KELLETT & KELLETT
[2012] FamCA 537
•13 July 2012
FAMILY COURT OF AUSTRALIA
| KELLETT & KELLETT | [2012] FamCA 537 |
| FAMILY LAW - CHILD ABDUCTION – Child brought to Australia – Where the father removed the child from Indonesia and was apprehended by police when attempting to remove the child from Australia – Where Indonesia is not a signatory to the Hague Convention – Matter to be determined according to the best interests of the child by way of summary hearing – Where the child could have the benefit of both of his parents being in the same geographic proximity if he lived in Indonesia – Where there are grave concerns about the father’s willingness to facilitate the child’s relationship with the mother – Where there are domestic violence proceedings against the husband in Indonesia – Where there is no evidence to suggest that the courts of Indonesia will not properly inquire into and determine the child’s permanent custody – Orders that the child live with the mother in Indonesia FAMILY LAW - EVIDENCE – Expert Evidence – Where the father relies on an affidavit purporting to give expert evidence about the law applicable in Indonesia, the processes which will be applied, and the likely consequences for the father of his return to Indonesia – Where the deponent is the father’s lawyer in the substantive proceedings in Indonesia – Where the Family Law Rules 2004 (Cth) have not been complied with – Where the conclusions contained in the expert evidence are broad, supported by no facts, and rely on the deponent’s subjective experience – Where the evidence is partisan in nature – Found that little or no weight should be given to the opinions expressed by the deponent |
| Evidence Act 1995 (Cth) s 79 Family Law Act 1975 (Cth) ss 69ZQ(1), 69ZT(3) Family Law Rules 2004 (Cth) rr 15.52(2), 15.59(1), 15.62 |
| In re F (Abduction: Custody Rights) [1991] Fam 25 Kwon & Lee (2006) FLC 93-287 Karim & Khalid (2008) 38 Fam LR 300 McGregor & McGregor [2012] FamCAFC 69 ZP v PS (1994) 181 CLR 639 |
| APPLICANT: | Ms Kellett |
| RESPONDENT: | Mr Kellett |
| FILE NUMBER: | SYC | 3121 | of | 2012 |
| DATE DELIVERED: | 13 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 9 July 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | KDB Holmes Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Patti Chong Lawyers |
Orders
IT IS ORDERED
That all prior orders made in these proceedings are discharged.
That, pending the determination of any proceedings in Indonesia relating to the child, the child L Kellett born … July 2003 (“the child”) live with Ms Kellett (“the mother”).
That the mother is permitted forthwith to remove the child permanently from the Commonwealth of Australia and return with the child to Indonesia.
That Mr Kellett (“the father”) spend time with the child as agreed or as ordered by a Court of competent jurisdiction in Indonesia.
That the father forthwith deliver to the mother all of the child’s original current passports in his possession.
That until further order the father is restrained from applying for a passport in the name of or including the child.
That the Court requests that the Australian Federal Police remove the name of the child from the Airport Watch List at all points of international arrivals and departures in Australia.
That the Court requests that the Australian Federal Police forthwith deliver to the mother any of the child’s original current passports in their possession.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kellett & Kellett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3121 of 2012
| Ms Kellett |
Applicant
And
| Mr Kellett |
Respondent
REASONS FOR JUDGMENT
The proceedings before the court concern a child L Kellett born in July 2003 and thus aged nine years (“the child”). His parents are Ms Kellett (“the mother”) and Mr Kellett (“the father”). He has an older step brother, the child of the mother, E aged 15 years who is not the subject of these proceedings. E is not the child of the father but has been a member of their household. The parties recognize the father as E’s psychological parent.
Since 2011, E has boarded at school in Perth where members of the father’s family live.
The mother is Indonesian. The parties married in Australia in 2002 and went through another marriage ceremony in Indonesia in June 2003. It is the mother’s evidence that since 2003, the parents and the children have lived in Jakarta.
The father gives evidence that the parties, since 2003, have lived variously in Jakarta, Singapore and Perth, but spent the majority of their time in Jakarta. They lived in Singapore until March 2003 and visited Perth, usually for periods of two weeks each year and, when E started boarding school in 2011, for one month.
On any interpretation of their evidence, it is clear that Jakarta has been the child’s ordinary place of residence. His home and cultural ties are Indonesian.
The father’s brother lives in Jakarta.
The mother has worked in Jakarta in public relations since 2003. She also holds a government role and a community position in Jakarta.
The father conducts a business through a company registered in Singapore. He works from home.
Each party claims to have been the child’s primary care giver. The child goes to S School in Jakarta. The mother says she is at home when he gets home on Tuesdays, Thursdays and Sundays. The father says he spent every Friday with the child and took him to soccer games. The parties were assisted by a driver who took the child to and from school and a maid who has lived with the family since he was two years old.
The father claims that the mother has a busy work schedule and is often away from home. He also travels often for work but he says he is not away from the children for more than five days.
In May 2012 the parties and the child were living together in Jakarta.
In the early hours of the morning of 20 May 2012 the mother went to hospital, she says, suffering injuries inflicted by the father. He denies that he caused any injury. When she returned home the next day, the father and the child were gone. The child wrote a note which said; “Dear Mama, I went to the (hospital) because feel hot. P.S. I hope your not angry.” The note was signed with a heart and the words “(the child) your son”. The contents of the note suggest that the child was not aware that he was being removed from Indonesia and believed he was being taken to hospital. The note would not have alerted the mother to the fact that the child was being taken out of Indonesia.
On 20 May 2012, the father removed the child from the home, without notice to the mother. Through the services of a private enquiry agent, the mother discovered that the father and the child had flown to Malaysia.
The mother claims that missing from the home were the Australian passports of the father and the child, the father’s British passport, the child’s Indonesian passport, the marriage certificate and the birth certificates for the parents and the child.
The housemaid told the mother that the father had told her he was bringing the child to the hospital.
On 28 May 2012 the mother received a text message from the father, from a number not known to her, saying “From [the father]. [The child] and I are fine. Will contact you again soon. Will be on the move again. [The father]”. Importantly, the father did not tell the mother where, or even in what country, he and the child were and he did not make arrangements for the child to speak to his mother.
On 29 May 2012 the mother commenced proceedings in the Family Court in Sydney seeking ex parte orders. On 31 May 2012, the Principal Registrar made a Commonwealth Information Order and ordered that the child’s name be placed on the Airport Watch List.
The mother was advised by the Department of Immigration and Citizenship that the child entered Australia on 22 May 2012.
On 28 June 2012 a recovery order was made and on 30 June 2012 the father and the child were detained by the Australian Federal Police as they attempted to board a flight to Singapore. The father gives no evidence of his ultimate destination.
The child was returned to his mother’s care that day, she having flown from Jakarta on learning that he had been found. When the matter came before the Court for directions on 4 July 2012, the mother and the child were in Sydney.
The father has filed an application seeking orders on an interim basis that the child reside with him in Perth. He makes allegations about the mother’s care of the child which will be tested in a final hearing but not in these proceedings.
The mother seeks orders which will enable her to return with the child to Jakarta where the parents can litigate any parenting issues in a court of competent jurisdiction in Indonesia, pursuant to the civil law.
On 4 July 2012, directions were made for the hearing of the mother’s application on the basis that, if she were unsuccessful, directions would be made for an urgent determination of the issue of the child’s place of residence and parenting in Australia.
the law
Indonesia is not a signatory to the Convention on the Civil Aspects of Child Abduction (“the Hague Convention”).
The principles to be applied when determining an application concerning competing fora arising from the abduction of a child from a country which is not a signatory to the Hague Convention were determined by the Full Court of the Family Court in Kwon and Lee (2006) FLC 93-287 as follows at paragraph 83:
We consider the following principles can be distilled from authority:
(i) where an Australian court's jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court's inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;
(iv) in proceedings involving competing fora when the child is in Australia and the Court's jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child's best interests as its paramount consideration (s 60CA);
(v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child's best interests as its paramount consideration;
(vii) in cases, such as in (ii) above, where the Act does not proscribe a "best interests" requirement, the child's best interests will often be a significant and weighty matter to be taken into account; and
(viii) that litigation involving children is not strictly inter partes litigation, and the child's best interests will almost inevitably be a significant matter.
And at paragraph 84:
We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles….(my emphasis).
A differently constituted Full Court in Karim and Khalid (2008) 38 Fam LR 300 held at paragraph 59:
We thus endorse the view… that the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is, as held by the High Court in ZP v PS, the best interests of the child. Forum non conveniens principles are not relevant to such an application.
In the course of their judgement in Karim and Khalid, their Honours refer to the decision of the High Court in ZP v PS (1994) 181 CLR 639 where the High Court says:
Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.
in ZP v PS the High Court adopts the principal set forth by Neill LJ in In re F (Abduction: Custody Rights) [1991] Fam 25 as follows:
The general principal is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have been normally resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.
In short, the mother having regularly invoked the jurisdiction of the Family Court for parenting orders, in circumstances where the child and both of the parents are present in Australia, the matter should be determined according to the best interests of the child. It can, however, be dealt with by way of summary hearing and that is the course which has been adopted here.
Division 12A of Part VII of the Family Law Act 1975 (Cth) governs the conduct of the proceedings. Section 69ZQ(1) requires the court to determine whether the issue should be dealt with summarily and in what order the issues should be dealt with.
At the commencement of the hearing the legal representatives of the parties agreed that it was appropriate to deal with the forum issue summarily and the matter proceeded on that basis.
the evidence
Section 69ZT (3) allows the court to proceed on the basis that the rules of evidence will apply if the court is satisfied that the circumstances are exceptional and the matters set out in subsection (3)(b) are taken into account. At the commencement of the hearing the legal representatives agreed that the rules of evidence should apply.
Their consent does not relieve the court of the obligation to apply the provisions of the section. The return of a child who has been abducted by a parent, from and to, a country which is not a signatory to the Hague Convention, is sufficiently exceptional to enliven the provisions. The evidence of matters of foreign law is important in the determination of the proceedings. The subject matter is not usual and may have implications beyond domestic Australian family law. The proceedings in this court may be examined in a court of competent jurisdiction in Indonesia. It is important that the evidence in relation to the implications of the father’s returning to Indonesia be probative and not merely his subjective views.
The legal representatives were invited to take formal objections to the affidavits but declined to do so. They jointly agreed that I should read the material subject to my disregarding such portions of the affidavits as were determined to be inadmissible.
The mother relied on an affidavit filed by her on 29 May 2012.
The father relied on two affidavits filed by him on 2 July 2012 and 6 July 2012 and an affidavit of Dyah Erista Yustanti (a lawyer) filed 6 July 2012.
The father also tendered, without objection:
(a)an article reproduced from a website entitled “Excerpts from the Sriro’s Desk reference of Indonesian Law 2006”;
(b)one page from a website headed “the Law Office of Jeremy D. Morley” and “The Premier Resource for International Divorce and Custody Law”;
(c)an article headed “Advocate Ruba’s Blog” and titled “Family Law of Indonesia (Marriage, Divorce, Custody and child support, Property); and
(d)a document headed “Indonesia, Republic of” bearing the notation “Please note that this is just a draft and all contents are still under revision”.
In relation to the first document, although the body of the text states that the contents were compiled by a team of lawyers headed by a Professor of Law, the names of the authors on the last page do not include the professor and I have no evidence of the nature of the qualifications (except the bare statement of the degrees held) or the experience of the authors. The portion of the document which deals with “Custody and child support” consists of five lines, excluding the ending. I cannot conclude that the opinions expressed come within the provisions of s 79 of the Evidence Act 1995 (Cth), and they can be given no weight.
In relation to the second document, the identity of the author and the qualifications of the author are not stated. The relevance of the content is unclear. I cannot conclude that the opinions expressed come within the provisions of s79 of the Evidence Act and it can be given it no weight.
In relation to the third document, no author is named.
In relation to the fourth document, no author is named and the document proclaims itself to be a draft, although of what, it is not clear.
No weight can be given to the tendered articles.
I do not set out here my determinations in relation to the admissibility of the whole of the affidavit evidence but I make it clear that in the affidavit of the father filed 2 July 2012 I exclude his opinion as to the medication taken by the mother (paragraphs 31 to 33); the summary of a conversation with the mother’s father (paragraph 38); the summary of conversations by the mother (paragraphs 37 and 39) and the father’s paragraph 40.
From the affidavit of the father filed 6 July 2012, I exclude paragraphs 15; 19 to 23; and 105 to 120.
The affidavit of Dyah Yustanti purports to give expert evidence about the law applicable in Indonesia and the processes which will be applied. Particularly, the deponent gives evidence about the likely consequences for the father of his return to Indonesia.
The deponent purports to be giving expert opinion. He or she is the lawyer instructed by the father in the substantive proceedings in Indonesia. In his affidavit filed 6 July 2012, the father states that he sought legal advice from the deponent’s law firm on 19 September 2011 and July 2012. Annexure “B” to the father’s affidavit filed 6 July 2012 is an email message to the father from the lawyer dated 7 June 2012, where she says, referring to a telephone call made to the mother, “I introduced myself as the Attorney of [the father]”. Where the deponent sets out the factual background in which advice was sought, those statements, not independently proven, are hearsay and cannot be evidence of the facts.
The Family Law Rules provide for the appointment of a single expert where expert evidence is needed. One of the purposes of the Rules is to avoid partisanship or lack of objectivity. The general requirement is that expert evidence be given by a single expert witness who is independent of the parties and thus objective.
The Rules provide for an application to be made for expert evidence to be given by an adversarial expert. No such application was made here. Had such an application been made, then pursuant to Rule 15.52(2) one of the matters to be considered in deciding the application is whether there is any previous connection between the proposed expert and the party.
Rule 15.59(1) sets out the duties of an expert witness. The first is to “give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability”.
The deponent, as the Attorney for the father in Indonesia, faces great difficulty in complying with the requirement to give an “objective and unbiased opinion” or to be “independent and impartial”.
Rule 15.62 makes provision for the affidavit verifying the expert’s report to contain the following statement:
I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.
I believe that the facts within my knowledge that have been stated in this report are true.
The opinions I have expressed in this report are independent and impartial. (my emphasis).
The affidavit does not include the statement and the deponent does not assert the facts.
Had an application been made to dispense with compliance with the Rules so as to allow this deponent to give expert evidence, that discretion would be exercised having regard to the purpose of the Rules and I would not have exercised my discretion to allow the evidence, because it is not objective and independent.
The Full Court in McGregor & McGregor [2012] FamCAFC 69 considered the law in relation to expert evidence as it is applied in proceedings relating to children. Their Honours said;
80.The following mandatory requirements must be established before evidence of the opinion may be admitted under this provision:
a) The person has specialised knowledge.
b) The specialised knowledge is based upon the person’s training, study or experience.
c) The opinion is “wholly or substantially” based on the person’s specialised knowledge.
81Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR
414, 427.
82.In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v RedBull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey (2005) FLC 93-230).
The affidavit makes reference to the applicable law but does not attach or extract the relevant legislation. The deponent makes various statements about Indonesian law, none of which are supported by the recital of the provisions of the relevant legislation. It is not possible to discern from the body of the affidavit, which provisions of Indonesian law are relevant to each assertion.
No reference is made to any decided case law.
There is no process of reasoning which explains the conclusions which have been reached.
The conclusions are broad and supported by no facts. The conclusions rely on the deponent’s subjective experience.
When considering the weight which can be given to the evidence, consideration must also be given to its partisan nature. By way of illustration, some of the statements are extracted:
During the ensuing argument, the Applicant threatened the Respondent by saying that she would have him deported and that he would never see his children again.
…
In my personal experience handling such matters, except in the case of extensive and significant physical abuse of a child, the Indonesian police will not take a child from his or her biological mother.
From my knowledge of Indonesian law, the failure of the Indonesian police to act in accordance with a final and binding decision of an Indonesian court is not based on a right or duty founded under Indonesian law.
From my knowledge of Indonesian law, the failure of the Indonesian police to enforce a court order is constitutionally unlawful.
…
Pursuant to Indonesian evidentiary law, a domestic violence claim only requires the testimony of the alleged victim for a conviction. Normally, in other criminal prosecutions at least two witnesses would be required.
In a domestic violence case that is brought in parallel to a custody dispute, the Respondent as a foreign citizen is placed in an extremely weak and prejudiced position with respect to basic due proves rights.
…
In my experience, it is very common for a spouse to file criminal complaints against the other spouse in family law disputes in Indonesia.
This is commonly done for the purposes of forcing a favourable negotiated settlement.
Criminal complaints are often used in Indonesia as a negotiating platform to obtain concessions in a negotiation.
Little or no weight could be given to the opinions expressed by the deponent.
It is not controversial that, under Indonesian law, the court is required to consider what arrangements would be in the child’s best interests and that there is in place in Indonesia a system which provides for the orderly disposition of matters relating to the custody. Each party is entitled to lead evidence before the courts and there is a system of appeal from courts of first instance, ultimately to the Supreme Court.
If the proceedings remain in Australia, it is the father’s application that they be heard in Perth. Since that is the only place with which any of the parties has any connection and the father has accommodation in Perth with his family, that application would likely be granted.
There is no evidence before me which establishes that the process of determining the living arrangements for this child would be dealt with more efficiently, or on any materially different basis, in Indonesia or in Australia. It now falls to determine what arrangements are in the child’s best interests in the period until a court, whether in Indonesia or Australia, can finally determine the parenting proceedings.
There is no evidence from either party which suggest that it is not in his interests to have a meaningful relationship with both of his parents. The mother is resident in Indonesia. Her home is in Indonesia and her employment is in Indonesia. She wishes to return to Indonesia. She has come to Australia only to collect the child. If he were to live with the father in Perth, as the father proposes, then it is not clear how often he would be able to spend time with his mother. However, the father can return to Indonesia, albeit that he may not want to, and the child can have the benefit of both his parents in the same geographic proximity. Prima facie, that is the arrangement that would best ensure that he maintains a meaningful relationship with both parents.
The child is almost nine years old. There is no independent evidence before the court of his views.
Insofar as the father gives evidence about statements made by the child, the conversation was initiated by the father asking the child “Why don’t you want to stay with your mother?” That conversation took place on 23 May 2012. The child had been removed without warning from his home, his mother and his familiar surroundings and taken to Perth. There is no evidence of the whole of the conversation or what else may have been said to the child by the father. Similar difficulties arise in relation to other conversations to which the father refers. No weight can be given to the father’s evidence of the child’s views.
There is no evidence of the child’s relationships with his parents. Each claims to be his primary carer. Until his removal by the father from his home, he lived with both his parents and had done so for the whole of his life. The note he left for his mother when he was removed by the father commenced “Dear Mama” and concluded with a heart and the words “(the child) your son”.
There are grave concerns about the father’s willingness to facilitate the child’s relationship with his mother. He unilaterally removed the child from the home where the family lived together. He took the child out of Indonesia and into Australia without her notice. He did not tell the mother where the child was and she found him only by means of the processes of the court and with the assistance of the Australian Federal Police. When the child was recovered by the Police, the father was in the process of leaving Australia, again without telling the mother. There is no evidence as to his ultimate destination or the arrangements he would have made for the child to spend time with his mother.
The father asserts that the mother gave priority to her career over her parenting of the child. The mother asserts that she was the primary carer. Those issues will be determined in the final hearing and I can make no finding on the untested evidence before me. On any version of the facts, both parents were a constant presence for the whole of the child’s life. However, I find that the father deprived the mother of the opportunity to participate in the decision that the child was to be removed from Indonesia and to live in Perth. He deprived the mother of the opportunity to spend time with the child and to communicate with him and there is no evidence from the father that his intention was to restore the child to the care of his mother, either solely or jointly, at any time in the future.
The child is ordinarily resident in Jakarta. He attends S School in Jakarta where he is in year 4 of primary school. There is no suggestion from either parent that he was other than happy and progressing well at school or that he was lacking appropriate friendships. He was playing soccer. If he remains in Australia he will have to start a new school and form new friends. He will be living in a place which is not his familiar home. He will be living with his father and not both his parents. He may not have regular time with his mother.
In Perth, he may be able to spend more time with his stepbrother E. However, E is in boarding school and there is no evidence about the amount of time that E is allowed away from school during term time. E is much older than the child and, although they could attend the same school, there is no evidence that there would be much, if any interaction between the primary school and the secondary school. The mother and the father, in making the decision to send E to boarding school in Perth from 2011, must have considered that spending less time with E would not be detrimental to the child’s welfare.
The father now proposes that the child will live in a home with the father’s parents and the father’s elder sister. That will be an unfamiliar living arrangement for him and there is no evidence of his relationship with or attachment to his grandparents or aunt. The father’s evidence is that the family visited Perth annually for at least a total of two weeks. When the mother accompanied the children, they did not stay at the family home in Perth.
Of greatest concern, if the father’s proposal were acceded to, is that the child will not have the opportunity to spend regular and significant time with his mother. The mother is not an Australian citizen. There is no evidence that she can stay in Australia for any period of time or for the period that would be required for the completion of the proceedings for final parenting arrangements.
The father has lived in Indonesia since 2003. I can infer that he can continue to live there.
If both of the parents are in Jakarta, the child can easily spend time with each of them, subject to proper arrangements being made to ensure that the father does not, once again, remove the child from Indonesia without the mother’s consent.
If the child remains in Australia, and is prevented from travelling to Indonesia as the father proposes, then his mother will have to come to Australia with what frequency she can manage subject to her employment, and her means, with the cost of air travel being a factor.
There is no suggestion that either parent is not capable of providing for the child’s intellectual needs. The father asserts that the mother has not been the person who cared for the child on a day to day basis, an assertion which she denies. He does not suggest that she is not capable of doing so.
The father makes assertions about the mother’s hitting the child three or four times in 2007 when he vomited; hitting him with a ruler and throwing a chair at E. If those assertions are accepted, they give rise to concern about the mother’s ability to provide for the child’s emotional needs. However, those concerns arose five years ago and there is no evidence that they were brought to the attention of any authority or were the subject of complaint then by the father. The most recent complaint is that the mother slapped the child on the leg twice in May 2012. The father does not cite those concerns as reasons for removing the child from the mother. Those matters cannot be determinative of the issue of interim care for the child but would have significance in any final determination.
In considering the attitude displayed by each of the parents I take into account the father’s assertions that the mother has not been an attentive parent. I note that she asserts that she was the primary carer. Again I cannot determine that dispute on the untested evidence before me and that issue, too, will be determined at trial.
However, I also take into account the undisputed evidence of the father’s removal of the child from the family home and his country of residence without the mother’s knowledge and his failure to give her any information about the child’s whereabouts until he was apprehended by the police in the course of removing him from Australia.
The father makes allegations of family violence by the mother towards the child. The mother makes allegations that the father caused injuries to her which resulted in her going to hospital in the early hours of the morning on 20 May 2012. Photographs of her bruising are annexed to her affidavit. The mother made a complaint to the police in Jakarta and two summonses were issued to the father to attend upon police and provide information in respect of her complaint. The summonses were brought to the attention of the father only in the course of these proceedings. He has not been served.
The father, in his affidavit refers to the altercation on 20 May 2012 and asserts that she hit him with a water flask. He also annexes a photograph.
On untested evidence, I can make no determination about the allegations of either parent. However, the father does not assert that any recent action of the mother, directed towards the child, was influential in his decision to remove the child on 20 May 2012.
The evidence that may be available in relation to violence, such as hospital records, medical records and school records, is in Indonesia. That evidence would not necessarily be made available in proceedings in Australia. The issue is an important one and, in order to arrive at the best arrangements for the child, it is important that the evidence be available before the court making that determination.
No family violence order has been made although, as set out above, summonses have been issued.
The summonses were tendered in evidence. They refer specifically to a “matter of an alleged Criminal Act of Domestic Violence.” The father is summonsed to “provide information”.
There is no admissible evidence about the manner in which the proceedings arising out of the mother’s allegation of domestic violence will be conducted. Counsel for the father conceded that the father could cause a summons to be directed to the mother arising from the father’s allegation that she was violent towards him on 20 May 2012. Counsel also conceded that, if the father were served with the summons, or arrested pursuant to the summons, then the matter would proceed according to Indonesian domestic law.
It was submitted on behalf of the father that, because of the outstanding summonses, he cannot return to Indonesia. I do not accept that submission. The father can return to Indonesia and participate in the due process of Indonesian law. While the father’s concerns about the outcome of the domestic violence proceedings are a relevant factor in determining the child’s best interests, they are only one of a number of factors to be balanced and carry no extraordinary weight.
I was referred by Counsel for the father to the decision of Kent J in Randle & Randle [2011] FamCA 830. There his Honour agreed that ZP v PS (1994) 181 CLR 639 provided the relevant authority as follows:
In determining an application for the speedy return of a child to another country, it may be material to consider, whether, if an order is made, the courts of another country will properly inquire into and determine the child’s permanent custody. But that is not to apply a ‘clearly inappropriate forum’ criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its discretion, it is exercising its jurisdiction by making an order dictated by the welfare of a child. (original emphasis).
I agree with that statement. Nothing in the evidence suggests that such an enquiry will not take place in Indonesia.
The father says in his affidavit that he does not have the child’s passport. I infer that the passport was removed from him by the Australian Federal Police. However, the mother states in her affidavit that in addition to their Australian passports, the father has a British passport and the child has an Indonesian passport, although the father denies that the child has an Indonesian passport. There is no objective evidence about whether the child does, in fact, have an Indonesian passport and there is no evidence of the whereabouts of this passport or the father’s British passport. The father was prepared to remove the child from Indonesia on 20 May 2012 and again to remove him from Australia on 30 May 2012.
It is clear from the father’s affidavit filed 6 July 2012 that, when he left Jakarta, he was not intending to live in Australia. What is not clear is where he was intending to live. Although in his affidavit he gives detailed evidence about his departure with the child from Jakarta he gives no such evidence as to his intended destination when he was leaving Perth on 30 May 2012. He was booked on a flight to Singapore, which is not a signatory to the Hague Convention. He does not say that he intended to stay in Singapore. None of this was known to the mother.
The court could have no confidence that the father, given the opportunity, will not again abscond with the child and hide him from his mother, whether in Australia or elsewhere. If he cannot live with his father because of that risk, then he must live with his mother and her home is in Indonesia.
The orders will provide for the child’s care in the period until a court determines the final arrangements for him.
The child’s best interests require that he be returned to his home and his school, in the country of his birth and ordinary residence, as soon as possible. In order for that to be effected, it is necessary for him to live in the care of his mother. Once he is returned to Indonesia, the courts in Indonesia can determine what arrangements should be made, in the interim, for him to spend time with his father and under what conditions of supervision. Each of the parents is then free, as they may be advised, to invoke the jurisdiction of the appropriate courts in Indonesia to determine the appropriate final parenting arrangements for him.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 July 2012.
Associate:
Date: 13 July 2012
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