MARDINE & UYSAL
[2014] FCCA 146
•10 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARDINE & UYSAL | [2014] FCCA 146 |
| Catchwords: FAMILY LAW – Parenting orders – international relocation to the United States of America – where there are serious allegations of family violence against the father – where there is clear evidence to support those allegations – where the expert evidence is clear that the father’s ability to act in the child’s best interests is further compromised by personality disorders – where the mother has no support in Australia. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Taylor & Barker (2007) 37 Fam FLR 461 Tait & Dinsmore [2007] FamCA 1383 |
| Applicant: | MS MARDINE |
| Respondent: | MR UYSAL |
| File Number: | DGC 37 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 30 and 31 October 2013, 25-27 November 2013 |
| Date of Last Submission: | 27 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondents: | The father in person |
| Solicitors for the Respondents: | none |
ORDERS
All previous orders in relation to the child [X] born [in] 2012 (“the child”) are hereby discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child is permitted to leave the Commonwealth of Australia on or after 12 March 2014 and to live with the mother in the United States of America or any other country of the mother’s choosing.
Pending the child’s departure from Australia, he shall spend time with the father pursuant to the current regime, and under the supervisory conditions currently in place, until 8 March 2014.
Once the child has left Australia, he shall spend time with the father by agreement between the parties in writing, and during no more than three periods of two weeks per year in the United States of America or in any other country of the mother’s choosing.
The father is restrained by injunction from contacting the mother other than by email or post to seek to spend time with the child pursuant to paragraph 6 hereof, and he shall not contact her for that purpose on more than three occasions in any twelve month period.
Any time spent between the child and the father pursuant to paragraph 6 hereof shall be subject to any conditions in relation to supervision as may be specified by the mother.
The father is hereby restrained by injunction from consuming alcohol or any drug not prescribed for him, or not available over the counter at major supermarkets, for 12 hours prior to and during any time he spends with the child.
The father is permitted to send the child gifts, cards, photographs and video images of himself and/or the paternal grandmother, either by post or by electronic means, on no more than four occasions per calendar year, one of those occasions to include the child’s birthday and Christmas each year, and the mother shall provide the father with postal and email addresses for that purpose.
The father is hereby restrained by injunction from applying for a passport of any nationality for the child or from adding the child to his own passport or to that of any other person.
Pursuant to Section 114(3) of the Family Law Act 1975 the father is hereby restrained by injunction from attending at any airport or other point of international departure from the Commonwealth of Australia within 60 days of the date of these orders.
All extant Applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Mardine & Uysal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 37 of 2013
| MS MARDINE |
Applicant
And
| MR UYSAL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting case in which the mother, who was born and raised in the United States of America (“the US” or “the United States”), seeks orders that she be permitted to relocate to the US with the child of the relationship, [X] born [in] 2012 (“[X]”).
The father, who was born in [omitted] and has spent the last 14 years in Australia, seeks orders preventing the mother from relocating [X]’s place of residence outside Australia.
Background
The mother was born in [omitted], USA [in] 1989 and is now 24 years old. She is a full-time carer for [X], although she intends to train as a [occupation omitted] if she is permitted to return to the USA. She is an American citizen but has permanent resident status in Australia.
The father was born in [omitted] [in] 1983 and is now 30 years old. He migrated to Australia with his mother when he was 16 years old, his parents having separated during his early childhood. He holds dual [omitted] and Australian citizenship and is studying for an undergraduate degree in [omitted] at the University [omitted].
The parties met in [omitted] in 2011 when both were studying at [omitted] University in [omitted].
After a two month relationship the father invited the mother to accompany him back to Australia, and in January 2012 they moved into the paternal grandmother’s home in [suburb omitted]. The mother discovered she was pregnant in mid-April 2012.
In mid-2012 the parties travelled to the US to visit the maternal family. They stayed with the mother’s parents in [I], and returned to Australia separately in July of that year after the father had been asked to leave the paternal grandparents’ home.
The parties first separated in October 2012, before [X] was born, but reconciled within twenty-four hours when the father intercepted the mother at Melbourne Airport when she was about to board a plane to the United States.
The parties separated again when the mother left the paternal grandmother’s home and moved into a women’s refuge in January 2013, but briefly reconciled, separated after a major incident of family violence on 3 March 2013, and reconciled again before finally separating on 28 March 2013, when the Department of Human Services (“DHS”) intervened.
The police applied for a Family Violence Intervention Order for the mother and [X] on 4 March 2013. That application was heard on 18 March 2013, and a final order was made. The father was at court when the order was made and he consented to the order being made without making any admissions as to the facts alleged in the Application.
The father was charged with and pleaded guilty to a breach of the Intervention Order on 18 October 2013.
The father was also charged with assault as a result of the events of 3 March 2013, but the outcome of those charges is unknown at this time.
The intervention of DHS in late March 2013 followed the parties’ reconciliation and road trip to Sydney on 24 or 25 March 2013, which ended in a car accident after the father fell asleep at the wheel in the early hours of the morning. The parties stayed in a motel in New South Wales before returning to Melbourne.
[X] is the only child of the relationship. He is now thirteen months old and has lived with the mother and spent time with the father since separation.
The mother has no family living in Australia and alleges serious family violence perpetrated by the father. She wishes to return to her home in the United States where she has the support of her family and is able to study.
The father wishes to maintain the relationship he has begun to develop with [X] and says he will be unable to do that if [X] is living in the US.
Procedural History
The first application to come before the court was an application by the father for a Watch List Order filed on 8 January 2013.
That application was listed for hearing on 17 January 2013 before Federal Magistrate McGuire (as His Honour then was), but as the father did not appear on that occasion, all extant applications were dismissed. I note that both parents had filed a Notice of Discontinuance on 11 January 2013.
The mother filed her Initiating Application and an Affidavit in support on 24 May 2013. That Application sought the following orders:
Final orders sought
1. That the child of the relationship [X] born [in] 2012 (the child) live with the mother.
2. That the mother have sole parental responsibility for making decisions about the long term care welfare and development of the child.
3. That the child be permitted to leave the Commonwealth of Australia and live with the mother in the United States of America.
4. That the father spend such time with the child as the Court may order and such time be supervised by the paternal grandmother Ms L.
5. That the father be restrained from drinking alcohol or taking any recreational drugs for a period of 12 hours before spending time with the child and during the time that he spends with the child.
6. That the father pay the mother’s costs of these proceedings.
In addition to her own Affidavit, the mother filed supporting Affidavits from her parents and from the parties’ psychiatrist, Dr B (“Dr B”).
She issued subpoenas to Dr K, the father’s treating psychiatrist
(“Dr K”), Victoria Police, and Ms M, Child Protection Practitioner at the Department of Human Services.
The father filed his Response on 7 June 2013 together with an Affidavit in support.
The matter came before the Court in the Duty List on 11 June 2013 and comprehensive interim orders were made by consent providing for [X] to live with the mother and to spend time with the father for three periods of two hours per week supervised by Connections, a professional child contact supervisor organisation. Both parents were restrained from drinking alcohol to excess and from using any illegal substances while [X] was in their care, and the father was further restrained from attending changeover. Further orders were made to place [X]’s name on the Watch List, for the parties to obtain psychiatric assessments, and for the preparation of a private family report.
The matter was then listed for final hearing at Melbourne on 30 October 2013 for three days.
Between the initial Duty List hearing and the first day of the Final Hearing, Affidavits were filed by the following:
·The mother
·The father
·Ms R, the mother’s treating psychologist (“Ms R”)
·Dr E, psychiatrist (“Dr E”)
·The maternal grandmother
·The maternal grandfather
·Dr W, family consultant (“Dr W”)
·The paternal grandmother
·Ms T, the supervisor of the father’s time with [X] (“Ms T”).
Further subpoenas were issued to DHS, Victoria Police, Westpac Banking Corporation, Dr K, and Dr C (the parties’ general practitioner).
In her Outline of Case Document, filed on 28 October 2013, the mother sought the following orders:
1.That the Mother have sole parental responsibility for the child [X] born [in] 2012 (“[X]”).
2.That [X] live with the Mother.
3.That the child be permitted to leave the Commonwealth of Australia and live with the Mother in the United States of America.
4.That the father spend time with [X] at such times as the Court may order and all such times be supervised.
5.That the father be restrained from drinking alcohol or taking any recreational drugs for a period of 12 hours before spending time with [X] and during the time that he spends with him.
In his Outline of Case Document, filed on 29 October 2013, the father sought the following orders which I set out here in full:
1.That the matter be adjourned for a period of three months, in accordance with the recommendation of the Family Report Writer; and that at the conclusion of three months the Family Report Writer provide an updated report and make further recommendations with respect to the Father’s time with the child.
2.The parties retain equal shared parental responsibility for the care, welfare and development of the child of the relationship, [X] born [in] 2012 (“[X]”).
3.That the child live with the Mother.
4.That the child spend time with the Father, increasing as follows:
a.For the first two weeks, each Wednesday and Sunday for a period of three hours;
b.For the following two weeks, each Wednesday and Sunday for a period of four hours; and
c.From thereafter, each Wednesday and Sunday for a period of five hours.
5.That any travel time be additional to the times as set out in paragraph 4 herein.
6.That for the purposes of paragraph 4, each Wednesday be supervised by Ms T and each Sunday be supervised by the paternal Grandmother Ms L.
7.Such further or other orders as this Honourable Court deems appropriate.
IN THE ALTERNATIVE, if Mother’s relocation application is unsuccessful:
1.The parties retain equal shared parental responsibility for the care, welfare and development of the child of the relationship, [X] born [in] 2012 (“[X]”).
2.That the child live with the Mother in Melbourne Victoria.
3.That the child spend time with the Father, increasing as follows:
a. For the first two weeks, each Wednesday and Sunday for a period of three hours;
b. For the following two weeks, each Wednesday and Sunday for a period of four hours; and
c. From thereafter, each Wednesday and Sunday for a period of five hours.
4.That any travel time be additional to the times as set out in paragraph 5 (sic) herein.
5.That for the purposes of paragraph 5 (sic), each Wednesday be supervised by Ms T and each Sunday be supervised by the paternal Grandmother Ms L.
6.That at the conclusion of three months the Family Report Writer provide an updated report and make further recommendations with respect to the Father’s time with the child.
7.Such further or other orders as this Honourable Court deems appropriate.
If the Mother’s Relocation Application is successful:
1.The parties retain equal shared parental responsibility for the child of the relationship [X] born [in] 2012 (“[X]”).
2.That the child lives with the Mother in [I], United States of America, from 1 March 2014 (“the relocation date”).
3.Pending the relocation date, the child spend time with the Father as follows:
a. Until 11 November 2013, each Wednesday and Sunday for a period of three hours;
b. Until 25 November 2013, each Wednesday and Sunday for a period of four hours;
c. Until the relocation date, each Wednesday and Sunday for a period of six hours;
4.That for the purposes of paragraph 3 and pending the review pursuant to paragraph 5 below, the Father’s time each Wednesday be supervised by Ms T and each Sunday be supervised by the paternal Grandmother Ms L.
5.The parties attend upon Dr W not less than six weeks prior to the relocation date for the purposes of a review of the necessity or otherwise for the Father’s future time with [X] to be supervised, and for recommendations as to the appropriate arrangements for [X] to spend time with the Father from the relocation date.
6.The matter be listed for a Review Hearing not less than two weeks prior to the relocation date to determine the appropriate arrangements for [X] to spend time with the Father from the relocation date.
7.From the relocation date, the child spend time with the Father as follows:
a. Six times per year for a period of no less than two weeks, with the Father to travel to the United States of America on 3 occasions and the Mother to travel to Australia with the child on 3 occasions; and
b. At any other time by agreement.
8.That pursuant to paragraph 7 herein, the cost of the travel to Australia with the child be borne by the Mother and the cost of travel to the United States be borne by the Father.
9.Should the Father be restrained from entering the United States, the Mother travel to Australia with the child on no less than 4 occasions per year, with the cost of the travel to Australia with the child be borne by the Mother on two occasions and by the Father on two occasions.
10.That in the event that the parties intend to travel with the children (sic) they provide the other party with written notice 21 days prior and information including flight arrangements and a (sic) itinerary including contact details for all accommodation.
11.The Mother pay to the Father’s solicitors, to be held in an interest bearing account, the sum of $100,000 by way of security, such sum to be released to the Father to fund his legal fees in the event of the Mother’s non-compliance with these Orders.
12.That the Mother provide 60 days written notice to the Father should she seek to relocate from [I], United States of America and keep the Father informed of her current residential address, home and mobile telephone numbers, and email addresses.
13.That the Mother authorises any medical practitioner, psychologist or other health professional seen by the child to contact the Father so as to provide him at his expense with any information about the child that he should seek.
14.That each party inform the other as soon as practicable of any medical emergency involving the child.
15.That the administrative assessment of child support be departed (sic) from the date of these Orders and the Father’s child support be set at NIL.
16.Prior to the relocation date, both parties attend a Post-Separation Parenting Course and provide the other with written confirmation of completion of same.
17.Such further or other order as this Honourable Court deems appropriate.
On 30 October 2013, the trial began in Melbourne with both parties represented by counsel.
However, on the morning of the second day, while the mother was under cross-examination by the father’s counsel, the father withdrew his instructions from his lawyers and they sought and obtained leave to withdraw.
The reason given by the father for having lost confidence in his legal representation was that he thought it important that his treating psychiatrist, Dr K, whose records had been subpoenaed by the mother but who was not to be called by either party at that time, should give evidence in relation to his mental health. The father said at that time:
I haven’t been diagnosed with anything, and he’s quite familiar with the way I am, and I just thought that he would be an excellent expert here, to come and give testimony.
The matter was then adjourned part-heard to a further hearing at the Dandenong Registry on 25 November 2013 for a further three days.
It was made clear to the father on 31 October that there would be no further adjournments of the matter after that day.
[X]’s time with his father was extended gradually over the intervening period so that by the time of the next hearing date, he was spending five hours during the day on three occasions per week, supervised by Ms T.
When the matter returned to the Court on 25 November 2013, the father had instructed new lawyers and was represented by counsel. The mother was represented by the same counsel who had represented her on 30 and 31 October.
The father had instructed his counsel to seek an adjournment of the proceedings on the ground that he did not agree with the psychiatric report of Dr E and wished to obtain an “independent” psychiatric report.
I heard that application and dismissed it on the following grounds:
· Dr E is an independent psychiatrist.
· The matter had already been adjourned for the father to obtain further representation and the Court had adjusted its list to accommodate this hearing because of the urgent nature of the proceedings.
· Dr E’s report was available to the father and his legal team before the previous hearing and no mention had been made of this issue at that time.
Unfortunately, before any further evidence could be given, the father again withdrew his instructions from counsel and his solicitors, and then attempted to reinstate those instructions in open court when advised again that there would be no further adjournment. However, his lawyers felt they were compromised in those circumstances and sought leave to withdraw, that leave being granted.
The father then acted in person for the remainder of the proceedings.
Oral evidence was heard from the mother, the maternal grandfather, the maternal grandmother, Dr W, Ms T, the father, the paternal grandmother and Dr K, all of whom were subject to cross-examination.
The Evidence
At the outset I think I should clarify the terms in which the father is referred to in the evidence. His full name is Mr Uysal. He has been known all his life by the name Mr Uysal, but in the mother’s affidavit material she refers to him as Mr Uysal, that being his legal given name. All other witnesses refer to him as Mr Uysal.
The mother’s evidence
The mother relies on the following evidence:
· Her own evidence contained in two Affidavits sworn on 17 May 2013 and 1 October 2013 and in her evidence given on oath at trial
· The evidence of her mother (“the maternal grandmother”) found in a short Affidavit sworn on 11 June 2013 and in a second, longer Affidavit sworn on 2 October 2013, as well as in her oral evidence at trial
· The evidence of her father (“the maternal grandfather”) contained in an Affidavit sworn on 7 May 2013, and in his oral evidence at trial.
The mother
It is the mother’s evidence that in September 2011 she was a student at [I][University omitted] and was completing a semester of her undergraduate degree while on an exchange program at the [omitted] University in [omitted].
It was while at university in [omitted] in November 2011 that she met the father, a [omitted]-born Australian citizen who was also completing a semester of his undergraduate degree at the [University omitted]. A relationship developed between the two.
In January 2012, at the end of the semester, the parties moved into a house owned by the father’s mother on an island near [omitted], and then, at the request of the father, the mother agreed to move to Australia to live with the father in Melbourne. The mother entered Australia in late January 2012 on a twelve month working holiday visa.
The mother’s evidence is that her relationship with the father was characterised by extreme controlling behaviour, very serious physical and emotional violence, and pathological jealousy on the part of the father. She also gave evidence that he drank heavily during the relationship.
The mother deposes as follows in her Affidavit sworn 17 May 2013[1]:
From the time Mr Uysal and I met, he has been extremely jealous and paranoid in regards to most of my activities. He displayed obsessive, possessive and controlling behaviour towards me. He wrongly accused me of having affairs with his friends, his roommates, my male friends, my co-workers, an ex-boyfriend and complete strangers. He has also been emotionally abusive, threatening to kill me, hacking into my email accounts and other online accounts, stealing my medication, impersonating me online and accusing me of having multiple personalities. I have been totally isolated from my friendship group and my family. I have been constantly required to produce evidence to him of my whereabouts at all times. This proof includes me having to provide photographs with “time stamps”, receipts showing my location during outings, showing him bank statements to prove expenditures, providing him with copies of phone records so he could review my mobile phone usage, giving him my passwords to my various online accounts (including email accounts and my Facebook account). On my return from going out he would quiz me to find out who I had been out with and then demand to have conversations with these people either over the telephone or online whilst he gave me specific questions that I was to ask them and would either listen secretly whilst I was either speaking to them (for example over Skype) or read the online conversations over my shoulder. He also demanded that I enable the location device on my iPhone so that he can track my exact whereabouts via GPS.
[1] Affidavit of the mother filed 20 May 2013 paragraph 12
The mother’s evidence provides detailed allegations of multiple incidents of physical assault, beginning in the first month of the relationship while the parties were in [omitted] in November 2011, and culminating in a savage assault on 3 March 2013, which led to an Intervention Order being made on an application by police and charges being laid against the father.
It is the mother’s evidence that many of these assaults took place when the father had been drinking heavily.
Examples of these incidents contained in the mother’s evidence include:
a.An incident of physical violence while the parties were still in [omitted] in November 2011 where she was pinned to the ground after she told the father that their relationship was over, only being released when the police intervened, having been called by a passer-by;
b.Incidents in December 2011 when the father slapped her face, and when he attempted to tie her to a chair until his roommate intervened;
c.An incident on 31 August 2012, when the mother was five months pregnant with [X], when the father pushed the mother down on the bed and began pulling her hair. He slapped her face and began to choke her, leaving marks on her neck. This attack only ceased when the paternal grandmother intervened.
d.An incident on 7 January 2013 when the parties were arguing because of the father’s continual questioning of the mother’s fidelity. The mother deposes that she tried to leave the room and wake the paternal grandmother, but that the father grabbed her by the hair and pulled it downwards so that she fell to her knees. He then pushed her back onto the couch and put his hands over her mouth and nose. She deposes that [X] was in her arms at the time;
e.An incident on 3 March 2013 where the father dragged the mother down the hall to the bedroom by her wrists, held her down on the bed, covered her mouth and nose and attempted to strangle her. It was, again, only when his mother intervened and hit him on the head that the assault ceased. The father then gave [X] to the mother and told her to leave, marching her to the door and kicking her buttocks and slapping her on the head as he did so. This was the incident that led to the intervention order application and charges being laid against the father. The mother had bruising on her neck and photographs of those marks were taken by the police.
In addition to this physical abuse the mother’s evidence contains numerous examples of emotional, psychological and verbal abuse perpetrated upon her by the father.
In summary, and again by way of example, the mother’s evidence is that she was subjected to the following behaviour on the part of the father:
a)The father exhibited quite extreme controlling, threatening and/or concerning behaviours, including the following:
i.The father installed a program on the mother’s computer that recorded every keystroke and took screen shots of the computer every minute. This latter behaviour allowed him to monitor all the mother’s emails, details of her Facebook postings and to watch her Skype calls without her knowledge;
ii.the father insisted on knowing where the mother was at all times, ensuring that her telephone GPS system was installed and turned on, and checking her telephone records and receipts;
iii.upon discovering she was pregnant, the father pressured the mother to stop taking all prescribed medication other than her thyroid hormone replacement. He became obsessed with that issue, hiding some medication and flushing more down the toilet;
iv.While the parties were in the US in mid-2012, the father was speaking to the maternal grandmother about a doctor’s suggestion that the mother have an iron transfusion when the mother observed the following[2]:
[2] The mother first Affidavit supra paragraph 35
Whilst (the father) was talking to her I observed him to have what I thought of as a panic attack. He started to sweat, he could not speak coherently, pulling at his hair in a manic manner and hitting his head with his fists whilst pacing around in a circle. (The father) later told me that he believed my mother was conspiring with doctors in America either behind my back or with my knowledge to prescribe me medication to abort the pregnancy whilst creating the illusion of a miscarriage.
v.The father became obsessed with the health of the then unborn child, insisting that the parties attend several medical appointments because he believed that the baby was not thriving in utero. The doctors were not able to convince him that his fears were groundless;
vi.On 7 January 2013, the mother and her parents, who were visiting from the US, went to Phillip Island on a bus tour, leaving [X] with the father and paternal grandmother. When they returned, the father told her that he had called her several times during the day. When she had not answered her phone, had become convinced that her parents had taken her and [X] to the airport in an attempt to leave the country. He said he had taken a taxi to the airport with [X], then only weeks old, unrestrained in the car.
vii.On one occasion the father threatened to throw acid on the mother’s face so that she would be “too ugly” to have affairs with other men. On another he said that if he were to kill her, he would do so by strangling her, so that “he could see the light fade from her eyes”.
viii.the father took money from the parties’ joint account on two occasions when the mother had left the relationship so that she had no access to money at all. As she was then in Australia on a working holiday visa, she did not have access to Centrelink benefits, although she was receiving a special benefit for [X].
b)from the beginning of the relationship the father perpetually accused the mother of being unfaithful to him, and of having affairs with any men she met. This behaviour continued throughout the relationship and was relentless. Some examples of this behaviour to which the mother deposes are:
i.in January 2012, the mother was forced to sit in the window of a cafe to have coffee with a female friend so that the father could watch her from across the street to ensure that she was meeting a girlfriend and not a man;
ii.the father demanded to see her Myki card on one occasion because he did not believe she had accidentally missed her station and accused her of being with another man;
iii.while in the US in mid-2012, the father demanded that the mother contact an old boyfriend online so that he could find out if she had been unfaithful with him. The father directed the conversation and even typed some questions to the former boyfriend himself. He did not cease his questioning of the mother even after the former boyfriend confirmed that their relationship was well and truly over.
iv.When the mother was five months pregnant, the father purchased a product called “Checkmate”, which is apparently readily available at pharmacies, and used it for its intended purpose, to check the mother’s underwear for the presence of semen.
v.While the parties were visiting the maternal grandparents in mid-2012, the mother and maternal grandmother took a road trip to [O] to visit the maternal great-grandmother. The father texted and called the mother constantly during the trip to ensure that she was not with another man. Eventually the mother posted on Facebook a picture of her grandparents as proof of her whereabouts.
vi.After the father returned to Australia in late July 2012, the mother, who remained in the US to take care of business to do with her university studies, told him of her plan to meet up with an old boyfriend for coffee. The father insisted that she turn on the GPS facility on her phone and send him photographic evidence of receipts, ATM slips, phone call logs, text messages, online conversations and various other photographs to prove that she was telling the truth.
vii.At one point the father asked for a DNA test to prove his paternity as he thought [X] might have been the child of one of the mother’s co-workers at one of the casual jobs she took when she first arrived in Australia.
It is the mother’s further evidence that there was an incident in May 2012 where she lashed out and struck the father while he was lying on the bed after he told her he was not sorry for having slept with an old girlfriend during his relationship with the mother while in [omitted], and that he would happily do so again. He attended the emergency department at the hospital and had several stitches inserted in his lip.
At trial, the mother gave evidence that she had struck the father on the mouth only after he had been pestering her about alleged affairs with other men and simply would not stop. She freely acknowledged that her behaviour was unacceptable on that occasion.
In her Affidavit material, which she confirmed in oral evidence, the mother also deposes to her concerns about the role of the paternal grandmother in [X]’s care. It is her evidence that the paternal grandmother surreptitiously fed [X] formula when she knew the mother was breastfeeding, which meant that [X] was not hungry when the mother went to feed him, thus having a potential impact on the production of the mother’s breast milk. Further, the paternal grandmother placed potentially dangerous objects including a pillow and a hot water bottle in [X]’s cot. She woke him against the wishes of the mother, and generally ignored the mother’s attempts to speak to her about these matters.
It is the mother’s evidence that she, [X], and one or both of her parents have been living in short-term rental accommodation in Melbourne ever since 10 April 2013. The mother has been financially supported by her parents since that time.
The mother gave evidence that if she is forced to stay in Melbourne, she would have to find a rental property, which she estimates would costs about $350 per week. The alternative would be to live in the outer suburbs of Melbourne or even in a country town. She gave evidence that she would receive a total of $570 per week in Centrelink benefits. She would not have a motor vehicle and would have to purchase a household full of furniture and appliances. In those circumstances, she estimates that weekly expenses for herself and [X] would be about $955 per week. She receives the sum of $6.90 per week in child support payments from the father and claims that he has assets and money in [omitted] which he hides from Centrelink.
It is the mother’s further evidence that she feels restrained in her use of the internet while in Australia as the father has hacked her online accounts in the past and she does not feel secure while online. This affects her ability to communicate with family and friends in the US.
In relation to her plans to study for [omitted] qualifications if she is permitted to take [X] to live in the US, the mother’s evidence is that she can enrol in a course at [omitted] University, some twenty minutes from her parents’ home, and that the course would take about two-and-a-half years to complete. She would be eligible for a US Government Loan to pay her tuition fees.
If the mother were required to remain in Australia with [X], her evidence is that she is not eligible for Higher Education Contribution Scheme (“HECS”) benefits and would have to pay for both her tuition fees (at full rates) and for her personal expenses such as books, accommodation, transport and general living expenses. Her evidence was clear that she simply could not afford to pay for those expenses.
The mother further gave evidence that she could not study online at an American university while in Australia because she intends to study to be a [occupation omitted] and that course of study requires classroom attendance.
It is the mother’s evidence that in [I] she would have the exclusive use of the family’s third car, and deposes that her parents’ home has ample room for her and [X], and they would each have their own room. It is the house in which she herself grew up and the local area has all appropriate facilities for children.
The mother provided evidence about arrangements she had made for [X] to spend time with his father in the US if she were permitted to relocate with [X]. It is her proposal that the father’s time with [X] be spent in [O], such time being supervised by the mother’s uncle.
The mother’s evidence is that as a result of the assault perpetrated upon her by the father on 3 March 2013, the father has been charged with common assault. The outcome of that charge was not known at the time of trial as it was listed for contest mention on 13 December 2013.
The mother’s further evidence was that as a result of his attending at his mother’s home while the mother was present on 10 April 2013, the father pleaded guilty to a charge of breaching an intervention order on 18 October 2013.
The mother’s position is that any time spent between [X] and his father should be supervised.
When giving her viva voce evidence, the mother presented as an intelligent, articulate and softly spoken young woman, who appeared to be fearful of the father. She kept her eyes low, being unwilling or unable to face the father, especially while he was cross-examining her, and at times her hands and voice shook slightly during her evidence.
Nevertheless, the mother’s evidence was clear and unequivocal and she confirmed details of the allegations of the father’s behaviour set out in her Affidavits in a straightforward and unembellished manner.
Under cross-examination by counsel for the father on the first day of trial, the mother did not appear to be avoiding giving evidence which put her own behaviour in a less than positive light, and she answered all questions in what I thought was an honest and open manner.
The mother acknowledged having struck the father such that he needed stitches in his lip, that she had thrown some of his belongings down the stairs, that she had smashed bottles at a party, that she had thrown his mobile phone off a boat, and that both she and the father had used illicit drugs during the relationship.
The mother accepted responsibility for her own part in what counsel described as “the volatile and explosive nature of the relationship” while at the same time being clear that she did not initiate nor provoke any physical violence.
In response to suggestions that she was coping well in Melbourne with the assistance of professional practitioners, the mother was consistent and clear in her statements that she was coping with that help, but also (and very importantly) with the help of her parents, one or both of whom have been with her in Melbourne since late March 2013.
Her evidence was that she did not think she could cope without her parents’ support, both material and emotional, and that her parents cannot continue to provide that essential support indefinitely as they have employment responsibilities in the US.
Counsel put to the mother that the father had offered in his Affidavit material to obtain a student loan of $5,000.00 so that she could buy a car, and to vacate his mother’s house so that she would have somewhere to live were she to remain in Australia.
The mother rejected these offers unequivocally both on that day and in the adjourned proceedings under cross-examination by the father, saying that the amount offered would not buy her a safe car into the future, and that the offer in general felt like yet another attempt by the father to control her life.
When the father asked her in cross-examination whether she could accept assistance from the father’s mother, the mother said that while she believed that the paternal grandmother would have “the best intent” in relation to looking after [X] if she were to remain in Australia, she did not believe it would be appropriate for her to be dependent on the father or his family for her support in any way.
She said further:
Your mum is an extension of you. You’re an abusive person to her. You have used her to control me before. There are so many different reasons why it isn’t acceptable, why it is inappropriate and why it is detrimental to my recovery from your abuse to continue to allow her to be, by proxy, you. I don’t want to live in Australia where I am dependent on my abusive former partner’s mother who is by extension my abusive former partner. I will never – I will never be able to recover. I will never be able to move on. …..
I went back to her house with her solemn promise that if you showed up she would call the police. And what happened when you showed up? She didn’t call the police, she didn’t make you leave…..
She can’t put [X] before you. She can’t put [X]’s safety ahead of you. You have her wrapped around your pinkie finger…
In relation to [X] having a future relationship with his father, the mother’s evidence was that she thought it would be “advantageous for him to know his father…if a normal relationship is possible”. She further acknowledged that the effect on [X] would be “negative” if he did not have a relationship with his father.
However it is her evidence that she is uncertain whether [X]’s relationship with his father is a beneficial one.
The mother answered questions in relation to what kind of time [X] might spend with his father were she to be permitted to take him to the USA to live in a manner that showed she had thought carefully about this issue, providing details of where and when such contact might take place.
When counsel raised the issue of whether the father’s pending criminal proceedings might affect his ability to visit the US, the mother said that she had checked the US State Department website and that the crime of common assault (with which the father had been charged) was not considered to be a crime “of moral turpitude by the United States State Department …and thus not a reason to bar someone from entering the United States, according to the State Department’s information”. The mother was not sure whether a conviction for breach of an intervention order would have the same result.
I note that the mother was still under cross-examination when the father withdrew his instructions from his first team of lawyers and that she was subsequently subjected to cross-examination by the father in person when proceedings resumed some three weeks later.
The mother’s demeanour at the resumption of proceedings when being cross-examined by the father was markedly different than when she was being cross-examined by his counsel. She would not or could not look at the father directly and she was visibly distressed at times during the subsequent days of trial.
However, she was able to answer his questions clearly and directly.
In answer to a question about what she would do if the court prevented her from relocating with [X], she said:
I would survive. I would probably be depressed and anxious, but there’s nothing you can do but survive.
Her evidence about the father’s attempts to control her life while the relationship was on foot was unequivocal.
This is shown in the following exchanges between the parties:
The father: At the time do you think it was abnormal for me to actually make sure everything was taken care – well?
The mother: The extent to which you went was abnormal. We had plenty of people tell us everything was normal, everything was fine. And you simply didn’t listen to anybody.
The father: Was I making sure that you were making to all of these appointments and ringing different doctors, ensuring that, you know, medication level actually appropriate because you were breast feeding?
The mother: You were supervising me 24/7. You had access to the car. You didn’t allow me to have access to the car. So were you taking me to all of the appointments and getting me dressed and encouraging me to go? Yes, because you were just constantly overbearing.
The father: Okay. Was I also supervising your medication?
The mother: You weren’t supervising it. You were - you took over it. You took control of it without my permission.
In re-examination counsel for the mother asked her client about text messages sent by the father after the intervention order was made against him as a result of the assault on her perpetrated by the father on 3 March 2013.
The mother tendered a bundle of documents containing text messages sent between the parties (but almost all by the father) between 3 March 2013 and 27 April 2013 – that is, in the six weeks after the date of the assault which led to the assault charge and to an intervention order being made against him. I have scanned those messages, and there are roughly one thousand messages in that bundle, almost every one initiated by the father.
While the messages are not threatening – indeed most are prosaic in their content – it is apparent that the father was unable to stop himself from contacting the mother despite the existence of the intervention order which prohibits such contact.
The Maternal Grandmother
The maternal grandmother’s evidence supports that of her daughter.
She describes how the mother called her from [omitted] in January 2012, reporting that the father had assaulted her causing bruising and saying that she wished to return to the US. The maternal grandmother’s evidence is that before plans could be finalised to bring the mother back to the US, the mother had retracted her statement about the violence, reconciled with the father, and was planning to move to Australia with him.
The maternal grandmother deposes that she and the maternal grandfather were so concerned about this that they flew to [omitted] for three days to check that she was safe. They met the father and his mother at that time.
The maternal grandmother and grandfather agreed to support the mother until mid-May 2012, when as far as the maternal grandmother was concerned, the mother would return to the US for her graduation.
The maternal grandmother confirms the mother’s evidence about the parties’ time in the US from late June 2012, particularly in relation to the father texting and calling the mother continually while she and the maternal grandmother were driving to and from [O].
She deposes to witnessing arguments between the parties at that time and says they appeared “unhappy most of the time”.
It is her evidence that she and her husband had to hide alcohol because the father was drinking heavily, and that the father “violated our privacy at home” in that he had been in the maternal grandparents’ bedroom while they were out, looking for a handgun the maternal grandfather had previously owned.
It is the maternal grandmother’s evidence that the maternal grandfather asked the father to leave their home at that time and arranged for him to stay at a hotel in a nearby town as they were uncomfortable about him staying with them.
The maternal grandmother’s evidence confirms the mother’s evidence in relation to the events of 7 January 2013 when she was called to the home of the paternal grandmother in the evening to find the police in attendance.
I note that it was on 8 January 2013 that the father applied for an ex parte Watch List order at the Dandenong registry of the Court.
In mid-March 2013, it is the maternal grandmother’s evidence that the mother called the maternal grandmother in the US to tell her about the events of 3 March, when police were called to the paternal grandmother’s home and the mother and [X] went to stay in a women’s refuge.
The maternal grandmother’s evidence is that the father called her twice at this time and she describes the conversations as follows[3]:
(The father) then called me twice at home, both times talking almost non-stop about his relationship with (the mother) and repeating himself constantly. I barely contributed to the conversation, but did ask him, twice, about the events of 3rd March. The first time he ignored the question, the second time he told me that his lawyer had advised him not to talk about it.
[3] Ibid paragraph 31
It is the maternal grandmother’s evidence that she returned to Australia on 30 March 2013 as a result of a request from the mother made by telephone on 28 March 2013.
It is her evidence that after an incident at changeover when she was frightened by the father’s behaviour, the maternal grandfather came to Australia to assist, and since then the maternal grandparents had attended all changeovers together and without their daughter.
The maternal grandmother’s evidence is that her concerns for her daughter’s safety are based on the father’s violence and surveillance of the mother; her observation of his alcohol abuse; the father’s encouragement of the mother to meet him despite the existence of the intervention order; and his appearance at the paternal grandmother’s home on 2 and 10 April 2013 when the mother was present in breach of the intervention order.
The maternal grandmother confirms her and the maternal grandfather’s support for the mother’s return to the US with [X], and confirms their willingness to have them live at their home.
It is her further evidence that she and the maternal grandfather are “willing to support and participate in the measures necessary to ensure that [X] can have a safe, healthy and meaningful relationship with his father and his paternal grandmother[4]”.
[4] Ibid paragraph 52
The Maternal Grandfather
The maternal grandfather’s evidence also supports that of the mother and the maternal grandmother in confirming incidents to which he was witness.
He gave further evidence in relation to events that occurred when the parties were staying with the maternal grandparents in mid-2012.
An example of that evidence relates to an incident where the father was unable to find his mobile phone, and became frantic in his attempts to locate it, dragging the parties’ bed into the hallway and piling clothes on it. The father called his (the father’s) phone some eight times before discovering it on a blade of the ceiling fan. The father denied having placed the phone there and blamed the mother.
A further example is that the maternal grandfather, who is an [occupation omitted], was preparing to go back to work and the father wanted to come with him. The maternal grandfather deposes that the father wanted to follow him on each leg that he flew, flying “standby” as the maternal grandfather flew back and forth across the country. The maternal grandfather told him that this would not be possible but the father insisted he would wait in any airport for the maternal grandfather to return. The maternal grandfather clearly thought that behaviour odd.
The maternal grandfather was adamant in his oral evidence that he was not eligible for any special fares in relation to travel to Australia because the [omitted].
The maternal grandfather’s evidence is that while he has paid for rental accommodation for the mother, [X], himself and the maternal grandmother since April 2013, he cannot afford to continue to pay for that accommodation in the long term.
The maternal grandfather gave evidence under cross-examination and then re-examination about his attitude to the father’s role in [X]’s life. He was clear in his view that it is important for [X] to know that the father is his father and said that he would encourage the father to maintain his relationship with [X] by way of letters, photos, visits and Skype communication were the mother to be permitted to relocate to the US.
The father’s evidence
The father relies on his own Affidavits sworn on 7 June 2013 (“his first Affidavit”) and 16 October 2013 (“his second Affidavit”), and on his oral evidence given at trial. He further relies on an Affidavit sworn by the paternal grandmother on 29 October 2013 and on her oral evidence given at trial.
The Father
It is the father’s evidence that he assisted the mother in [X]’s care after [X] was born. Prior to separation he would wake during the night to attend to [X]. He changed his nappies, fed him with a bottle and bathed him when necessary. He deposes that he is confident in these tasks and enjoys his time with [X].
In relation to the mother’s allegations of violence perpetrated by him, it is the father’s general Affidavit evidence that the allegations have been taken “completely out of context”[5] or that they are “exaggerated”[6].
[5] His first Affidavit paragraph 13
[6] Ibid paragraph 79
It is his evidence that the relationship between the parties was tumultuous, that there were times when he had difficulty trusting the mother, and that there were occasions when he had asked where she had been, but in his Affidavit material he specifically denies that he is extremely jealous or paranoid.
It is the father’s evidence that it was the mother who initiated all violent incidents between the parties and that he would then restrain her from further causing damage or injury. It is his further evidence that his discussions with her doctor led him to believe that some of the side-effects of the mother’s medication make her “easily agitated and prone to violence”[7].
[7] Ibid paragraph 63
However, when cross-examined at trial, the father admitted that most of the acts and behaviours alleged were true in almost every detail, although he had a different view as to their import or context.
Among other evidence, he conceded that :
a.He did request DNA tests in relation to [X];
b.He did ask to see the mother’s Myki card in order to establish where she had been when she was late home from an appointment;
c.He did ask the mother about her prescribed medications and encouraged her to reduce those medications when the parties discovered that she was pregnant;
d.The mother voluntarily provided him with cafe receipts, phone records and copies of her text messages because he needed reassurance about her fidelity;
e.He did text and call the mother constantly while she was travelling to and from [O] with her mother because he thought she might be meeting another man.
f.He did access the mother’s online accounts and said that he regrets doing so;
g.He did purchase and use the “Checkmate” product. He says that he regrets this action;
h.He did remove funds from the parties’ joint account after the first separation;
i.He did create a Facebook account in the mother’s name;
j.He did drive to the airport on 7 January 2013 when he was unable to contact the mother while she was visiting Phillip Island with her parents. The father’s evidence is that he had a genuine concern that the maternal grandparents would try to remove the mother and [X] from Australia and return with them to the United States as they had previously expressed a desire to do so;
k.He did assault the mother during an argument later that day after he had consumed much of a bottle of wine provided to him as a gift by the maternal grandparents. He again expressed his regret at that action.
In relation to the allegation that he searched the maternal grandparents’ bedroom for the maternal grandfather’s gun, the father says that he simply opened the door of the wardrobe as a joke and that he ceased to do so when the mother asked him to stop.
In relation to an incident where the mother alleges that he threatened to kill her by strangulation, he says that the parties were “watching a documentary about O.J. Simpson murdering his wife”[8] and that they were discussing the issue. He denies threatening the mother and says that conversation has been taken out of context.
[8] Ibid paragraph 58
In relation to the events of 3 March 2013, the father deposes to being angry that the mother had lied to him about the amount of medication she was taking, and admits that he flushed her medication down the toilet. While he was arguing with the mother about this the paternal grandmother arrived home with [X].
It is the father’s Affidavit evidence that he grabbed the mother and dragged into the bedroom as he did not want to argue in front of his mother.
It is this incident that the father describes as “exaggerated” in his Affidavit material.
However, under robust cross-examination at trial, the father conceded that the events of that evening had unfolded almost exactly as the mother had alleged.
Photographs taken that evening showing clear bruising around the mother’s neck were tendered and entered as evidence.
The father freely admitted that he continued to contact the mother while she was at a women’s shelter after the intervention order had been served upon him in early March 2013. He did so because the mother had told him that she had accidentally dropped [X] down a flight of stairs and he was genuinely concerned about her welfare and the welfare of his son while they were staying at the shelter.
In relation to the two incidents where he attended at his mother’s home in breach of the intervention order, the father gave evidence that he had not intentionally breached the order.
His evidence was that on both occasions he did not expect either the mother or the maternal grandmother to be on the premises at the time. He seemed oblivious to the fact that that is not an excuse under the Family Violence Prevention Act (Vic) 2008.
The father denies that he poses any risk to [X]’s safety, although he admits that his time with [X] was originally supervised pursuant to an undertaking given to the Department of Human Services.
It is his evidence that he does not believe that the mother is genuinely afraid of him.
In relation to the parties’ proposals in this matter it is the father’s evidence that if the mother were to remain in Australia and become a permanent resident she would be eligible for government assistance in order to study.
In relation to child support matters it is the father’s evidence that he was paying $30 per month in child support for [X]. The mother recently made an application for review of his child support obligations and he is now required to pay $316.25 per month. His evidence is that it has always been his intention to pay more child support once he is employed. He gave evidence that he is looking for a job and hopes to be successful in securing one in the short term.
Under cross-examination by counsel for the mother, the father conceded that his Centrelink benefit was garnisheed by the Child Support Agency in order to satisfy his child support obligations. He also conceded that he has not worked since the beginning of his relationship with the mother.
The father gave evidence that the cost of travel for him to visit [X] in the US would be approximately $2300 per time and that there would be accommodation costs on top of that.
In contrast he asserts that the maternal grandfather’s employment with [omitted] allows him to fly his family at substantially reduced costs. The father’s evidence is that he believes that the maternal grandparents have the financial resources to enable them to travel to Australia.
The father denies any need for supervision of his time with [X] and disputes that [X] would be at risk while spending time with him without supervision.
It is the father’s evidence that he sees no future in [X]’s relationship with him if the mother is permitted to relocate to the US.
He cites the practical difficulties and substantial expenses associated with any arrangement for [X] to spend time with him the US, and he gave evidence that the cost of visiting [X] in the US is beyond his means.
It is the father’s evidence that it is simply not possible for him to relocate to the US. It is possible that he will not be able to enter the United States if he has a criminal conviction, but even if he were able to live in the United States it is his evidence that he does not have the means to do so.
He gave evidence that he cannot study in the United States because he cannot meet the fees and that total fees at [omitted] University would be $37,856 per semester. It is his further evidence that if he were to relocate to the United States he would be separated from his mother, friends and other family in Australia.
It is the father’s evidence that he has moderated his use of alcohol and that he has been doing everything in his power to ensure that he provides the best care for [X]. He has been proactive in seeking out and attending parenting courses and gave evidence of five programs which he has attended.
The father gave evidence that enquiries directed to Centrelink as to potential payments to which the mother might be entitled revealed that she would be eligible for benefits in the sum of $1018.54 per fortnight plus child support and rental assistance were she to remain in Australia.
The father’s evidence is that he is prepared to pay half of all [X]’s expenses including gap medical, dental and educational expenses.
It is the father’s evidence that he has made enquiries as to available rental accommodation in Melbourne and that he believes the mother could acquire appropriate accommodation for between $210 and $265 per week.
The father gave evidence that the mother’s weekly expenses should she remain in Australia would be approximately $598 per week in his estimation. He believes that the mother would be able to meet these expenses from her Centrelink benefits.
The father’s position is that if the mother is permitted to relocate to the US, she should bring [X] to Australia on no less than three occasions per year for no less than two weeks at a time so that [X] can spend time with his father. The father would like to spend time with [X] for four days per week during these periods, and by the time [X] is two years old he would like him to be spending time on an overnight basis.
The father’s evidence is that while the mother and [X] are visiting Australia he would vacate his mother’s property in [suburb omitted] and live elsewhere during that period. He would provide the mother with his motor vehicle and with $100 per week to cover day-to-day costs such as food.
The father also wishes to be able to visit [X] in the United States for no less than three times per year, again for up to 2 weeks at a time. He further seeks Skype communication with [X] while he is in the United States.
The father expresses his fear that the mother would not comply with any court orders made for him to spend time with [X] once she has relocated to the United States. He is very concerned that the mother might move away from [I] and that he would never be able to find her.
The father believes that [X]’s interests are best served by the current arrangement whereby he ([X]) has “the benefit of a meaningful relationship with both of his parents”[9]. He believes that the orders he has sought will best provide for [X]’s needs and that those sought by the mother will deny [X] a meaningful relationship with him.
[9] The father’s second Affidavit paragraph 60
At trial, the father presented as an intelligent man who is very concerned to maintain the relationship he has developed with his son.
His demeanour in court from the beginning of the proceedings was agitated, distressed, erratic and uninhibited. While in the witness box the father bit his fingernails, tapped his fingers together and sometimes tapped his head and had tears in his eyes. While Dr K was giving evidence the father wept openly at the bar table.
There were two occasions during the proceedings, once during the interim proceedings on 11 June 2013 and another during the trial on 25 November 2013, when the paternal grandmother attempted to make contact with the father from the body of the court and he angrily waved his arm at her in a dismissive gesture.
While cross-examining witnesses the father was civil and polite and conducted himself in an entirely appropriate manner, although he did become a little irrational at times and it was difficult to understand the import of his questions.
When he gave evidence himself, his answers to questions were often similarly difficult to follow.
When counsel for the mother suggested that he suffered from morbid jealousy to “an insane degree” he conceded that that was the professional view of Dr E.
The father agreed with counsel for the mother that his jealousy was a long-standing problem and that it had not gone away. He then said the problem had been more severe in his relationship with the mother.
The father conceded that alcohol had played a significant part in the incidents of violence that had occurred during the relationship with the mother.
The father admitted when questioned that two previous partners had taken out intervention orders against him because of threatening and excessive behaviour.
In relation to the charge of breaching the current intervention order, the father admitted the he had pleaded guilty to that charge the week before the final hearing in these proceedings and that he had been placed on a good behaviour bond as a result.
Under further questioning the father admitted that he had lied to the United States immigration authorities when he had travelled to the United States in mid-2012 by stating that he did not have any criminal convictions when in fact he had been convicted in relation to forging a train ticket some 10 years ago.
He explained this lie by saying that the conviction had been recorded before he obtained an Australian passport in 2007, and he had reasoned that he therefore did not have to declare it. He also said that it would have been embarrassing for the mother had he been refused entry to the United States.
The father conceded that in his discussions with the Department of Human Services in early April 2013 he had told them only about problems that the mother had had in terms of her health and medication and of the one occasion where she punched him causing his lip to split. He conceded that he had not told them about any acts of violence he had perpetrated against the mother.
He had told DHS that he had witnessed the mother taking more than her prescribed medication and on one occasion that she had taken 14 anxiety tablets, but when questioned by Counsel he said he had not witnessed the mother doing so but that she had told him that she had done so.
The father conceded that he had been lying when he told DHS that he had not choked the mother on 3 March 2013 but had merely tried to get her to open her mouth as they were arguing.
In response to questioning by Counsel, the father said that he had spent approximately $100,000 in legal and supervision fees for these proceedings, and that his mother had provided those funds.
When asked to articulate his proposals for [X]’s future the father’s initial evidence was that he would like [X] to stay in Australia until he turns 18.
He then said that if the mother wished to return to the United States he would be happy to be a full-time father, but that at the “bare, absolute minimum” [X] should remain in Australia until he is able to recognise the father on a computer screen so that Skype communication might be maintained.
When further questioned as to what he would do if the Court were to make orders allowing him to visit [X] in the United States on three occasions per year, which is the mother’s proposal, the father responded that he would go to the United States once a year.
When asked why he would not defer his university studies and obtain a job so that he could visit [X] on three occasions per year the father responded that he did not know whether he would now be able to enter the country (that is the United States) given his criminal conviction for breaching the intervention order.
Dr K’s evidence was interposed during the father’s cross-examination and when he returned to the witness box, the father was keen to point out to the court that he respects Dr K very much and has always followed his advice, but that he was a little surprised at Dr K’s remarks about his lack of ability to change.
Counsel for the mother, referring to the report of Dr B, returned to an incident where the car had rolled backwards at the service station with [X] inside when the father had left the car during an argument with the mother. The father said that he could not be sure whether he had left the handbrake on or not and that it was possible that the car had been faulty.
He repeated that belief when counsel for the mother put to him that he was attempting to avoid responsibility for his actions. When pushed further on the point, he said, “I think I’m being honest and I think that if I just said ‘yes I admit, yes it was my fault, I very much regret this’, I think that I would be lying to this court”.
Counsel for the mother then suggested to him that he did not take responsibility for any of his actions and always blamed somebody or something else when things went wrong. She suggested that his view was that the problems in the relationship had been entirely the fault of the mother.
The father’s response was as follows:
I’m not quite sure. It wasn’t like this with my previous relationships, and I’m not saying it’s her fault, but something happened to me. Not her, to me, that I actually got extremely – you know, I just wanted to find out what she was doing and it was just – yes and that – that’s just – you know, that did not stop. Yes.
When taken as a whole, the father’s evidence is that the events and incidents set out in the mother’s evidence and the evidence of the maternal grandparents did take place, and that during the relationship and subsequent to separation he engaged in physical, emotional, financial and psychological behaviours that were inappropriate and unacceptable.
The paternal grandmother’s evidence
In her affidavit evidence the paternal grandmother supports the father’s evidence of his involvement with [X] in the period shortly after [X]’s birth and says that he and the mother assumed majority of [X]’s care at that time.
The paternal grandmother does not believe that it is necessary for the father’s time with [X] to be supervised, but she would be more than happy to be the supervisor should the court make an order for supervision. While she works full time, she would be available after 5.00 pm each week night and at any time during the weekend.
It is the paternal grandmother’s evidence that [X] knows his father and is always very happy to see him. [X] enjoys his time with his father and she believes it is in [X]’s best interest to spend more time with the father.
The paternal grandmother’s evidence is that she has the financial capacity to support her son and that she would be happy to have the mother live with her if she stays in Australia. Alternatively she would be happy for the mother to live in her [omitted] property while she and the father live in her [omitted] property. It is her evidence that she would not charge the mother rent for the first year so that she had time to set herself up in Australia.
The paternal grandmother expressed her fears that if the mother is permitted to relocate to the United States with [X], then [X] will never have a relationship with his father. It is her evidence that the father currently has no capacity to afford the significant expense of travel to the United States and she would only be able to assist him to a limited degree. She does not believe that the maternal family would encourage or facilitate a relationship between [X] and his father
At trial the paternal grandmother presented as a voluble, bright and emotively expressive woman who was fully supportive of her son.
Counsel for the mother referred her to the report of Ms T which mentions the time the father spent with [X] on 10 November 2013. The paternal grandmother confirmed Ms T’s note that she had been talking to the father in [language omitted]. She said that she had wanted to tell Ms T something but that the father had told her not to as Ms T was writing down all that was happening and was not there to socialise.
Under questioning from Counsel, the paternal grandmother said that her relationship with the father was more than that of a mother and son, that it had “become like two friends” as they had “grown up together”. She denied that her son told her what to do and explained that when she and her son had come to Australia they had faced issues of cultural customs and language together, which had made them very close.
She confirmed that she had mortgaged her house in order to pay for her son’s legal fees in these proceedings and that she had done that because her son had said that he wanted [X] to know his both father and his mother. She said she had told him that if he wanted her to do that then she would do so, but that later he would have to repay her the money. There was no time limit on that repayment. She said that she only had her son in her life and that even if he did not pay her back, he would inherit all her estate on her death so it did not matter.
Under further questioning about the fact that the father had entered the maternal grandparents’ bedroom while staying with them, the paternal grandmother first said that she was sorry that it had happened but then said the following:
Mr Uysal didn’t – my family give to Mr Uysal a lot. Like I spoilt him. I know that. This is not Mr Uysal’s mistake. This is my mistake. I accept that.
Under cross-examination about the father’s role in [X]’s life between his birth and the separation of his parents, the paternal grandmother insisted that the father had been a hands-on father, feeding [X] his bottle at night, and changing his nappy.
However when it was put to her that the father had not known how to heat a bottle during his supervised time with [X], the paternal grandmother admitted that it was she who had risen in the middle of the night and heated the bottle so that the father could feed [X] in the months prior to separation. She further admitted that when the father had attempted to prepare [X]’s bottle, he had heated it to boiling point and later allowed it to boil dry.
The paternal grandmother expressed confidence in her son’s ability to learn parenting skills and said that it was partly her job to ensure that he developed them.
Responding to further questions from Counsel, she said that she would travel to the United States as often as she could to see [X] were there to be an order permitting the mother to relocate.
She agreed with the father that he had taken her advice about not feeding [X] food from a jar when he had not checked the expiry date on the jar.
The father suggested to his mother that any arguments they had had while the supervisor was present were about the court proceedings and his desire not to involve his mother in them. He suggested to her that it was in this context that he had told her not to speak to Ms T and she replied: “Yes. And then I learned my lesson”.
The expert evidence
The expert evidence in this matter is found in five reports filed in the proceedings:
a. the report of Dr B attached to an affidavit sworn on 6 June 2013;
b. the family report of Dr W attached to an affidavit sworn 28 October 2013;
c. the psychiatric report of Dr E attached to an affidavit sworn on 2 October 2013;
d. the report of Ms R attached to an affidavit sworn 15 July 2013; and
e. the two reports of Ms T presented to the court by her at trial on 27 November 2013;
and in the oral evidence of Dr W, Dr K and Ms T. Neither Dr B, Dr E nor Ms R was called for cross-examination at trial.
The expert evidence is, in the words of Counsel for the mother in her closing submissions, “overwhelming”.
Dr B
Dr B is a specialist perinatal psychiatrist consulted by the parties before [X]’s birth, and in the few months afterwards, in relation to problems they were having in their relationship. Her report is unchallenged in these proceedings.
It is Dr B’s evidence that she was so concerned about the mental health of the mother that she continued to see the parties throughout the pregnancy and after [X]’s birth “in an attempt to keep her as well is possible and help them find a way of communicating that was less toxic than the manner in which they presented.
Dr B deposes that while the mother presents with some borderline personality traits, the symptoms were heightened in the setting of the stress, isolation and depression she had been experiencing, and she therefore did not think that she actually had a personality disorder.
In relation to the father she says the following at page 2 of her report:
(The father) presented as emotionally immature and with paranoid, obsessive and possibly narcissistic personality traits that included constantly questioning her, monitoring and following her and an inability to see this as inappropriate or that she might feel suffocated or angry as a result. Of note in his one other serious relationship he had similar behaviours. I considered he might also have a morbid jealousy and certainly his concerns bordered on delusional but I do not believe he was psychotic. He continued to do this in the sessions, reiterating that she just needed to be honest while clearly unable to accept any answers because he didn’t believe she was or would be.
Dr B further deposes that the father was idealistic and unrealistic about the relationship and that he was totally unable to see the world from the mother’s point of view, while the mother was capable of understanding the father when she was calm, and was able to engage meaningfully.
Dr B was particularly concerned that the father’s attempts to control the mother would result in an impulsive suicide or self-harm attempt, or her submitting to his requests, which she deposed was likely to lead to a serious depression.
The Family Report
The family report was prepared by Dr W, a clinical psychologist experienced in child development and family issues. Dr W gave oral evidence at trial and was questioned by both Counsel for the mother and the father himself.
It is Dr W’s evidence that the father presented as being very set and rigid in his view that the mother should remain residing in Australia with [X].
The Family report states that he appeared unable to empathise with the mother’s dilemma and Dr W had concerns about his ability to separate his own wants and needs from those of [X]. The father presented as being quite lacking in insight about his actions and behaviours generally and tended to minimise, excuse, and justify his actions in various ways without taking responsibility for them.
Dr W makes the point that the father had attended various and multiple courses to assist him in being able to take care of [X] and that he has been assisted by Ms T’s supervision sessions.
Her evidence is that despite this assistance, and the father’s repeated statements that he has changed, she has real concerns about his attitude towards women generally, as well as his basic understanding of what abuse is.
Dr W’s report says that it is clear that the father loves and cares for his son and that he is doing his best to become a better parent. However, she expresses her concern that he may be so used to thinking in terms of himself and his own needs that he may simply be incapable of focusing on [X]’s needs in an appropriate manner.
In relation to the mother’s presentation, Dr W says the following at paragraph 36 of her report:
Whilst I have no doubt that the mother played a role in the parties’ dysfunctional and seemingly abusive relationship; and whilst I have no doubt that her own actions have been somewhat troubling, immature, and reactive at times too; at the same time her account of events with respect to the alleged abuse seemed more credible and believable than the father’s, and the way she presented and what she said was consistent with having indeed been abused in the way she suggests; and this seems consistent with DHS involvement, and consistent with the father’s presentation, and with other reported information too.
Dr W then says that no matter what the findings of this Court might be in relation to each party’s behaviour during and after the relationship, it is clear that the mother is an extremely good mother. The mother was very positive and appropriate with [X] during the report interview and [X] was observed to be securely attached to her. In these circumstances Dr W has no concerns at all about the mother’s parenting skills.
Dr W’s observation showed that while [X] clearly knows his father and was happy enough to see him, there was what she called “this real flavour of disconnectedness, awkwardness, and an inability of him of being able to really read and understand what [X] needed and wanted; and it seemed more about his rigid views about what he thought [X] wanted than about him actually recognising [X]’s real cues”[10].
[10] Report of Dr W filed 28 October 2013, paragraph 54
Her further evidence is that the father’s interactions with [X] were awkward, that he was disjointed, rigid and mechanical with him, and seemed to be moving [X] around almost as though he were an inanimate object at times.
In contrast, Dr W’s report says that [X]’s relationship with his mother is very secure, positive and trusting. He looks to her for comfort and support and appears to be an extremely well-adjusted happy and contented child. Dr W could not fault the mother’s care in any way and deposes that she believes [X] is such a happy baby because of this positive and appropriate care.
I have already found that the father in this case engaged in what can only be called a regime of terror – a consistent and persistent pattern of sustained and serious physical, emotional and psychological family violence against the mother throughout the relationship.
I have also found that [X] was present on many occasions when the mother was subjected to that treatment and I note that that constitutes child abuse under s.4(1) of the Act.
This ground alone would be enough for the Court to find that the presumption is rebutted.
In addition, s.61DA(4) states:
S.61DA(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
For the reasons set out in paragraphs 350 to 413 of this judgment, I find that it is not in [X]’s best interests for his parents to have equal shared parental responsibility for him.
In those circumstances, and on the basis of the evidence before the court when taken as a whole, I find that the presumption of equal shared parental responsibility is rebutted under s.61DA(2)(b) and (4) of the Act and I will make an order that the mother have sole parental responsibility for [X].
The issue of with whom [X] will live and with whom he will spend time and communicate
The parties are agreed that [X] should live with his mother and I will make an order to that effect.
Section 65DAA says that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child then the court must consider whether it is in the child’s best interests to spend equal time or substantial and significant with each parent.
Had I intended to make an order for equal shared parental responsibility in favour of the parents, then s.65DAA would have required me to consider that issue. As I do not intend to make such an order, I am not bound to do so.
However, I will consider and assess the Application of the mother and the Response of the father in terms of which orders, if any, to make for [X] to spend time with his father.
Section 60CA of the Act states that in deciding whether to make any particular parenting order in relation to a child, a court must regard the best interests of the child as its paramount consideration. Therefore, in deciding whether to make an order for time to be spent between [X] and the father, I must consider [X]’s best interests as my primary concern.
Section 60CC sets out the matters the court must take into account when considering what order will be in the child’s best interests, and I will set out the relevant parts of that section here in full and evaluate the evidence against their provisions:
S.60CC(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections(2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The evidence in relation to the father’s personality disorder issues, his propensity to violence, his pathological jealousy and his controlling nature, together with the expert evidence in relation to whether he is likely to be able to change that behaviour, has led me to consider whether there is actually any real benefit to [X] in having any relationship with his father at all.
The issue raised by s.60CC(2)(a) is not one to be glossed over. Nor is it to be taken as a fait accompli that a meaningful relationship with a parent will automatically benefit a child.
The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518.
In that case, Her Honour was considering a situation where the mother of a child conceived during a casual relationship wished to relocate the residence of the child from one State to another. Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In the present case, given the father’s propensity to resort to violent behaviour when challenged, and his struggle with interpersonal relationships in general, it is somewhat difficult to see how a relationship with him would be “meaningful” to [X] (as defined by Brown J and Cronin J).
If the father were approaching the Court and seeking time with [X] in circumstances where he had not yet spent time with him, for instance in circumstances where the parties had separated before [X]’s birth, the evidence as set out above might well have led the court to decide that there was no benefit to [X] in establishing or continuing any relationship with the father at all.
However, in this case, there is evidence before the court that the father loves [X] dearly, that he is able, with assistance, to take care of his basic needs, and that [X] is comfortable and relaxed in his presence, at least at this stage of his development.
Given that evidence, and the evidence of the mother and maternal grandparents that they believe it is important for [X] to know who his father is, I find that there is some benefit to [X] in having a relationship with his father.
The second limb of s.60CC(2) is perhaps the major issue in this case.
The father’s propensity to resort to violence against the mother, both when [X] was present and indeed when he was in his mother’s arms, is highly likely to result in [X] suffering both physical and psychological harm from family violence.
The father’s obsessively jealous and controlling behaviour, which on all the evidence before the Court is unlikely to improve in the future, is another form of family violence from which [X] is likely to suffer emotional and psychological harm.
In addition, the overwhelming evidence of the need for the father to be supervised when [X] is in his care also leads me to believe that [X] is at risk of emotional and psychological harm in his care.
When weighing sub-section (a) of s.60CC (2) against sub-section (b), I am required by s.60CC (2A) to give greater weight to matters arising under sub-section (b) than to those arising under sub-section (a).
Therefore, my determination of what is in [X]’s best interests will be informed by the need to protect [X] from harm ahead of the benefit to him of a meaningful relationship with his father, and I will make orders that protect him from that harm as far as is possible.
Additional considerations
Section 60CC(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
[X] is only one year old and his wishes are therefore not known, although even if he were able to express them, they would not hold any weight because of his tender years.
Section 60CC(3) (b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
[X]’s relationship with his mother is an appropriately dependent one, again because of [X]’s age. She is and has always been his primary carer and the evidence before the Court, especially that of Dr W, is that she is a very sensible, capable, loving and protective mother.
[X]’s relationship with his father is also one of dependence, although the father has only spent time with [X] while supervised by a third party, and there is significant evidence that he is unable to “read” [X] well, or to anticipate his needs.
Nevertheless, [X] appears to be comfortable in his father’s care and to enjoy the time he spends with him.
What is clear from the evidence is that both parents love [X] very much and both say they only want what is best for him.
There is also evidence before the court that [X] has a strong and loving relationship with his maternal grandparents, at least one of whom has been a major presence in his life since he was less than a month old. It is the maternal grandparents with whom [X] would live, at least until his mother finds work as a [omitted], should she be permitted to return to the United States.
[X] also has a close relationship with his paternal grandmother, with whom he lived for the first few months of his life and with whom he has had regular contact since separation. However, there is some evidence that the paternal grandmother’s views of the father’s behaviour mean that she might find it difficult to put [X]’s needs ahead of his father’s wishes should those two things not coincide.
Section 60CC(3) (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
The mother, as [X]’s everyday carer, has taken every opportunity to participate in decisions about his care, both short and long term. She has asked this Court to allow her to make all major long term decisions in relation to [X] and I have already found that such an order is appropriate.
She has also taken every opportunity to spend time and communicate with [X].
The father too has taken every opportunity to be involved in decision-making about [X]’s welfare, at times however not to [X]’s benefit, such as in situations where he believed that he knew better than both the mother and [X]’s doctors as to what was best for [X].
The father has taken every available opportunity to spend time and communicate with [X] and to extend that involvement whenever possible.
Section 60CC(3) (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother has maintained [X] with the assistance of a Special Benefit from Centrelink and with further assistance from her parents.
The father has historically paid child support for [X] at the minimal rate, although he gave evidence at trial that the mother had sought a review of his liability and that it had increased considerably. He did not say, nor did the mother, whether he was actually paying the increased amount.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother seeks orders that she be permitted to relocate to the United States with [X]. That is a major change in circumstances and would involve [X] being separated from both the father and the paternal grandmother.
That separation cannot help but have an effect on the depth and quality of those relationships.
However, should the Court not make an order allowing the mother to relocate to the US, [X] would be separated from his maternal grandparents and other extended maternal family members.
While it is true that the father and paternal grandmother and the maternal grandparents are all able to travel in order to spend time with and develop their relationships with [X], I find on balance, that it is more probable that [X] will spend some time with the father and the paternal grandmother if the mother is permitted to relocate than it is that [X] will spend time with other members of the mother’s family if she is not.
Section 60CC(3) (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If the mother is permitted to relocate to the US there will inevitably be practical difficulties and significant expense involved in [X] being able to maintain personal relations and direct contact with both parents on a regular basis.
The father, who is a student, would have to find significant time and funds to travel to the United States several times per year, while the mother, who also proposes to study in the US for the next few years, would also have to find time and funds to travel to Australia. Both parties would need to find accommodation at some cost during those visits.
If the mother is not permitted to relocate to the US, there will be significant practical difficulty and expense for her in remaining in Australia so that the father can spend time with [X]. It is clear that that is the only reason for her to stay here. She is a permanent resident now, but I am satisfied that she cannot access the Higher Education Contribution Scheme system. That means she cannot afford to study in this country, and she has no real practical qualifications in any profession or trade. It is likely that she would be dependent on Centrelink benefits, at least until she became an Australian citizen (if indeed that were what she wished to do).
There is no easy answer to those difficulties but on balance, I believe that the practical difficulties and expense for the mother in remaining in Australia outweigh those of the father if she is permitted to relocate. Those difficulties, and her possible psychiatric difficulties if forced to remain are likely to have a detrimental effect on [X]’s ability to have a relationship with both parents.
Section 60CC(3) (f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
This is a vital consideration in this case.
The evidence shows that, despite the mother’s emotional /psychological fragility, she is an insightful and relatively mature young woman who is able to care for [X]’s material, intellectual, emotional and psychological needs.
However, the evidence before the court is that the father, while being able to care for [X]’s basic material needs with some assistance, and who no doubt can provide for his intellectual needs, has no insight into the complexity of his emotional and psychological needs.
Further, the evidence shows clearly that he is unlikely to be able to change his behaviour or adapt his own emotional and psychological responses to accommodate [X]’s needs where they are different from his own.
Indeed, in my view the evidence shows that the father’s personality traits and behaviour patterns may be actively detrimental to [X]’s emotional and psychological wellbeing.
Section 60CC(3) (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[X] is one year old and his maturity, or lack thereof, is a significant factor in this case. He is fully dependent on his mother and will be so for some time to come. That is a very relevant factor in this case.
I do not believe that his sex is a significant factor at this time in [X]’s life.
The maturity of the mother, who is 24 years old, has been shown in her ability first to finally leave what was a violent and abusive relationship, and second in her devotion to [X]’s care and welfare throughout his life.
In addition, she has behaved in a responsible fashion since finally leaving the relationship in late March 2013. She could have left Australia with [X] at that time and with no reference to the father, but chose to remain and seek the Court’s imprimatur for her proposals. She is to be commended for that.
The father, on the other hand, behaves in an immature and almost totally self-referenced manner, and the evidence before me gives me no confidence that he is able to change his behaviour. He has demonstrated that behaviour both in his written and oral evidence and in his behaviour during the proceedings.
There is another issue covered by this subsection that I do take into account as a matter of significance, and that is [X]’s [omitted] heritage.
It is important for [X] to know who his father is and where he comes from, and that includes that his paternal family came from [omitted] and that they are now Australians. It would be beneficial for him to know something about [omitted] and Australian culture and customs, and it is highly unlikely that he will learn those things without some input from his father.
Section 60CC(3) (h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in this case.
Section 60CC(3) (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s attitude to [X] can be seen in her care of him as set out in her Affidavit material and in Dr W’s report, and her attitude to her parental responsibilities can be seen in that evidence, and in her decision to stay in Australia to seek Court approval for her wish to relocate rather than simply removing [X] from the jurisdiction of the Court.
In contrast, while there is evidence that the father cares about [X] in a general sense, and even that he loves him in his own terms, the father’s willingness to commit assaults upon and to emotionally abuse the mother in [X]’s presence shows an attitude to [X] that is simply thoughtless in every sense of that word.
He asserts that he loves [X] and cares for his welfare, but is entirely unable to see that his behaviour towards [X]’s mother contradicts that assertion.
He pays child support at the minimal rate and while he has said several times that he is willing to find a job, and intends to do so in the near future to that he can better support [X], he had not done so at the time of trial and there was no evidence adduced as to his attempts to do so.
Section 60CC(3) (j) any family violence involving the child or a member of the child's family;
I have already made findings about and discussed this issue in these reasons and do not intend to repeat that material here.
Section 60CC(3) (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The Applicant for the intervention order currently in existence was a police officer, who made the Application after the events of 3 March 2013. I see those circumstances as being highly relevant to the nature of the order.
The order was made in circumstances where after receiving legal advice, the father consented to the order being made without making any admissions as to the allegations in the Application. There was therefore neither any sworn evidence adduced at a final hearing of those proceedings, nor any findings made.
However, findings of family violence have been made in these proceedings.
I take the fact that the father has admitted to facts in these proceedings which may constitute multiple breaches of the intervention order, and that he has been found guilty of one such breach after a plea of guilty, as a very important factor in considering orders that are in [X]’s best interests.
It is clear from those proceedings that the father has little respect for either the law or the courts.
Section 60CC(3) (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
If the father accepts the orders I propose to make, it is unlikely that any further proceedings will ensue.
Section 60CC(3) (m) any other fact or circumstance that the court thinks is relevant.
The evidence as a whole, as set out in these reasons, leads me to believe that it is in [X]’s best interests to allow the mother to relocate his place of residence to the United States, or indeed to any other country of her choosing.
The further evidence I take into account in making that decision is the evidence of the mother’s psychological vulnerability as set out in the evidence of Dr E, Dr W and Ms R. The mother is [X]’s primary carer and her emotional and psychological wellbeing is a very important factor in considering orders that are in [X]’s best interests.
All of that evidence leads to a finding that the mother’s emotional health is likely to suffer if she is forced to remain in Australia, thus having a negative impact on her ability to care for [X].
There is one further matter I propose to address in this case. The father’s impulsive nature, evidenced by, among other things, his dashes to Melbourne Airport to confront the mother when he believed she was attempting to leave Australia, leads me to have little confidence that unless restrained, he will refrain from doing so again. If he were to discover exactly when the mother intends to leave Australia in accordance with these orders, I have no confidence that he might not attend at the airport and make the departure extremely difficult both for [X] and the mother.
I will therefore make an order that he not attend at any Australian Airport or other place of international departure from the Commonwealth within 60 days of the date of these orders.
Conclusion
For all the reasons set out herein, I make the orders set out at the beginning of this judgment.
I certify that the preceding four hundred and sixteen (416) paragraphs are a true copy of the reasons for judgment of Judge Small
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Jurisdiction
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Appeal
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