K-A & K-P
[2005] FMCAfam 62
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K-A & K-P | [2005] FMCAfam 62 |
| FAMILY LAW – Children – planned relocation by mother of one child aged 8 from A S to B – both father and mother Sudanese refugees – parties resettled in A S in 1999 and separated in July of 2001 – father has had regular weekend contact since separation – father opposed to child’s relocation as such relocation will significantly reduce child’s current level of relationship with him – mother seeks end to contact arrangement or to significantly modify contact arrangement – mother alleges father violent and emotionally abusive of her in the past – child concerned has sibling aged 3 years – evaluation of parties’ competing proposals – consideration of appropriate contact arrangements. |
Family Law Act 1975, ss.60B; 65E and 68F(2)
B and B: Family Law Reform Act (1997) FLC 92-755
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Fragomeli & Fragomeli (1993) FLC 92-393
U & U [2002] FLC 93-112
D & SV (2003) FLC 93-137
| Applicant: | B K-A |
| Respondent: | T K-P |
| File No: | DNM2243 of 2002 |
| Delivered on: | 7 March 2005 |
| Delivered at: | Rockhampton |
| Hearing dates: | 17 & 18 February 2005 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Central Australian Women’s Legal Service |
| Counsel for the Respondent: | Ms Munster |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That the child H T born 23 December 1996 live with the mother in B and the mother be responsible for making all decisions concerning the child’s long term and day to day care welfare and development.
That the father have contact to the child as follows:
(a)For one week in the mid-year Queensland school holidays in 2005 and each year thereafter;
(b)For two weeks in the December/January Queensland school holidays in 2005/2006 and each year thereafter;
(c)For one week in the September 2005 Queensland school holidays and thereafter for one week in either the March/April or September school holidays in 2006 and each thereafter;
(d)At any other times and on any other conditions as the parties may agree from time to time;
(e)By telephone on each Sunday at 7.00 pm Australian Eastern Time, with the child or the mother to instigate the call to a number to be provided by the father.
That the contact set out in Order 2(a) to (c) take place within the metropolitan area of B and subject to the following conditions:
(a)The father advise the mother in writing of the address at which he will be staying with the child during each contact period;
(b)The father provide a telephone number on which the child may be contacted during each contact period;
(c)The father advise the mother’s solicitor in writing of his intention to exercise each period of contact 21 days prior to the date on which he wishes to commence the period of contact and provide to the mother’s solicitor a psychiatric assessment in respect of his suitability to engage in the contact 14 days prior to the date on which the first period of contact is scheduled to take place.
(d)That the child be delivered and returned at the end of each contact period at contact centre within B to be nominated by the mother.
That the father and mother each keep the other informed of any major illness or accident suffered by the children when in his or her care by informing the solicitor for the other party of such illness or accident as soon as is practicable or informing the office in charge of the Contact Centre where the child is delivered and returned at the beginning and end of each contact period.
That the mother authorise the Principal of each school attended by the children from time to time to send to the father:
(a)A photocopy of each school report concerning the child; and
(b)An order form for each school photograph for the child.
That the applications herein be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT A S |
DNM 2243 of 2002
| B K-A |
Applicant
And
| T K-P |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a difficult and complicated case, largely because of the cultural background of the parties concerned. The applicant is B K-A “the mother”. The respondent is T K-P “the father”. Both were born in the strife ridden Sudan, the father in 1960 and the mother in 1970. These proceedings concern future parenting and care arrangements for one child, H T, who was born in Addis Ababa, Ethiopia on the 23rd of December 1996.
It is well known that for much of the last 50 years, the Sudan has been gripped by civil war between factions in the largely Islamic north and Christian groups in the south. It is however a large and ethnically diverse country, whose peoples follow many traditions, practise many religions and speak many different languages. The father is a Nuer. The Nuer traditionally live in the south of Sudan. The mother is Nubian. The Nuber traditionally live in the north of Sudan.
The parties are both Christian. They married each other in the Evangelical Church in Khartoum, the capital of the Sudan on 13 October, 1993. In 1994, due to religious persecution, the parties fled Khartoum and separately travelled to the south of Sudan and ultimately to bordering Ethiopia. After great privations, they were reunited in a refugee camp in Ethiopia.
As already indicated, H was born in Addis Ababa in late 1996. The father is not genetically related to her. H’s biological father is a Sudanese man, who is now believed to be living somewhere in the United States. His precise whereabouts are unknown. He has played no part in these proceedings. He has never had a relationship with H. For all intents and purposes, the respondent is the only father H has ever known. H is currently unaware of the circumstances surrounding her conception.
The parties and H lived as a family in Addis Ababa and the Sherkole Refugee Camp in the Blue Nile area of Western Ethiopia, from the time of H’s birth until November of 1999. At this time, the family was accepted for resettlement as refugees by the Australian Government. The family arrived in Melbourne on the 19th of November 1999 and shortly afterwards were moved to A S in the Northern Territory, where they have lived ever since.
H has a half sister, N R M, who was born in A S on the 27th of April, 2001. She is not formally subject to these proceedings. However, the circumstances surrounding N’s conception and birth continue to reverberate between the parties and, as a result, have great significance to these proceedings. As a result, although they are matters of great sensitivity to both parties, they cannot be excised from these proceedings. N’s father is K R M, also known as P M. He too is a Sudanese refugee, who arrived in Australia in 1999. He also was settled in A S, where he worked as an interpreter to the Sudanese community. At some time in 2000 the mother and Mr M began a liaison together, when the mother was still living with Mr K-P.
The parties finally separated in July of 2001, when N was only a few months old. The mother left the former matrimonial home with H and N and took up residence in the protected confines of the A S Women’s Shelter. She remained living in the shelter until November of 2001. She successfully applied for a Domestic Violence Restraining Order in the A S Local Court, restraining the father from approaching her. Undoubtedly this was a difficult period for all concerned and one which challenged many of the cultural assumptions of the father.
Between the time of separation and late November of 2001, the father was able to have contact to both H and N through the intermediatory agency of the A S Contact Centre. Of course, N was only a few months old at the time and as a result the contact was only for a couple of hours each time. However, in November of 2001, the mother withdrew N from this contact arrangement. The father has had no contact with N ever since.
In October of 2001, as a result of the restraining order made in the mother’s favour, she and the children concerned were able to resume residence at the parties’ former matrimonial home, situated at 24/8 E Street, A S. The father obtained alternative accommodation for himself in L Street, A S.
On the 27th of March 2002, the father began proceedings in the Federal Magistrates Court seeking the residence of H on a final basis and, on an interim basis, that he have contact to H on each weekend and to N for short periods of time during the week. The mother opposed these applications and sought on a final basis that both children should live with her. On an interim basis she wished the father to have no contact with N and proposed that the father have contact with H on alternate weekends from 10.00am on Saturday until 5.00pm the following Sunday. The mother also sought an order requiring the parties to undertake parentage testing in respect of both H and N. Ultimately, Mr M successfully applied to intervene in the proceedings.
On the 30th of April 2002, orders were made,with the consent of each of the parties, for the parties to undergo parentage testing. This parentage testing subsequently revealed that the father was not genetically related to either H or N but that Mr M was the father of N. On the 30th of April 2002, that parties also agreed that the father should have contact to H from 5.00pm on the Friday of the first week of each fortnight until noon the following Saturday and from 5.00pm Friday until 5.00pm the following Sunday in the other week of each fortnight. No orders were made in respect of contact between the father and N.
It is the mother’s case that, in the period both before and after N’s conception, the father subjected her to serious and protracted violence, which left her with no other recourse but to seek independent assistance to escape an unhappy and dangerous marriage. As a result, on the 30th of July 2001, unbeknownst to the father, she sought assistance from the M R C in A S, one of whose social workers assisted her to obtain refuge in the A S Women’s Shelter. From the father’s point of view, officials at both the M R C and the Women’s Refuge have meddled unwarrantedly in the private affairs of his marital relationship.
What occurred in the 12 months following the parties’ separation would have been perplexing and difficult to comprehend for most people. In the father’s case, these difficulties were undoubtedly intensified by his lack of familiarity with the Australian legal system; his lack of fluency in the English language; and the transposition of his Nuer cultural background into a very different social milieu. Because of the obvious difficulties and complexities in the matter, an order was made on the 1st of July, 2002 that both children be separately represented in the proceedings.
On the 22nd of July 2002, I was told by the father’s then solicitor that the father no longer wished to proceed with his application in respect of N, given the circumstances of her paternity and the lack of relationship between him and the child. At this stage, it also appeared that the mother had consolidated her relationship with Mr M. At that time, I could well understand why the father could see little utility in proceeding with the application. However there continued to be great tensions between the father on the one hand, and the mother and Mr M on the other. Accordingly, on the 22nd of July 2002, I made orders dismissing the father’s application, so far as it pertained to N. It should be noted that the father was registered on N’s birth certificate as her father. However, she is currently known as N R M. The children’s representative did not attempt to dissuade me from making the order dismissing the father’s application in this regard. The father has not formally sought to re-agitate this issue in the period since. However, I suspect he regrets the order that was made on this occasion. Certainly, it is his position that he regards N as being a product of his marriage to the mother and, as such, that N remains his progeny in perpetuity.
In her affidavit filed on the 27th of March 2002, in support of her application regarding future parenting arrangements for both H and N, the mother deposed as follows:
“I want what is best for my daughter H, I know that she loves the applicant [Mr K-P] and believes him to be her father. I am content for them to continue having a father/daughter relationship so long as H remains nurtured and supported by the applicant.”
By this time, the mother and Mr M were living together. Accordingly, Mr M was fulfilling the paternal role for N. This was the foundation of the mother’s vehement opposition to the father having any contact to her at all, particularly as the relationship between the two can only have been described as tenuous up to this stage.
Although there continued to be great difficulties between the parties, they were able to reach agreement in respect of future arrangements for H’s care. Final consent orders were made in this regard on 16 June 2003. On that occasion, the following orders were made:
“1.That the parties have joint responsibility for the long-term care, welfare and development, of the child H H T born
23 December 1996 (‘the child”).
2.That the child reside with the mother and she have day-to-day responsibility for the care, welfare and development of the child.
3.That the father have contact with the child as follows:
(a)In week one, from 5.00pm Friday to 5.00pm Sunday;
(b)In week two, from 5.00pm Friday to midday Saturday;
(c)Additional contact not exceeding 3 days during school holiday periods.
4.That the child N H K-P, born 27 April 2001 (“the child N”) reside with the mother and she have the sole responsibility for the long-term and day-to-day care, welfare and development, of the child.”
At that stage, these orders had been trialled for approximately 6 months and, at least ostensibly, were working to the mutual satisfaction of both parties. However, it has subsequently transpired that the parties have very different views as to the success or otherwise of these orders. Although the orders do not specify as such, H was to be delivered and returned at the end of each contact period at the premises of the A S Contact Centre. This is the situation which has prevailed up until this time. Accordingly, H has had regular weekly contact to the father for over 3 years and she has always been delivered and returned for contact at the Centre. This has become part of the reality of her life. As a result the Centre and its workers from time to time have also become closely involved in the lives of H, the father and the mother.
The marriage between the parties was dissolved by this Court at A S on the 23rd of October, 2003, on the application of the mother alone. The father did not formally respond to the mother’s application. However, it is clear that he does not recognise the authority of this or any other Court to end the marriage between him and the mother. He regards himself as still being married to the mother. He remains desirous of effecting reconciliation to her and resuming what he believes is his rightful authority as both H and N’s father.
The mother’s relationship with Mr M has broken down. Mr M has married another person and moved with his wife to Perth. He did not seek any formal orders in respect of N following the end of the relationship between him and the mother and has provided written authority that indicates his consent in respect of N moving to B in future. N continues to live with the mother. The domestic violence order against the father, made in the mother’s favour, lapsed on the 18th of September, 2003.
The mother commenced the current round of proceedings in this Court on the 3rd of August 2004. At that stage, she simply sought an order that she and H be permitted to relocate permanently to B in the state of Queensland. Essentially, in his response filed on the 1st of November 2004, the father seeks that the mother’s application be dismissed and he continue to have contact to H on the same terms and conditions as envisaged by the orders of 16 June 2003. Accordingly, this is commonly what is known as a relocation case. The parties also have different views as to the appropriate arrangements for contact in the event that the mother and H are living in B in future.
In her initial affidavit filed in these proceedings on the 3rd of August, 2004, the mother deposed as follows:
“Should I be permitted to re-locate to B, I will continue to facilitate the contact between H and T via phone and holiday visits. In fact, I believe that this change will improve both the amount of contact time T has with H and also the quality of that time.
T has relatives in B where he may stay and airfares to B are often cheap and plentiful. I have also offered financial assistance for contact visits. I also note that T’ relatives in B have already made contact with H and saw her when we visited in January 2004.”[1]
[1] See mother’s affidavit filed 3 August 2004 at paragraphs 25 and 26
Since this affidavit was filed, the mother’s primary position has changed. She now wishes to cease all forms of contact between the father and H and assume sole responsibility for both H’s long-term and day-to-day care, welfare and development. In the alternative, she proposes that the father have only two periods of contact each year of up to 7 days duration and that this contact should only occur in B. She also seeks an order that such contact be conditional on the father providing a satisfactory report regarding his psychiatric condition and particularly whether his psychiatric state is likely to have any detrimental consequences for H. Finally, she is opposed to the parties having any direct physical interaction with one another regarding any potential contact arrangements for H and accordingly she seeks an order that would see H being exchanged for any future periods of contact within the confines of a contact centre.
As has already been indicated, it is the father’s primary position that the current status quo should prevail indefinitely. He deposed that he is currently unable to consider either travelling to B or relocating there permanently because of fears he has for his safety in the city. He is vehemently opposed to any step that would see him being removed from H ’s life as her central paternal role model. Accordingly, it is his position, in the eventuality of the mother and H moving to B, that he should have as extensive contact to H as possible and accordingly he seeks contact to her for each school holiday period in A S.
It is the mother’s position that she feels isolated and bitterly unhappy in A S, particularly as the father does not, and in her perception never will, accept that the marriage between the parties is over. Accordingly, she fears that the father will continue to denigrate her to H or attempt to assert some other form of control over her, in an effort to resume what he considers to be his rightful position of authority over both her and H. She believes that this is likely to be fundamentally detrimental to H in the long run and the only way to protect H from these adverse influences is for her to move away to B.
The mother has Sudanese relatives in B. She, H and N have visited B on two previous occasions during school holidays. It is the mother’s position that she will be far happier in B, where she has the support of her relatives. She asserts that the move to B must have positive implications for her ability to parent both H and N to the maximum extent of her capabilities. On the other hand, if she is compelled to continue to live in A S against her wishes, she will become even more unhappy and possibly at risk of contracting some form of depressive illness, which will have severely detrimental consequences for the children concerned. In addition, it is her case that there are many more opportunities for both herself and H and N in B, a city of several million, as opposed to A S, an isolated outback township of some twenty five thousand people.
The mother characterises the father as extremely isolated, both socially and financially in A S. He has recently lost his employment. As a result of these factors, she has concerns about his current state of psychiatric health but doubts that the father has any insight into his condition or its possible ramifications for H. She believes that she, H and N have become increasingly assimilated into mainstream Australian society, whilst maintaining their Sudanese identity. Whereas the father has not been able to integrate himself into Australian life and attempts to exert his control over her and H h as some sort of compensation for his failings in this regard.
It is the father’s position that he is the only father that H has ever known, both in difficult circumstances in Ethiopia and in the family’s new life in Australia. He asserts that he and H have a close and loving relationship, which has been nurtured and maintained in difficult circumstances, in the more than three years which have elapsed since the parties’ separated. By implication, it is his position that H would suffer, both in the short and long-term, if she is removed from having regular contact with him. In the short term, she is likely grieving for the loss of her father and in the long term, her emotional development is likely to be severely compromised by the loss of her father figure, as she develops to her maturity.
He disputes that contact between him and H has been as difficult and problematic as the mother would have it. To the contrary, it is his position that H wants to have more rather than less contact with him in future. He does not believe that the close and loving relationship between him and H can be maintained, if H moves to live in B with her mother. Accordingly, it is his primary position that the relocation should be indefinitely prohibited. However, in the eventuality that the mother and H do move to B, it is his position that it is essential for H’s emotional well-being that she have as much contact as possible with him and it is appropriate that H travels to A S for this purpose. He bitterly refutes that there is anything adverse to H in his psychological or psychiatric makeup and opposes the necessity for any psychiatric examination of himself. As already indicated, his evidence was that he would be unable to travel to B in the future.
In order to assist the Court in the resolution of this difficult matter, a family report was prepared. This report was prepared by an experienced psychologist and Family Court counsellor, A R. At the conclusion of his report, Mr R recommended as follows:
“The applicant [the mother] should retain H’s day to day residence and move to live in B.
The respondent [the father] should have half school holiday contact in A S subject to suitable accommodation and resources.
Cost of contact should be shared between the parties and subject to court orders.
Serious consideration should be given to psychiatric assessment of the respondent’s observed paranoia tendencies in terms of H’s safety and comfort during her contact visits.”[2]
[2] See Family Report at paragraphs 80-83
The issues
Having provided this brief background to the case, the following issues seem to arise for resolution by the Court. These issues are not placed in any regard to their overall importance:
·What was the history of the parties’ marriage? In particular, was it characterised by episodes of extreme violence perpetrated by the father on the mother?
·Does the father continue to be aggressive towards and controlling of the mother? Does he attempt to control the mother?
·If so, what are the consequences of this for H’s emotional well-being both now and in the future?
·What is the father’s current state of psychiatric health and does it pose any threat to H?
·What is the nature of H’s relationship with her father?
·How has contact been managed by the parties in the period since separation? In particular has it been as problematic as the mother contends or has it passed relatively incident free, as the father contends?
·If H’s relationship to her father is as close and loving as he asserts, what are the consequences for H of severing this relationship completely or severely restricting it, as the mother currently wishes?
·Is it likely to be in H’s best interests that she have as extensive a relationship with the father as possible? If so, how is this to be achieved?
·In the event of the mother’s relocation with H to B, firstly should contact be maintained and if so, secondly, what are the most practical arrangements for it?
·What is the mother’s likely response to a decision that she must stay in A S, either indefinitely or for a finite period of time? Will this reaction have any implications for her ability to properly parent both H and N?
·What have been the parties’ respective attitudes been to the responsibilities of being a parent, particularly in the Australian societal context?
·Finally and most importantly, it will be necessary to compare and contrast the strengths and weaknesses of the parties’ competing proposals in respect of the issue of relocation, to arrive at the outcome that is likely to be in H’s best interests.
The parties’ competing proposals
At the outset of the proceedings, both parties submitted comprehensive details of the orders they sought in the case. However, during the course of the presentation of their respective cases both parties resiled from these orders to some extent.
In the mother’s case, she submitted the following minute of orders she seeks in the case:
“1.That the Orders made by consent in the Federal Magistrates Court at A S on 16 June 2003 be discharged and that the mother be permitted to relocate with the child H T born on 23 December 1996 forthwith.
2.That all contact between the father and the child cease forthwith.
3. That the father be restrained from bringing any future contact or residence applications in relation to the said child.
4. In the alternative, orders as follows:
a) The mother be permitted to relocate B with the child forthwith and be responsible for both the long term and day to day decisions concerning the care, welfare and development of the said child.
b) In the event that the father continues to reside in
A S, face to face contact with the child upon four weeks written notice, such contact to take place within 100kms of the B Post Office unless otherwise agreed as follows:i)For seven days during the July school vacation;
ii)For seven days in the January school vacation;
iii)Telephone contact once a week, such contact to take place every Sunday at 7.00pm local time.
c) For the purposes of contact the child shall be delivered and collected before and after each period of contact at a nominated contact centre.
d) The cost of one return airfare for contact referred to in paragraph 4(b) is to be equally shared between both parties. The mother to reimburse the father within five days following receipt of the original payment slip for the airfare via an accredited family contact centre.
e) All other costs in relation to contact to be paid for by the father.
f) The father is restrained in his capacity to impose and propose changes to contact arrangements, which introduce unreasonable cost burden on the mother.
g) In the event that the father relocates to B face to face contact with the child as follows:
i)Three day holiday contact during school vacation, upon fourteen days written notice to the mother via the nominated family contact centre, and with full written agreement between the parties;
ii)Telephone contact once a week, such contact to take place every Sunday at 7.00pm.
h)That the Court issues a declaration that the father is not the father of the child to enable the mother to amend the Birth Certificate accordingly.”
As has already been indicated, it is currently the mother’s position that the father should provide to her and her solicitors a psychiatric report, as recommended by Mr R, prior to any contact occurring between H and the father. Counsel for the mother also indicated that her client did not seek to proceed with Order 3 as outlined above. As is apparent from those orders outlined above, it is the mother’s position that she should have sole responsibility for H’s long-term care, welfare and development. In particular, she is opposed to the father being provided with any details regarding H’s progress at school or information regarding her routine medical care. However, she would be prepared to abide by an order requiring her to inform the father of any medical emergency or serious accident which might befall H in future.
In the father’s case, he seeks the following orders:
“1. The mother’s application filed on 3 August 2004 be dismissed.
2.In the event that the mother is permitted to relocate the child’s place of residence outside A S, that the father have contact with the child as agreed between the parties and failing agreement, no less than:
(a) In the event that the father continues to reside in A S:
(i)The first half of all school holidays in 2004, and every alternate year thereafter;
(ii)The second half of all school holidays in 2005 and every alternate year thereafter;
(iii)Telephone contact no less than once per week;
(iv)Generous fact to face contact in B at any other time, upon provision of 14 days’ notice; and
(v)That the father’s uncle, Stephen Mac or another relative nominated by the father, have contact with the child as agreed between the parties, and failing agreement, no less than once per month for at least 2 hours per visit.
(b) In the event that the father relocates to B:
(i) At least 1 day every weekend;
(ii)At least 5 days during school holiday periods; and
(iii)Telephone contact no less than once per week.
3.The costs of contact in paragraph 2(a) (i) & (ii) above be shared equally between the parties.
4.Each party inform the other of their telephone number and address and any changes to those details as soon as practical following such change but, in any event, within three days of the change.
5.Each party inform the other of any serious illness or injury to the child as soon as possible following the onset of the illness or the occurrence of the injury.
6.That father is authorised to keep in contact with the child’s school and to receive reports about the child’s progress at school.”
As has previously been indicated, notwithstanding orders 2(b) and 3 outlined above, it was the father’s oral evidence that he would not contribute towards any contact costs or consider either moving to or visiting B in order to maintain his relationship with H in the eventuality of the mother and H moving to B.
The evidence
The hearing of this matter took place in A S on the 17th and 18th of February 2005. Both parties were represented by counsel. The mother relied on the following affidavits of evidence:
(i)An affidavit of herself filed on the 21st of December, 2004;
(ii)An affidavit of her aunt, D G filed on the 24th of January, 2005;
(iii)An affidavit of S O, a psychologist and formally the co-ordinator of the Family Contact Centre in A S, filed on the 14th of February, 2005.
All these witnesses were cross-examined by counsel for the father.
The father relied on the following affidavits of evidence:
(i)Two affidavits of himself filed on the 1st of November, 2004 and the 27th of January, 2005.
He was extensively cross-examined by counsel for the mother. In addition, the family report writer was required for cross-examination by both parties. He attended court by telephone from the Family Court in A and was cross-examined by counsel for both parties.
Obviously, neither the father nor the mother are native English speakers. However, both parties have made attempts to learn English and as a result, both have some understanding of the language, but neither could be described as fluent in it. Certainly, I do not think that either the mother or the father could be described as being adept in English or aware of the subtleties or nuances of the language, particularly in the formal environment of the court room.
The parties, although both Sudanese born, do not speak the same language as their mother tongue. The mother speaks Nuber or Nubian and the father speaks Nuer. It seems however that many Sudanese people speak a dialect of Arabic, which I gather is something of a lingua franca of the Sudan. There was no specifically appropriate interpreter available for either of the parties in A S at the time of the hearing. It also seems that there is a dearth of suitably qualified interpreters in Australia generally. As a result, although it was far from ideal, the parties were restricted to the use of a telephone interpreter for these proceedings.
The mother elected to have the telephone interpreter available but only use her when she was unable to understand a question, which was rare. The mother seemed to understand nearly all the questions put to her and was able to respond coherently and appropriately in English. Perhaps imprudently, the father chose not to utilise an interpreter. His English was less fluent than the mother’s was. His answers to questions were at times non-responsive and his answers long and rambling. At times he anticipated questions.
Some of the father’s answers to questions were disconcertingly bizarre, particularly when he indicated his concern that he would be in danger in B from what he described as “the security” if he went there and that, in the past some of his former workmates at the A S H had plotted to kill him with a lethal injection. Overall, the father struck me as a proud and dignified person. I have no doubt that he loves H very much indeed. He is also a devout and religious person. Sadly, I was also struck by his lack of personal support both in the proceedings before me and generally in the A S community. Of the two parties concerned, the mother struck me as having been able to assimilate herself more into the general Australian community than the father. This impression was also confirmed by Mr R.
Although there are many disputes of fact between the parties, I do not think that this is a case that turns on credit. I thought that both the father and mother were honest and creditable witnesses, according to their own lights and belief systems. However, their respective belief systems are in fundamental conflict with one another and, in the father’s case, some of the beliefs which underpin his sense of identity as a Nuer are in conflict with the tenets of an open and pluralistic society such as Australia. These differences of belief cause the parties to view the same events from a completely different perspective and so have a different view as to the event’s significance in the greater scheme of things.
What struck me most about the father’s evidence is his total rejection of the mother’s entitlement to end the marriage between the parties. In his world view, the mother remains, and until her death, will always remain his wife. The father considers that it is in the mother’s best interests to come back to live with him and bring both H and N with her. Because both H and N are the mother’s children and she is his wife, the father believes that he has exclusive responsibility for both children. The father deposed that in his tribal teaching, “man is the boss…on top…like a bull.”
The father also deposed that when the parties married in Sudan, the mother was given to him by her family and by implication, such a gift cannot be subsequently annulled. This also means that he himself is unable to commence another relationship or marriage. The father remains convinced that if the parties returned to Sudan or he was able to seek the intervention of the mother’s family, she would be compelled to reconcile with him. As a result it is the father’s position that he has no possibility of having any children other than H and N. To Mr R, he said as follows: “My children my future, I not marry again, no cattle no house, no more children, these two my future.” [3]
[3] see Family Report at paragraph 27
The father also bitterly resents what he sees as the unwarranted interference in his life by such organisations as the M R C and the C A W L S, both of which organisations have assisted the mother in these proceedings to date. In the father’s expression, members of these organisations have issued “propaganda” to break his marriage with the mother. The father deposed that the mother had “no right to talk to a counsellor about the violence [between the parties]”. The father also deposed that he “disagreed” with the children’s contact centre in A S because the workers there were working to “separate” the family from one another. In the father’s world view, if a married couple separate, it is the usual course of events that the children of the marriage remain with the husband. Again a matter that the father confirmed in his interview with Mr R.
The mother is critical of the father for not voluntarily providing child support for H in the period since separation. The father greets this criticism with incomprehension, as the mother is currently receiving Centrelink payments in respect of H. Accordingly, he cannot understand why it should be thought appropriate that he contribute any further sums for H. He also points to the fact that during the “hard times”, when the family was living in Ethiopia, he provided for them and through his own efforts brought them all to the first world.
I was concerned about some aspects of the father’s evidence, namely that he resigned from the A S H because people there wanted to kill him; that if he continued to claim the children he would be potentially in danger in A S; that he acknowledged that he did not currently associate with members of the Sudanese community in A S, because they were “part of the problem” in B being separated from him; and his fear of persecution for himself in B from “the security”. I was also concerned at the resolute refusal of the father to accept the need for any psychiatric or psychological referral for himself.[4] These matters suggested to me that the father was an alienated and isolated person, beset by deep feelings of insecurity surrounding his personal safety.
I consider it highly likely that the father is still suffering the physical and psychological after-effects of his persecution in the Sudan, which he believes have had consequences for his ability to bear children.
I also accept that it is has been extremely difficult for him to make the transition into Australian Society.
[4] The evidence was that the father was referred to Mr T, a psychologist in A S in 1999/2000 but ceased the treatment. In 2002, around the time the mother withdrew N from contact with him, the father was again referred to Mr T for assistance but declined it. Finally, in 2003 when to the perception of the management of the A S H, the father was behaving oddly, he was referred for a psychiatric examination but declined to talk with the psychiatrist concerned. In his evidence before me, the father indicated that he saw no need for himself to be either psychologically or psychiatrically examined and would refuse to attend any such examination.
Although the father does not believe the mother can divorce him, he indicated his recognition of the authority of this Court. I do not think that this necessarily indicates his acceptance of the Court’s jurisdiction to intervene in respect of his familial affairs. Rather, it stems from a fear that he will potentially get into trouble with the Australian Authorities if he does not obey Court Orders. At a visceral level, it is my assessment that the father does not believe that this Court has any authority to make orders regarding H or his marriage to the mother and the mother herself is not entitled to seek adjudication from the Court. On that basis, I consider that there is some basis to the mother’s fear that, if the opportunity presented itself to him, the father would contravene a future order of the Court regarding H.
I have a great deal of sympathy for the position the father finds himself in. His sense of identity has been diminished by the events that have occurred since the parties separated. He is alone in a foreign and unfamiliar country. On the other hand, the mother has grown in confidence in the time since she has lived in this country. She has been able to reach out and accept assistance for herself from both members of the Sudanese community and non-government agencies within A S.
a) The mother’s case and proposals
The mother presented as a reasonable person, who is coming increasingly closer to the end of her tether because of what she perceived as the unwarranted and unreasonable interference of the father in her and H’s lives. In her words, the father “confuses” her and the children and other professionals, such as doctors, with whom the children come into contact. The mother has not spoken to the father directly for over 3 years and is not prepared to provide her telephone number or address to him because she fears unsolicited contact from him. She does not wish the father to have any future contact with H’s school because otherwise the father “will think he has a relationship with me”. She does not want the father to have responsibility, with her, for H’s long-term care because, if he does, he is likely to object to the most routine of matters as an exercise of power over her. At the root of her concerns is her perception the father does not accept that the marriage between the parties is over and, as a result, wish to utilise every pretext to exercise control over her and H in future.
I consider that there is a realistic basis for the mother’s concerns. In particular, I accept that the relationship between the parties was an unhappy and violent one. I accept her evidence that when the parties arrived in A S the father punched her with his fist, kicked her and beat her with a bicycle chain and an electrical cord. In my view, this is violence of an extreme nature and cannot be excused by any reasonable interpretation of cultural tradition. The mother was justified in escaping it and seeking refuge at the A S Women’s Shelter.
Since the parties’ separated, I accept the mother’s evidence that the father has attempted to exert control over her in a number of ways in order to coerce her to return to the marriage. In the early years of the parties’ separation, the father made unwarranted complaints about the mother’s care of H to both the Northern Territory Police and the Department of Family and Children’s Services. The investigation of these various complaints caused the mother embarrassment and distress. Such unwarranted complaints would have been distressing to anyone but are likely to be more distressing to a recently arrived refugee with little understanding of English and no familiarity with the Australian legal system. She is likely to have been very frightened by the intrusion of figures of authority into her life. As time has gone on, this overt undermining of the mother has reduced and I accept that the father has attempted to weaken her central role as H’s main provider of care in more subtle ways. This leads the mother to the conclusion that if the father continues to see H in future, both she and H “will always have trouble with him [the father]”.
In August of 2004, H was asked to be a flower-girl at a wedding. The father initially declined to alter contact arrangements so that H could take part in the wedding, although he later relented. Later, in December of 2004, the father discovered H was to have a minor operation on her eyelid. The father unilaterally cancelled the appointment for the surgery, although once again he later relented and the surgery took place as scheduled. In the past, the father has not agreed to H going on holiday to B with the mother. I also accept that the father has been consistently late for contact hand-overs and has sought to change arrangements for contact.
These are comparatively minor matters but I accept that they have a cumulative effect so far as the mother is concerned. However, in my view, the overwhelming problems between the parties stem from the father’s inability to accept that his relationship with the mother is over from her point of view. Accordingly, the parties cannot have any meaningful dialogue with one another about arrangements for H’s care because the father will attempt to assert what he believes is his authority over the mother. As a result, I accept the mother’s evidence that the father will seize any opportunity to disagree with her about arrangements for H’s care. It matters little that he later relents.
I also accept the mother’s evidence that whenever an opportunity arises to criticise the mother publicly, the father seizes upon it. I accept the father criticised the mother to staff at the A S Contact Centre for allegedly dressing H in “rags”. Understandably, such behaviour is distressing to the mother and also to H.
The father has deposed that he is fearful of a curse being placed on H because her parents [he and the mother] have separated and he himself has been effectively removed as H’s guardian.[5] The father is of course entitled to his own personal beliefs but I can well understand why the mother, in the circumstances of this case, is apprehensive that the father will discuss these matters with H and in particular, inform her of his belief that she may be at risk of sudden and unexplained death because of what the mother has done. In my view, this issue of the curse is an attempt by the father to exert pressure on the mother to reconcile with him by attempting to exploit what he believes are common beliefs she shares with him. I also accept that the father prays aloud with H during contact visits to the effect that he and the mother may be reconciled and the family reunited. The mother believes that such practices are unsettling for H. I agree with her that these practices are likely to upset H’s emotional equilibrium.
[5] See father’s affidavit of evidence filed the 1st of November, 2004 at paragraph 18.
As has already been indicated, in the early period of the parties’ separation, the mother was supportive of the father maintaining his relationship with H and acknowledged its central importance in H’s life. I suspect that she hoped that the father would become resiled to the parties’ separation in time and relent from his efforts to reconcile with her. She no-longer holds these views. It is now her position that it is untenable for her and H to continue to live in A S because of the father’s attitude towards her. However, the mother continues to acknowledge that H has a close and significant relationship with the father. She concedes that since the parties separated, the father has had regular contact with H on at least a weekly basis. This is a most significant matter in the case.
In her evidence, the mother acknowledged that the father loves H and H loves her father. She also acknowledged that H believes that T is her father. In this regard, the mother has not as yet broached with H the circumstances surrounding her true paternity. However, it is the mother’s position that when H is in her view sufficiently mature to understand such things, she [the mother] will explain them to her.
The mother also conceded that H would be upset and find it painful to be separated from her father. However, she believed that H would in time come to terms with her unhappiness, particularly when the reason for the parties’ separation was explained to her and she understood the full history of the matter. It is the mother’s perception that contact visits with the father confuse H and do not necessarily make her happy. Although she makes the concession that the father loves H, it is the mother’s perception that the father displays this apparent devotion to H merely because he wishes to use it as a pretext to pursue his relationship with the mother.
The mother wishes to relocate to B to start a new life for herself there with H and N. She has visited B on two previous occasions and enjoyed her time in the city. She has chosen B as the site of her proposed relocation because she has relatives and friends in the city, principally her aunt D G and a cousin, N H. She has also made two Sudanese friends in B.
It is the mother’s evidence, which I accept, that the Sudanese community in B is much larger than the one in A S. In A S there are only five Sudanese families. In B there are many more. As a result, the mother will have greater access to a network of support in B than is currently available to her in A S. In addition, both H and N will be able to make friends with Sudanese children of their own age more readily in B than A S.
In the Sudan, the mother trained as a primary school teacher. In Australia, she has largely been in receipt of Centrelink benefits, while she has cared for the two children concerned and attended English language classes. N will soon be turning 4 years of age and will be eligible for pre-school. In the future, the mother hopes to learn to drive and improve her English. She believes that there are greater opportunities for her to attend advanced English classes in B and once she has her driver’s licence she will be more mobile. The mother believes that if she improves her English, her employment prospects will be greatly improved. In the long run, she aspires to obtain employment either as a child care assistant or a teacher’s aide. Again, she believes her prospects in this regard are greater in B than in A S.
During her most recent visit to B, the mother attended the Sudanese Catholic Church, which is located there. She and H attended a Sudanese Catholic mass, which is a religious experience unavailable to them in A S. I accept the mother’s evidence that the opportunity to attend her devotions in a familiar cultural environment is a matter of great importance to her and something which she wishes both H and N to experience. Overall, it is the mother’s position that the children will be exposed to more Sudanese cultural activities, including Sudanese cuisine and dress, in B than in A S. She believes that this will enhance the children’s sense of cultural identity. Needless to say, it is the father’s position that Sudanese culture cannot be regarded as being homogeneous and that the cultural practises and traditions of the Nuer are different to those of the Nuber. I accept that this is so.
Ms G gave evidence from B with the aid of a telephone interpreter. She is also a member of the Nuber tribe and speaks Nuber-Sudanese Arabic. She is the mother’s aunt and a member of the same clan as the mother. They have known each other since the mother was born, as they lived in the same village in the Sudan. Ms G came to Australia as a refugee with her husband and three children aged fifteen, thirteen and seven and a half in April of 2004. They settled in B.
Ms G as yet speaks very little English. She confirmed the mother’s evidence that her visit to B with H and N in December of 2004 was a successful one. The children met some of their cousins. Ms G also introduced the mother to some of her Sudanese friends, whom she has met through both the Sudanese church and the community centre. Clearly Ms G and her husband are very supportive of the mother moving to B as soon as possible.
In the short term, the mother has been advised that she will receive some financial support from the Women’s Legal Service in moving to B. Accommodation will be provided to her in B through the Women’s Legal Service. In the event that she does move to B, the mother wishes to conceal her address there from the father.
The mother called Ms O to support her assertion that contact between the father and H had been problematic since its inception. Ms O was the inaugural co-ordinator of the A S Contact Centre from its inception in April of 2001. By training she is a psychologist. Later in 2001,
Ms O became the manager of Centacare in A S. Control of the contact centre falls under Centacare’s umbrella and, as a result, Ms O continued to be closely involved in the day-to-day running of the Centre and became acquainted with both the father and the mother and indeed H.
Ms O was on maternity leave from August of 2002 until May of 2003, then resumed employment, on an intermittent basis, with both the Contact Centre and Centacare itself. Shortly prior to the commencement of the hearings before me, at the request of the solicitors for the mother, Ms O prepared a report dealing her involvement with the father, mother and H in this matter. At an earlier stage, in April of 2002, she prepared a report detailing her and the staff of Centacare’s involvement with the family from late October 2001 until the 13th of April, 2002. Ms O was cross-examined about both these reports and the Contact Centre’s running-sheet in respect of contact. This latter record is extensive.
The mother makes much of the fact that Ms O was concerned about the father’s state of mental health in late 2001. Ms O believed him to be suicidal and to be showing signs of paranoid thinking at this time. However these observations also coincided with the mother’s decision to withdraw N from contact, which was understandably the cause of great distress to the father. Ms O was also critical that the mother’s solicitors elected to inform Mr K-P of this decision via a message delivered to Contact Centre staff. Later, the mother’s solicitor also arranged for a letter informing the father of the mother’s view regarding N’s paternity, to be hand-delivered to him at the Contact Centre. I agree with Ms O’s assessment that these matters could have been more sensitively handled.
Every contact visit between H and the father has been documented in the Contact Centre’s records and Ms O was called upon to interpret those records. She did not personally observe every contact hand-over but undoubtedly she has been involved in the family for a long time. Because of her involvement and her psychological expertise, I found her evidence to be informative and of assistance.
The rationale of contact centres such as the A S Contact Centre, is to facilitate contact between children and their parents and to provide a safe environment in which this can occur. For that reason parents’ attendances at the Contact Centre are staggered and it is important for the parents concerned to be punctual. I accept Ms O’s evidence that the father has been continuously late for contact collection and return during the entire period the Contact Centre has been involved with the family. The mother has been late on only a few occasions but has provided an acceptable explanation for her lateness. In Ms O’s assessment, the father’s lack of punctuality is symptomatic of a general resistance to the contact hand-over regime. She describes the father as being at times querulous, particularly in the early stages.
However, it should also be pointed out that the vast majority of change overs in respect of the period from 2003 to 2004, in respect of which the Contact Centre’s notes were tendered into evidence, shows that there were no significant incidents to report and so contact proceeded smoothly. In cross-examination, Ms O made this concession. There was however one major exception, which occurred on the 16th of April, 2004, when Mr M delivered H for contact in place of the mother. At this time, the mother was in H. It is the father’s position that he was set upon by Mr M and four others and violently beaten. Regrettably, H was a witness to this altercation. In the absence of any evidence from Mr M, I am unable to make definitive findings about this incident. The father’s version of events is not supported by any other person and seems to me to be intrinsically unlikely. I am however satisfied that there was a fight between the father and Mr M, to which H was a witness.
As a result of the incident, the father was unwilling to return H until at least the mother had been released from H. He was however persuaded by Contact Centre staff to return H later that afternoon. The Contact Centre staff apparently had some concerns that Mr K-P was manipulating this situation. They were also concerned at his reluctance to advise them of his then current address, which apparently is in breach of the Centre’s conditions for use.
Ms O described H as generally being an extroverted, happy little girl. She also confirmed that in March of 2004, H had requested to spend more time with her father. She also reported that H was generally happy to see her father at the commencement of contact proceedings but was reluctant to describe the father’s relationship with H as being a warm or loving one. This may be a result of cultural nuances, which Ms O is not able to decipher completely.
Although, as has already been indicated, Ms O conceded that much of the father’s contact with H had been described as uneventful, she continued to express some disquiet about it. As a result, in her report dated 14 February 2005, Ms O reported as follows:
After December 2001, Children’s Contact Centre staff noted that Mr K-P would frequently attempt to discuss issues related to his separation and contentious issues about the children in from of H. On these occasions centre staff would refuse to discuss such issues and attempt to redirect Mr K-P to discuss such matters with his lawyer. On some occasions, when the coordinator believed that Mr K-P’s statements appeared to have a directly negative impact on H’s emotional state he was requested to meet with the coordinator to discuss the ramification of such actions on children and the potential of having his contact visits suspended through the centre if he continued to make detrimental comments in front of H.
Given the above detailed issues as well as other more recent incidents, such as the physical conflict between Mr K-P and Mr K in 2004, which was witnessed by H, and in which Mr K-P falsely claimed that Centacare NT had agreed to him keeping H with him until Ms K was out of H, it is my opinion that contact arrangements for H with Mr K-P should continue to be arranged through a contact centre. It is my opinion that such arrangements are in the child’s best interests because they allow for a third party to monitor the emotional impact of contact on the child. Furthermore it allows for the continued monitoring of Mr K-P’s psychological capacity to cope with the pressures of contact with a child after separation.”
b) The father’s case and proposals
In respect of the father’s evidence, I accept the following matters, which I believe are important in understanding the position he has adopted in these proceedings. The father was born in the Akoba district of Southern Sudan. He studied nursing in the Akoba district between 1986 and 1992. Between 1992 and 1994 he lived in Khartoum, the capital of Sudan. Khartoum is the seat of Sudanese Government, which has been controlled largely by Islamic forces.
In 1992, the father came to the notice of the Sudanese Government. In the course of his nursing profession, he was called upon to assist in the amputation of a patient’s limb. This patient had been sentenced to the loss of the limb for a crime in contravention of Sharia or Islamic law. As the father is a Christian, this sentence offended the dictates of his conscience and was also in direct contravention of the ethics which applied to the practice of his profession. He refused to assist in the amputation. Later, the Government in Khartoum issued a decree that all non-Muslims should convert to Islam. The father refused. As a result, he was arrested by the police and was imprisoned for 10 days, during which time he was tortured and severely beaten. The father had also been involved in the student union in Khartoum.
The father was able to escape from prison. He was in fear of his life and fled from Khartoum alone. He has not seen the immediate members of his family since. As has already been indicated, he was able to travel to the south of Sudan and ultimately took refuge in Ethiopia. He was reunited with the mother. It seems that the father’s mother, father, brothers and sisters also fled to a refugee camp in Nasir. This refugee camp was bombed by the Sudanese Air Force and the father has been told that his father and younger brother were killed in this attack. Accordingly, I have no doubt that the father was justifiably in fear of his life because of both his political and religious convictions in the Sudan. I accept that he was the victim of torture in Sudan. There can be no doubt that he was rightly accepted as a refugee by this country. In addition, I should point out that I am aware that this brief account of the father’s life is an inadequate chronicle of his privations and suffering.
In his affidavit material, the father deposed as follows:
“The experience of being a refugee and of enduring the conflict in Sudan has been traumatic for me. I think it has also been traumatic for B and H. Starting a new life in Australia has not been easy. I live with the impact of being tortured in captivity.
I worry about the possibility that the problems in Sudan will follow us to Australia. I worry about whether the political and religious opponents of my family will renew their grievances in Australia. I worry about whether B will be able to protect H from such problems. I am concerned that it may be more difficult for B to protect H from such problems in B than in A S.”[6]
The father has not provided any direct medical or psychological evidence as to the consequences for him of having been tortured. However, the father’s counsel cross-examined Mr R in this regard. Mr R acknowledged that Post Traumatic Stress Disorder was a common condition in individuals who had been subjected to torture. Some of the common manifestations of Post Traumatic Stress Disorder in such circumstances were a lack of trust of people in authority; elevated levels of anxiety and paranoia; avoidance; and suspicious and rigid behaviour. However, it should also be noted that Mr R did not believe that he had sufficient expertise to diagnose such a condition, which was more properly the province of a psychiatrist.
[6] See father’s affidavit of evidence filed 1 November 2004 at paragraph 17
The father’s position in these proceedings can be succinctly put. He regards himself as the only true father H has ever had. He has seen her at least once a week since the parties separated, now over 3 years ago. If H moves to B with the mother, he fears that he will see her very infrequently and his currently strong relationship with her will wither away. He does not believe that this will be in H’s best interests either in the short or long term. In addition, he is fearful that the mother wishes to move in large part to excise him from H’s life. He asserts that, although H is not his biological progeny, as she was born during the time he and the mother were married, she is regarded as his true daughter by the traditions and customs of the Nuer people. As a result, he believes that it is essential for H’s sense of cultural identity that she have some exposure to Nuer traditions. Such exposure is only available from him.
Much of the father’s cross-examination by counsel for the mother centred on records which had been obtained pursuant to subpoena from the A S H and related to the father’s work performance there and from the notes of Mr T, the psychologist to whom he was referred by Ms O. The father acknowledged that he had indicated to Mr T that he had been “a bit forceful to his wife” and his view that she had no entitlement to discuss such matters with domestic violence counsellors. The father ceased attending Mr T towards the end of 2001.
That father’s confirmation of Mr T’s note confirmed my impression that the father is resentful of the involvement of a number of non-government agencies in A S in what he sees as the private affairs of him and the mother. He remains particularly aggrieved about the M R C and the Women’s Shelter. He confirmed that some of the employees of the M R C had served him with a notice pursuant to the Trespass Act restraining him from coming onto the Centre’s premises. In my assessment, if the father is angry or upset, he is likely to be quite frightening. It should however be pointed out that there is no suggestion that he has ever been charged with any criminal offence or that he has breached either the Trespass Notice referred to herein or the mother’s Domestic Violence Restraining Order. However, the father asserted in his evidence that the M R C were “wrong” to take out this trespass notice against him.
The father was employed as a patient liaison officer at the A S H between 2000 and 2004. He resigned from this position and thereafter has some limited work as a porter at the A S Station. The father wishes to obtain work as a nurse in future but to date has had no success in obtaining such a position. He is currently in receipt of Centrelink benefits. He lives alone and has not been involved in any serious relationship since the parties separated.
It seems clear that the father left the employ of the A S H in somewhat difficult circumstances. The management of the H became increasingly concerned about reports of the father’s unusual behaviour and suggestions that he had behaved in an aggressive manner to other staff members. When cross-examined about these matters, the father acknowledged that he believed some of the H staff had plotted to kill him and he had resigned from his job there because of his fears in this regard. I do not consider that the father gave this evidence because of his lack of English skills or any other cause of misunderstanding.
The father also acknowledged that he did not currently associate with any other Sudanese people in A S. He indicated that he did not have any friends, rather he said “I have H”. Indeed the father indicated that the other Sudanese people in A S were “part of the problem” sowing the seeds of disassociation between the mother and himself. The impression I got of the father was of a proud and lonely person, who was alienated from sources of support within both the general and Sudanese community in A S.
Although ostensibly in these proceedings, the father is unconcerned about arrangements for N’s care and is not seeking a residence order in respect of H, he deposed in his oral evidence that he wanted both N and H to live with him. For reasons already provided, I am concerned that the father does not accept the marital relationship between him and the mother is at an end. I am also concerned that the father believes, at a deep and personal level, he is entitled to assume responsibility and care for both H and N to the complete exclusion of the mother. I suspect that the father believes that the mother has been confused about her proper role in regards to her marriage and the care of the children by external forces, such as legal aid the children’s contact centre and that ultimately, she will come to her senses, particularly if he has an opportunity to speak with her. In his evidence that father indicated that “legal aid complicates things” and further that he disagreed with the children’s contact centre because “they are working to separate us”.
The father denied that he talked to H about his desire to reconcile with the mother. He indicated that she was too young to understand such things. However, he also acknowledged that he prays to God for H, N and B to come back to him as a family. On balance, I consider it highly likely that the father makes these entreaties in H’s hearing and, in part, for her benefit.
It is Mr R’s evidence that the father indicated to him his desire to return to the Sudan as a solution to the predicament in which he currently finds himself. The father did not dispute that he had told Mr R this. In fact, in his evidence, the father indicated that he wished to take the mother back to “where he had got her from”. By implication, he believed that the mother’s family would compel her to reconcile with him in this eventuality. Something obviously which is not currently possible in Australia.
That father has a relative, Mr S M, who lives in B. However, the father was resolute in his determination that it was impossible for him to either live or visit B because of the danger he would be in, in that city. In the father’s words, he would “be threatened from the security” in B. The father also indicated that he would not be able to stay with Mr M in B. The father also indicated his concern that the mother would not be able to protect the children from harm in B.
Finally, the father expressed his unwillingness to undergo any form of psychological assessment or counselling in future. He indicated that he did not see the need for it. The father is currently estranged from Mr T, whom he no longer trusts. The father acknowledged that in the past, the management of the A S H had referred him to a psychiatrist but he has declined to talk to the psychiatrist.
c) The family report and the evidence of Mr R
The family report in this matter was prepared by A R. Mr R is a psychologist and welfare officer to the Family Court, appointed by Regulation 8 of the Family Law Regulations. He has been a psychologist for over 30 years and a Regulation 8 welfare officer for the past 7. As a result, he has extensive experience in assessing children and their relationships with their parents. Neither party sought to challenge his expertise to provide a report in this matter. I found Mr R’s report to be thorough and well-considered. I found his evidence to be useful and persuasive. As a result, I accept his evidence.
Mr R found the mother to be determined and self-confident. He described her as being “bright and alert” in mood and to his observation was “functioning well”. However, Mr R accepted that the mother currently felt lonely and isolated in A S. Accordingly, Mr R considered that, if the mother’s wish to move to B was frustrated, there was a strong possibility it would have an adverse impact on her mood and so level of psychological functioning. He considered that she was more likely to become depressed than angry at such an outcome. If the mother did become depressed, which Mr R considered likely, he believed that this would undoubtedly impact on her ability to parent H and N adequately.
Mr R found both H and N to be well dressed and clean. He described them as “very self confident, curious, spontaneous and observably thriving children”.[7] Mr R found both children to be bonded to their mother and she to be “practised” as a parent. H and N spoke only English when observed interacting with their mother by Mr R. She however spoke to them in a mixture of English and Sudanese.
[7] See family report at paragraph 19
Mr R found the father to be uncomfortable with the interview process. Some aspects of the father’s presentation to Mr R were described by him as “bordering on paranoia”. Particularly the father’s assertion that his life was in danger because of his attempts to seek the residence of both children and that his loss of employment was due to a conspiracy involving 11 attempts on his life. He described the children to Mr R as “his future”.
However, Mr R deposed that it was beyond his expertise to diagnose paranoia. This being the province of a psychiatrist. When he was preparing his report, Mr R was unaware that the father had in the past declined psychiatric intervention. When informed of this fact, his concerns about the father were intensified rather than diminished. In particular, Mr R was concerned at the possibility of the father suffering a severely adverse reaction if the mother and H were to leave A S. In such circumstances, Mr R recommended a satisfactory psychiatric examination of the father as an essential pre-condition to any orders for contact being made. In his words, “the question of H’s safety was the paramount concern”.
Mr R observed only H interacting with the father. He found her to be “initially more formal and sombre” with her father than her mother. H spoke only Sudanese with him. However, although the relationship between the father and H was described as being a formal one, the formality did not prevent H seeking intimacy and physical contact with her father, who readily responded to her. As a result, Mr R considered that H was closely bonded to the father.
Mr R also interviewed H alone and found her to be a “self-confident and highly intelligent child, totally adapted to Australia.” She was enthusiastic about moving to B. She said as follows to Mr R:
“Want to go to B ‘cause its nice and big, went to the beach, African church, new baby at Mum’s cousin’s, already have friends, go to school there…will miss my friends here but I’m not sure I’ll make more friends there.”
However, to Mr R’s observation, her enthusiasm dissipated when asked to describe what her contact with her father would be as a result of the move. In Mr R’ words “her animation ceased, her voice became subdued and eye contact with the writer was intense.” Mr R recorded her words as follows:
“He’s my dad…P (her mother’s last partner and N’s father) is not my dad, I only have one dad, mum doesn’t have any man in B,
I want to spend more time with my dad, spend weekends with him, he’s a nice man never yells at me… don’t know why my mum does not like my dad.
Best thing for me is to stay here, I want my mum to stay here with my dad because I love my mum and dad…if me and mum go to B I won’t have a dad.
I want my dad here or in B…it doesn’t matter where they live as long I can live with both of them…I love my sister too and I want to live with her…I love my mum and dad about the same.”[8]
[8] See family report at paragraphs 40-42
From his observations of her and this interview, Mr R evaluated H as follows:
“During the last five of her eight years, H appears to have become a child of the Australian culture; she seems to have assimilated perfect English, as well as retaining Sudanese, her manners, attitudes and behaviour are equal to any Australian born peer.
She is certainly highly intelligent and surprisingly self-confident for her age but seriously troubled about the loss of either party as parents.
From observation, her mother appears to be the basic residence parent whilst the respondent as an equally important role as contact father figure.
Her outgoing personality and self-confidence would allow her to change school and living environment relatively easily.
H appears to have an almost equal attachment to both parties apart from somewhat more formality and less intimacy with the respondent.
Qualitatively, her mother was observed to have the more complex residence relationship against the visiting, relationship with the respondent.”[9]
[9] See family report at paragraphs 59-62, 67- 68
In Mr R’s assessment, the mother had rapidly assimilated into Australian society and was comfortable to utilise such services as legal aid and Centrelink. On the other hand, he found the father to have shown “little progress” towards understanding or adapting to his present environment, expecting Australia to assimilate to his cultural expectations and needs as a parent. Mr R was greatly concerned about the father’s tendencies towards possible paranoia and as already indicated, believed a psychiatric assessment was an essential precursor to any decision regarding his suitability to be a contact parent. However, he considered the father’s relationship with H to be a genuine and loving one. Accordingly, the mother’s proposed move to B would seriously reduce H’s contact with her adopted father figure.
On balance, Mr R considered that H’s interest, welfare and development would be enhanced by moving with her mother to B. Mr R considered that:
“The applicant’s assimilation level, alleged harassment by the respondent, single status, availability of relatives and exposure to broader aspects of Sudanese culture would be beneficial not only to the applicant but also the two girls, should they move to B.”[10]
[10] See family report at paragraph 74
Initially, it was Mr R’s recommendation that the father should have contact to H regularly in A S. He conceded that it was unlikely that the father would consider moving to B in future. However, Mr R was not adamant that, in the event that the mother and H moved to B and the father did not, it would be demonstrably preferable for the father’s contact to H to take place in A S rather than B. For example, if there were difficulties in the father returning H at the conclusion of contact, he considered it would be preferable for contact to take place in the same location as the mother’s place of residence to facilitate the return of H to the mother. He also considered it essential that H not be exposed to any violent altercations at the beginning or end of any contact period. He conceded that the mother had indicated to him that she was prepared to finance H’s visits to A S and had not raised concerns about her visiting the town in future.
However, from Mr R’ perspective, the most important issue in regards to the father’s future contact to H was a proper and definitive assessment of how safe she would be with the father during any periods of such contact. Mr R indicated some suspicion of the father’s behaviour towards him in the assessment process. He was concerned that the father was paranoid and delusional. He considered that H’s move to B would put additional stresses on the father and so may possibly precipitate a further psychological crisis, during which the father’s actions would be difficult to gauge. That being so, Mr R reiterated his view that a comprehensive psychiatric evaluation of the father was an essential pre-requisite to any future contact. He put this requirement beyond any need for the father to access professional psychological assistance or counselling.
The law applicable to parenting orders
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve H’s best interests.
As the issue of the location of the children’s residence is at the heart of the case, it is necessary for me to make some specific reference to a number of recent decisions of both the High Court of Australia and the Full Court of the Family Court of Australia.
The High Court considered the issue of relocation in AMS v AIF; AIF v AMS. In the case[11], which was the subject of appeal, both parents sought residence of the child concerned. In addition, the mother sought to be released from an undertaking that she had given not to remove the child from Perth without the father’s consent. At the time of the hearing, she wished to be able to return to the Northern Territory with the child concerned. The orders of the trial judge provided for the child to live with the mother but her application to be released from her undertaking was dismissed and an injunction was granted restraining her from changing the child’s principle place of residence from Perth. On appeal, the Full Court of the Family Court, refused to set aside the restraints on the mother changing the child’s principle place of residence. The High Court (Gleeson CJ., Gaudron, McHugh, Gummow, Kirby and Hayne JJ, Callinan J dissenting) allowed the mother’s appeal. The majority of the High Court held that the trial judge had erroneously exercised his discretion by requiring the demonstration by the mother of “compelling reasons” to counter the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth. They found that the Full Court should have intervened on this ground.
[11] AMS v AIF; AIF v AMS (1999) FLC 92-852
On the other hand, there are no real barriers to the father moving to B. In addition, in B the mother is likely to be happier and better supported. She will be more easily able to achieve her objectives of improving her English and obtaining work in some form of child care or school environment. These are modest aspirations but given the obstacles the mother has overcome to this stage they will be major achievements and likely to leave the mother with a sense of fulfilment, which will enhance her abilities as a parent.
I accept that the mother is a capable and accomplished parent. She is likely to assist H to manage the change from A S to B. In addition, H seems to be an outgoing and intelligent child, who is looking forward to the move. However, as I say, the greatest uncertainty in respect of the move, is the reaction H will have to the diminishment or loss of her relationship with the father.
d) The practical difficulties associated with contact
Obviously there are no problems with H maintaining her relationship with the father in the event that the mother continues to live in A S. This is the father’s preferred outcome. He wishes things to continue as they have done indefinitely. However if the mother moves to B with H and she is unsuccessful in her preferred outcome that there be no contact in future, there will be considerable practical and financial implications involved in the father having contact with H .
The chief practical obstacle to contact is the father’s apparent intractable opposition to coming to B and the mother’s fear that to send H to A S is a recipe for disaster, particularly given the dangers a change in H’s place of residence may precipitate a further emotional crisis for the father. H is only just 8 years of age. She has never travelled by air unaccompanied. If an order is made for contact in A S, the mother would want to accompany H from and to B. This is likely to be an expensive exercise, which the parties do not have the financial resources to support.
The mother continues to be fearful of the father and what she believes is his potential for unwanted intrusion into her life. She believes that it is essential that she have nothing physically to do with the father and that all future arrangements for contact hand-over take place under the aegis of a contact hand-over centre. It is also her position that it would be imprudent of the Court to disregard the recommendations of Mr R in regards to the requirement that the father provide a psychiatric assessment of his suitability to have further contact with H in future. The father is strongly resistant to both these matters. Accordingly, it is likely that if an order for contact is made in B and the other conditions which the mother seeks are made, it will result in H not having any future relationship with the father.
e) The capacity of each parent to meet the child’s needs, including emotional and intellectual needs
h) The attitude to the child and responsibilities of parenthood
These criteria are so closely linked that it is convenient to consider them together. H is described both by Ms O and Mr R as an extroverted and intelligent child. She is well cared for and healthy.
I believe that the mother has shown herself to be an exemplary parent. In particular, the mother is to be commended for her efforts in assisting H’s transition from a refugee camp in Ethiopia to the vastly different circumstances of A S.
I accept that the mother wishes to move to B with H because she believes that this is likely to be the best outcome for not only H but also N. I believe that I would be imprudent if I disregarded the mother’s view in this regard. In particular, I accept that she feels that she will be a better parent if she is part of the wider Sudanese community in B and has the support of her relatives there.
I have no doubt that the mother will be better placed, to a marked degree to meet the emotional and intellectual needs of both children in B as opposed to A S. Undoubtedly the mother will be far happier in B. She will be a cheerful and optimistic parent rather than an angry and resentful one. This is an important factor in support of the mother’s position.
The father is an unhappy and isolated parent in A S. For a variety of reasons, he has found it difficult to assimilate into Australian society. He has contemplated the possibility of returning to the Sudan with H. She has now become fully integrated into Australian life. She speaks English fluently. She attends school. At this stage of her development, a return to the Sudan cannot be contemplated.
The father is incapable of accepting that the relationship between the parties has come to an end. Sadly he cannot reconstruct his life around this reality. As a result, the father is likely to continue to indicate to H that the mother is gravely at fault in acting in the way she has done. He is likely to expose H to his negative views of the mother. As such, he is likely to have a significantly lesser capacity to meet H’s emotional needs than the mother.
f) The child’s maturity, sex, background and other characteristics
H’s background is a complicated one. As yet she is unaware of the true circumstances surrounding her paternity. The mother has indicated that she will broach this matter with H when she is older and can fully understand its consequences. However, at the present time, H recognises the father as her father. He belongs to the Nuer people. The mother to the Nuber people.
I accept that these two cultures are different. However, no detailed evidence was provided to me as to the extent of the differences. At any event, it seems that H is able to converse with both parties in their native languages. Regardless of the outcome of these proceedings, I am satisfied that H will always know that she is a child with a Sudanese background. Whether she will appreciate the niceties of Nuer or Nuber culture is more problematic. Certainly, it is the father’s position that it is important for her to appreciate the distinction and be exposed to aspects of both his and the mother’s culture.
In this regard it is salient to consider that the father has chosen to withdraw himself from the Sudanese community in A S. On the other hand, one of the main reasons the mother wishes to move to B is that so she and H can be more closely involved with the Sudanese community there. Accordingly, it seems more likely to me that H will have a greater exposure to general aspects of Sudanese culture in B than in A S. Certainly, she spoke enthusiastically of her experience of attending the Sudanese church in B during her recent visit there. It also seems likely that she will have a greater understanding of Sudanese cuisine and costume in B.
Mr R comments in the family report that H has become a child of Australian culture, who has assimilated perfectly so that her manner and behaviour are equivalent to any Australian born peer. However, she will retain her Sudanese appearance and will grow and develop in a predominantly Caucasian society. It may be that she will have to confront some form of racism or prejudice as she grows older. The greatest protection against the harmful effects of such prejudice is the inculcation of a sense of pride in the child of her ethnic background.
In this regard, I consider that the mother is likely to provide a strong Sudanese role model for both H and N as they grow older. This will be particularly so if the mother is able to re-establish herself in B and gain success as either a child-care worker or pre-school teacher. If the mother does fulfil her expectations in this way and becomes successful in both Australian and Sudanese community eyes, it is likely to be incalculable benefit to H. In my view, this is a major factor in favour of the mother’s proposal.
g) The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
i) Any family violence involving the child or a member of the child’s family
j) Any family violence order that applies to the child or a member of the child’s family
For reasons already provided, I am satisfied that the relationship between the parties was a violent one. I accept the mother’s evidence that on occasions the father assaulted her. Accordingly, it is my view that is was appropriate that the mother was granted a Domestic Violence Order in the past.
I am satisfied that the father continues to have a controlling attitude towards the mother and remains highly possessive of her. In these circumstances, I can understand why the mother would wish to have all her future engagements with the father in respect of arrangements for contact to H, to take place in the protected confines of a contact centre. Although the parties have been separated for many years, in the somewhat unusual circumstances of this case, I do not consider that the mother’s concerns are exaggerated or manufactured for strategic advantage. In these circumstances, I think I would be imprudent to ignore the recommendations of Ms O in regards to the need for future supervision of contact hand-over.
In the past, it is clear that H has been exposed to violence on at least one previous occasion. As I have already indicated, I am not in a position to make definitive findings about this incident. However, I have reached the view that it is likely to be in H’s best interests for all future contact hand-overs to take place at a contact centre. At this stage, I do not think that the parties would be able to manage such a hand-over without some form of intermediary.
k) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospects of parties seeking further orders from the court in future. This is because litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.
The matters for consideration under this criterion require the Court to exercise some degree of prognostication. Obviously I do not have a crystal ball and cannot foretell the future. However, I suspect that if an order is made restraining the mother indefinitely from leaving A S, it is likely to be a prelude to further litigation between the parties. On the other hand, if an order is made pursuant to which H does live with the mother in B, it is difficult to see how any future contact arrangement could occur smoothly. In particular, I suspect that an order withholding H from contact with the father is also likely to lead to further litigation.
In addition, as I have already indicated, whether any contact ordered in future takes place either in B or A S, there are likely to be considerable logistical problems between the parties. For reasons already provided, I continue to be concerned about the father’s psychological state of health and current level of emotional functioning. That too is likely to be an issue in dispute between the parties, which is likely to lead to a strong possibility of further litigation in future.
In my view, this is not a case where clearly one outcome is more likely that the other not to lead to litigation. The case is a complicated and difficult one. At the end of the day, this is but one factor to be balanced amongst many others. The paramount concern remains H’s best interests and safety. In my view, this is the factor which most strongly militates in favour of the Court requiring the father to submit to a psychiatric examination in future as a pre-requisite to any future contact order.
l) Any other fact or circumstance the Court thinks is relevant
At the present time, the mother is in receipt of Centrelink payments in A S. In the Sudan, she trained as a primary school teacher. In B, she wishes to improve her English so that she can find employment either as an assistant in a child-care centre or a teacher’s aide. Accordingly, it is a major plank of the mother’s case that her and H’s relocation to B will provide them with greater financial security. In B, she believes she will be more able to pursue career opportunities in this area, whereas in A S she will largely be limited to receiving social security in future.
It would be a major achievement for the mother if she was able to obtain work as a child-care assistant or a teacher’s aide. I consider that she is more likely to reach this goal in B than in A S, particularly if she has the support and assistance of her relatives. It also seems likely that in a larger urban centre there will be more opportunities for the mother in this regard and certainly a greater opportunity for her to study English.
The mother is likely to be much happier if she can pursue her aspirations in B rather than remain on social security in A S. I consider that the mother has a better chance of being financially independent, in the sense of being less dependent on social security, in B than in A S. It is only common sense that a person who is living where he or she wants to and pursuing work in which he or she has an interest will be much happier than a person who is marking time in receipt of government benefits. In my view this is an important factor which favours the mother’s proposal for immediate relocation. It will have direct consequences for her own personal sense of happiness and fulfilment and so ramifications for her abilities to parent H to the full extent of her capabilities.
Conclusions
This is a sad case. The parties have come to live in this country after a life of great privations. It was a dramatic transition and one which the father has found difficult to make. I can understand why this has been so. For her part, the mother has made decisions about the way she wishes to live her life in this country which the father has found difficult to accept. The cultural mores on which he has built his life have been shaken to the core. In all the circumstances, it is easy to feel a great amount of sympathy for him. However the main focus of this case must remain H and her best interests. At the end of the case, it is necessary for to me weigh up and assess the various factors in section 68F(2) to come up with the result which I believe will best serve H’s best interests.
In my view the most important factor in this case is that the mother has been the central feature in H’s life up to this stage. In my view she has provided exemplary care for her in very difficult and challenging circumstances. As a result H is a happy and confident child, whom Mr R regards as being thoroughly integrated into Australian Society. Undoubtedly H is doing well and that is primarily to the mother’s credit. As a result, I have no difficulty in reaching the conclusion that she is the parent best placed to provide a residence for H for the future. Indeed, at least on the face of his formal application, the father does not seek a residence order in his favour. I am not entitled to dissect this case into discrete issues concerning residence on the one hand and whether a relocation on the other hand should be “permitted”. For that reason the mother does not need to provide “compelling” reasons as to why she wishes to provide that location in B rather than A S.
Regardless of that question of legal principle, the mother’s wishes to move to B with H and N are reasonable and understandable. The mother will have more support in B, in the form of her aunt and other Sudanese friends and relatives, than she currently enjoys in A S, where she feels lonely and isolated. She is likely to have greater opportunities to enhance her English language skills and ultimately obtain employment for herself in B than in A S, as it is a far larger centre. Her connection with A S is an accidental and tenuous one. She came to A S not as a result of any personal choice but because she was directed to the town by the Australian Authorities. As a result she is likely to be personally much happier in B than in A S and her own sense of happiness and fulfilment in life will inevitably have significant ramifications for her ability to care for the children in the long run. Above all the mother will have a sense that she is in control of her own destiny, independent of the father.
As I have already pointed out, one of the purposes of the Family Law Act is to allow the parties to a marriage to disentangle their affairs and resume their lives independently of one another at the end of the relationship between them. This principle has equal application in the event that the parties are also the parents of a child. There is no principle of law that the parents of children are required to live indefinitely in close proximity to one another, in order to maintain a situation which will ensure the optimum level of contact between both parents and the child or children concerned. Such a principle would unduly infringe the other parent’s entitlement to live freely as he or she chooses.
The mother is clearly and undisputedly the preferred residence providing parent in this case. She wishes to live in B. It would be unduly restrictive of her entitlement as a resident of a democratic nation to live how or where she chooses, to require her to live in A S indefinitely so that H may continue her existing level of relationship with the father. This is particularly so given that, in my view, there is no real practical difficulty in the father also moving to B. I appreciate that H’s best interests retain their paramountcy over the mother’s freedom of movement. However, in this case, I think that the move will also clearly serve H’s best interest because the mother’s abilities as a parent are likely to be enhanced in B. In such circumstances, it seems to me to be untenable to restrain the mother from leaving A S indefinitely, as is the father’s preferred outcome.
However, as H’s best interest remain the paramount consideration in the case, I cannot overlook the principles contained in section 60B of the Family Law Act and particularly her entitlement to maintain the significant relationships in her life, so long as those relationships continue to serve her best interests. This is the greatest area of difficulty in this case. In some cases, a child’s best interests, in the form of the need to maintain relationships central to that child’s life, may over-ride a parent’s entitlement to freedom of movement. I do not think that this extreme is met in this case, given the positives to H in the mother’s move and the opportunity the father himself has to move to B. However I must still consider how H may maintain her relationships to both her parents, in the event of the relocation.
It is the mother’s case that the father’s relationship to H is so problematic that her relocation to B marks an appropriate point to sever all future contact between the two. I do not think that such an outcome would be in H’s best interests, although I concede that the relationship is a highly problematic one. H certainly regards her relationship with her father as a very important one and her wish, as expressed to Mr R, is to continue to see him. I do not think that it would be in H’s best interests to remove from her the only father figure she has had in her life since its very earliest stages.
The father has been a continuous figure in H’s life, both in Ethiopia and Australia. She is likely to experience an adverse emotional reaction if he is removed from her life at this stage. I acknowledge that there are likely to be grave pressures on the relationship in future for a number of reasons, particularly if and when the issue of H’s paternity is broached; the likelihood that there will be a wider cultural and social divergence between H and her father in future; and given the tensions that will continue between the father and the mother for the indefinite future, which flow from the father’s non-acceptance of the fact that the marriage between the parties has been terminated by the unilateral action of the mother. However I do not consider that these matters, important though they are, are of such significance that they justify the brutal exclusion of the father from H’s life at this stage.
H has been having contact with the father on a weekly basis since the parties separated, now over three years ago. On any view the relationship between the two is a significant one. The best outcome in this case would most likely be achieved if the father chose to come and live in B and a similar contact regime could be constructed to that which has prevailed in A S for the last three years or so. In that regard, the ball is in the father’s court. He cannot be compelled to move to B and at this stage it is clearly his wish to remain living in A S indefinitely, where he feels his level of personal security is greater. Accordingly the father is unlikely to move to B and the question remains how best to construct a contact arrangement that will best serve H’s best interests.
This issue of contact makes this case a heartbreakingly difficult one. At the end of sixty-six pages of closely written legal judgement, in a language which I believe the father will have grave difficulty in comprehending, I remain gravely concerned at the level of insight and understanding the father is likely to have into these proceedings. He will, however, undoubtedly feel hard done by them, as they are likely to offend his cultural orientation at a fundamental level. I am concerned that he may very well be hurt and angered by the outcome.
As I remarked at the outset of these reasons for judgement, the difficulty in this case stems from the different aspirations of the parties. The mother seems well set on the road to assimilation into the cultural values of this country. In making this transition, she has remained in touch with her Sudanese tradition. As a result, H is likely to remain a child who is able to traverse two cultural traditions. On the other hand, the father has found the transition very difficult to make, to such extent that he has considered returning to live in the Sudan. His behaviour has at times been bizarre and disconcerting.
In constructing any future contact regime for H, her personal safety must remain my paramount concern. I think I would be imprudent to disregard Mr R’s recommendations and concerns in this regard, particularly as his concerns coincide with my own observations of the father. I am concerned that the mother’s relocation to B may, to use current jargon, constitute a “tipping point” so as the father’s psychological health is concerned. In that regard, although it may not be to the father’s taste and he may see no utility in it, I consider it essential that he provide a psychiatric assessment before there be any contact between him and H pursuant to any future orders.
I also consider that, at this stage, it will be easier to manage contact arrangements, if the father comes to B for contact, rather than H coming to A S. In reaching this conclusion, I have taken into account H’s age and the difficulties entailed in her travelling – either alone or accompanied – between B and A S. The father has relatives in B and somewhere to stay. It is easier for an adult to travel than an 8-year-old child. In all these circumstances, it seems to me to be easier for him to travel to B than for H to travel to him.
The relationship between the parties will continue to be difficult. They each have fundamentally different views about the nature of marriage, in particular how a marriage can be brought to an end and the role of women in marriage. As a result, any future interaction between the parties has the potential for considerable friction. I also consider it highly likely that the father will continue to believe at a visceral level that it is his entitlement that H (and indeed N) should live with him in future. These are all factors which militate against contact taking place in A S at this stage and which are indicative of the desirability of future contact arrangement being overseen under the aegis of a contact centre. The parties require an intermediary to oversee contact handover arrangements at this stage.
I also believe that, in the particularly difficult and unusual circumstances of this case, I should take the extreme step of bestowing the sole responsibility for making long term decisions regarding H’s care, welfare and development on the mother alone. I make this decision on the basis of H’s biological origins but predominantly because of the fact that the parties are likely to have extremely different cultural aspirations for H in future. As a result, they are likely to be in conflict over all manner of fundamental decisions regarding H’s future development. In addition, on a basic level, they do not have a facility to discuss these issues with one another without disputes of an extreme nature.
However, given the undoubted strength and significance of the relationship between H and the father, I think it is important that the father be provided with copies of H’s school reports and be advised in the eventuality that she is hospitalised. This information will need to be exchanged via intermediaries. I also consider that the mother’s alternative proposals for contact are inadequate given the significance of the relationship between H and the father and her obvious wish to maintain her relationship with the person she regards as her “dad”. Subject to the provision of a satisfactory psychiatric assessment, the father should have contact to H on more than two occasions each year for periods of only seven days on each occasion, as the mother proposes. The mother’s proposal will not be sufficient to maintain this significant relationship in H’s life.
It will be difficult and obviously subject to the co-operation of the father and his willingness to come to B, but I believe that at this juncture it will be appropriate for the father to have contact to H on three occasions each year, during school holidays in B. Given the fact that the father does not make any financial contribution towards the support of H, I believe that the travel for this contact should be at his own expense.
At the present time I believe that it is untenable to make orders regarding contact between the father and H, in the eventuality of the father living permanently in B, given his opposition to coming to live in B. The parties currently agree that there should be telephone contact between the father and H on one occasion each week. It is appropriate that the child or the mother initiate the call to a number to be provided by the father. I do not intend to make an order requiring the mother to disclose her address to the father. However it is appropriate that the father advise the mother of where he and H will be staying during periods of contact.
These orders are likely to be somewhat complex to put into practice and are rendered more problematic by the inability of the parties to communicate directly with one another. I anticipate that for some time to come the parties will have to exchange information regarding contact arrangements via their solicitors. I can see no clear alternative to this. I also appreciate that they have the potential to lead to further litigation in future, particularly if issues arise from the father’s psychiatric examination. Again I can see no clear alternative to this.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 7 March 2005
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