Kim and Lam (No. 2)

FAMILY COURT OF AUSTRALIA

KIM & LAM (NO. 2)

[2008] FamCA 918

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

Taylor & Taylor (1988) FLC 91-943

APPLICANT:

Mr Kim

RESPONDENT:

Ms Lam

FILE NUMBER:

SYC

4247

2007

DATE DELIVERED:

3 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D. Barry

RESPONDENT:

There was no appearance by or on behalf of the respondent

Orders

The father shall have sole parental responsibility for the children Y born … November 2004 and S born … May 2006 (“the children”).
The children live with the father.
The mother is directed to forthwith return the child Y born … November 2004 to the city of Sydney in the Commonwealth of Australia.
Upon the entry of the child Y into the Commonwealth of Australia:
(a)the Australian Federal Police or their servants or agents shall notify the father forthwith;
(b)the mother shall deliver the child into the care of the father within
24 hours of arrival;
(c)in the event that the mother fails to comply with Order 4(b) herein:
(i)that a recovery order shall issue pursuant to section 67Q of the Family Law Act 1975; and
(ii)that the Marshall, Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory police be authorised and directed with such assistance as they require and if necessary by force to recover the child and return her to the care of the father.
The father shall facilitate communication between the children and their mother as follows:
(a)by permitting the children to receive telephone calls from the mother once per week;
(b)by passing on any appropriate written communication received from the mother addressed to either child;
(c)by purchasing and maintaining equipment necessary to permit the children to communicate by email and/or webcam with their mother.
Subject to orders being made in mirror terms by the Family Court at Seoul, Korea to the effect of orders herein made as to with whom the children shall live and with whom they will spend time, that the children spend time with the mother for a period of two weeks a minimum of once every two years, on such dates as are agreed between the parties, such agreement to be reached no less than 8 weeks in advance.
For the purposes of giving effect to order 6, for such time as the mother continues to reside in South Korea, the father shall be responsible for purchasing return air tickets for both children and shall provide the mother with notice of the itinerary at least 2 weeks in advance of arrival.
In addition to the time set out in order 6 herein, the mother shall be at liberty to spend time with the children in Australia at such times as are agreed between the parties.
During the periods in which the children are spending time with their mother pursuant to orders 6 and 8 herein:
(a)the father shall deliver the children to the mother at her home address or as otherwise agreed between the parties at the start of the mother’s time with the children;
(b)the mother shall facilitate telephone calls between the children and their father between 6.00 pm and 7.00 pm every second day, Korean time if in Korea and Australian time if in Australia;
(c)the mother shall provide the father with all addresses at which she will reside during the period;
(d)the mother shall be restrained from taking the children overnight to any address save as disclosed to the father in accordance with 6(c) above; and
(e)the father shall collect the children from the mother at her home address or as otherwise agreed between the parties at the conclusion of the mother’s time with the children.
All passports issued to the children be delivered to the father and that at all times the children’s passports shall be held by the father.
The mother is restrained from applying for any passport or travel document on behalf of either child.
The mother is restrained from removing either child from the Commonwealth of Australia or causing either child to be so removed.
The Australian Federal Police be directed and requested to remove the names of the children Y (born … November 2004) and S (born … May 2006) from the Airport Watch List.
Each party refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of either child, and each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of either child.
Each party advise the other party and keep the other party advised of their:
(a)current address,
(b)contact telephone numbers (including both landline and mobile phone number if applicable), and
(c)current email address,
and each party advise the other party of any changes to these details within seven days of such change occurring.
During the time the children are with their father, the father shall ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by either child while in the father’s care,
(b)any medication that has been prescribed for either child, and
(c)any other matter relevant to either child’s welfare.
During the time the children are with their mother, the mother shall ensure that the father is kept informed of:
(a)any medical problems or illnesses suffered by either child while in the father’s care,
(b)any medication that has been prescribed for either child, and
(c)any other matter relevant to either child’s welfare.
Pursuant to Section 65DA(2) and Section 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 these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Kim and Lam is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4247 of 2007

MR KIM

Applicant

And

MS LAM

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court arise out of a dispute between the parties as to the arrangements for the care of their children.
The parents were born in Korea, their children were born in Australia. The habitual place or residence of each of the children was for their lives Australia, until the mother’s unilateral action in April 2007 in refusing to return from a holiday in Korea and detaining the daughter of the parties there without the consent of the father or orders of a Court. Proceedings have been commenced by the parties in Korea and in Australia.
The proceedings before this Court were the subject of an application by the mother for permanent stay but that application was refused for reasons previously published and the matter was set down for hearing.
The mother filed some written evidence which the Court has considered and the Court has also had before it the report of an investigating officer of the Seoul Family Court for consideration.
On the hearing the mother however did not appear although she had previously appeared by telephone. No application was made for permission for her to so appear on this occasion. The matter was duly called and proceeded to a hearing in her absence.
It is made clear from the documents filed by the mother that she sought orders from this Court that the children reside with her in Korea and that their father pay “consolation money” and “raising expenses” for the children. Notably the application of the mother makes no provision for the father to have any contact with the children.
The father’s application seeks orders that both children reside with him and, that subject to certain conditions related to the making of mirror orders in the Seoul Family Court, seeks orders making provision for communication between the parties and the children and for contact between the children and each parent.
The Court is informed that proceedings took place in Korea recently and judgment was reserved by the Court. Those proceedings, the Court is informed, took place in the form or submissions from lawyers on behalf of the parties. The Court is informed that the Korean Court has reserved its decision to enable it to consider the judgment and orders of this Court before making its final decision.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in South Korea in August 1971 (now aged 37).
The mother was born in South Korea in May 1974 (now aged 34).
The father arrived in Australia in 1992.
In May 1999 the father adopted Australian citizenship.
In November 2003 the parties were married.
In November 2004 Y was born in Sydney (now aged 3, living with the mother).
In May 2006 S was born in Sydney (now aged 2, living with the father).
On 6 March 2007 the family travelled to South Korea.
On 2 April 2007 the father and S return to Australia and the mother and Y remained in South Korea.
On 6 April 2007 S was admitted to Hospital with a viral infection.
On 24 April 2007 the father sought legal representation with Legal Aid Commission of New South Wales. This was granted on 28 May 2007.
It is asserted that in May 2007 the mother secured South Korean citizenship for Y who now has dual citizenship.
On 8 June 2007 the father’s solicitor emailed the mother seeking return of Y to Australia.
On 14 June 2007 the father filed an initiating application. The solicitors forward on 20 June 2007 the application and supporting documents to the father’s solicitors in South Korea for service.
In June 2007 the father filed an application for divorce and custody orders in South Korea.
On 16 July 2007 Judicial Registrar Johnston made the following Interim Orders inter alia for the mother to return Y and that the children live with the father. The orders were sent to South Korea for service on 16 August 2007.
In October 2007 at the South Korean Court a ‘Committee Meeting’ or negotiation was undertaken.
On 9 October 2007 a Deputy Registrar of this Court, with the mother attending by telephone, made procedural directions.
On 12 November 2007 a Deputy Registrar of this Court, with the mother attending by telephone, made further procedural directions.
In November 2007 the father and S moved to the central coast with the father’s parents.
On 9 May 2008, after a hearing which the mother attended by telephone, I dismissed the mother’s application for orders that the Court not hear the matter and made directions in relation to the preparation for trial.
On 27 June 2008 the South Korean Court divorce and custody hearing commenced and the proceedings were adjourned.
On 22 August 2008 at a mention of the matter, which the mother attended by telephone, I fixed dates for hearing on 2 and 3 October 2008 and made further directions.
On 19 September 2008 the South Korean Court undertook a final hearing. Judgment has been reserved for final orders to be made on 7 November 2008 with an indication that the Court in South Korea wished to consider the orders, and Judgment of this Court before making final orders.

The Issues

Whether the parties should have equal shared parental responsibility for their children or whether either of them should have sole parental responsibility for either or both of the children.
With whom the children should live.
What time should the children spend, and on what conditions, with the parent with whom they are not living.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” are set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

These children, like most children, would benefit from having a meaningful relationship with each of their parents.
The intention of the mother is so far as is apparent from the evidence, to continue to reside in Korea.
The intention of the father is to continue to reside in Australia, the country of which he and both children are citizens.
If the children were to remain as they presently do living with different parents then it likely that a meaningful relationship will, absent a continuing commitment to its maintenance by both of the parents be more difficult to maintain. However, the term meaningful is a qualitative one and not a quantitative one.
With modern means of communication much can be done to promote a relationship between a child and the other parent including the use of email and the capacity to carry broadcasts live from one computer to another (commonly referred to as ‘webcam’).
The Court is concerned the mother makes no proposal for the children to have a relationship let alone a meaningful relationship with their father.
It is also concerned at the mother’s apparent frustration of all attempts by the father to communicate with his daughter and the mother’s failure to communicate with her son. Such conduct does not betoken a real appreciation of the needs of the children to maintain their relationship with each parent.
The father it is noted has sought such communication and seeks in his orders to maintain a relationship between the children and their mother.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is, in my view, no acceptable evidence that there has been in this family any violence. Although the mother asserts it, the evidence before me of the father denies the assertions.
The father indeed produces evidence from his medical practitioner not only saying that there was never any such complaint but that in all dealings that he had with the family they appeared devoted and happy with each other.
His doctor comments:
“I have become a family doctor for all the four members of the [Kim] family. On most occasions all four members have come in together as a family. In total 24 consultations were made from September 2006 to February 2007. During these times I have been able to observe the family dynamics and interactions. The family seemed happy and caring towards each other. Both children showed affections to both parents and parents showed responsibility to their children. There was no animosity shown at any stage between the family members.”
In particular he goes on to say:
“[The father’s] interaction with his wife and children were at all times appropriate and he showed great concerns for the health of his wife and his children. Also I was able to observe his wife showing concerns for her husband as well. Both children were happy to be with the father. There was no evidence of any physical injuries to any member of the family. I strongly do not believe that there was any physical or emotional abuse in the family.”
This theme is echoed in other evidence of a friend and the father’s mother. His mother gives evidence of trips to her son’s home and seeing the parties together. She says that they were frequently holding hands and that her son was praising of his wife observing “her cooking is better than yours”. There was, she said, never any complaint by her daughter in law to her of maltreatment by the father. She also she says observed her son’s parenting of the children and the exercise by him of patience in their care. He has only been observed in giving them a small smack on the bottom if they are naughty.
The father also tenders in evidence the outline of the nursing directions of the Royal North Shore and Ryde Health service existing at the time of the birth of the youngest child. The procedure there directed involves the screening of mothers of newborn children. The report which is produced after interview with the mother states that there was no indication of child abuse or domestic violence. In addition, the report asserts that the mother in answer to questions asked of her by the reporter denied that she had ever been hit slapped or hurt in other ways by her partner (the father). In addition the mother is said to have informed the investigator that she did not feel frightened of her partner.
The totality of the evidence before me makes, in my view, the evidence of the father’s denials more likely than the assertions of the mother that there was violence.
I, in the circumstances, accept the evidence of the father and reject the evidence of the mother on the issue of violence. The assertions seem to be born simply of a desire by the mother to in some way defend her unilateral decision taken to remain in Korea.
There are instances in this case of neglect of the children by the mother and they include:
a)her failure to make any contact with her son following his departure from Korea, or even make inquiry as to his health or wellbeing. The preparedness of the mother to abandon her son at a time when he was by all accounts ill and she was breast feeding him gives the Court concern that it is her interests that are paramount in her mind and not those of her children. The mother’s total failure to seek current communication with him or news of him is also a matter of concern as to her parenting capacity. The evidence suggests that she provided a gift for her son on his first but not second birthday. The father has sent gifts to his daughter as well as photographs of her brother.
b)the mother’s failure to make any proposal for the maintenance of contact with the father is also a form or neglect. Her refusal to answer emails raising questions with simply an assertion, “Stop annoying me and my family” is worrying. So too is her comment to the father’s mother when asked by her to return to Australia, “I don’t want to damage my own life because of a child. You better look after the baby.” Either it demonstrates neglect or it demonstrates a degree of ignorance of the needs of children to maintain parental attachments already formed. In either circumstance it is concerning.
c)the information as to the arrangements for the care of her daughter is sparse. There is no current evidence as to her wellbeing and it is a matter of concern that this mother, who said she would be before the Court on the hearing, has declined to put before the Court any evidence of the child’s current position. To the extent that there is evidence it appears that the mother is working and the child is in some form of child care with some assistance from the mother’s family. It certainly is not the case as with the son that the child has the benefit of full time parenting. There is no evidence of the current nature and quality of the daughter’s care.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

There is no evidence as to any views of the children. If a view had been said to have been expressed it would carry little weight given their age.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The evidence of the father and his mother is that the children had a good relationship with their father. The father’s doctor describes a good and loving relationship between the children and each of their parents. It appears that the son has a good and ongoing relationship with his paternal grandmother and grandfather. Nothing much is known of the relationship of the daughter with her extended family but it seems that some support is being provided to the mother by her parents to assist in the care of the daughter. There is regrettably at the present time no ongoing relationship between the daughter and the father nor the son and the mother. This is something which it is hoped the orders I propose to make will assist to restore.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The evidence before me indicates that the mother is not prepared to facilitate and encourage a close and continuing relationship between the child and the other parent. The evidence is of unanswered emails and refusals of phone contact by the mother. The only time the mother contacts the father directly is to inquire of items which she sought be returned to her and no attempt is made by her to obtain information as to the son’s health, wellbeing or progress. This, once again, is evidence of her willingness to allow her children’s welfare to be subordinated to her own needs or desires.
In my view, the conduct of the mother so far is such as would lead this Court to have no confidence in her ability or willingness to facilitate a close and continuing relationship between the children and their father. She makes no proposal for contact to assist that relationship to continue and develop.
In all cases, the capacity of a parent to maintain a relationship between the children and each of their parents is regarded as a prime requirement of good parenting. The failure of it to exist, as appears the case with the mother in these proceedings, betokens a future for these children if in her care of deprivation of all the benefits that the love and attention of a loving and caring father can bestow on his children.
The father however although constrained by modest financial resources makes a proposal to pay for the children to travel to Korea to see their mother subject to safeguards for their return. He clearly demonstrates his understanding of the need for the children to maintain a relationship with their mother, albeit that the mother does not appear to have understood that need in her children.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
For both of these children there will likely be an adverse effect on separation from both of their parents. However, the father at least seeks to invoke a plan for the minimisation of the adverse effects of such a separation. We are of course without evidence of the degree of involvement of the mother in the daughter’s life, but it appears that unlike the father she is working and depending on others for the care of the child in her care. The father is devoting himself full time to the care of his son. His evidence is that he attends to his son’s needs on a daily basis, with some assistance from time to time from his mother. The primary care for the child is however his. He informed the Court that it is his intention to maintain his present level of care assisted by the support he receives from the state rather than work outside the home until such time as the children attend school. He has a bus driver’s licence and this will, he says, enable him to work flexible hours, which will mean that he will still be able to care for the children once in school and arrange his hours around the hours of their attendance. No evidence is put before me as to the mothers present hours of work and her capacity to care for the children.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There will be difficulty and expense in maintaining the contact between the children and their mother if they were to live with the father and the reverse would also be true. The father says, and I accept, that the current cost of three return flights to Korea will be about $5,000. At least the father has indicated an understanding of and willingness to fund the contact with the mother that he proposes, despite his meagre resources. He indicates a willingness to take the children more frequently to Korea in the event that the mother can bear the costs of additional flights. In addition, he is prepared to provide additional contact with the children should the mother come to Australia at any time. I am pleased that the father has in his evidence said that he is willing to facilitate the contact between the children and their mother by telephone calls on a regular basis, and written communication between the children and the mother, and is prepared to purchase a web cam to facilitate and enhance that contact.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
It seems to the Court that on the available evidence the father has demonstrated superior parenting skills and an understanding of his responsibility to the children. His preparedness to give up full time work until such time as he is able to undertake it without damage to their wellbeing is to be commended. The father has the assistance of his mother one day a week who also casts a maternal eye on his parenting and assist on a regular basis. She also takes her grandson to visit his grandfather from time to time since the grandfather is unable to travel much from his home.
Nothing in the evidence before me is suggestive of the parents not being able to provide for the physical needs of the children. The father although previously ill is now fully recovered and in good health. In my view, the mother has not demonstrated a sufficient knowledge, appreciation for or capacity to provide for the emotional needs of her children. This is apparent from her abandonment of them and her refusal to permit contact with them and her proposal that her daughter not see her father until she is in middle school, which I am informed is when the child is about 12 or 13 years. She also makes no proposal for the father to see his son were the child in her care. I fear for the emotional health of these children were they to be or remain in her care.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
It has been asserted by the mother that the father was and is a gambler. There is no corroborative evidence of that except to the extent that the father gives evidence of attending with friends twice a year at a casino and betting very modestly indeed. Given the view that I take of the mother’s evidence as set out above I believe that on this issue also the father’s evidence is to be preferred. These children share an Australian and a Korean cultural tradition and given that Korea was their father’s birthplace they will have access to both traditions in his care. The proposals of the father are that the children will be able to give a practical reality to that tradition not only by his lifestyle and that of his family resident in Australia but also by visits to Korea. The mother makes no proposal for the keeping of her daughter’s Australian background available to her in any realistic way.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have referred earlier to the mother’s failure to undertake the responsibilities of parenthood in relation to her son and her daughter. I note that the father has strived to provide to his son the best care that he, with the assistance of his mother from time to time, can give to him. The father presently receives the sum of about $907 per fortnight including a Parenting Payment and a Family Tax Benefit. He deposes that he has provided modest accommodation for himself and his son in a one bedroom flat. Subject to his daughter joining them he proposes to obtain larger accommodation in the form of a two bedroom apartment or house. He will be entitled to a rental allowance in respect of such accommodation. He says that whilst the children are young they will still share a bedroom. He has placed his son in a pre school in the area in which they live on Mondays and Tuesdays of each week and his son is learning English words and can count. He proposes that in the event that his daughter joins them he will also enrol her at the appropriate age. He deposes that his son is in good health. I accept his evidence on these matters. He has provided for his son both education and appropriate care, including health care.
(j)any family violence involving the child or a member of the child’s family
There has been no family violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is my intention to make a final order. It would be my hope that the parties could start a dialogue between them of a meaningful nature but frankly the evidence before me does not bode well for that prospect. I would hope that they might be able to better communicate about and for the benefit of their children and that further court proceedings would be unnecessary. However, the Court always has the capacity on a change in circumstances to review an order it has made. Obviously if the mother decides to return to Australia then my order could be reviewed and varied if circumstances then warranted it.
(m)any other fact or circumstance that the court thinks is relevant
I have considered the evidence filed by the mother in these proceedings although she did not appear at the hearing either in person or by telephone. It is noteworthy that the matters she asserts as to domestic violence in Australia are not corroborated, and indeed the evidence is quite to the contrary from a number of independent sources. Her evidence of domestic violence in Korea is not corroborated by any of those in Korea who might be able to provide such corroboration. In general, I find her evidence unsatisfactory and I accept the father’s denial that he at any time proposed that there be an agreement that one child live with the mother and the other with the father. His prompt application to this Court and to the Korean court totally belies any such agreement and his continued and prompt prosecution of his case adds credence to his denials. The mother’s affidavits filed are bereft of detailed information as to the care of her daughter. She has had the opportunity of filing written affidavits but has declined to file anything since February 2008. The father is the person who has brought before the Court the evidence comprising the report of the Korean Investigator. That document is unsworn and its content suffers from the fact that it is the uncorroborated statements of the mother and whilst it is received into evidence it has, in my view, no weight except to the extent that it corroborates the father’s evidence.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues and the evidence before me I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has not been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is sound reason for the presumption not to apply. It is not in the best interests of these children that the parties have shared parental responsibility for them. Such an order would require communication between the parties as to the exercise of that power and their present capacity to communicate is non existent. I have continuing concerns as to the mother’s real capacity for parenting and the exercise of those responsibilities given that she clearly retained a child in Korea without the consent of the father and without order of a court. She has shown no or scant regard to the orders of this court already made. She has not sought contact with her son or inquired of his welfare. She has not permitted contact by the father with his daughter. She has, in my view, been prepared to create stories of violence not supported on the evidence to seek a result in her favour.
Her failure to appreciate the effect of what she has done on the welfare of her children in my view means that she is not presently on the evidence capable of effectively discharging her responsibilities to her children. I accordingly propose to make an order that the father have sole parental responsibility for the children.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
I do not intend to make an order for equal shared parental responsibility so the provision does not apply.

The Orders to be made

As pointed out by Mr Barry for the father, although I have already determined that Australia is the appropriate forum for the determination of the issues between the parties for the reasons set forth in my judgment of 2 May 2008, there remains a matter for my consideration as to whether I would exercise the Court’s undoubted jurisdiction to make an order given that the parties’ daughter is presently resident in Korea.
I propose to make such an order for the following reasons:
a)The court has clear power to make such an order.
b)No issue arises in relation to the making of an order with respect to the son, and these children, apart from their relationship with their parents, have a relationship with each other which should be retained and continued. In every practical sense the order that I make with respect to the son has consequences for the daughter and I do not propose that she should be exposed to a situation where she is denied the benefit of her sibling relationship with her brother.
c)The Australian Government has, by its accession to the Hague Convention on Child Abduction and its consequences, directed that courts of the children’s habitual residence should be the forum in which these issues are determined, and that that process is in the interests of the child. Taking that one step further I think that in the circumstances there is a presumption in favour of the exercise of the power unless there are strong and weighty matters suggesting otherwise. I note that in Taylor and Taylor (1988) FLC ¶91-943, a refusal to exercised the jurisdiction will out of two basic circumstances namely:
(i)Where there is no likelihood of enforcing any order which the Court may make.
In this case, there is a strong suggestion that the Australian Court’s decision will be taken into account by the Courts in Korea. The Court there has postponed its judgment in order to have the opportunity of considering the orders and judgment of this Court. Although since separation of the parties the mother has apparently procured dual citizenship for the child in her care, both children are and remain Australian Citizens, and that is the citizenship of their birth. Even were that not so in this case Courts generally act in comity with each other. I do not find that there is no likelihood of this Court’s order becoming enforceable in relation to the daughter.
(ii)The country in which the child resides is the better forum.
In this case the children were born in Australia and resided all their life here until last year. The son still resides here and the daughter only resides in Korea because of the unilateral retention of the child by the mother there without the consent of the father or an order of a Court. It seems clear that the connection of these children is and always has been with Australia. It has been their long established residence.The residence of the daughter in Korea is not long established and is created by the actions of the mother, contrary to the rights of the father. Her conduct would be regarded as a wrongful retention of the child under the provisions of the Hague convention adopted by Australia.
d)I find that it is in any event in the interests of the welfare of these children that the jurisdiction of the Court be exercised.
I therefore propose to make the orders in relation to parenting as set forth above which I believe will best promote the welfare of these children.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 3 October 2008

[2008] FamCA 918

3 October 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Remedies

Jurisdiction

Procedural Fairness

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