LORDE & CHU

[2017] FamCA 160

FAMILY COURT OF AUSTRALIA

LORDE & CHU [2017] FamCA 160

FAMILY LAW – CHILDREN – Child related proceedings – Evidence

Family Law Act 1975 (Cth) – sections 4AB, 60CC, 61DA, 65DAA and 65DAC

Morgan v Miles (2008) 38 Fam LR 375

APPLICANT: Mr Lorde

RESPONDENT: Ms Chu

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd

FILE NUMBER: CAC 478 of 2012

DATE DELIVERED: 20 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 29 August 2016 – 2 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Co

Orders

1. The mother have sole parental responsibility for R, born … 2008, and C, born … 2012. 

2. The mother is to authorise any treating medical practitioners for R and C to provide information to the father regarding any diagnosis, attendances and treatment of the children and is to notify the father in writing (which includes communication by SMS) of any attendance upon a medical practitioner by R and C. 

3. The mother is to authorise any school that R or C attend to provide copies of annual school reports of the children to the father. 

4. R and C are to live with the mother.

5. The mother is restrained from moving the home of the children to outside the Canberra region. 

6. R and C are to spend time with the father as follows:

   (a)       During school term time:

   (i)Each Wednesday and Thursday afternoon during school term time from after school until 7:30pm with the father to collect the children from school and to deliver them to the footpath at the front of the mother’s home; and

   (ii)Each second Saturday during school term time commencing the Saturday at the end of the first week of term from 9am to 7:30pm with the mother to deliver R and C to the footpath at the front of the father’s residence and the father to deliver R and C to the footpath at the front of the mother’s residence.

   (b)At the school holidays at the end of term 1, 2 and 3 during the first week of each of those holiday periods on each Monday, Tuesday, Wednesday and Thursday from 9am until 7:30pm with the mother to deliver the children to the footpath at the front of the father’s residence and the father to return the children to the footpath at the front of the mother’s residence.

   (c)During the Christmas school holidays:

   (i)On Christmas Day between 1pm and 7:30pm with the mother to deliver the children to the footpath at the front of the father’s home and the father to return the children to the footpath at the front of the mother’s home;

   (ii)During each of the last three full weeks of that school holiday period before the return to school on each Monday, Tuesday, Wednesday and Thursday from 9am until 7:30pm with the mother to deliver the children to the footpath at the front of the father’s residence and the father to return the children to the footpath at the front of the mother’s residence.

7. The mother and father, their servants and or agents are restrained by injunction from removing or attempting to remove or causing or permitting the removal of the children R, born … 2008, and C, born … 2012, from the Commonwealth of Australia prior to each of the children turning 18. 

8. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of these children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.

9. The father may spend alternative or additional time with the children as agreed in writing between the mother and the father.

10. The mother and father may vary the collection and pickup arrangements by agreement in writing. 

11. The Independent Children’s Lawyer is discharged 28 days after the making of these orders.

12. The property related proceedings between the parties are listed for directions on 30 March 2017 at 9.30 am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorde & Chu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 478  of 2012

Mr Lorde

Applicant

And

Ms Chu

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case involving two children, R, who is 8 years old and C, who is 5 years old.  At the moment they live with their mother, Ms Chu, and see their father, Mr Lorde, two evenings a week.  The father asks that the children live primarily with him.  The mother, who is originally from China, has married a man who lives in China.  She wants to take the children to China for a number of years.  If she is unable to do that, she would like to live in Australian cities other than Canberra for a period.  If in Canberra she asks that the current arrangement continue.

2. The parents are hostile to each other, and each regards the other both as lacking as a parent, and as undermining of him or her to the children.  Each alleges that the other has committed family violence.

3. The father is 68 years old.  The mother is 33 years old.  They met in China in around 2003.  They married in 2005.  R was born in China in 2008.  The family moved to Australia to settle in February 2010.  C was born in 2012.

4. The father commenced proceedings in the Federal Circuit Court on 29 March 2012.  The parties later separated in November 2012.  Interim orders were made on 21 November 2013, which granted equal shared parental responsibility, and provided for both children to live with their mother and spend time with their father.

5. The mother was granted Australian citizenship on 22 May 2014.  Proceedings continued in the Federal Circuit Court throughout this period.  A Family Report was prepared in June 2014.  On 3 September 2014, an order was made in the Federal Circuit Court permitting the mother to travel to China with the children for a visit.  A series of appeals and applications followed.  From January to March 2015, the mother and children went to China.  On two occasions in 2016, for five days in January and then for about fourteen days in February, the mother returned to China, while the children stayed with the father in Australia.

6. The matter was transferred to the Family Court on 22 April 2016.  In April 2016 a further Family Report was prepared.  The matter was heard by me, commencing on 9 June 2016.

Summary of issues in dispute

1. The Independent Children’s Lawyer identified the  issues in dispute in this case as follows:

   (1)Whether the mother or father should have sole parental responsibility, or whether the parents should have equal shared parental responsibility for the children.

   (2)Whether the mother should be permitted to relocate with the children from Canberra to City B, China, and if so, when and for how long.

   (3)What orders are in the best interests of the children in light of the recommendations contained in the Family Reports dated 3 July 2014 and 20 April 2016.

   (4)Whether the restraint on the children living in Australia should continue.

   (5)What ancillary orders are appropriate if the children either remain in Australia, or are permitted to travel to China and relocate.

   (6)The nature and implications of the children’s relationship with each parent.

   (7)The parents’ respective allegations of family violence, and the children’s exposure to it.

   (8)The parents’ respective allegations of neglect by the other parent regarding the children.

   (9)The willingness and ability of each parent to facilitate and encourage the children’s relationship with the other parent.

   (10)The effects, if any, on the children if they want to relocate to China with the mother and therefore spend reduced time with their father.

   (11)The effects, if any, on the mother’s parenting capacity and responsiveness to the children if she is to remain living in Australia, contrary to her wishes, noting the mother remarried a resident of City B in early 2016.

   (12)The ongoing arrangements for the children if they either continue to live in Australia, or relocate to China with the mother.

2. Without expanding on these the father identified issues relating to the inadequate time he says he has had with the children since 2014 and relating to the children’s health.  The mother did not add to the issues raised by the Independent Children’s Lawyer.

3. In terms of the s 60CC criteria the most important of these issues can in turn be distilled, such that the central considerations relate to:

   a)The nature of the relationships that the children have with each of their parents and the benefits they obtain from those relationships (s 60CC(2)(a) and (3)(b));

   b)The protection of the children from harm and considerations flowing from family violence (s 60CC(2)(b) and (3)(j) and (k);

   c)The parents’ capacity to provide for the needs of the children (s 60CC(3)(f));

   d)The effect of the parents’ relationship with each other upon the children (s 60CC(2)(b), (3)(e), (i) and (j)); and

   e)The mother’s wish to live in China for a period (s 60CC(2)(a), (3)(d) and (e)).

4. These considerations overlap, such that they cannot be considered as discrete items.  For example, the nature of the relationship between the parents must be considered in the context of the proposed move to China.  By way of further example, the nature of the parties’ relationships with the children has a bearing upon the capacity of each parent to provide for the child emotionally.  These examples are not exhaustive.

5. The considerations are to be assessed in the light of the Objects of Part VII of the Family Law Act 1975 in order to reach a determination that holds as the paramount, but not sole consideration, the best interests of each of the two children.[1]  The process of this consideration is via the structure set out in the Act,[2] in particular at s 61DA as it deals with the allocation of parental responsibility and s 65DAA as it deals with the time that the children will spend with each parent.

   [1] Morgan v Miles (2008)38 Fam LR 375 at 290 [79]

   [2] Morgan v Miles (2008)38 Fam LR 375 at 290 [74]

Evidence and documents relied upon by the parties

1. The parents were both self-represented.  Each was cross examined by the other and by the Independent Children’s Lawyer.  Although in large part the mother was able to present her case without the assistance of an interpreter, an interpreter was provided for her use through the proceedings and was resorted to by her as needed.

2. Ms A was cross examined by each of the parents and by the Independent Children’s Lawyer.

3. The mother relied on her orders sought filed 15 July 2016, her financial statement filed 26 August 2016, and her affidavit filed 15 July 2016.

4. The father relied on his financial statement filed 23 August 2016, his amended initiating application filed 17 August 2016, his affidavit filed 17 August 2016, his amended initiating application filed 1 July 2016, and his affidavit filed 1 July 2016.

5. The Independent Children’s Lawyer relied upon the two Family Reports; that of Ms A dated 20 April 2016 (Exhibit C2), and that of Ms D dated 3 July 2014 (Exhibit C1).

Orders sought

1. Under cross examination the father’s position as to the appropriate orders was that, although the children are currently seeing him each Monday and Tuesday for 3 hours, this should immediately change such that they would be with him 50 per cent to 70 per cent of the time.  In closing submissions he sought an arrangement of time with him, such that the children would spend each day, Monday-Friday with him from after school until 7:30 or 8:30pm, along with either every, or every second weekend with him from Friday until Sunday.

2. He further sought orders restraining the mother from removing the children from Canberra.  He thought that the orders should go so far as to even prevent her from taking the children across the ACT border to E Town.

3. The mother sought to move to China with the children.  She proposed that she would bring the children back to Australia for a period of one month each year during which the children could spend time with the father each day, although not overnight.

4. If unable to move to China, the mother sought to move to other cities in Australia for a period of a year each.  The mother was unclear as to which city to which she would move.

5. If remaining in Canberra, the mother sought the current two evenings per week remain.

Nature of the relationships between the parents and the children and each of the parents

1. The mother is currently the primary carer for the children.  Since mid 2015 the father said that he was spending each second weekend with the children and two to three days a week after school.  This reflected the description given by the Consultant[3] although it appears that the weekend time ceased[4] following the block time he spent with the children while the mother was in China in early 2016.  The mother asserted that weekend time between the father and the children had ceased some time in the period between Christmas 2015 and approximately 20 February 2016.  The father did not dispute this.  There was some confusion as to the time the father had spent with the children prior to about 20 December 2015.

   [3] Exhibit C2 [10]

   [4] Exhibit C2 [11]-[12]

2. The father thought that he saw R on 65 occasions in 2015.  He further thought that there was a period from October 2014 for seven or eight months that he did not see the children.

3. The primary evidence about the nature of the relationships each has with the children, and about the children themselves, is contained in the Family Reports and in the oral evidence of the parties.  The affidavit material relied upon by each of the parties contains almost no evidence as to these matters.

4. The evidence from the Family Reports reveals that both parents have warm and functional relationships with C, but quite different relationships with R. 

5. The father’s relationship, according to Ms A, is characterised by anxiety on the part of R.  This, however, was not always the case.  At the time of the first Family Report both of the children wanted to see their father and presented as a “calm and happy trio”.[5] The father denies that R’s presentation at assessment with Ms A was typical.

   [5] Exhibit C1 [43]-[44]

6. The assessment involved the children seeing Ms A on two occasions.  On the first of these occasions R displayed anxiety regarding seeing his father, placing himself under the table in the Consultant’s playroom and declining to see his father.  He was accordingly not seen with the father.  Earlier in the interview he had expressed anger toward his father, regarding when his father failed to pay attention to him.  R exhibited worry about being smacked by his father or his father taking his telephone or bag.  He had, however, expressed that “I do love dad a little bit”.[6]

   [6] Exhibit C2 [56], [59]

7. On the second occasion, R expressed a preference for his mother, although he thought that he could like his parents equally if they got back together.  He wished that his parent’s relationship was less conflictual.  He referred to adverse things that the father had said to him about the mother.[7]

   [7] Exhibit C2 {64]-[65]

8. When observed with the mother, R was “naturally warmly engaged with the mother around the different play.”[8]  The children exhibited no fear of the mother.

   [8] Exhibit C2 [71]

9. R was subdued and “displayed little warmth or positive affect towards his father.”[9]  The father thought that this behaviour by R was strange.  Rather than regulating R’s emotional state, the father “appeared to marginalise him”.[10]  The Consultant’s assessment was that the father demonstrated no capacity to deal with either R’s anxiety or disconnection.  Her opinion was that

   [R] appears to have a troubled and dysfunctional relationship with his father…(and)…perceives his father as negating of his needs, dismissive and psychologically and emotionally invalidating of him.[11]

   [9] Exhibit C2 [72]-[73]

   [10] Exhibit C2 [72]

   [11] Exhibit C [77]

10. On this second occasion C was observed with the father.  She was “excited to see her father” and she and the father engaged in play.  She presented as having a “positive relationship with her father’.[12] Whether because of age or temperament, C appeared less affected by the conflict between the parents.

    [12] Exhibit C2 [78]

11. The evidence also established that the important context for these relationships with the children is the hostile and dysfunctional relationship between the parties, a fact that R is acutely aware of.  While each parent directed responsibility at the other for the impact of the other parent’s attitude upon the children, neither appeared to recognise, and the mother specifically denied, that their own attitudes about and conduct toward the other parent were deleterious to the relationship between the children and the other parent.

12. The Consultant thought that the conflict between the parents impacts upon R, both in terms of seeing the conflict and hearing what each parent says about the other.  The conflict was causing him distress and causing him concerns regarding his parents’ well-being. 

13. The Consultant expressed the need for the children to have some time with their father for optimal development.  If the father was able to manage R’s anxiety (an ability not observed by the Consultant), then regular time could improve their relationship.  If the relationship with R is meaningful, meaning one wherein the father engaged in regular activities, in the everyday aspects of care, demonstrated appropriate authority toward R and helped R to feel that he was held in high regard, it could benefit R in how he relates to his peers and develops a sense of self.  Although there was previously a warm relationship between R and his father, these qualities of relationship with R were not observed by Ms A.  However, the time with Ms A was limited.  Her view is that, due to R’s insecurities, overnight time is contraindicated.[13]

    [13] Exhibit C2 [79]

14. For C, such a meaningful relationship could provide increased cognitive ability and better peer relations.

15. Despite the difference in relationships between the two children, the Consultant thought that the arrangements should be the same for both, as without R it was likely that, with overnight time, C would become stressed.  The Consultant at [43] reported that the mother asserted that C screams when being delivered to the father’s home, particularly when R is not also present.  

16. The mother, in her oral evidence, said that she treats R as a man and as her little supporter.  She asks R to help her to make decisions.  She said that R knows that the father is stopping the mother moving to China.  The mother has discussed with R the father’s claim for $500,000 against her.[14]  This, she says, is not imposing an undue burden upon him but is designed to assist him to grow up and make decisions.  The mother expresses no regret for speaking to R about this. 

    [14] Mr Lorde Affidavit filed 1 July 2016 [32]-[35]

17. Further, the mother expressed that in her view, R looks at his father as “nothing” and knows that the father is not a nice man.  She told the children that there was no father in their family, that she was both mother and father, and that they did not have to worry because she would look after them.  She thought that the father is not important to R.  She did not think that he cared about the children, nor that he was a decent father.  It was necessary for him to do a good job as a father to obtain the children’s respect.  She thought that it was not important for the children to spend time with the father because it was not of benefit to them.  While unsure why R did not want to spend time with his father, she thought that this was because the father had referred to her as a “son of a bitch” and as a “rat”.  In her view there is nothing positive about the father.  The mother said the rule is that when the children are with her they do not talk about the father.  She stated that she regards the father as an “idiot person”.  The mother’s description to Ms A was that R hates his father.[15]

    [15] Exhibit C2 [43]

1. The mother did not think that her dislike of the father would affect R and C’s relationship with the father, even though she was, in her assessment, the most important person to them.  In contrast, she thought that the children’s knowledge that the father hates the mother makes the children sad.

2. Despite her assessment of the relationship between the father and the children, on travelling to China the mother left the children with the father for five days in January 2016 and then for about fourteen days in February 2016.  The Consultant thought that this called into question her ability to prioritise the children over her own needs.  Equally, it could be said to constitute recognition by the mother that the children will be adequately cared for by the father.  The mother’s explanation was that effectively she had little choice but to resort to the father due to illness in her family.  She did not explain the nature of the illness nor the urgency posed by it.  In her oral evidence she explained that she had attended China to register her marriage, and to attend the spring festival, which is a time for families to gather.

3. Despite leaving the children with him, the mother saw no benefit for the children in spending time with, or having a relationship with the father.  Her position was that the current regime of two afternoons a week with the father should remain.

4. The father, at Annexure C of his affidavit, set out the terms of a number of text, email and telephone exchanges between the parties from December 2015 to June 2016.  While not possible to determine the rights and wrongs of each exchange, nor whether each exchange is accurately represented, the general tenor is mutually antagonistic and high handed.  Each, it seems, must find the other extremely difficult to deal with.  The responses attributed to the mother indicate poor compliance on her part with Court orders, as does the fact that the children are no longer seeing the father in accordance with the orders each second weekend.

5. The father expressed that he viewed the mother as unmanageable and incompetent.  He thought that the mother was poisoning the children towards him and had no confidence in the two of them operating outside the strict terms of the orders.  He had no confidence that the mother would act in accordance with the orders.  The solution, in his mind, was that if the mother is not compliant with the orders he will go to the police station to seek police intervention as, in his view, they have the power.

6. His criticism of the mother extended to an allegation that she seeks to control the children by only permitting them to play with Chinese associates, who bully the children.  Although he denied it, the Consultant reported that he told her that he did not think that the children should speak Chinese because the Chinese culture is “corrupt and rough”.[16]

   [16] Exhibit C2 [34]

7. A significant example of the degree of difficulty between the parents is that on 4 and 5 July 2016 the mother sought the assistance of the father in relation to drop offs and pickups.  She had undergone surgery and was unfit to drive and asked that he collect the children from her home.  He refused to do so, explaining that he wanted to stick to the orders.  He also said that if the mother offered him extra time with the children he felt that she was taking advantage of him. 

8. In summary, the parties were each highly critical of the other, each communicating in an antagonistic manner.  There can be no confidence in an ability to cooperate in respect of the children.

Family violence

1. The parties each alleged that the other engaged in family violence.

2. The father asserts that the mother is brainwashing the children, saying bad things about him.  He asserts that many times C has said that her mother threatens her with a knife.  He says that as a 4 year old she said “my mum threatens me with a knife sometimes”.  Little detail as to when such assertions are alleged to have been made was given, nor any context given for these assertions by C.  Absent such, I am unable to place any weight upon them in terms of the mother presenting a risk to the children.

3. The father further asserted that the mother has made threats to kill the children, or him, or herself.  He said that she dumped and smashed kitchenware.[17] The father asserted that the mother would say, when very angry “I will kill the children, myself, or you”.  He had no doubt that the mother might harm the children because of her state of mind when she gets angry.  He said that the last time that she hurt the children was in 2015, when R reported by telephone that he needed help.  These assertions were again absent any context, were generalised and vague.  Absent more, the descriptions were not such as to allow any weight to be placed upon the assertions.

   [17] Affidavit Mr Lorde filed17 August 2016 [2]

4. One incident that was particularised was an allegation that pre separation, in 2012, the mother tried to strangle R.  The father described that the mother held R by the neck with her forearms, although there was no trouble for R breathing.  The father says that he pushed her off R.  The father’s description of the event made little sense.  It was difficult to see how the event constituted an attempt to strangle, or why the mother would behave in such a manner toward R, without some further description or context around how the event allegedly occurred.

5. The father particularised another incident where he says that he was forced to restrain the mother for her own protection.  This incident, he said, occurred in 2010.  He restrained the mother because, after an argument regarding the cost of telephone calls to China, and arguing about schooling (at a time when R must have been about 2 years old), she was trying to throw herself out the window.  These descriptions were difficult to make any sense of.  Without any further description or support, or adequate questioning directed toward the mother about the alleged incidents, the father’s vague and odd descriptions of violence by the mother against the children were insufficiently cogent to cause me to conclude that the mother has inflicted family violence upon the children.

6. As to violence upon the father, the father questioned the mother about a scar on his hand, asserting to her that it had been caused by her biting him.  She initially responded that she did not remember biting him, then amended her answer that she did not bite him unless he was annoying her or it was self-defence, for example, if he held a knife to her neck and then she did something to him.  The presence of the scar, and the inconsistent and vague answers by the mother led me to conclude that the mother may have engaged in violence toward the father. 

7. The mother’s assertions against the father were most comprehensively found in Exhibit C2.  She gave some description of mutual violence.  All descriptions lacked context, or sufficient description to allow findings either of their occurrence or a risk flowing from such, to be made.  Absent adequate description in the affidavit material, or adequate questioning regarding such matters it would be dangerous to rely on the evidence in its current state.

8. A more particular description came from Exhibit M1 which contained a number of family violence orders, and medical correspondence indicating that in 2013 the mother had complained that the father had punched her in the jaw and caused her injury in 2012.  The circumstances of the making of this report are unclear.  This complaint, and alleged incident, post-dated the earliest Apprehended Violence Order (NSW) obtained by the mother.  No detail of the actual circumstances said to surround the striking of the blow were provided.  At one stage of the proceedings the mother asserted that her jaw had been broken by the father.  M1 did not support this assertion.  When this was brought to her attention, the mother asserted that this was a matter of language.

9. The mother also held the father as responsible for the deflation of a car tyre.  Her description did not enable me to find any connection between the tyre and the father.  She had, however, told R that the father was responsible.

10. The mother also raised with the Consultant an issue of potential sexual abuse by the father of C.  At its highest this is contained at [42] of Exhibit C2.  The evidence is not sufficient to point to either actual sexual abuse, nor to a risk of sexual abuse.  There was no evidence to suggest that the redness, or itchiness was an indicator of abuse.  It is notable that there was neither a report to a child protection authority by the mother, nor was the mother seeking to either stop the father seeing C, or even to be supervised. Given these aspects of the matter being raised, it is unsurprising that the Consultant did not rely upon this matter in her evaluation.

11. Family violence is a significant matter and is treated as such by the Family Law Act 1975.  It is a key statutory consideration.  Its presence changes the manner in which the Court reasons with respect to the allocation of parental responsibility, which in turn changes the pathway by which the Court considers how a child will spend time with a parent.  It is a key component in both the primary considerations and the additional considerations.  Violence in the home has the capacity to profoundly damage those exposed to it.  For some, exposure to violence as a child echoes throughout that person’s adult life.  Its importance means that it is a matter that requires, when present within a family, the presentation of appropriate evidence so that the risks and consequences may be assessed.

12. In this case, the ability of the Court to consider family violence has been compromised by the fact that the parents were self-represented.  Absence of appropriate evidence to support the generalised contentions made by each means that while a risk between the parties can be identified, which of the parties constitutes the risk cannot be delineated.

13. I am left with significant uncertainty as to what violence has occurred between the parties.  It appears highly likely that some violence has occurred between the parties, although the poor state of the evidence does not enable a finding to be made as to who instigated the violence, or the frequency or extent of the violence.  However, even though uncertain, when coupled with the severe hostility between the parties, there is a present risk of violence occurring should the parties come into contact with each other.

China

1. The mother feels that because the “biological father is alive (she) must be locked up in the ACT”.  She seeks to move to China.    In the alternative she seeks to move to other cities in Australia, each for one year depending on work.  She did not specify which city it would necessarily be.  If she moves to China she proposes returning for one month each year for the father to have daytime, but not overnight time with the children.  She says that she has recently married Mr F, a 45 year old journalist who lives in City B.  No affidavit was provided by him, and little detail of either him or the relationship was given.  The mother was born in China, and says that she now has Australian, but not Chinese citizenship.  She says that she feels isolated and lonely in Australia.  However, her husband will consider coming to Canberra to live, in particular if the mother is unable to move to China.

2. The mother was uncertain what the visa arrangements might be for the children if she took them to China, but was confident that they could be worked out.  She pointed to the fact that she had previously travelled to China three or four times with the children and returned.  However, on all but one occasion this was in the context of an ongoing relationship with the father.

3. The mother thought that the children would cope with and benefit from a move to China, due to the exposure to the culture, the access to family, the education, including language, mathematics and science.  In her view the children could adjust, be tough and resilient and get used to it.  She did not want the children to be “flowers in a greenhouse”.  This implied acceptance that the children would find the change difficult.

4. China is not a Hague Convention country.  There is no legal mechanism to compel the return of the children to Australia from there.  Any return relies upon the mother deciding to return them, either out of a sense of obligation caused by the orders of this Court or caused by a recognition of the importance of the children knowing the father, or because of some other reason for compelling the return, such as the presence of assets.

5. The mother’s family, including her new husband, live in China.  She has lived a considerable part of her life in China.  The mother conceded that all of her assets are in China.  She does not regard the father as being of benefit to the children.  She bears a strong hostility toward the father, as he does toward her.  She resents being in Canberra.  She has provided no clear evidence of the visa arrangements for either herself or the children. 

6. There is a strong risk that the mother would not return the children to Australia to spend time with their father if she was permitted to remove them to China, even for a short period.

7. The Independent Children’s Lawyer rightly described a move by the mother to China as being the “death knell” for the father’s involvement in their lives.

Discussion

Parental responsibility

1. Section 61DA applies a presumption that equal shared parental responsibility is in the best interests of the children. Unless that presumption is rendered inapplicable and orders are made otherwise than for equal shared parental responsibility, or is rebutted because equal shared parental responsibility is not in the best interests of the children, the power to make orders is constrained by the reasoning process set out at s 65DAA of the Act. If rebutted, then it is not open to the Court to make an order for equal shared parental responsibility, as it is not in the best interests of the children to do so.

2. Determining the allocation of parental responsibility commences with the application of the presumption that equal shared parental responsibility is in the children’s best interest. Given the limitations to my findings as to violence, it has not been established either which party engaged in violence, or whether that violence was such as to cause fear, or to coerce or control. It has not been established that whatever violence occurred fell within the definition of family violence as set out at s 4AB of the Act. This means that the presumption is not rendered inapplicable by virtue of family violence. However, as allowed by s 61DA(4), I find that the presumption is rebutted as it is not in the children’s interest that there be a sharing of parental responsibility.

3. In this case, there is no present capacity for the parents to cooperate in decision making in relation to the children. Their adverse views of each other, particularly as demonstrated to the children, the mother’s view of the relationship with the father as lacking any benefit for the children, the father’s view that he is being taken advantage of if he is offered further time with the children, and their manner of communication with each other, means that sharing of parental responsibility is both unworkable and likely to expose the children to further conflict and ill will. That is, the parents have no ability to do what would be required of them if there were to be equal shared parental responsibility per s 65DAC, that is, to consult, to make a genuine effort to come to a joint decision, and to jointly make decisions.

4. This determination flows from both a consideration of the inability of the parents to do what is required if there was an order for equal shared parental responsibility and a consideration of the matters contained in s 60CC as they pertain to parental responsibility and the best interests of the children. In this respect s 60CC(3)(i),(l) and (m) are dominant. In terms of the attitude to the responsibilities of parenthood, the parents have no capacity to jointly share duties and responsibilities concerning the care, welfare and development of the children. They lack the capacity to agree about future parenting. The father does not support the children’s right to enjoy their culture. The mother has limited capacity to support the children in their right to know and be cared for by the father. In relation to the prospects of further litigation, the level of difficulty between the parents is such that a requirement to cooperate in decision making is highly likely to result in further litigation, as commonality in decision making is unavailable. In relation to any other fact or circumstance, the exposure of the children to conflict flowing from the obligation to jointly make decisions, even where such falls short of family violence, is likely to heighten R’s anxiety.

5. The question of who parental responsibility should be allocated to will be reliant upon who will have the major responsibility for the care of the children.

Nature of care and time with each parent

1. The most significant considerations in determining how the children might spend time with their parents flows from a consideration of the nature of the children’s relationship with their parents and the benefits of meaningful relationship with the parents.

2. While both of the parties “have limited insight and empathy for their children’s needs”[18] they each have a positive relationship with C.

   [18] Exhibit C2 at [80]

3. While the mother has a close and secure relationship with R,[19] she involves him in the adult decision making process.  She does not shield him from her conflict with the father.  She regards herself as both mother and father and the father as without worth for the children.

   [19] Exhibit C2 at [80]

4. The father’s relationship with R is deteriorating.  There has been a significant change in R’s presentation with the father between the two family reports.  While the relationship was apparently good enough for the mother to leave the two children with the father while she travelled to China in early 2016, there is no longer overnight time, and R presents as anxious with the father.  The father has not shielded R from his adverse views of the mother, which adds to the difficulties R has with his father.  In particular his anxiety is likely to be heightened with overnight time.[20]

   [20] Exhibit C2 at [79]

5. The differences in the nature of R’s relationships with his mother, who has been his long term primary carer, and his father, who presently does not have overnight time, tends toward a conclusion that the mother ought to remain the primary carer for R. This is reinforced by the assessment of the anxiety likely to be suffered by R with overnight time with the father.  Ms A’s view that the children ought to be treated, in relation to time with the father, in the same manner as each other,[21] along with the fact that the mother has been the primary carer for C and the father has had much more limited time with C, supports a conclusion that the children ought live primarily with their mother. 

   [21] Exhibit C2 at [79]

6. However, there remain benefits for each of the children in having a relationship with their father.  It is apparent that he has a deep care for his children.  While it might be the subject of conflict between him and the mother, he is closely concerned for their well-being.  Further, meaningful time contributes to optimal development for each of the children, particularly for R in how he relates to his peers and develops a sense of self, and for C in increased cognitive ability and better peer relations.  This means that it is strongly in the children’s interest to maintain relationship with their father.

7. While there did not seem to be a question as to the ability of the father to have such a relationship with C,[22] there was a significant question as to the father’s ability to manage R’s present anxiety.  The father’s proposals that the children spend half or more than half their time with him do not deal with the current difficulties in relation to R.  It may be that the anxiety will abate in the context of spending time with his father.  This, according to Ms A, depends upon the manner in which R and his father interact, and the father managing the stress in a manner that he did not demonstrate at the assessment.

   [22] Exhibit C2 at [78]

1. Additionally, the regime proposed by the father would require significant cooperation between the parents, which is not available.  The lack of cooperation where, on his proposal he would have the children each evening after school, would be a breeding ground for conflict that would inevitably affect the children adversely.

2. Ms A’s recommends a regime of day times with the father rather than overnight.  This is a regime that appears likely to minimise the anxiety currently experienced by R, and consequently call upon the father less to manage the anxiety.  The problem with a day time only order is that it is a poor long term solution.  In the normal course it might be expected that as a child becomes older, overnight time will be able to be dealt with by the child away from a primary carer.  However, given the dynamic between these parties and the anxiety of R, it is not possible to pre-set an appropriate regime to transition to overnight time.  Acknowledging this problem, the day time regime proposed by Ms A strikes an appropriate balance between dealing with the difficulties in the father’s relationship with R, while providing both children with the potential to enjoy the significant benefits of relationship with the father.  While such a regime poses difficulties in the context of the relationship between the parties, it poses less of a challenge than would be caused by overnight time.

3. This will mean that the mother will have the primary care of the children, including all overnight care.  Subject to the question of relocation, the father will have frequent, but not overnight time.  This will allow a strong involvement in the children’s lives, but an amelioration of R’s anxiety.

Relocation to China

1. It is necessary to weigh the proposals set out by the mother for the living arrangements for the children.

2. The mother proposes to move to China for approximately two years.  In the event that she does so, she proposes that the children have daily time, but not overnight time, with the father for a period of one month each year.  Her alternative proposal is that she relocate to other cities for a period of one year each depending on work.  This proposal was uncertain, coming from the mother whilst under cross examination.  On the current state of the evidence it cannot be assessed.  Further in the alternative she proposes that the children continue their current two afternoons per week with the father.

3. The mother emphasised the benefits of exposure to the Chinese culture and language, of the family bonds and the education benefits.  There was, however, almost no description of what the living arrangements would be if she lived in China.  There is little basis upon which I could understand what life might be like for the children in China.  While R indicated to Ms A a degree of closeness to his Chinese family, I know little of the contact that they have either had or would have with the children.  As indicated previously, the mother accepted that the change would be difficult for the children.

4. While the best interests of the children are paramount, they are not the sole consideration and there is no requirement that the mother demonstrate ‘compelling’ reasons.[23]  The mother expressed significant frustration at being, in her mind, captive in Canberra.  A move to China would alleviate this.  The mother would be closer to her family and be able to enjoy their support, although there was little evidence as to the degree of contact they might have in China.  The mother hopes for better work in China for herself.  The evidence was not sufficient to assess the reality of that hope.  It does seem that a benefit would be the mother being able to be with her husband.  The mother has indicated that if she is unable to move to China her husband will consider a move to Australia.  There was little evidence of the nature of the relationship between the children and the husband. 

   [23] Morgan v Miles (2008) 38 FamLR 275 at 291

5. I accept that there are benefits to a move to China.  The lack of evidence does not permit me to assess the value of the particular benefits to the children in moving to China.  Against that, if the mother is permitted to remove the children to China, there is a likelihood that they will spend no time in the future with the father.  A move to China is likely to end the children’s relationship with the father.  Given the benefits of relationship with the father, the uncertain benefits of a move to China are outweighed by the detriment of a potential loss of relationship with the father.

6. This means that the mother will not be able to relocate the children’s place of living to China.

7. The risk of non return if the mother were to travel to China with the children is such that the mother will not be permitted to remove the children from Australia to China, even for a visit.  Such a visit, while potentially of benefit to the children, carries too great a risk that it would also constitute the end of the relationship with the father.

Orders

1. The orders will provide for the children to live with the mother and to spend regular, although not overnight time with their father.

2. The mother will have sole parental responsibility, but will be obliged to authorise the passing on of information about the children’s health and education to the father.

3. The mother will not be permitted to remove the children from the country.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 March 2017.

Associate: 

Date:  20 March 2017