IRBY & GILLES

[2015] FamCA 259

FAMILY COURT OF AUSTRALIA

IRBY & GILLES [2015] FamCA 259

FAMILY LAW – INTERIM PROCEEDINGS – REVIEW OF REGISTRAR’S DECISION – CHILDREN – WATCHLIST ORDER – Where the child primarily lives with the father – Where the child is diagnosed with autism –Where the mother wishes to take the child to Country C for six months – Where the father asserts the mother is in denial about the child’s special needs – Where the father is concerned the mother will not return the child from Country C –Orders made placing the mother on the Airport Watch List.

APPLICANT: Mr Irby

RESPONDENT: Ms Gilles

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 7577 of 2010

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 March 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In Person

COUNSEL FOR THE RESPONDENT: Ms Falloon

SOLICITOR FOR THE RESPONDENT: Louise Coady Family Lawyers Pty Limited

Orders

IT IS ORDERED

1. That pending further order the respondent mother Ms Gilles (“the mother”) born … 1969 be restrained from leaving the Commonwealth of Australia.

IT IS REQUESTED

1. That the Australian Federal Police give effect to the order 1 herein by placing the name of the said mother Ms Gilles born … 1969 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Watch List.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Irby & Gilles 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: SYC 7577 of 2010

Mr Irby

Applicant

And

Ms Gilles

Respondent

REASONS FOR JUDGMENT

1. The application before the Court concerns a child, B, also known as …, born in 2007 (“the child”).  The child’s father is Mr Irby (“the father”) and his mother is Ms Gilles (“the mother”).  The child lives with the father from Monday morning until Friday afternoon, and with the mother at weekends. 

2. The substantive issue in dispute is the mother’s wish to take the child to Country C, which is opposed by the father.  The matter comes before the Court by way of review of orders made by Senior Registrar Campbell on 12 November 2014, and amended on 14 November 2014.  The matter therefore proceeds by way of hearing de novo.

3. B was diagnosed with autism in October 2008.  Since that time the father gives evidence that he has engaged with the child in playgroups, structured programs, and special needs preschools and therapy. 

4. In 2013 the father arranged for the child to be assessed, and the child was given 40 hours of home visits by an organisation specialising in autism behaviour intervention. 

5. Until the last term of 2014, the father took the child to occupational therapy sessions on Tuesdays and Thursdays at D Hospital. 

6. It is the father’s evidence that the mother has not participated in any of the child’s therapies or education.  The father says that the mother does not accept that the child is autistic, or has any disability.

7. In 2010, pursuant to orders of the Court, the child commenced to live with the father from Monday before school until Thursday after school. 

8. In 2014 the mother stopped taking the child to school on Fridays, and by order of 11 August 2014 the child has since lived with the father on Fridays and the father has taken him to school. 

9. The father gives evidence that although the child is making progress he is not yet ready to be transitioned into mainstream schooling.  It is the father’s evidence that he has communicated with the mother by text message and informed her of the date of the child’s appointments for therapy sessions and has offered to transport her to the appointments, but that she has not availed herself of his offer.

10. The father and the child were interviewed by a family consultant, Ms E, on 13 January 2015 for the purpose of the preparation of a Child Responsive Report.  The mother did not attend for the assessment.  Ms E, in her report, notes:

    [B], a young 8 year-old autistic boy, was seen with his father by way of observation rather than being interviewed on his own.  His father described [the child] as being a sweet-natured boy, which was consistent with his presentation.  On initial introduction to the playroom, he roamed the room looking at and touching the various toys, whilst talking to himself (something he also did while playing at those times that his father was engaged in conversation with the family consultant).  He had good eye contact and good verbal skills. [The child] was generally responsive to his father, although at times [the father] had to work at getting him to focus on him and what he was saying.  [The father] was observed to be patient and warm with [the child].  He paid attention to and coached [the child] in politely interacting with the family consultant, including in relation to his looking at the family consultant when the family consultant was talking to him.  [The child] was observed to listen to his father and to respond accordingly. 

    According to [the father], at 3 years of age, [the child] had been completely mute and would respond fearfully to encounters with other children.  He described having worked intensively with [the child] himself, in addition to sourcing optimal professional assistance, in order to give him access to language as a means of communication and to help him to achieve a level of comfort in social situations.  [The father] stated that [the child] is capable of learning, but that, what it might take a normal child an hour to learn, it takes the child two hours.

11. In her report under the heading “Evaluation”, Ms E stated:

    [The father’s] stated position is that [the child] should be given the best chance to lead a normal life, which, if possible would include his going on to higher education and getting married.  He reported that, to this end, he has sought the best therapeutic supports he could find for [the child] and has attempted to expose him to situations that would optimise his ability to learn in all areas of his development.

12. The father’s concerns, as expressed to the family consultant, were related to what he perceives to be the current and potential obstacles presented by the mother’s denial of the child’s special needs.  As the mother did not attend the appointment, her position was not known to the family consultant.

13. There is no evidence before me of the supports which might be available in Country C for the child which are similar to those supports which have been put in place for him in Australia. 

14. There is no evidence of the effect on the child of removing him – even for a period of time which the mother asserts to be six months – from the care of his father, who has been the child’s primary carer since 2010. And, there is no evidence before me of the effect of removing the child from his current therapeutic program or from the supportive environment of the school which he currently attends.

15. In an affidavit sworn by the father and filed on 11 November 2014, the father deposes that he has contacted the Country C consulate and has been told that an Country C passport can be issued to a child without the consent of the father and that the mother can add the name of a child under 16 years of age to her passport simply by handwriting the name of the child in the middle pages of the passport.  The father says that he has contacted Customs and Border Protection at Sydney Airport and has been informed that at the departure point, only the front page of the mother’s passport would be scanned, and if the child’s name appeared in the middle pages it would not be detected.

16. I am conscious of the fact that the evidence which the father gives is evidence of conversations which he has had with unnamed consular officials.  I am also conscious of the fact that there is no evidence from Country C consular officials before me of the ability of the mother to obtain a passport for the child.  The mother has applied for an Australian passport, but that passport has been refused because the father did not consent.  The father further tells the Court that he is not Country C because he is of Country F nationality and has never lived in Country C, and it is clear from that which has fallen from the mother in the course of argument that in Country C she would have the right to the care of the child until such time as he 12 years old.

17. The mother has told the Court that she wishes to take the child to Country C for six months and that she would return him at the end of that time.  The father does not accept that she would do so.  The mother told the Court that she has property in Country C, including a unit in which she and the child would live, and that she would be able to get employment in Country C.  She has family in Country C, including her mother, her sister, and her brother.

18. I accept the evidence of the father that there is a risk that the mother may be able to remove the child from Australia without his consent, and that there is a real risk that if she does so, he will not be returned.  Having regard to the evidence of the father as to the mother’s ability to remove the child by endorsing his name on her Country C passport, the only safe course to adopt in the short term and on an interim basis is to place the mother’s name on the Airport Watch List.

19. I am otherwise satisfied that the orders that were made by Senior Registrar Campbell on 12 November 2014, and amended on 14 November 2014, were appropriate in the circumstances, and I confirm those orders.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 March 2015.

Associate: 

Date:  14 April 2015