Mabry & Neilson
[2013] FCCA 478
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MABRY & NEILSON | [2013] FCCA 478 |
| Catchwords: FAMILY LAW – Parenting – international relocation – infant child – very short marriage – mother is Japanese – family violence allegations – parental responsibility – primary parent’s capacity – establishing and maintaining a relationship between infant child and non-primary parent. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Regulations |
| Paskandy v Paskandy (1999) FLC 92-878 G & C [2006] FamCA 994 |
| Applicant: | MR MABRY |
| Respondent: | MS NEILSON |
| File Number: | DGC 2720 of 2012 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 28 – 30 May 2013 |
| Date of Last Submission: | 30 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the Respondent: | Mr T Puckey |
| Solicitors for the Respondent: | Nancy V Battiato |
ORDERS
The mother have sole parental responsibility for the child [X].
At all times the mother keep the father advised of the child’s school and medical practitioners and, upon request, provide written authority to such schools and medical practitioners to give the father access to all events and information normally afforded parents.
The child [X] live with the mother.
The mother be permitted to relocate with [X] to live in Japan after 31 January 2014.
The father spend time and communicate with [X] as follows:
(a) until the child and mother relocate:
(i)each Saturday and Sunday from 10.00 am until 4.00 pm on each day for four consecutive weeks and thereafter from 10.00 am on the Saturday until 4.00 pm Sunday;
(ii)at such other times as agreed between the parties from time to time in writing;
(iii)that for the purposes of this time between [X] and the father, the mother, by herself or her agent, deliver [X] to the father’s notified address at the commencement of each such period and the father, by himself or his agent, return the child to the mother’s notified address at the designated time at the conclusion of each such period;
(b)from the time the child relocates to Japan;
(i)at any reasonable time in Japan provided that the father give not less than 28 days prior notice in writing to the mother of his intention to travel to Japan for this time with [X];
(ii)from the time that [X] turns five (5) years of age in Australia on one occasion per calendar year for periods of not less than three weeks with the father to be responsible for the payment of the airfares including those of any accompanying adult required by law, regulation or airline policy and conditional upon such time being during the child’s school holidays and conditional upon the father giving the mother not less than forty-two days prior notice in writing on each occasion of his intention to exercise such time and on the father providing the mother with copies of pre-paid return airfares and itinerary not less than fourteen days prior to travel;
(iii)by telephone, Skype and email at reasonable times as agreed between the parties and failing agreement then a minimum of two occasions each week being Monday and Thursday at 5.00 pm Japan time by Skype with the mother, at her own expense, to ensure that she has Skype capacity;
(iv)at such other times as may be agreed between the parties from time to time in writing;
The father sign and return to the mother within fourteen days of being provided with any passport or visa application in respect to [X] failing which the mother have leave to apply to this Court on short notice.
The parties MR MABRY and MS NEILSON their servants and agents be and are hereby restrained from removing the child [X] born [in] 2012 from the Commonwealth of Australia without the written consent of the other party, or by order of the Court.
The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders until 31 January 2014.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR MABRY and MS NEILSON from removing the said child [X] born [in] 2012 from the Commonwealth of Australia.
Upon expiration of the period referred to in Order (8) above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
IT IS NOTED that publication of this judgment under the pseudonym Mabry & Neilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SHEPPARTON |
DGC 2720 of 2012
| MR MABRY |
Applicant
And
| MS NEILSON |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the one child of the parties, [X] born [in] 2012 (aged 10 months). The matter proceeded in the circuit sittings of the Court at Shepparton for convenience and at the request of the parties.
The applicant, Mr Mabry, represented himself at the trial. After some difficulty in eliciting from him in any detail of the orders that he seeks, I am satisfied that he argues for the following:
(1) That the airport watch list currently on foot in respect to [X] remain;
(2) That [X] live in a shared care arrangement between the parties but without Mr Mabry committing as to the particulars of such a regime;
(3) That the parents have equal shared parental responsibility for [X];
(4) That there be “safeguards” in the form of injunctive orders made by the court to provide “protection and security” for [X] in respect of what Mr Mabry claims is the mother’s “psychotic illness”;
(5) That the mother be restrained from moving her residential address for [X] from outside a 20 kilometre radius of the [W] post office.
The mother is a Japanese national. She is in Australia on a spousal visa or now some similar visa entitlement following the parties’ separation. The mother was represented by Counsel at the hearing. She also had the assistance of a Japanese interpreter. Her application seeks the following orders:
(1) That the airport watch list order be removed;
(2) That she have sole parental responsibility for [X];
(3) That [X] live with the mother;
(4) That the mother be permitted to remove [X] from the Commonwealth of Australia to reside in Japan, and for that purpose the Australian Passport Office is authorised and requested to issue an Australian Passport for [X] upon application by the mother alone and without the consent of the father;
(5) That [X] spend time with the father in Japan at times to be agreed between the parties in the event that the father elects to travel to Japan and that such time then be facilitated by the mother’s parents;
(6) That the mother facilitate [X] communicating with the father by electronic means such as video-conferencing and/or telephone at any reasonable time that the father may initiate such communications;
(7) That the father be at liberty to send cards and gifts to the child at reasonable intervals and that the mother do all things required to ensure such material is provided to the child and that the child is assisted to respond;
(8) That the mother:
(a)Keep the father advised at all times of her residential address, an email address upon which she and/or the child can be contacted, and landline and mobile telephone numbers;
(b)Advise the father immediately in the event that the child suffers any serious illness or injury;
(c)Authorise any medical practitioner upon whom the child may attend from to time, to communicate with the father in respect to the child’s medical condition and/or requirements;
(d)Authorise all schools in which the child may attend, from time to time to:
(i) Provide the father with copies of all school reports, school notices and school photographs in relation to the child;
(ii) Communicate with the father, either by telephone, in writing, or by personal attendance, in respect to the child’s progress at his school.
In final submissions counsel for the mother also conceded that it may be open and proper for orders that the child travel to Australia but obviously when he is of age to do so.
The mother says that she will remain in Australia and proposes that she be [X]’s primary carer should the Court determine against her application to relocate the child to Japan.
Background
This matter offers a sad statement and warning as to the potential pitfalls of internet relationships and, in particular, those that produce children at an early stage of the relationship. These parents, from fundamentally different cultures, met on the internet as recently as 2011. Their first face-to-face meeting was in March 2011 in Japan and for no more than two weeks. During this period the parties became engaged to marry. The father returned to Japan in November 2011 for a second visit of only a few weeks. During this visit the mother conceived and the engagement was terminated and reinstated. The father returned to [W] in regional Victoria. The mother arrived in [W] [in] 2012. The parties were married [in] 2012. [X] was born [in] 2012. The parents separated [in] 2012. Such is a relationship which must surely have not allowed these parents time to get to know each other, let alone prepare themselves for first-time parenthood. Cultural and personality issues appear to have been at the forefront since their second meeting in November 2011 when the engagement was terminated for a short period. These crucial and fundamental differences of cultural background and personality together with what I accept to have been admirable but unrealistic expectations, not surprisingly came quickly to the surface causing friction and angst between these parties almost immediately. The affidavit material now before me from and on behalf of each parent is highlighted and dominated by allegations of physical, emotional and financial violence between them. With the benefit of hindsight, this was not a relationship that is a good advertisement for romance by technology. Having considered the material and having the benefit of seeing and hearing both parties in the witness box, I am satisfied that these parents were inherently and grossly underprepared for the inevitable difficulties in establishing and maintaining their own relationship and almost certainly physically, culturally and emotionally without the tools to successfully parent their child.
The result of all this is [X] who is now 10 months old. His parents separated when he had been in this world for less than two weeks. Those parents commenced litigation when he was just three weeks old. That litigation has since been fiercely fought with each parent keen to highlight the negative traits of the other. Family members have taken sides and long standing family disharmony and feud within the father’s family has again come to the fore. The only saving grace is that young [X] is thankfully and hopefully oblivious to these disputes between adults who should otherwise be important and beneficial people in his life but it is he who will have to negotiate his way through childhood, adolescence and adulthood bearing the consequences.
Mr Mabry obtained an ex parte order on [omitted] 2012, when [X] was not yet one month old, placing his name on the airport watch list. That order has remained. As a consequence [X] has not had the benefit of meeting his Japanese extended family.
The matter was transferred from the urgent listing of the Court in Dandenong to the Shepparton circuit of the Federal Magistrates Court (as it then was). On 12 November 2012 orders were made allowing [X] to spend supervised time with the father at the [omitted] Children’s Contact Service at Shepparton. The mother and the child were in occupation of the unit previously rented by the parties with the father to meet the rental and utility expenses. That order expired when the matter came back before the court on circuit in February 2013. The father had become a student. He is not otherwise employed. The result for the mother and [X] is that they now occupy a caravan in the yard of a house of Mr M in [B]. Mr M is the biological father of Mr Mabry, although such relationship as there has been between father and son has been virtually non-existent or, at the very least, antagonistic in their few meetings since Mr Mabry’s own birth which followed a fleeting liaison between his parents.
The relevance is that Mr M now supports Ms Neilson, both by providing an affidavit in these proceedings and providing her with necessary temporary accommodation and some financial support.
Mr Mabry’s mother, Ms M, vehemently and vigorously supports her son in these proceedings. She has provided the affidavits which generally support and attempt to corroborate Mr Mabry’s version of the relationship with Ms Neilson. Ms M’s affidavit material leaves the reader under no illusions as to her negative opinion of Mr M and of his role in providing assistance for Ms Neilson and [X].
Thus, it is that young [X] has entered this world and enjoyed his first 10 months.
The father is 33 years old. He lives in a rented unit in [W]. There is no evidence before me that Mr Mabry has re-partnered. He is a full-time student studying a pre-vocational diploma so as to allow him entry into a [qualification omitted]. There is no evidence before me that Mr Mabry is otherwise currently employed. He has an interest and skills in [omitted] and also a strong interest in matters [omitted]. Mr Mabry’s evidence, both in court and in affidavit, regularly noted [omitted] in support of his claimed strong character and values which he argues would be of benefit in his care of his son.
There is no evidence before me that Mr Mabry suffers or has suffered from any physical or mental health issues.
Mr Mabry’s mother, Ms M, also lives in [W]. She is a self-employed [omitted] and deposes that she is prepared to assist with financial and emotional support for Mr Mabry in the care of [X].
The mother, Ms Neilson, is 38 years of age. She has no children other than [X]. She has not re-partnered. Ms Neilson is from Japan. She is now in Australia under her current visa entitlement and has no family members living in Australia.
There is no evidence before me of any probity or in proper form that the mother suffers any diagnosed mental or physical illness. It is the father’s case that the mother may suffer or has suffered from a psychiatric or emotional illness. He alleged that she suffered from post-natal depression. In his opening remarks he stated his concerns that the mother suffers from a “psychotic illness”.
The mother’s work history is as [omitted]. She has [occupation omitted] to Australia. She has previously lived, worked and studied in Cairns for a year or so, this being some years ago. She otherwise lived with her family in Japan prior to her marriage.
Ms Neilson does not work. She is occupied with the care of [X] who is still an infant. She now receives some Centrelink benefits. She receives some support from Mr M and his wife and daughters. She and [X] live in their yard in a caravan. Ms Neilson was obliged to leave the unit in [W] when Mr Mabry stopped meeting the rent when the interim orders expired in early 2013. The landlord took eviction proceedings in the Victorian Civil and Administration Tribunal (VCAT) against the tenant, Mr Mabry. Ms M conducted those proceedings on behalf of her son and for a period joined Ms Neilson as a defendant.
Ms Neilson also has an interest in [omitted].
The evidence is that Ms Neilson has been receiving some crisis support from various bodies. She and [X] were provided with crisis shelter accommodation for a short period. It is a part of Mr Mabry’s case that government departmental workers and staff at the [omitted] contact centre are misinformed and partisan towards Ms Neilson in this dispute and, in particular, as to who is the perpetrator and who is the victim in respect of the family violence between them.
The Issues
The mother’s case is that she should be the primary care of [X]. The child’s main attachment is to her. She says that time between the father and the child has been limited and effectively constrained to the contact centre. She argues that the father’s proposal of shared care is not in the child’s best interests and unworkable for many reasons including that the parties have an antagonistic, non-trusting and non-communicative relationship.
The mother says that, as the primary carer of [X], she needs support physically, emotionally and financially. She says that her support networks are with her family in Japan. She argues that she is isolated as a single parent in regional Victoria.
The mother argues that she has shown an acknowledgment and understanding of the need for [X] to have a relationship with his father. She says that she has demonstrated the capacity and willingness to encourage and facilitate that relationship and that she would continue to do so if able to relocate with [X] to Japan.
The mother says that she has been a victim of family violence in its physical, emotional and financial forms and that she cannot, therefore, rely on the support of the father if she is to parent [X] in Australia.
The mother adduced evidence in an affidavit by Mr M. He is the biological father of Mr Mabry. They have effectively never enjoyed a relationship. There have been fleeting meetings including an invitation for Mr M to attend the parties’ wedding. The relationship between Mr M and Mr Mabry is most obviously, from the cross-examination by one of the other in the witness box, a challenged, untrusting and toxic one. It is clear that Mr Mabry resents Mr M supporting Ms Neilson and [X]. Ms M’s evidence is similarly resentful of any intervention by Mr M.
Mr M gave evidence that he has supported Ms Neilson and the child out of their need. He says that there have been no other options available for this mother and he was vocal in the witness box in his views that Mr Mabry had been neglectful in his support of his wife and son. Mr M gave evidence that the current arrangement of the mother and child living in a caravan is temporary only and that the caravan is, in fact, a borrowed one.
The father’s case is that [X] should have the benefit of a meaningful relationship with both parents and that this can only happen if [X] has the opportunity for regular and frequent time with him so as to develop those necessary attachments. Mr Mabry argues that he has the skills and willingness to share the care of [X] in accordance with the principles of the relevant International Conventions of Human and Children’s Rights together with the fundamental principles set out in section 60 CC of the Family Law Act. It is clear to me, from his regular references during the hearing, that Mr Mabry is fully appraised of International Conventions and Treaties in respect of children.
Mr Mabry claims that it was he who was the victim of the family violence within the relationship and argues that this is indicative of the mother’s attitude to him and supports his claim that she will not assist or encourage a relationship between [X] and him if the child is permitted to leave Australia.
Mr Mabry argues that [X]’s Australian culture and relationships with his extended family will be denied him if permitted to leave Australia.
Mr Mabry argued that the Japanese system of family law is a matriarchal one and it is unlikely that he would be able to enforce any Australian orders in his favour or to achieve any reasonable time and relationship with [X] if the child is permitted to relocate to Japan. He says, and it is conceded, by Counsel for the mother, that Japan is not yet a signatory to relevant Hague Conventions.
Mr Mabry says that the mother’s proposals for her to relocate but for [X] to maintain a relationship with him are unrealistic given the parties’ financial positions and prospects.
The Evidence
Mr Mabry relies on his trial affidavit sworn 4 May 2013. He adduced evidence from his mother, Ms M and from Ms C who is a registered nurse formerly employed as a maternal child healthcare nurse in [W].
Mr Mabry represented himself in court. He did so in a competent and courteous manner both to the court and the witnesses. His cross-examination was lengthy and intrusive and he put his case forcibly.
Ms M was understandably partisan to the father’s case. She deposes to being welcoming and supportive of the mother previously but quite obviously now takes the father’s position in any issue of credit or disputed fact between the parents. The rapid and caustic nature of the breakdown of the parents’ relationship together with the tenor and tone of Ms M’s evidence leaves me in little doubt that she would not feel able to be directly supportive of Ms Neilson as primary parent of [X]. Ms M expressed her views of Ms Neilson clearly, directly and vigorously in the witness box.
Ms C’s evidence is of little probative assistance to the primary issues in dispute. She deposes to meeting the father and his mother in August 2012 and hearing and understanding their concerns in respect of Ms Neilson and her alleged propensity for violence. It is clear that Ms C worked with others who had heard Ms Neilson’s version of history and that Ms C herself is unfortunately a victim of these proceedings in that she believes that her concerns in respect of Ms Neilson were not taken seriously by her superiors and she has since felt the need to resign from her position. Her concerns were such that she felt obliged to make a notification to Child Protection. In essence, however, Ms C presented as a concerned professional but one who was informed only on one side of the dispute and concedes that she has not met Ms Neilson or the child. She says that she would be prepared to provide ongoing assistance to Mr Mabry in his care of [X].
Mr Mabry had caused a number of other affidavits to be filed from various people. However, for various reasons he was unable to arrange for the deponents to be at court and those affidavits were not read into evidence.
The mother gave evidence and relied on her affidavit sworn 29 April 2013. She adduced evidence from Mr M.
The Relevant Law
Matters involving the proposed relocation of a child are among the more difficult that come before our courts. This difficulty is accentuated when the child is very young. Many of the considerations that the courts are obliged to reference in arriving at a determination of a child’s best interests in their living and parenting arrangements are amplified by reason of distance and the effect on the child’s future relationships with each of the parents and others which will inevitably result from a relocation. That effect is compounded where the proposed relocation is an overseas one. If such a move is permitted to take place then the primary parent will inevitably assume a far greater role and presence in a child’s life than would be the norm. Conversely, however, the relationship between the child and the remaining parent becomes less frequent, less regular, and may suffer under the strains of distance and difficulties in communication and organising direct contact. As a result, and whatever the determination by the court, one or other of the parents will understandably feel aggrieved. If the relocation is allowed then the remaining parent must reassess all of their ambitions and expectations of the future relationship with their child. There will be feelings of loss. Those feelings are often transferred to the other parent which in turn impacts on the abilities of those parents to communicate and cooperate over long distances. On the other hand, an order that for all practical purposes prevents a parent from relocating to their place of choice will also carry feelings of loss, unhappiness, bitterness and the need to adjust their own lives and ambitions. Again, those feelings may manifest in bitterness towards of the other parent. Again, the ability to cooperatively parent will be severely challenged. These senses of loss and unhappiness are felt by members of extended families such as grandparents.
It is important to understand that the jurisdiction of this court coming from the Family Law Act is essentially in respect of children. Whilst a court can allow or prevent the relocation of a child, the court cannot per se prevent the freedom of movement of adults. However, in many matters such as the one now before me, the mother commits to remaining in Australia if I do not allow the relocation of [X].
The Family Law Act 1975 (“the Act”) itself is, in fact, silent as to the concept of relocation of children. In that sense relocation is neither prohibited by law nor is there a presumption against it. That is, the proposal by a parent to relocate a child, be that intra-state, interstate or internationally, is only one matter for the court’s consideration amongst many others in arriving at orders which on balance the court considers to be in the best interests of the child. It is those best interests of the child which are my paramount consideration.
As the Full Court noted in Paskandy v Paskandy[1]:
There can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[1] (1999) FLC 92-878 at [86,456]
Generally in determining the parenting arrangements and responsibilities for a child, the court is to follow a pathway of consideration confirmed by the Full Court in Goode v Goode[2]. The starting point is that there is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility.[3] “Parental responsibility” is defined in the Act [4] as:
…in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[2] (2006) FLC 93-286
[3] S.61DA
[4] S.61B
For practical purposes these responsibilities are often exercised in matters of long term importance for children, such as issues of religion, education and medical procedures as opposed to the shorter term day-to-day decisions.
The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with the parent has engaged in the abuse of a child or in family violence.[5] “Family violence” had a broad definition in the Act as follows[6]:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
[5] S.61DA(2)
[6] S. 4AB
Alternatively, the presumption of equal shared parental responsibility can be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to exercise equal shared parental responsibility[7].
[7] S.61DA(3)
In the matter now before me, the mother seeks an order for sole parental responsibility arguing both that there is evidence rebutting the presumption and that the presumption does not apply because of family violence.
If the presumption does apply or if I determine that there should be an order for equal shared parental responsibility then I am obliged to consider, firstly, whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable? If the answer to either of these questions is in the negative then I am to move to consider whether the child spending “substantial and significant time” with each of the parents is both in the child’s best interests and reasonably practicable?
“Substantial and significant time” is defined in the Act [8] as:
(a) The time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
[8] S.65DAA(3)
(b) The time that the child spends with the parent that allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
The father’s proposal in respect of [X] is for one of equal time. He argues that this would be in the child’s best interests but, importantly, that a relocation of [X] to Japan would obviously not allow the practical implication of such a regime. A relocation of this young boy to Japan would also not allow for a regime of “substantial and significant time” in the terms of its definition.
In determining [X]’s best interests I must reference all of the statutory considerations set out in sections 60CC(2) and (3) of the Act. These are divided into “primary” and “additional” considerations. I am to address each of them in respect of the probative evidence before me and the proposals of the parties and to attribute weight accordingly. The two primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Although these are both primary considerations, recent amendments to the Act stipulate that I am to place greater weight on section 60CC(2)(b) being the family violence provision, in determining [X]’s overall best interests[9].
[9] S. 60CC(2A)
The additional considerations at section 60CC(3) are the following:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The factors under section 60CC(2) and, in particular, (3) are pragmatic and evidence-based considerations. Section 60B gives the fundamental basis of the part of the Family Law Act that deals with children and provides the objects and principles of that legislation. Section 60B states:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In summary, therefore, I am to consider [X]’s best interests within the context of the competing proposals of the parties and the evidence before me. I am to determine whether the presumption of equal shared parental responsibility applies it whether it is rebutted. I must consider the reasonable practicality of the parents’ proposals and then I am to arrive at orders which are, on balance, in [X]’s best interests and are reasonably practicable in their application and aims.
The law – relocation
The significant amendments to the Act in 2006 were followed by debate as to the impact, if any, on matters involving the anticipated relocation of children. The Full Court in Taylor & Barker[10] confirmed the authority of Paskandy (supra) that an issue of relocation is to be considered within the general context of the section 60CC factors and not as a separate consideration. Their Honours stated:
In our view, his Honour dealt with the relocation proposed in the context of his considerations of s 60CC and s 65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
[10] (2007) FLC 93-345
In McCall & Clark[11] the Full Court noted the change in the Court’s approach to making parenting orders following the amending Act of 2006 in light of the principles in respect of the relocation cases established in A v A (Relocation Approach)[12], U & U[13] and KB v TC[14]. Significantly, the High Court in MRR v GR[15] recently emphasised the dual requirements of parenting orders to be both in a child’s best interests and “reasonably practicable” with an obvious significance for relocation matters and the requirement, should the presumption of equal shared parental responsibility apply and not be rebutted, for the Court to consider regimes of “equal time” or, alternatively, “substantial and significant time”.
[11] (2009) FLC 93-405
[12] (2000) FLC 93-035
[13] (2002) FLC 92-122
[14] (2005) FLC 93-224
[15] (2010) 240 CLR 461
The determination of whether a proposal or proposed order is “reasonably practicable” relies in the considerations in Section 65DAA(5):
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents‟ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents‟ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Importantly in matters such as that now before me where an international relocation of a child is anticipated the High Court in MRR v GR (supra) observed at paragraph [15] of the Judgment:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in S. 65DA(1) is not determinative of the questions arising under S.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
However, an examination of the Full Court decisions in children’s matters involving proposed relocation and post the 2006 amendments, and in particular, Taylor & Barker (supra), Sealy & Archer[16], Starr & Duggan[17], McCall & Clark (supra) and Hepburn & Noble[18] provides a number of principles in such matters which can be summarised as follows:
1. Relocation matters are parenting cases to be determined in accordance with Part VII of the Act;
2. The child’s best interests remain the paramount by not the sole consideration;
3. A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);
4. The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child. Remembering that neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
5. The child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such an adult “right” must ultimately defer to the child’s best interests.
Child’s best interests – section 60 CC factors.
[16] [2008] FamCAFC 142
[17] [2009] FamCAFC 115
[18] (2010) FLC 93-438
Primary considerations.
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of his parents.
[X] is just 10 months old. His parents have been separated since only weeks after his birth. His time with his father has essentially been limited to short periods in a contact centre. He has otherwise been in the care of his mother and it is fair to assume that his primary attachment, insofar as it can have been established, is with her. Equally, it is difficult to see that any firm attachments have yet been established between child and father. Mr Mabry’s case in one respect is argued strongly from the basis that this bond and attachment will not be achieved if [X] is living in Japan and the father in Australia.
In McCall & Clark (supra) the Full Court observed that the Act itself does not provide a definition of “meaningful” which is the qualitative adjective used in the section. Their Honours, however, noted with approval the views of Brown J at first instance in Mazorski v Albright[19] where her Honour thought the term “synonymous” with notions such as “significant”, “important”, “of consequence”, and “valuable to the child”. Notably, these terms are adopted in a qualitative rather than quantitative sense. In the matter now before me the mother argues that [X] can still spend time with the father with either Mr Mabry travelling to Japan or the mother bringing the child to Australia. The father argues that such time would be infrequent or irregular at best and that a “quality relationship” would be difficult to achieve regardless of but also on account of the limited quantity of time. It is clear that [X]’s youth is a relevant factor. An older child or teenager might maintain an established relationship by less frequent direct contact and by utilising various media such as telephones, Skype, and email. Mr Mabry argues that these communications are not open to [X] in a practical sense. More strongly, however, he argues that the relationship is not yet established or that such relationship that there is would not endure these difficulties.
[19] (2007) 37 Fam LR 518
The Full Court also accepted the view of Bennett J in G & C[20] where her Honour observed that the enquiry in respect of “meaningful relationship” is to be a “prospective one” but with a necessary examination of the current state of the relationship between child and parent. That is the Court is to look at the relationships into the future. It is necessary in doing so, however, to consider the nature of that relationship now.
[20] [2006] FamCA 994
A disadvantage of the mother’s proposed relocation is summarised therefore as its likely impact, both currently and into the future, on the establishment and maintenance of a meaningful relationship between [X] and Mr Mabry.
Whilst this is a “primary” consideration it remains simply one amongst many which the court must balance and attribute weight in ultimately making a determination that is in [X]’s best interests and one that is reasonably practicable. As the Full Court noted in Champness & Hanson[21]:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
[21] [2009] FamCAFC 96 at 103
The trial in this matter was highlighted by the emphasis placed by each party on the alleged violence by the other. Essentially, their allegations were uncorroborated. There is no medical evidence before me in proper form of injury to either or contemporaneous complaint. The evidence of witnesses is essentially self-serving. The allegations, however, are serious. Mr Mabry at paragraph 10 of his trial affidavit deposes to physical and emotional violence at the hands of the mother:
It was only days after [Ms Neilson] was discharged that she started to exhibit many outbursts. These vicious attacks could and would come from nowhere, ie, either as I was driving a vehicle down the freeway doing 110kms an hour and received numerous hits to my head where I would be forced to pull to the side of the road, and on another occasion when I had finished having a shower and I am confronted by [Ms Neilson] with a knife attempting to stab me in the chest. I felt in fear of my life. [Ms Neilson] would be totally enraged, completely out of control and shrieking. She would snap and go into a kamikaze-like mindset.
And at paragraph 12:
There were often times that even showering I felt vulnerable to such attacks and I would a (sic) squat down because I felt threatened. There were also times when I returned from work to find that the house had tables and chairs thrown around. These unprovoked attacks on me were becoming routine. These attacks were simply assaults on me. She had no legal cause. I would like to reiterate that [Ms Neilson] [omitted] which has conditioned her to have a great deal of strength. These attacks were not just physical. [Ms Neilson] would tell me that the baby can have someone else as his father. On 2 occasions she packed her suitcases and told me to say goodbye to the baby as I would never see him again.
There is also a reference to a danger to the baby. At paragraph 13 of his affidavit Mr Mabry states:
These unprovoked, numerous physical attacks; even attempting to stab me twice was of grave concern and not consistent with a person who has no mental issues. After repeatedly punching her stomach at 7 months gestation, refer voice recordings, I spoke to the Midwives seeking a psych assessment for my mentally ill wife. I explained [Ms Neilson]’s extremely controlling behaviours, for example, her making me eat a rice ball that had been in the rubbish bin for a day. The fact that I wouldn’t eat the rice ball came with an emotional attack with [Ms Neilson] saying that, “You took money from baby. You’re a bad father”.
I also explained how on one occasion I went to the fridge and on pouring half a glass of coffee milk there was an outburst from [Ms Neilson] saying it was hers and hers alone, even though it was my wage that supported our family expenses. These behaviours would on some occasions lead to physical attacks and I explained how I had to place [Ms Neilson]’s hands on the floor to prevent her from repeatedly punching her own stomach whilst pregnant and try to sooth her with kind words.
Mr Mabry claims that the mother was also “on antipsychotic medication” and had endured two suicide attempts in the 12 months before their marriage.
Ms Neilson denies the allegations made against her. She says that any violence on her part was retaliation only and in self-defence. There is no corroborative evidence of the father’s claims that the mother had attempted suicide and/or was prescribed antipsychotic medication.
Ms Neilson at paragraph 9 of her trial affidavit says:
During the period of the relationship the applicant yelled and screamed at me on a regular basis. The applicant has a problem with alcohol and would spend all of his money to buy alcohol; this meant that we would have very little money left over which prevented us from buying day-to-day things. When the applicant consumed alcohol he would display aggression towards me. On one occasion he became so aggravated that he broke the door in the unit where we were living in at [omitted]. The applicant has a volatile temper and on many occasions he has slapped me across the face and has pulled my hair. When he has treated me in this manner he would leave and not return for several hours later, leaving me on my own and unable to contact him on his mobile phone. When he would return he would be drunk and aggressive and would tell me to “Fuck Off”, “Jesus Christ, you are a fucking bitch” and “Fuck you”, “The Neilson family are dogs”. This behaviour was frequent during the period of the relationship while living in Australia.
At paragraph 16 of her affidavit Ms Neilson deposes that the father on 30 March 2012 became angry, grabbed her by the hair, pushed her away and that she fell, hitting her stomach on the steps. She deposes that she was struck across the face in or about July 2012 and later was dragged along by a car driven by the father.
The mother has for a time lived in crisis accommodation and had assistance from the Domestic Violence Unit. There was much and detailed cross-examination about the particulars of various allegations that were made by the mother. At the end of the trial, however, I am unable to make any determination as to credit between these parties in respect of allegations of violence. There is a general lack of corroboration on both sides and I am left with two very different versions of history. However, given the way in which this trial has been run with emphasis on matters of domestic violence, together with the copious affidavit material of each of the parties, and having had the benefit of seeing and hearing them give their evidence in Court where there was a palpable tension between them with regular aggressive responses or retorts, I am satisfied that an air of family violence has overwhelmed this short relationship. There was nothing in the evidence to suggest that either party has acknowledged his or her own role in this violence. Each is prepared to fully blame the other. There is a clear inability to communicate between them. They each seemed, from my observations, to lack any tolerance or understanding of the other and this situation is compounded by language and cultural differences. My observations of their personalities is such that I expect that the violence, both physical and emotional, would erupt between them with little cause. Whilst I am satisfied that violence prevailed between the two parties, I am unable to determine who the perpetrator was and who the victim was or, indeed whether they were perhaps equally culpable.
It is the task of the Court to make orders, insofar as it can, and on balance, which protect the children from such family violence or exposure to it. Recent amendments to the Act oblige the Court to put a higher degree of weight on these matters in the balance of process.
Additional considerations
Section 60CC(3)(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.
The child is just 10 months old.
Section 60CC(3)(b) – the nature of the relationship of the child with: (1) each of the child’s parents; and (2) of the persons (including any grandparent or other relative of the child).
[X]’s primary attachment must be to his mother. She is his primary parent. She has effectively been his sole parent given the parties’ separation soon after his birth. The father’s time with [X] has been limited. The opportunity to develop a bond has been limited by the short periods of time spent within the confines of a contact centre.
These difficulties have been compounded by Mr Mabry electing not to spend the time with his son since about 13 April 2013. He explained one missed visit by reason of a doctor’s certificate. His explanation for missing the other visits says much about Mr Mabry’s personality and his sense of “right and justice” which accords with my observations of him throughout the trial. He is of the view that the workers at the contact centre (and at the Department of Human Services) have taken a set against him. He believes that they are partisan towards the mother. He says that they blindly accept her version of history in respect of the family violence allegations simply because she is female. His adducing of evidence from Ms C was aimed at his viewpoint in this regard. There may or may not be some substance to his opinions and the evidence does not allow me to make findings that this is the case or, alternatively, to find that he is simply paranoid as to baseless conspiracy theories as suggested by counsel for the mother. What is important, however, is his own lack of judgment and insight in choosing to forgo visits with his infant son due to these personal principles. One may have thought that any opportunity for Mr Mabry to spend time with [X], regardless of the limitations, would be enthusiastically taken up by him regardless of any extraneous factors.
On any view of the evidence, [X]’s relationship with his father is a tenuous one. Simply by reason of opportunity, it cannot be an attached or bonded one. Similarly, there has been little or no opportunity for the Court or anyone else to evidence the father’s capabilities as a day-to-day parent and it is within that context that Mr Mabry seeks a shared care regime for [X].
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (1) to participate in making decisions about major long-term issues in relation to the child; and (2) to spend time with the child; and (3) to communicate with the child.
Save and except the observations I make in the paragraph above, there has been little opportunity for Mr Mabry to discharge his responsibilities as a parent. His time with [X] has been limited and constrained by conditions. Ms Neilson has taken on the responsibility for the full-time care of [X]. There is no evidence that the child has not met his milestones. She has continued to take [X] to the contact centre in accordance with interim orders and despite Mr Mabry’s non-attendance.
At paragraphs 10 and 11 of her affidavit Ms Neilson deposes:
When I was pregnant with [X] at times I felt tired. This would anger the applicant as I would not be able to attend to the cleaning, cooking and washing as I normally would. On one occasion I was lying down on the couch as I felt very tired. The applicant asked me to get up and cook some food for him. I said no, I was tired, and for him to do it himself as I didn’t feel well. He said, “No, it is your job. Go to the kitchen. You are lazy”. When I said no again he pushed me off the couch and lay down on the couch where I had been laying. I was very upset about this as it seemed that he did not care about me or that I was pregnant. The applicant was often jealous and possessive and would accuse me of having an affair in particular with my former boyfriend whom I had been with for one year, notwithstanding that we had separated several years ago. On one occasion the applicant threatened to kill me if I ever left him. This frightened me as I feel that the applicant is not stable.
When [X] was born I had a difficult delivery which resulted in my having a caesarean section. I found it really difficult when I came home from the hospital as the applicant did not help me with anything. He complained that he was tired all the time. Due to the caesarean I was restricted in what I could do and at times it was difficult to pick things up, however, notwithstanding the applicant’s lack of support I cared for [X] on my own.
The particulars of the above evidence were not challenged, or substantially challenged, by Mr Mabry.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
The mother is responsible for the physical and financial support of [X]. The father is now a student. The unchallenged evidence of the mother is that he left his employment as a [omitted] when she moved to Australia in March 2012. Also unchallenged was the evidence of
|Ms Neilson that the father would prioritise expenditure on alcohol and cigarettes and other extravagancies over and above the needs of the child. At paragraph 8 of her affidavit, Ms Neilson states:
I often spoke to the applicant and asked him to consider the needs of our baby, like cots, prams and clothing. I often encouraged the applicant in finding employment. On one occasion I paid $1000 for a [omitted] course, however, 3 weeks into the course he withdrew. Whenever he could not pay the rent or the utility bills, I would have to step in and pay with money I had saved before coming to Australia, money which I had intended to spend on our baby. The applicant became very reliant on me to use my money to pay for everything as he was unemployed and had no money even though he had promised me when he asked me to marry him that he would save money to build our life together. Since beginning a relationship with the applicant I have given him thousands of dollars and also paid for the hospital gap payments for all of my medical bills. I have used all of my savings that I had brought over from Japan. I could not understand why he did not want to work or try to find any employment. When I said I enjoyed working, he would then say, “Then you go out to work and I will care for the baby”. Whenever we argued he had a tendency of blaming me or other people and would not take any responsibility.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, the likely effect on the child of any separation from: (1) either of his parents; or (2) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living.
Whilst I acknowledge Mr Mabry’s argument that a relocation for [X] to Japan will limit or curtail his ability to establish and maintain a relationship with the child, the fact is that [X] going to Japan with his mother will not create any dramatic changes in the child’s current circumstances or, more particularly, his relationships with people other than his mother. This young child has no real or beneficial relationships with anyone other than his mother at this juncture. In terms of his current relationships there would be little or no effect on [X]. The effect would be on his capacity to establish and maintain relationships with his father and the paternal grandmother.
Section 60CC(3)(e) – The practical difficulty and expense of the 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 relationships and direct contact with both parents on a regular basis.
This consideration is another major limb to the father’s argument. Mr Mabry is now a student. There is no evidence that he has any savings or any significant assets. Ms Neilson deposes that she has exhausted her savings since coming to Australia. If she is permitted to relocate to Japan then she will almost inevitably be occupied with the care of [X] for some time. Financial assistance from Mr Mabry is likely to be minimal whilst he remains a student. Her previous occupation as an [omitted] would seem incompatible with being a sole parent of an infant child.
Nevertheless, there is some cause for a little optimism. Both the parents have previously shown a capacity to travel between Australia and Japan. The mother visited and stayed here for approximately a year some years ago. The father has visited Japan on a number of occasions. He has a strong interest in Japanese history, culture and society. There is no evidence that he has any other ties in Australia other than his strong relationship with his mother. He does not own real property. There is no evidence that he is financially restrained in Australia. There is no evidence that he has entered into a new romantic relationship. He is in many senses a cosmopolitan, capable and worldly young man. He has vigorously indicated his love and devotion to his son and readily answered an enquiry from the Bench with the response that he would “do whatever it takes” to keep a relationship and contact with his son. He was asked whether he would consider living in Japan. He responded only that it was not his residence country of choice.
Mr Mabry raised a further practical consideration in respect of him maintaining a relationship with [X] should the child be able to relocate with the mother to Japan. Mr Mabry opined that the Japanese family law system is a matriarchal one and that Japan is not a signatory to any Hague Convention on children. The latter was conceded by counsel for the mother. Mr Mabry’s opinion that the Japanese family law system would not support him if he sought to enforce any rights or attempts to see his son in Japan, remains just that – an opinion. He gave no particulars. He did not reference any Japanese legislation. He produced no witnesses on point. No evidence was put before me in support of such a proposition. I do, however, have evidence that the mother has supported the relationship between [X] and the father during the last 10 months. She has continued to take the child to the contact centre despite Mr Mabry’s refusal to go himself. She provided [X] with Easter eggs to give to the father during a visit at Easter this year. She also sent the child with a Christmas card for his father. Unfortunately, and as was the tendency in this case, Ms Neilson was criticised heavily and challenged at length in cross-examination for doing so with
Mr Mabry suggesting ulterior motives on her part. It is opportune for me to say that generally Mr Mabry was extremely negative in respect of the mother’s personality, motives and capacity to care for his son. That negative attitude at times approached paranoia. He proffered in his affidavit and during cross-examination that [X] may be sold into a child pornography ring in Japan being one operated by a Japanese criminal underworld organisation. He also suggested that his son may be subject to radiation poisoning if permitted to live in Japan. No evidence of any probity was adduced in support of either proposition but the implication from the father was that the court should be concerned as to both the motives of the mother in having conceived the child and her commitment to continuing as his parent.
In summary, undoubtedly there would be practical hurdles and difficulties to the father and [X] establishing and maintaining a relationship should the child relocate to Japan. The question for the Court, however, is to consider the evidence as a whole. I am satisfied on the limited evidence available to me that this mother has consistently encouraged and facilitated [X]’s time with and relationship with his father.
Section 60CC(3)(f) – The capacity of: (1) each of the child’s parents; and (2) 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.
The mother has a demonstrated capacity to care for [X]. She has cared for him for the last 10 months as a sole parent. The father is critical of her capacity but there is not evidence of sufficient probity, weight or corroboration before me to justify any of his criticisms. Mr M, the father’s biological father, gave evidence the child is thriving and happy in the mother’s care. He was complimentary of the mother as a parent.
The father’s capacity is essentially unknown. He proposes to care for [X] on a shared-care basis. Any capacity, however, is compromised by his negative attitude towards the mother, his criticisms of her parenting, his criticisms of her personally, and his unwillingness to communicate with her. Equally, I should say that Ms Neilson is culpable in many of these respects. Although not having any specific expert evidence before me in this matter, I am satisfied that any shared care regime for this infant child would require an extraordinarily high degree of cooperation, communication and respect between these parents – traits that I did not see in either of them.
Mr Mabry does not work. He has accommodation which he says is suitable for himself and the child. He has the assistance of his mother to care for the child. He has assistance from Ms C. In this sense, he could provide for the basic physical needs and care of [X].
The mother’s capacity to care for [X] in Australia is at the crux of her argument for relocation to Japan. She and [X] currently live in a caravan in the yard of the father’s biological father near [B]. This is temporary accommodation only. She has no savings. Her own family support network is in Japan. She can expect little or no emotional or financial support from the father or his mother.
Ms Neilson has experience and qualifications as an [occupation omitted]. She has lived as a single woman in Cairns for about a year whilst studying and working in her occupation. She has some basic friendship and support from a Japanese couple in country Victoria who are, in fact, [omitted] but have been helping the mother in transporting her and [X] to the contact centre. Ms Neilson currently has the support of Mr M and his family. All of this, however, is limited and tenuous and could not be compared to the emotional and actual support which could be afforded her by her own family.
It is unreasonable to expect Ms Neilson to obtain employment in regional Victoria for her own support particularly given her qualifications as an [omitted] and her obligations to [X] and despite Mr Mabry’s claims that [W] is an “iconic Australian tourist destination”.
Ms Neilson currently enlists support from crisis and domestic violence networks. These resources are limited and necessarily short-term. Indeed, it seems it is the father who deposes to greater potential avenues of support including campus childcare at his university and from Ms C.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
In the ideal world [X] would have the great advantages of multiculturalism. He would benefit from his mother’s Japanese culture and also from his father’s Australian culture.
The mother says that she would have [X] taught English if permitted to relocate to Japan. This would not, however, address his cultural identity and connection with Australia. Similarly, if required to remain in Australia then [X]’s understanding of his Japanese culture could come only from his mother save and except any visits to Japan which would be dependent upon Court order, finance and other practical considerations. Thus far the mother’s family have not shown any inclination or ability to travel to Australia. They did not attend the wedding. They have not met [X].
From my observations of the parties and their witnesses in the witness box there is unlikely to be any great effort or assistance afforded to [X] with education in the other parent’s culture. These parents are non-communicative and non-cooperative. The mother is anxious to leave Australia and it is reasonable to conclude that her experience here has not been an entirely pleasant one. The father has an interest in Japan but is also critical of many aspects of the country and culture. They are non-trusting and simply do not have mutual respect. It is unfortunate but inevitable in such an environment that [X] is unlikely to easily enjoy his potential as a multicultural citizen.
[X] is yet an infant. On the evidence before me it is clear that he is dependent upon his mother for his support and she is his primary attachment figure.
Section 60CC(3)(h) – If the child is an Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) – The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has accepted the responsibility for the care of [X]. She currently does so under very onerous and trying circumstances. She is dependent upon Centrelink benefits for financial support. Any child support paid by the father would only be at the statutory minimum, if at all. This situation is unlikely to change given the father’s proposal to commence a university degree course once he has finished his pre-vocational course.
The father’s attitude demonstrated to me in Court and from the contents of his affidavits is one of “parenting as of right”. From my observations and from his answers in the witness box, there was a tendency for him to confuse his view of his own rights as a parent with the best interests and needs of his son. This is not a criticism and is an understandable response in a first-time father who feels aggrieved that his time with his infant son is limited and conditional. He argues with some force that International Conventions give his son a right to a relationship with him. He argues that he is the victim of misplaced and unfounded bias against him by the various support networks assisting Ms Neilson. However, his decision to stop seeing his son on account of such perceived prejudices is almost unfathomable when pitted against his forceful arguments for his son’s right to have a relationship with him. There seemed in Mr Mabry a general inability, or reluctance, to accept that his infant son’s mother requires physical, financial and emotional support in order to capably parent their son.
Section 60CC(3)(j) and (k) – Any family violence involving the child or a member of the child’s family and any family violence orders that are applicable.
These matters are dealt with in detail above.
Section 60CC(3)(l) – Whether it will 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 the aim of Courts in reaching parenting orders which are considered to be in the best interests of a child that those orders will end litigation between parents. Such litigation in itself can often be contrary to a child’s best interests and destructive of relationships. Nevertheless, changes of circumstances for children or parents are common and almost inevitable in respect of infants such as [X]. The issue of relocation with the major sub-issues in this matter being, firstly, the impact of the proposed relocation to Japan for [X]’s relationship with his father versus, secondly, the impact on the capacity of the mother as a parent of her being required to remain in Australia will be ongoing factors in this young boy’s life. If the mother and [X] are to remain in Australia then it could only be viable if the mother is able to have the support to parent capably and successfully. She would require all of the physical amenities and financial requirements to care for the child. She would need to be able to enlist reliable and enduring support networks. She would need to be able to have actual contact for herself and [X] with her own extended family.
Similarly, if [X] is allowed to relocate with his mother to Japan then the child’s successful relationship with the father will be dependent upon the mother’s ability and willingness to foster and facilitate that relationship. The Courts have often proffered that successful, beneficial and meaningful relationships between children and parents are not necessarily dependent upon the amount of contact. It is quality rather than quantity which gives the success and strength to a relationship. Nevertheless, this child has not yet bonded with his father. He cannot yet communicate. Quite simply, no relationship of any substance has yet been established.
Consequently, this is a matter where further litigation is a distinct possibility if either party fails to accept that the Court does not look to optimum or ideal conclusions for children. Rather, it is the task of the Court to weigh and balance all of the evidence to arrive at the best arrangement for a child within the circumstances presented to that Court. If, and only if, the parents accept that this weighing and balancing process has taken place that they can move on to parent within those confines.
Discussions and conclusions.
This is an extremely complex and difficult matter for the Court. The determination as to [X]’s best interests are impacted by important but competing factors including:
(1) the child’s young age;
(2) the mother’s isolation and lack of support in Australia;
(3) there being no established relationship between [X] and his father;
(4) the uncooperative and non-communicative relationship between the parents; and
(5) the cultural and language differences.
I must determine whether the presumption of equal shared parental responsibility applies or is rebutted? Both parties make serious allegations of family violence. They both agree that family violence was a regular occurrence within their relationship. They disagree as to who was the major perpetrator and who is the victim. Whilst the evidence doesn’t allow me to make findings in respect of blame, I am satisfied that this relationship was one in which family violence in its physical and emotional forms was manifest. Much of the evidence was unchallenged but conflicting. As such, the presumption of equal shared parental responsibility pursuant to Section 61DA does not apply.
I am of the view, in any event, that [X]’s best interests would not be served by these two parents having equal shared parental responsibility. As indicated on several occasions in these reasons, these parents do not communicate. They do not respect each other as parents. They do not trust each other as parents. Each is critical of the other’s parenting capacity and attitude. Each is untrusting of the other’s primary motivations in respect of [X]. There are inherent and entrenched cultural differences between them. Quite simply, I cannot be confident that they would be able to discharge the responsibilities of equal shared parenting. My observations of them and the tenor of their evidence leads me to conclude that an Order for equal shared parental responsibility would be likely to lead to further dispute between these parents.
I am of the view on the evidence that [X] should remain living primarily with the mother. He is yet an infant. He has not been separated from her. The evidence suggests that he is reaching his milestones. I am satisfied that she is a capable and loving parent. It is clear that [X]’s main, and probably only, attachment is to his mother. The father’s proposal that this infant child live in some shared care regime is untenable and untested. The father is inexperienced as a parent. The child has not stayed with him overnight since separation. Mr Mabry does not demonstrate an understanding of the potential difficulties in separating such a young child from his primary attachment at this age. The degree of cooperation required to make such an arrangement work is not apparent.
Mr Mabry makes criticisms of the mother’s capacity and suggests that she suffers a mental illness and would otherwise put this child in danger. There is no evidence before me that Ms Neilson has a history of mental illness. She denies the allegation under oath in the witness box. The father’s own proposal that there be a shared care arrangement seems at odds with his argument as to the mother’s mental illness and alleged incapacity to care for the child although he did seek “conditions” and “protection and security” albeit never particularised.
The ultimate difficulty in this matter is that there is no determination that I can make which would not be without potential detriment to this child. If I order a relocation for [X] to Japan with his mother then I will be doing so in a situation where there is no established relationship with the father. The difficulties in both establishing and maintaining a relationship from such a distance and without financial wherewithal do not escape me. I am mindful that Japan is not at this time a signatory to any relevant International Children’s Conventions and there is a possibility of difficulty in enforcement of Court orders. As against this, however, I repeat my satisfaction and findings as to the mother thus far being willing and proc-active in encouraging and facilitating [X]’s relationship with the father.
On the other hand, to order the mother, as the primary parent, to remain in Australia brings its own considerable impact for this young child. The mother has only been in Australia since March 2012. During that time she has endured a marriage, a pregnancy, a birth, and a separation. She lives in regional Victoria. Her support networks are limited and tenuous. She has exhausted her financial reserves. She has no realistic expectation of or ability to work in the short term. I cannot be satisfied that the animosity of the father and his own mother towards Ms Neilson is likely to abate and, as such, there will not be any supportive relationship between [X]’s parents. Further violence between them is a distinct possibility. I am satisfied that the mother’s parenting of [X] would be extremely onerous if she is required to remain with him in Australia. Balancing these central but competing major considerations, I conclude that [X]’s best interests are served by the mother being permitted to relocate with him to Japan. However, I intend to first give Mr Mabry some opportunity to establish a relationship with his son, albeit with limitations caused by [X]’s young age and practical considerations. In doing so I note that the mother has some short term and adequate, if not ideal, accommodation and support available to her from the [M] family. Consequently, and although the reasoning behind my order allowing the relocation remains valid, I will not allow the relocation to take place before 31 January 2014. During that time I do not on the evidence see the need for the father’s time with [X] to be supervised. Time between the father and the child should be regular and frequent whilst still taking into account that [X] is not yet one year old and his attachment is to his mother.
I will order that in the period until the relocation, [X] spend time with the father on weekends given Mr Mabry’s study commitments. I see no reason why this should not progress to overnight time in the relative short term but only after some day time periods to allow [X] to become comfortable with the father.
I will order that [X] spend time with the father on any reasonable time if and when Mr Mabry travels to Japan. It is not possible for me to make any more detailed orders in this respect on the available evidence although I do again note that Mr Mabry, to his credit, told me that he would “do whatever it takes” to maintain a relationship with his son. In cross-examination he answered “affirmative” to the question whether he would consider living in Japan if the relocation was permitted.
In my opinion there should also be an opportunity for [X] to spend time with the father is Australia. Financial constraints are obvious although Mr Mabry impresses as ambitious with a high level of work ethic. He is studying with a view to a career. In the meantime the mother is likely to be the sole financial provider for [X]. In those circumstances Mr Mabry should meet the costs of [X] coming to Australia and on his election. I will make such an order operative from [X] turning five years of age when his ability to travel and his understanding is more developed.
I intend to make orders for communication between the child and the father although being fully aware of the current practical limitations.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 27 June 2013
Key Legal Topics
Areas of Law
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Family Law
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Immigration
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Standing
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Remedies
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