Jackey and Lyone (No. 2)
[2008] FamCA 1052
•4 December 2008
FAMILY COURT OF AUSTRALIA
| JACKEY & LYONE (NO. 2) | [2008] FamCA 1052 |
FAMILY LAW – CHILDREN —RELOCATION – Relocate residence of child—Mother in Switzerland or Father in Australia—Bale v Jenkins (2007) FamCA 809—Best interests under section 60CC—Primary attachment to Father—Proposed order that child live with Father—Further submissions required
| APPLICANT: | Mr Jackey |
| RESPONDENT: | Ms Lyone |
| FILE NUMBER: | BRC | 4670 | of | 2007 |
| DATE DELIVERED: | 4 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 4 - 6 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Waterman |
| SOLICITORS FOR THE APPLICANT: | Neumann & Turnour Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lynch |
| SOLICITORS FOR THE RESPONDENT: | Noosa Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Family Law Solutions |
Orders
No orders to issue at this point in time. Further submissions to be made.
IT IS NOTED that publication of this judgment under the pseudonym Jackey & Lyone is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC4670 of 2007
| MR JACKEY |
Applicant
And
| MS LYONE |
Respondent
REASONS FOR JUDGMENT
The parties’ child is five years old. His mother, Ms Lyone (“the mother”) wants him to live with her in Switzerland. His father, Mr Jackey (“the father”) wants him to remain with him in South East Queensland.
The issue I have to decide is whether the child is to live in Switzerland or Australia.
BACKGROUND HISTORY
Father
The Applicant Father is forty-one years of age. He was born in the United Kingdom. He came to Australia with his parents when he was three months old. I note the child came to Australia with his parents when he was about five months old.
In early 1994 the father commenced work in IT in Switzerland. He has dual British and Australian citizenship. In a family report prepared by Ms M dated 25 March 2008 (paragraph 25) whilst interviewing the Applicant Father she recorded the following:
“25.[The father] asserts that he cannot return to live in Switzerland and gain a work permit unless the company he works for is able to prove that a Swiss national could not do his job. He doubts that this is something that his company could prove. [The father] further asserts that he does not wish to live in Switzerland as his home and his family are in Australia.”
In the same report in paragraph 33 Ms M records:
“33.[The mother] is of the view that there is no reason why, if [the father] wanted to experience an ongoing relationship with [the child] that he could not live and work in Switzerland as “every European passport holder can live and work in Switzerland”.”
I accept that the Applicant is the holder of a United Kingdom passport. I am inclined to the view that he would not have any difficulty working in Switzerland if he elected to do so. Annexure S19 to the Mother’s trial affidavit appears to be a download of an official website from the Swiss government. The terms of that document would indicate (at page 2) that EU nationals still need to obtain a work permit to work in Switzerland but have the same opportunities on the labour market as Swiss nationals.
The documentation annexed would appear to support the Mother’s statements to the report writer.
I accept that the father has built his house in T, his father visits on a regular basis and the child sees his paternal grandmother every three to four weeks.
At the current time he is a resident of Australia for income tax purposes. He continues to work for the company in Switzerland he was employed by prior to his departure in early 2003. His work currently takes him to Switzerland about four times a year for a period of two weeks at a time. Whilst in Australia for the remainder of the time he says he is required to work about two to three hours per week for the company. He receives $66,000 per year and his employer pays his air fares to travel from Australia to Switzerland return. He has considerable flexibility as to the times he wishes to travel to Switzerland for work purposes.
Mother
The mother is forty years old. She was born in Germany. Her eldest child, L, was born there in 1989. The mother says L’s father did not want anything to do with her and as a result L has never had any form of communication with him. She was assisted with the care of L by a step father figure who was some ten years older than the mother. She says they were not in a relationship. L spent some months with her surrogate father in Europe prior to her arrival in Australia in mid-2003.
From 1997 to 2003 the mother was living in Switzerland. She formed a relationship with Mr Z and as a result of this relationship her son, Y, was born in 1998 in Switzerland. After a period of time this relationship ceased. She says Y continued to see his father on a regular basis after the separation.
In December 2001 whilst working at a hotel in Switzerland, she met the father.
The mother says she and the father commenced living together in January 2002. (Refer Mother’s affidavit filed 3 July 2008 paragraph 5). The father says they were not residing together until August 2002 at which time they were married in Switzerland. As I understand the evidence the father was in Zurich and the mother was in Basel during the period from January until August. It is likely they spent their free time together. Whether their relationship during this period could be described as “living together” is not important.
The child was born in Switzerland in December 2002.
In May 2002 the mother completed her studies and became a qualified alternative health therapist. She says (paragraph 9 of her affidavit filed 3 July 2008):
“9.[The father] expressed his strong desire to migrate back to Australia where all his family were living.”
In November 2002 just prior to the birth of the child the parties acquired a vacant block of land at T (in south east Queensland) of about 170 hectares.
In April 2003 the father, the mother, Y and the child arrived in Australia via a visit to Cuba and California where they saw the mother’s sister.
In October 2003 the Queensland State Central Authority under the Hague Convention forwarded to the Mother an application for access between Y and his father (refer annexure “S16” to the Mother’s affidavit filed 3 July 2008). The covering letter from the Central Authority dated 1 October 2003 was in the following terms:
“As per our telephone conversation please find attached Mr [Z’s] application for access with [Y]. These are the formal documents that will be given to the Court, if this matter were to proceed in this way. I will not be giving them to the Court at this stage as you have stated that you are agreeable to contact. I am passing them on to you for your information only. I look forward to your proposal.”
On page 8 at paragraph 4.2 of the application the address of Y is given as “unknown”. The arrangements proposed set out on page 11 were for two week periods of contact twice per year. An agreement was reached in these terms.
Some months after the parties arrived in Australia, L joined them and commenced her schooling. The parties built a house on the T land. During construction they resided in a tin shed which they had earlier built.
From 20 June 2004 to 3 September 2004 the mother travelled overseas. For most of this period she was accompanied by the father and the three children. The father and L returned first from the overseas travel whilst the mother and her two sons came back on 3 September. The mother gave evidence that Y spent about ten to twelve days with his father in Switzerland during this trip. The trip was not confined to Switzerland but included a number of other countries.
Three days after the Mother’s return the parties separated.
History of Litigation After Separation
In December 2004 interim orders were made in the Federal Magistrates Court permitting the Mother to travel overseas in the December 2004/January 2005 period with the child. Her interim application to be permitted to relocate to Northern New South Wales was dismissed. The Mother’s application to relocate appears to have been motivated by a belief that she would have greater opportunities for employment in that area.
In November 2005 a Federal Magistrate determined the issue of property settlement and dismissed on a final basis the Mother’s application to relocate. This was done by the making of an order restraining the Mother from relocating the residence of the child outside the T geographical area (refer paragraph 50 of reasons – exhibit 9).
In October 2006 the Mother filed an application to be permitted to relocate to Europe. In December 2006 this application was summarily dismissed by Federal Magistrate Jarrett relying on the principle established in Rice v Asplund.
The above information was obtained from the chronology produced by the Respondent’s Counsel, from the contents of exhibit 9 (paragraph 49 and 50 in particular) together with passages of the parties’ trial affidavits.
Orders Sought By Applicant Father
On 18 April 2007 the Father filed the current application. He sought week about shared care together with a variety of other orders.
In his amended application filed on 10 June 2008 he sought the following orders (in summary form):
· That the child live with the parents on a week about basis with the changeover to occur at school on Monday mornings.
· Equal shared parental responsibility.
· Particular orders for Mother’s Day and Father’s Day.
· Orders for equal time for school holiday periods.
· That the child be known by the name shown on his birth certificate.
· The Mother be restrained from relocating the residence of the child further than 75 kilometres from the Father’s residence without the Father’s written consent.
The Father then sought orders in the alternative in the event the Mother were to relocate to Europe that he have sole parental responsibility and that the child live with him.
Orders Sought By Respondent Mother
In her amended response filed 30 June 2008 (replicated in the Mother’s proposals contained at page 4 of the case outline) the Mother seeks orders that she be permitted to relocate with the child to Switzerland. She proposes that the Father spend time with the child for up to three week periods every eight to ten weeks while the Father is in Switzerland for work. She proposes in addition that the Father have half of the Swiss school holidays if he is in the country at the time and four weeks of the six week summer holiday period with the child if he is in Switzerland. Reasonable telephone contact not less than one call per week with the Father to initiate the call. Changeovers to be at the Zurich International Airport.
Switzerland Relocation Not Permitted
The Mother proposes that if she is not permitted to relocate that the child live with her and spend time with the Father every week from Friday 2.40 pm to Monday 8.35 am with changeover to be at school. All reasonable telephone contact not less than one call per week with the Father to initiate the call.
Conduct of Hearing
The hearing proceeded over three days in early August this year. It was always the Father’s position that if the Mother was permitted to relocate to Switzerland he would remain in Australia but would see his son on a regular basis as he travelled to Switzerland several times a year in connection with his employment. His reasons for choosing to stay in Australia were that he had built the house in which he resided and he saw his parents on a regular basis.
Until the final day of the hearing the Mother refused to be drawn as to what she would do in the event the ruling was that the child should remain in this country despite seeking orders in the alternative in her amended response that the child reside with her and see his Father each weekend. On the final day she indicated she would be returning to Switzerland regardless of whatever decision was made.
WITNESSES
Father’s Witnesses
In the Applicant Father’s case he was the only witness. He relied on affidavits filed on 18 April 2007 and 27 June 2008.
Mother’s Witnesses
The Mother relied on an affidavit filed on 3 July 2008.
Mr K - a friend of the Mother residing in Switzerland deposes in his affidavit to hearing the Father say the move to Australia would be “on a trial basis”. This witness gave evidence by telephone link.
Ms B- a friend of the Mother residing in Switzerland. In her affidavit filed 8 July 2008 she deposes the Father gave assurances that they could all move back to Switzerland “if [the mother] or the children do not like Australia.” She also confirms the Mother’s evidence that the mother could work in her business.
The mother’s sister - who resides in Germany. Her affidavit was also filed on 8 July 2008. She was not required for cross examination on the understanding that no point would be taken that her evidence was not challenged. Her evidence is of the Father giving assurances that the parties could return to Europe.
Independent Children’s Lawyer’s Witnesses
The Independent Children’s Lawyer read a report from Mr R annexed to an affidavit filed 30 August 2005. Mr R was not required for cross examination.
Ms M. Ms M had prepared two family reports of the 25 March 2008 and 1 August 2008. She was required to give evidence and was cross examined as to the contents of her reports.
Affidavit of Alexandra Brunswick – the Independent Children’s Lawyer. To this affidavit the Independent Children’s Lawyer has annexed correspondence with the school the child the child attends.
Report of Mr R
I propose to commence a consideration of the evidence with an examination of the three family reports. By any measure this is the most objective assessment of the parties themselves and of the dynamics of their relationship with their son. The report of Mr R is to some extent of historical interest only dated as it was in July 2005 when the child was only two and a half years of age but I am assisted to the extent that his observations are consistent with the observations of Ms M and observations made by myself as to the behaviour of the parties.
At paragraph 5 (last sentence) and paragraph 6 of his report he notes:
“….After the birth of [the child] the parents decided to relocate to Australia, doing so in March 2003. [L] decided not to join them at that time but she eventually did so in July of that year.
6.It is contentious as to why the couple moved to Australia. [The mother] states that it was [the father’s] idea to and that she only acquiesced under his emotional pressure, while he maintains that it was her idea. Whatever the facts the relevance of this dispute is that [the mother] asserts that she was duped to come to Australia and is now trapped in a country in which her credentials are not recognised and she can barely support herself.”
I do not accept the account given by the Father that, “it was her idea” to migrate to Australia. The Mother may have acquiesced in the plans with or without emotional pressure but I believe the Father would have been the moving force. The Mother’s witnesses Ms B, Mr K and the her sister all corroborate the Mother’s account of the Father giving assurances that if she was not happy with the move they could return to Europe. I find it is likely that such statements were made in one form or another. It is highly unlikely that such statements would be made by the Father if it was the Mother who was the driving force for the change in lifestyle. For reasons to be given later, whilst I am inclined to accept that the Father made such statements, in light of the changed circumstances that arose (the separation and the length of time since the parties arrived in Australia) I am not minded to place a great deal of weight on the fact that the Father gave such assurances.
In paragraph 9 of his report the report writer describes the Father in the following terms:
“9.[The father] is articulate and expressed his views concisely, albeit in a slightly fastidious fashion. He is expressive and pleasant in his personal manner.”
I accept that is a reasonable description of the Father.
At paragraph 16 he describes the Mother in the following terms:
“16.[The mother] is expressive and succinct in her views. She worried that her German accent might impede the interview, however she is fluent in English and no problems arose. She appeared anxious but was not overtly emotional in manner.”
I note that for the third family report the Mother requested a German interpreter. She had not required an interpreter for the two previous reports in July 2005 and March 2008 nor had she requested an interpreter for any of the previous Court hearings. It seems it was more a measure that she did not trust the report writer Ms M in view of the contents of her first report that led to her requesting the interpreter rather than a reflection of her inadequacy with English as a second language.
At paragraphs 21 and 22 of his report Mr R observes:
“21.[The mother] had trouble expressing her main issues in relation to [the child], and this did not appear to be caused by a language or cultural gap. She expressed significant anxiety over her future financial wellbeing, stating, “I was always thinking how can I survive?” Her credentials are apparently not recognised in Australia, leaving her wondering how she can support herself other than living on welfare. She has considered a number of options, including moving to [New South Wales] where she considers there would be more opportunities for her work, or returning to Germany to live.”
22.She would not consider returning to Germany without [the child] but considered restrictions on their return, “against human rights and like living in exile”. Also, [L] wishes to remain at her current school and, “that held me back”. [The mother] feels that she is “trapped” in Australia without financial support and she reiterated this anxiety repeatedly throughout her interviews. She could give no clear plan as to where she might wish to move.”
At paragraph 28 of the report Mr R notes:
“28.This emotional gap between the couple reasserts throughout their history. Whereas there is little that they do agree upon, even for example over the reason for coming to Australia, it is one common theme that [the father] insists that [the mother] was emotionally cold and demanding and that he bore the brunt of her rejection of him and the children throughout the marriage, this in sharp contrast to her description of him as emotionally unstable, “crying at the drop of a hat” and seemingly depressed.”
I accept it is a recurring theme throughout the evidence of the Father being perceived as emotionally vulnerable and the Mother being seen as emotionally distant.
At paragraph 33 of the report the observation is made:
“33.The fact that [the mother] – who does not present as a passive woman – would marry [the father] when he was behaving so oddly and treating both of her children so poorly, to the extent of instigating conflict with [Y’s] father and forcing [L] to leave her care, is difficult to fathom in entirety. Additionally she describes the decision to migrate to Australia as one which she passively accepted after the wedding and only because of some feelings of pity for her husband, who appeared depressed and in need of family support.”
I accept the force of these observations by the experienced report writer.
I note that at paragraph 66 of the report (first sentence) the report writer stated:
“[The mother’s] proposition that she made the move (to Australia) to satisfy her husband, who allegedly demonstrated severe signs of depression, is possible but on balance I consider it less than probable.”
I am inclined to accept the report writer’s observations and conclusion in this regard.
At paragraph 47 of the report in observing the child Mr R notes:
“47.[The child] is a normal and happy little boy. Arriving with his mother, his brother [Y] and his sister [L], he was happy and robust in his interactions with them and adapted to the change between his parents easily. The atmosphere was different for [the child] with each of his parents. With his mother he oscillated between sitting with her or playing with [Y]. With [the father] it was one on one time together and [the father] was extremely attentive in his interaction.”
I have no reason to doubt the contents of Mr R’s report.
First Family Report – Ms M 25 March 2008
At paragraph 10 this report Ms M records employment opportunities to be the primary reason for the Mother wishing to relocate. There is an inconsistency in the Mother’s position in wanting to move to New South Wales where she considered there would be more opportunity for work and her claim that her qualifications are not recognised in this country. I expect the answer (in part) lies in the fact that to work in alternative healthcare no qualifications are necessary in these fields in this country.
At paragraph 21 she records the Father’s opposition as relating to:
“The close relationship that they both enjoy would be significantly diminished.”
“He asserts that any time [the mother] has any opportunity to avoid or minimise the time that [the child] spends with him difficulties occur. If [the child] was to live in another country he believes these difficulties would be amplified.”
At paragraph 27 she makes her observations of the Mother in positive terms:
“[The mother] was open, friendly and co-operative with the interview process. She is fluent with the English language and no problems were encountered during discussions. [The mother] impresses as an intelligent, determined and strong willed lady who possesses clear and succinct views in regard to this dispute.”
After paragraph 38 she canvasses the Mother’s concerns that the extended time that the child is currently spending with his Father is resulting in, “The separation of the siblings.”
She (the Mother) is reported as saying she believes, “The most important person in [the child’s] life is [Y] (as opposed to his parents)”. In the final sentence of paragraph 38 Ms M notes:
“[The mother] is clear that she “doesn’t share the view that the parent/child relationship is greater than the sibling relationship”.”
In her oral evidence the mother denied making statements in those terms. I prefer the report writer’s version.
At paragraph 45 Ms M records:
“45.[The mother] does not openly acknowledge that [the child] loves his father and tends to minimise their relationship with comments that, “He is the sole focus of attention there” or, “[the father] takes him to Movie World - - I can’t afford that.” [The mother] acknowledges the validity of the maxim that a child has a right to enjoy a relationship with both parents. However, at a deeper level I am not convinced that she has internalised this validity.”
At paragraphs 47 and 48 Ms M notes:
“47.I observed [the mother’s] interactions with [the child] to be appropriate and natural. On the basis of my observations and whilst I have no doubt that she loves her son, I came to a view that [the mother] is not spontaneously and overtly affectionate with [the child].”
48.Observations of the interactions between [the child] and his father indicated an emotionally expressive, warm and spontaneously mutual affection between them. It is very clear that they both enjoy each other’s company.”
At paragraph 54 Ms M notes:
“54.I formed a clear view that [the father] is the more emotionally and physically expressive parent to [the child] and if the times they were to be able to spend together were significantly reduced [the child] would experience this as a significant emotional loss.”
At paragraph 64 Ms M provides an excellent summary of the difficult situation confronting the Court:
“64.Essentially it would seem the decision in this dispute hinges upon the credibility of each parent’s position in this dispute, and whether, on balance, the likelihood of the risk of the Mother’s potential increased emotional/financial stability should she relocate with [the child] to Switzerland outweighs the certainty that the relationship between [the child] and his father will be significantly diminished. Whilst [the mother’s] quality of life might be enhanced by moving to Switzerland with [the child], and whilst [the child] would maintain a day to day relationship with his brother, I am not of the view that [the child’s] quality of life would be similarly enhanced. I base this upon the significantly diminished relationship with his father, his grandfather, and the upheaval of his living arrangements and the stability of schooling. As such I am unable to support [the mother’s] application to relocate to Switzerland with [the child].” (Underlining not in original).
Ms M’s Second Family Report Dated 1 August 2008
This interview was conducted with the services of a German interpreter when Ms M was interviewing the Mother.
In seeking to correct what she perceived as misrepresentations or omissions in the first report the mother queried how the report writer could have, “Assessed her interactions with the child”, as she (the mother) only spoke German to the child when being observed by Ms M in March. The report writer notes that she does not recall this statement as being, “Factually correct.” I am of the view an experienced Court report writer could observe the nature of the interaction between the mother and child even if such exchange was taking place in a foreign language. However I am inclined to accept Ms M’s recollection that the interaction occurred in English.
At paragraph 29 of her report (last sentence) Ms M notes:
“I formed a view that [the mother’s] personality is such that she is more inclined, or comfortable, with seeing issues in black and white and without any shades of grey.”
At paragraphs 33, 34 and 35 of her report she records the following:
“33.I informed [the child] that his parents were unable to agree as to which of them he would live with and asked him if he had any ideas. [The child] readily responded, “I want to stay with papa”. I asked [the child] whether he missed his mum when he was with his dad and he replied, “Sometimes”. I then asked the question in reverse and in terms of missing his dad whilst at his mum’s he replied, “Sometimes”. I think such a response was appropriate and reflective of his thoughts.
34.When asked who gave him, “the best hugs” [the child] responded, “Papa”.
35.I later returned to question as to whether [the child] had any particular thoughts about his living arrangements he responded, “I want to live with papa”. I asked if he was sure about that and he replied, “Yes”. I asked him if there was any reason he did not wish to live with his mother and replied (sic), “She pulls my hair…I don’t like it”. I asked [the child] if he was kidding me and he quietly and firmly replied, “No”. [The child] then became silent, turned away and began quietly playing with some toys in the sandpit. I understand [the child’s] demeanour to indicate that he did not wish to discuss this latter comment.”
At paragraph 42 she notes:
“42.I am of the continuing view that, at a deeper level, [the mother] possesses vulnerability in terms of a compromised capacity, or motivation, to facilitate [the child’s] relationship with his father. [The mother] has an entrenched negative view of [the father] and I remain unconvinced that she would actively facilitate the father/son relationship. –”
At paragraphs 46, 47 and 48 she summaries the basis for making the recommendations that she does:
“46.On the basis of my observations, comments by both parents, and interview with [the child] I remain of the view that he has a strong attachment with each of his parents. However, it is now my assessment that [the child’s] primary attachment is with his father. It is my increasingly clear view that [the child’s] reciprocal attachment and relationship with his father is a significantly more physically and emotionally expressive relationship than that he has with his mother. [The father] is an intuitively nurturing parent and [the child] is the beneficiary of this nurturance. Emotional and physical nurturance is of vital importance to a developing child and is an important building block upon which a child’s self worth and self esteem is founded.
47.If [the child] was not able to continue to enjoy a regular ongoing relationship with his father he would experience this as the loss of his primary attachment figure and this would have negative ramifications for his emotional development and wellbeing. This is particularly pertinent given his young age.
48.On balance, and within the framework of two plausible competing arguments by the parents, I am not convinced that there is not a risk to [the child’s] relationship with his father being compromised should he relocate to Switzerland with his mother. I am therefore not able to support [the mother’s] request that [the child] relocate with her to Switzerland. I am of the view that the more stable option in this dilemma is for [the child] to maintain his current stability in Australia.”
Transcript of Cross Examination of Ms M
At page 3 of the transcript in the course of examination by Counsel for the Independent Children’s Lawyer she stated:
“I don’t see the mum actively promoting that relationship with [the child] – She has fairly negative views of dad and I am not sure she would actively promote a positive image.”
At page 5 of the transcript the witness was asked what effect there would be on the child if the Mother went to Switzerland with Y. She replied:
“He would suffer separation, you know his relationship with his mum would be fundamentally altered as well because he would be over here, she would be over there - -”
Shortly after that in her evidence she said:
“I have no doubt about the attachment with [the child] and his dad. It is very strong. It is emotionally and physically affectionate and dad is very attentive to him. Yes, it is actually a joy to observe them together which you can’t say very often in these disputes.”
When cross examined by Mr Waterman she confirmed that it was her view that it was not in the child’s best interest to relocate to Switzerland with his mother and she was very firm in that opinion.
Evidence of the Parties
I do not propose to quote from the evidence of the parties or their witnesses as set out in their affidavit or their oral evidence in Court.
As previously noted I do not intend to place great weight on the assurances given by the Father to the Mother prior to the move to Australia that they could return to Switzerland if things did not work out in Australia.
As noted earlier, to the extent that such assurances were given, they were given in an expectation the family would remain intact. It is likely such assurances were not intended to be open ended as to time. It is now five and a half years since the parties arrived in Australia. The child is at school, a house has been built and L is at university. Because of the time factor and my interpretation that the assurances did not envisage a marital separation I do not intend to place great weight on this aspect of the evidence.
Credibility of the Parties
I have made note of a number of areas where the credibility of each of the parties may be questioned.
In relation to the Father that evidence includes his claim that it was the Mother who was suggesting the relocation to Australia from Switzerland. The Father’s claims to the report writer that he would have difficulty being permitted to work in Switzerland was not factually correct. Whether this was deliberate I am unable to say. In the Mother’s case it includes her claim that she did not have mobile phone reception at her residence. The report writer had no difficulty communicating with her by mobile phone. The significance of the evidence about the mobile phone relates to the Father’s complaint that he found it difficult to have phone communication with his son.
An important finding I am prepared to make is that the Mother does not value the father/son relationship. The evidence is redolent with examples of this behaviour particularly in the reports of Ms M.
Examples include:
·The very limited time she originally proposed the Father spend with his son. This was three hours twice a week until Orders were made by the Federal Magistrate in December 2004.
·Not permitting the Father to take the child to New Zealand notwithstanding the terms of the Court Order of 2 November 2006 until he filed and served an urgent application (refer paragraph 33 of Father’s affidavit filed 18 April 2007).
·Requiring the Father to sign an undertaking he would not allow the child to associate with two friends … and …. When he refused to agree to the Respondent’s demands he had no contact between 14 March 2007 and 28 May 2007. It was during this period on 18 April 2007 that the Father filed the current application. The first return date was the 28 May 2007. It was at that time that he once again commenced seeing his son.
·Judicial Registrar Forbes made a finding the Mother contravened one of the Orders as detailed by him in reasons he delivered on 27 September 2007.
·The Mother threatened to reduce the Father’s time with his son unless he signed a statement in relation to ownership of a particular motorcycle. Whilst the attitude of the parties may be likened to a Mexican standoff with each being somewhat bloody minded on this aspect, the Mother’s threats were totally inappropriate.
·The Mother moved to N, a distance of some 35 - 40 kilometres from the Father’s residence the day prior to the decision by Federal Magistrate Jarrett on 19 December 2006.
·It was the Father who agreed to the children attending a school proximate to the Mother’s residence which necessitated him being involved in a considerable amount of driving. He could have pressed for an option that the children attend a school mid-way between the two residences.
·The Father’s evidence of the Mother restricting his phone communication with the child.
Another example of where the Mother’s credibility was in issue was when she made an allegation that the Father had withdrawn his migration sponsorship. The Mother was in possession of a letter from the Department of Immigration which would indicate that this was the fact. However, it appears that she also had access to a letter the Father had written to the Department of Immigration which revealed that this was not the case. The Mother’s allegations against the Father were at best careless, at worst deliberately misleading.
I found the Mother’s evidence in relation to the motorcycle – the repair and future sale of same to be convoluted and unconvincing.
Law To Be Applied
In Bale v Jenkins 2007 FamCA 809 the Full Court (Finn, Warnick and May JJ) was dealing with an international relocation case determined after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. In that decision the Court noted (paragraphs 61 and 62):
“61.In this case it is only necessary to summarise the relevant statutory provisions and principles in respect of relocation matters. As already indicated, the trial Judge considered the relevant provisions of the Act and the remarks of the Full Court of the Family Court in A v A (supra) and H v L (supra).
62.The principles to be applied in the determination of a proposal to relocate the residence of a child are those summarised by the Full Court in A v A (supra), which clarifies the steps to be taken by a trial Judge determining a case of this kind. The relevant guidelines to be considered by the Court commenced at paragraph 108 as follows, with emphasis from the original judgment:
“In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it’s not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.”
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
·It is necessary to following the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2.For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b)The importance of a party’s right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposals is preferred by a court.”
Section 60CC of the Family Law Act sets out the factors to which a Judge must have regard in determining what is in a child’s best interests. The section is in the following terms:
“60CCHow a court determines what is in the child’s best interests
Determining the child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
a.the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b.the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
a.any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
b.the nature of the relationship of the child with:
i. each of the child’s parents; and
ii.other persons (including any grandparent or other relative of the child);
c.the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d.the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i.either of his or her parents; or
ii.any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e.the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
f.the capacity of:
i.each of the child’s parents; and
ii.any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotion and intellectual needs;
g.the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h.if the child is an Aboriginal child or a Torres Strait Islander child:
i.the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii.the likely impact any proposed parenting order under this Part will have on that right;
i.the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j.any family violence involving the child or a member of the child’s family;
k.any family violence order that applies to the child or a member of the child’s family, if:
i.the order is a final order; or
ii.the making of the order was contested by a person;
l.whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m.any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs 3(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
i.to participate in making decisions about major long-term issues in relation to the child; and
ii. to spend time with the child and
iii. to communicate with the child; and
(b) has facilitated, or failed to facilitate, the
other parent:
i.participating in making decisions about major long-term issues in relation to the child; and
ii.spending time with the child and
iii.communicating with the child and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4(A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
The Position of the Parties
In view of the change of position of the Mother on the third day of hearing the options appear to be that the child will:
(a)reside with his father in the T area and will see his mother periodically when the Father takes him to Switzerland. It would not be difficult for the Court to ensure that the Father complied with any directions in this regard. The Mother makes no offer to assist in contributing to the child’s air fares. Presumably the Mother at that stage would be working full time and earning a reasonable income. Regardless of airline policy (there was no evidence on this aspect) I would find the child is too young to travel unaccompanied. No order was sought in this regard but if the child remained in Australia there would be no prohibition on the Mother visiting him here periodically if she wished to do so. In view of the frequency of the Father’s travel to Europe this scenario would be unlikely. The Father it seems is able to organise his travel to Switzerland at times convenient to him. I would envisage it would not be difficult for him to arrange such travel during Queensland school holiday periods.
(b)reside in Switzerland with his mother and his brother Y and see his father when the Father is able to travel to Switzerland which is approximately four times a year for work purposes. The down side of that is that for the most part when the Father is in Switzerland he would be working. The Father would presumably be able to stay on and spend time with his son prior to or on the completion of his work commitments. It is likely that he could organise such travel to coincide with the school holiday periods in Switzerland. The Mother may permit the child to return to Australia during the European summer holidays. This would necessitate the Father on completion of the holiday period returning with him to Europe. This would not be an insurmountable difficulty in view of the flexibility of the Father’s work travel arrangements.
Regardless of the decision made Orders can be made to allow regular phone communication as well as “Skype” type communication via the Internet.
Section 60CC(2)(a) The Benefit to the Child of Having a Meaningful Relationship with Both of the Child’s Parents
I accept that at the present time the child has a meaningful relationship with each of his parents. Ms M has expressed the opinion the child’s primary attachment is to the Father. I am prepared to find that this is so. Ms M’s evidence on this aspect was not seriously challenged in the course of cross examination.
If the Court finds in the Father’s favour the Mother will return to Switzerland with her son Y. There is no evidence as to what her daughter L will do but she is at or near adult status. Seemingly she is in a relationship with a young man in this country. She has embarked on studies at James Cook University in North Queensland. She has taken out Australian citizenship. It is a reasonable probability that L will remain in Australia.
If the Court finds in favour of the Mother, the child will undoubtedly miss his father. Ms M assesses the loss to the child of the relationship with his father would be a greater detriment to him than the loss of an ongoing relationship with his mother and brother. This is how I have interpreted her evidence. It is a difficult assessment for anyone to make but that is the evidence before the Court.
The impasse could be resolved by either parent placing the interests of the child above his/her own interests.
At a very late stage in the proceedings the Mother indicated she was not prepared to stay in this country if the Court does not permit the child’s relocation.
The Father could reside and work in Switzerland but to do so he would have to give up the home he has built as well as his and the child’s ongoing relationship with the paternal grandparents, particularly the paternal grandfather.
In the event the Father was to reside and work predominately in Switzerland there is no evidence whether his employer would be prepared to pay for any travel to Australia for the Father. The Father at all times I expect would remain responsible for the major share of the child’s air fares. Such travel would allow the child to maintain a relationship with his paternal grandparents.
I proceed on the basis the terms of the Father’s employment with his employer would not alter namely he only has to work full time about ten or twelve weeks per year and thereafter a few hours each week. If the Father was to live predominately in Switzerland any decision would be a matter for the Swiss Courts but I expect with the Mother working to support herself the Father would be in the better position to have the primary care of the child as he would be more available to him. Such speculation is academic as the Father has said he does not intend to relocate. I accept his evidence at face value. His reasons for remaining are as stated and are not unreasonable.
There is scant evidence on the subject but I have assumed the Father could reside/work in Switzerland without any visa problems. The Mother has permanent residence status in Australia and could live and work her without restriction if she chose to do so. I do not for one moment accept that the Mother’s employment must be limited to her chosen field of alternative healthcare.
I find the Mother’s reasons for relocation less compelling than the Father’s reasons not to relocate, but the difference is marginal.
The Mother says she wishes to pursue employment opportunities and is confident of secure employment on a good income in Switzerland. Her evidence in this regard is corroborated by Ms B.
There is no evidence before the Court the Mother could not establish a business offering services in alternative health therapies in an Australian context. The Mother presents as an intelligent, healthy, well presented woman, well able to be employed or establish her own business in her particular field. The fact she has painted on her motor vehicle her mobile number under a sign advertising her services is evidence she considered she was able to seek work in this field. The Mother’s answers when questioned on the sign on her car were not convincing. There is no evidence the Mother is prevented from working in her chosen fields in this country.
Section 60CC(2)(b) The Need to Protect the Child from Physical or Psychological Harm from Being Subjected to or Exposed to Abuse, Neglect or Family Violence
The child is not at risk of physical harm. There was one incident involving the neighbour’s children where the child was struck by a piece of flying elastic. I am satisfied this incident was accidental and part of the normal rough and tumble of young boys’ games.
There is evidence in the second family report of the child complaining that the Mother pulled his hair. The Mother denied this had taken place. I am not prepared to find either party has engaged in inappropriate physical harm to the child.
There is a risk of psychological harm to the child only in the sense that both parents have developed an intransigent position. The result of this is the child will inevitably be separated from one of his parents which will lead to a degree of emotional hurt which may have consequences later in life.
The view that I have formed is because the Father has a considerable amount of free time on hand, has the support of his parents and has an ongoing commitment to devote his attention almost exclusively to his son’s needs the child will cope better with the inevitable separation if left in the care of his father at a time in his life when he will desperately need stability. It is my assessment the Father is in a far stronger position to ensure such stability. An additional factor to be considered is the Father does not display the same level of hostility towards the Mother as she exhibits towards him.
At paragraph 124 of his affidavit filed 18 April 2007 the Father summarises some of the difficulties he has had:
“124. Since the final orders dated 2 November 2005 I have had to bring two interim applications to allow me to take [the child] outside of Australia, one to go to Switzerland and the other for a holiday in New Zealand. Despite the Court proceedings that [the mother] brought and which were listed before Federal Magistrate Jarrett on 19 December 2006 [the mother] moved the day before to a forty-five minute drive away to [N], which made life much more difficult in terms of travel and education issues.”
When the matter first came before me there was an impasse between the parties as to which school the child would attend. Would he attend a school in the Father’s general vicinity or in the N area or some school in between the two residences? It was the Father who made the decision that the child could go to school in the N area and he would undertake to do the driving. It seemed a generous concession on the part of the Father at the time.
Telephone Communication
In paragraphs 172, 173 and 174 of his 2007 affidavit the Father details the difficulties he has had with telephone communication with his son:
“172.I have had difficulty with telephone communication despite paragraph 4(c) of the Order dated 2 November 2005. When [the child] is staying with me, I let [the mother] call him and speak to him regularly. [The mother] rings not less than once per week and it is not a fixed day. When [the child] is with [the mother], in accordance with the Order I am permitted to telephone him between 6.00 pm and 6.30 pm each Monday. It usually takes me three or four goes to get through to [the mother]. She tells me she doesn’t have a landline, only a mobile phone. The reception is now worse at [N] than it was [in the T area]
173.When I am on the phone with [the child], after a couple of minutes he tells me that, “Mama says that I have to go” so I have to go but I can hear [the mother] in the background telling him to hang up. I am usually not permitted to speak to him for more than three minutes. On occasions I heard him upset because [the mother] has stopped him from speaking with me.
174.On Monday 9 April 2007 I telephoned [the child] and spoke to him, and he started crying. Within a matter of twenty seconds the phone was hung up.”
I note the Mother’s evidence that in June of 2008 with the assistance of Y’s father she had a landline installed. Presumably this improved the quality of the telephone communication. There is no evidence that it improved the length of time the Father could spend talking to his son.
Section 60CC 3(a) Any Views Expressed By the Child
The child’s views have been previously quoted as found in the second report of Ms M. I accept the child is only five and a half years of age. I do not place great weight on the wishes of a child of this age but I note the expression of his wishes coincides with Ms M’s assessment of the Father being the child’s primary attachment.
Section 60CC 3(b) The Nature of the Relationship of the Child with:
i. each of the child’s parents; and
ii. other persons including any grandparent or other relative of the child.
I find the relationship of the child with his parents is largely as described by Ms M in her two reports. By the time of her second report she formed the view that the child’s primary attachment was with his father. She confirmed this in the course of cross examination during the hearing.
It is abundantly clear the Father is devoted to his son. He engages in a variety of activities which I expect a five year old boy would readily respond to – catching insects (Father’s trial affidavit paragraph 20), swimming and fishing (paragraph 22). The child is proficient with a computer which I expect is largely as a result of the Father’s influence. The Father takes an active interest in the child’s schooling. He is vice-president of the tuckshop committee and he is the Thursday coach of his son’s soccer team.
I accept that the Mother has likewise been active in extra-curricular activities with the child. She was responsible for enrolling him in a soccer team. She has purchased a bicycle for him and a violin. She arranges for violin lessons. To pay for the violin lessons she undertakes housecleaning work for the violin teacher.
The Mother’s stance in relation to communication with the school was more a case because of the Father’s constant interaction with the school she feels restrained in engaging in such commitment (refer Ms M’s second report paragraph 30).
“30.[The mother] was unable to state whether [the child’s] teachers had stated any views to her in relation to whether he was continuing to experience separation anxiety or whether he was continuing to wet his pants at school. She intimated that she perceives that [the father’s] involvement with the school limits her involvement and that she has not to date had an opportunity to have an in depth conversation with [the child’s] teachers. [The mother] does assert that [the child] sometimes “wets his pants” at home when with her.”
I find the Mother’s explanation as to lack of communication with the child’s teachers to be unconvincing. The Father may attend soccer training each Thursday at the school but during the weeks the child is in her care I find it difficult to believe that the Father would be attending for tuck shop duties on every single day. It would be a simple enquiry for the Mother to make to ascertain a time when the Father was not attending at the school and she would be in a position to attend. Regardless of whether the Father was at the school I fail to see why this would inhibit someone with the strong personality of the Mother from attending to talk to the teachers either before or after school or at a time of parent/teacher interviews.
The Child’s Relationship with the Paternal Grandparents
I accept the evidence the child has an established relationship with his paternal grandparents particularly the paternal grandfather. It is somewhat unfortunate they were not called as witnesses. No explanation was forthcoming as to why this was the case.
The Mother says she has a sister in Germany who has four young children. As I understand the evidence she would be some four hours drive from where the Mother plans to live in Switzerland. The Mother says she has a brother and other family members in Germany and friends both in Germany and Switzerland.
It is likely that the child has had very little opportunity to relate to his maternal cousins or his maternal aunt and uncle. I accept this relationship could develop but the price to be paid would be the diminution in the relationship with the paternal grandparents.
With the Mother asserting that she has family support and friends both in Switzerland and Germany it is curious that in August 2002 Y accompanied the applicant and herself on their honeymoon to Spain. In the Mother’s affidavit at paragraph 14 she states:
“14.[Y] had nowhere else to go and had never been away from me for so long.”
[Y] would have been four and a half years old at the time.
In paragraph 58 of her trial affidavit she details the availability of friends and family. I would have expected that such friends and family including the maternal grandparents would have been available in August 2002 to care for Y while the Mother was on her honeymoon.
60CC(3)(c) The Willingness and Ability of Each of the Child’s Parents to Facilitate, and Encourage a Close and Continuing Relationship Between the Child and the Other Parent
The evidence generally reflects a greater generosity of spirit on the part of the Father in promoting or encouraging a relationship with the other parent. The evidence indicates he is prepared to put aside differences and co-operate with the Mother for the sake of the child. The Mother does not seek to improve any form of communication.
At paragraph 29 of Ms M’s second family report:
“When asked outright whether she thought [the child] loved his father [the mother] responded emphatically, “Absolutely”. [The mother] was, however, then unable to acknowledge that if [the child] was to relocate with her to Switzerland that he would miss his father.”
In the course of cross examination it was put to the Mother that the child has a “special bond with his father”. She replied, “I am not in a position to comment.” It was then put to the Mother that if her application was successful it was to be expected that the child would miss his father to which she replied, “Of course”. This would appear to be the reverse of the answers that she had previously given to Ms M.
I would have serious concerns if the Mother was in Switzerland with the child that there would be no legal restrictions on her absent the Father instituting proceedings in that country or involving the Hague Convention protocols in this country. The Mother would be free to move to Germany.
If the Father has difficulty with phone communication now when the parties live less than 40 kilometres apart and the matter is before the Courts there is a much greater likelihood of phone communication producing problems if they are living 15,000 kilometres apart with no Court proceedings pending.
60CC(3)(d) The Likely Effect of Any Changes in the Child’s Circumstances, Including the Likely Effect on the Child of any Separation from: i. Either of His or Her Parents; or ii. Any Other Child, Or Other Person (Including Any Grandparent or Other Relative of the Child With Whom He Has Been Living
This has previously been canvassed.
60CC(3)(e) The Practical Difficulty and Expense of a Child Spending Time with and Communicating with a Parent and Whether that Difficulty or Expense Will Substantially Affect the Child’s Right to Maintain Personal Relations and Direct Contact with Both Parents on a Regular Basis
At paragraph 42 of the family report when being questioned as to what times the Father could spend with his child if relocation was permitted the report writer notes:
126.“42. Whilst she indicated generous amounts of time, all the onus for travel, and the expenses of such, were firmly placed at [the father’s] feet. Her views were predicated upon an assumption that [the father] could move to Switzerland permanently, that he could pay for all air fares or use “his frequent flyer points” for [the child’s] travel and to assert Qantas would not require [the child] to be accompanied on flights from Switzerland to Australia.” (Underlining not in original).
I was staggered that there was no cross examination on this issue and no independent evidence from an air line as to what the general policy is.
The child is a mere five years of age. I would find it inconceivable that a responsible parent would permit a child of this age to travel such a lengthy distance unaccompanied. Such travel almost invariably requires a change of aircraft at some point in the journey.
I shall have more to say on the Mother’s ability to contribute to travel costs later in these reasons.
60CC (3)(f) The Capacity of Each of the Child’s Parents to Provide for the Needs of the Child
The view that I have reached is the Father is in a better position to provide for the financial needs of the child. The evidence would indicate the Mother has significant debts.
At paragraph 85 of her trial affidavit she deposes:
“85.I have no resources of money, hardly any assets, no savings and not even the possibility of obtaining a loan due to my low income. I had to borrow substantial amounts of money from friends and family and am indebted a lot. I am owing $25,700 to friends here, $7,560 Swiss Francs to the Swiss Education Department (S14) and I have a current Centrelink debt of $6,364. Annexed hereto and marked with the letter “S26” is a copy of the Centrelink account statement of 6 May 2008.”
The Mother does not make reference to the $5,000 borrowed in mid-2005 from a friend in Switzerland to allow Y to travel to Switzerland to see his father.
The debt to Centrelink is being repaid at $10.00 per week.
The Mother says she would have to sell a motorcycle to raise money for her fares. She attaches a quote which would indicate that she expects to receive $14,000 on the sale of the motor cycle. She estimates the fares would be $5,000 (excluding fares for Y) and then goes on to refer to using the balance of $9,000 to re-establish herself in Switzerland. What she does not advert to is a liability to the mechanic who repaired the motor cycle who has an account for some $7,000. In addition there is a further account for the second mechanic. The Mother’s oral evidence was she did not have a quote for the repairs done by that business.
I am satisfied both parents would be able to provide for the emotional and intellectual needs of the child. It is my view that it is likely the Father would be better placed to do so because his work hours would be less and he has shown a greater dedication to the child’s needs in the past.
Section 60CC(3)(g) The Maturity, Sex, Lifestyle and Background (Including Lifestyle, Culture and Traditions) of the Child and of Either of the Child’s Parents, and Any Other Characteristics of the Child that the Court Thinks are Relevant
The Mother is concerned the child needs to be able to identify with his German heritage. In large measure this would be able to be done if the child was living in a German speaking area of Switzerland. If in the Father’s care, the child will travel to Europe on a regular basis. If with the Mother, the child would be able to have close contact with his German culture but the downside would be the loss of regular communication with his extended family in Australia.
Section 60CC(3)(h) If the Chid is an Aboriginal child or a Torres Strait Islander Child…--
Not relevant. Only relevant if child is of Aboriginal or Torres Strait Island descent.
Section 60CC(3)(i) The Attitude To the Child, and To the Responsibilities of Parenthood, Demonstrated By Each of the Child’s Parents
I have reservations about certain aspects of the Mother’s parenting. L was born in July 1989. The Mother came to Australia in April 2003. L was only thirteen years of age at this time. L was allowed to live with her surrogate father a man ten years older than her mother.
There is no evidence before the Court as to the nature of the living arrangements, whether there were any other occupants in the household and how regularly L had spent time with this person in the past.
On the Mother’s case this was done because L was not getting on with the Applicant. I would be of the view it was not the best option at the time for the Mother to decide to depart for distant lands with two young children leaving a thirteen year old daughter behind in the circumstances that she did. I note L joined the family about three or four months later.
According to the Father in 2007 L was living at her boyfriend’s parents’ home in the vicinity of his residence at T (refer paragraph 6 of father’s affidavit dated April 2007). At this time L was in grade twelve and was seventeen years of age. The issue once again was not explored in evidence. One explanation as to why a seventeen year old school girl was not living with her mother is that L continued to attend the same high school after the Mother elected to relocate to N some thirty-five kilometres away.
In the course of 2008 L was attending university in North Queensland. The Mother’s evidence was that L had recently visited her. It is not clear whether the Mother’s accommodation is a two or three bedroom apartment. If it is only a two bedroom apartment it would explain why L has not been residing with her but begs the question why the Mother did not elect to rent a three bedroom apartment even if it was not as salubrious as the one she currently occupies.
The Child Y
In relation to the child Y the evidence would indicate Y saw his father on a regular basis until the time of the Mother’s departure for Australia in April 2003. At that time Y was five the same age the subject child is now. There is a degree of confusion in the evidence but it seems the Mother either did not disclose the date of departure or altered the date of departure to circumvent any possibility that Y’s father, Mr Z, would take action to prevent Y leaving the jurisdiction.
By October 2003 the Queensland State Central Authority pursuant to the Hague Convention was corresponding with the Mother foreshadowing an application to the Court at the behest of Y’s father. The application had been signed by the father in mid-August 2003. The application would indicate the father had no knowledge of the child’s address. Why the Mother could not have forwarded a letter to Mr Z prior to August 2003 notifying him of an address and telephone number was not readily apparent.
Thereafter it appears from the Mother’s evidence agreement was reached with Mr Z that Y would travel to Switzerland twice a year at the Mother’s expense. In the Mother’s affidavit paragraph 55 she says:
“55.I do have a private agreement with [Y’s] father, [Mr Z] to bring my son [Y] to Switzerland twice a year for time with (sic). I am financially obliged to pay for his and my air fares and cannot afford to do so. The cost of only the air fares to comply with this agreement is approximately $5,100 per trip, means $11,000 per year for [Y] and myself only. I have to leave my other children in Australia as I cannot afford to take them with me. Annexed hereto and marked with the letter “S16” a copy of the procuration and marked as “S17” and flight costs paid by my friend [Ms …] in July 2005.
At paragraph 210 of the same affidavit the Mother deposes:
“210.Even though [Mr Z] pays the flight expenses for [Y] currently, this presents a financial burden for me, as I still have to pay for my air fares and expense while I am in Switzerland.”
I conclude from this that although the Mother is liable to pay Y’s fares the reality is his father does so. Whether the Mother has to repay Mr Z was not made clear.
I note that Y travelled to Switzerland in December 2004/January 2005 pursuant to interim orders made by the Federal Magistrate at the time. It appears from annexure “S17” that Y also travelled in about July 2005 and again in the second half of 2006.
I proceed on the basis that having regard to the Mother’s track record and the fact that she has made no offer whatsoever to contribute to air fares it is unlikely she would be forthcoming to assist the Father with any contribution to travel expenses in the event she was to relocate and there was an order for the child to visit periodically back to Australia.
As noted previously I propose to order the child remain in Australia in the care of his father. I will make provision for the Mother to spend time with the child in Switzerland. I propose to list this matter for further submissions on the question of what conditions, of any, should attach to such visits.
In summary my reasons for so finding are as follows:
·I am satisfied that the child’s primary attachment is with his father. There is a greater risk of emotional harm to the child if this attachment was to be broken. The child is obviously attached to his mother and brother Y and separation from them will have an adverse effect on him but not to the same extent if the close relationship with his father was impeded.
·The child is well settled in the Sunshine Coast environment generally. I expect one outcome of this decision is that the Father will relocate the child from the S State School to a school closer to his residence.
·The likelihood is the Father is able to offer a far higher level of stability and security to the child at this difficult time in his life. The child would have ongoing support from his father and paternal grandparents. He would be in the same education system. He would by and large retain friendships of children close to his home. It is likely he would continue to play for the same soccer team. His routine would be even more stable than at present as he would not be involved in changing households each week. I accept this would be equally applicable if the child was with his mother.
·If the child was to relocate to Switzerland the Mother’s vague plans appear to be that she would reside with Ms B. I assume for present purposes that this offers appropriate accommodation but the Mother with her two children would be a guest in that household. The Mother would be working full time and would need to place the children in school. There is no evidence as to what after school care arrangements could be put in place. The Mother says thereafter she would rent accommodation. The nature of such accommodation is not known. The Mother has financial difficulties which are likely to be ongoing for a considerable period of time repaying money to friends and to the Swiss authorities for education expenses.
·The child will be able to maintain a relationship with his mother and brother with regular visits to Switzerland. I assume for present purposes that the Father would be prepared to agree to arrange his visits to Switzerland to largely coincide with Queensland school holidays. The difficulty with this is two fold in that:
a.the Father would never get to have quality time with the child for holiday periods;
b.there is no guarantee that the Mother would be able to take holidays at the time the child travels to Switzerland. Both parents would be working and the child would presumably have to be placed in some form of child care.
·The Father has a greater capacity to facilitate an ongoing relationship between Mother and child. In my assessment the Father would not be obstructive in any way with telephone communications or communication by Internet. If the positions were reversed I would not anticipate the Mother would seek to alienate the child but she would do little to promote the Father’s relationship with the child as she sees no value in this relationship for the child.
·The Mother’s view that she will receive a high income in Switzerland has many hallmarks of a pipe dream, a pot of gold at the end of a rainbow. The Mother is forty years of age, she has no assets, she has no work experience. All she has is the offer to work with Ms B. She has previously worked with her for a short period of time. It is difficult to anticipate how things will eventuate with the Mother’s work plans.
Such orders are consistent with the child’s wishes.
I note that the orders I propose to make are contrary to the recommendations made by the Independent Children’s Lawyer. I have great difficulty understanding the position of the Independent Children’s Lawyer. Initially a neutral stance was taken. However, when the respondent indicated she was intending to relocate regardless of the Court’s decision the Independent Children’s Lawyer adopted a sudden about face and recommended that she be permitted to relocate with the child. In light of the opinions and recommendations of the Independent Children’s Lawyer’s main witness I found such change in attitude difficult to comprehend. I was confronted with a mother who on one possible outcome off the litigation was prepared to leave two children behind in Australia and to travel overseas with her ten year old son in the hope that the Father would bring the child periodically to Switzerland so she could maintain a relationship. I appreciate the Mother is unhappy in Australia and believes she has better employment prospects in Switzerland but her plans are not so firm as to be able to ensure the degree of stability a five year old child requires particularly in circumstances where he would be separated from a parent with whom he has a close relationship.
Other Issues
Name Change
This issue has previously been dealt with in the Federal Magistrates Court. The child’s name has been registered on his birth certificate which is to be found on the Court file. The child is to live with the Father. The parties were married and it is common practice in western culture for the child to adopt the Father’s name. I am familiar with the authorities on this issue and I see no benefit to the child in hyphenating his name as contended for by the Mother.
German Passport
I expect I have the power to restrain the Mother from seeking a German passport for the child but it is problematic whether the order could be enforced if the Mother was residing in Europe. In the ordinary course of events the Father would need to sign for a passport application. It is a matter for the Father whether he wishes to do so or not. I do not propose to make any order preventing the Mother from obtaining a German passport. I propose making an order that an Australian passport issue for the child notwithstanding the Mother’s refusal to co-operate in signing the necessary documentation.
Mother’s Ability to Contribute to Travel Costs
As earlier noted it seems to me that the Mother should be able to make some contribution to the child’s travel costs. Her principle purpose in relocating is to obtain a reasonable income. In the circumstances I fail to see why she should not pay some percentage of the child’s air travel expenses any time the Father is travelling. I expect the Father has Frequent Flyer points but the extent to which he has such points was not canvassed in evidence and was left as a matter of speculation. I will hear further submissions on this aspect.
Orders to be Made
There are several consequences resulting from the Mother’s last minute change in position when she indicated she would return to Switzerland regardless of the decision of this Court.
In his range of orders in the alternative the Father sought an order for equal shared parental responsibility in the event that the child was to be living in Switzerland with his mother.
In her draft orders the Mother makes no mention of the issue of parental responsibility.
I will need to hear submissions on what order, if any, should be made on the important issue of parental responsibility.
I will also need to hear further submissions on what time the Mother should spend with the child in Switzerland and/or Australia and what conditions, if any, should attach to such contact periods.
I will also need to hear submissions on an appropriate regime for telephone communication and what contribution, if any, the Respondent should make to the travel expenses of the child.
I propose to re-list this matter next week to receive further submissions as to the form of orders to be made. At this stage the only certainty is that there will be an order that the child is to live with the Father in Australia.
By way of assistance to the parties I set out my preliminary views on some of the outstanding issues.
Parental Responsibility
Section 61C of the Act is in the following terms:
“61CEach parent has parental responsibility (subject to court orders)
61C. (1) Each of the parents of a child who is not 18 has parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this
Act and whether made before or after the commencement of this section).”
Section 61D of the Act provides:
“61D Parenting orders and parental responsibility
61D.(1) A parenting order confers parental responsibility for a
child on a person, but only to the extent to which the
order confers on the person duties, powers,
responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish an aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.”
Section 61DA of the Act provides:
“61DAPresumption of equal shared parental responsibility when making parenting orders
61DA. (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Subsection (2) of Section 61DA does not apply in the present case.
Relevant factors, in rebutting the presumption pursuant to Subsection (4) of Section 61DA would include:
·The poor level of co-operation/communication between the parties.
·The fact the parties will be living 15,000 kilometres apart.
Balanced against these factors I note pursuant to the order of the Federal Magistrate in November 2005 there was an order for joint parental responsibility and that has been in place for the past three years.
On the issue of the Mother having time with the child in Switzerland as noted earlier in the reasons the most appropriate time would be during Queensland school holidays. I will need to hear submissions on the Father’s availability to visit Switzerland on this regular basis. The alternative is to make an order for a given number of weeks each year with the parties to negotiate on the times.
It would seem preferable for an order to be made providing for the Mother to have time with the child at all such times as the parties may agree but in the event they are unable to agree then for the order to specify full particulars of the times.
At the close of evidence at the hearing the Mother’s Counsel indicated an intention to call a friend of the Respondent who was prepared to place $10,000 in a trust account to be released to the Father in the event the child was not returned in accordance with Court orders. I will hear submissions whether such an option is still available and the views of the parties in adopting this approach. In previous cases I have dealt with where a child was to travel overseas the parent has offered an undertaking not to institute proceedings in any other jurisdiction whilst the child is in that parent’s care.
It is also appropriate for any orders to provide for the Mother to have time with the child in Australia. She may wish to come out to visit L if she remains in this country and I would have thought subject to the child’s schooling commitments the Mother should be able to spend as much time as possible in either Switzerland or Australia with the child.
For the above reasons the matter is adjourned to a date to be fixed for the taking of further submissions.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry
Associate:
Date: 4 December 2008
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