MAGAR & RASTOGI

[2015] FamCA 872

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI [2015] FamCA 872

FAMILY LAW – CHILDREN – where the child lives in Australia with the father – where the mother lives in Germany – where orders were made by consent for the father to have sole parental responsibility for the child and that the child live with him – where the mother alleges the orders were made under coercion or duress – where the father alleges no significant change in the circumstances and makes a Rice & Asplund application – where the mother is unrepresented – where the court allows to mother to seek advice from the duty solicitor on the nature of the Rice & Asplund application – where there are considerable objections by the father to the nature and construct of the mother’s trial affidavit – where consideration is given to s 135 of the Evidence Act 1995 (Cth) – where consideration is given to r 15.13 of the Family Law Rules 2004 (Cth) – where there is no evidence to support the mother’s contention that the orders were made by reasons of coercion, duress or a florid and debilitating mental incapacity – where consideration is given to continuing and seemingly endless litigation and the adverse effect it has on children – where it is not considered in the best interests of the child to reopen the proceedings – where the application is dismissed.

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZT,
Family Law Rules 2004 (Cth) r 15.13

Bigg & Suzi (1998) FLC 92-799
Freeman & Freeman (1987) FLC 91-857
Langmeil & Grange [2013] FamCAFC 31
Marsden & Winch (2012) FLC 93-496
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Magar

RESPONDENT: Mr Rastogi

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3356 of 2013

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: Ian Charman and Associates

Orders

1. The Amended Initiating Application of the mother filed 14 July 2015 is dismissed. 

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3356 of 2013

Ms Magar

Applicant

And

Mr Rastogi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings are in respect of an Amended Initiating Application of the mother filed 14 July 2015 which seeks orders that M, (“the child”) born in 2013 live with her, that she shall have sole parental responsibility and that the child be permitted to relocate his residence from Australia to Germany immediately upon the conclusion of the proceedings.  The mother offers the father the opportunity to spend time with the child on such circumstance as she would agree.

2. The proceedings have some level of complexity.  The father was born in 1984 and  the mother in 1986.  The parties met following an arranged introduction where, if suitable and satisfactory, the parties would marry.  Both parties are of the Muslim faith.  I have advised the parties that if there are matters relating to their belief structure and their culture that are relevant to the proceedings or indeed the manner in which either of the parties, but in particular the mother is able to conduct herself and that, as a result of those culture issues, there are matters of constraint upon her, then she is to raise them and they will be dealt with.  No issues have been raised.

3. The parties presumably found favour with each other and with the assistance, consent and promotion by their immediate families they married in 2012.  The child was born in 2013.  It was however not a happy relationship and the parties agree that they separated in or about August of 2013.  There are substantial issues and indeed significant dispute on the facts as to the basis upon which the parties found that they were no longer able to live together, but there is no dispute that the parties separated and have remained living separately and apart since August of 2013.

4. The father clearly considered his position as a result of the separation and determined that he would seek to negotiate with the mother an arrangement in respect of the parenting circumstances that would exist for the child following the separation.  It could not be said that there was significant opportunity given for either of the parties to embark upon the mature reflection of what would occur following separation, but it is demonstrable that by September 2013 the parties determined that they would seek by consent orders which would place the care of the child with the father.

5. The parties consolidated their agreement by Application for Consent Order filed 12 September 2013.  That application enabled a Registrar of this court to make a consent order on 20 September 2013 which provided that the applicant father have sole parental responsibility for the child,  that the child live with the father and that the mother spend time with the child as may be agreed between the parties.  There was also an order made that the mother be restrained and an injunction granted restraining the mother from removing the child from the Commonwealth of Australia.

6. Each of the parties were ostensibly represented or had advice from solicitors. The father was represented by Dewar Legal.  In relation to the mother, whilst the minute of order indicates that she was a self-represented party, the evidence is that she had advice from Ms Olga Skordos of Franklin Legal.  It is, I think, not controversial that the mother was urged by Ms Skordos not to enter into the consent order.  If I am right in that contention then indeed the advice of Ms Skordos was eminently correct.  The mother should not have entered into the consent order in circumstances where she now rails against the consequences of those orders.

7. The mother left Australia in late September 2013 and again, it is not controversial that the mother has not returned to Australia at any occasion other than for the purposes of these proceedings and importantly, has not spent time with the child or indeed communicated with her son.  That is regrettable.  It may be that, as the mother alleges, the father is resistive to the mother’s time with the child.  It may be that the father is keen to ensure that a relationship exists between the mother and the child, but that she has simply not availed herself of any opportunity to seek such a relationship.  It is hoped that the father’s position is the latter, not the former.  It is a clear position under the Family Law Act 1975 (Cth) (“the Act”) that a child has a right to have a meaningful relationship with both of his or her parents.

8. In any event, irrespective of the father’s attitude, the position of the mother is that she does not appear to have sought to spend time with the child, has not returned to Australia to do so and there is little evidence of that intention.  In that regard, the mother was offered the further opportunity to give evidence as to whether, if her application for the child to live with her and permission to relocate to Germany was refused, whether there was any alternative orders that she sought in relation to either time spent and/or communication between the mother and the child with the child ostensibly remaining in the care of the father.  Those orders are not sought by the mother in her Amended Initiating Application and they are certainly not offered or proposed by the father.

9. It is not a matter of obligation on the mother that she must contemplate that which she finds unpalatable, but obviously in terms of any order that I am able to make, that must be guided by the overarching consideration that a parenting order so made must be in the best interests of the child.  That is not a concept in the abstract.  It is not a matter for me to decide what I think is best for this child.  It is a matter for me to bring that focus to bear if and only if there is evidence that would support such an outcome.

10. On 8 April 2014, this matter came before Judge Kelly of the Federal Circuit Court and an order was made for the appointment of an Independent Children’s Lawyer (“ICL").  In July of 2014, the proceedings were adjourned to this Court and I became effectively apprised of this matter in August of 2014.  From the very early stages of this litigation, it has been a position adopted by the father that the proceedings should be dealt with by way of an interim determination, namely to consider whether the application of the mother at that stage in its original form, not its amended form, should be the subject of summary dismissal.

11. I heard significant argument on 20 August 2014 where the mother appeared by telephone, the father was represented and there was attendance and assistance rendered by the ICL.  There were matters raised by the father that the orders sought by the mother were scandalous.

12. Accordingly, I struck out certain paragraphs of the mother’s application.  Nothing turns on that now, but what is important is that I gave extensive settled ex tempore reasons for judgment.  It was a concern of the Court that the mother would have significant difficulty in presenting her case in circumstances where she lived in Germany and, clearly, the proceedings were to be heard and determined in Australia.  one of the matters that was before me at the time was whether there should be a bifurcation of the proceedings.  That is, to hear and determine the Rice & Asplund argument and then, if unsuccessful, the trial would follow. 

13. I refer to the matters raised in my judgment.  And whilst I note the concession that was made by counsel on that occasion that an application for summary dismissal at that time was ultimately likely to be unsuccessful and was therefore not pressed, the mother was clearly on notice that it was an integral part of the father’s case that, as he saw the matters upon which the mother was seeking to rely at that stage, he did not consider that they would satisfy a court at any level.  He rejected that the mother had entered into the orders under coercion or duress or that she was so significantly or substantially impaired that she could not have known the nature and effect of the orders that she agreed to. 

14. He argued that even if all of that occurred, in any event, there had not been any change in the circumstances since that time.  I can assume that the mother received a copy of that judgment and gave careful consideration to the contents.  As part of the submissions made by Ms Cocks in support of her application for summary dismissal, she refers to paragraph 18 of that judgment, and I think it is apposite to set out in detail matters raised by me in paragraphs 18 and 19 as follows:

    At this stage, I note my frankness with the mother that in order for her case to be properly founded and to have a modicum of success a lot more work needs to be done. She would need an affidavit from her solicitor that completed the independent legal advice certificate attached to the application for consent orders… She would need to obtain potentially psychiatric, psychological and/or medical evidence which would support her contention that she was not able to understand the nature and quality of the application for consent orders and the consequences of her actions.  She would also potentially need to garner the necessary evidence to show and demonstrate that irrespective of the other matters that adversely affected her ability to provide informed consent, she was also under duress in the legal sense of the word. 

    They are not matters that, in my opinion, are likely to be satisfied simply upon the mother’s own assertions.  They are matters that are likely to be satisfied only upon the provision of appropriate expert evidence.  That is not to be expert evidence obtained in Germany.  That will be expert evidence that the mother will have to obtain locally, again, for the same reasons this matter cannot be dealt with remotely with the mother remaining in Germany, nor could I consider that any expert evidence that the mother needs to rely upon in order to support and substantiate her case could be experts other than people in Australia who are able to attend the proceedings, attend with their file and be able to give evidence. 

15. I also raised in paragraph 20 that if overseas evidence could be relevant and important, that those matters can be dealt with if required.  The mother has been on clear notice from the very early stages of these proceedings that there needed to be effort and focus on her case and that it was not simply good enough to present her own view and opinion but rather that there needed to be clear and cogent evidence to support either or both of the following contentions, namely that she was coerced and/or under duress when entering into the consent orders and/or that, notwithstanding the orders made, there has been a material, significant or substantial change in the circumstances of the child or of the parties that has an impact upon the child which would suggest the court should consider further orders or different orders to that which the parties have agreed. 

16. I have raised with the parties that the proceedings should be conducted pursuant to s 67ZN of the Act but, in particular, by focus upon the five principles as set out therein. I have also given consideration to the provisions of s 69ZT and have done the best that I can to explain to the mother the impact and importance of s 69ZT, which is generally to allow matters to proceed with less technicality. I took the precaution this morning of having the duty solicitor available not to represent the mother in the proceedings but to listen to the matters that I raised with her and with counsel for the father and if the mother so sought, the opportunity to receive advice.

17. In particular, I was keen for the mother to seek advice on the nature of a Rice & Asplund application, the matters that are likely to be relevant both in terms of the application but also in defence of same by the mother, issues in respect of admissibility of evidence, and the like.  I do not know, nor should I know, what has transpired between the mother and the duty solicitor but I can do no more than provide an opportunity for the mother to seek advice.  I can’t dictate or determine the nature of that advice or how it has been given. 

18. The father gave notice via the case outline document of his counsel that he took particular objection to the nature and construct of the mother’s trial affidavit filed 14 July 2015.  I heard submissions across the day in respect of the mother’s trial affidavit and the admissibility or lack thereof of the extensive provisions contained in that document.  I attempted to explain to the mother that where a Rice & Asplund application may be made  or, indeed, an application may be made for summary dismissal – that it was an important consideration to look at the evidence upon which the mother seeks to rely. 

19. There may well be matters that are objectionable in the father’s affidavit but in terms of whether a Rice & Asplund application should or should not be successful, the matter stands or falls on the best case for the mother, not for the father. The mother has the advantage of being able to present evidence and it being accepted, initially, on its face value in order to determine whether an application to dismiss her proceedings should find favour or not. There are a number of competing issues in such a consideration. The first is, obviously, the presumption arising from s 69ZT that the rules of evidence should not apply and that, therefore, that which would ordinarily or likely to be inadmissible under the strict application of the Evidence Act 1995 (Cth) (“the Evidence Act”) should be admissible, notwithstanding its defects.

20. Of course, even evidence that is admitted in that fashion is still the subject of the weight that it is to be given. Ms Cocks submitted that she was not seeking to dispense with the provisions of s 69ZT but, rather, her objection to the mother’s affidavit was to be founded in s 135 of the Evidence Act. Section 135 is not caught by s 69ZT. That is, even if the Evidence Act does not apply to those parts referred to in s 69ZT, section 135 nonetheless still applies and is available.

21. Moreover, the court is also entitled to consider the provisions of Rule 15.13 of the Family Law Rules 2004 which provides the ability for the Court to strike out evidence that is argumentative, scandalous and generally lacks probative value.  I am certain that the mother did the very best that she could with her trial affidavit of 14 July 2015. 

22. It should also be noted that my reliance upon her trial affidavit is not limited to what I might describe as the operative or narrative clauses but also to certain annexures that she seeks to rely upon.  This issue required some investigation and exploration as the mother’s affidavit did not contain the annexures that were referred to.  Ultimately, I determined that the annexures that the mother was concerned about were annexures that were to be found in a raft of affidavit material filed by her in early 2014.  I have made orders in respect of the annexures that are before me but generally the annexures are to be found in documents 5, 6 and 7 being affidavits that the mother filed 7 March 2014 and a further affidavit of the mother of 7 April 2014 which contains a screenshot of a Facebook page.

23. Again, I do not propose to repeat the remarks that I have made in respect of the documents but generally where those documents consist of reports and notes made by community members and those parties that attempted to conciliate and counsel the mother and the father and are not being called, I have struck them out.  I am, however, prepared to have regard to the medical notes of the mother in terms of her attendance locally upon her general practitioner.  I think it is fair to say that the objections, or at least the topic of the extent of the objections, arising from the mother’s affidavit are properly founded. 

24. I took the opportunity to determine those paragraphs of her affidavit that I considered objectionable and invited both the mother and Ms Cocks of counsel to interrupt me and/or to make submissions if either considered that there were difficulties or that they did not agree with my determination.  There was only one issue raised by Ms Cocks which was to urge that I restore to the affidavit to be read paragraph 4 on page 13.  On reflection, I consider Ms Cocks to be correct and in the absence of any objection by her there is no reason why that should not remain.

25. There are two issues in respect of the preliminary point that is now raised by the father.  The first is that there is no evidence that the mother raises in respect of the appropriateness of the making of the consent orders.  And secondly, that irrespective of that contention or outcome there has not been a change in the circumstances.  I bring into account the onerous obligation that a court has when determining an application for summary dismissal.  It is not a matter where a court might think that a party has a weak case and it should therefore be dismissed. 

26. It is not even a matter where a court might consider that as the evidence is presented the party is unlikely to succeed.  If that was the state of affairs the application for summary dismissal would, in fact, be unsuccessful.  It is, however, not quite as severe as suggesting that if a case is hopeless then that is the only circumstance where a case will be struck out.  Of course, if the case is hopeless then the test is well and truly satisfied.  In that regard, I have regard to the extensive consideration of that which is required for summary dismissal in the decision of Bigg & Suzi (1998) FLC 92-799.

1. In relation to Rice & Asplund I am reminded of the remarks of the Full Court in Langmeil & Grange (2013) FamCAFC 31 where the remarks of Evatt CJ in Rice & Asplund at [78,905 – 906] were reinforced:

   The principles which, in my view, should apply in such cases but that the court should have regard to any earlier order and to the reasons for and the material upon which such an order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate some factor which was not disclosed at the previous hearing which would  have been material…

2. Their honours in Langmeil & Grange highlighted that serious mischief can arise from what they considered the potential for endless litigation.  Strauss J in Freeman & Freeman (1987) FLC 91-857 at 76,470 to 471 said:

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.  It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family.  It is financially burdensome...  The welfare of the children is, in this case as in other concerning custodial arrangements, the paramount consideration.  But once the court, either after a full hearing or by a consent order, has settled the question of custody it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support.  Stability in the lives of children and also in the lives of adults is an essential prerequisite to their wellbeing.

3. The Full Court in Marsden & Winch (2009) 42 Fam LR 1 did, however, recognise that there will be circumstances where a significant change has occurred and that a court may well need to reconsider the parenting arrangements. In Langmeil & Grange the court considered that the following indicators should be considered: 

   i)the past circumstances including the reason for the decision and the evidence upon which it is based; 

   ii)whether there is any likelihood of orders being varied in a significant way as a result of a new hearing; and

   iii)if there is such a likelihood the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. 

4. It is also, I think, well settled that the issue of Rice & Asplund may well be an application made at a preliminary stage, indeed, in this case it was at least a consideration of the father to run such an argument in August of 2014 but also the issue can be ventilated during the course of a final hearing.  There are parallels in other court proceedings and in other courts.  A good example in a criminal court is what is commonly referred to as a voir dire, that is, a hearing within a hearing – a hearing necessary to determine whether there is, in fact, a case to answer. 

5. I do not, of course, equate those matters and those sorts of considerations with the very onerous obligation that a court has in relation to parenting issues.  Parenting cases have a particular category and status, deservedly so, all of their own.  But that is the very issue that Rice & Asplund seeks to bring to account and there is a point where the interests of the children are served by the proceedings being brought to an end rather than the parties entering or embarking upon endless litigation.  Accordingly, I am obliged to consider a wide-range of issues when considering a Rice & Asplund application.

6. Whilst there is some dispute and judicial disagreement as to whether a Rice & Asplund issue must be determined upon the best interests test, I think it is without doubt appropriate to consider the best interests as a very important factor if not a prerequisite.  Again, I highlight that a parenting order or a determination in respect of Rice & Asplund where considerations of the best interests of the child are to be either given significant or substantial weight or, indeed, be the paramount consideration still must be determined according to evidence.  It is not a matter of what I think.  It is a matter of what I decide on the evidence is in the best interests of this child that is the important focus and the appropriate pathway.

7. I return then to the evidence.  The mother’s case is that soon upon entering into the household of the father, that comprising his mother and his father, she was treated poorly and was kept in isolation and was subjected to family violence either in terms of direct physical conduct or by reason of financial constraint and/or refusal to allow the mother to appropriately socialise.  I do not need to consider what the father says about that because I am determining a Rice & Asplund application and not a parenting order following a hearing of the evidence being presented by the mother and the father.

8. It may well be the case that what the mother says about the environment within the father’s home is correct.  The issue, however, is, if it is, what is the impact of that?  The focus must be, on the mother’s case at the highest, that so suborned was she by the influence and conduct of the father – and in particular his family, but with a focus on his mother - that when the application for a consent order was presented to her, she felt she had no alternative but to sign it, notwithstanding a concession by her that she was told not to do so.

9. That requires evidence to make that link.  It is an easy and ready assertion for the mother to make, but it is entirely a different position for the mother to be able to establish that, psychiatrically or psychologically, the stressors that she says were upon her at the time, and certainly at the time that the consent order was entered into, were such that she did that which she either now regrets or understands she should not have done.

10. I have the evidence of the mother in her affidavit, but I have little more than that.  I do not propose to repeat the matters that I raised in paragraphs 18 and 19 of my earlier judgment, but this issue of the mother’s state of functioning and understanding at all material times, but in particular at the time of the making of the consent order, was highly relevant.

11. The mother has presented no evidence that would support the contention that she was under duress or coercion or that she didn’t understand because of other health factors – in this case, psychiatric and/or psychological considerations  – of the nature and consequence of the order.

12. If anything, the mother clearly understood the order and what was being proposed, but on her case, she considered that it was right and appropriate at the time, given how she felt.  That is, the mother’s case is not one of coercion or duress or that she was compelled to do that which she did not wish to do, but rather, it is only upon her leaving the environment and returning to Germany that she was able to maturely reflect upon her circumstance and regrets the orders that she made.

13. That is not duress.  Nor is it coercion.  It may be trite for me to observe that the mother had the option of remaining in Australia, and in all the circumstances, there may well have been a very different outcome if that had occurred.  I do not know.

14. There is some fleeting suspicion that the father and those that support him were keen to conclude parenting matters at the earliest opportunity.  That is what the mother highlights, and she says that must in and of itself suggest an ulterior motive, namely, that once she was found to be unsatisfactory to the father and his family, their focus turned to doing all that could be done to ensure that they kept the care of the child.  They are, however, matters of mere opinion and are not the subject of evidence.  Again, I consider that I am obliged to consider the mother’s case at its highest and have no regard to the denials of the mother’s assertions and allegations by the father.

15. Following the deletion of significant portions of the mother’s affidavit, there is little or no evidence that would suggest that the mother did not enter into the orders other than in circumstances that she understood the consequences of those orders.  It may be that, later, she regretted the orders that she consented to, but that is a different circumstance.

16. I do not consider that there is any evidence at all which would support the mother’s contention that the orders should not have been made, by reasons of coercion, duress or a florid and debilitating mental incapacity to understand the nature and consequences of her actions.  She may have regretted that which she did, but that is different to suggesting she did not understand and/or had no other alternative.

17. The consideration does not, however, end there.  It may be that the mother’s case is that there has been a change in the circumstances of the parties and/or the child which would promote the court to consider a change in the orders.  Indeed, I raised with the mother and with Ms Cocks of counsel that the very fact that the mother has not spent time with the child and that there has been little or no communication may in and of itself be a changed circumstance. Clearly the orders entered into by the parties contemplate that the mother would spend time with the child, albeit in circumstances in which the parties agreed.

18. I think it is reasonable for a court to impose upon the parties that which the Act considers to be an important primary consideration in s 60CC, namely, that a child has a right to have a meaningful relationship with both parents. It may well have been the case that whatever significant and substantial concession the mother was prepared to make in terms of leaving with the father sole parental responsibility and the primary care of the child, that she did so in circumstances where she considered she would still be able to maintain a meaningful relationship by contact, communication and perhaps even that she would spend time with the child. She has not, and again, that could very well support the contention that that alone represents a changed circumstance.

19. I gave the mother the opportunity to consider that issue and, importantly, to consider whether she would seek any alternative orders in the event that I did not find favour with her application and that the child thereafter would remain in the care of the father.  The mother did not present anything to me, and whilst I am not entitled, nor am I critical of the mother for not being able to contemplate that which is emotionally difficult for her.

20. If there are no orders sought, and the mother does not seek to produce any evidence in that respect, it seems to me that it cannot be a material change in circumstance, if, in fact, there is no potential outcome or consequence, namely, a consideration of an order based upon the very issue of the mother, on her case, being denied any time with the father.

21. It is a consistent thread through the proceedings that the mother rejects absolutely any intention, or indeed desire, to return to Australia, either on a permanent basis to renew and re-establish a relationship with the child or indeed on an interim or periodic basis to spend time with the child.

22. I note that the father’s position is more rigid than he would have the Court initially understand.  It is reasonable, from reading his affidavit and the evidence from his mother and father that this is not a matter where he would easily concede or consent to the child spending time with the mother.  Fortunately for him, that is an issue that does not need to be considered.  If the mother does not seek it, the Court does not need to be concerned as to the reasonableness or otherwise of the father’s position.

23. I do not have evidence before me as to the mother’s psychiatric and/or psychological state.  As far as she is concerned, she currently presents without psychiatric or psychological impediment.  I accept what she says in her affidavit about that.  The issue is not necessarily her current functioning that would be relevant to a parenting issue.  The issue to a current parenting consideration is whether there was any psychological or psychiatric issues that impacted upon her judgment, her decision-making or her presentation when the consent orders were made, and I have found that there is no evidence presented, notwithstanding what the mother says about it.

24. The mother has not seen the child for two years.  It is difficult to consider what other changed circumstance there could be, in circumstances where she does not complain that any real or significant attempt to spend time with and/or communicate with the child has been denied, and in any event, she does not seek to return to Australia, which would be a change in the circumstances, or to engage in the child in some material way, with those attempts being the subject of rejection or refusal.

25. If that had been the case – that is, if the mother had presented credible evidence that suggested that she had sought on a number of occasions to speak to the child, see the child, receive reports about the child and that any of those entreaties were thwarted by the father - that may be sufficient to represent a material change in the circumstances.

26. It may be that matters will transpire in the future where the mother feels that she is in a position to return to Australia, and she seeks to resurrect some form of relationship with the child.  It may be that the mother seeks to do so remotely and electronically.  If she does, and those entreaties are the subject of trenchant rejection by the father and/or appear to be the subject of objection and hurdles, the mother may well have a cause of action in the future. 

27. I am concerned about what has happened and in the circumstances of this case, I do not consider that there is any evidence that will support the contention that the mother was coerced and/or duressed or under some significant or substantial impediment in relation to the consent orders such that she did not know the nature of what she was doing or, indeed, that there has been any material change in the circumstances either of the child other than the fact of the child growing older noting that the child was in the father’s care from about two months of age or, indeed, in the circumstances of the mother that would impact upon a parenting issue and the previous orders that had been made. 

28. I think it is a relevant consideration to consider the application for consent orders made on 12 September to highlight that the document provide a statement of independent legal advice of Ms Skordos given on 11 September 2013.  The mother took no steps to call Ms Skordos in circumstances where in August of 2014 as a part of the general orders I made, arrangements or an order was made for the file of Ms Skordos to be delivered up to the then ICL to enable each of the parties to inspect that file and, if necessary, to present to the court evidence from the file which might support each of their respective cases. 

29. Again, I am not concerned about the father in regards to this but I note in respect of the mother it is her position that she has not seen Ms Skordos’ file and made no arrangements for it to be inspected, copied or, indeed, provided to her when clearly she had that opportunity it being her solicitor and effectively then it being her file.

30. The application for consent order contains some information in paragraphs 13 and 13(a) that are relevant.  Paragraph 13 says:

    The respondent mother is returning to Germany to live with her family on a permanent basis.  The respondent mother wishes for the child to remain in Australia and be cared for by the father.  The respondent mother has been diagnosed with disorganised schizophrenia.

31. Paragraph 13(a) says:

    It is not practicable for the mother to spend time with each parent as the mother intends to return to Germany to live with her family on a permanent basis.  The mother will communicate with the child regularly via telephone, Skype and the like and will visit and spend time with the child as often as she can and as agreed between the parties.

32. If that document is taken by me as stating the accuracy of the position of the parties as at the date upon which it was entered into, namely, 11 September 2013, as far as the mother is concerned, it indicates a clear intention that she is to return to Germany, that the child is to remain in Australia cared for by the father and that she is satisfied and content with the construct of the orders which would see her communicate with the child regularly via telephone, Skype and the like.

33. Again, I have explored with the mother whether there is any evidence that she would wish to present to the court to suggest that the latter part of that narrative, namely, her intention to communicate with and spend time with the child has been thwarted by the father.  That opportunity to give evidence and to seek orders that might assist in that regard was not taken up by the mother.

34. The court can do no more.  Accordingly and for those reasons, I consider that there is no evidence that the mother is able to present which would speak against the appropriateness and the propriety of the application for the consent orders and the orders subsequently made, and in any event, there is no evidence whatsoever which would support a consideration of any changed circumstance. 

35. In the circumstances then of this case, I do not consider that it be in the best interests of the child to reopen the proceedings and to hear and determine the application of the mother that the child be transferred to her care. 

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 October 2015.

Associate: 

Date:  20 October 2015