Mankus and Matulis
[2016] FamCA 799
•9 September 2016
FAMILY COURT OF AUSTRALIA
| MANKUS & MATULIS | [2016] FamCA 799 |
| FAMILY LAW – CHILDREN – Best interests of the children – Kenyan law with respect to parenting orders, enforcement of foreign judgements and institution of criminal proceedings – Benefit to the children having a meaningful relationship with both parents – The need to protect the children from physical or psychological harm – Practical difficulty or significant expense involved in spending time with and communicating with the other parent – Unacceptable risk that the children will not be returned to Australia if contact with the father occurs in Kenya – Hague Convention and Child Protection Convention do not apply. |
FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Application dismissed – Expert evidence – Proof of foreign law – Enforcement of Australian orders in Kenya – obtaining “mirror orders”.
| Evidence Act 1995 (Cth) ss 174, 175 |
Convention on the Civil Aspects of International Child Abduction (1980)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996)
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Mankus |
| RESPONDENT: | Mr Matulis |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5648 | of | 2014 |
| DATE DELIVERED: | 9 September 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 1 June 2015, 18, 19, 20, 21, 22 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Smythe Wozniak Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Tocker |
| SOLICITOR FOR THE RESPONDENT: | Owen Hodge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms DeVere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The father shall spend time with the children B born … 2006, C born … 2009 and D born … 2009 (“the children”) in Australia, such time to include:
(a) The school holidays commencing at the end of Term 2 (mid-year) in each year and
(b) Two weeks in the school holidays commencing at the end of Term 4 (Christmas) commencing at 10am on 27 December 2016 and ending at 4pm on 10 January 2017 and each alternate year thereafter and commencing at 10am on 23 December 2017 and ending on 6 January 2018 and each alternate year hereafter.
In the event that the father does not spend time with the children in the school holidays commencing at the end of Term 2 in any year, he shall spend time with the children in Australia for four weeks in the school holidays commencing at the end of Term 4 (Christmas) commencing at 10am on 27 December and ending at 4pm on 24 January in even numbered years and commencing at 10am on 23 December and ending at 4pm on 20 January in odd numbered years.
The father’s time pursuant to Order 1(a) shall commence at 10am on the first day the children are not required to attend school during such holiday and end at 4pm on the day prior to the children’s first day of attendance in the new school term.
The father is to notify the mother by no later than thirty (30) days prior to the commencement of the second Term’s school holidays of his intention to exercise time with the children pursuant to Order 1 or 2.
The father shall spend time with the children at such other times as may be agreed by the parties upon the father giving not less than 14 days’ notice of his intention to come to Australia.
The father’s time with the children pursuant to these Orders is subject to the following conditions:
(a) His time with the children shall take place in Australia.
(b)The children shall remain on the Airport Watch List and the father shall do and say all things and sign all documents to ensure the children remain on the Airport Watch List if requested to do so by the mother.
(c)The father shall surrender to the mother all current passports in his name, including any Diplomatic Passports, prior to the commencement of his time with the children.
(d)Upon the return of the children to the mother by the father or his nominee at the end of the father’s time with the children pursuant to these orders, the mother shall forthwith return the passports surrendered by the father pursuant to Order 6(c).
The mother shall facilitate regular telephone, text, email or other electronic communication between the children and the father.
The mother shall initiate weekly Skype communication between the children and the father provided that the father keeps the mother informed of the relevant Skype address.
The mother shall keep the father advised as to the following:
(a) The residential address of the children
(b) The name and address of the school attended by the children
(c) The name and address of the children’s Doctor
(d) The name and address of any medical specialist treating the children
(e) The mother’s telephone, email and Skype contact details
These Orders shall be authority for the father to:
(a) Correspond directly with the children’s schools; and
(b)Obtain copies of their school reports, school photographs, newsletters and other relevant material; and
(c)Obtain any other information or correspondence whatsoever from the schools relating to the children.
These Orders shall be authority for the father to correspond directly with any medical practitioner that the children might attend upon, including, but not limited to, General Practitioners, Counsellors, Psychologists and any other medical specialists to obtain information relating to the children’s treatment.
Whilst the mother lives in Canberra, changeover shall take place at the Canberra Aquatic Centre.
In the event that the mother relocates to another location in Australia, she shall advise the father as to an alternative changeover location.
The mother is restrained from moving the children’s residential address to a place more than one hour driving time from any capital city in Australia.
Each of the parties shall not denigrate the other party, members of the other party’s family or the other party’s partner, from time to time, and shall use their best endeavours to ensure that third parties do not denigrate such persons in the presence and hearing of the children.
The mother shall use her best endeavours to ensure that the children participate regularly in culturally appropriate activities including speaking their native tongue.
The mother shall follow all reasonable directions of the children’s general practitioners or treating professionals particularly in relation to counselling or other therapy as recommended by Dr Lucia V and shall keep the father advised as to the children’s treatment, including providing copies of available reports to him electronically.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankus & Matulis 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 |
FILE NUMBER: PAC 5648 of 2014
| Ms Mankus |
Applicant
And
| Mr Matulis |
Respondent
REASONS FOR JUDGMENT
Introduction
The family in parenting proceedings under consideration are Kenyan. Africa is their home. Following the breakdown of their marriage, the mother came to Australia where she is a permanent resident and which had been considered by her and the father as a potential home for their family some time ago. She brought with her the couple’s three children, two of whom had been born in Sydney and were Australian citizens.
For the reasons given in my earlier judgement[1] the parenting proceedings in relation to the children are being determined in the Family Court of Australia.
[1] Mankus & Matulis [2015] FamCA 217.
The parties have already agreed that they are to share equally parental responsibility for the children and that the children are to live with their mother. Orders were made with the consent of the parties on 1 June 2015 that give effect to this agreement. It is understood by the parties that the mother intends to continue living in Australia with the children and has no intention of returning to live in Kenya.
The only matter to be determined in these parenting proceedings relates to the children’s time with the father. Both parents agree that it is to the benefit of the children to have a meaningful relationship with both of their parents and the appropriate way to support this relationship with the father is through spending time with him to the greatest extent that is possible. The parties both accept that it is not reasonably practicable for the father who lives in Kenya to spend “substantial and significant time” with the children.
The father’s proposal is that the children spend block periods of time with him in Kenya during their school holidays. Although the mother agrees that it would be beneficial for the children to spend time with their father in Kenya, she contends that there is an unacceptable risk that the children will not be returned to Australia if that occurs. The father agrees that if the Court were to find that such a risk exists, it would not be in the children’s best interests for the orders to be made as he proposes. It is his case that he will comply with any orders made by this Court and there is no unacceptable risk that he will retain the children in Kenya.
The Independent Children’s Lawyer (ICL) agrees with the mother’s contention about the unacceptable risk that the children will not be returned and proposes orders for the father to spend time with the children in Australia. These proposed orders were agreed to by the mother at the conclusion of the proceedings. Accordingly, the only matters to be determined in these proceedings are whether such an unacceptable risk exists, and which of the proposals for the father’s time are otherwise in the best interests of the children.
Background
A detailed background is set out in my previous Reasons for Judgment, which will largely be repeated in this Judgment.
Ms Mankus (“the mother”) and Mr Matulis (“the father”) who are both aged 44 were born in Kenya and have spent much of their life in that country. They met in 1993 in the USA where they were both studying at university. The father says they commenced living together in Kenya in 1994, while the mother says this occurred in 1996. During their relationship the parents travelled either together or alone to study, work and live in various countries.
The father came to Australia in 1998 to study for a doctorate at University F in Sydney.
The parties married in Kenya in 2000. Shortly after their marriage, the mother accompanied the father to live in Australia on an accompanying spousal visa while he completed his university studies. She obtained her New South Wales registration as a health professional and worked as a health professional in Sydney.
In 2002 the parties applied for permanent residency in Australia.
After the father completed his doctorate the parties travelled to Country G in 2002 where the father taught at a university and the mother worked as a health professional.
In 2004 the parents moved from Country G back to Kenya.
In August 2004, the parties obtained permanent residence visas for Australia. The primary applicant was the father and the visa granted to the mother included a condition that she was not to travel to Australia before the father.
In 2006, the mother travelled to the USA alone to complete a doctorate. The father remained living in Kenya. In 2006 the parties’ first child, B, was born in the USA. The eldest child is a dual Kenyan and American citizen. At some point the parents also applied for permanent residence in Australia for the child, which was granted.
The family lived in Kenya together from 2007.
The parents incorporated a company, H Pty Ltd in New South Wales in August 2009.
The parents’ boy and girl twin children known as C and D were born in late 2009 in Sydney. The twins are dual Kenyan and Australian citizens and travelled on Australian passports on the return trip to Kenya in November 2009.
After returning to Kenya in November 2009 the mother took four months maternity leave and then returned to work. She resigned from that employment in March 2011 and from this time was the full time carer for the three children.
In early 2012, the father resigned from his government position in order to contest an election for a position as a public official in Kenya.
In December 2012, the father informed the mother that the marriage was over and he left the matrimonial home. The mother says this departure came as a shock to her.
The parties reached a property settlement shortly after separation in which the father transferred the former family home and other properties to the mother “for her benefit and the benefit of their children”.
In February 2014, the father commenced family law proceedings in the High Court of Kenya in relation to parenting. In his application he sought “an order for joint custody and equal visitation of the children”. In order to apply for a divorce, the father was also required to file for a “Judicial Separation”.
In March 2014, the father was elected as a public official in Kenya and continues to serve in that position.
The mother filed a Response to the Kenyan parenting application and judicial separation application in April 2014.
In June 2014, the father wrote a letter to the Australian High Commission seeking an extension of the eldest child’s permanent residence visa. In that letter, the father did not mention the parents’ separation or the family law proceedings. The visa was granted. The mother’s visa associated with her grant of permanent residency was due to expire on 20 November 2014.
The hearing of the Kenyan parenting and judicial separation applications was fixed to occur on 9 October 2014. The hearing did not proceed on that date due to the workload of the court and was adjourned to a future date to be advised.
The parents agreed that the mother and the children would travel to Australia on 17 November 2014 and the mother purchased one-way tickets for their departure on this date. There is a significant dispute concerning the purpose of this travel to Australia and the intended duration of the stay in Australia which is dealt with later in these Reasons.
The parents participated in mediation in Kenya in an attempt to resolve their dispute on 14 October 2014. A further mediation was to occur on 5 November 2014.
On 5 November 2014, although the mother initially cancelled the pre-arranged mediation, a further mediation was held between the parents in relation to the Kenyan parenting proceedings. The mother says that the father threatened her during this mediation and that this was part of a pattern of threatening and at times violent conduct by him during the relationship. This is a matter of significant dispute between the parties and is dealt with later in these Reasons.
The mother and the children left Kenya later on 5 November 2014. The mother had cancelled the 17 November tickets and purchased new tickets for the departure and the father was unaware of this change in arrangements. The father became aware of the departure of the mother and children while they were en route to Australia.
On 24 November 2014 the mother initiated these proceedings.
In early 2015 the mother found accommodation and employment in Canberra where she moved with the children and continues to reside. The children are attending local primary schools.
The father travelled to Australia where he spent time between 6 and
12 December 2014 but was unable to make contact with the mother or arrange to see the children. His solicitor sent letters to the mother’s solicitors on
5 December and 8 December seeking that arrangements be made for the children to spend some time with him but this did not eventuate and the father returned to Kenya on 12 December 2014. There was further correspondence in December 2014 from the father’s solicitor to the mother’s lawyer. The father also attempted unsuccessfully to contact the mother directly via telephone and email during this period.
A Family Consultant interviewed the parties and the children on 11 February 2015. A Child Responsive Program Memorandum was prepared by the Family Consultant for the Court’s assistance in an interim hearing concerning the father’s time with the children.
The father spent a few more days in Australia following these court events and spent time with the children. He then returned to Kenya.
The father was present in Australia for the hearing on 20 March 2015 in relation to forum. Judgment was delivered on 1 April 2015.
The father continued to travel to Australia throughout 2015 to spend time with the children, including block holiday time.
In May 2015 an expert psychologist, Dr V interviewed the family for the purposes of preparing a report. The report dated 28 May 2015 was released shortly thereafter.
On 1 June 2015 the parenting dispute was fixed for hearing. At that hearing the father had proposed to rely his own legal representative in the Kenyan proceedings to give “expert” evidence as to matters relating to Kenyan law. This evidence was objected to by the mother and the ICL on the basis that the father’s Kenyan lawyer was not an expert. Although it was possible that the hearing could have proceeded on the basis of this witness’s evidence and the Court would apply such weight to it as was considered appropriate, I was of the view that as this matter was a significant issue in the proceedings I would be greatly assisted by an appropriately qualified expert concerning Kenyan law.
The remaining hearing dates in June 2015 were vacated and orders were made for the filing of a report from an appropriately qualified independent expert with respect to the registration of foreign orders and parenting proceedings in Kenya. As it was the mother’s case that there was no process for the registration of foreign orders in Kenya and it was the father’s case that such a process did exist, there was an expectation that expert evidence in relation to Kenyan law would be filed by the father.
On 1 June 2015 final orders were also made by consent that the parents have equal shared parental responsibility for the children and that the children live with the mother. Interim orders with respect to the father’s time with the children in Australia were also made by consent.
In August 2015, the parties’ marriage was dissolved in the Kenyan proceedings.
On various occasions when the father has spent time with the children in Australia he has provided funds for the support of the children to the mother directly or through the children. Since August 2015, he has paid child support as assessed through the Child Support Agency. The father’s partner has accompanied him on some trips to Australia and spent time with the children including block holiday time at various holiday locations.
The final hearing took place over five days in April 2016.
A disqualification application
As is discussed later in the Reasons, one of the significant matters in dispute between the parties relates to the content of Kenyan law with respect to parenting orders and enforcement of foreign judgments. At the commencement of the proceedings after dealing with some preliminary matters, one of the first issues that was considered related to the father’s expert witness, Mr R, a Kenyan lawyer.
In an interchange between the bench and the various counsel, the issue of Kenyan law and the enforceability of Australian orders or orders in similar terms in Kenya was raised, together with the contents of Mr R’s statement, some of which did not appear to be in the form of an expert opinion. I determined that the first witness to be called would be Mr R and applications made by the ICL and mother objecting to his affidavit would be dealt with at the outset.
The mother’s counsel made her objections to Mr R’s evidence and expertise first followed by submissions made on behalf of the ICL. The father’s counsel then addressed the Court in response to these objections. An interchange between the bench and the father’s counsel concerned the previous occasion when the matter was listed for final hearing in June 2015 and was adjourned. The reason for the adjournment on that occasion was the lack of expertise of the then witness proposed as an expert concerning Kenyan law. Counsel for the ICL, Ms De Vere also engaged in an interchange with the bench as to this issue. In the course of that interchange the following was said:
MS DE VERE: Order 3 of 1 June 2015 your Honour directed the father is to file and serve an affidavit or report from an appropriately qualified independent expert with respect to the registration of foreign orders and other aspects of parenting orders ‑ ‑ ‑
HER HONOUR: Yes.
MS DE VERE: ‑ ‑ ‑ in Kenya by 11 September 2015.
HER HONOUR: Yes.
MS DE VERE: That’s the totality of the direction that your Honour made, and I think the proceedings – the hearing was adjourned on the last occasion to ‑ ‑ ‑
HER HONOUR: It was. For this very issue.
MS DE VERE: For this very issue.
HER HONOUR: Yes. Because we didn’t have – well, at that time we had someone who was equally not an expert.
MS DE VERE: I think – no, it was the father’s own solicitor, yes.
HER HONOUR: The father’s own lawyer, yes. Who actually said that you could register mirror orders, but his evidence was not accepted as – and that’s why the word “independent” was specifically referred to.
MS DE VERE: It was. Your Honour, there was a notation:
The father intends obtaining expert evidence from an appropriately qualified independent expert with respect to the registration of foreign orders and other aspects.
That was also in your Honour’s orders of 1 June 2015.
HER HONOUR: Yes. Thank you.
This interchange was immediately followed by an application in these terms by the father’s legal representative:
MR TOCKAR: Your Honour, at this stage, having just heard what your Honour has said, and specifically your Honour said that those were the totality of the orders made which was a consequence upon another witness that had been brought who equally was not an expert (emphasis added) – in those circumstances my instructions from my client are to seek that your Honour recuse herself from this case on the basis of apprehended bias. That you have already reached the conclusion, quite clearly, that this witness is not an expert witness for the purposes of this case without even having heard any argument from me and without having heard any evidence ‑ ‑ ‑
I then gave the father’s counsel an opportunity to make submissions in respect of that application. In response, the father’s counsel said nothing more than that his “instructions are that .. the apprehension that you have prejudged this case or prejudged this particular aspect of the case”. The mother’s counsel opposed the application that I recuse myself but did not wish to be heard as to the matter and the ICL also did not wish to be heard.
At that stage I took a short adjournment and upon resuming indicated that I declined to recuse myself in the matter and would publish reasons for that decision that afternoon. I then moved onto hearing the balance of the father’s submissions in relation to the challenge made by the ICL and mother to the expertise of Mr R.
An examination of the transcript reveals that I did not deliver reasons for dismissing the father’s application that I recuse myself either that afternoon or subsequently in the course of the hearing. It was an oversight on my part and it appears that the issue was overlooked by the parties also and in particular the father, as no further reference was made to the outstanding Reasons throughout the proceedings. In my view, it is appropriate that I record my reasons for dismissing the father’s oral application that I recuse myself in these proceedings in this judgment.
The law
In Ebner v Official Trustee in Bankruptcy[2], the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[2] [2000] HCA 63; 205 CLR 337
In Strahan & Strahan (Disqualification)[3], the Full Court stated (at [5]-[6]):
In applying this twostep process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[3] [2009] FamCAFC 204
Discussion
Although the father did not augment his application by submissions, I understand he contends that the words “at that time we had someone who was equally not an expert” might give rise to an apprehension in the mind of a fair minded lay observer that I may decide the case other than on its legal and factual merits.
In my view, while these words may not have been the most felicitous in the circumstances they do not indicate that I had prejudged the parenting application under consideration or prejudged the issue of the content of Kenyan law which is central to the father’s application.
In making a determination on the application, it is important first to consider the context of the parenting application and context of the recusal application.
These proceedings are being conducted under Div 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) where the Court is required to “actively direct, control and manage the conduct of the proceedings” and is to “give directions about the matters in relation to which an expert is to provide evidence and how an expert is to provide the expert’s evidence”.
In these circumstances a fair minded lay observer would take into account that more active direction and expression of views on even controversial matters may be expected in the context of these proceedings. This is particularly so when at all times it has been the father’s case that there are provisions under Kenyan law for parenting orders to be made and enforced which mirror orders in this court and it has been at all times his contention that these matters relating to Kenyan law would be proved by a qualified expert witness.
The first final hearing was adjourned specifically as the father had not obtained evidence as to matters relating to Kenyan law from an appropriately qualified expert and directions were made for him to file evidence in this regard for the April 2016 hearing. In these circumstances a fair-minded lay observer could have expected that there would be particular scrutiny in relation to the issue of the qualifications of the expert in the hearing.
It is next important to consider that at the stage at which the comment was made which is said to give rise to the apprehension of bias, I had heard submissions from each of the other counsel concerning Mr R’s expertise, and his expertise was also apparent from the face of his curriculum vitae. The father’s legal representative had also commenced his submissions in relation to Mr R’s expertise, referring to Mr R as “an expert witness appointed to assist the court”. It was in the course of drawing counsel’s attention to the actual orders of the Court and the issue of the witness’s expertise that I made the remark objected to. The interchange was also the context of a discussion with the ICL on this issue.
In my view, the fair minded lay observer would conclude that I was simply narrowing and defining the issue at hand, being the expertise of both the witness called at the June 2015 hearing and at the April 2016 hearing. In circumstances where the curriculum vitae of Mr R effectively spoke for itself and disclosed no expertise with respect to family law or parenting, in my view a fair minded lay observer would conclude that I was simply identifying a self-evident matter, being Mr R’s apparent lack of relevant expertise.
Even if the fair minded lay observer concluded from the remark that I may be inclined to accept the submission of the mother and ICL as to this issue, that is not the end of the matter. The court must then consider whether there is a nexus between an inclination to accept the submission of a party on a particular issue and a “feared deviation from the course of deciding the case on its merits”.[4]
[4] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; 205
It was not identified by counsel for the father how the making of this remark would result in an apprehension in the mind of a fair minded lay observer that I may determine the parenting application on any basis other than its merits. In my view, at its very highest, a fair minded lay observer may have considered that I could determine this particular issue in favour of the mother and ICL. This is far from an apprehension that I would not bring an unbiased mind to the matters to be determined in the parenting application, which would entail a consideration of all of the matters relating to the best interests of the children including the question of an unacceptable risk that the children may be retained in Kenya. Although it could have been anticipated that Mr R’s evidence about parenting applications in Kenya would be very significant, this is not the only issue to be considered in determining the application. In these circumstances in my view, the apprehension does not arise as contended.
On this basis I dismissed the application that I recuse myself from the further hearing of the matter.
Matters in dispute
Kenyan law with respect to parenting orders, enforcement of foreign judgements and institution of criminal proceedings
As referred to earlier, it is the father’s case that it is possible under Kenyan law for orders to be made “that will properly reflect the orders” of this court. He describes such orders in the proceedings as “mirror orders”. The father also contends that there is no unacceptable risk that such mirror orders will not be enforced in Kenya and on this basis, there is no unacceptable risk that the children would be not returned to Australia if orders were made as he proposes.
It is the mother’s case that it is not possible under Kenyan law for “mirror orders” to be made, as contended for by the father. The mother also contends that there is an unacceptable risk that the children will not be returned to Australia as the Kenyan High Court, which still retains jurisdiction with respect to parenting, may make different orders to those made in these proceedings. She is equally concerned that even if orders in similar terms are made in Kenya, they may not be enforced. She also says she has well founded fears in relation to her personal security if she returns to Kenya to participate in any parenting proceedings that the father may initiate or continue or if she attempts to enforce orders made in Kenya. One of her particular fears is that she may be arrested and prosecuted for criminal offences in relation to her departure from Kenya with the children.
A determination of these matters involves findings relating to Kenyan law with respect to enforcement of foreign judgements, parenting orders and the institution of criminal proceedings.
The content of foreign law is a question of fact not law. Sections 174 and 175 of the Evidence Act 1995 (Cth) (“Evidence Act”) set out how foreign law, including statutes of foreign countries and law reports of foreign countries is to be proved.
The mother adduces no evidence in relation to Kenyan law.
The father relies upon the evidence of Mr R, a Kenyan lawyer and one time Director of Public Prosecutions and Acting Attorney General of Kenya, who provides a report in relation to Kenyan law concerning parenting orders and the registration and enforcement of foreign orders. Although this witness is a former Director of Public Prosecutions he gives no evidence in relation to the institution of criminal proceedings in Kenya.
Mr R’s evidence has three parts. He first refers to and annexes the Constitution of Kenya, the Children Act 2001 (Kenya) (“Children Act”), the Civil Procedure Act 1924 (Kenya) and the Foreign Judgements (Reciprocal Enforcement) Act 1984 (Kenya) (“Foreign Judgements (Reciprocal Enforcement) Act”), together with the UN Convention on the Rights of the Child. Each of the Acts appears to be a photocopy or printed copy and bears the words “Published by the National Council for Law Reporting with the Authority of the Attorney General”. Each Act therefore purports to have been printed by authority of the government and thus complies with 174 of the Evidence Act.
The witness also annexes a number of printed copies of decisions which purport to have been made by the High Court of Kenya, the Supreme Court of Kenya or the Court of Appeal which he describes collectively as “case law”. Although these printed reports are not in the form specified in s 175 of the Evidence Act no objection is taken as to their form or authenticity.
The witness then provides a commentary on the “child law regime” in Kenya in very broad terms. Although he says that the Children Act is the relevant Act in relation to all matters relating to children, he does not explain how the Children Act relates to parenting applications. He then deals with the issue of “mirror orders” in parenting matters and the enforcement of orders issued by a foreign court. By reference to the case law referred to above, the witness then expresses an opinion concerning the common law of Kenya in relation to the enforcement of foreign orders relating to children.
Finally, under the heading of “Way Forward” the witness sets out some options which, in his opinion the parties can take to resolve the parenting dispute. He says that the father could seek from the High Court in Kenya similar orders to those made by this Court and record the mother’s consent, provided that she agrees. Alternatively he suggests that the mother could make an application under s 82 of the Children Act seeking an order for custody of the children. This part of his evidence essentially amounts to no more than legal advice to the parties as to how they should conduct their parenting dispute.
It is the position of the mother and the ICL that the witness does not have the appropriate expertise to express an opinion in relation to parenting orders and no weight should be attached to that opinion for this and other reasons. Although the ICL and mother originally objected to the entirety of Mr R’s evidence, ultimately neither maintained an objection in relation to the witness’s expertise with respect to the enforcement of foreign orders.
Generally foreign law must be proved by an expert witness, and the provisions relating to opinion evidence in Part 3.3 of the Evidence Act apply to such expert opinion. However, as these are child-related proceedings being conducted under Div. 12A of Part VII of the Family Law Act, certain provisions of the Evidence Act including Part 3.3 do not apply (s 69ZT(1)). The Court may give the evidence such weight as it thinks fit as a consequence of these provisions not applying.
Pursuant to s 69ZT(3), despite s 69ZT(1) the Court may decide to apply the relevant part of the Evidence Act which would otherwise be excluded if satisfied of certain matters. The mother and the ICL sought that the Court apply s 69ZT(3) and then exclude the entirety of Mr R’s evidence on the basis that he is not an expert qualified to express an opinion as defined by the Evidence Act.
For the reasons given in the course of the hearing,[5] I declined to apply the provisions of the Evidence Act relating to opinion evidence. It was in my view, more appropriate to admit the evidence and attach the appropriate weight to it, having regard to the witness’s expertise, or lack of expertise as the case may be.
[5] see transcript 18.4.16 page 40
Ultimately, in my view, little turns upon the issue of Mr R’s expertise so far as some issues relating to Kenyan law are concerned as there is no dispute about the following matters:
·Kenya has not ratified the Hague convention[6] or the Child Protection Convention[7];
·Parenting orders made in the Family Court of Australia have no force in Kenya;
·There are no specific legislative provisions for a court in Kenya to make “mirror orders”, that is orders which “mirror” those made in this Court;
·Kenyan courts will not make orders with respect to parenting simply based on similar orders issued by a foreign court without giving consideration to the relevant provisions under Kenyan law;
·Section 145 of the Children Act, which provides for reciprocal enforcement of some orders with respect to children made in foreign countries, does not apply, as it is dependent upon Kenya and the foreign country having entered into an agreement. No such agreement has been entered into between Kenya and Australia; and
·The Foreign Judgements (Reciprocal Enforcement) Act, which provides for the enforcement in Kenya of certain judgements made in countries outside Kenya, does not apply, as s 3(3)(e) of that Act excludes orders in connection with the custody or guardianship of children.
[6] Convention on the Civil Aspects Of International Child Abduction (1980)
[7] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement And Co-Operation In Respect Of Parental Responsibility And Measures For The Protection Of Children (1996)
The father’s case is that he has the intention of complying with any orders that this court makes but also intends to apply for “mirror orders” in Kenya which would then be binding upon him and enforceable in Kenya. As an additional safeguard, he proposes that the exercise of his time with the children under final orders made in this court be contingent upon obtaining “mirror orders” in Kenya. Accordingly, the availability of “mirror orders” in Kenya is central to his proposal.
Mr R gives very limited evidence about the procedure for obtaining parenting orders in Kenya. He says only the following with respect to parenting applications:
Kenya has a child law regime which includes legislation and courts that are designated as children’s courts dedicated to handling all matters touching on children. In 2001, Kenya enacted the Children Act whose (sic) purpose is to (footnote deleted);
a.Make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection;
b.Make provisions for the administration of children’s institutions;
c.Give effect to the principals of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes.
All matters touching on children are handled in accordance with the provisions of Article 53(2) of the Constitution of Kenya which provides that a child’s best interests are of paramount importance in every matter concerning the child. The Children Act also has a similar provision at s4(3) which provides that in applying the provisions of the Act, the interest of the child shall be treated as the first and paramount consideration. This is the basis upon which all courts in Kenya handle children’s matters
…..1. MIRROR ORDERS IN KENYA
There are no specific provisions of law in the Children Act that deal with mirror orders. Courts in Kenya handle children’s cases based on evidence presented before them having the interest of the child as the paramount consideration. This means that the court will not issue orders simply based on similar orders issued by a foreign court without consideration of the facts and bests interests of the child
…..
In deciding matters touching on children, Kenyan Courts are bound by the provisions of the Children Act. Once a child is within the jurisdiction of the Kenyan Children’s Court, the Children Act applies to that child and the Court considers the best interests of the child as the paramount consideration.
Under cross-examination the witness remained firm that if the father were to reinstitute or proceed with his (currently stayed) parenting application in Kenya regardless of whether the mother gave consent or not, it could not be assumed that mirror orders would be made. He maintained that the Kenyan Court would apply the Kenyan Constitution, the UN Convention on the Rights of the Child and the Children Act and make its own determination as to whether the proposal was in the best interests of the children. However, he expressed the opinion that he “very much doubts” that the court in Kenya would not have similar views to an Australian court as to the best interests of the child.
Although Mr R annexes a number of cases dealing with the issue of enforceability, he does not refer to a body of case law that sets out the meaning given to the expression “the best interests of the child” by Kenyan courts. He said that there was “no leading case as such”.
Mr R was unable to express an opinion under cross-examination on any other matter related to Kenyan law concerning parenting and stated on at least two occasions that he did not put himself forth as an expert in law on parenting matters.
Ultimately, Mr R agreed that the Children Act is actually a child protection or welfare Act and it is not the applicable statute with respect to private civil parenting disputes of the type under consideration. He said that there was no specific Act that governed these types of parenting disputes and that the applicable law is “the general law that governs all types of issues”. He also said:
Kenyan law is based very much on the common law of England. They follow English decisions. They follow Australian decisions with great respect. Our laws are no different from the laws of Australia or the laws of England in that matter.
Although Mr R ultimately said that the Children Act did not apply to parenting orders following parental separation, this appears to be inconsistent with the balance of his evidence. Although the Act does appear to govern a wide range of matters with respect to children including aspects of children’s criminal law, children in need of care and protection and adoption, it does also relate to applications under Part VII which deals with “custody and maintenance”.
Despite the concessions made under cross-examination, the father still relies upon Mr R as an expert with respect to Kenyan law including the law relating to children and parenting applications. The father maintains that the Children Act governs parenting applications in Kenya.
Mr R’s expertise or specialised knowledge is set out in a Curriculum Vitae attached to his report. This is a most unusual document and I agree with the submission made on behalf of the mother that in parts it appears to have been prepared by another person on his behalf and reads as a reference or testimonial concerning the witness’ activities and experience generally. Although it appears to set out the entirety of his professional career beginning with him being called to the Bar in 1959, there is no evidence that he has ever received training, studied or had any experience in family law. It is not clear that he is currently practising as a lawyer or when he last did so, or that he ever practised in family law or parenting matters. This is consistent with his evidence that he has not put himself forward as an expert in family law or law concerning parenting matters.
The difficulties in ascertaining the law with respect to parenting in Kenya does not end with Mr R’s apparent lack of expertise. Even if some weight were attached to his report, he does not explain or express an opinion about the operation of any statute with respect to parenting orders or the way in which Kenyan courts have approached the issue except to say that they are governed by “the best interests of the child”.
Of particular significance, given Mr R’s suggestion that the parties could seek mirror orders by consent, is the absence of evidence that consent orders may be sought under Kenyan law. Moreover, even if Mr R’s opinion that consent orders are possible were given some weight, he remained adamant that consent orders would not be made unless the orders were in the view of the Kenyan court, in the best interests of the children in question. There is however, according to Mr R, no body of law or even a leading case decided by a Kenyan court as to the issue of “the best interests of the child”.
The father contends that as he proposes that the children spending time with him in Kenya is contingent upon “mirror orders” being made in a Kenyan court, if such orders are made in Kenya, all matters of risk with respect to the children’s non-return are addressed. However, the risk that the children may not be returned to Australia also depends upon the capacity of a parent to apply to vary parenting orders once they have been made. There is no evidence in
Mr R’s report or otherwise, nor was he cross-examined in relation to this issue.
Due to the lack of relevant expertise of Mr R concerning matters relating to parenting orders or family law, I attach very little weight to the opinion expressed in his report or oral evidence concerning this issue. I am unable to make any findings concerning the law of Kenya with respect to parenting orders except that it appears that the Children Act may apply to parenting applications and that the “best interests of the child” is the paramount consideration. However, given the complete absence of evidence about the operation of this Act, the way in which Kenyan courts approach parenting applications and the meaning of the “best interests of the child” under Kenyan law, I cannot be satisfied about the likelihood that a relevant court in Kenya will make orders in similar terms to orders made in this court, if an application for such orders is made.
I am also unable to be satisfied that even if such “mirror orders” were made in Kenya, those orders would continue to govern the parenting arrangements for these children until they reach the age of 18. There is no evidence in relation to the law governing applications to amend or vary orders.
I am satisfied that there are no specific legislative provisions for a court in Kenya to make orders which mirror orders made in this court and there are no provisions for reciprocal enforcement in Kenya of orders made in this court. Mr R’s expertise was not challenged as to these matters and the sections he cites in the Foreign Judgments (Reciprocal Enforcement) Act and the Children Act concerning enforcement of foreign orders appear clear and unambiguous.
In relation to the enforcement of foreign orders, Mr R also annexes a number of cases which indicate the manner in which various courts in Kenya approach this matter. None of the cases on enforcement of foreign orders concern s 145 of the Children Act (which deals with international reciprocity of orders when Kenya has entered into an agreement with a foreign country) and no such agreement has been entered into with Australia. The cases all deal with the Foreign Judgments (Reciprocal Enforcement) Act in the context of foreign parenting orders or matters of international child abduction.
The Foreign Judgments (Reciprocal Enforcement) Act provides for the enforcement in Kenya of judgments given in countries outside Kenya. Section 3 of the Act which deals with judgments to which the Act applies, provides the following:
(3) this Act does not apply to a judgment or order -
(e) in proceedings in connection with the custody or guardianship of children.
Consistent with this apparently clear section of the Foreign Judgments (Reciprocal Enforcement) Act, in all but one of the cases referred to by the witness, Kenyan courts have declined to apply this Act to orders with respect to children made by courts in foreign jurisdictions. In one of the cases there is a decision to the contrary and an order made in a court in the United Kingdom with respect to a child was registered in Kenya under the provisions of this Act. The witness however, casts doubt on the correctness of this decision when he says “it appears therefore that the judge…must have realised, a year later, that the law in Kenya does not allow adoption of custody orders issued by a foreign court”. The witness concludes that it is “clear” that orders with respect to “custody” made by an Australia court will not be enforceable in Kenya.
The only evidence that Mr R gives in relation to enforcement of orders of Kenyan courts is contained in that part of his report which deals with the “way forward”. As previously indicated, this part of his report is in the nature of an opinion about the way in which the parties could approach their parenting dispute rather than an opinion concerning the law. Under the heading of Option 1, where he proposes that the father proceed with his (currently stayed) parenting application before the High Court in Kenya and seek similar orders to those made in this court with the consent of the mother, the witness opines:
Once the court issues orders in a matter in Kenya, the orders are binding and enforceable. A party who disobeys a court order maybe gaoled for contempt of court. The court can also ensure the enforcement of the order in accordance with the provisions of the law on execution of court orders.
However, the witness does not explain or refer to any particular Act as containing “the provisions of law on the execution of court orders”. In the course of submissions on this issue, it was said on behalf of the father that it would be outrageous for this court not to accept that the courts of another country have a system whereby its own orders are obeyed and enforced. There is however, no evidence in relation to enforcement and I cannot be satisfied that any enforcement provisions would somehow apply automatically in the event that the father did not comply with the orders of court that required him to return the children to Australia. In the absence of any evidence about enforcement other than contempt, I cannot make any findings concerning the law in Kenya in relation to enforcement of orders made in that country.
In summary, for the forgoing reasons, I can make very few findings with respect to the content of Kenyan law relating to the making and enforcement of parenting orders. Accordingly, I am of the view that if orders are made as sought by the father that the children spend time with him, even with “mirror orders” in place in Kenya, there is a real risk that the orders may be varied or may not be enforced with the result that the children may not be returned to their mother in Australia.
Although the issue of potential criminal proceedings against the mother in Kenya arose in the proceedings, there is no evidence concerning Kenya criminal law and I cannot make findings with respect to that matter.
Credit findings
As can be gleaned from the Background, there were initially a number of significant factual matters in dispute in the proceedings including whether the parties had formed an intention to reside permanently in Australia, whether the father was the perpetrator of family violence against the mother in the course of their marriage in Kenya, the circumstances of the mother’s departure with the children from Kenya in November 2014 and the parties’ agreement concerning that travel. Ultimately factual findings in relation to all of these matters did not assume as much significance as anticipated, as the parties reached agreement and final orders were made about matters concerning parental responsibility and where the children were to live.
These matters do require consideration however, for another important reason relating to each parent’s respective credit. Credit remains a very significant issue in this dispute. It is central to the father’s proposal that the children spend time with him in Kenya, that he is to be trusted when he says that he will abide by the orders made in this court or by a court in Kenya that require him to return the children to Australia. This is especially so in circumstances where the orders of this court cannot be enforced in Kenya and there is a risk that the Kenyan Court will not make or enforce, without variation, mirror orders as discussed earlier. It is also central to the mother’s position that she has well founded fears about returning to Kenya. As a result, she contends that if the children were to be retained by the father in Kenya, she could not return to Kenya herself to commence proceedings for the children’s return.
For these reasons the parents’ evidence as to these matters requires careful consideration so that findings as to their credit may be made.
Permanent residence in Australia
Parents’ application for permanent residence
The mother does not give any account in her affidavit of the application for permanent residence in Australia made by herself and the father in 2002 but says that she and the father discussed migrating to Australia from around 2004 after the parties moved from Country G back to Kenya. She says in her affidavit that “pursuant to the agreement reached between us to migrate to Australia, both [the father] and myself obtained Permanent Residence Visas on 28 August 2004”. She provides no further details concerning the visas.
According to the father, he and the mother applied for permanent residency in Australia in 2002 prior to having any children. He says that at that time they saw Australia “to be our new home”. The father says in his affidavit that their plans “to stay living in Australia” changed, though he does not say when this change of plans occurred and how that change related to the application for permanent residence which was made in 2002 and granted in August 2004.
The father also does not address in his affidavit the issue of the parties’ intention in relation to living in Australia between 2002 and 2006, though he agreed under cross-examination that he and the mother discussed the “possibility” of living in Australia and it was “one reason” why they applied for permanent residence.
The child B’s application
The father gives the following account in his affidavit with respect to the application that was made for B’s permanent residence in Australia.
When [B] was born in 2006, [the mother] and I agreed that it was important to apply for Australia residency for him based on our sponsorship so that if we ever chose to visit or move to Australia in the future, he could travel with us with ease and we would not need to worry about applying for travel visas. We did not however, discuss making Australia our permanent home.
The mother gives no account of the circumstances in which the parents sought permanent residence for the child.
Although the father was somewhat vague about documents he had filed subsequently in connection with the residence application, he agreed under cross-examination that he had completed a Statutory Declaration in January 2008 in relation to the application by the mother for the child B “to migrate to Australia”. The statutory declaration includes the following:
THAT I am married to [MS MANKUS] who has applied for sponsorship for our son [B] to migrate to Australia.
THAT as the father to our son [B] I have given my permission for him to migrate to Australia with my wife [MS MANKUS].
The father agreed that these statements were correct and that the Statutory Declaration was signed “for the renewal of [B’s] residence”. He also said he “understood that [the words he used] to be the language of permanent residence”.
Events in 2009
The parents incorporated a company “H Pty Ltd” in NSW in 2009. The mother says that she and the father “planned to use this company as a means for [the father] to work in Australia”. She also claims that she and the father discussed the use of the company as a means to open a business when she returned to work.
The mother says in her affidavit that “in early 2009, we made the decision that we wanted them [the twins] to be born in Australia. We discussed to the effect (sic) that this would facilitate our migrating to Australia”. According to the mother, she and the father made a decision that they and the eldest child would need to come to Australia by August 2009. The plan was that the father would return to Kenya after the birth of the twins and the mother would remain in Australia with a relative who would be employed to provide help in caring for the children. She says that the plan was for her to remain with the children in Australia for a year.
The mother says to facilitate the plan the parties obtained a visa for the father’s cousin to remain in Australia and they located an appropriate furnished property in Suburb J and took out a lease for 12 months. There is no copy of the lease before the court but a tenant ledger indicates that the mother who was listed as the tenant paid rent from 23 September 2009 to 30 December 2009.
The father says the following in relation to the family’s presence in Australia in 2009 when the mother was pregnant with the twins and the children’s birth in Australia:
During [the mother’s] pregnancy with the twins it became apparent that she required specialised treatment. We decided that we would travel to Australia for a medical check-up at [J] Hospital, and at the same time full fill our residency requirements.
After arriving in Australia it became apparent that [the mother] would not be able to fly back to Kenya and she required specialised treatment and surgery for the twins. I had to travel back to Kenya for my government job but I travelled back to Australia for the birth of the twins and I was present in the delivery theatre when they were born. The plan was that we would return to Kenya as a family after the birth and once [the mother] and the twins could fly. Both [the mother] and I had permanent jobs in Kenya. There was no intention of remaining living in Australia permanently.
The father persistently denied under cross-examination that the parents had a plan for the mother to come to Australia and to migrate for the purpose of the birth of the twins and maintained that their presence was connected with the difficulties with the mother’s pregnancy. He claimed that he had accompanied the mother to appointments with consultants and when shown records produced on subpoena from the clinic at the hospital indicating that the mother was healthy, the father claimed that the mother was healthy enough by the time the twins were due to be born as a result of the “treatment she went through”. The father was unable to explain the type of “treatment” that the mother received other than claiming she was “put on medication and bed rest”.
The mother says that she registered with the Birth Centre at J Hospital through the Women’s Health Clinic for the birth of the twins which was paid for by Medicare. She says she did not use a specialist. The mother annexes records such as an appointment card and a record of attendances consistent with her assertion that she attended the Women’s Health Clinic between 30 September and November [2009].
The father came to Australia in August 2009 and remained for approximately 10 days and returned for the birth of the twins in November 2009. Around 10 days after the birth of the twins, the mother received advice that her sister had died in the United States approximately three weeks earlier but her body had not been discovered until about 13 November 2009. In these circumstances the family decided to return to Kenya. The mother said that she and the father had discussions that “we would return to Australia to live as per our previous arrangement”.
Renewal of visas in 2012
The mother claims that after the family returned to Kenya, and over an unspecified period of time she and the father regularly discussed returning to Australia to live.
The mother says that she and the father had made the decision that they “would be returning to Australia” in late 2012 and in that context discovered that the child B’s return residence visa (RRV) had expired and needed to be renewed. A letter to the Consul General at the Australian High Commission in Nairobi dated 26 September 2012, signed by the father is as follows:
Ref: Application for Returning Resident Visa for [the child B]
Attached kindly find a RRV application for our son [B]. I also wish to provide a description of [B’s] ties to Australia and reasons for his last departure.
1.Reference Question 25.
a. My wife [Ms Mankus] and I are permanent residents since 2004 and hold valid RR visas (see copies attached). We are both highly skilled professionals and have both previously worked in Australia. [Ms Mankus] is a registered [health professional] in Australia and I hold a doctorate … from [a] University [in Sydney] having lectured there and also worked for ….
b. We own a business incorporated in 2009 and we now wish to return to Australia and grow the company. This will help provide more employment opportunities for young Australians who have a passion for the entertainment and tourism industry.
c. [The child B] has two siblings who share Australia citizenship [C] and [D] (see copies of passports attached).
2.Reference Question 33 and 34
a. In August 2009, [B] and his mother [Ms Mankus] returned to Australia but had to leave abruptly following the tragic death of [the mother’s] sister in October 2009. (See death notice attached).
b. Since [Ms Mankus] had also delivered twins in Sydney in November 2009, it became difficult for them to return to Sydney immediately and as a family we needed to delay the return to Australia.
Kindly advice (sic) on any additional information your office requires. We look forward to returning to Australia.
Yours Sincerely
[Mr Matuli]
The father says in his affidavit in respect of the letter written by him in [September] 2012:
During this period I did write a letter in support of having [B’s] Australian visa renewed. It is difficult to obtain a residency in Australia, and therefore I wanted to do everything I could to renew the visa, in order to keep our options open for the future.
It appears that as a result of this letter the child’s visa was extended.
Two months after this letter was written, in December 2012, the parents separated. It is the mother’s contention that she and the father agreed that notwithstanding the separation, she could relocate to Australia to live with the children. The father says that no such agreement was reached. In his affidavit the father denied that he and the mother ever decided to live in Australia and says that this became “even more untenable” by the time the parties separated in December 2012.
Travel to Australia in November 2014
The mother’s departure from Kenya and arrival in Australia in November 2014, occurred at a time in which the parties were attempting to resolve their Kenyan Family Law proceedings.
As previously noted, the hearing in Kenya with respect to these matters which had been fixed to occur on 9 October 2014 was adjourned to a future date to be advised.
It is common ground that it had been agreed between the parties that the mother and children would travel to Australia on 16 or 17 November 2014. The mother claims this was pursuant to an agreement for herself and the children to migrate to Australia while the father says it was for the purposes of a holiday and the mother and children were expected to return at the beginning of 2015.
It is the mother’s case that the reason the November date was chosen was because she and the children needed “to migrate to Australia before the November deadline [for expiry of the return resident Visas]”. She says that all the preparations for their departure occurred with the full knowledge and consent of the father. As part of these arrangements, the mother says that as B’s visa had again expired the father again wrote to the Consul General at the Australia High Commission in Nairobi seeking an extension so that she and all three children could migrate to Australia before the end of the November deadline.
The mother annexes to her affidavit a copy of the letter that she says the father sent to the Australia High Commission which resulted in B’s visa being renewed. The renewed visa for the child was emailed to her by the father on 3 October 2014. The letter to the Australia High Commission dated June 13 2014 which is unsigned states the following:
Ref: Application for Returning Resident Visa for [the child B]
Attached, kindly find a RRV application for our son [B]. [B] was granted a RRV (Class BB) subclass 155 on 1st October 2012. However, my family was unable to return to Australia as expected due to my election as [a public official].
My wife, [Ms Maunkus] holds a valid RRV and [B] has two younger siblings who are Australia citizens. We humbly apply for [B’s] RRV once again to enable them return to Australia later this year.
In response to
1.Question 25.
a. My wife [Ms Mankus] is a permanent resident since 2004 and holds a valid RR visa (see copy attached).
b. [Ms Mankus] is a registered [health professional] in Australia with current registration.
c. [B] has two siblings who are Australia citizens [C] and [D] (see copies of passports attached).
2.Question 28
a. In August 2009, my family returned to Australia. We subsequently had twins born in early November 2009 but due to the tragic demise of [the mother’s] sister, we decided that she and the children return to Kenya in late November of 2009.
b. They had expected to return to Australia in early 2013 but circumstances changed once again with my election as [a public official].
I have now settled into my office and humbly request your assistance.
Kindly advice on any additional information your office requires.
Yours Sincerely
[Mr Matulis]
The mother also annexes an email from the father dated October 3 2014 to which he attaches “the attached two page letter with [the child B’s] visa.”
Under cross-examination the father agreed that by June 2014 B’s RRV had expired and he applied for the RRV to be renewed. When shown the letter of 13 June 2014 to the Australia High Commission, he agreed that he did not indicate in the letter that the visa was being renewed for a holiday. The father then said that two days prior to cross-examination he started having doubts about this letter. He said that although it looked like a letter that he wrote he did not think he wrote it and he doubted its authenticity. He then agreed with the suggestion that it was a forgery. He said that the person who forged it “had to be the mother” and that she forged it around 13 June 2014 [when it was written]. The father agreed that he had not raised this in his affidavit or when he was cross-examined upon the document in March 2015 or when he had previously read it in other affidavits.
The father agreed under cross-examination that he sent B’s visa to the mother attached to an email. He also agreed that he had been sent this visa by the Australian Consulate pursuant to making an application for renewal. He remembered signing the forms [for renewal] which were sent to the Australian Consulate. He claimed that he sent the child’s visa to the mother to facilitate the holiday.
According to the mother, after the child’s visa was granted, the father gave her about $US25,000 to pay for the costs of transport to Australia and living expenses. She said that she booked business class tickets for herself and the children at the father’s insistence for a departure on 17 November 2014.
The father says in his affidavit that he and the mother agreed that she and the children should travel on holiday to Australia. He says that the mother’s [Australian] “residency” was due to expire on 20 November 2016 and she needed to re-enter the country to keep it valid. The child also needed to re-enter Australia, so he agreed to the proposed holiday in Australia. He says “it made sense for us to keep our residency in Australia valid, as it is very difficult to obtain residency”. According to the father the agreement was that the mother would travel to Australia with the children on 17 November 2014 and return on 1 January 2015.
The father says that he gave the mother $12,000 to buy the tickets for this journey and a further $13,250 later at the mother’s request. The father says it had been agreed that he would join the mother and the children in Australia during his work break in December 2014 and would return home ahead of them.
Under cross-examination the father agreed that his own residence status was also due to expire on 20 November 2014. The father denied having made a decision to allow his return residence visa to lapse and said he intended to reapply for a renewal. He denied that he was not interested in renewing his own residency in Australia and that he had agreed to allow the mother and children to migrate to Australia and that he would stay in Kenya.
Renewal of father’s visa in December 2014
As noted above, the father’s return residence visa for Australia expired on 20 November 2014, four days after the family were due to depart and 15 days after their actual departure date from Kenya.
Under cross-examination the father was asked about the renewal of this visa, which was granted on 2 December 2014. The father agreed that he had completed a document entitled “Application for a Resident Return Visa”. In that document the father wrote:
APPLICATION FOR A RESIDENT RETURN VISA
COMPELLING REASONS FOR MY ABSENCE AND MY TIES TO AUSTRALIA
I was granted my permanent residency after I completed my doctorate studies in Australia in 2002. However, in the last five years, I have not been able to reside in Australia because of my employment by the Government of Kenya.
1. As [a public officer] to [the] government from 2004 to 2013.
2. As [a public official] from March 2013 to date.
My public service duties in Kenya, which I undertake diligently employing the knowledge and skills I obtained while studying and living in Australia have kept me engaged in Kenya for longer than I anticipated.
FAMILY TIES
I have close family ties in Australia, my spouse, [Ms Mankus] and my first born son [B] hold Resident Return Visas.
My other children (twins) [C] and [D] were born in Australia and are Australian citizens.
My wife (wife and 3 children) are currently in Australia.
Please see the attached documents.
Thank you for your consideration
[Mr Matulis]
December 1, 2014.
When asked about the inconsistency between his desire to have the mother and children return to Kenya at the same time he made the statements about his close family ties in Australia, the father said “I didn’t want to lose residency”. He claimed that he did not tell the Australia government agency that his family were in Australia in circumstances where he wanted them back in Kenya, as he did not see this as important. He claimed that it was still in his mind that he wanted to reside in Australia and hoped eventually in the long run to return to Australia.
The father was asked whether he would be willing to reside in Australia if not re-elected as a public official in Kenya. The father said he would not as “circumstances have changed. I have a partner. I have a new life in Kenya”.
The father was cross-examined extensively by the ICL about statements made over the years in connection with his residency in Australia. He agreed that he had set up a company in Australia for the purposes of growing it and providing employment and that, but for his role as a public official, he would have migrated to Australia with his family. The father confirmed that over the years he had renewed his residency and would only do so if he intended to reside in Australia in the future. He said that his intentions in relation to Australia as his future home had only changed in the last two months. At the time of the final hearing he said he now intended to run for higher public office so remaining as a resident in Australia would be “untenable”.
Despite extensive cross-examination the father would not concede that there was an inconsistency between various parts of his affidavit where he stated that he and the mother had no intention to remain living in Australia and his various statements to Australian immigration agencies over the years that he had an intention to reside in Australia.
Circumstances of the mother’s departure from Kenya in November 2014
As previously noted, the mother’s departure with the children from Kenya in November 2014 occurred at a time in which the parties were attempting to resolve their Kenyan family law proceedings.
There had been one mediation and a further mediation was scheduled to occur on 5 November 2014. Although the mother had initially cancelled it, the mediation proceeded on that date and was attended by both of the parties. The father says that in the course of the mediation the mother confirmed that she and the children would travel on holidays to Australia on 17 November and return to Kenya on 1 January 2015 and he confirmed that he would travel to Australia to see them in mid December 2014. He says they also reached agreement that he would spend time with the children before they left for Australia on 8 November and in the week leading to their departure on 17 November.
The mother says that the father threatened her during the mediation that if she did not agree with his proposal he would block the move to Australia which would result in her permanent resident visa being permanently cancelled. She says that in this context she telephoned an aunt and told her she would be leaving immediately and the aunt took her and the children to the airport. She says that she left with the children on that day, 5 November 2014 and left her aunt to organise the packing and removal of the contents of her City K home to her farm.
The father agreed under cross-examination that he told the mother in the mediation that unless she agreed to his orders, he would not allow her to take the children on holiday to Australia and knew that as a result B’s residency would lapse, but said “he knew it could be renewed”. He said that it occurred to him that the mother might remove the children and not allow him to see them again but denied that he had threatened her during the mediation. When asked how he proposed stopping the mother and children from leaving the country when she held the children’s passports, tickets and her own passport, the father said he was going to urgently make application to the court on the basis that a parent in Kenya can withdraw consent for a minor child to travel out of the country for any reason.
In his affidavit the father does not make any reference to the events following the mediation on 5 November or the morning of 6 November 2014. He says that on the evening of 6 November he telephoned the family home several times to speak to the children but there was no answer. He received a phone call from the family’s driver that evening who told him he had spent the entire day at the family home but the car was not there and the mother was not answering the door. The father called the mother’s mobile phone but there was no answer. He then received a telephone call from a person employed at the home who said “I just wanted to check that you were aware that [the mother] and the children left the house yesterday with packed suitcases. It looked to me like they weren’t coming back”.
The father says in his affidavit that he flew back to City K the following morning [7 November] and drove to the family home. He telephoned the mother’s brother and asked him to meet at the house at 8 am. Upon arrival the father says that he found removalists loading furniture from the home into a large lorry. Employees at the household informed the father that “X”, a relative of the mother, had made the arrangements for the removalists. The father telephoned X who told him that the mother told her to move their household items but she did not know where the items were to be taken or the whereabouts of the mother. The father says he then accompanied X and the removalists to the gate and instructed security not to allow anyone apart from himself, the mother, children and their “house help” to access the compound. At around this time he says that the mother’s brother arrived and told him that he had received an email from the mother to the effect that she was in transit to Dubai on her way to Australia with the children and they were not planning to come back. The father says that he was devastated and in shock.
For the reasons previously given, and in particular my findings concerning the father’s credit, I have real concerns about the father’s trustworthiness.
I place little weight on the father’s agreement to deposit $30,000 as security to mitigate the risk the children will not be returned. $30,000 does not appear to be a significant sum for the father who appears to have access to significant funds for a range of purposes. According to his own account, the father gave the mother $25,250 to buy business class tickets for the family’s travel in November 2014 and he is on his own evidence a very successful businessman. The father is also unclear about how he proposes the mother would utilise the $30,000 but seems to suggest, consistent with the tenor of his other evidence that the mother would use it to return to Kenya and institute legal proceedings there for the return of the children. For the reasons previously given, I am satisfied that the mother will not return to Kenya.
Particular weight is attached by the father to his contention that the court should not be overly concerned about the availability or otherwise of “mirror orders” as the obtaining of such orders would be a condition precedent to him spending time with the children in Kenya under his proposal. However, the father has demonstrated in the conduct of his Kenyan proceedings that the making of orders is not the end of the matter. In the Kenyan proceedings the parties had reached agreement and orders were made about a number of matters including the transfer of property from the father to the mother. However, after the agreement as to parenting between the parties broke down and the mother came to Australia with the children, the father successfully applied to the High Court to reverse the property orders. As previously discussed, I cannot make any findings about the capacity of a party to seek reversal or variation of parenting orders in Kenya.
Further, the absence of evidence in relation to the enforceability of Kenyan orders is a significant issue in determining the magnitude of the risk. As previously discussed, there is no evidence concerning enforceability and I am unable to be satisfied that the orders would be enforced as the father contends.
In circumstances where there is no evidence concerning the “reversal” or variation of parenting orders, the way in which the court in Kenya approaches the issue of “the best interests of the child”, or in relation to enforcement, little weight can be attached to the father’s contention that the “mirror orders” in Kenya will mitigate the magnitude of risk in this matter.
It is submitted on behalf of the ICL that in assessing the risk that the children may not be returned to Australia, the court must also consider other aspects of the evidence and not only focus on the making of “mirror orders” in Kenya. The ICL submits that other relevant factors are:-
·The mother has no ability to enforce the orders in Kenya;
·The father has always had a heartfelt desire to raise his children in Kenya; and
·Given the father’s public office and aspirations he has no intention of living anywhere other than Kenya in the future.
For the reasons previously given, I am satisfied that the mother has well founded fears in relation to returning to Kenya and I accept that she will not do so. I am not satisfied that there are any means by which she may have the orders enforced in Kenya or obtain orders for the return of the children to Australia.
Having regard to the foregoing findings and considering both the likelihood that the children will not be returned to Australia and the impact that such an event would have upon their well-being, I am satisfied that there is an unacceptable risk of harm to the children on this basis. I find that there is an unacceptable risk that the children will be psychologically harmed by permanent separation from their mother in the event that the orders are made as sought by the father. This is in my view the most weighty consideration in these proceedings.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The child B was nine years of age when interviewed first by a family consultant and then by Dr V. The twins were five years of age when they expressed their views. The children all expressed views to the family consultant and Dr V that they missed aspects of living in Kenya including contact with their father and other people of significance to them.
I accept Dr V’s opinion that the children’s ages are such that their views should be considered, but their views should be given limited weight where the most significant issue in the proceedings relates to the risk that the children may not be returned to their mother’s care under the father’s proposal which would cause great psychological harm to them.
Nature of the children’s relationship with each parent and other significant persons
In making her assessment of the nature of the children’s relationships
Dr V attached particular weight to the children’s presentation. She described B as appearing to have “a close relationship with both parents even though his mother has been his primary source of nurturance”. She formed the opinion that B appears to be burdened by his parent’s separation and he is grieving the losses of his life in Kenya and relationships with both extended families. She says “it is most poignant that he compares the loss of regular contact with his father to a death and that he yearns to have a father like other children in his peer group”.
Dr V assesses both D and C as having a primary attachment to their mother though both have in her view a strong relationship with their father who is a person of significance to each of them.
Dr V also describes the children as a close knit sibling group who have a loving and to some extent dependent relationship on each other.
Dr V also notes that none of the children’s accounts of their father is congruent with the mother’s description that the father is insignificant in their lives. She opines that it is imperative that the children maintain regular contact either electronically or in person with their father as a failure to do so may confirm to them that their mother’s view is correct.
Finally Dr V says in relation to the children’s relationships that they have been left bereft of regular contact with their extended family and community which is quite a loss to them.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
The parents were each significantly and conscientiously involved with the children prior to separation. Although the father was more peripheral as a result of his career, he still played an important role in decision making. The parents have agreed to continue to exercise equal shared parental responsibility and final orders have been made to this effect.
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs; and attitude to the children and responsibilities of parenthood demonstrated by each parent
Dr V raises some significant concerns about the parents’ poor communication, limited collaborative decision making and the mother’s lack of insight into the impact upon the children of the way in which she removed them from Kenya, which Dr V describes as “traumatising”. The expert also notes the way in which both parents have caused confusion and potential harm to the children by exposing them to conflict.
The mother also described to Dr V that the father had little involvement in the children’s lives and appeared to be very critical of his parenting capacity.
However, at the final hearing and through the orders each party agreed to, neither parent raised the parenting capacity of the other as a matter of significance in this parenting application.
I have no doubt that each of the parents loves their children very much, and wants the best for them.
Any family violence involving the child or a member of the child’s family
For the reasons given, I do not make any finding concerning the mother’s allegations that the father has perpetrated family violence in the past. As the parties have already reached agreement concerning parental responsibility and there is common ground that the children are to spend substantial time including overnight time with the father, this matter did not assume great significance in the proceedings.
The impact of exposure to parental conflict and the impact of potential separation of the children from their mother, which may amount to family violence, is dealt with when considering the need to protect the children from harm.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The mother has primarily maintained the children since moving to Australia in November 2014. The father made some financial contribution prior to being assessed to pay child support through the Child Support Agency. He has paid child support since August 2015 and shown a willingness to provide other financial assistance to the mother for the children.
Likely effect of change in the children’s circumstances
The children have been living with their mother and spending time with their father in Australia for almost two years. The proposal of the ICL and mother does not entail a significant change in the circumstances prevailing over the last two years.
However, the father seemed to foreshadow that the ICL’s proposed orders would result in a significant change in the children’s circumstances in the future. Although, during the 18 months prior to the final hearing the father visited the children in Australia on at least six occasions, he maintained that he would only be able to visit the children once or at most twice a year in the future. If he only were to travel to Australia once a year to spend time with the children, this will be a significant change in their circumstances. It would be in my view, likely to affect detrimentally the children given the significant sense of loss they are already experiencing from the absence of their father from their lives. However, I formed the impression that the father may have exaggerated his limited opportunity to travel to Australia in the hope that this would increase the prospects of orders being made as he seeks, rather than being the likely future pattern of his visits to Australia.
If the children were to spend time with their father in Kenya as he proposes, they would undoubtedly be enriched by maintaining connections with extended family and their Kenyan culture, as well as enjoying their relationship with their father in a natural home environment. However, as I have found that there is an unacceptable risk that the children would not be returned to Australia, limited weight can be attached to the beneficial effect on the children from this proposal.
The likely effect of the dramatic change in circumstances that would come about if the children were not returned to Australia should orders be made for the father to spend time with them in Kenya has already been dealt with at length when considering other matters.
Practical difficulty and expense of the children spending time with and communicating with another parent
There are many practical difficulties associated with the father’s proposal that the children spend time with him in Kenya.
Dr V describes this issue in the following terms:-
It is difficult to visualise how his proposal could possibly be operationalised given the logistics. The possibility of the children travelling alone to Kenya and staying with their father and his partner, circumstances (sic) towards whom [the mother] holds so much antipathy, seems fraught.
Dr V says that although the father has been a significant person to the children, their responses and their accounts confirm that he has been “at times [an] inconsistent presence in their lives”. She describes his proposal for his care for the children in Kenya as “somewhat unrealistic given his history of caring for the children”.
The father himself also seems to concede that he will not be available fully to the children in Kenya were they to spend time with him there, due to his position as a public official and as he is considering contesting more senior public office. He says for example that during the campaign period for his last election as a public official, as he was “campaigning in a vast region” he only saw the children a few times from December 2012 to March 2013.
The father also raises the practical difficulty and significant expense in spending time with the children in Australia. In his affidavit he says that it is difficult for him to take time out of his duties as governor and that if the court does not make orders for the children to spend time in Kenya he anticipates only being able to return to Australia on one occasion each year for five to seven days, and at least two days would be lost in travel time.
Under cross-examination, the father’s position changed somewhat. He maintained that he may not be able to travel to Australia more than once per year, but said he seeks orders that give him the option if possible of visiting more than once a year. He said that he estimated that he would be able to come to Australia once a year and spend three weeks with the children. Later in cross-examination, he said that he could either come to Australia on one occasion, for three to four weeks or come on two occasions for two weeks but wanted the option of flexibility. He agreed that on the basis that he had four weeks available each year it would be more appropriate for that to occur in two “guaranteed” block periods. Ultimately he maintained that he could not guarantee that he could come to Australia more than once a year, even though he agreed that this was not good for the children.
On the basis of the father’s evidence in his affidavit and under cross-examination, I am satisfied that the alternative proposal he puts forth in the event that the court does not make orders for him to spend time with his children in Kenya is not realistic or feasible. If orders were made in accordance with this proposal the children may have the expectation that their father would be able to spend time with them on a number of occasions throughout the year in both school holiday and term time, which would be unable to be fulfilled by him. In the event that orders are made for the children’s time with their father to be spent in Australia only, the proposal of the ICL and mother provides greater certainty for the children and is more realistic. The proposal does provide for the father to spend other additional time with the children in Australia so long as he provides notice to the mother.
Maturity, sex, lifestyle and background including culture and traditions of the children and either parent
I agree with Dr V’s assessment that the issue of cultural identity is highly significant in this matter. These children, who are Kenyan, lived in their homeland until November 2014 when their mother brought them to Australia in circumstances which must have been experienced by them as confusing and dislocating.
Dr V expressed this opinion concerning the mother in relation to this matter:
There has been a significant disjuncture in the children being able to continue to identify with their cultural roots, given the abrupt dislocation they have experienced. [The mother]’s apprehension and need to establish clarity and boundaries around living in Australia seems so overriding that she appears to have minimised the importance of the children maintaining some connection with their culture. Her attention to ensuring some cultural connectedness has been thus far inadequate. One can only hope that, once the urgency of the current proceedings passes, she will be able to turn her attention to the needs of the children in this regard. Failure to do this, may leave the children feeling bereft of connections with their cultural heritage, particularly in adolescence then (sic) this need is likely to come to the fore.
At the time of the final hearing, almost one year after Dr V expressed this opinion, it appeared that the mother had not taken heed of the importance to the children of maintaining some connection with their culture. She makes no reference to this issue in her affidavit and under cross-examination seemed to diminish the significance of the children’s Kenyan cultural heritage. For example when asked about connections with the Kenyan community in Canberra, the mother initially said that she bumps into [Kenyan] people in the supermarket.
However when later asked under cross-examination about the cultural activities the children were currently involved in, the mother was more expansive. She the mother nominated the multicultural festival in Canberra, church and activities through the Embassy. The last activity they had attended at the Embassy was described as “a get together of the Kenyan community at a park”. The mother also said that the children had been attending Swahili classes since the beginning of 2016.
Dr V also expressed concern about the low level of social support in place for the mother and the children and said that the mother was unable to identify resources on which she might draw in times of stress. Although Dr V expressed in a number of places in her report that the children presented as bereft from the loss of contact with their family and the mother agreed that the children did experience a loss the mother said this loss was “not devastating”.
Dr V had recommended the children receive therapy to help them manage their feelings of grief and loss. At the time of the hearing, the children were not seeing a therapist though the mother said B had attended approximately six months of therapy in 2015 as a result of Dr V’s recommendation. She said that the children had not seen a therapist as she could not afford it. The mother said that she did not ask the father to assist in the payment for therapy nor did she make enquiries about obtaining such therapy free of charge.
The mother’s evidence concerning the children’s connections to their Kenyan culture, the impact of the loss of contact with family upon their wellbeing and the steps she has taken, together with Dr V’s opinion, does raise matters of concern. It is to be hoped, as Dr V opines, that once the final orders are made, the mother may prioritise the children’s needs for maintaining connectedness to their culture and therapy to assist them with the significant change and loss in their life. The ICL’s proposed orders require the mother to follow the directions of the children’s health professionals in relation to the therapy recommended by Dr V.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
For the reasons given when discussing issues of culture and traditions of the children, it is preferable in the interests of the children for there to be some finality in these proceedings as the mother may then prioritise the children’s needs rather than focus on her need for orders to support the children’s living arrangements in Australia.
The father’s proposal that the obtaining of “mirror orders” in Kenya is a conditional precedent to the exercise of his time with the children by definition involves further proceedings in Kenya. This is however, not a weighty factor which of itself, would cause me to favour the orders proposed by the ICL.
Conclusion
As an order has already been made for the parents to have equal shared parental responsibility for the children, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in their best interests, and whether such an order is reasonably practicable.
It is clear that equal time is not reasonably practicable given that the parties live in two difference countries nor is this arrangement suggested to be in the children’s best interests.
I am then required to consider under s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in her best interests and reasonably practicable.
Subsection 65DAA(3) sets out that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with a parent includes both days that fall on weekends and holidays and days not falling on weekends and holidays, and allows the parent to be involved in the child’s daily routine and occasions and events of particular significant to the child and/or the parent.
The primary proposal of the father and the alternate orders he proposes (in the event that his time with the children is to take place in Australia) would amount to him spending substantial and significant time with the children if he were to exercise all the time available under those orders. However, the case was conducted on the basis that it would not be reasonably practicable to spend time with the children in accordance with those proposals. In particular, the tenor of the father’s evidence is that he would only be able to travel to Australia once or twice per year and ultimately he appeared to concede that his alternate proposal is not reasonably practicable on this basis. I am satisfied that the children spending substantial and significant time with the father is not reasonably practicable.
In determining the orders for the father’s time with the children that are in the children’s best interests, I have attached particular weight to the primary considerations noting that greater weight must be attached to the need to protect the children from harm. Cultural factors are also weighty and together with the children’s views tend to favour the father’s proposal. However, the nature of the children’s relationship with their mother and the likely effect of a change in the children’s circumstances and harm which would be caused to them if they were not returned to her in Australia are ultimately determinative.
Having found that there is an unacceptable risk of harm to the children which would arise from them being separated from their mother if they were not returned to Australia and having regard to all of the foregoing considerations, I am satisfied that the orders proposed by the ICL with respect to the children’s time with their father and communication with him are in the best interests of the children.
In the course of submissions the remaining orders proposed by the ICL were agreed to by the father or were noted to be in virtually identical terms proposed by him. The only order proposed by the ICL which I do not make is the restraint upon the parties that they not assault, molest, harass, threaten or otherwise interfere with the other party as there is no evidentiary basis upon which an order could be made.
The father also sought two orders in relation to direct correspondence with the school, doctors an alike which in my view is in keeping with equal shared parental responsibility and on that basis are in the best interests of the children.
For the foregoing reasons I made the orders set out on the forefront of this Judgment.
I certify that the preceding two hundred and eighty three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 September 2016.
Associate:
Date: 9 September 2016
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