HELMES & HELMES
[2012] FamCA 901
•13 August 2012
FAMILY COURT OF AUSTRALIA
| HELMES & HELMES | [2012] FamCA 901 |
| FAMILY LAW – CHILDREN – Parenting orders – International relocation – Where the mother is from the Czech Republic and the father is Australian – Where the mother was unsuccessful in Hague Convention proceedings in the Czech Republic and was ordered to return the child to Australia - Where the mother sought to return to the Czech Republic and relocate with the child – Where the father opposed relocation of the child and sought orders that the child live with the mother and spend time with the father – Where the parties entered into consent orders during the course of the hearing – Where it was necessary to deliver reasons for judgment to record the nature of the evidence that was presented during the hearing. FAMILY LAW – EX PARTE ORDERS – where the father presented grossly misleading evidence in support of ex parte application – Kennedy & Kennedy (1993) FLC 92-409 applied – ex parte applications should be approached with real caution – it is inconceivable that an order of the type obtained would have been made had the truth been known. |
| Family Law Act 1975 (Cth) |
| Kennedy & Kennedy (1993) FLC 92-409 |
| APPLICANT: | Mr Helmes |
| RESPONDENT: | Ms Helmes |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | WOC | 351 | of | 2012 |
| DATE DELIVERED: | 13 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7-10 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Eldershaw |
| SOLICITOR FOR THE APPLICANT: | Pigdon Norgate Family Layers |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | York Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gillies |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Consent orders
The parties have equal shared parental responsibility for T (“the child”) born … May 2010.
The parties consult with each other about major long term issues in relation to the child and make a genuine effort to come to a joint decision about such issues, including issues about:
2.1.education, including choice of school (both current and future);
2.2.religious and cultural upbringing;
2.3.health; and
2.4.changes to the child’s living arrangements.
The child lives with the mother, except as otherwise provided for in these orders.
That the mother be permitted to remove the child from the Commonwealth of Australia to reside in the Czech Republic not before 5 January 2016.
The child’s time with the father before 5 January 2016
That the child shall live with the father from the date of the making of these orders and until his 3rd birthday:
5.1.Tuesday and Sunday from 9am to 5pm each week; and
5.2.Such other times that the parties might agree in writing.
5.3.For the purpose of facilitating Order 5, the father shall collect the child from and deliver him to the mother at B Shopping Centre, or as otherwise agreed by the parties.
That the child shall live with the father from his 3rd birthday until his 4th birthday on a two week cycle as follows:
6.1.In week one: from 9am to 5pm each Thursday and from 9am Saturday to 3pm Sunday with the first such occasion to occur on the Thursday immediately following the child’s 3rd birthday;
6.2.In week two: each Tuesday and Thursday from 9am to 5pm;
6.3.Each 2 months, as nominated by the father to the mother in writing no less than 4 weeks before the proposed dates, the father may add one extra night to the time prescribed in 6.1 above (as to create a block of two nights); and
6.4.Such other times that the parties might agree in writing.
6.5.For the purpose of facilitating this Order 6, the father shall collect the child from and deliver him to the mother at B Shopping Centre, or as otherwise agreed by the parties.
That the child will live with the father from his 4th birthday until the commencement of the NSW gazetted school term in 2015 on a two week cycle as follows:
7.1.In week one: each Tuesday from 9am to 5pm and from 9am Saturday to 4pm Sunday with the first such occasion to occur on the Tuesday immediately following the child’s 4th birthday;
7.2.In week two: each Tuesday and Thursday from 9am to 5pm;
7.3.Every 6 weeks, as nominated by the father to the mother in writing no less than 4 weeks before the proposed dates, the father may add three (3) extra nights to the time prescribed in 7.1 above (as to create a block of 4 nights); and
7.4.Such other times that the parties might agree in writing.
7.5.For the purpose of facilitating this Order 7, the father shall collect the child the child from and deliver him to the mother at B Shopping Centre, or as otherwise agreed by the parties.
That the child will live with the father from the commencement of the NSW gazetted school term in 2015 until 5 January 2016:
8.1.During school term:
8.1.1.Each alternate weekend from the conclusion of school or preschool Friday until the commencement of school or preschool Monday with the first such occasion to occur on the 1st weekend of each school term.
8.1.2.Each alternate Wednesday from the conclusion of school or preschool until the commencement of school or preschool Friday with the first such occasion to occur in Week 2 of each school term.
8.2.During NSW gazetted school holiday periods from 2015 for the first half of each school holiday period. The school holiday period shall commence at the conclusion of school on the last day of the gazetted school term and shall end at 5pm on the day before the first day of the next gazetted school term. For the avoidance of doubt this Order 8.2 will apply even if the child is attending a pre-school or school which does not have formal school terms and holidays in accordance with the NSW gazette or otherwise.
Special occasions with the father
In the event that the child would otherwise be living with the mother the child’s time with her is suspended as follows:
9.1.On the child’s birthday from after school to 6pm if the day is a school day and from 2pm to 4pm if the day is not a school day;
9.2.On the father’s birthday from 9am to 3pm if the day is not a school day and from after school to 7pm if the day is a school day;
9.3.On Father’s day in 2012 from 9am to 3pm;
9.4.On Father’s day in 2013, 2014 and 2015 from 5pm on the Saturday immediately preceding Father’s day until 5pm Father’s Day; and
9.5.Easter Sunday for 4 hours as agreed and, failing agreement, between 1pm and 5pm.
Christmas period
Whenever the parties are in the same country over the Christmas period the child shall spend time with:
10.1.The father from midday on 25 December to midday on 26 December; and
10.2.The mother from midday on 24 December to midday on 25 December.
Overseas travel to 5 January 2016
For the period 2012 to 5 January 2016: Notwithstanding any other order to the contrary but subject Order 49, the mother is entitled to travel with the child to:
11.1.The Czech Republic for a period of 4 weeks and 4 days each calendar year provided that the period of travel does not include the Christmas period in 2012, 2014 or 2015 and provided that the effect of such travel does not result in the child spending in excess of 4 weeks and 4 days consecutively outside Australia;
11.2.The Asia Pacific with the child for not more than 1 week on two occasions each year to visit Ms P provided that such time does not interfere with the child spending time with the father pursuant to Order 8.2,
and the father’s time with the child is suspended during the periods provided for in Orders 11.1 and 11.2.
11.3.For the purpose of implementing this Order 11:
11.3.1.When such travel is to occur in 2012, the mother shall give the father not less than 2 weeks notice.
11.3.2.When such travel is to occur in 2013, 2104 and 2015, the mother shall give the father not less than 6 weeks notice.
11.3.3.In all cases, notice shall include a copy of the child’s and the mother’s airline tickets, flight itinerary and details of the child’s contact details whilst outside of Australia.
For the purpose of Order 11.1 above, the father shall pay for the child’s return economy airfare to the Czech Republic. In respect of travel in 2013, 2014 and 2015, with 14 days of the mother providing to the father a copy of the child’s e-ticket, the father shall pay to the mother into a bank account nominated by her the full cost of the ticket including taxes and airport charges. With respect to travel in 2012, the father shall reimburse the mother for the cost of the child’s travel (as contemplated by this order) by 30 January 2013.
Overseas travel subsequent to 5 January 2016
When the child is living in the Czech Republic and the father is residing in Australia, and upon the giving of 6 weeks notice by the father, the mother shall cause the child to travel to Australia for a total period(s) of 4 weeks and 4 days each calendar year to spend time with the father at times requested by him, provided that the effect of the notice does not result in the child spending any period in excess of four weeks and four days in the father’s care.
For the purpose of implementing Order 13 in the event that the time requested by the father is for less than 21 days in one consecutive period (including travel time from the Czech Republic) the mother will be responsible for the child being delivered and collected from the father in Australia as well as booking and cost of the child’s airfare.
For the purposes of implementing Order 13 and in the event that the time requested by the father is for 21 days or more in one consecutive period (including travel time from the Czech Republic) the father will be responsible for collecting the child from the mother in Czech Republic at the commencement of that time and the mother shall be responsible for collecting the child from the father in Australia at the conclusion of the time. The parent with whom the child is travelling will be responsible for the booking and payment of his airfare.
For the purposes of Order 14, the mother shall only be responsible for one return journey per calendar year.
Should both the child and the father be living in the Czech Republic, then the father may, at his expense, cause the child to travel to Australia for a total period(s) of 4 weeks and 4 days each calendar year provided that the father gives the mother at least 6 weeks written notice of his intention for such travel and such travel shall not take place over the Christmas period in even numbered years and the father shall provide to the mother a copy of the airline tickets and contact details while in Australia.
Skype and other communication
Each party shall ensure that they have access to a computer with internet and audio/ video communication capacities.
The mother shall ensure that the child is available to take Skype audio visual calls from the father on:
19.1.3 occasions during the week when the child is in a different country from his father at times to be agreed but failing agreement on Sunday, Wednesday and Friday at 7.30am; and
19.2.Once per week when the child is in the same country as his father, at times to be agreed between the parties or failing agreement on Wednesday at 5pm.
In the event that the child is in the father’s care for a period of more than 2 consecutive nights he shall ensure that the child is available to take Skype audio visual calls from the mother every 3 days, at times to be agreed between the parties or failing agreement on Monday, Thursday and Sunday at 5pm.
Changeovers occurring at school or preschool
For the purposes of these orders and whilst the child is living in Australia:
21.1.When the commencement of a care period falls on a school day or a day that the child is attending pre-school, the father will collect the child from school/ pre-school;
21.2.When the conclusion of a care period falls on a school day or a day that the child is attending pre-school, the father will deliver the the child to school/ pre-school; and
21.3.From the commencement of the school year in 2015 when the commencement of a care period falls on a day which is not a school day, the father will collect the child from the mother’s residence at the commencement of the care period and the mother will collect the child from the father’s residence at the conclusion of the care period, or as otherwise agreed.
The child’s time with father after 5 January 2016
Upon the child commencing to reside in the Czech Republic and in the event that the father lives in the Czech Republic on a permanent basis the child will live with the father on the same two week cycle as set out in Order 8 and on special occasions including Christmas and as otherwise provided for in these orders.
Upon the child commencing to reside in the Czech Republic and in the event that the father does not live in the Czech Republic he shall spend time with the father as follows:
23.1.In circumstances where the father is in the Czech Republic for not more than 4 weeks, then for two blocks of 10 nights with the two blocks at least 3 nights apart;
23.2.In circumstances where the father is in the Czech Republic for 4 weeks or more, then in accordance with Order 8.
Before 5 January 2016, each party is restrained from:
24.1.Removing the child from Australia for any period without the written consent of the other party or by Court order; and
24.2.Relocating the child’s place of residence to a place other than L and its surrounding environs or the Sydney metropolitan area.
Education
Both parties will take all steps necessary to ensure that the child is enrolled to commence his formal school or pre-school in Australia at the commencement of the school year in 2015 and the parties shall bear the cost equally.
Both parties will take all steps necessary to ensure that the child attends Czech classes while he is in Australia and the parties shall bear the cost of such classes equally.
Upon the child taking up residence in the Czech Republic both parents shall do all acts and things necessary to ensure that the child is enrolled at … Language Kindergarten or such other preschool that provides an English speaking curriculum, as agreed, and the parties shall bear the cost equally.
Upon the child taking up residence in the Czech Republic both parents shall do all acts and things necessary to ensure that the child is enrolled at a primary and secondary school that provides an extended English curriculum and the parties shall bear half the cost equally.
Medical treatment
If there is any medical emergency involving the child, including but not limited to serious illness, accident or hospitalisation, the party with the care of the child must:
29.1.Immediately contact the other party; and
29.2.As soon as practicable, provide the other party all documentation and information in their possession regarding the incident.
In the event that the child is scheduled to attend a medical appointment both parents are at liberty to attend notwithstanding that the child is not in their care by operation of these orders, and save in the case of an emergency both parties shall use the same general medical practice whilst they reside in Australia and the mother shall nominate such practice. If the father is living permanently in the Czech Republic, such practice shall not be that at which Dr F works or has worked since 2011.
Both parents shall keep the other informed, in writing, of all medical appointments and procedures that the child is scheduled to attend whilst in their care and shall ensure that the other parent is notified as soon as practicable after receiving details of the appointment.
Both parties are restrained from denigrating the other parent, a member of their household or family or the country/culture of their birth in the presence or hearing of the child and shall immediately remove the child from the presence or hearing of any 3rd party who does so.
Each party must notify the other of the name of any general practitioner, paediatrician or other specialist who treats the child when he is in that party’s care and provide to that person any authority necessary so that the other party can contact the person to obtain all information regarding the treatment and care of the child.
Other matters
Both parents shall take positive steps and actions to promote the relationship between the child and his other parent.
By no later than 15 September 2015 the mother shall provide to the father the following information in writing:
35.1.Her proposed residence in Czech; and
35.2.Her proposal for where the child will attend school and pre-school.
In the event that the father elects to do so and noting that the child will be spending the first half of the Christmas school holidays commencing in 2015 with him, the father is at liberty to take the child to the Czech Republic and to spend time with him there prior to returning him to the mother at her home in Czech Republic no later than 3 pm on 5 January 2016. In the event that the father proposes to act on this order, he shall advise the mother, in writing, no later than 15 October 2015.
36A.Each party shall keep the other advised, in writing, of their residential address, land line telephone number, email address, Skype address and mobile telephone number.
Each party shall do all things necessary to ensure that orders in substantially the same form as these (with such amendment as might be necessary to conform to Czech law) are made by a Court with appropriate jurisdiction within the Czech Republic and the mother shall, when in Czech Republic in 2012, commence that process.
That pursuant to s106A of the Family Law Act 1975 (Cth), in the event that either party fails to execute a document required to give effect to these Orders, a Registrar of this Court is appointed to do all things and execute all such documents as may be required to give operation and effect to these Orders.
That the father forthwith will do all acts and things necessary to withdraw his Notorial Note requiring his permission for the child to have medical treatment in the Czech Republic.
Upon the child taking up residence in the Czech Republic the mother will provide to the father, no less than once per month, an email summarising the child’s activities over the previous month and planned activities, together with information on the child’s progress at pre-school or school and any information in relation to his health.
On a without admissions basis, within 14 days of the date of these Orders the father consult with his General Practitioner to obtain a referral to a psychiatrist or psychologist, (“treating professional”) and make the first available appointment from the date of these Orders, and that the father advise the mother and Independent Children’s Lawyer of the name of that person in writing, and the father continue to consult with that professional for a period of not less than 12 months, unless otherwise recommended by that professional, and follow all reasonable directions of that professional.
That the Independent Children's lawyer have leave to photocopy and to provide to the treating professional referred to in Order 41 a copy of the 2 letters of Mr D to L Medical Practice and a copy of these Orders and any Reasons for Judgment which may be delivered at the time of the making of these Orders.
That the father provide to the treating professional referred to in Order 41 with an irrevocable authority to permit the professional to advise the mother of whether the father is attending as recommended and, if he ceases to attend, whether that was against that treating professional’s advice.
That for the purpose of these orders, any reference to time or date means the local time or date of the place where t is located.
That the Commissioner of Australia Federal Police and the Secretary of the Ministry of Immigration take all necessary the child steps to immediately remove the child’s name, T Helmes born … May 2010, from the Airport Watch List also known as the PACE Alert System at all points of arrival and departure of the Commonwealth of Australia.
That the Registrar of the Family Court of Australia forthwith release to the mother the child’s Australian and Czech passports.
Pursuant to s.65DA(2) and s.62B, 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 the 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.
That each party be restrained from participating in any interviews with the media either in the Czech Republic or Australia regarding any parenting proceedings including providing any information or photographs of either party or the child, and use their best endeavours to ensure that their extended family comply with this order.
Once the child commences formal schooling and unless otherwise agreed between the parties in writing neither party shall exercise a right to international travel for more than 2 consecutive weeks of school time after the child’s 8th birthday.
NOTATIONS
A.Where these orders require notice or agreement to be given in writing the sending of SMS message or an email to the other parent is sufficient to discharge the party’s obligation.
B.The mother notes that despite Order 39 the parties have equal shared parental responsibility for the child and the father’s consent to non-emergency medical procedures is required in any event.
C.In the event that members of the child’s extended family (such as grandparents, aunts, uncles and cousins whether by marriage and/or de facto relationship) wish to communicate with the child (by electronic or other means) the parent with whom the child is living shall take all reasonable steps to ensure that happens.
D.The Courts notes and the parties have agreed to these orders so that the child can establish a close relationship with the father in Australia prior to the child’s relocation to the Czech Republic on 5 January 2016.
E.The Court notes and the parties have agreed that the parties expect and anticipate that the child will be likely to experience a level of emotional upheaval on relocating to Czech Republic and that this will not be any barrier to the child relocating and the parties shall assist the child through that process.
F.The Court notes and the parties have agreed that these are final orders made in contemplation of the events outlined in Notation D and E occurring.
G.The father has agreed to make available for collection by the mother from his current residence within 14 days from date of these orders the washing machine, lounge and 2 sets of bed linen which the parties owned (and which were located in their rented apartment in L) as at June 2011.
H.The mother has agreed that the father will retain the computer owned by the parties as at June 2011 and the father has agreed to assume responsibility for the debt to GE Finance, including interest, with respect to the computer and which is approximately $300 plus interest as at the date of these orders.
The mother has agreed that she will not take further steps to pursue criminal allegations made in the Czech Republic against the father as at the date of these orders, unless compelled by law.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helmes & Helmes 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 SYDNEY |
FILE NUMBER: WOC 351 of 2012
| Mr Helmes |
Applicant
And
| Ms Helmes |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
These are parenting proceedings in relation to the parties’ only child, T (“the child”) who was born on in May 2010 in the Czech Republic. The child’s parents, Mr Helmes (“the father”) and Ms Helmes (“the mother”) met in Sydney in late 2008 and by early 2009 they lived together. As will be discussed, events since then have been tumultuous and have resulted in proceedings in three courts, namely the District Court in the Czech Republic, the Federal Magistrates Court and Family Court in Australia.
Orders were today made by consent. It is, because of the unfortunate events that have occurred in this case, that findings will be made to set the record straight and, in the event that courts are required to look at the child’s circumstances in the future, the fact finding process as far as I am able to take it is available.
The hearing commenced on 7 August 2012. There was a considerable volume of affidavit and documentary evidence provided in support of each party’s case. The father was cross-examined over the course of two days. The mother was also cross-examined over the course of one day. The father’s cross-examination was suspended in circumstances where it was increasingly impossible to reconcile his oral and written evidence. So that the point is clear, his evidence had become so poor and lacking in integrity, it was difficult to understand how it could continue. Consequently, for the avoidance of doubt and on the application of his counsel, he was given the opportunity to rest before cross-examination continued. As it transpired, the case settled before it was necessary that he return to the witness box.
Historical Background
According to the mother, she and the father met in late 2008. It is common ground that by early 2009 they were living together. In March 2009 the parties agreed (according to the mother) to permanently relocate to the Czech Republic, which is the mother’s homeland. According to the father, the parties discussed the possibility of living and working abroad for a year or thereabouts and agreed they would ultimately settle in Australia, which is the father’s homeland.
Having spent the majority of their time in the Czech Republic, during which they married and the child was born, they returned to Australia in late November 2010.
During the following seven months the parties’ relationship deteriorated and it was increasingly apparent that their future together was far from certain.
With the father’s agreement, on 21 June 2011, the mother and child, who travelled on return tickets, flew to the Czech Republic where they stayed with her parents in Town J. There was an issue in these proceedings about whether this was part of an original plan for the family to live in the Czech Republic or no more than the mother taking the child for a holiday with her parents.
Having informed the father that she would not return when scheduled, the mother rebooked her and the child’s flight to Australia for 12 August 2011. Five days before the rescheduled flight, she told him that their relationship was over and she and the child would remain in the Czech Republic. True to her word the mother did not return.
In or around July / August 2011 the mother filed an application for divorce with the District Court in J (“the District Court”) and an application that the child lives with her.
An application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”) was presented by the father on 15 August 2011 to the Central Authority in Australia. In that application the father sought that Australia request the Czech Republic to return the child to Australia.
On 13 October 2011 the mother filed a further petition in the District Court in J in which she sought that child lives with her and that the father pays child support. It was ordered that neither party was permitted to leave the Czech Republic with the child without the consent of the Court.
On 18 October 2011 the District Court discontinued the mother’s application as the Abduction Convention proceedings had been commenced by the father.
On 11 November 2011 the parties participated in mediation conducted by the Central Authority in the Czech Republic; the parties were unable to achieve a resolution.
On 15 November 2011 the father filed the application pursuant to the Abduction Convention with the Municipal Court in Brno (“the Municipal Court”).
On 10 December 2011 the father returned to the Czech Republic and spent periods of time with the child, the precise details of which is the subject of disagreement. Notwithstanding that the father said he was refused regular contact, it was established that he had regular and age appropriate contact with the child. Where there were gaps in contact this was either because the child was ill or the father was unavailable.
On 29 December 2011 the mother filed a statement in response to the father’s Abduction Convention application in which she sought that the child remain in the Czech Republic.
On 20 January 2012 the father filed a preliminary proposal with the Municipal Court for the child to spend time with him. The Municipal Court made a preliminary ruling on 25 January 2012 which provided for the father to spend periods of time with the child.
The Abduction Convention application was accepted and the child’s return was ordered on 1 March 2012 by the Municipal Court.
Following an unsuccessful appeal, on 21 April 2012, the mother and child arrived in Australia.
If the quality of the father’s evidence in the Czech Republic was as unreliable as it turned out that it was in the Federal Magistrates Court and in cross-examination in this court, it may be that cross-examination of the parties in the Abduction Convention proceedings might have revealed that the mother had a stronger case against return than is apparent on the Czech documents.
In any event, from December 2011 the father was in the Czech Republic so as to participate in the Abduction Convention proceedings and spend time with the child. For reasons which will be discussed later, the mother was understandably worried about travelling to Australia if he was on the plane. Thus, unbeknown to him, she flew out a few days earlier than he anticipated and before he was due to return.
Although he expected that the mother and child would fly to Australia on 24 April 2012, and notwithstanding that both parties were legally represented in the Czech Republic, the father filed an ex parte Application and Notice of Abuse in the Federal Magistrates Court on 19 April 2012. In that application he sought orders to have the child removed from the mother as soon as they landed in Australia. His plan being that the parties and child would arrive at the same time and that at the airport police would give the child to him. His actions were entirely inconsistent with his position in the Abduction Convention proceedings. Namely that in Australia the child would live with the mother.
The material contained in the father’s Notice of Abuse was grossly misleading and wrongly claimed a competent and loving parent, namely the mother, had deliberately harmed the child and posed a sufficiently serious risk to the child to warrant removal from her without notice and thereafter supervision. It is troubling to record that without notice to the mother, a suite of interim parenting orders in the father’s favour along these lines and a recovery order were made.
In Kennedy & Kennedy (1993) FLC 92-409 Baker J had this to say about ex parte orders, at [80,89] as follows:
Ex parte orders have become the bane of this court. There are far too many ex parte orders made accompanied by warrants with the result that children are, in effect, taken by members of the police force from one parent and placed into the custody of another, on many occasions based upon very thin evidence. An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk. The making of an ex parte order can frequently place the respondent to the application in an irretrievable position and may place the children in an impossible position, at least in the short term. It is difficult for me to make any comment upon the efficacy of the two applications made to the local courts, but one assumes there was some evidence supportive of each party’s claim before each court. Having regard to the facts, as presented to me, however, one wonders why it was necessary for either court in the short term to do anything on an ex parte basis.
Baker J’s comments resonate with what happened in this case; namely a grossly misleading Notice of Abuse was presented to a court on an ex parte basis upon which a lifelong status quo was, from the child’s perspective, inexplicably disrupted. For the reasons given by Baker J, I respectfully agree that ex parte applications should be approached with real caution. It is inconceivable that an order of the sort obtained by the father might have been made had the truth been known.
In any event, thus it was that when the mother and child arrived in Sydney on 21 April 2012, Australian Federal Police removed the child, who was then 23 months old and gave him to the father’s sister (S). Neither the father nor his sister, who was present when the orders were made in the Federal Magistrates Court on 20 April 2012, elected to inform the Federal Magistrate that the child did not speak English and that they were not fluent in Czech. One wonders what might have occurred had the Court known that a simple request, such as, “When will I see mummy?” could not be communicated by the child to S or answered by her.
At the airport, the father’s sister told the mother and Australian Federal Police, that she would facilitate contact between the child and mother. However, after the father told her not to, she refused. The father’s sister has not been cross-examined and the possibilities are that she either misled the Australian Federal Police when she told them that she would facilitate time (that being clearly recorded in Exhibit I which records the interview with the Australian Federal Police) or acting, in effect, as the father’s agent, she decided to act on his authority and refuse the mother and child time together. Neither approach reflects well on her or her judgment in relation to the needs of this 23 month old child.
Thus it was not until the day after the father returned to Australia on 25 April 2012, being four days later, that the mother spent time with the child, albeit supervised. Thereafter, little contact was facilitated until after a Family Consultant conducted a brief assessment on 30 April 2012 and that same day, the same Federal Magistrate made interim orders which provided for the child’s immediate return. A previously happy child was returned to the mother an upset little boy. At the same time, the proceedings were appropriately transferred to this Court.
Since then the child has resided with the mother in Sydney and regularly spent time (including overnight) with the father in accordance with interim consent orders made in this Court on 10 May 2012.
For the purposes of this hearing, a Family Consultant opined that the interim consent order which provided for overnight time was inconsistent with the child’s emotional and developmental needs. It is to the credit of all the parties that they have agreed that overnight time, in accordance with the Family Consultant’s recommendations, will cease until the child is three.
The parties’ proposals
The applications before the Court proposed on the father’s behalf is that the child resides in Australia and his time increase incrementally, so that from when the child is three, he spends six nights with the father broken up each fortnight. The father’s case was presented on the basis that he has no plans to return to the Czech Republic and it is his intention to live in Australia. I appreciate, as a consequence of the consent orders, the father’s plans may alter and it is possible he might, in the future, reside at least for a period in the Czech Republic. It would be in the child’s interest for him to do so.
The mother wants to return to the Czech Republic with the child. The mother currently resides with a friend. In Australia, she is without family and once the friend with whom she resides joins her husband in Asia later this year, she has few supports. According to her, she did not reside in Australia, but obtained permanent residence so that for a period she could remain and work here. However, having decided to settle down with the father, she says they agreed to make the Czech Republic their and the child’s home.
The mother does not accept that the father is unable to live and work in the Czech Republic. There is no doubt that the father’s visa enables him to return and work there until March 2015. The child has dual Australian and Czech citizenship. The mother has the right to reside in both Australia and the Czech Republic. The father has the right to reside in Australia and in the Czech Republic until March 2015. The father has not applied for permission to live in the Czech Republic beyond that date. There is no legal impediment to his doing so.
The Family Report
As was mentioned earlier, because of the complex issues raised in the proceedings, a Family Report was ordered. The report was completed and released to the parties on 30 July 2012 (Exhibit F). The report recommended that the child lives primarily with the mother and has regular time with his father. Overnight time was recommended only after a further review of the child’s adjustment and not before the child is three. Because the Family Consultant did not have each party’s firm proposals in relation to the ultimate disposition of the matter and did not address the possible scenario of the parties living in different countries, an addendum was ordered which was completed and released to the parties on 8 August 2012. The addendum report addressed specific questions put to the Family Consultant prior to cross-examination. The recommendations therein are as follows:
1.If the child is permitted to live in the Czech Republic with the mother (but the father remains in Australia), should that take place immediately or at some stage in the future and, if so, when.
a.[The child] is at an age at which his ability to retain long term memories is in its early stages of development. If he were to relocate overseas in the immediate future his capacity to retain a memory of his father would be largely dependent on his mother, in terms of her providing him with frequent cues and reminders of his father (for example frequent discussions, looking at photos etc.)
b.[The child] is at an age at which he does not have the cognitive capacity to understand circumstances such as his father living in another country. Without frequent face to face contact, the meaningfulness and the parent-child attachment quality of the relationship will not continue to develop.
c.If [the child] were older when he relocates, for example over six year of age, he would be far more able to independently retain a memory of his father.
d.If the relocation were to be delayed, it would also improve the chances of [the child] learning and being able to maintain the English language.
e.On the other hand, if relocation is delayed, [the child] will likely experience greater feelings of loss at leaving his father and paternal family because with the increased time he spends with his father his attachment will be further consolidated.
f.On balance, if relocation is to occur and in order to improve the possibility of [the child] maintaining a meaningful relationship with his father whilst minimising the disruption to [the child’s] life, it should occur as late as possible prior to [the child] commencing school.
2.If the child is to live in the Czech Republic with the mother, and the father remains in Australia, what time the child should spend with the father, including frequency, duration and location.
a.The appropriateness of any arrangement for [the child] to spend time with his father if they are living in different countries will depend on the amount of time between visits (which will be constrained by practicalities irrespective of what is most appropriate), the ability of [the child] and his father to speak the same language, the extent and success or otherwise of their communication between visits (for example via Skype, his mother’s ability to support and encourage [the child’s] memory of, and time with, his father and the nature of [the child’s] relationship with his father at that future time, all of which are difficult to assess at this point.
b.If the above factors are generally favourable, then an arrangement such as that proposed by [the mother] for [the child] to spend time with his father in Australia over a four week period each year and in the Czech Republic (If [the father] travels there) in a similar arrangement, with a build up to overnight time in each period, is recommended, although, the amount of time and the overnight time may need to be less than that proposed whilst [the child] is less than four years of age. It would be essential that the parents monitor [the child’s] reactions and responsively adjust the arrangements. For example, if [the child] were to be unduly distressed by the frequency of transitions or by the overnight time, adjustments would be required. If he appeared to be managing the time with his father then the daily visits and progression to overnights could proceed. At the beginning of any period of time [the child] is to spend with his father after a significant absence, [the child] would likely benefit from spending time with his father in the presence of someone familiar to him. The need for this will decrease as [the child] gets older.
3.If the child is to live in the Czech Republic and both parents are living in that country what time the child should spend with each of his parents.
4.If the child is to live in Australia and his parents both live in Sydney what time the child should spend with each of his parents.
5.If the child is to live in Australia and one or other parent resides in the Illawarra area and the other in Sydney, what regime of time the child should spend with the father.
a.It is recommended that [the child] live with the mother.
b.It is recommended that [the child] spend time with his father consistently and frequently with an initial cessation of overnight time, a gradual increase in the amount of time and the re-introduction of overnight time once his is three years old, as long as [the child’s] behaviour and emotional presentation are settled. It is recommended that there then be further gradual increases in time and the number of overnights so that by the time [the child] starts school he is spending at least alternate weekends, half of school holidays and time on special occasions with his father. The appropriateness of specific changes to the parenting arrangements as [the child] gets older will depend on his future adjustment which cannot be assessed at this time.
c.If the parents are living geographically close to one another once [the child] commences school, it is recommended that he spend alternate weekends Friday to Monday and one night each week with his father.
d.If the parents are not living geographically close to one another (over one hour’s drive apart) once [the child] commences school, it is recommended that he spend alternate weekends Friday to Sunday and some time with his father in [the child’s] area on at least one afternoon each week.
e.If [the child] relocates to the Czech Republic and [the father] also relocates, the above considerations regarding the distance between the households will also apply.
f.If there is a delay in [the father] relocating to the Czech Republic and there is a disruption to his relationship with [the child], then he will need to restablish the relationship by spending short periods of time with [the child] and building up slowly to an arrangement as outlined above. As with the situation if [the father] is living in a different country and spending time with [the child] after a significant absence, [the child] will benefit from spending time with the father in the presence of someone familiar to him, perhaps for a few hours several times a week. Depending on those factors previously mentioned in 2.a.; [the child] could start spending time with the father alone two days per week then increase to overnight time. The parents will need to monitor [the child’s] adjustment to the transitions and time with his father.
6.At what age and with what frequency and duration it would be appropriate for the child to travel to the Czech Republic if both parents live in Australia.
7.At what age and with what frequency and duration it would be appropriate for the child to travel from the Czech Republic to Australia in circumstances where the mother lives in the Czech Republic and the father in Australia or where both parties live in the Czech Republic.
a.This would primarily be an issue of practicability, particularly with respect to financial resources.
b.Secondarily, it is a matter for parental common sense, based on [the child’s] individual response to flying long distance and the disruption it may cause to his routine.
c.An overseas trip of four to six weeks once per year would not be unreasonable for [the child] at this time as long as he is accompanied by his mother. If [the child] continues to spend time with his father without significant disruption, he would be able to travel on an overseas trip for four weeks with his father and without his mother from the age of five or six years old. As he gets older (eight years old) he might cope with one trip of four to six weeks and a second trip of two weeks each year.
Findings
I propose now, in the interests of time, to make findings about some of the pivotal issues in the proceedings where the evidence was well explored with each party in cross-examination and, other than that, to make findings to the extent that I am able in relation to the mother’s evidence that on 21 June 2011 she was sexually assaulted by the father.
The parties’ life in the Czech Republic
I refer firstly to life in the Czech Republic. The mother commenced maternity leave in April 2010 and, as I have indicated, the child was born in May 2010. Her maternity leave expires in May 2014.
The parties agree that from when the child was born, the mother was overwhelmingly responsible for his care. She has not returned to paid work and there is no doubt that she has competently and lovingly cared for their son. There is also no doubt that the father, when work commitments permitted, was also involved in the child’s care and that he too was focused on the child’s welfare and loves him no less than does the mother.
However, the father struggled with life in the Czech Republic. He was increasingly moody and aggressive; a situation which gained momentum after the child was born. The mother believes that she was so stressed by the father’s behaviour that she lost her milk and had to stop breast feeding at four and a half months, which was earlier than she planned.
The father is unable to speak Czech and struggled with the consequential social isolation and reliance upon the mother for tasks such as grocery shopping, paying for petrol, banking, having his hair cut and the like. Although, as time passed, he became less reliant on her in relation to language, he did not acquire more than a rudimentary capacity to communicate in oral Czech. As the European winter descended, he found it difficult to cope with the cold and lack of sunlight.
In the first couple of months after he arrived in the Czech Republic, the father started to say that he was really down and what was an occasional reference to depressed mood became at least a weekly comment. The move to the Czech Republic saw the father become increasingly critical and controlling of the mother with unpredictable temper outbursts. There were outbursts of road rage and, on one occasion, the mother’s evidence is that he stopped the car and went to kick the car standing in front of them.
The evidence established that on one occasion he kept the mother in a parked car for about three hours demanding an explanation for why her obstetrician was a male and why they had not chosen that doctor together. The mother’s evidence, which is accepted, is that initially these types of outbursts occurred monthly, but as the months went by the intervals became much shorter and after they had been in the Czech Republic for about six months, daily outbursts were not uncommon. In short, the father’s mood swings and angry outbursts made it difficult for the mother to maintain regular contact with her friends and as the pregnancy continued she too became more and more isolated. Her evidence is that she became increasingly scared and unhappy.
The parties return to Australia
Although there is no dispute that on 25 November 2010 the parties and child arrived in Australia on one-way tickets, there is an issue about whether this was intended to be for a limited period or permanent. Discussions about their return to Australia lasted many months, with the mother adamant that she did not agree that she or the child would permanently reside to Australia, but she agreed to remain for about six months. The father is equally adamant that their move to Australia was permanent.
However, in August 2010, the parties were in discussion about the purchase of a property in the Czech Republic in relation to which they obtained pre-approval for a mortgage loan for three million Czech Koruna. The mortgage offer makes plain that the loan would be advanced to enable them to purchase an apartment against which the loan would be secured. This was a 30 year loan with a five year fixed interest rate. According to the father, this loan was obtained to acquire an investment apartment. The mother says it was to purchase an apartment in which they could reside. As will be discussed, the mother’s evidence was far more reliable than was the father’s, with his oral and written evidence on many important issues impossible to reconcile. So that it is clear, not only was his oral and written evidence inconsistent, but there is a plethora of documentary evidence which demonstrates that his oral and written evidence was too often unreliable and clearly designed to mislead the Court.
Similar difficulties did not arise with the mother’s evidence and she is accepted as a witness who did her best to give an honest account of the facts in issue in both her affidavits and oral testimony. Regrettably it is necessary to observe that the same cannot be said about the father. Thus, it follows in relation to this issue; the mother’s evidence about the purpose of the loan is accepted.
The parties booked their one-way tickets which were paid for by the father’s mother to return to Australia in early October 2010. It is the mother’s evidence that the parties were unable to afford the cost of return tickets and in circumstances where the father via his mother paid for the tickets, she was unable to persuade them to purchase return tickets. It is quite clear that by late 2010, when the tickets were purchased, there was a serious issue between the parties about the circumstances under which they would remain in Australia.
It was the father’s determined position that they would remain permanently in Australia and the mother’s great anxiety that her desire to be here for a limited period would result in her being outmanoeuvred which, in a sense, she was.
Before the parties left the Czech Republic it was agreed that once in Australia they would live for six months in the home of the father’s sister, S. This occurred and in mid-December 2010 they successfully applied for Centrelink benefits.
Before the parties left the Czech Republic the mother had become very concerned about the father as, indeed, had his sister. The parties agreed he would see a doctor. As well as his depressed mood, anxiety and increasingly possessive behaviour, the mother was concerned that he was drinking alcohol to excess in relation to which it would appear that the father used alcohol to cope with his depression and anxiety.
Initially, he saw a counsellor friend of the mother. He then saw a doctor who prescribed an antidepressant. Although it is not entirely clear when the father commenced taking antidepressants, there is no doubt that he was taking antidepressants prior to the parties’ arrival in Australia. After they returned to Australia, he consulted a general practitioner, Dr H, who in January 2011 prescribed another antidepressant called Cymbalta.
The father returned to Dr H in February 2011, who prescribed Endep which it is understood is a different form of mood stabiliser. It is not entirely clear but in the father’s case it seems to have been taken in conjunction with Cymbalta. Dr H advised the father to attend a psychologist which he did. Dr H referred the father to Mr D, clinical psychologist who he saw for an initial assessment on 16 March 2011. Lest it be thought that the father’s depressed mood related solely to living in the Czech Republic, it is apparent from Mr D’s report (Exhibit J) that the father was referred for “long term anxiety and mood issues” which “had peaked about six months ago while living in Czech together with dreading work, never feeling fulfilled, always striving and having constant racing thoughts. He recognised that he tended to be impatient, always on the go, distractible and with high expectations of himself”.
Mr D made a further appointment to see the father on 30 March 2011 and in his report to Dr H informed him that an update would be provided after six additional sessions or earlier, if therapy was completed beforehand. However, the father decided he would not see Mr D and the therapeutic intervention did not take place. There is no suggestion that the father’s decision to not attend Mr D was taken on medical advice and I infer it was not. It is regrettable that the father did not continue with Mr D and perhaps had he done so some of the difficulties which subsequently transpired might have been avoided.
It is indeed pleasing to see that in the consent orders provision is made for the father to again seek assistance from either a psychologist or a psychiatrist. It is very important, not only for the child’s wellbeing, but also for the father’s that such order is complied with.
In March 2011, the father obtained employment in the hospitality field. The position was for a time which again saw him as the breadwinner for the family and his care of the child was organised around his work commitments. The mother continued to be overwhelmingly responsible for the child’s care.
Before they departed the Czech Republic, the father discussed his plan to purchase, renovate and sell a property in Australia which would provide a capital sum for future property acquisition.
More than once the mother’s father expressed the view that this plan was unrealistic and an unsound basis to give up the father’s good job in Prague at a Hotel in favour of job uncertainty, no accommodation of their own and an uncertain future. There is no doubt that when the parties arrived in Australia, they registered interest with a real estate agency to purchase property. The father relies on this as evidence of the parties’ agreement to settle in Australia and acquire property.
It is the mother’s evidence that the father told her that he and S had promised to help their mother look for properties which is the reason they registered with the agency. One house was inspected which, according to the mother, resulted in a shouted distressing exchange between the father and his sister about what she heard S describe as his “irresponsible investment of their mother’s compensation settlement” which S described as “the only money she has ever had in her life”.
The father’s sister has not been cross-examined and it is not possible to come to a concluded view about whether the conversation the mother attributes to S is accurately recorded. However, at that time, the parties had no savings and were in receipt of Centrelink benefits. In addition, the father had defaulted on a loan he raised years earlier and had a poor credit rating. In short, the parties had no capacity to purchase real estate. It is accepted that this venture had nothing to do with the acquisition of property for the parties and is not evidence of an agreement that they reside in Australia permanently.
By May 2011 the parties’ relationship had seriously deteriorated. Arguments were frequent and the father made remarks to the effect that he would take the child. These arguments are described in more detail in the mother’s affidavit.
The mother and child’s departure from Australia and return to the Czech Republic
It had become clear to the mother that the father would not return to the Czech Republic and it was his plan, which it was, that they live in Australia. Thus the mother in early May 2011 tried to persuade him that as a family they return to the Czech Republic. The father did not agree but he did agree that the mother and child could visit for four or five weeks. As they did not have enough money for the tickets at the mother’s request her grandmother paid for her and the child’s return tickets. It is clear that the father would not permit the child to depart Australia on a one way ticket, his point being of course, that unless there was a return ticket he could not be confident that the mother and child would return.
In the lead up to the mother’s departure the situation in their home deteriorated further with both parties very anxious about the future. The father was increasingly verbally aggressive to the mother and following an ugly incident at the local library the details of which are set out at paragraph 32 of the mother’s affidavit filed 12 July 2012 the father shouted to her, “This relationship is over, you have betrayed my trust. I am not coming home tonight.” This is the first time that the father physically interfered with the mother. In this regard as she tried to calm him down he pushed her so that she fell onto a parked car. Following this, when the mother was away from the apartment on a number of occasions the father telephoned and having questioned her whereabouts he appeared shortly thereafter. The mother believes on reasonable grounds that he was checking whether she told him the truth about her whereabouts.
It is quite clear that by now the father was very afraid that the mother was about to end their relationship; in a sense, his fears were prescient. There was a particularly ugly incident on 19 June 2011 on which occasion the parties had dinner at the father’s sister’s house. Alcohol was consumed and it would seem there was a dispute between the parties about whether the father should drive home, which he did. Once they arrived home the mother challenged him about calling her an idiot and said, “There is no point in staying together when you are treating me this way.” They argued and the father demanded the mother’s wedding rings. She told him they were in the bathroom and followed him in. He closed the bathroom door which jammed her finger.
The father denies doing so. In addition, there is no doubt that in a petition the mother filed in the Czech Republic on 13 October 2011 she disclosed verbal but not physical or sexual violence. In her affidavit the mother said of 18 June 2011 incident, “After one of our arguments also because of the father’s drinking which ended up with the father attacking me verbally and waking the son at night at about 11 pm I returned back home in June 2011. I have been and still am permanently afraid of the father and think that this is his intention.”[1] The mother accepted counsel for the father’s proposition that in this document she set out matters relevant to her and the child’s welfare. The purpose of the document being to obtain a preliminary ruling that the child lives with her and for maintenance. It is the mother’s evidence that this was not intended to be a comprehensive account of the parties’ history and its focus was to secure the child’s presence with her in the Czech Republic.
[1] Exhibit “JH1” to Father’s Affidavit filed 19 July 2012, page 30
That the document is not comprehensive is evidenced on the following page where the mother said, “I am going to cooperate with the abovementioned office and will explain the whole matter with a written filing.” It is accepted that the mother, while still trying to negotiate an agreement with the father for the child’s future, in this petition withheld information which she reasonably deduced would make resolution even less likely than it then appeared.
Returning to the incident of 19 June 2011 it is accepted that the father used the abusive language to the mother deposed to at paragraph 34 of her affidavit filed 12 July 2012 and in response to her statement that she would call the police he told her that if she did this she and the child would not leave on 21 June 2011, that being the day on which she and the child were due to fly out for the Czech Republic.
The father who was intoxicated went into their bedroom, picked up a pillow and held it above the sleeping baby. The father’s actions, which are bizarre, so frightened the mother that she feared he would place the pillow over the child’s face. So that it is clear, the father would not deliberately physically harm the child, however, as will be discussed he has taken steps which have been very risky to the child’s health and emotionally traumatic. The event continued and culminated in an argument during which the father pushed the mother against the door.
Following the incident described above the father then went to his sister’s place where he stayed the night. The mother was very frightened and telephoned various people for support. She spoke to a neighbour of S’s who told her that the father’s car was outside his sister’s home and if he left she would call. The mother sent a text message to S, put a chair behind the bedroom door and sat up for the night.
It was only when the father was in the Czech Republic that he apologised for his behaviour. The apology formed part of an SMS exchange that took place on 15 August 2011. As can be seen the mother referred in the text message to the father closing the bathroom door on her finger which in his reply he does not deny. This SMS puts into context the statement in her petition mentioned earlier and dispels any notion of recent invention for the purpose of these proceedings. The mother wrote:
You were so aggressive at me, hitting your fist in the bench and in the wall one centimetre next to me, calling me an idiot, fucking cow and bitch. Told me to get fuck out of your face - closed the bathroom door with my finger in it. Threatened me with lawyers and Australian immigration out of nowhere and picked [the child] up from the cot while he was asleep, woke him up so that he screamed and by doing so made to feel the most helpless in my whole life. That is why I am scared of you and I wish every single day that it never happened.
On the same day the father responded as follows:
I did say some awful things that I did not mean and that I should have never said from fear and stupidness, that is for sure but I don’t remember hitting the bench. I am sorry if you were scared. I really am. That wasn’t my intention. I would never let anyone hurt you including myself. I am sorry for the words I said to you. I wish I could take them back. I understand now that you would make you feel that you don’t want me anymore. I would give anything in this world for you to forgive me for being so mean to the one person I love most – my biggest love. I accept that you find this unforgiveable. If I really did say those things to you then I will never forgive myself until the day I die. You are right baby, you don’t deserve that. I will never forgive myself as long as I live. Please kiss [the child] for me baby, and by the way you are a great mum.
Her situation in Australia continued to deteriorate with the most serious violent act alleged by the mother occurring on the morning of the day that she and the child flew out. It is the mother’s evidence that:
At about lunchtime of the day (21 June 2011) that [the child] and I were leaving Australia, [the father] had sexual intercourse with me against my wishes. [The father] put [the child] in his high chair and gave him a DVD to watch. He threw me onto the mattress on my stomach and forcibly had intercourse with me. He was extremely rough and I was distressed. I kept pleading with him to stop. When I arrived back in the Czech Republic I attended on my gynaecologist, Dr [K], as I was feeling pain in my lower abdomen. He advised me that there was a 2 x 2 cm haematoma to my labia major. He asked me what had happened. I told him. The police contacted me on 6 April 2012 and took a statement from me. Annexed hereto and marked with “L” is a copy of the medical report.
(mother’s affidavit filed 12 July 2012, par 36)
The medical report says:
Came due to pain in the lower abdomen and the area of the vulva.
Externally: haematoma on the right side of the labia major,ca.. 2cm x 2cm.
Vagina: Transformation zone, small healing laceration on the right ca 2cm after the introitus
Palpation: uterus in normal position, sensitive to palpation, normal size, environs without resistance, abdomen soft, without peritoneal irritation, Ultrasound: uterus in normal position length: 8 cm, adnexal area without finding. pelvis minor without free fluids.
In response to a specific query as to the cause of the injuries, the patient stated forced sexual intercourse two days ago.
(Annexure “L” to the mother’s affidavit filed 12 July 2012)
According to the father that morning the parties engaged in consensual sexual intercourse. As was mentioned on the application of counsel for the father, at noon on the second day of the father’s cross-examination, his cross-examination was suspended. This application was made after the father’s oral testimony had become so dramatically and repeatedly inconsistent that to persevere was all but impossible. It is not overstating things to say that the inconsistencies in his evidence had almost begun to make a mockery of the evidence taking process. Thus, for the avoidance of doubt and to afford the father the greatest opportunity to give a reasonable account of his actions, he was given an opportunity to refresh before his cross-examination continued. As events transpired, settlement was reached before this occurred. This has meant that the court has not seen the father cross-examined in relation to the mother’s evidence that he sexually assaulted her.
It follows that caution is thus appropriate about this issue. However it is more important that the court has the benefit of the mother having been cross-examined on this topic. Her evidence was given with a quiet dignity in relation to which her evidence was unshaken. In short, she gave an entirely believable account of sexual assault.
It is noteworthy that immediately upon her arrival in the Czech Republic that the mother sought medical advice for pain in the lower abdomen and that there were physical findings of injury to her labia majora and a small healing laceration to her vagina. While it is possible that this is consistent with rough consensual sex it is also consistent with the mother’s evidence that the father sexually assaulted her.
It is very troubling evidence and, in my view, provides a very strong foundation for the necessity for the father to see a psychiatrist or psychologist. If in fact he behaved towards the child’s mother in the manner alleged by her much work needs to be done by him for him to be the good role model for the child that he wants to be. For the mother, the events in the lead-up to her departure to the Czech Republic and particular this incident were deeply distressing and crystallised her thinking that she could not live with the father and could not live comfortably in the same country as him.
It is entirely understandable that given what she says occurred, which the Court is satisfied occurred on 19 June 2011 and which may have occurred on 21 June 2011 that she decided she needed her parents’ support and felt that in order to be safe she and the child should remain in the Czech Republic.
Contact between the child and father
The next issue relates to whether or not there was Skype contact between the father and the child in the Czech Republic and contact once he arrived in the Czech Republic.
It is the mother’s evidence that having broken the news of her decision to remain in the Czech Republic with the child the father requested and she offered Skype contact every second day. It is the mother’s evidence that Skype occurred two to three times a week and for periods of 15 to 20 minutes at a time. That being the duration of the call not necessarily, because of the child’s young age, the amount of time he was engaged. In this regard, it is accepted that for a child that age Skype is a difficult concept and it is unlikely that his attention could have been maintained, as the father suggests, for more than a few minutes at a time.
In relation to this matter, the father’s evidence at paragraph 225 of his affidavit filed 19 July 2012 is:
Subsequently [the mother] sent me a text message or email in words to the effect “I want fully custody of [the child] in the Czech Republic and I will not negotiate. You will always be [the child’s] dad in his heart just not physically”.
The father was at pains to make it clear that he kept every text message that had passed between him and the mother once she was in the Czech Republic. He was asked to produce the text message referred to above and indicated there was none. He then said that it must have been an email which he must have deleted. It defies logic that the father would delete an email of such significance in circumstances where he kept SMS text messages which went to prove the various assertions he makes.
In his affidavit the father states at paragraph 227:
I attempted to contact [the mother] on Skype from 9 August 2011 to 3 October 2011 without success. Every second day I sent a Skype request to [the mother] which was not accepted.
and:
On 3 October 2011 I saw [the child] on Skype. It was a relief to see him after a period of almost three months. [The child] had changed so much in those three months.
(father’s affidavit filed 19 July 2012, par 227 and 229 )
The mother produced a Skype record which demonstrates that her evidence that very frequent Skype contact occurred during the period is truthful and the father’s evidence was not.
It is noteworthy that the SMS text messages which are in evidence, all of which as I mentioned the father kept, show repeated references to Skype calls that took place. So that it is clear, because he had the SMS messages in his possession his affidavit evidence that he was denied contact by Skype could not be a mistake. Simply put, he misled this Court and the Federal Magistrates Court in the same way.
There is no doubt his evidence was designed to paint a misleading picture that the mother could not be trusted to facilitate even Skype contact between the Czech Republic and Australia.
Cross-examination of the father revealed a completely different picture to his affidavit evidence. The following is an exchange between myself and the father whilst he was in the witness box:
Yes, but, you’ve put very specific dates in your affidavit, haven’t you?‑‑‑Yes, I tried my best.
You are quite clear that Skype contact stopped commencing 9 August, doesn’t resume until 3 October. This is not about early August or about early October. You’ve put actual dates in which suggest to me that you’ve turned your mind to something. Then you are quite clear that it’s almost three months prior to 3 October before you see [the child] by Skype, so it’s not an impressionistic response. You’re putting specific dates to me. So, now, you’re being questioned about your specific dates and you can’t give an answer that hangs together at the moment, [the father], and if you can this is the time. Now, you nod, but I am really inviting you, if you can give an explanation, now is the chance?‑‑‑I tried to be as specific with dates and remember dates while I was writing my affidavit as I could. I found it even difficult then because to be honest this has gone on for some time.
Sure?‑‑‑It’s been over a year and remembering, remembering specific dates is really difficult.
Now, let me suggest this to you, you said to Ms Boyle that you have got a complete record of all the SMS messages?‑‑‑Yes and texts.
That means to me that you must have copies of the text messages that Ms Boyle has just taken you through and shown in those messages that there were Skypes happening so you’ve got those. This is not news to you?‑‑‑There were Skypes happening. The ones that were agreed upon didn’t often happen. Now, it’s clear that the affidavit I have written is inaccurate. It wasn’t intentional, however, it’s clear that I probably should have given more thought to the exact dates and how it happened.
Tell me what you would say about this notion: you made reference that although times were agreed there were times when it was difficult and you had to wait two to three hours for Skype to take place, all right? So we know that has happened according to your evidence and you say at paragraph 226 of your affidavit that you told [the mother] you would like to be able to Skype every second day. Is what you are saying, and I don’t want you to agree with this if it’s not right because I want it to be right, but the difficulties you experienced were that agreed times did not always occur and sometimes you had to wait two to three hours after the appointed time and that you didn’t necessarily get to talk to [the child] every second day during the period? Is that a fair summary or is that not fair?‑‑‑That’s a fair summary and I think – I think on average I would Skype him two or three times a week, maybe sometimes more, maybe sometimes a lot less on average.
Yes, and sometimes that was accepted and sometimes it wasn’t, is that the point or is that about the average that you got through?‑‑‑Yes.
That’s about the average you got through?‑‑‑I think so.
Two to three times a week?‑‑‑And there were block periods of time when it was none at all and then were blocks of time when it was much more.
Cross-examination continued on this point by counsel for the mother during which the father said that the three months gap in Skype contact referred to in his affidavit must have been a period other than 9 August 2011 to 3 October 2011. The proposition was put and accepted by the father that there was no other three month period when this could have happened. The effect of this piece of evidence is that cross-examination destroyed the veracity of the father’s evidence at paragraphs 227 and 229 of his affidavit filed 19 July 2012.
There are simple vignettes (there were many others) which show how inconsistent the father’s oral evidence was with his affidavit evidence and how inconsistent his evidence was with the documents.
Management by the mother of the child’s health in the Czech Republic
I turn then to consideration of the management by the mother of the child’s health once she and the child were in the Czech Republic in the latter part of 2011. The particular issue being management by her of a fistula, which is a congenital growth, on the child’s nose. It is quite large and there is no dispute that consistent medical advice is that it must be removed sooner rather than later.
The child’s fistula became infected in the Czech Republic about four weeks before the father arrived on 11 December 2011. It was a major plank of the father’s case that the mother involved the child in unnecessary medical intervention and sought to manipulate and/or delay the child’s return to Australia by having him undergo surgery in the Czech Republic which was not necessary. It is also a plank of the father’s case that the mother did not keep him sufficiently informed about what was taking place with the child’s infected fistula.
Paragraph 43 of the mother’s affidavit filed 12 July 2012 is incorporated into these reasons (excluding Exhibit R, which is a photograph of the child’s infected fistula). Otherwise, the documents annexed to her affidavit are incorporated and the evidence contained in paragraph 43 and the attachments are accepted. Thus, it is accepted that there was frequent, reliable and detailed communication by the mother to the father of the fact of the infection, advice about what the child’s doctors and hospital said about it, including the necessity of the prompt removal of the fistula (once the child was clear of infection).
I have no difficulty accepting that for a parent on the other side of the world emails that the child was unwell, perhaps seriously so, and who faced the prospect of hospitalisation and surgery, more information would always be wanted. Also, that the father’s anxieties about being so far away from his son when this serious issue was being dealt with must almost have been overwhelming. Those matters though accepted does not mean that, subsequently, it was appropriate for the father to suggest to this Court and the Federal Magistrates Court that he was denied the medical information about what was occurring in relation to the child’s health in the Czech Republic.
In addition, the father knew from a report he obtained in December 2011 from the teaching hospital that there was a risk of return of the inflammatory reaction, that the child had been hospitalised because of an abscessed fistula, underwent a procedure in which it was necessary to administer a general anaesthetic, and that extirpation of the fistula was planned for the end of February 2012. This report made plain that it was important to avoid the risk of inflammation and that as a prelude to the February operation, a magnetic resonance image examination would be required in order to obtain a detailed depiction of the scope of the fistula. The father was advised:
The father has requested a judgment on whether the patient will be able to fly to Australia. The patient will not be in any direct danger during a flight, provided, of course, the affected area on the ridge of the nose is not inflamed.
This was not an unconditional medical report that the child could, without further consideration being given to his health, fly to Australia. It was clearly conditional upon whether or not there was an infection. It was clear from the report that the father obtained which, I observe, was translated into English, that in order to make the trip the child needed to be in good health. It is also clear that on 9 January 2012, the teaching hospital expressed the view that air travel, because of air conditioning, and changes in pressure, was not at that stage recommended because of:
…the risk of the occurrence of inner skull complications, inflammation of the brain membrane, abscesses and so on, if the fistula discharges into the inner skull area, we will ascertain this according to the results of the magnetic resonance.
The doctors advised how important it was to avoid the risk of the child becoming ill:
Even a cold would be sufficient.
So that it is plain, the infection and management of the fistula, was not merely the management of a small growth on a small child. It was a serious medical issue that required hospitalisations on a number of occasions. It is not established that at any stage the mother mismanaged the medical treatment of the fistula or that the steps she took were designed to have the child undergo an unnecessary medical procedure. It was serious and the lodgement by the father of the Notarial Record almost defies understanding. I am not critical of the father wanting to be involved in the management of the child’s health, of course not, he was entitled to be involved, but what he did was take a step which added delay to medical intervention for the child, potentially in a situation which was quite serious.
The Notarial Record (filed by the father on 28 December 2011) being Annexure “X” to the mother’s affidavit, previously referred to, states:
I hereby expressly declare that I do not consent to my son being subjected to any medical procedure, which is by nature a non-essential or postponable procedure and/or a planned or plannable procedure, without my prior written approval, ie. I do not consent to the performance of any such medical procedure which is not essential for the protection of life or for protecting against any direct threat to the child’s health.
I have made this declaration in association with the ongoing proceedings on the return of the illegally transferred child back to his place of usual residence (Australia), whereby said proceedings are registered at the Municipal Court in Brno …
In conclusion, I hereby state that the question of the upbringing and maintenance of the minor [the child], stated above has not been regulated by any judicial or other ruling, i.e both his parents are authorised and responsible for the care of the minor [the child] to the same extent, and both parents are authorised and obliged to decide jointly on any matters concerning the minor [the child]; i.e. including any matters concerning the child’s state of health.
It seems tolerably clear that the father decided that medical intervention for the child, including in relation to the fistula, should be put aside unless it was life-threatening or an immediate threat to the child’s health. Given the volume of information communicated by the mother to the father, it is difficult to do other than conclude that his lodgement of the Notarial Record was an irresponsible parenting decision. For such a step to be taken for a baby who had within the month been hospitalised for a serious infection close to his brain defies understanding.
Material presented by the father to the Federal Magistrates Court in his Notice of Abuse
It is then appropriate to turn to the material presented by the father to the Federal Magistrates Court in his Notice of Abuse filed 19 April 2012.
I have incorporated some of the key dates which show the parties and child’s movements between Australia and the Czech Republic, and the agreed chronology in relation to the abduction convention proceedings. It is sufficient to observe, as is earlier mentioned, that the father secured a return order which the mother unsuccessfully appealed.
On 19 April 2012, a letter was forwarded by the father’s solicitor to the mother’s solicitor which repeated an earlier offer he made to her in the Abduction Convention proceedings, namely, that their apartment at L would be available for the mother and child on her return to Australia, and that the child would not be removed from the mother. When that letter was sent, the father had already caused the locks on the L apartment to be changed, and there was no way the mother could gain access. While it is true the mother did not accept the father’s offer made to the Czech courts, it is also plain that he did not withdraw it and it was confirmed as late as 19 April 2012.
The letter of 19 April 2012 from his solicitor was sent the day after the father signed and returned to Australia the Notice of Abuse or Family Violence, an application initiating proceedings and his affidavit all of which were lodged in the Federal Magistrates Court on 19 April 2012. They were lodged by the father’s Australian lawyer who had been retained approximately four weeks earlier but whose retention had not been disclosed.
In his application for ex parte orders, the father relied on the following facts as asserted in his Notice of Abuse:
1. This application involves a 22 month old child, [the child] born 18 May 2010.
2. The applicant, [the father], and respondent, [the mother], were married on … February 2010 in the Czech Republic. The parties relocated to Australia in about November 2010 where they have remained ever since. On or about 21 June 2011, the mother left with the child for a planned holiday to the Czech Republic. She has since made the unilateral decision not to return to Australia with the child. The father has since travelled to the Czech Republic and initiated legal proceedings and was successful in March 2012 in obtaining a final judgment ordering that the mother and child return to Australia within 15 days. Since that time the mother has deployed a number a delaying mechanisms so as not to abide the orders. The most concerning is that the mother has now booked the child into surgery in the Czech Republic with no notice to the father for surgery on a fistula the child has had on his nose since birth.
3. The father alleged that this surgery is not necessary and has obtained three professional expert opinions that state the child’s condition is normal and that he is healthy which are attached.
4. The mother has restricted the father’s access with the child, however, on the occasions that the father has seen the child and I emphasis “the fistula on his nose seems to be increasing aggravated and red and looks like it has been deliberately scratched. This is despite the fact that the child leaves the fistula alone and makes no contact with it whilst he is in the father’s care”.
The latter statements by the father constitute a gross misrepresentation of the facts. They warrant strong adverse comment about the integrity of his evidence. His evidence establishes that he was willing to manipulate the Court’s process by the giving of false testimony. In my view, if in the future, the father approaches a court for ex parte relief the court should treat his application with the highest degree of caution.
So that the point is clear I am satisfied the father misled the Federal Magistrates Court in his Notice of Abuse, particularly in relation to paragraphs 4 and 6 referred to above. The father, in the manner I have already mentioned, and in relation to which I have provided simple vignettes of a number of incidences, gave misleading, irreconcilable evidence in these proceedings.
On 19 April 2012, the same day that the father filed his Notice of Abuse in the Federal Magistrates Court, his Czech Republic solicitor gave the mother’s Czech Republic solicitor written confirmation of the offer made to the Czech Republic courts along the lines mentioned. When that occurred he knew the locks had been changed at the L property and he knew that the process was underway for the child to be removed from the mother immediately upon the child’s arrival in Australia. Nor did the father give the Federal Magistrates Court a full account of the child’s medical history and his involvement in it.
The father did not disclose to the Federal Magistrates Court that the child could not speak English and the people into whose care the child was given could not speak Czech. There is no doubt that on the day the ex parte orders were made by the Federal Magistrate the father’s sister communicated the outcome to the father and that, although he had not sought a recovery order, he knew that the child would be taken from the mother on arrival in Australia.
It was incumbent upon the father to disclose that fact to the Czech courts rather than have them proceed on the misapprehension that the proposal he had made to them for the child’s care and the mother and the child’s accommodation in Australia would be fulfilled.
There is evidence that the mother has taken a stance of some prominence in relation to agitation in the Czech Republic for the importance of mirror orders to be put in place before return orders are implemented by the Czech Republic. Observations of the necessity for mirror orders have been made by many countries and the problem here is not unique to return orders made by the Czech Republic. However, there is no doubt that absent a formal mechanism for mirror orders, orders which gave effect to the intention of the Czech Republic return order, could have been put in place so that the difficulties which then arose on 21 April 2012 might have been avoided. I imagine the Czech courts would look on with horror if they knew what had happened to the child when he arrived in Australia and the subsequent refusal by those who had the child’s care to enable him to be with his mother. One only has to listen to her pleas during the police interview that the father’s sister allow her stay in the home to understand what an awful situation occurred at Sydney Airport when the child and the mother flew in.
Conclusion
These reasons will remain on the court record so that, as I have mentioned, if there is another application before this Court in relation to the child there will be a record of what occurred and the nature of the evidence that fell during this hearing.
It is also appropriate to observe that the mother presented a strong case for the child’s return to the Czech Republic with her and proper recognition of his primary attachment to her and, notwithstanding, the father’s evidence to the contrary the evidence which established the extensive efforts made by her to facilitate the child’s relationship with his father, albeit, in very difficult circumstances. It is not my intention to criticise the father for wanting the child back or doing all that was within his power to have his child living with him in the same country, of course, not. It is, however, utterly plain that when people approach courts they must tell the truth and it is regrettable in this case that the father chose not to.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 August 2012
Associate:
Date: 1 November 2012
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Procedural Fairness
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Jurisdiction
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