four years of age, the child does not have the maturity or level of understanding for the Court to give weight to any of his views, even if there were uncontested evidence as to those views. I note that Ms R has not interviewed the child for these obvious reasons (s 60CC(3)(a)).

5. As to s 60CC(3)(b), Ms R assesses that it is likely that the child has developed an attachment relationship with each parent, and I find that this is so. I am also satisfied that it is likely that the child is attached to the paternal grandmother, given the references to her involvement.

6. Likewise, it would seem that despite his young age, the child, from his visits to the USA historically, is aware of his extended family in the USA, although I cannot reach firm conclusions on the nature of his relationship with those extended family members given that the child’s most recent visit to the USA was in April/May 2010.

1. Whilst the evidence of the extended recent conflict between the parents gives cause for concern as to the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, the history of the matter overall suggests a capacity in the parents to negotiate co-operative parenting arrangements, even post-difficulties in their own relationship. Despite the current difficulties, it seems clear enough on the evidence that both parents recognise the need for the child to have and maintain a relationship with the other parent (s 60CC(3)(c)).

2. It is relevant, given the Father’s proposal in particular on an interim basis, to consider the likely effect of changes in the child’s circumstances, including the likely effect on him of separation from his mother as required by s 60CC(3)(d). I accept the evidence of Ms R that as at August, the child was continuing to adjust to the changes in his life. I have earlier noted that there is change ahead for the Father in terms of his employment plans. Precisely how they will or could affect his proposals on an interim basis is less than clear.

3. That aside, I am concerned that if at this stage the significant change contemplated by the Father was put into effect, it may produce added difficulties for the child in making the adjustment referred to by Ms R. I emphasise that it may well ultimately be the case that more time with the Father is unlikely to cause a detrimental effect upon the child, but on the evidence before me (much of which is disputed as noted), I cannot reliably assess the likely effect of the change proposed by the Father in terms of comfortably being satisfied that it would enhance the child’s position. For the same reasons, despite the Mother having detailed the difficulties with the child under the current arrangements, and the advice earlier referred to that she has received from a child psychologist, there is insufficient evidence that I can accept that would dictate that less time with the Father would likely produce a more settled routine for the child.

4. On an interim basis, subs (e) to (h) (inclusive) of s 60CC(3) are not, on the evidence before me, of particular relevance to this matter.

5. As to (i), whilst the Mother’s criticisms of the Father might be described as the Father only being interested in “fun time” with the child and the Mother points to the Father’s somewhat extensive travel both before and after separation as showing, it seems, some lack of commitment of the Father, it seems to me that suggestions to this effect are contradicted by the extent of the Father’s care and involvement with the child on any view of the evidence. That is, even allowing for the extent of the disputed issues which I cannot resolve, and even on the Mother’s version, the Father has played a significant role in the child’s life given the Mother’s employment commitments.

6. Subsections (j) and (k) of s 60CC(3) are not considerations relevant to this matter; (l) is of limited relevance given the interim nature of these proceedings; and as to (m), other than what has already been discussed above, and what follows with respect to the Mother’s proposal to visit the USA with the child, there is no other particular fact or circumstance which I consider to be relevant.

7. As to s 60CC(4) and (4A), the degree of disputed issues of fact between the parties limits somewhat the capacity of this Court to reach firm conclusions with respect to the relevant matters identified in the subsections. Subject to that caveat, I am satisfied that each parent has met responsibilities as a parent to the child, but the extent of any limitation in that respect is a matter for trial when the disputed issues of fact can be properly tested.

8. As I propose to make parenting Orders, and having regard to my findings above including my consideration of relevant s 60CC considerations, I apply, pursuant to s 61DA(1), a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility. There is no relevant ground under s 61DA(2) for the presumption not to apply, and taking into account also the discussion and conclusion below concerning the Mother’s travel to the USA with the child, I find that s 61DA(3) does not apply and under s 61DA(4), I am not satisfied by evidence that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him, at least on an interim basis as contemplated.

9. Given the findings I have already made, I am not satisfied that it would be in the child’s best interests for an interim Order for him to spend equal time with his parents be made at this stage nor would this be reasonably practicable having regard to the matters set out in s 65DAA(5) given the geographical distance between the parties but, more particularly (b), (c) and (d) of the subsection. I find that such an Order would be contrary to the child’s best interests on the evidence of Ms R in particular, but also having regard to what the Father himself swore at paragraph 115 of his affidavit filed on 9 June 2011 as discussed above.

10. A continuation of the existing Orders will mean that the child is spending “substantial and significant time” as defined in s 65DAA(3) with his parents and I do not consider that this is contrary to the child’s best interests on an interim basis.

Conclusion on Best Interests

1. I consider that, on an interim basis, the child’s best interests would be served by making interim parenting Orders including an Order for his parents to have equal shared parental responsibility and otherwise in accordance with a continuation of the parenting arrangements reflected in the Orders made on 23 May 2011 and I will incorporate the further details or variations to those arrangements reflected in the interim consent Orders made on 29 June 2011.

Mother’s Proposed Travel

1. I have made the findings outlined above with respect to the e-mail communication that gave rise to the Father’s difficulties with continuing to agree with the planned April 2011 visit. Those e-mails aside, the fact is that the parties had been able to negotiate and agree upon a planned visit. Indeed, on the Father’s version, what had been proposed by the Mother was a visit for, “…some months…” but that he required there to be two trips rather than one extended visit.

2. That would seem to reflect, even in the Father, an acknowledgement that it is in the child’s best interests that he have the opportunity to travel to the USA with his mother for a holiday, incorporating as that does the opportunity for the child to spend time with the maternal grandparents and other extended family members on the maternal side.

3. Indeed, even on the current Application, the Father is agreeable to such a visit, but seeks to impose some very stringent conditions upon the travel.

4. The first of these is that the Father be able to obtain a visa to enter the USA in circumstances where it is completely unknown, at this stage, whether that will be possible. His need to be able to enter the USA is said to be the ability to participate in Hague Convention proceedings in the event that the Mother withholds the child in the USA and does not return to Australia.

5. I have earlier referred to the evidence of the Mother’s father,. The Mother herself, in paragraphs 16, 17, 18, 19 and 20 of her affidavit filed 21 November 2011, specifically addresses the Father’s concerns. Relevantly for present purposes, the contents of the Mother’s affidavits (and if thought to be relevant, maternal grandfather’s affidavit) would be available to the Central Authority in the USA on any Hague Convention proceedings that were necessary to secure the child’s return. That aside, I see no reason not to accept the evidence of the Mother, an officer of this Court as well as of the Courts of the USA, that she would not contemplate a breach of this Court’s Orders.

6. Likewise, this judgment would be available in any Hague Convention proceedings in the USA, and for that purpose I note the following:

   a)There cannot be any doubt that the child’s country of habitual residence is Australia;

   b)There cannot be any doubt that the Father has rights of custody in Australia because, inter alia, of the Order that he has equal parental responsibility for the child. Under Australian law (s 61B of the Act), parental responsibility means all the powers, duties, responsibility and authority which, by law, parents have in relation to children and this includes the right to determine where a child has habitual residence. Any purported exercise by the Mother of determining that the child should live in the USA without an Order of this Court would not only be in breach of the Orders I propose to make, but would be a breach of the Father’s rights of custody under the Hague Convention and there could not be any doubt that the Husband would exercise or would have exercised those rights if the Mother purports to remain in the USA.

   c)Given the evidence in these proceedings, and having regard to the child’s age, there could not be any reasonable prospect of an exception being made out for a return Order to be made in Hague Convention proceedings that take place in the USA.

   d)In particular, nothing in the Father’s historical criminal convictions could possibly give rise to the “grave risk” exception as nothing in relation to that matter presents as a relevant risk so far as the child is concerned given the history of the parenting of the child since his birth and the acknowledgment by the Mother in her affidavit evidence and as conveyed to Ms R, of the need for the child to continue his relationship with the Father. The Orders sought by the Mother would, in these proceedings, put paid to any notion of a Central Authority agitating the grave risk exception or that exception of having any prospect of success.

7. More often that not, any Hague Convention proceedings are conducted in circumstances where the parent remaining in the country of origin is not present in the forum. I do not, in the circumstances, see the Hague Convention proceedings as being less likely to succeed because the Father is not physically present.

8. In summary, I am satisfied that it is more likely than not that the Mother would not contemplate a breach of this Court’s Orders as would be involved in her remaining in the USA in the face of these proceedings and Orders and moreover, if she did, Hague Convention proceedings would most likely result in an immediate return Order with respect to the child.

9. Given the evidence of the Mother and the maternal grandfather as to the health of the maternal grandparents, it seems to me that there is an added imperative for the child to be permitted to travel to the USA with the Mother.

10. In my view, the imposition of the monetary conditions (as varied by the Father from $10,000.00 to $100,000.00) are not reasonably necessary to safeguard the child’s return and, given the evidence of the Mother as to her financial position and her financial support of the child and the undisputed somewhat limited support of the Father, imposition of such conditions would be unreasonable and likely to prevent any visit, which would not be in the child’s best interests.

11. In this context, I note that last year the Father inherited a substantial sum in the amount of $400,000.00, and whilst there are references in the material before me as to the expenditure of some of that sum, it seems to me a reasonable inference that the Father would have financial resources available to him to the extent that he needed to pursue any efforts in the USA or in this Court to address the, on my findings, unlikely event of the Mother retaining the child in the USA.

12. For these reasons, I make the Orders set out at the commencement of these reasons.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 December 2011.

Associate: 

Date:  16 December 2011