Machin & Borland
[2021] FedCFamC1F 359
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Machin & Borland [2021] FedCFamC1F 359
File number(s): SYC 4133 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where the children lived with the father in Country G – Where the father has failed to encourage a meaningful relationship between the children and their siblings and mother – Unsatisfactory living conditions of the children when in the father’s care – Where the mother has initiated proceedings in a religious court in Country G to have the children returned to Australia – Where the father has exhibited coercive and controlling behaviour – Family violence by the father – Mother to have sole parental responsibility and ability to apply for Australian passports for the children – Order for costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Part VII, ss 4AB, 43(1)(c), 60B, 60CC, 61DA, 65DAA, 65DAC Cases cited: B & B (1993) FLC 92-357
Dundas & Blake (2013) FLC 93-552
Marvel & Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 14 December 2021 Place: Sydney (via videolink) Solicitor for the Applicant: Legal Aid NSW Sydney Central Family Law The Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Gordon & Barry Lawyers Pty Ltd ORDERS
SYC 4133 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MACHIN
Applicant
AND: MR BORLAND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.Final orders are made in accordance with the Applicant Mother’s proposed Minute of Order dated 14 December 2021 and attached hereunder.
2.Within a period of three (3) months, the Respondent Father pay costs in respect of the engagement of the Independent Children’s Lawyer to Legal Aid NSW in the sum of $1,250.
THE COURT NOTES THAT:
A.A member of my staff attempted to contact the Respondent Father by way of telephone yesterday at the number that we have previously used to contact the Respondent Father, however there was no response and two messages were left detailing instructions on how to join the hearing.
B.This matter was listed for hearing today by way of orders made by consent on 15 October 2021 and, further, this listing was confirmed when the matter was next listed before me on 23 November 2021. Specifically, Order (4) of the orders made on 23 November 2021 stated that the matter remains listed for final hearing at 10am on 14 December 2021.
C.In those circumstances the matter has proceeded on an undefended basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Machin & Boland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an application by the mother for orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect to the parties’ four children: V, born in 2008, who is now 14 years old; W, born in 2010, who is now 11 years old; X, born in 2011, who is now 10 years old; and Y, born in 2014, who is now seven years old. The children also have a sister, Z, born in 2016. Z is the child of the mother and her husband from her second marriage. She is now five years old.
In the absence of an appearance by the husband, this matter has been determined on an undefended basis. In circumstances where there was no challenge to the evidence presented by the mother or the Independent Children’s Lawyer (“ICL”) and the evidence is plausible, I have accepted that evidence, including the following relevant events as included on the chronology that has been helpfully prepared by the ICL.
DATE
EVENT
1980
Mr Borland (“the father”) is born in Country G.
1988
Ms Machin (“the mother”) is born in Australia.
2005
Parties marry in Australia in an Islamic ceremony.
2005
The mother, aged 16 years, moves into a rented apartment with the father and, a few days later, they marry.
2006
The mother and father separate for approximately 2 to 3 months.
2006
Parties marry in accordance with Australian law.
2008
V is born in Australia.
2010
W is born in Australia.
2011
X is born in Australia.
18 April 2012
The father becomes an Australian citizen.
Sept 2013
The parents and children relocate their residence to Country G.
March 2014
The mother returns to Australia with W and pregnant with Y. The mother says this is with the consent of the father.
April 2014
Father returned to Australia.
April 2014
Parties divorce.
2014
Y is born in Australia.
March 2015
Parties divorce under Australian law.
April 2014
The mother commences a relationship with Mr B.
2015
The mother travels to Country H to meet Mr B (her second husband).
Nov 2015
The father returns to Australia without the children and remains until February 2016.
Feb 2016
The father returns to Country G, taking W with him. Y stayed at home.
7 April 2016
The mother and Mr B have a daughter, Z.
Aug 2016
The mother, Mr B and Z travel to Country G.
22 August 2016
The mother returns to Australia.
8 October 2016
The father returns to Australia and remains until 17 January 2017, but does not bring with him any of the children.
8 October 2016 – 17 January 2017
During this period, the mother speaks to the children regularly.
July 2017
The mother travels to Country G with her younger brother, Y and Z.
17 July 2017
The mother travels to Country G and says again the children had nits and scabs on their scalps.
The mother says children all had worms.
The mother also contends that the apartment is filthy.
Sept 2017
The father returns to Australia.
Sept 2017
The mother separates from Mr B.
Jan 2018
The father returns to Australia, staying until April 2018.
10 May 2018
The father remarries Ms C.
June 2018
The father returns to Australia, bringing V with him and V remains in Australia with Y and the mother. The two older children remain in Country G.
21 June 2018
The father arrives in Australia with V and is met at the airport by the mother.
29 June 2018
The mother commences proceedings.
2 July 2018
The father sends messages threatening the mother.
9 July 2018
The mother’s application for interim ex-parte orders is heard before her Honour Justice Rees. Orders are made:
1. Until further order, V and Y live with the mother.
2. Upon notification to the Australian Federal Police by email by the mother’s solicitor, being Mr D from Legal Aid, that the children W and X have been returned to Australia and until further order, each of the mother and father are restrained from removing or causing to remove W or X from the Commonwealth of Australia.
3. V and Y are placed on the Airport Watch List.
4. Until further order, the father is restrained from leaving the Commonwealth of Australia and it is requested his name be placed on the Airport Watch List.
5. A further order is made that the mother’s application and affidavit filed on 29 June 2018 be served on the father not later than 4.00 pm on 10 July 2019.
9 July 2018
Her Honour Justice Rees makes interim orders on an ex parte basis and orders that the mother’s documents be served on the father and for the father to file a response by 12 July 2018.
The mother serves documents on the father on 9 July 2018.
The father sends the mother an SMS message: “U can’t use the Country G court system because it’s Islamic court. Take ur scurf [sic] off u dirty pig and go to ur ausie [sic] court”.
13 July 2018
The matter is listed before his Honour Justice Johnston.
On this date, the father seeks orders varying the orders of Justice Rees so that he be permitted to return to Country G on an undertaking that he would return to Australia to enable the litigation, at least in respect of the forum for determining parenting arrangements.
Justice Johnston confirms that, on balance, the pendulum swings in favour of leaving the injunction restraining the father’s residence in place and dismisses the father’s response.
His Honour concludes that, if the father was to give an undertaking to return to Australia for litigation and was to breach that undertaking, it would be likely he could not return to Australia because if he returned it is likely he would be arrested and that would have the consequence of him not having a relationship with V and Y, who are in Australia.
18 September 2018
Proceedings are listed before Registrar Mordaunt.
19 October 2018
The mother filed an Application in a Proceeding seeking orders:
1. Permission to apply for a passport for W and X.
2. Restraining the father from applying for passports for any of the children.
3. The father do all things necessary to facilitate the return of W and X to Australia.
4. For the children’s passports, upon the mother’s return to Australia, to be held by the Family Court Registry.
The mother’s application is dismissed by Senior Registrar Campbell.
4 November 2018
The mother and V speak to W and X by video call.
7 November 2018
Registrar Chayna makes orders listing the proceedings in the Judicial Duty List on 3 December 2018.
14 November 2018
The mother proposes that V and Y spend one hour each week on Fridays at McDonalds with the father.
15 November 2018
The mother proposes that V spend time with the father additional to the Friday for three hours each Sunday from 3 pm until 6 pm commencing Sunday 18 November 2018 and the Friday arrangements from 23 November 2018.
The mother and father agree on arrangements for the father to spend time with Y and V and for the mother to speak to W and X.
16 November 2018
The mother proposes that W and X speak to her by phone on Fridays and Sundays and that calls be made from father’s new wife’s phone.
18 November 2018
It is agreed that V will spend three hours on Sunday afternoons, from 3 pm to 6 pm, with the father at the paternal uncle’s house.
The mother is to speak to W and X on Friday and Sunday evenings.
23 November 2018
Y spends time with the father in the presence of the mother at Suburb E Hungry Jacks.
25 November 2018
The mother is unable to facilitate V spending time with the father due to the car not starting.
30 November 2018
The mother attends Suburb F Hungry Jacks at 3.30 pm for a visit between the children and the father, but the father does not arrive.
2 December 2018
V spends time with the father.
4 December 2018
Order made for the appointment of an Independent Children's Lawyer for V and Y.
7 December 2018
The father does not attend the visit, telling the mother that he is working.
14 December 2018
The father does not arrive at the scheduled visit.
20 December 2018
The mother’s lawyers write to the father’s lawyers, proposing that V and Y spend time with the father on Friday and Sunday afternoons at Hungry Jacks with the mother present.
11 February 2019
The father’s lawyers cease to act.
12 February 2019
Her Honour Justice Rees orders the father to provide to the mother’s lawyer and the ICL the full name and date of birth of his current wife by 4 pm on 14 February 2019.
The father does not comply with this order.
The ICL writes to the father and requests that he advise the name and date of birth of current wife, Ms C, as ordered by her Honour Justice Rees on 12 February 2019.
15 February 2019
The mother’s lawyers write to the father asking if he will facilitate W and X coming to Australia. The father does not reply.
21 February 2019
The ICL meets with V and Y.
Mid-February 2019
Ms J (“the paternal grandmother”) blocks the mother on WhatsApp.
19 August 2019
The mother files a claim in the K Religious Court in Country G. The mother is the plaintiff and the paternal grandmother is the defendant.
4 February 2020
Hearing of the mother’s claim against the paternal grandmother in the K Religious Court.
1 June 2021
Psychiatrist report dated 5 March 2020 in respect of W and X is tendered to the K Religious Court and appended to the file.
The report writer recommends that the girls are not forced to make decisions against their will as it will only lead to stubbornness and non-acceptance of their new life.
The mother filed a motion requesting that the court not take into account the psychiatrist’s report.
7 June 2021
The ICL writes to L Services to facilitate mediation.
8 June 2021
The ICL speaks with L Services.
9 June 2021
The ICL writes to the mother’s lawyers and to the father in relation to requirements of L Services.
28 August 2021
The mother personally attends the K Religious Court, stating she has not seen the children for 5 years and seeks to return them to Australia.
During the hearing, the Court questions W and X who declare “[They] want to go with [their] mother to Australia because [they] miss [their] father and [their] siblings in Australia and [their] wish is that [they] live together in one house”.
The mother pledged to the Court that she would allow the father to see the children in Australia and allow their grandmother to contact the children.
Order is made in favour of the mother for custody of W and X. The mother is granted permission to travel with the children to Australia.
25 November 2021
The ICL writes to the Australian Embassy in Country G.
1 December 2021
The ICL writes again to the Australian Embassy in City M.
10 December 2021
The mother, W and X arrive in Sydney, Australia.
13 December 2021
Australian Federal Police confirm that the children, W and X, are on the Family Law Watch List.
Most significantly, the mother’s affidavit filed 13 December 2021 includes a reference to the mother travelling to Country G on 14 September 2021, in order to seek recovery of the parties’ daughters, W and X, who had been living for several years with the paternal grandmother in Country G. On 28 September 2021, the mother attended the court and met with the children. The children, W and X, were also interviewed by the presiding judge. The decision of the court records that the children expressed to the judge the view that they wanted to return to Australia with their mother to live with their siblings.
The mother returned to court on 30 September 2021, and the judge made orders in terms of Country G law, with the effect that the mother was awarded full custody of W and X. Subsequent to the judgment, despite advising this Court that he had no objections to orders facilitating the mother returning to Australia with the children, on 13 October 2021, the father applied for orders in Country G imposing a travel ban on the mother returning to Australia with the parties’ daughters.
That travel ban was, however, lifted by a court in City N on 17 November 2021 and, after numerous weeks endeavouring to seek the return of both W and X, happily, that has now occurred, with the mother returning to Australia last Friday, 10 December 2021. In her affidavit filed on 13 December 2021, the mother notes how the children have settled in with each other, with Y and W forming a particular bond and, equally, X and Z developing their own relationship. In respect to V, the mother states that he “is loving being the big brother to all of them.”
The children, on the mother’s evidence, which is unchallenged, are settling in well, sleeping well and enjoying each other’s company, as well as that of the mother, and I accept that evidence. The mother, significantly and to her credit, has facilitated the children having ongoing contact with the paternal grandmother, with whom they lived in Country G, as well as their aunties and cousins. The mother has attested to desiring that the girls retain those relationships and, given the history to date, I am confident that will occur.
The mother further attests to wishing for the children to maintain a relationship with their father and, again, based on the history outlined in that affidavit, I accept the veracity of the mother’s account as to the endeavours she has made to facilitate that occurring. However, regrettably – on the evidence of the mother, as set out in particular from paragraphs 24 through to 37 of her affidavit – this has not been reciprocated by the father.
The mother has outlined the reasons for seeking the orders as provided to the Court in her proposed minute of order, dated 14 December 2021. Essentially, the orders propose that the mother have sole parental responsibility for the children, for the children to live with the mother and for the children to spend time with the father and members of the paternal family, as encouraged and facilitated by the mother and, obviously, in agreement with the father.
THE LAW – RELEVANT CONCEPTS AND PRINCIPLES
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII, which are to ensure that the best interests of the 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 and 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.
More generally, s 43(1)(c) of the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.
The presumption of shared equal parental responsibility
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said at 87,409:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Relevantly for these proceedings, s 61DA(2)(b) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. Family violence is defined in s 4AB(1) as follows:
(1)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.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence which, relevantly for these proceedings, includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property;
…
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
If the exception under s 61DA(2) of the Act does not apply, ss 65DAC(2) and (3) relevantly provide that, in the event of an order being made for the parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2)The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
The Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [103] acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility, stating that:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
In this matter, for reasons which I outline below, I am satisfied that the wife has been the subject of coercive and controlling conduct on the part of the father and, as a result, I find that it would not be in the interests of the children for the parents to have equal shared parental responsibility. As the children will be living with the mother, I will order that the mother have sole parental responsibility.
As I do not propose to make an order for equal shared parental responsibility, the pathway set out in s 65DAA of the Act does not apply; that is, I am not required to consider the children spending equal or substantial time with the father. The task before the Court is to make such orders as the Court considers to be in the best interests of the children.
Best interests of the child
Section 60CC of the Act sets out a list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In McCall & Clark (2009) FLC 93-405, the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26], where His Honour said:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.
(Emphasis added)
In this matter, I am satisfied that the mother has endeavoured to have a meaningful relationship with all her children. Indeed, she has shown great courage, persistence and initiative in ensuring that she and her children were reunited. I am also satisfied that the mother has endeavoured to facilitate the children having a meaningful relationship with the father, but for reasons which I subsequently explain, the evidence satisfies me that this has not been reciprocated by the father.
Protection from harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm associated with the child spending time with either parent.
In B & B (1993) FLC 92-357 at 79,778, the Full Court said that the task before the Court is essentially to achieve a balance between the risk of detriment to the children from abuse, and the possibility of benefit to the children from parental access. However, it is clear from s 60CC(2A) of the Act that greater weight is to be given to the primary consideration set out in s 60CC(2)(b), that is, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” over the benefit of maintaining meaningful relationships. The history of this matter establishes that, without protective measures, there is a significant risk of one or more of the children being removed from the care of the mother and taken from the Commonwealth of Australia. This would cause enormous trauma for the children.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (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;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (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 relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(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;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(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.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION
In this matter, as earlier noted, I am satisfied that, having regard to the history of the parties’ relationship, including the occurrence of family violence, to which I will refer, together with communication difficulties that have occurred, that the presumption in favour of equal shared parental responsibility is displaced. Further, I am satisfied that there should be an order for sole parental responsibility and that order should be in favour of the mother, in circumstances where I will be making orders for the children to live with the mother.
In terms of the relevant section 60CC considerations, I have considered, most relevantly, the helpful summary provided by the ICL, which succinctly summarises relevant evidence that justifies the orders that I will make, which are those sought by the mother.
Firstly, having regard to the requirement to consider the parties having a meaningful relationship within section 60CC(2)(a), I note the mother’s evidence, which satisfies me that she has attempted to encourage and promote the relationship between the children and the father including, significantly, V who, for a considerable period of time, was quite distressed as a result of not having a close relationship with his father.
I note those efforts have continued right up until the present, with attempts being made as recently as September and October of this year. Again, however, the father has regrettably not taken up the opportunities that have been presented to him for that meaningful relationship to occur. Comparatively, the father, by his conduct, has promoted the four children living in separate countries and for two of the children to be separated from both of their parents in Country G, as I have described.
Most relevantly, I am satisfied that the father has failed to encourage and promote a meaningful relationship between W and X with the mother and their siblings, and this demonstrates a lack of child focus. That is a matter of concern for this Court, and in that respect I will note that on several occasions I have made a notation to orders of this Court expressing my concern that endeavours were not made for W and X to communicate with their mother. To emphasise that point, W and X were deprived of the ability to even communicate with the mother and their siblings when they were in Country G, in the care of the paternal grandmother. It is completely unacceptable that they were placed in that position.
In that respect, it is implausible that the father could not have brought more influence to bear to achieve a better outcome in respect to that communication.
I am satisfied that it is in the interests of the children not only to have a meaningful relationship with their parents, but with their siblings, with whom they share the other significant relationships in their life. This will occur with the children living under the one roof in accordance with the orders sought by the mother.
At the same time, I am satisfied on the basis of the mother’s conduct to date that she will use her best endeavours to promote the children’s relationship with the father and the members of the paternal family, to the extent that this is possible and the father avails himself of the opportunities to do so.
In terms of the issue of risk, the mother’s affidavit of 29 June 2018, in respect to which she has not been challenged, sets out the following evidence; that in August 2016, the mother witnessed the state of V, W and X’s living conditions under the care of the father in Country G and gave an account of the following:
· the house was dirty and unhygienic;
· the children were unkempt and had nits and ringworm scars;
· the children had lost weight and were underfed;
· X had a broken tooth.
There were also concerns that X had been the subject of mistreatment by a neighbour supervising the children.
In January 2017, the mother had a video call with X and W and witnessed that X had a black eye, who then stated to the mother that “Dad hit me. I wet my bed and he hit me in the face.”
In July 2017, the mother notes that, in a conversation with the children, W advised her that “Dad told him – V – he can smack us if we are naughty.”
The mother further noted that she was advised that there was no electricity in the house that the children were living in, with the children advising her that the father had turned the electricity off while he was away. Also in July 2017, the mother arrived in City M and described the children as again presenting with nits and scabs on their scalps. The mother noted that the children also had signs of having had ringworm, and that W had untreated giardia.
In her affidavit of 19 October 2018, the mother contends that on or about 4 July 2018, she was advised by V that he was scared, saying:
I’m going to get into big trouble. I wish I never came here, because now there are big problems and I’m going to get hit for it.
Also in the mother’s affidavit of 19 October 2018, the mother refers to examples which constitute coercive and controlling conduct and, unfortunately, conduct that constitutes violence as defined in the Act, including:
·On 30 June 2018, the father advising the mother that he did not want V living with “pigs”.
·On 2 July 2018, the father sent a message to the mother with the effect that if she did not agree to V being returned to his care, that he would “make sure that [the mother] hurt.”
·On or about 4 July 2018, the paternal grandmother advised the children, as the children informed the mother, that “Your mum has to take you to your dad, and then she can speak to your sisters every day.”
·Also on or about 4 July 2018, the mother was informed by W in the presence of the paternal grandmother “Mum, take V to Dad and we can talk to you every day.”
·Further, as noted earlier, on or about 4 July 2018, the mother was advised by V with words to the effect of:
I’m going to get into big trouble. I wish I never came here, because now there are big problems and I’m going to get hit for it.
·Further, on 9 July 2018, the father sent an SMS to the mother which said:
“U can’t use the Country G court system because it’s Islamic court. Take ur scurf [sic] off u dirty pig and go to ur ausie [sic] court”.
(As per the original)
In terms of the additional best interests considerations in respect to those matters impacting upon the children, I am satisfied that it is the wish of all the children to reside with the mother. I am satisfied that they are being well cared for by the mother and that the mother is attending to their needs.
In terms of matters impacting upon the parents’ issues of spend time with, parenting capacity and responsibility, as I have said, I am satisfied that the children are well cared for in the mother’s household, where they now all live; that the mother is attending to their physical needs, their nutritional needs and their emotional and intellectual needs. Comparatively, as I have indicated earlier, the father had taken steps to literally divide the children, one from the other, including, in my view, for the purpose of exercising coercive control over the mother, requiring her to return V to him.
Also, in terms of parental responsibility, the mother’s efforts to travel to Country G for the purpose of securing the return of W and X, which occurred on Friday, 10 December 2021, have indeed been quite remarkable, showing the extent of her dedication to the children and securing an outcome which, happily, is now that they all reside together as a family with the mother.
In terms of other considerations, I have previously made, in the circumstances of this case, orders for the mother to be empowered to solely obtain passports for the children, and for the children to be placed on an airport watch list. In the circumstances of the events which have occurred, there is also a need, in my view, for the injunctions as sought by the mother in her proposed orders.
The court has received submissions from the solicitor for the mother, who has indicated the mother’s desire to, at some stage, at least during the course of these orders, to travel overseas with the children, particularly for the purpose of attending a family holiday which the maternal grandmother intends to arrange. It is anticipated that that travel would be to countries that are parties to the Hague Convention, and on that basis, I will also make orders in respect to passports and travel as proposed by the mother.
CONCLUSION AND ORDERS
For all of the above reasons, I make orders as sought by the mother, which are also supported by the ICL.
COSTS
The ICL has sought costs in the sum of $1,250 against the father.
In circumstances where the mother is legally aided, where the father has not participated in these proceedings and, indeed, in one sense, where these proceedings became necessary as a result of his intervention seeking to restrain the mother from leaving Country G, I am satisfied that such an order is appropriate. I will, however, having regard to the fact that there is evidence that the husband has not been in regular employment, extend the period of time for that sum to be paid.
FINAL COMMENT
The Court would like to formally recognise the dedication and assistance provided by both the solicitor for the mother and the ICL in assisting the remarkable efforts of the mother to successfully secure the return of her children from Country G. Their conduct has been exemplary and is a credit to their profession.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 7 February 2022
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