Hillsworth & Kantawong
[2023] FedCFamC1F 762
•5 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hillsworth & Kantawong [2023] FedCFamC1F 762
File number(s): SYC 1826 of 2019 Judgment of: CHRISTIE J Date of judgment: 5 September 2023 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – INTERNATIONAL RELOCATION – Where the parties have competing applications for the child to live with them – Where one parent does not have a viable pathway to permanent residency in Australia –Where there are allegations of family violence – Where there are findings that family violence occurred –Where the child has been exposed to conflict between the parents – Parental responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where parental responsibility should lie with the parent with whom the child lives – Where there is minimal evidence about parties’ capacity to fund travel – Where the child is settled in Australia – Where the relocation will pose challenges for the child – Where the child has a close relationship with both parents – Where the child’s relationship with the non‑residential parent will be impacted - Where the father has experienced challenges managing his mood – Where the expert says there is likely to be a negative impact on the child from being exposed to their parent’s mood dysregulation – Where the father has sought treatment but not continued in treatment – Where subpoenaed records indicate the father has a pattern of mood dysregulation and angry outbursts – Where the Court Child Expert is unsure about the best outcome for the child –Where the Court Child Expert conceded that either parent’s competing proposal contained substantial challenges and disadvantages for the child – Where the Court Child Expert was shown further evidence emerging after the publication of her report and became concerned about the father’s parenting vulnerabilities – Where it is in the best interests of the child to live with the mother – International relocation permitted. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 65DAA, 68L
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 Division: Division 1 First Instance Number of paragraphs: 129 Date of hearing: 14-16 June and 15, 18 August 2023 Place: Sydney Counsel for the Applicant: Mr Blank Solicitor for the Applicant: Single Law Counsel for the Respondent: Mr Reeves Solicitor for the Respondent: Phillip A Wilkins & Associates Counsel for the Independent Children’s Lawyer Ms Shea Solicitor for the Independent Children’s Lawyer Legal Aid ORDERS
SYC 1826 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HILLSWORTH
Applicant
AND: MS KANTAWONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
5 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The parties shall refer to the child Y Kantawong born 2017 as X Y Hillsworth Kantawong (“X”) and either parent shall be entitled to make a formal application to record the child’s name in accordance with this Order.
2.The mother have sole parental responsibility for X.
3.Seven (7) days prior to any decision being made about the X’s long term care, welfare and development the mother shall advise the father in writing of the issue and thereafter take into account the father’s views prior to making any such decision and shall thereafter inform the father of her decision within seven (7) days of such decision being made.
4.Subject to compliance with Order 11, then no sooner than 16 December 2023 the mother be permitted to relocate X’s residence to Country B and thereafter X live with the mother in Country B.
5.While X remains in Australia:
(a)X live with the father;
(b)X spend time with the mother during school term, provided X and the mother reside with Ms C in Region D:
(i)In week one from after school on Thursday to before school on Monday each alternate weekend;
(ii)In week two from after school Thursday to before school Friday.
6.Within seven (7) days of the mother’s arrival in Country B the mother do all acts and things and sign all documents necessary for X to be enrolled in and to attend E School in Region F (hereinafter referred to as “the school”).
7.The mother shall do all acts and things and sign all necessary documents to have the father’s details registered to receive all notifications from the school including school circulars and school reports and have the father authorised to access any “App” which the school uses to disseminate information to parents.
8.Each of the parties is permitted to attend any function or event held by the school which parents in the normal course are invited to attend.
9.During times that X is residing in Country B, the father shall communicate with X at such times as agreed between the parties in writing but failing agreement each Monday, Wednesday, Friday and Saturday at 9.00 pm Australian Eastern Standard Time.
10.In addition to the time provided for in Order 9 the mother shall facilitate X communicating with the father at such times as X may request and on the following specific days:-
(a)Father’s Day;
(b)X’s Birthday; and
(c)Christmas Day.
11.On a date prior to 15 December 2023 the mother will purchase a return ticket for X and a return ticket for herself between Country B and Australia to facilitate X spending time with the father in the mid-year school holidays in 2024. The mother shall forthwith upon purchase provide a copy to the father and she shall be restrained from cancelling or changing that flight without the consent of the father.
12.Upon the father giving to the mother forty-two (42) days written notice X shall spend time with the father in Australia on two occasions per year for a period of not less than fourteen (14) nights duration subject to the following:
(a)That the time shall occur during the designated school holidays of the school X attends;
(b)That changeover shall occur at G Airport; and
(c)Apart from the first trip, as referred to in Order 11, the parties meet equally the cost of travel for X and each meet the cost of their own travel in the event that they are travelling with X.
13.Upon the father giving to the mother forty-two (42) days written notice X shall spend time with the father in Country B on two (2) occasions per year for a period of not less than fourteen (14) nights subject to the following:
(a)The father shall stay in reasonable proximity to X’s school should time occur during school term;
(b)Changeover shall occur at the Region F Airport Country B;
(c)In the event that the time occur during school term the father shall ensure that X attends school; and
(d)The father shall provide to the mother the address and contact details for his accommodation and telephone contact details for the duration of his stay.
14.The time as referred to in Orders 12 and 13 can occur on such other occasions and times as the parties may agree in writing.
15.The parties do all acts and things and sign all documents necessary to enable X to have a current Australian and Country B passport and the father shall be responsible for the cost of obtaining and renewing X’s Australian passport and the mother shall be responsible for the costs of obtaining and renewing X’s Country B passport.
16.The Australian Federal Police are hereby authorised and requested to remove the name of X born 2018 (male) from the Airport Watchlist.
17.The mother shall advise the father of the name, address and contact details of all medical professionals that X attends upon and shall authorise those medical professionals to provide all information about X as requested by the father.
18.The mother shall keep the father informed of all medical appointments and hospitalisation of X including any medications prescribed and inform the father of any medical emergency as soon as practicable and not less than within twenty-four (24) hours.
THE COURT NOTES:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hillsworth & Kantawong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are parenting proceedings in respect of a child X born 2017. X is six years old and in Year 1. Both of X’s parents are asking the Court for an order that X live with them.
The situation for X is complicated by the fact that his mother does not have a visa which permits her to reside permanently in Australia.
Accordingly, the Court is faced with two competing applications. The mother seeks an order that would see X live with her and that should she be required to leave Australia that X be permitted to also leave Australia. The father seeks an order that X live with him in Australia.
X’s interests in the proceedings are represented by the Independent Children’s Lawyer (“ICL”) who was appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”). The ICL, following the close of evidence, sought orders that X live with the mother, acknowledging in submissions that this was not a position without its own difficulties.
This all occurs against a background where there were previous final consent orders made 24 January 2020 which provided that if the mother paid a bond of $7,000 within 60 days she would be permitted to make X’s place of residence Country B. The mother did not pay the bond.
The current interim orders provide: X lives with his father and spends time with his mother from after school Friday to Sunday 5.00 pm each alternate weekend and each Wednesday 3.00 pm to 5.30 pm and electronic communication on Tuesdays and Thursdays.
THE LAW
The application is governed by the statutory principles in Pt VII of the Act.
If the Court is making a parenting order s 61DA(1) of the Act requires to the Court to apply the presumption that an order for equal shared parental responsibility would be in the child’s best interests (unless it is rebutted). The presumption is not to apply if there are reasonable grounds to conclude that there has been abuse of a child or family violence: s 61DA(2) of the Act. The presumption will not apply if the evidence demonstrates the order would be contrary to the child’s best interests (when those matters set out in s 60CC(3) of the Act are considered).
If an order is made for equal shared parental responsibility then it is necessary to consider whether an order for equal time or an order for substantial and significant is in the best interests of the child: s 65DAA of the Act.
In making an assessment as to whether or not a proposed order is in the best interests of the child the matters which are contained in s 60CC of the Act which apply to this child will be relevant matters to consider.
In Sayer v Radcliffe (2012) 48 Fam LR 298, the Full Court observed as follows:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
This is not a case in which it is possible to make either orders for equal time or orders for substantial and significant time. The task then is to work out which arrangement is in the best interests of X having regard to the matters in s 60CC of the Act.
CONSIDERATION
This is a difficult case. Each parent’s proposal offers advantages and disadvantages for X and there is no middle ground.
Both the mother and the father each seek an order that they be allocated sole parental responsibility for X.
The presumption in favour of equal shared parental responsibility is rebutted in this case by findings, in particular as discussed at [79] – [81]. I also accept that for a number of reasons it is in X’s best interests that there not be an order for equal shared parental responsibility. They include:
(a)Poor communication and trust between the parents;
(b)Geographical distance; and
(c)Past failures to shield the child from parental conflict.
The parents currently have minimal communication and effectively parent in parallel. It stands to reason then that there should be an order for parental responsibility in favour of the parent with whom X will primarily live. This is in accordance with the unchallenged evidence of the Court Child Expert, Ms H, at [125] of her updated report dated 3 August 2022.
It will be important that both parents remain involved in important long-term issues and I propose to make orders requiring consultation.
The applicant’s proposal
The applicant’s primary position as contained in Exhibit 4 is that X live with him. He then offered time if the mother is living in Australia. The applicant did not make a specific proposal for time between X and the mother if the mother was living in Country B but proposed to pay half the mother’s airfare to visit Australia once a year until X turns 16.
The respondent’s proposal
The respondent’s proposal at trial was an acknowledgment of expert opinion that it was unlikely that she had a timely path to permanent residency in Australia and may not be successful in obtaining tourist visas in perpetuity.
The mother proposed that X live with her in Country B and spend time with the father on a minimum of four occasions in Country B and two occasions in Australia.
The ICL’s proposal
At the conclusion of the evidence the ICL provided the parties and the Court with a Proposed Minute of Final Orders (Exhibit 19) which supported X residing with his mother in Country B. The ICL’s Minute of Order provided for time with the parents prior to the mother’s relocation in Australia and after the mother’s relocation to Country B.
The court was assisted by the evidence (both written and oral) of the Court Child Expert in this matter. The Court Child Expert recorded, in her second report, that she was unsure about the most suitable option for X.
The importance of a meaningful relationship
The ICL submitted that the period of residence for X (effectively since about March 2020) with the father may, ironically, have had the effect that their relationship is stronger and better able to withstand the tyranny of distance.
Against that, the practical impediments to the father travelling to Country B would appear to include financial capacity, and this may very well be an issue for the mother as well in facilitating travel to Australia.
On behalf of the father it was submitted that the mother has a proven track record of being able to visit Australia. From that, counsel said the Court would find that if X were to live with the father in Australia, then the Court would have some confidence that X would have the opportunity to see and spend time with his mother, but that the reverse was not necessarily certain.
The father gave evidence that he would do what he could to travel to Country B (notwithstanding reservations) and spend as long as possible in Country B in the event that the Court made orders that X live in Country B. He said: “I certainly won’t walk away”.
In 2020, the consent orders provided for the father to spend time with X in both Country B and Australia as follows:
Spend Time With after relocation:
6.1Unless otherwise agreed the Father spend time with the child on a minimum of four occasions each year in [Country B] and on a minimum of two occasions each year in Australia as follows:
(a)The Father shall pay for the return flights of the Mother and the child on the first trip to Australia each year.
(b)The Mother shall pay for the return flights of the Mother and the child on the second trip to Australia each year
(c)It is noted that the Father shall pay for all his accommodation and return flights to and from [Country B] and the Mother shall pay for her accommodation when she is in Australia.
Until 16 January 2023:
(d)The Father shall spend 7 nights in a block with the child in [Country B] at a location near the child’s school if such period is during school terms and shall ensure the child’s attendance at school if time is spent during school terms.
(e)The Father shall spend 10 days with the child in a block in Australia during two [Country B] school holiday periods.
After 16 January 2023:
(f)The Father shall spend 14 nights in a block with the child in [Country B] at a location near the child’s school and shall ensure the child’s attendance at school if time is spent during school terms.
(g)The Father shall spend 14 days with the child in a block in Australia during two [Country B] school holiday periods.
(h)That for the purpose of Orders 6(e) and 6(g) the [Country B] school holidays are defined as being in March/April and October for state schools and for private schools they shall be the Summer and Christmas holidays.
(i)The Father shall give not less than 28 days’ written notice to the Mother of the dates when he shall spend time with [X] in [Country B].
(j)For the purpose of Order 6(d) the 7 day block periods may occur in any month separated by a week.
6.2The Mother shall nominate the periods when she shall travel to Australia with [X] for time with the Father and shall give the Father not less than 56 days’ written notice to enable the Father to purchase the air tickets when he is required to do so.
6.3 Changeover at collection and delivery of the child shall be:
(a) In [Country B] at the [Region F] Airport;
(b) In Australia at [G Airport].
6.4Prior to spending time with [X] in [Country B] the Father shall provide to the Mother his residential address in [Country B] and a telephone contact number where she may contact [X] each second day for up to 10 minutes to converse with him.
6.5That the Mother pay the sum of AUD $7,000.00 into the Mother’s solicitor’s trust account within 60 days of the date of these Orders as security for the Father to spend time with the child in accordance with these Orders. Upon the sum clearing into the Mother’s solicitor’s trust account the Mother’s solicitor shall send the Father’s solicitor a copy of the Trust Account receipt and within 48 hours of the receipt being sent to the Father’s solicitor the Mother shall collect the child within a further 48 hours’ notice to the Father at [Town J] Train Station. This sum shall, unless the court otherwise orders, be released to the Mother at the expiry of two years from the making of these Orders.
6.6That the parties have liberty to apply to restore the matter to the list on seven (7) days’ notice in relation to any issues relating to the bond referred to in Order 6.5.
I find that the amount of time which X will be able to spend with the parent with whom he does not live will be substantially reduced by each parent living in a different country but this is not a matter over which the Court (or the parents) have control. I accept that this will impact on X’s relationship with the parent with whom he does not reside but not to the extent that his relationship will no longer be meaningful to him.
It is necessary to turn then to those factors which support the competing proposals or that militate against them.
X’s views and relationships with each parent
X has a good relationship with both parents. The Court Child Expert described the relationship with both parents as “close and familiar”. She opined that “it is feasible that [X’s] main and overriding memories of his parenting arrangements would be of [Mr Hillsworth] as his main carer” but equally identified that one of the advantages to X if he were to live with his mother is that “he appears to have a close and warm relationship [with her]” and she “may have been his earliest primary attachment figure”.
This case does not turn on which parent has a better or closer relationship with X. X is fortunate to be close to both his parents.
X was only five years old when the Court Child Expert interviewed him and conducted the observation exercises. Properly, she did not seek his views on the specifics of either proposal but elicited age appropriate views. It is plain that whatever orders the Court makes X will miss his absent parent.
While I did not have significant evidence (and certainly no affidavit evidence) one of the disadvantages of the mother’s proposal is that X currently has the benefit of living in proximity to the paternal grandmother and aunt and reasonably close to the paternal grandfather. The father indicated to the Court Child Expert that X sees each of those family members.
Family violence
The mother and father each provide evidence of what they allege was abusive conduct on the part of the other parent. It is difficult to evaluate this evidence.
The father’s demeanour in the witness box was calm and polite. Had it not been for collateral information I may have inevitably concluded that the father was not prone to angry outbursts.
The material which came into evidence touches on the father’s anger and aggression and is relevant not just to my findings about family violence but also more broadly to questions of the father’s parenting capacity.
The ICL conducted a careful and thorough cross-examination of the mother in respect of her allegations of violence and, in final submissions, said that the Court would accept the mother’s evidence and approach that of the father with caution where their accounts in respect of this important issue differed. I accept the mother’s evidence was consistent and detailed and I have approached it in the context of the collateral evidence.
The information relied upon by the ICL to ground the submission that it is more likely than not that the father has struggled with anger management and impulse control over a long period of time was contained in records for the period 2014–2023.
2014 hospital notes
In 2014, the father sought mental health assistance from K Health Centre. The father sought treatment for depressive symptoms and thoughts of aggression or self-harm. The records reflect the father was reluctant to complete an assessment and apparently did not pursue further treatment.
In 2014, records from the L Mental Health Service Triage summarise the father’s mental state and condition at that point in time:
45 year old man with thoughts of aggression and self-harm, depressive symptoms; HX violence. Referred by [M Mental Health Service] – who consider client to have [mental health disorder] traits. Allocated to [K Health Centre]. Non-urgent
(As per the original)
In the reasons for referral in the above entry the father reported being “[d]epressed for a year”, “[e]xplosive moods”, “[h]olds a grudge about events from past – ‘can remember everything said’”, “[s]uicidal ideation”, “thinks he is being watched all the time, going to be attacked” and having “objects to use as weapons placed around house – at front and back doors and near bed”.
A few days later, after being allocated to K Health Centre, the father was referred for assessment by Ms N. Ms N called the father on the phone and it is recorded he became verbally abusive. The father is referred to as “Mr Hillsworth” in the below entry:
Writer asked [Mr Hillsworth] how he was doing, he was irritable, accused writer of not reading referral information, stated he spent an hour talking to “the girl” in [City P] and he didn’t want to tell his life story over again. I tried to calm him, I asked [Mr Hillsworth] what supports he was needing now, He said he was not alone at this time and did not want to explain in front of other people.
I asked for a suitable time to arrange an assessment, he became more verbally abusive, and stated “if you gave a gun I could tell you what I need, f… k me” and then hung up.
(As per the original)
2018 hospital and general practitioner notes
In 2018, the father was referred for mental health treatment at Q Mental Health Service regarding urgent suicidal behaviours and major depressive disorder symptoms. After triage and consultation with a nurse the father elected that he did not want to follow up mental health treatment.
The father attended at the office of his general practitioner, Dr R, in 2018. The father is referred to as “Pt” by the nurse in the following entry:
Pt bhaving a lot of problems with partner
Becoming very teary
Pt at times stated that could kill wife ([…])
Also about self harm
[Dr R] spoke with pt
Called mental health hot line
waitted on phoned for 1hr 40min
Then letter from Dr and watched entre A& E
When pt left was more carm and talking better
(As per the original)
On the following day, records from the local health district state that the father spoke with clinical psychologist Ms T from the L Mental Health Service. The records describe the father as having a “huge discrepancy in presentation” and according “to the client he had issues with his wife yesterday and that was the reason he was upset and cried at GP practice but now wife came back home”. Ms T concluded that he would “encourage” the father for triage after this consultation.
Two days later, records from the local health district state that the Father was referred by Dr R for mental health admission for “urgent management of suicidal and harming others, high risk behaviours and prior suicidal attempts, diagnosis of major depressive disorder.” In the same “Mental Health Clinical Handover” entry they described the father’s mental health history. The father is referred to as “client” in the below entry:
Background: client has been contacted and denied any mental health issues and has declined MH service. Was a triaged […] in 2014 and allocated to team for aggressive thoughts and intent, suicide ideation every day, no plan, paranoid ideation, has objects to use as weapons around the house
(As per the original)
The records indicate that on this occasion despite reporting these mental health symptoms that he declined further mental health services and that the hospital was unable to contact the client further for triage.
Three days later, records from the local health district mention previous notes from the father taken from 2014 including an A1 assessment and typewritten notes from M Mental Health Service in 2014. The father is referred to as “Mr Hillsworth” in the following entry:
•Unknown risk of harm to self and suicide
•Past history of violence
•Acknowledged personality problems
•Information in [M Mental Health Service] referral indicated “reports chronic interpersonal difficulties with family and friends “they just leave me” social isolation, poor impulse/emotional control, poor previous service engagement “no one cared last time I was here”, “nothing helped” and hopelessness/lack of life direction. [Mr Hillsworth] noted great difficulty in controlling anger when “people are stupid” or “out to upset me” including an incident on the way to the centre where he yelled at a driver who had been careless while he was near the road.
I will return to consider how the father was functioning at this time when I consider the mother’s specific allegations of family violence at about this period.
Other records with evidence of the father’s mood dysregulation
The evidence the ICL took me to including COPS police records, email correspondence with X’s educational institutions and records from the father’s treating physicians also demonstrate a pattern of mood dysregulation and anger management issues of recent origin.
In 2020, the COPS record suggests that the father threatened a contractor who attended on the father’s home to conduct scheduled maintenance. In the COPS record the father is referred to as the “POI” and the contractor is referred to as the “VIC”. The COPS record states:
The POI abused [redacted] and refused him entry to fix the issue. The POI confronted the VIC as he was leaving stating he would stab [redacted]…Police spoke further with [redacted] who did not wish to press police action or provide a statement…The POI was issued a verbal warning regarding his behaviour.
In late 2021, there was a very unfortunate incident at X’s child care centre. It should have been a celebration. X was “graduating” from child care. Parents had been invited to the end of year event. He was due to start school the following year and while he was originally enrolled to attend child care in January this event was a formal celebration of the transition from child care to preschool. The child care centre was in Region D near the father’s home. The graduation was scheduled for a day where X was due to spend time with the mother after child care. The father told the mother about the graduation and his plan to take X home to get specially dressed for the event. The mother attended at the child care centre earlier than usual that day. The child care centre rang the father. It is apparent that the parents did not agree as to what should happen – in effect they fought over who would decide what happened for X between the time of their arrival at child care and the graduation.
On both parties evidence there was a physical tussle involving X. Multiple COPS reports were made in regard to an altercation between the mother and father. A COPS report dated early 2022 in which the mother is referred to as “POI1”, the father is referred to as “POI2” and the child is referred to as “VIC” stated:
At this stage the VIC was in the arms of POI2….it is alleged that the POI1 steps forward to try and grab the VIC. The POI2 tries to pull away. At some stage the POI1 is able to grab and pull the VIC away from the POI2 and the POI2 then steps forward to try and grab the VIC back.
The mother agreed in cross-examination that the father had proposed to shower X and bring him back to child care. It is plain that she should have allowed this. But when the mother would not release X the father should not have attempted to take him physically from the mother. The situation reflects poorly on both parents.
Both the mother and the father allege that they were victims of physical violence during this altercation. In late 2021, several days after the event, the father reported to police that during the altercation with the mother she caused a cut on his arm and the child also had scratches and a bruise.
In the subsequent COPS entry dated early 2022 the following was recorded about the father who is referred to as “POI2”:
POI2 advised that his son was injured as a result of the incident however police noticed the injury report was completed by the centre was done a few days after the incident and they stated at the bottom of the report that it was only completed at the request of the POI2…Police are of the belief that the POI2 was attempting to leverage the incident in his favour for upcoming family law court hearings.
In the COPS report, the mother, referred to as “POI1”, also made allegations: “She alleges that she is assaulted during the scuffle over her son. POI1stated she was not injured and requires no medication attention”. However, the COPS report states that there were no witnesses to physical violence: “Neither witness are [sic] able to corroborate any assault occurring and state that what they saw was a verbal argument”.
The father was later banned from the child care centre. In late 2021, the father sent an email to the child care centre: “…also not sure if you are aware but I was also given a ban from entering your school by [Mr S]”. In this email the father also asked: “Did the mother also get the same such ban?”
I find that the parties both acted in a manner which was not child focused. Each of them ought to have been able to compromise and cooperate to allow X to enjoy this event. I am unable to say that one party should accept greater blame for the incident. While unfortunate I do not consider that this incident by itself is indicative of a pattern of violent conduct by either party.
What it does demonstrate is an inability to act appropriately in circumstances which required restraint. It is significant that the child care centre banned the father (for whatever period).
The father has a demonstrated capacity to escalate events involving the child in a manner which lacks foresight about the consequences for the child.
In late 2022, an email was sent by the principal from the child’s school regarding conduct of the father after the mother attended the school for a parenting training course, saw the child and hugged him. The email stated: “Dad rang the school very irate that the mum was in breach of court orders seeing [X] at school…” In an email dated late 2021 the father apologised to the principal for what he described as a miscommunication.
The description of the father as “very irate” accords with the observation of the Court Child Expert – that while the father was polite and cooperative he also presented in the interview at times as “strident and vehement”.
Further police documents were tendered which suggested that the father’s issues with anger have led to confrontations with a range of people.
In late 2022, an incident is set out in the records of the NSW Police as having occurred between the father and neighbour in the father’s apartment complex. The COPS record dated late 2022 states that an argument broke out as the father was owed money by this neighbour. The COPS record refers to the father as the “POI” and the neighbour as the “victim”:
The POI asked the victim about the money owed to him and the pair engaged in an argument. During this argument the POI has grabbed the victim by the collar and pulled the victim forcibly towards him. The POI then let go and walked away from the victim. There are no witnesses to the incident and the victim sustained no injury. The POI advised his daughter [redacted] of the incident and she contacted the police on the victim’s behalf… The victim was unwilling to provide a statement about the incident but requested that police speak with the POI. The victim also advised police that there had been several unreported incidents where the POI had been abusive towards him and his adult daughter.
Against the background of the father’s historical vulnerabilities with anger management it is apparent that he is vulnerable to episodes such as the above. The risk for the child is both that he may be witness to such incidents which may be anxiety provoking or dangerous but also demonstrate poor role modelling. The Court Child Expert also expressed the view that as X gets older he may pose more challenging behaviour for his father.
The evidence about whether the father has engaged in corporal punishment of X is contain in the Court Child Expert’s report. The report writer says: “[The mother claims that] [X] tells her that his father smacks him and that he does not want to live with him”. In the father’s affidavit he denied smacking X at [117]: “I never smack [X]. When he was smaller, I tapped in [sic] on the bottom. I talk him through his inappropriate behaviours and tell him the right way to talk and act”.
X’s account to the Court Child Expert was consistent with his reports to his mother as recorded at [83] of the updated report where X tells the report writer that “[Mr Hillsworth] smacks him sometimes, but that it is not all that hard.” In his affidavit the father responded specifically to that paragraph at [118] saying: “again, I don’t smack [X]”.
The Court Child Expert concluded at [106] “[t]here is an impression that [Mr Hillsworth] may struggle, at times, with setting limits and has continued to resort to physical punishment.” The father specifically denied that conclusion at [122] of his affidavit. The Court Child Expert made a specific recommendation that the father undertake a parenting course. The evidence does not establish that the father acted on this recommendation after receipt of the report and I remain concerned that he may experience challenges with X’s discipline as X gets older.
A further incident occurred in late 2022 between the father and another neighbour. The COPS record suggests that “a stand off occurred” between the father and the father’s neighbour on the shared driveway of the unit complex and an argument ensued. In the COPs record father is referred to as the “PN” and the neighbour as the “PR”:
The PN signalled to the PR with his hands “What are you doing?” however PR remained in the driveway and did not move. A short time later the PN sounded his horn to get the attend of the PR and signalled for her to move. The PN then got out of his car and walked up to the PR and said “For fuck sake………. Can you move your car”. The PR then engaged in a heated exchange where they called each other names.
(As per the original)
Again the record raises the same concerns. It seems likely that these are two different incidents involving two different neighbours because, while the people are not named they appear to be a man and a woman. Both incidents are sufficiently serious to warrant police being contacted.
Quite recently records suggest there was further police involvement with the father. In early 2023 a public verbal altercation is reported to have occurred between the father and the father’s nephew. The COPS record from early 2023 states: “Both parties have exchanged words as they have been having ongoing issues.” Following the verbal altercation the father’s nephew reported wanting to seek an “AVO” for his wife in regard to the father making her feel unsafe. The COPS record states that when the police contacted the father, the father also accused his nephew of sending “ongoing messages”.
The father speaking poorly of the mother
While not indicative of violence or aggression there was evidence which demonstrated a lack of appropriate restraint on the part of the father in dealing with issues relating to the child and the mother. In an email to the child’s school in late 2022, the father communicated with the school about the mother in a manner which may have caused the school to think poorly of the mother. He conveyed his view that that the mother not attend upon the school unless in accordance with court orders. The father implied to the school that the mother might abduct the child by stating that “…[X] is listed on the international watch” and “…all I wanted, was your assurance that whilst his mother was roaming around the school, that she didn’t have the opportunity to leave the premises with [X] and you have security procedures set in place” (emphasis added).
In the same email the father also spoke disparagingly about the mother’s parenting capacity when commenting on the parenting course the school held (which was the reason for her attendance on the school): “As far as any courses of training that your school provides, Iam [sic] more than happy for [X’s] mother to attend and utilise the school’s services, as I feel any education on parenting and communication training would certainly be a benefit to her”.
As recently as March 2023 (Exhibit 1) the father continued to communicate with X’s school in a manner which denigrated X’s mother including saying: “…I know her claims are lies and rubbish, she is only trying to discredit me by implying I’m prepared to accept a substandard school for [X]”.
Family violence allegations
Turning specifically to the allegations of violence the mother set out her evidence in paragraphs [40]–[56] of her affidavit.
The mother alleges that during an argument in late 2018 (as discussed below she may have confused her dates and merged two incidents in her narrative) the father loudly said: “If you don’t come back to the room, I will kill you, I will cut your throat.” The following day the there is no real dispute that the father attended upon his general practitioner in Town J. The mother says the doctor called the home and the phone was answered by the father who said to the doctor “[the mother] and [X] are ok” and then said to the mother: “The doctor rang to check you and [X] are OK because he is worried that I am going to kill you and the baby.”
The mother went to Sydney, taking X, to stay with friends, returning three days later. The father’s affidavit mentions the mother travelling to Sydney over this period but not events immediately preceding her leaving.
The reference to the telephone call from the general practitioner suggests that this may be a reference to the father’s attendance upon his general practitioner in the previous month (as opposed to having occurred the next month) or in the alternative there may have been two events. As discussed below some of the events appear to have merged in the mother’s narrative.
It seems plain that the father, at least at one point, accepted that he had made a serious threat of violence to the mother. In the first Court Child Expert report at [63] the expert recorded: “He acknowledged that he has threatened to kill her (and himself) during an argument, but indicated that this was a highly unusual event brought about by great stress at the time”.
The father in cross-examination said he had no memory of having said what he did but accepted that the fact that it was recorded means it is likely that he did.
The mother does not mention a prior incident in late 2018 in her affidavit but the father says that the parties had argued earlier in that month when the mother wanted to return to Sydney and the father locked the door so she could not leave. The police attended. Even if I were to accept the father’s evidence that he was concerned about the mother being in the rain he was not entitled to restrain the mother by locking her in the house. He now accepts this.
The following month the mother gave evidence that the parties argued and during that argument in early 2019: “The father punched the plastic bag I was holding. He then grabbed me on the throat and squeezed my throat causing pain.” The mother says the father apologised, promised it would not be repeated and asked her not to contact the police or seek medical treatment.
There is some confusion about whether this incident occurred at that time or a couple of months later in 2019. The mother’s statement to the police says that it occurred on the later date at about 3.00 pm and that she reported it to the police in Sydney at that time. The mother says the police conflated the incident where she kicked the door (discussed below) and the earlier incident. The police did indicate that while they had the use of an interpreter they had difficulty obtaining a statement.
The father denies putting his hands around the mother’s neck. He says he did not hit or threaten her. The father’s denials need to be approached with caution because when counsel for the mother cross-examined the father about whether he had threatened to kill the mother he denied it and when asked whether he had trouble managing his emotions he denied it. The objective evidence suggests that both these answers were untrue.
I also had the benefit of the ICL’s cross-examination of the mother about the allegations which she made. I find on the basis of the evidence of the parties when seen in light of the collateral documents it is more probable than not that the father did engage in the conduct the mother describes.
In this context, it is apparent that the father had been experiencing mental health vulnerabilities at that time and the records of his interactions with the workers are consistent with the mother’s account.
The father told Dr U, a forensic and clinical psychologist:
“Her solicitors subpoenaed my medical records and the records indicated that I have [a mental health disorder]. What the judge has ordered is that I enter into a mental health program.” He stated, “Back in […] 2018 I had seen the nurse at the GP practice. Me and my partner had been fighting so I had walked off and ended up at the GP practice. I broke down for an hour and a half and talked to the nurse. Part of the record from that discussion with the nurse is that I had stated that ‘I should kill her and kill myself’. Adding to that, my partner said around that time I had threatened her. It is because of those subpoenaed records that the judge ordered that I should enter into a mental health program”. He explained the context thus, “I suppose I felt comfortable with her. I let it out”.
Dr U undertook an assessment referable to the symptoms of a personality disorder. Of relevance is what the father told the psychologist about “inappropriate intense anger or difficulty controlling anger:
8. Inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights): “I’m not gonna lie. I get cranky. I speak my mind. I speak up for injustices. If I see a man hit his girlfriend if I see his car I will stop it. Controlling of my anger – depends on the anger”.
(As per the original)
It is clear that in 2019 the father was very engaged with professionals: Dr U, Dr V (the psychiatrist) and programs through W Counselling. There is very little evidence about any continued or recent engagement with mental health professionals and the father confirmed in cross-examination he had not seen a psychiatrist since Dr V. It seems that the father has not had any further mental health plan or consulted a psychologist or psychiatrist since moving to Region D around the end of 2020.
The father’s allegations of family violence included the behaviour of the mother in early 2019 and the incident at the child care centre which I have previously considered.
In early 2019 the mother attended at the father’s home unannounced. It is an agreed fact that she attended wanting to collect X and take him to Country B. The father did not permit her to enter. The mother kicked the father’s door.
I am concerned about this incident because it demonstrates that neither party was able to de‑escalate the situation to prevent X from being exposed to what must have been a frightening experience. His mother presented as highly distressed. While the mother’s conduct was not child focused I do not accept that it would be regarded as an incident of family violence and certainly not indicative of a pattern of conduct on her part. It was a misguided desperate attempt to see her child.
The father initially maintained in cross-examination that X would not have known his mother was there. I do not accept that evidence. There are several factors which make it inconceivable that X was unaware of the mother’s presence. They include:
(a)The layout of the house (as described by the father);
(b)The mother’s yelling (Exhibit 8);
(c)The father’s comment requesting the mother to stop banging on the door because she is “scaring [X]”; and
(d)The fact that music young children would typically listen to such as “Old McDonald Had a Farm” is audible on the recording and X is presumably listening to this.
Both parents must appreciate that their own conduct that day exposed X to distressing banging and sobbing by his mother which could not have been in his interests.
Father’s parenting capacity
X appears to be performing well at his school and there is no suggestion in the evidence that X’s physical and emotional needs are not being met in the father’s household.
X’s school reports demonstrate appropriate attendance and attitude to learning.
The father has also ensured X is engaged in the local community such as doing various sports and attending his classmates’ birthday parties.
As discussed above, the Court Child Expert formed the view that the father may struggle at times with setting limits and referred to his use of physical punishment. This approach, if not remedied may pose a greater risk to X in the future.
The father’s mental health
As canvassed during the trial, whether the father had a specific mental health diagnosis was secondary to the court’s examination of whether the father’s conduct had a negative or potentially negative impact on his parenting capacity or created an issue of risk from X’s perspective.
On 31 July 2019, psychiatrist Dr V wrote a report on the father. In the report Dr V denied that the father had a mental health disorder. He wrote:
Reviewing his [the father’s] history there have been no episodes in which he has become endogenously elated or euphoric, spent money in such ways that indicate an impaired judgement or that he has acted in any way that has resulted in him coming to psychiatric hospital attendance or that police have needed to attend to him as a result of an abnormal mood state.
It is not the presence (or absence) of a diagnosed mental health condition which impacts on the father’s parenting capacity but rather the vulnerability which manifests in anger and aggression, as discussed in detail above. The Court Child Expert in her oral evidence, informed by material which had been tendered from police and health professionals, indicated that she was more concerned about the father’s potential vulnerabilities and their impact on X as a consequence of the evidence.
The Court Child Expert gave evidence that she was concerned that X may be exposed to the mood instability in the father which may impact on the father’s interactions with others (in X’s presence) or X himself as he grows older. She also expressed the view that the father may model poor mechanisms for coping with stress and potentially lack insight about the impact of his own mood on others.
Mother’s parenting capacity
There were two significant issues which seemed, at least on their face, to raise questions about the mother’s parenting capacity and were also relevant to my consideration of s 60CC(3)(c) of the Act:
(1)Her failure to avail herself of the orders which she had obtained (in light of the advantages which she contended such a move would have for X); and
(2)Her absence from X’s life throughout most of 2020 and her failing to exercise all available time thereafter.
One of the issues in the case which was relatively non-controversial is that from about March 2020 until December 2020 – the mother did not see or spend time with X and did not contact the father.
The mother for her part says she was having difficulty obtaining a grant of legal aid and did not appreciate that she could see X, so focused her efforts on obtaining legal assistance and representation.
I discuss this issue below under the heading “any other issue” – I am satisfied that the parenting that X receives from his mother during the time that they have spent together is appropriate and I note that to the extent that the father has raised any issues historically they have generally been about diet and were not matters which the Court Child Expert concluded impacted on parenting capacity.
Effect of change
If X remains living with the father then the biggest change will arise if the mother is unable to obtain a further visa or in the alternative returns to Country B to obtain work. In that case it is anticipated on the basis of the expert evidence that X would miss seeing his mother with the regularity and frequency he currently enjoys. It is expected that he would have electronic communication with her and that his close relationship with the father would be of assistance to him in managing this loss. The Court Child Expert observed, in her written report, that this option may be the least disruptive for X.
If X moves to live with his mother in Country B this would be likely to be experienced as a more significant change for X. The Court Child Expert in her oral evidence expressed the view that moving to live with his mother in Country B would be experienced by X as a “big loss and a huge adjustment”. He would not only lose the regular frequent time with his father but also the friends at school and in the local community and the father’s family. In addition he would move from an English speaking country to a Country B language speaking country where he presently has minimal language skills. It would be expected that he would be assisted in managing the loss of frequent time with his father by his close relationship with his mother and by electronic communication with his father.
Does one proposal or the other appear to best promote the relationship between the child and the absent parent?
The determination about whether X lives with his mother in Country B or his father in Australia requires consideration of which arrangement is most likely to assist X to retain a relationship with and spend time with both of his parents.
The parents distrust one another. The father’s counsel submitted that the Court may be concerned that if X accompanies the mother to Country B the father would not be able to enforce the orders for time.
The mother will be required by the orders to enrol X in the school she nominated. The father will receive updates from the school. The mother gave evidence the school is proximate to her home in Country B. The father knows where the mother’s home and that of the mother’s family are located.
Further it would be appropriate that the mother be obliged to have purchased X’s first ticket to return to Australia (and her ticket to accompany him) before she leaves Australia and provide same to the father. Accepting that X is to be enrolled in the school the mother identified then, according to her orders sought, X will have holidays in the middle of 2024 during which he can travel to Australia. It is appropriate that the tickets for that trip be obtained prior to X leaving Australia. This is not a whole solution to the father’s concerns that the mother may not ensure that X return but will provide for the first occasion.
Further comfort may be drawn from the fact that Country B is a party to the Hague Convention on the Civil Aspects of International Child Abduction and recourse may be had to Pt 4 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The parties’ respective applications gave some indication of the value they saw to X in having time with the other parent. If the mother was living in Country B the father made no specific proposal as to time. To the extent that his thoughts about what might be appropriate were apparent this could only be gleaned from the proposed order whereby he offered to fund half the cost of the mother’s airfare to visit Australia if she demonstrated she had obtained a visa. He made no proposal that X travel to Country B, where he was born and where his mother would be living (and indeed where he had previously consented X should live).
In contrast the mother proposed at least six visits per year split between Country B and Australia. This is considerably more generous and more child focused and acknowledges the nature and importance of the relationship between X and the father. That said, I do not think that the evidence established that either party would ever have the financial wherewithal to allow the father to exercise all of the time the mother was proposing.
Any other issue
At the conclusion of the hearing I remained unable to make sense of the mother’s decision to remain in Australia following the consent orders. I find that she did have the funds available to pay the bond. I find that she did not pay the bond. I find that thereafter she did not exercise time with X until the father initiated contact in December 2020. The Court Child Expert found this baffling. I agree.
The mother said she had difficulty accessing services and legal assistance. This may be the case. As identified by the Court Child Expert, there is a clear power imbalance as between the father and mother. This is not a criticism of the father. It is an acknowledgment of the fact that the mother in this case does not have significant proficiency in English, does not have the right to remain in the country permanently, does not have the right to earn income, is younger than the father and has no access to family supports in Australia. In that context her inaction while still curious is perhaps better understood.
CONCLUSIONS
Given my findings about family violence and my findings about the father’s history of anger and impulse control issues it is this issue above all others which promotes the proposal that X live primarily with the mother. A secondary but important consideration is also the Court Child Expert opinion that because X has spent more time with the father it may be more viable for him to maintain this relationship from a distance. I have set out above that this proposal will pose challenges for X (including missing the father and initial language difficulties and cultural adjustments). But in light of the Court Child Expert’s oral evidence about the material relating to the father’s history, then the mother’s proposal would provide the best opportunity for X to be shielded from exposure to these behaviours.
The father was asked in cross-examination about visits with X. He confirmed that while it remained his primary position that X should live with him in Australia, if X were to live in Country B he would seek four visits per year (two in Australia and two in Country B. The ICL minute adopts that model, as opposed to the more generous proposal in the mother’s minute. It is probably more realistic. However, if the parties can agree to more time going forward then court orders will not prevent that from occurring.
A transitional arrangement
Arising out of the oral evidence of the Court Child Expert it is apparent that if X is to live with his mother then he may adjust better to that change if there is a transition rather than a significant change all at once. To that end she said it may be useful for X to spend additional time with his mother in Australia while his father is close by to assist him with this transition.
Given the current distance between the parties’ homes such a transition would pose challenges. Having heard the evidence of the Court Child Expert the mother sought leave to rely on an additional affidavit of a friend who could provide her and X accommodation proximate to X’s school to facilitate such a transition. I granted leave and permitted cross-examination of the witness. Her evidence was very straightforward and limited to the circumstances in which she came to meet the mother (she is a grandparent of a child who has a friendship with X) and a friendship has developed between the mother and her (initially as a consequence of the children’s interactions). She is able and willing to accommodate the mother and X at her home and I accept her evidence.
I am conscious that X needs all the support he can get to manage the proposed change. I will make orders increasing the time he will spend with his mother in Australia while leaving him primarily in the care of his father until his departure. He will spend the whole of the school holidays between terms 3 and 4 with his father. School term is scheduled to end on 15 December 2023 and the mother’s visa is scheduled to expire on 21 December 2023. While the mother will not be obliged to leave the country on 16 December 2023 taking X with her, she will be permitted to do so.
X’s name
X was born in 2017 in Country B. His mother reported his birth and a Country B birth certificate issued. On X’s birth certificate his name is recorded as Y Kantawong.
For some time now both the mother and father have used the name X to refer to their child. He is also known as X in the school setting (although not for the purpose of formal documents). Unsurprisingly, therefore, each parent is content for the name X to be formally recorded as part of X’s name.
The parties disagree about X’s surname. The father would like X to have his surname. The mother would like X to have her surname.
The ICL sought an order: “the child shall hereafter be known as [X Y Kantawong]”.
The father seeks an order which reads: “…these orders provide an irrevocable authority for the father to change the child’s name to “[X Hillsworth Kantawong]”. This would have the effect of adding the father’s surname and deleting Y.
There is scant evidence dealing with the topic. Everyone agrees to formalise the informal use of X and I will make an order. The two remaining debates are:
(a)Should “X” replace Y or just be added as a first name with the effect that Y becomes his second given name?
(b)Should Hillsworth be added to X’s name and is so as a surname, a further given or middle name of hyphenated?
This is a specific type of parenting orders and the paramountcy principle applies. Doing the best I can without significant evidence I find that it is not in X’s interests that he lose the name his mother gave him at birth, which has appeared on school reports and formal documents and hence I find he should retain Y.
I accept that each parent’s surname is a connection between X and that parent. I accept that if I am to add the father’s surname X will have a long name but this alone is not particularly concerning. For reasons previously discussed X will be living predominantly with his mother in Country B and accordingly there is some merit in her surname being X’s surname both because it is a Country B surname and also as they will be a family unit in Country B. It is my view that it is in X’s interests that his surname remain Kantawong. However, I do believe there is value in X having his father’s name – perhaps more so since they will not be living in the same country and I will order that it be one of X’s given names – X will be formally known as X Y Hillsworth Kantawong and in due course he is likely to settle on which names he uses with regularity.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 September 2023
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