Harriett and Harriett and Ors

FAMILY COURT OF AUSTRALIA

HARRIETT & HARRIETT AND ORS

[2007] FamCA 518

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child - Mother from South America, father Australian - Child sent to live with paternal aunt and uncle in Australia by father - Deception as to intent by father and his family - Mother seeking orders that child live with her and be allowed to return to South America

APPLICANT:

MRS HARRIETT

RESPONDENT:

MR HARRIETT

SECOND RESPONDENTS:

MR HEWSON and
MRS HEWSON

INDEPENDENT CHILDREN’S LAWYER:

MS CRUTTENDEN

FILE NUMBER:

BRF

2838

2006

DATE DELIVERED:

11 May 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

BARRY J

HEARING DATE:

8 – 10 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dick of Counsel appeared for the Mother

SOLICITORS FOR THE APPLICANT:

DA Family Lawyers

SOLICITOR FOR THE RESPONDENT:	The Father appeared in person
SOLICITOR FOR THE 2^ND RESPONDENTS:	The Paternal Aunt and Uncle appeared in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Waterman of Counsel appeared for the Independent Children’s Lawyer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Ms Cruttenden, Solicitor, Legal Aid Queensland

Orders

The Mother be permitted to return with the child, a daughter born … January 1998, to South America.
The Paternal Aunt and Uncle to deliver the child’s passport to the Mother’s Solicitors, DA Lawyers, … , Brisbane by 4.00 pm Wednesday 16 May 2007.
All previous Orders be discharged.
The Court requests that the Australian Federal Police remove the name of the female child, the daughter, born … January 1998, from the Airport Watch List at all points of international arrivals and departures in Australia.
The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Offices of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.
The Independent Children’s Lawyer be discharged.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2838 of 2006

MRS HARRIETT

Applicant

And

MR HARRIETT

First Respondent

And

MR HEWSON and MRS HEWSON

Second Respondents

REASONS FOR JUDGMENT

The applicant is the mother of a 9 year old girl. The first respondent is the child's father the second respondents are the paternal aunt and uncle of the child. The Court has been assisted in this matter by the appointment of an independent children's lawyer who briefed counsel. The applicant was represented by counsel funded by Legal Aid Queensland. All three respondents previously had legal representation but at the time of the final hearing commencing on 8 May, they were self-represented.
The mother was born in South America and lived there at all times until she arrived in Australia in early last year. The child was born in South America in January of 1998. The mother seeks an order that she be permitted to return to South America with child to live there permanently, as was the case prior to the child’s arrival in Australia in March of 2002.
The father commonly known as "[A]", which is his third Christian name, was born overseas. He is one of 14 siblings. As I understand it his entire family are now Australian citizens. His sister, Mrs H, with her husband, Mr H, are the second respondents in these proceedings, sometimes referred to as the second and third respondents. It does not really matter. Another sister, Ms I, was a witness called by the paternal aunt and uncle.
For the sake of convenience, I propose to refer to the parties by their Christian names. I do not intend in any way by this to demean the parties. It is a convenient way of designating them. In the alternative, I shall also refer to them by the description of "father", "mother", "uncle" and "aunt". I will refrain from using the terms, "applicant", "first respondent", "second respondents",

et cetera.
The parties met when the father travelled to South America in about 1993 or 1994. Some time after he arrived in South America he met the mother and they married in November of 1995. In his evidence the father said that the marriage to the mother was a marriage of convenience to allow him to remain in South America. I am somewhat cynical of the evidence of the father in this regard. The father presented as being of a narcissistic nature with something of a superior air. Where he has married a woman 26 years younger than himself and has resided with her from at least the time of marriage in 1995 until early 2006, it certainly does not bear the hallmarks of a typical marriage of convenience, particularly where they have had a child together, have continued to reside in the same household and there has been a level of mutual support. Primarily the mother has supported the father.
The issue is not greatly relevant, other than on the issue of the father’s credibility. I need little convincing, other than to conclude that unless his evidence is corroborated by a reliable independent source I would have difficulty in accepting the veracity of same. The father previously worked as a brick layer. He says he has a back injury and has not worked at any time since the marriage, other than for a brief period selling cigarettes on a wholesale basis to various retail outlets in the area of the South American country in which the parties lived. The mother says that that business venture was not successful. The father says it was. On balance, I would prefer the mother's account.
When the father lived in South America he was largely supported by the wife's income as a textile worker. There was financial support from members of the father’s family in Australia. I accept that. There is a conflict between the mother on the one hand and the three respondents on the other, as to the circumstances of the child coming to Australia. It is succinctly summarised at paragraphs 2.2 and 2.4 of the report prepared by Ms D in February this year.
Paragraph 2.2:
"There is considerable dispute regarding formal and/or informal consent being granted for [the child’s] relocation. [The paternal uncle and aunt] and the [the father’s family] assert that [the mother] knowingly and willingly agreed to [the child] being adopted by the [paternal uncle and aunt]. [The mother] says she was given documentation in English that she did not understand, was told to sign various papers and was inordinately pressured to surrender [the child]."
Paragraph 2.4:
"Despite promises from [the father] around working towards relocation to Australia so [the mother] could be reunited with [the child], [the mother] became increasingly aware that [the father] had no intention of ensuring this. Telephone contact between [the mother] and [the child] lessened as [the child’s] familiarity with Portuguese reduced and she became increasingly assimilated into Australian culture. [The mother] told [the father] she wished to travel to Australia to visit [the child]. This was financed and organised by [the father’s] siblings. [The father] remained in [South America]. After a period of time in Australia it became clear that [the mother] intended to resume her role as [the child’s] parent and initiated proceedings to this end. [The father] was unimpressed with what he viewed as [the mother’s] deceptiveness and upon returning to Australia himself he elected to proactively support [the paternal aunt and uncle’s] legal battle to keep [the child] residing with them."
I do not believe it was accurate for Ms D to report that the mother's fare to Australia was financed and organised by the father’s siblings. That was simply not the case. She had to scrimp and save on a modest income, even by South American standards, in order to afford the fare. I accept that the paternal uncle and aunt assisted by confirming to the Immigration Department that she would be able to be supported during her six month tourist visa stay.
By the time she had saved the money to travel to Australia there had been a delay of some four years or so. A delay of two years occurred before the mother realised that the arrangement for her daughter's stay was not what she had been led to believe. The further two years was needed to allow her to save the fares. The mother arrived in Australia about January of last year.
When the father heard that it was the mother’s intention to take her daughter back to South America with her, as noted by Ms D, he left South America and travelled to Australia in about April of 2006 in an effort to prevent this happening. I have little doubt that the father’s fares to Australia were readily provided by members of his family. Since arriving in Australia over 12 months ago, apart from a relatively brief period of a few months when he lived with the paternal aunt and uncle and the mother in Brisbane, he has resided in a small town, G, near Perth.
When the child was brought to Australia in March 2002 by Ms I, she was placed in the care of her paternal aunt and uncle. She remained in their care until orders were made by consent earlier this year for her to live primarily with her mother, with further orders to enable her to spend time on a regular basis with the paternal aunt and uncle.
It is the father's case, as I have noted, that the mother consented to the child coming to Australia on a permanent basis with the paternal aunt and uncle to engage in a de facto adoption arrangement. This was the version of events given to the paternal aunt and uncle. The mother's version is that the child was to remain in Australia for educational purposes but that she and the father would either migrate here or be in a position to visit the child on a regular basis.
Having heard the mother give her evidence, I am left in no doubt whatsoever as to her veracity. Her evidence was powerful in the extreme. I accept that at the time the original arrangements were made there may have been difficulties in communication between the mother and the father, although I very much doubt this was the case. Whatever the reason, whether it be deception or otherwise, I am convinced the mother had no intention of permanently surrendering her daughter to the care of others such that she would be unable to exercise her rights and responsibilities as a mother.

Orders Sought by the Father

The father's proposals for the future care of his daughter are remarkably inconsistent. The orders sought by the father found in his response document filed by leave on 23 February this year, suggest he proposes the child live with the paternal aunt and uncle and spend time with him at all reasonable times as agreed. In his affidavit filed on 1 May at paragraph 38 he deposes to the fact the child has expressed a desire to live with him in Australia, if the mother is to persist with her application to be allowed to return to South America. In a prepared statement read to the Court at the commencement of the hearing, Monday last, he stated:
"Your Honour, I would like to make it known also that on a few occasions in the last 12 months I have wanted to take my daughter with me to live in Perth because [the mother] all along has expressed to me that she wanted to go back to live in [South America]. As a result of the Court orders then I thought I could not just go over to the [the paternal aunt and uncle] and take my daughter away to live with me."
In the course of cross-examination the father was asked where he intended to live with his daughter. Initially he said she would live with him in G in a house he occupies with his three adult brothers. He said it was a five bedroom house worth $1 million to $1.2 million. He, himself, does not have a vehicle but there was a bus going past the front door where the child could be taken to school in the nearby town of G. The property apparently is some 50 hectares or so. He, himself, does not have a vehicle but I infer his brothers have the use of a vehicle and would be able to assist him with his own transport and the transport of the child.
Subsequently in his evidence he claimed that he wanted the child to live with him in Brisbane. Prior to giving this evidence he was most insistent he was not at all in favour of living in Brisbane because he was not familiar with the place. He has made no enquiries whatsoever in the Brisbane area as to the nature of any accommodation he could obtain; schooling the child could attend; or any such other manifestly realistic enquiries.

Proposals of the Paternal Aunt and Uncle

It has to be said that the paternal aunt and uncle’s proposals have been quite consistent. They propose that the child live with the mother provided she stays in Australia, but they would like her to spend time with them on a regular basis. If, however, the mother was to persist with her plan to return to South America they seek for the child to be placed back in their care.
Reports were prepared by two report writers, Ms D, and family consultant, Ms T. The first report was in February 2007 and the second report dated last week, 4 May. At the commencement of the hearing on Monday, all the respondents indicated they did not propose to cross-examine either report writer. However, the paternal uncle resiled from this position and indicated he wished to ask questions of both report writers and permission to this end was granted.
At the commencement of the adjourned hearing on Monday, the paternal uncle read a prepared statement on behalf of his wife and himself. In that statement he was critical of the Court's handling of the matter, but particularly critical of Ms T's report. He, effectively, accused her of bias. He indicated his wife and himself would continue to press for the orders that they sought in their response document. I will summarise those orders. The document was filed on 1 May. The sub-heading to the amended final orders says that:
"In the event the mother relocates to [South America] then:
the child live with the [the paternal aunt and uncle] and the child can spend time with [the mother] at all reasonable times in Australia as agreed between the parties and in the absence of agreement two weeks in the Easter, June/July, and September/October holiday periods, two weeks in December/January holidays periods but if this period includes Christmas day then Christmas Day is to be shared and then provisions for reasonable liberal telephone communication.”
There is an order that the costs of the mother's travel and accommodation while in Australia be met by her. They propose that the child travel to South America every four years for up to four weeks with the cost of the travel and accommodation to be met by themselves. I note the child is 9 years of age. On my estimation, this would involve one trip at the age of 13. By the age of 17, I expect the child would be exercising an independent judgment in such matters. It is rare indeed for a Court in this jurisdiction in any country in the world to make orders in relation to a 17 year old, whether male or female.
The orders sought by the paternal aunt and uncle then cover the subheading:
"Provided the mother lives in Australia with the child”
then they accept the child should live with her, but the child should have regular contact with them, in particular every second Thursday from after school at 3 pm until Sunday 5 pm. When they move to their new home in the suburb of C it is to be every second Friday 6 pm until 5 pm Sunday. There is also provision for holiday contact and reasonable telephone communication. Transport of the child is to be shared. Arrangements to keep each other informed of changes of address and the usual type of orders that are ancillary. There is also an order that the mother and the paternal aunt and uncle have equal shared parental responsibility for the child. It is noteworthy they do not seek to include the father in that particular order.
On page 7 of their response document under the heading:
"Spends time and communicates with the father”
They seek orders:
“1.The child spend time with the father at all reasonable times as agreed between the parties.
2.Reasonable and liberal telephone communication…”
on specific dates, birthdays and Christmas Day and the like.

Witnesses in the Case

Each of the parties had filed an affidavit and, in turn, each gave evidence in support of their affidavit and was subjected to cross-examination. In her case the mother relied on an affidavit of Mr U. The Us are a retired couple who have permitted the mother to live in their home at F. She has resided there since July 2006. Prior to that she had lived with the paternal aunt and uncle, but it appears the relationship became increasingly strained. The Us are away from home for some months at a time. The mother resides there with her daughter caretaking the house. Mr U indicated in his prepared statement the mother is welcome to continue to live as part of their family when they are at home. It is a mutually beneficial arrangement and they do not charge her any rent. Mr U was not required for cross-examination and his evidence is before the Court on an unchallenged basis.
The further witness for the mother was Ms M. She had sworn an affidavit on 26 April. Ms M is an Australian citizen who grew up in South America. Her occupation is given as "teacher" and "life coach". She annexes a statement to her affidavit describing her experience of growing up in South America with her parents from the age of one and a-half until she left there at the age of 23. She attended local Government schools until grade eight and thereafter attended a private school. She deposes to the fact the education in South America:
"Is of a high standard and is closely monitored by the Government.”
Ms M is fluent in Portuguese. In her affidavit she deposes:
"[The South American country] is very family oriented and this is a valuable part of culture which we wonderfully inherited by having been brought up there. Everyone looks out for the other person and cares for each other. If you visit someone you will be invited to have lunch, dinner or at least a coffee. I personally have travelled throughout [the South American country] and have been in the area [the mother] comes from and the capital and surrounding suburbs are as developed as the area I grew up. The capital cities and surroundings suburbs have everything from shopping centres, big amusement parks, movies, technology and anything you need, except for Vegemite. I do not feel that [the child] will be in anyway deprived of anything should [the mother] return to [South America] with her. The fact that she owns her own house makes matters even easier. To have a loving caring family is what really matters when you are growing up and education is not only what you learn at school but the values you gain at home with your family.”
Ms M was not required for cross-examination. Her evidence is before the Court again on an unchallenged basis.
In the course of his submissions, the paternal uncle endeavoured to suggest that Ms M grew up in a middle class environment in South America. I am unable to draw any such inference from her statement. Had they wished to make that point - she was called to the witness box - they could have asked her those questions. All the respondents indicated they had no questions for her having initially indicated they did wish to challenge her evidence.
On the issue of lifestyle in the South American country, I must say that I am far more inclined to adopt the position set out in paragraph 76 of Ms T's report. She says:
"Whilst I am unable to comment with any authority upon the living standards that exist in [the South American country], I would doubt whether one could make blanket statements to apply to each and every person and situation in a particular country. On the basis of comments made by [Ms I], [the father], and [the paternal uncle and aunt], it may well be that [the child] will not enjoy the same monetary standard of living in [the South American country] as she would if she continued to live in Australia. However there may be other aspects of life in [the South American Country] that will provide benefit to [the child’s] development and wellbeing that she would not experience in Australia not least of which would be a day to day relationship with her mother.”

I note the father's evidence was singularly inconsistent. In his affidavit it is one long diatribe about the evils of South American society generally. In the course of his cross-examination he seemed to entirely resile from that and accepted that there were many positive aspects about life in South American society.
The paternal uncle has never been to South America but purported to criticise it based on his experiences of travelling to the Philippines. I am not prepared to draw any such conclusion as he appears to have done. He annexed a report downloaded from the Internet, and I will make reference to that later.
The paternal aunt’s experiences of South America consists of a four week stay many years ago.
The only witnesses in the paternal uncle and aunt’s case was to call the paternal aunt’s sister, Ms I, who had sworn an affidavit on 28 April. I shall consider the evidence of the paternal aunt and uncle when considering the affidavit evidence of the father and mother. I note the father was the only witness in his case. I will consider the evidence of Ms I when examining the evidence relating to the mother's ability to stay in Australia, an issue to which I now turn.
The mother originally entered this country on a six month tourist visa. She had to depart to New Zealand to re-enter the country to have that visa extended. She is currently on a bridging visa, as I understand the evidence. She is awaiting information from the Department of Immigration how much longer she will be able to stay in this country. Her evidence is to the effect that if she is permitted to take the child back to South America, she will endeavour to remain in Australia to allow the child to complete her school year.
At the commencement of the hearing back in February 2007, the father initially refused to support the mother in an application for a spouse visa. I made arrangements at that time for an officer of the Department of Immigration to give evidence by telephone link up. That officer indicated that without an application for a spouse visa it would be virtually impossible for a person in the mother's position to remain in this country on anything other than a temporary basis.
At a later point in time, for reasons not clearly expressed, the father changed his mind and indicated a willingness to sign a spousal visa application on behalf of his wife. The documents have been signed by the mother and forwarded to the father but he has not lodged the necessary documentation as it requires a deposit of $2000, which he says he does not have. In the typed statement read to the Court at the commencement of the proceedings, the father had added in his own handwriting:
"My position in this case is that I am prepared to sponsor my wife so she could live in Australia with me and [the child]. If [the mother] can't stay in Australia then I would like [the child] to stay with the [the paternal aunt and uncle] or myself.”
In paragraph 23 of his affidavit he deposes as follows:
"At the present time I have no funds and I am unable to lodge a spousal visa application for [the mother]. The critical criteria when lodging a spousal visa application is the fee which is $2000. If the fee is not attached with the application the application may be returned and refused. If [the mother] was granted a visa on her own merit to remain in Australia I would still face the dilemma in raising funds to place a bond on a house and to furnish the house. In possibly three years I would be in a better position to do these things as it would give me time to save.”
In his final typed statement to the Court the father says:
"Although I am an aged pensioner I am prepared to sacrifice to save enough money to offer [the mother] a return air fare ticket to Australia every two years to visit her daughter if [the mother] is not granted permanent residency in Australia just like [the mother] and I discussed in [South America]"
I note the father has travelled from Perth to Brisbane in 2006 and 2007 on at least four occasions to my knowledge. He came over in about April of 2006. He was again over here in October 2006. He was here for the hearing, February this year, and he is here at the current time. The father says that the previous trips were as a result of moneys advanced by members of his family. He paid for the air fares for this visit himself.
Where the father is one of 14 siblings, I reject out of hand any suggestion he could not borrow $2000 to lodge a spouse visa application. To use the vernacular the father is simply not fair dinkum in his assertions that he wants the mother to remain in Australia.
The father's evidence is that the father’s family is a very tight knit, close and supportive family. I accept that is the case. He is residing in a house owned by his brother worth $1 million to $1.2 million. I find it astonishing that he would not be able to borrow money from this brother; from his sister, Ms I; from his sister, the paternal aunt; or some other family member.
There is compelling evidence that the father’s family, or at least certain siblings including the father and Ms I, have engaged in a particular game plan to pretend on the one hand that they will support the mother’s application to stay in Australia, but on the other hand to undermine any such application.
Support for this view of the facts is to be found in the subpoenaed documents from the Department of Immigration. The Department of Immigration produced its file in response to a subpoena from the mother's solicitors. An officer of the Department had taken it upon himself to censor or to delete information from what is referred to as a "dob in" letter received by the Department on 5 April this year. The letter gives a reference:

"Re: [The mother] - […] January 1967"

that is the mother's date of birth. The letter, obviously, is written by somebody other than the paternal uncle and aunt. The author is clearly female and a mother. It is written by somebody who has intimate knowledge of the facts of this case and has clearly been involved in the case. When it was put to Ms I that she was the author of this letter she denied on oath categorically that she was. She was pressed on this issue and continued to adamantly deny that she was the author. She denied she had ever seen the letter and she did not know who could possibly have written the letter.

During the course of that cross-examination I tentatively formed the view that if Ms I was not the author of the letter then it must have been the tooth fairy. At a certain point in the cross-examination I raised with counsel for the mother that it was not the function of the Department of Immigration to delete items from their file prior to responding to the subpoena. I indicated I was prepared to forward a further subpoena returnable that day requiring the production of the original letter in question. Shortly after engaging in this exchange with counsel for the mother, Ms I grew strikingly pale. She moved into, what I can only describe as, a catatonic state. She stared straight ahead. She was quite rigid in her demeanour. She was asked questions, but refused to respond. It was if she could no longer hear. At that stage it was clear she was not in a position to answer questions and I adjourned the Court. I was advised she was not in a position to continue her evidence and I adjourned the question of her evidence until the morning of Thursday, 10 May.
At the commencement of the hearing on that day, Ms I read a prepared statement to the Court and in that statement confessed she was the author of the letter; she apologised to the Court for her perjury; and apologised to the mother for her dishonesty. What she did not apologise for were the blatant lies contained in the letter she had sent to the Department of Immigration, exhibit 4. I do not propose to analyse in any detail the contents of that letter, other than to describe the allegations as simply perverse. A few examples will suffice, in the penultimate paragraph of the letter she states:
"Reading between the lines from this statement one could only suggest that this was a marriage of convenience just so that she could gain entry into Australia”.
The facts of this matter are the father conceded on oath that it was a marriage of convenience so that he could remain in South America. The marriage took place in 1995. It is peculiar in the extreme that the mother would not seek to come to Australia until more than 10 years later if her intention in marrying the father was to allow her to gain entry into this country. The reality is she does not wish to remain in Australia. She wishes to return to her native South America.
Ms I, in the same letter, describes the mother as:
"Here comes another Centrelink welfare recipient."
The plain fact of the matter is the evidence I accept is that the mother has largely supported the father during the period of the relationship. I accept moneys were, from time to time, advanced by family members in Australia. The mother worked full time as a textile worker. She wants to go back to work as a textile worker. She has not applied for Centrelink benefits. She is not entitled to them. The father, on the available evidence, did precious little in South America to support the family. He is the one who is currently receiving Centrelink benefits. I am not in any way critical of the father for that. He is entitled to them.
But to criticise the mother as a "would be recipient of welfare benefits in this country", borders on scandalous. The letter written by Ms I reveals a Machiavellian plan of action in conjunction with the father. I observe that their proposals for the child to live with the mother so long as the mother remains in Australia can be seen to be facile, when they know it is inherently improbable she would be allowed to remain because of the non-lodgement of the spouse visa application.
In the course of cross-examination when Ms I resumed her evidence and admitted the falsity of her previous evidence, she was then questioned by counsel for the independent children's lawyer whether she had discussed her dishonesty and the contents of the prepared statement she read with either of the three respondents. She insisted she had not. When the questioner persisted with the questioning, she once again resorted to a catatonic state by placing her head on the ledge of the witness stand, covering her head with her hands, and simply refusing to answer any further questions. At that stage, I simply discharged the witness.
Ms I would be one of the worst witnesses I have seen in a courtroom in 40 years of being involved in trials in every jurisdiction in this State. I am not prepared to accept a word of her evidence. Her evidence casts a dark shadow indeed on the bona fides of the father and the father’s family generally. The evidence is glaringly obvious that their position is duplicitous. They, on the one hand, say they are content for the mother to have the care of the child while she stays in Australia, but they do nothing to encourage her to stay in Australia by supporting a spouse visa application. In fact, the completely opposite stance is taken by writing a "dob in" letter to the Department of Immigration in the totally false terms that Ms I did. As I have said I accept that the father’s family is a close knit supportive one. I find it is likely that every member of the family knows precisely what is going on.
In the written submissions handed up by the paternal uncle in the course of the final submissions he made, he says:
"The mother informs the Court that she is in a position to have the church pay for her to return to [South America] with [the child]. She has no idea how much this will cost. We assume it will be in the vicinity of some $3000 to $5000. We cannot understand why the church has not assisted the mother and the father in obtaining a spousal visa in circumstances when it has been deposed to by the father that a spouse visa will cost $2000.”
Why total strangers should have to pay the spouse visa application of the mother when the father is one of 14 siblings who, on the available evidence, have not been approached to see if money could be borrowed to make the necessary payment, totally escapes me. Largely because of the actions of the father, I conclude that the reality is the mother will not be permitted to remain in Australia. At a time when numerous refugees and other migrants with far less worthy justification are granted permission to stay in this country, it is unfortunate that the family have elected to take the stance that they have.
I turn to consider whether the child should stay in Australia with either the father or the paternal aunt and uncle, or whether she should be permitted to return to South America with her mother. It was a recommendation on balance, of Ms D, that the mother should be permitted to return to South America with her daughter for the reasons she gave in the course of her cross-examination. It was the opinion in a very compelling report prepared by Ms T that the mother should be allowed to relocate to South America with her daughter. It was the recommendation of the Independent Children's Lawyer that this should occur.
As I indicated at the commencement of these reasons, I propose to so order. My reasons for doing so follow. I would assess the mother as a very trusting person. It took two years to elapse before it occurred to her the father's assurances about travel to Australia to see the child would not happen. It has taken less time on this occasion for her to realise that the father’s assurances about supporting her application for a spouse visa, were not genuine.
Having found on the available evidence the mother would not be permitted to remain in Australia, I observed that although the situation arises almost exclusively as a result of the conduct of the first respondent, the reality is the mother does not wish to remain in Australia. If I was to conclude that it was in the child’s best interests that she not return to South America, I have little doubt that the litigation venue of the mother would move from the jurisdiction of this Court to the Immigration Review Tribunal. With the tenacity she has displayed to date, I have little doubt she would fight tooth and nail to remain in Australia so that she could parent her daughter.
The reality, however, is the Court is confronted with three very stark proposals: should the child live with her mother in South America; should the child live with her father in Brisbane or G; or should the child reside in Brisbane with her paternal aunt and uncle? In dealing with this issue I have to be guided by a series of what are known as "relocation cases", cases decided by Appeal Courts telling trial Judges how they should proceed in this difficult area of the law.
In his helpful written submissions, counsel for the mother refers the Court to the recent decision of the Appeal Court in Bolitho v Cowen (2005) 33FLC 471. In that case the Appeal Court consisting of the Chief Justice, May and Boland JJs, reviewed an earlier case known as A v A where a Full Court of this Court had identified three stages of analysis:
(1) identify the relevant competing proposals;
(2) for each relevant s 68F(2) factor - now reads s 60CC factors - set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor, and make findings on each factor as the Court thinks fit having regard to s 60P;
(3) on the basis of the prior steps of analysis determine and explain why one of the proposals is to be preferred having regard to the principle that the child's best interests are the paramount, but not the sole, consideration.
The Court then went on to consider a decision of the High Court of Australia. In U v U (2002) 29FLR 74, Gummow and Callinan JJ observed:
"We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not on any view bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about a residence of a child and the objective is always to achieve the child's best interests.”
Back to the Bolitho decision, at paragraph 72 their Honours observed:
"We affirm that the decision in U v U has ameliorated the somewhat rigid and/or formula suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in the relocation case is a weighing of competing proposals having regard to relevant s 68F factors and a consideration of other relevant factors including the right of freedom of movement of the parent who wishes to relocate bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
I accept the recitation of the legal principles as set out in counsel's written submissions.
In considering the competing proposals of the parties, I observe that if the Court acceded to the father’s proposals I would be of the view that within a short space of time he would simply return the child to the care of his sister, the paternal aunt. I have no doubt about that. I had the distinct impression from a combination of his evidence, his conduct, and other evidence in the case that the father does not value the role of the mother as a person in the child's life. It is very, very sad.
There is, to my mind, an element of gamesmanship about the father’s altered position that he now wants to care full time for the child. It is a position that he has adopted very late in the piece. It is a position that he has adopted without thinking through the consequences of such basic issues as where they would live. No acceptable explanation was given by the father for the sudden change of position. I have no doubt he loves the child. It is abundantly clear that she loves him. However he has been quite content for the past five years for the aunt and uncle to act as parents to the child. He came out to Australia to oppose the mother's plan to return with the child to South America. Had the mother not undertaken her travel to this country, it is a matter of speculation how long the father would have remained in South America whilst the child remained in Brisbane. Put simply, I do not accept his application for his daughter to be primarily cared for by himself, is a genuine application.
Even if it was a genuine application, I would be most reluctant to make an order in such terms. There is no evidence from the three other occupants of the G house. I may well conclude that they are perfectly reasonable, honest citizens, but they may not be. Where is the evidence who they are; how old they are; what they do; have they got criminal convictions; what have they done? That was the environment he was proposing to return the child to. I would not consider it a suitable environment for a 9 year old girl to live alone with four adult males in a relatively remote area.
The father has not put forward any proposals as to where he would live in Brisbane; the type of accommodation and what schooling. I had the distinct impression the idea came to him during the course of cross-examination.
Section 66C(1), a copy of which I provided to the respondents, commences by saying:
"In determining what is in the child's best interests the Court must consider the matters set out in sub-s (2) and (3).”
and it divides (2) and (3) between "Primary considerations" and "Additional considerations". The "Primary considerations" are:
"(a)The benefit to the child of having a meaningful relationship with both of the child's parents”;
and:
"(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.”

The paternal uncle addressed submissions on the second leg about the child being subjected to physical or psychological harm. I was not entirely sure I understood his submission. At one stage he seemed to be saying that the child would be subjected to psychological harm if separated from members of his household. That is acknowledged. That is fully accepted. The experts have considered this aspect and their evidence is to the effect the child will be subjected to psychological harm whichever decision is made, but on balance the psychological harm would be greater to her if she is to be separated from her mother, particularly where it would be for a second time in her young life.
The other aspect which, I think, the paternal uncle strayed into was that because of the environment in South America, the Court could not be satisfied on issues such as the child being safe from physical or psychological harm. The reality is the evidence concerning South America is very much unchallenged. Ms M's evidence was unchallenged. The paternal uncle has no knowledge of the place. The paternal aunt’s knowledge of South America has to be extremely limited. The evidence coming from the father was extremely inconsistent.
I turn to consider the factors I am required to take into account under s 60CC(3). The wishes of the child are the first factor. It is clear from the evidence of the report writers that the child wants to be with her mother, but wants to remain in Australia. There is evidence that she has been influenced by the paternal aunt and uncle on her views of South America, reference to this is to be found in par 57 of Ms T's report. She says there:
"On more than one occasion and in differing context [the child] volunteered that she wanted to live with her mother. [The child] expressed a clear view that she wished to 'live with mum but in Australia’. On another occasion [the child] stated that ‘it would be best if I lived with mum and I visit [the paternal uncle and aunt]. During discussions as to why she wishes to live in Australia [the child] demonstrated a clear understanding that [the paternal uncle and aunt] 'do not like [the South American country] but mum thinks it's nice’. [The child] demonstrated clear awareness that [the paternal uncle and aunt] had negative views about [the South American country], it's living standards, and a concern that she would not get an education in [the South American country]. Some of the comments that [the child] made in regard to [the South American country] were very similar to the views articulated by [the paternal uncle and aunt].”
I pause to note that there is a considerable degree of consensus in the views and observations made by the two report writers and I have no hesitation in accepting the evidence, in particular I accept the views by Ms T being, in my view, the more recent and more detailed of the reports.
I have to consider, as a second factor under sub-s (3) the nature of the relationship of the child with each of the child's parents and other persons including any grandparents or other relative of the child. I am satisfied the paternal aunt and uncle have acted as if there was a de facto adoption of the child. The child from the outset has been encouraged to refer to them as "mum" and "dad". The child is enrolled at school under the name of "[the paternal uncle and aunt]". They expressed a wish to adopt her. They persisted with plans to have the child baptised in their religion with knowledge the mother opposed such a step.
I do not wish to be too critical of the paternal uncle and aunt. I will accept, for present purposes, their belief that the child was to be raised in their household on a permanent basis. This belief was conveyed to them by the father.
However, they have done little to encourage a relationship between the mother and her daughter. The mother spoke Portuguese. The longer the child remained in Australia, she lost her ability to converse in Portuguese. She spoke English. It made it difficult for her to converse with her mother by phone. The paternal uncle and aunt gave evidence that they took the child for weekly lessons in Portuguese to the suburb of A in Brisbane for a period of some three months. The paternal uncle gave me the distinct impression he did this to promote her South American heritage. This evidence was a response to Ms T’s observations, at paragraph 78 of her report where she said:
"Whatever the Court's determination is in this dispute I identify another concern about [the child] remaining with [the paternal uncle and aunt]. This concern is based upon my experience in the field of adoption and in inter-country adoption in particular, and it informs me that if a child is reared within a culture and country not of his or her birth, Australia, it's imperative for her identity needs and a capacity to be able to deal with racism that she is provided with opportunities to develop and maintain not only a pride in her particular racial characteristics but also opportunities to develop an internalised knowledge of and pride in her country of origin and her culture of origin. To not be provided with this is highly detrimental to such a child's emotional and personal wellbeing and self-esteem. Within this dispute I have no faith in the capacity of [the paternal uncle and aunt] to be able to assist [the child] in this important aspect of her identity needs and self-esteem. The person who can best assist [the child] in this regard is her mother.”
It also seemed the evidence about the Portuguese lessons was a response to the fact that I provided a copy of s 60CC around that time with its emphasis on providing an ongoing relationship with both parents. In taking the child to the Portuguese lessons there was no suggestion the intention was to allow the child to better communicate with her mother. The intention, it was advanced, was to allow the child to better identify with her South American origins.
At paragraph 56 of her report, Ms T reports:
"I formed a view that [the child] is very aware that the adults in this dispute do not like each other. She expressed some protectiveness about her mother [the mother] and indicated she did not like [the paternal uncle and aunt] talking about [her mother].”
To my mind the mother seemed genuine in her claims she does not hate the paternal uncle and aunt. She is grateful for all the things they have done. They would be welcome in her house in South America. Whether that comes to pass, I am unable to predict. I found the mother a simple but very genuine person.
I accept the mother perceives the paternal uncle and aunt as engaging in controlling behaviour at times, not strictly complying with Court orders at times. I refrain from making any finding whether her perceptions are reality based.
I accept she is afraid of the paternal uncle and aunt collectively and of the uncle in particular. It is difficult to fake trembling. I accept she was observed trembling by the child and Ms T in an incident in the foyer at the time of the interviews for the report. I fully accept the paternal uncle’s assurances that he is a calm, gentle person. However, because of the level of hostility which has escalated, I do accept that the mother is genuinely afraid of him.
I have perused the written submissions by counsel for the mother and am prepared to accept same as accurate representation of the facts in this matter, where the facts are alluded to.
In dealing with the next sub-section, which is the likely affect of any changes in the child's circumstances including separation from the parents, the submissions at paragraph 83 are in the following terms:
"Should the Court make orders in accordance with the amended application filed by the applicant mother on 27 April 2007 there will be no significant change it is submitted in the child's relationship with her father. [The child] has lived in Brisbane for the last five years. The father lived in [South America] for the first four of those five years and thereafter lived in Perth. His contact with [the child] has primarily been spent through telephone communication although he spent some four months with [the child] in Brisbane upon his arrival in Australia and then a further three weeks with her in the company of his extended family in [G] during the 2006/2007 Christmas school holidays.”
It would not be surprising to me if the father ultimately returned to South America. It is a matter for him. I have little doubt the mother would not seek to interfere, or in any way prevent a development of his relationship with his daughter if he chose to do so. Whether there would be a reconciliation of some description between the parties, I am unable to say.
I accept that if the child remained in Australia and the mother was then subsequently forced to return to South America, she would be cut off completely from any future dealings with her child. The mother would be unable to afford to visit Australia. As I have said the paternal uncle and auint’s proposed visit every four years amounts to, in effect, one visit in the balance of the child's childhood. The uncle and aunt are in a far better financial position to visit South America.
In relation to lifestyle in South America in paragraph 96 of his submissions he observes:
"The second and third respondents however are most disparaging of the life [the child] might live if she was returned to live in [South America] with her mother. These criticisms appear to be directed at life generally in [South America] rather than specific complaints about [the child’s] attachment to her mother and the mother's ability to care for [the child].”
I accept the force of that submission.
A summary of the reasons why I have reached the conclusion that I have would be:
(1)The child should be with the parent with whom she has the primary attachment. The legislation requires as a primary consideration that, all other things being equal, the child be raised by a parent, not somebody else. I have indicated that I have no confidence in the fact that the father would raise the child. He has been alienated from his three adult daughters and has not seen them for over 20 years;
(2)I accept the force of the report and the contents of paragraph 78 of Ms T's report, which I have previously quoted, about the need for a child growing up to be able to identify with his or her roots;
(3)I also adopt the contents of paragraph 79 of Ms T's report to the following effect:
"Another concern that I have in regard to [the paternal uncle and aunt’s] applications to the Court in this dispute is the absence of any significant acknowledgement by either of them that [the child] has experienced a loss in regard to the disruption of an ongoing relationship with her mother and the significance and importance of this loss to [the child]. [The mother] is able to articulate and to recognise the loss that [the child] will experience at being separated from [the paternal uncle and aunt] and [M] and states awareness that it is in [the child’s] best interests that she continue to maintain an ongoing relationship with that family despite the current hostility and angst that characterises the adult relationships.”
(4)There is, to my mind, an air of superiority about members of the father’s family. In Ms I’s case it extended to an air of downright aggressiveness. She was pointing her finger at counsel for the independent children's lawyer during the course of cross-examination when he persisted with questions. Later in the course of cross-examination she commenced to jab her finger in the air towards him. It was very aggressive behaviour.
(5)I accept that the father was more laid back, perhaps too laid back.
(6)I accept that the paternal uncel is of a quiet thoughtful disposition. But the uncle and aunt see their environment that they offer as so superior in every way for the child, they lack the insight into the value of the mother/child bond.
The conclusion I have reached is not an easy one to have arrived at. No decision making is easy. Ms D observes in paragraph 8.1 of her report when making her recommendations:
"I found this particular matter to be more challenging than almost any other I have addressed in over 10 years of family report writing. How can one know if the benefits of a more opulent lifestyle here in Australia without the nurturance of a biological parent who proactively seeks to directly provide such love and care and the nebulous yet critical importance of being 'in one’s own culture’ outweighs the possible negative consequences of being directly and/or indirectly exposed to a society dominated by poverty crime and corruption?”
I quote that passage not because I accept that the child will be living in an area:
"dominated by poverty crime and corruption”
but that cases of this nature are invariably difficult. As I said during the course of the hearing, I never make up my mind until all the evidence and submissions have concluded, but one is always able to assess whether a case is a strong case or a weak case. A Judge invariably forms views as to the veracity or otherwise of a witness during the course of a hearing.
RECORDED: NOT TRANSCRIBED
ORDER DELIVERED
I do not propose to put any time limit on that. The mother said she has been here for 16 months, in my view, largely unnecessarily so. If she wants to return to South America immediately it is a matter for her. If she wishes to stay to allow the child to conclude her schooling or because the visa is extended, again it is a matter for her.
Ms I, in the same letter, describes the mother as:
"Here comes another Centrelink welfare recipient.”
The plain fact of the matter is the evidence, I accept, is that the mother has largely supported the father during the period of the relationship. As I have said, I accept moneys were, from time to time, advanced by family members in Australia. The mother worked full time as a textile worker. She wants to go back to work as a textile worker. She has not applied for Centrelink benefits. She is not entitled to them. The father, on the available evidence, did precious little in South America to support the family. He is the one who is currently receiving Centrelink benefits. I am not in any critical of the father for that. He is entitled to them. But to criticise the mother as a would be recipient of welfare benefits in this country, borders on scandalous.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
I fully expect that the child be given ample opportunity to say her goodbyes to the paternal uncle and aunt and to her father, but I do not propose to make any further orders.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 11 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARRIETT & HARRIET AND ANOR

[2007] FamCA 518

11 May 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction