MARTELL & DEVIN

[2020] FamCA 984

FAMILY COURT OF AUSTRALIA

MARTELL & DEVIN [2020] FamCA 984

FAMILY LAW – PARENTING – INTERNATIONAL RELOCATION – Whether the children should remain living in Australia with the applicant father or relocate to the United States of America with the respondent mother – Where for all practical purposes the father cannot enter the United States of America and the mother cannot live in Australia in the short to medium term – Best interests of the children – Consideration of the relevant matters raised by s 60CC of the Family Law Act 1975 (Cth) – No risk of harm – Drug and alcohol use of the parties and their ability to care for the children – Enforceability of the orders in the United States of America – Recognition time – Where the children are to live with the mother – Where the mother is at liberty to relocate to the United States of America with the children – Orders made for the children to spend time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION IN A CASE – Leave to re-open the proceedings to adduce further evidence – Best interests – Interests of justice – Where it was in the best interests of the children to offer each party the opportunity to rely on evidence that they considered to be important – Leave granted.

Family Law Act 1975 (Cth) ss 60CC, 61B

Uniform Child-Custody Jurisdiction and Enforcement Act, 31 Haw Rev Stat § 583A

Hague Convention on the Civil Aspects of International Child Abduction

Hall & Hall (1979) FLC 90-713

APPLICANT: Mr Martell

RESPONDENT: Ms Devin

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: SYC 5520 of 2019

DATE DELIVERED: 26 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 21–25 September 2020, 28 September 2020, 2 October 2020, 11 November 2020 (via video link) and 13 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies SC

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Dart
(21–25 September 2020, 28 September 2020 and 2 October 2020)

Ms Messner (11 November 2020 and 13 November 2020)

SOLICITOR FOR THE RESPONDENT: Bazaliza Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. All existing parenting orders are discharged, save for Orders 1, 2, 4 and 6 made on 2 October 2020 which are discharged on and from 1 January 2021.

2. On and from 1 January 2021, X born on … 2017 and Y born on … 2018 (collectively, “the children”) live with the respondent mother.

3. On and from 1 January 2021, the mother is at liberty to relocate the children to District B, State C, in the United States of America (“the United States”), subject to Ms D living with the mother for 12 months.

4. The mother have sole parental responsibility for the children.

5. The children spend time and communicate with the applicant father as agreed between the parties and failing agreement as follows:

   (a)On two occasions per year in Australia with the costs of such travel to be solely met by the mother as follows:

   (i)During the State C summer school holiday period each year (being the school holidays that run from around late May to early August each year) as follows:

   A.Until 2024, for a minimum of two weeks;

   B.From 2024 until 2027, for a minimum of three weeks;

   C.From 2027, for a minimum of four weeks; and

   (ii)For a minimum of two weeks in December/ January each alternate year commencing 2021, such period to include Christmas Day; or

   (iii)For a minimum of one week during the State C spring break school holiday period in March each alternate year, commencing 2022.

   (b)If the father is unable to enter the United States, the mother is to facilitate the children travelling to Australia, or such other country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction as agreed between the parties in writing, on an additional two occasions each year, for a minimum of one week on each occasion, during the State C fall break in October.

   (i)In this event, the father is to meet the cost of the children and the mother travelling to Australia, or such other country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction as agreed between the parties in writing, and back to State C, by depositing on each occasion the sum of $7,000US in a bank account nominated by the mother in writing from time to time no less than 60 days before the date that the mother and the children are due to depart from State C NOTING THAT there is no obligation on the mother to travel with the children if such payment is not made.

   (c)Or alternatively, if the father is able to enter the United States:

   (i)For no less than two visits per year in State C (or such other location in the United States as may be agreed in advance between the parties in writing) for up to two weeks on each occasion; and

   (ii)For up to 12 weekends per year in District B, State C, in the United States.

6. The costs of the travel of the children, the mother and the father is otherwise to be at the father’s expense.

7. Changeover for the time provided in Sydney shall occur at Woolworths, Suburb E at F Street, Suburb E.

8. For the purpose of the visits to Australia, as provided for in Order 5(a):

   (a)The mother is to notify the father not less than 90 days in advance of the dates that she proposes the children be in Australia and the times and dates of changeover;

   (b)The father is to confirm within 14 days thereafter that he will be in Australia during such periods and available to spend time with the children;

   (c)The mother shall not unreasonably refuse any reasonable request by the father to vary the proposed dates;

   (d)The mother is to be solely responsible for the cost of her flights and her accommodation whilst in Australia;

   (e)Where the mother accompanies the children to and from Australia, changeover shall occur at the changeover location provided in Order 7 on the dates and times nominated by the mother in accordance with Order 8(a);

   (f)Unless otherwise agreed, the mother is to accompany the children on the flight to and from Australia until she deems that the children are at a suitable age and maturity to fly as unaccompanied minors NOTING THAT this will not occur before both children attain the age of 13;

   (g)In the event that the children fly as unaccompanied minors:

   (i)The mother is to give the father no less than seven days written notice, such notice to include all relevant flight details;

   (ii)The father shall collect the children from Sydney Airport at the commencement of time and return the children to Sydney Airport at the conclusion of time.

9. For the purpose of the visits to such other country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction, as provided for in Order 5(b):

   (a)The mother is to notify the father not less than 90 days in advance of the dates that she proposes the children be in the agreed place and the location, times and dates of changeover;

   (b)The father is to confirm within 14 days thereafter that he will be in the agreed place during such periods and available to spend time with the children;

   (c)The mother shall not unreasonably refuse any reasonable request by the father to vary the proposed dates or location;

   (d)The mother is to be solely responsible for the cost of her accommodation whilst in the agreed place;

   (e)Where the mother accompanies the children to and from the agreed place, changeover shall occur at the changeover location on the dates and times nominated by the mother in accordance with Order 9(a);

   (f)Unless otherwise agreed, the mother is to accompany the children on the flight to and from the agreed place until she deems that the children are at a suitable age and maturity to fly as unaccompanied minors NOTING THAT this will not occur before both children attain the age of 13;

   (g)In the event that the children fly as unaccompanied minors:

   (i)The mother is to give the father no less than seven days written notice, such notice to include all relevant flight details;

   (ii)The father shall collect the children from the airport at the agreed place at the commencement of time and return the children to the airport at the agreed place at the conclusion of time.

10. For the purpose of the visits to the United States, as provided for in Order 5(c)(i):

    (a)The father is to provide the mother with a minimum of 60 days written notice of the dates that he intends to travel to the United States to spend time with the children, such notice to include confirmation as to where in the United States he intends to spend time with the children PROVIDED THAT if such time coincides with when the children are required to attend school, such time (or so much of it that falls within the school semester), is to occur in District B and the father is to ensure that the children attend school each day that they are required to unless otherwise agreed in advance with the mother;

    (b)If the father intends to spend time with the children, other than in State C, and provided that such time is to occur in the United States, he is to notify the mother of the location where he intends to travel with the children at the time that he provides notice in accordance with Order 10(a) and the mother is to not unreasonably refuse for time to occur at such location;

    (c)The mother is to confirm within seven days thereafter that the children are available on the proposed dates, and if not, state the reason and propose alternative dates within a proximate timeframe;

    (d)No less than 14 days prior to the visit commencing, the father shall advise the mother in writing:

    (i)Where the children will be staying whilst with the father, including the details of any hotel or the address of any rental accommodation; and

    (ii)The means by which the children can be contacted during such period.

    (e)Should the father intend spending time with the children in District G or elsewhere in the United States (being a location other than Location B), changeover shall occur at City J Airport at the commencement and conclusion of time, with the father to cover the costs of the children's return flights from District B to City J by depositing such funds into a bank account nominated by the mother within seven days of the mother providing to the father the receipt of the children’s flight itinerary showing the cost of such flights;

    (f)Should the father intend on spending time with the children in District B, the mother shall deliver the children to the father’s accommodation at the commencement of time and collect the children from such location at the conclusion of  time.

11. For the purpose of weekend visits in District B, as provided for in Order 5(c)(ii):

    (a)The father is to provide the mother with a minimum of 14 days written notice of the weekends that he proposes to spend with the children, and unless otherwise agreed, such time to not include:

    (i)Christmas Day in 2022 and each alternate year thereafter;

    (ii)Mother’s Day; and

    (iii)Thanksgiving.

    (b)The mother is to confirm within 48 hours thereafter that the children are available on the proposed dates, and if not, state the reason and propose alternative dates within a proximate timeframe;

    (c)No less than three days prior to the visit commencing, the father shall advise the mother in writing where the children will be staying whilst with the father, including the details of any hotel or the address of any rental accommodation;

    (d)The mother shall deliver the children to the father’s accommodation at the commencement of time and collect the children from such location at the conclusion of time;

    (e)Unless otherwise agreed, weekend time is taken to commence on Friday and conclude on Monday PROVIDED THAT the father ensures that the children attend school on any Friday or Monday that they are required to attend.

12. The mother shall facilitate FaceTime, Skype, Zoom or other agreed electronic communication between the children and the father as agreed between the parties at 6.00 pm in the time zone where the children are located as agreed and failing agreement as follows:

    (a)Each Sunday and Wednesday at 6.00 pm in the time zone where the children are located;

    (b)Each of the children’s birthdays;

    (c)The father’s birthday;

    (d)Father’s Day; and

    (e)Ms H’s (“the paternal grandmother) birthday.

13. On occasions that the father is spending time with the children, the father shall facilitate FaceTime, Skype, Zoom or other agreed electronic communication between the children and the mother as agreed between the parties but failing agreement, each Sunday and Wednesday at 6.00 pm in the time zone where the children are located.

14. The mother and the father are each hereby restrained from denigrating the other parent or members of the respective extended family in the presence or hearing of the children.

15. The father shall be restrained from spending time with the children in a country that is not part of the Hague Convention on the Civil Aspects of International Child Abduction unless there is written prior agreement from the mother.

16. The mother shall not use illicit substances or consuming alcohol 72 hours prior to and whilst the children are living with the mother.

17. The father shall not use illicit substances or consuming alcohol 72 hours prior to and whilst the children are spending time with the father.

18. The mother shall attend upon Ms K, or such other psychiatrist, and psychologist, as recommended by Dr L at a frequency and for a duration as recommended by her treating psychiatrist/ psychologist and is to:

    (a)Provide a copy of Dr L’s report dated 3 August 2020 and the reasons for judgment in these proceedings to her treating psychiatrist/ psychologist;

    (b)Comply with all treatment/ medication recommended by her psychologist and psychiatrist;

    (c)Instruct her treating psychiatrist/ psychologist/ to advise the father as soon as practicable if the mother is not attending/ complying with treatment recommended by her psychiatrist/ psychologist and/or any attempt of self-harm or hospitalisation of the mother;

    (d)Within 48 hours of receipt thereof provide to her psychiatrist/ psychologist, her CDT and hair follicle test results as per Orders 24 and 25; and

    (e)Forthwith authorise her nominated treating general medical practitioner to consult with her treating psychiatrist/ psychologist as to prescriptions and presentations for mental health and drug and alcohol related matters.

19. The father shall continue to attend upon the M Program and Mr N at a frequency and for a duration as recommended by his treating psychologist and is to:

    (a)Provide a copy of Dr L’s report dated 3 August 2020 and the reasons for judgment in these proceedings to the M Program and Mr N;

    (b)Comply with all treatment as recommended by the M Program and Mr N;

    (c)Instruct the M Program and Mr N to advise the mother as soon as practicable if the father is not attending/ complying with treatment recommended by the M Program and Mr N;

    (d)Within 48 hours of receipt thereof provide to the M Program and Mr N, his CDT and hair follicle test results as per Orders 24 and 25;

    (e)Forthwith authorise his nominated treating general medical practitioner to consult with Mr N as to prescriptions for mental health and drug and alcohol related matters.

20. The mother shall advise the father promptly of the following:

    (a)Names and contact details and appointment times for the children to attend upon an occupational therapist;

    (b)Names and contact details and appointment times for the children to attend upon a speech therapist;

    (c)Names and contact details and appointment times for the children to attend upon a paediatrician.

21. The mother will provide to the occupational therapist all records, including reports and material produced under subpoena, that pertain to the children as to their treatment with Ms P and confirm with the father as soon as practicable thereafter that these documents have been provided to the nominated occupational therapist.

22. The mother will provide to the speech therapist all records, including reports and material produced under subpoena, as they pertain to the children as to their treatment with Ms O and confirm with the father as soon as practicable thereafter that these documents have been provided to the nominated speech therapist.

23. The mother will provide to the paediatrician all medical reports, including speech therapist, occupational therapist and paediatric records (including reports, affidavits and material produced under subpoena, and the report of Dr L dated 3 August 2020), and confirm with the father as soon as practicable thereafter that these documents have been provided to the nominated paediatrician.

24. The mother and the father shall each undertake Carbohydrate Deficient Transferrin (CDT) testing every four weeks and provide a copy of the results to the other party until such time as each party has provided CDT test results that show two per cent for a continuous period of no less than 12 months with the first test to be undertaken within 48 hours of these orders being made.

25. The mother and the father shall each undertake hair follicle testing (that analyses the hair for the preceding 12 week period and complies with ISO/IEC 17025:2005 Standards) for the following substances with the first test to be undertaken within 48 hours of these orders being made:

    (a)       Cannabinoids;

    (b)       Opiates;

    (c)       Amphetamines;

    (d)       Methamphetamine;

    (e)       Benzoids; and

    (f)        Alcohol.

    every 12 weeks and provide a copy of the hair follicle test results to the other party until such time as each party has provided results that cover a 12 month consecutive period that show that the mother and the father have not consumed any illicit substances or drugs not prescribed to him or her.

26. The Australian Federal Police remove the names of the children, X born on … 2017 and Y born on … 2018, from the Family Law Watchlist in force at all points of arrival on and from 1 January 2021.

27. The mother and the father are to do all acts and things and sign all documents necessary to ensure that the children always have Australian and United States passports, with not less than six months validity at the time of any proposed travel, with the father to meet the costs in respect of the children’s Australian passports and the mother to meet the costs of the children’s United States passports.

28. The mother shall retain the children’s passports.

29. The mother shall take all reasonable steps to register these orders in the Family Court of State C and shall file an affidavit confirming such registration on or before 31 December 2020.

Notation

1. For the purposes of any proceedings to enforce these orders in the United States, it is noted that:

   (a)“Parental responsibility” as provided for in these orders is defined by s 61B of the Family Law Act 1975 (Cth) as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children and is concerned with major long-term decision making for children. It is the Australian equivalent of an order for legal custody;

   (b)The orders made above in relation to the children’s “live with” arrangements are the Australian equivalent of an order for physical custody;

   (c)The orders made above in relation to the children’s “spend time” arrangements are the Australian equivalent of an order for visitation.

1. Where these orders provide for notice or agreement to be in writing, the sending of an electronic communication to the other parent is sufficient to discharge that obligation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5520 of 2019

Mr Martell

Applicant

And

Ms Devin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the parenting arrangements for two young children, X (“X”) born on … 2017 and Y (“Y”) born on … 2018 (collectively, “the children”).

2. At the time of the hearing, the children were living with Mr Martell (“the father”) and spending time with Ms Devin (“the mother”).

3. The father’s application is that the children remain living with him in Sydney. The mother’s proposal is that the children live with her in Suburb Q, District B, State C.

4. The particular difficulty that arises in this case is that whatever option is chosen, it will be very difficult for the children to have a meaningful relationship with the parent with whom they do not live. This is because the evidence establishes that, for all practical purposes, the mother will not be able to live in Australia permanently in the short to medium term and will be limited to visiting on a visitor visa. It is likely that the father will never be permitted to enter the United States of America (“the United States”) for any reason. The outcome of the proceedings will therefore have an enormous effect on the future of the children because, in either event, they will have limited contact with one of their parents.

5. The father’s proposed orders are somewhat confusing and alternatives are posed depending on whether or not a finding is made that the mother poses an unacceptable risk of harm to the children. If the mother is found not to pose such a risk and the children remaining living with the father in Sydney, the father proposed that he and the children reside with Ms H (“the paternal grandmother”) for not less than three years and that the children spend time with the mother in Sydney, for example when X commences primary school, for six consecutive nights during each school term, increasing by one night in each school term that she exercises her time, for up to a maximum of 14 nights. Once Y starts primary school, the father proposed that the mother’s time with the children, or part of it, could be spent in State C. The proposed orders require the father to contribute to the mother’s and/or the children’s costs of flights in the sum of up to $6,000 per year.

6. To ameliorate that difficulty, the mother ultimately proposed that if the children live with her in State C and the father is not permitted to enter the United States, she will bring the children to Australia four times per year, increasing to up to a total of eight weeks from 2027. She proposed to pay the costs of two of those trips, with the father to bear the costs of the others.

7. Each party also suggested a raft of consequential orders which ultimately were not the subject of any controversy and it is not necessary to set out the detail at this stage.

8. At the end of the hearing, the Independent Children’s Lawyer proposed that the children live with the mother in State C and spend time with the father six times per year for 14 nights on each occasion, with the time to occur in Australia on three occasions, and in State C (in the unlikely event that the father could obtain a visa) or another agreed country provided that it had acceded to the Hague Convention on the Civil Aspects of International Child Abduction on the other three occasions. The Independent Children’s Lawyer proposed that the parties be equally liable for the costs associated with the children’s travel.

9. Such orders reflect the difficulty of young children travelling, as well as settling into school and having appropriate holiday time with their friends and family with whom they live. Nonetheless, it is precious little time for children of tender years to spend with the parent with whom they do not live and it is difficult to see how any of the proposed orders can facilitate a meaningful relationship with the parent with whom they do not live. Dr L, the single expert psychiatrist, observed, without challenge, that such time would amount to no more than recognition time.

10. Thus, the task before the Court is a most difficult one as each of the parties’ proposals has the effect that the children’s relationship with one of their parents, will, most likely, be very diminished.

11. The outcome must be determined by what is in the best interests of the children having regard to the matters raised by s 60CC of the Family Law Act 1975 (Cth) (“the Act”). That, of course, involves predictions as to what is likely to be in the best interests of the children, as seen in the light of what has happened in the past, as well as the present circumstances. The fact that a possible relocation of the children to another country is involved does not alter those fundamental principles.

12. The position is further complicated by concerns that are raised as to the mental health and drug and alcohol use of each of the parties.

13. Much of the evidence focused on the parties’ drug and alcohol use and the effect of it upon their relationship and themselves during the period of their relationship. Therefore, after some brief background, it will be convenient to deal with that issue first. I shall then turn to what I see as the more important issues, which are the present mental health and drug and alcohol use of the parties and their ability to care and provide for the children both physically and emotionally. Thereafter, I will turn to the particular needs of the children and their care, followed by a consideration of the matters raised by s 60CC of the Act.

14. The matter was heard on 21 to 25 September 2020 and 2 October 2020, and judgment was reserved.

15. On 11 November 2020, I acceded to the father’s request to re-open the proceedings so as to permit him to call evidence as to the provenance of Y’s birth certificate, a copy of which the mother provided to the father on 23 October 2020. The suggestion is that the mother took this document from the father’s locker at his work place in Country R (as will be described below), and when she was cross-examined about it, she denied that she had done so. Whilst this might not appear to be the most significant issue in the proceedings, I considered that the interests of justice permitted the re-opening of the proceedings because, on a finely balanced case, it was in the best interests of the children to offer each party the opportunity to rely on evidence which they considered to be important. The mother filed affidavits in response and was cross-examined on 13 November 2020. I shall deal with this evidence and the submissions that flowed from it in due course.

Brief background

1. The mother was born on … 1981 in the United States and is a citizen of that country. She does not hold Australian citizenship.

2. The mother married Mr S in … 2007, and on … 2008, they had a child, T. A second child, V, was born on … 2010, tragically with triploid syndrome, and he died two days later. Dr L was of the view that the mother almost certainly suffered from post-natal depression after the birth of V.

3. The family then moved to State C but the devastation of the loss of V was too much for Mr S and the mother to bear and they separated, although they remained in close contact, with each parent seeing T regularly. The mother told Dr L that, at this time, she was prescribed Xanax, which she said was too strong, and Bupropion.

4. There is no evidence, other than the father’s assertions, to suggest that up until this time the mother had any particular problem with alcohol or drugs. The father’s evidence was that the mother had told him that she had been admitted to rehabilitation in 2007 but the mother and Ms D (“the maternal grandmother”) denied any knowledge of this. The father also said that he had been told this by Mr S. When Mr S was questioned about this, he said that it was in fact the father who had told him and not vice versa. Taking these matters together, it is more likely than not that the mother did not enter rehabilitation in 2007.

5. The father was born on … 1982 and is an Australian citizen.

6. The father met the mother in State C in October 2015 and almost immediately they formed a relationship. Over the next year, the father, for the most part, lived in Sydney and the mother travelled between State C and Sydney on a two week on/ two week off arrangement.

7. The parties decided to live together in State C, either permanently or to see how the relationship would go (the parties’ evidence differed on this but the point is not material) and to that end, the mother arranged for larger accommodation for them in District B. On 2 November 2016, the father arrived in City J where he was refused entry into the United States and returned to Australia. The mother followed the father to Australia and later returned to State C.

8. On 1 December 2016, the father told the mother that the relationship was over. Six days later, on 7 December 2016, the mother informed the father that she was pregnant with X. Thereafter, the parties’ relationship was rekindled and in June 2017, the mother moved to live with the father in City U, Country W.

9. X was born on … 2017.

10. The mother travelled to State C to see T in October 2017, March 2018 and May 2019. In May 2018, the mother travelled to City Z for her grandmother’s funeral. On the latter three occasions, X and/or Y remained in City U in the care of the father and Ms AA, the children’s nanny in City U.

11. Y was born on … 2018.

12. In April 2019, the parties moved to Country R.

13. The parties separated in Country R in July 2019.

14. The father brought the children to Australia on 16 August 2019 with the mother arriving in Australia on 2 September 2019.

15. The father commenced proceedings in the Family Court of Australia on 20 August 2019.

16. On 18 September 2019, interim orders were made by consent, placing the children on the Family Law Watchlist and providing for the children to live with the father and spend supervised time with the mother twice per week for three hours each time. Both parties were directed to undergo random urinalysis drug screen testing. A further order was made on 26 November 2019 requiring the parties to undergo random Carbohydrate Deficient Transferrin (“CDT”) testing, which is a blood test for the purpose of detecting alcohol use.

17. On 27 September 2019, the mother started spending time with children, which was supervised by BB Contact Service (“the supervision service”). The cost of the supervision service was met by the paternal grandmother. The paternal grandmother ceased paying for one of the two supervised visits with the mother per week on 23 April 2020, and the mother became responsible for the payment of the second supervised visit. This caused some difficulty because the mother was in Australia on a visitor visa which did not permit her to work. She supported herself through the generosity of friends and relatives. Thus, the mother’s supervised visits were reduced to once per week until June 2020 when she commenced paying for the second supervised visit with money provided to her by the maternal grandmother.

18. Dr L’s report dated 3 August 2020 was released to the parties on 10 August 2020. It suggested that there was no basis for supervision of the children’s time with the mother.

19. As a result, the father cancelled the supervision service, without notice to the mother, and had his lawyers write to the mother’s lawyers about a proposal for unsupervised time. The father’s first proposal was entirely unrealistic, as he must have known. For example, it required the mother to have “access to an appropriate/safe motor vehicle with appropriate car seats” (Exhibit 13, p.125). She did not have any car and could not afford to obtain the use of one.

20. After some to and fro, an agreement was reached between the parties and the children started seeing the mother without supervision on 25 August 2020. Interim consent orders to that effect followed on 31 August 2020. Overnight time between the children and the mother commenced on 11 September 2020.

21. In the course of her oral evidence on 28 September 2020, Dr L opined that it would be in the best interests of the children for them to spend equal time with each parent in the event that they were to ultimately live with the mother in State C. This would assist to accustom them to live with her and develop their relationship in preparation for any move. Alternatively, she said that the same arrangement should apply if the children were to remain in Australia with the father, so as to build a relationship with the mother and the children to give more meaning to the times that she would return to spend time with them.

22. Interim consent orders to that effect were made on 2 October 2020.

The parties’ relationship and its termination

1. The parties’ relationship was marked by regular and frequent use of alcohol, cocaine and a variety of prescription drugs. In their evidence, each of the parties sought to, some degree or other, suggest that the other party was more responsible for encouraging the use of those substances and used them more than they did. There is nothing to be gained by trying to determine whether either of those assertions are correct.

2. A good indication of the nature of the relationship can be deduced from the material upon which the father was refused entry into the United States in November 2016. The formal finding was that the relevant immigration officer came to view that the father was “an intending immigrant” who was “not in possession of an immigrant visa” (Exhibit 13, p.256). However, in the course of this questioning, the immigration officer looked at the text messages on the father’s mobile phone. The typed record of the father’s interview records the following:

   …

   Q: Another text message discovered between you and [the mother] talks about how she secured you guys some “Rack” at $100 per gram. In that same text message you say that in Sydney a bag has less than a gram probably .8 or something. What are you referring to when you use the term “rack”?

   A: I can’t remember exactly what we were talking about.

   Q: A continuation of that same text message shows [the mother] telling you an 8 ball is 250 here which is 3.5 I think and you reply that sounds epic lets get one of those. Did [the mother] purchase cocaine for both of you?

   A: I think that is taken completely out of context.

   …

   (Exhibit 13, p.256) (As per the original)

3. That exchange shows both the mother and the father to be excited about the acquisition of cocaine for their use (“8 ball” and “rack” are references to that drug).

4. The use of cocaine and alcohol, and indeed their effects, are often referred to by both parties in the Facebook messages that they sent to each other during their relationship, which are outlined in the material filed in these proceedings.

5. One matter, however, is clear. After the parties moved to City U to live, the mother had no source of income and she was entirely dependent on the father for financial support. The father, in turn, whilst working in the businesses that he had from time to time in City U and Country R, never received an income. Since October 2015, the father has been and continues to be entirely supported by the paternal grandmother. Thus, even though it is obvious that drugs and alcohol were often procured by the mother (as well as the father), she did so only with the funds that had been provided to her by the father.

6. I shall deal further with the issue of the parties’ drug and alcohol use and the relevance of it to what parenting orders are in the best interests of the children elsewhere in these reasons. Therein lies the importance of this aspect of the matter.

7. X was born shortly after the parties arrived in City U. In September 2017, the parties engaged Ms AA and she became a permanent live in nanny in the following month.

8. There was significant dispute between the parties, and indeed Ms AA, as to who was the primary carer for the children.

9. It seems agreed that the father went out to work most days and often went out in the evenings, as witnessed by the number of Facebook messages from the mother asking him to come home. However, he says that when he could, he took care of the children and was their primary carer. For her part, the mother says that she was the children’s primary carer with the assistance of Ms AA, although there are many Facebook messages where the mother is obviously out in the evening or asking the father to go out with her. There are also many Facebook messages where the mother is seeking a quiet night at home and asking the father to join her. The father accepted that sometimes the mother was “really good” as a parent but that those periods just did not last (Transcript 21 September 2020, p.8 line 3; p.35 lines 23–31).

10. Ms AA’s evidence was essentially that she was the primary carer for the children and that the mother spent most of the day alone in her bedroom drinking. She formed the view that the mother was depressed and an alcoholic. There is no doubt that the mother did have emotional episodes which prevented her from caring for the children, as will be discussed more fully shortly.

11. Dr L formed the view that both children have weak attachments with each of the parties, largely due to the significant care that they received from nannies throughout their lives (in City U, Country R and Australia), as opposed to spending significant time with their parents. For the period that the parties were in City U and Country R this is certainly consistent with the lifestyle that they had adopted, which cannot be described at all as child focused. At times, both parties were significantly affected by cocaine, alcohol and other drugs.

12. In City U, the father’s absence from home when he was at work, the drinking and partying of both the parties, the emotional episodes of the mother, and the trips by her away from City U suggest that it is more likely than not that Ms AA undertook a large part of the care of the children but not to the entire exclusion of the mother as she would have it. Even the father, with his dim view of the mother, accepted that she was a good mother on her good days.

13. After the parties moved to Country R their life continued much as it had in City U. Nannies were employed to assist with the care of the children and the father left each day to attend his work, which he conducted from a work space at the CC Centre.

14. The father’s evidence is that in June/July 2019, he informed the mother that the relationship was over.

15. The evidence establishes that the father, or perhaps the paternal grandmother directly, bought the mother two separate plane tickets to return to State C, neither of which was used. The father says that the mother did not do so because of her unstable mental state. A third plane ticket was purchased and the mother returned to State C on 9 July 2019.

16. It is significant that the mother had no financial means of staying in Country R, other than to request funds from relatives, which understandably, she said that she was too embarrassed and upset to do.

17. In the course of cross-examination, the father agreed that on 15 July 2019, he sent the mother an electronic communication in which he told her that if she did not provide her address in the United States so that he could send her things, she could not call the children. The father agreed that this was “[m]aybe a little bit, potentially” manipulative (Transcript 21 September 2020, p.13 lines 4–5).

1. The mother returned to Country R on 2 August 2019. The maternal grandmother joined her two days later.

2. On 6 August 2019, the mother, the maternal grandmother and a lawyer engaged by the mother, arrived at the father’s villa in Country R where the mother said that the father was found with a topless woman who described herself as being “wasted”, empty bottles of alcohol, Ritalin tablets and an empty bag of what the mother believed to be cocaine. The father’s main complaint with this description provided by the mother was to suggest that the mother had, herself, planted the cocaine. Given the history of the parties’ relationship, the presence of alcohol and drugs would be entirely unsurprising and there is no obvious reason why the father would have changed his behaviour by this time.

3. An unpleasant incident then took place in front of the children where the father repeatedly said “[g]et the fuck out of my house now” and “I’m going to fucking evict you now myself” (Exhibit 8, Video 1).

4. A video of the incident shows that the father tried to remove one of the children from the arms of the maternal grandmother, who repeatedly said “[d]on’t lay your hands on me” (Exhibit 8, Video 1). The mother’s lawyer called the Police. The father then immediately left the villa by foot. The father said that he did this to de-escalate the situation, although he could have done that by not shouting, swearing or trying to grab the children. The suggestion is that he fled when he became aware that the Police had been called because of the possible presence of cocaine in the villa. The father was not subsequently charged with any offence.

5. In any event, after the Police had arrived and they had spoken to the mother, the maternal grandmother and the mother’s lawyer, the father had still not returned to the villa. The mother and the maternal grandmother then took the children to their nearby hotel.

6. On the following day, the mother and the maternal grandmother returned to the villa. The father had not returned. They removed some items such as the pram and the portable cot and again left with the children.

7. The father was critical of the mother not contacting him in relation to the care of the children at this time and said that he had called her many times but that she did not answer. The mother’s evidence, which was not challenged, was that the father had “blocked” her on Facebook. She also said that the father was not answering her calls. Whatever the cause, the parties did not speak to each other.

8. On 13 August 2019, the children, the mother and the maternal grandmother moved to the DD Hotel. At about this time, the mother attended the CC Centre and, by means of a subterfuge, gained access to the father’s locker where she removed some documents. The children’s passports were not there because the father had managed to find them and take them before he left the villa a few days earlier. The father’s position, which was denied by the mother, is that included in the documents that were removed by the mother were the children’s birth certificates. Despite the mother’s denials in cross-examination, it is likely that included in the documents removed by the mother was, in fact, Y’s birth certificate. This is because the maternal grandmother found it in the mother’s belongings taken from Country R to the United States by her, when she was looking for documents recently to assist the mother in obtaining passports for the children.

9. The father contended that the move to the DD Hotel, which is close to the airport at City UU, Country R, and the mother taking the children’s birth certificates, indicated that she was immediately planning to remove the children to State C. The mother accepted that she could not stay in Country R indefinitely, and that at some stage, one of the only options was that the children would have to return with her to State C but that such a return would not be malicious.

10. The mother and the maternal grandmother left the children with a private nanny in the kids club at the DD Hotel at about lunch time on 14 August 2019. They went to buy food and supplies for the children and possibly also to copy some documents relating to leaving Country R with the children. Whilst the mother and the maternal grandmother were absent, the father and another man removed the children from the kids club. On the following day, the father took the children to Country TT, without consultation with the mother, and then to Sydney where the children have lived with him and the paternal grandmother ever since.

11. I do not consider it necessary to determine each parties’ contention as to which attempt to take the children to another country was worse. The mother’s contention that she had no option but to take the children into her care when the father fled the villa, and that she had no option but to leave Country R with them for State C because she had not heard from the father and did not know his whereabouts, has some force. The mother had obtained a job in Country R, after having completed a training course in Brisbane, upon her arrival. That and the fact that she instructed a lawyer suggests that, at least, her initial plan was not simply to remove the children to State C. She was, however, prepared to break into the father’s locker to seek documents, presumably, that would help her to travel with the children.

12. Nevertheless, the resolution of this issue does not assist with the determination of the proceedings because each party was making significant decisions about the children without involving the other party and because their subsequent conduct carries much greater weight.

13. In late 2020, it became apparent that, whatever the outcome of the proceedings, the children would require passports and that, as a step in that process, their birth certificates had to be found or copies of them obtained.

14. The mother’s evidence was that all her personal belonging in Country R were taken back to the United States by the maternal grandmother. On 2 October 2020, the mother asked the maternal grandmother to return to her the personal documents from those belonging for assistance in obtaining the requisite passport. At the same time, the mother made enquiries as to how to obtain certified copies of the birth certificates in Country W and the cost thereof.

15. The maternal grandmother said that when doing so, she found a document written in Thai in an envelope marked “Ms Devin’s birth certificate”. It turned out to be Y’s birth certificate. The mother received it on 7 October 2020. Despite that, and despite many emails passing between the parties’ lawyers, and the matter being relisted (by an application made on 22 October 2020) on 23 October 2020 (when an order was made requiring provision of the birth certificates), it was not until late on 23 October 2020 that a certified copy of that document was given to the father.

16. No convincing explanation was given for that delay.

17. The father submitted that the delay was due to the mother not wishing to be caught out in a lie, as to removing the birth certificates from the father’s locker, or as to having them in her possession. I do not accept this. If the mother had wished to do so, she would not have produced the original birth certificate and would have obtained a certified copy instead.

18. However, assuming for the moment that the mother did lie, I do not consider that this has any significant bearing on the important issues in this matter and refer to my discussion of credit later in these reasons.

19. More significant is the failure of the mother to hand over the birth certificate promptly when it arrived on 7 October 2020. I do not think that the position was assisted by the correspondence that passed between the parties’ lawyers. Nonetheless, it is an indication of the difficulties that persist – not surprisingly, given the relatively recent breakdown of the parties’ tumultuous relationship and the present proceedings.

20. Even so, there is some force in the father’s submission that this issue is relevant when considering whether the mother will take the necessary steps to maintain the relationship between the children and the father and, whether after the orders are made, she will act properly towards the father.

The parties’ mental health and drug and alcohol use and their ability to care and provide for the children

1. Dr L opined that this was one of the critical issues for consideration in this case and I agree. The point is to consider the mother’s and the father’s present mental health, their ability to care for the children and what his and her mental health is likely to be in the future, and not who is to blame for the parties’ conduct in the past. Whilst such a discussion is of course heavily informed by what has occurred in the past, the point of the exercise is determine how these considerations bear upon the best interests of the children and therefore it necessarily looks to the future.

2. This consideration is closely involved with the use of drugs and alcohol by both the mother and the father. It does look to their behaviour per se, though as adults they may consume what they wish. However, as Dr L points out, the use of drugs and alcohol can mean that when affected, a parent cannot be available to the children, or worse, is simply incapable of caring for them. The focus in the discussion is therefore on how these issues affect the children.

3. I start with the finding already made that both the mother and the father used alcohol, cocaine and a variety of prescription drugs in City U and Country R and that such use significantly interfered with their care of the children.

The father

1. The father’s position was that, save for what follows, he has had no issue with alcohol consumption in the past and does not now. He said that his relationship with alcohol changed in November/December 2019 and increased at that time from moderate drinking to drinking too much due to the stress of these proceedings.

2. As recorded above, both parties were required to undergo regular CDT testing. Dr EE, the single expert forensic toxicologist, explained that such testing assesses the level of exposure to alcohol. The CDT level of a person not consuming alcohol is mostly under two per cent and often less than 1.7 per cent. There is a 0.3 per cent measure of uncertainty.

3. Between 2 December 2019 and 29 August 2020, the father had 11 CDT tests with the results ranging from 1.9 per cent to 3.4 per cent. Nine of the 11 CDT test results were over two per cent (Dr EE’s affidavit filed on 24 September 2020, paragraph 10.1).

4. This led Dr EE to conclude that these test results indicated excessive alcohol use but that the conclusion needed to be supported by other evidence (Dr EE’s affidavit filed on 24 September 2020, paragraph 10.3).

5. On 9 December 2019, having regard to the CDT tests then available, the father’s general practitioner urged the father not to drink at all.

6. On 2 March 2020, a Mental Health Plan was arranged by the father’s general practitioner and it recorded the presenting issue as “[e]xcessive alcohol/ [a]nxiety related to his past relationship”. The diagnosis was “[a]lcoholism” and the patient history was recorded as “[l]ong history of excessive [a]lcohol intake” (Exhibit 5, p.17).

7. There is therefore no doubt as to the father’s excessive use of alcohol during this time, which was when the children were living with him and the paternal grandmother.

8. Despite the history given to the father’s general practitioner, during cross-examination, the father maintained that he had no issues with alcohol in City U or Country R and that he was intoxicated on two or three occasions. I do not accept that to be the case. The Facebook messages between the mother and the father are replete with references to the father looking forward to or having enjoyed alcohol and spending a lot of time in bars with friends. It may be true that on many of these occasions he did not drink as much as the mother, who Dr L described as tending to binge drink, but everything about those Facebook messages suggests that the father was drinking a lot and often.

9. That is also the effect of Mr S’s evidence, who when he first met the father and his friends, was surprised at the amount of alcohol that they drank.

10. It is also consistent with the father’s general practitioner’s record of there being a long history of excessive alcohol intake. I would not regard a few months from November/December 2019 to early March 2020 as a long history.

11. I consider it more likely than not that the father’s history of alcohol consumption as given by him is not accurate and that his long history of excessive alcohol intake extended throughout the time that the parties were in City U and Country R.

12. This is not to be merely pejorative. As Dr L explained, excessive alcohol intake affects the children, not only because it may mean that a parent is not available to them at times, but it impairs decision making and the ability to care for them.

13. The father started attending the M Program, an outpatient program treating addiction and co-occurring disorders, on 27 February 2020. As a result of his attendance at the M Program and the preparation of the Mental Health Plan, the father consulted Mr N, a psychologist, on 3 March 2020.

14. According to Mr N, the father “presented seeking assistance with learning ways to better manage his substance use and emotions” and reported wanting help to manage anxiety and stress so that he does not rely on alcohol to help him cope (Exhibit 11, Mr N’s report dated 4 September 2020). As at 4 September 2020, the father had attended 19 individual sessions with Mr N and five group therapy sessions at the M Program.

15. In his report, Mr N noted that the father “is gaining insight and making progress in therapy at better managing his anxiety, stress and substance use”. Mr N’s recommendation was that the father “would benefit from continued treatment at this time related to Substance Use & Emotional Management” (Exhibit 11, Mr N’s report dated 4 September 2020) (as per the original).

16. In his oral evidence, Mr N said that he understood that the father’s aim in consulting him was not to become abstinent but to be able to return to moderate drinking, being three to four standard drinks per day, three to four days per week, as opposed to his heavy drinking, being eight to 10 drinks per day (each drink not necessarily being a standard drink).

17. The purpose of Mr N’s treatment, therefore, was not to directly challenge the reasonableness of the father’s goal but to help him achieve and develop that goal through treatment. Thus, Mr N recommended abstinence in the short term, followed by long term moderation management. The short term he described as a few weeks or two months but said that it would probably be beneficial for the father to be abstinent for months instead of weeks.

18. Importantly, Mr N added that the longer the period of alcohol use, the longer the period of abstinence required to control the drinking and that abstinence is the recommendation to avoid problems with alcohol. If the father’s drinking problem had extended for several years, as I consider it has (and not for a few months), then it follows from Mr N’s evidence that a significant period of abstinence from alcohol by the father was required.

19. At the time of the hearing, Mr N’s understanding was that the father was continuing to be abstinent. However, that was not the case. The father’s evidence was that he had stopped drinking for a month and has resumed drinking because he was better. Mr N said that such a resumption “would be a definite setback in terms of his progress” (Transcript 23 September 2020, p.225 line 32) but nonetheless progress may have been made and that the father was early on in the recovery phase of treatment.

20. Dr L considered that three to four drinks per day, three to four times per week was “still hazardous drinking” (Transcript 28 September 2020, p.486 line 21) for the father and that he really needed to undergo a three week residential rehabilitation program.

21. I conclude from the above that the father’s view of his relationship with alcohol is that he significantly underappreciates the reality of it, the effect of it on the children and, indeed, that it poses any problem at all.

The father’s cocaine use

1. The father does not deny that, at least throughout the relationship with the mother, he used cocaine. The father says that he used cocaine “socially”. It is, of course, difficult to know precisely what that word means.

2. Mr N recorded the following:

   …He acknowledges he has used cocaine for the last few years. He describes using at a variable frequency. Sometimes more frequently than others. He has been working on identifying his triggers that lead to use / relapse. He reports having decreased his frequency and quantity of alcohol and cocaine since beginning treatment. In recent weeks he reports he has not used any mood-altering substances.

   (Exhibit 11, Mr N’s report dated 4 September 2020)

3. That suggests a more frequent use of cocaine recently than is accepted by the father. Indeed, his evidence is that he has only used cocaine twice this year.

4. How the discovery of that use came about is instructive. The father attended on Dr L on 2 July 2020. Dr L described it in the following way:

   The father arrived on the first day casually dressed, polite but somewhat overconfident. In the 14 years that I have been doing these assessments, he has been the first person ever to eat during the interview. At the beginning of the interview, I offered him a sterile container for a urine test. He said that he could not produce urine just yet and asked to do it at the end of the interview. During the interview, he drank a bottle of water, ate an apple and a banana and then asked for more water at the end, which I presumed was him hoping to temporise and dilute the sample. He did provide a sample at the end.

   (Dr L’s report dated 3 August 2020, p.23)

5. When Dr L asked the father about the medication that he took apart from drinking, the father said that he sometimes took Valium (Diazepam) and Modafinil “to keep him awake at night, so that he can deal with the calls to the [United States] and Africa”, which were necessary for his business (Dr L’s report dated 3 August 2020, p.20).

6. The urine sample taken by Dr L came back with a presumptive test as positive for cocaine and benzodiazepines. Whilst there was initially some controversy about the status of a “presumptive” test for cocaine, that debate became academic when the father admitted that he had used cocaine prior to his interview with Dr L. The father said that he had used it to stay awake, but that was the only occasion.

7. Dr L recorded that the paternal grandmother told her that the father was using cocaine, which she did not like, but that he used it to stay awake at night. In her oral evidence, the paternal grandmother said that she understood that the father used cocaine socially and later as having used it once or twice. The paternal grandmother said that she had never seen the father affected by it. Her remarks to Dr L are more consistent with the bulk of the evidence, as opposed to her oral evidence. There is no suggestion in the comment of the paternal grandmother made to Dr L that the use of cocaine by the father was limited to one occasion, and indeed, the only reasonable construction that can be given is that the father was regularly using cocaine to the paternal grandmother’s knowledge.

8. Such a use is more consistent with the history given to Mr N than the history given to Dr L.

9. Dr L opined that there were many legal ways of assisting oneself with staying awake at night, including the use of energy drinks and caffeine tablets and that the father’s statement that he used cocaine to stay awake to do work was just an excuse to use the drug.

10. The father pointed to the urinalysis drug tests that he had which showed positive results for benzodiazepines (Valium and possibly Serepax) on two occasions but not cocaine. However, significantly, Dr EE said that the negative tests indicate that cocaine had not been used within two to four days of the collection dates.

1. I also give weight to the poor view that the father has of the mother and that he appears to consider that one parent is sufficient for these children. Whilst the circumstances will be difficult, the mother is somewhat more likely than the father to do what she can to maintain the relationship between the children and the father.

2. I am satisfied that it is in the best interests of the children to live with the mother.

3. In the circumstances of this matter it is difficult to see how parental responsibility could be shared as the children will be essentially living with just one parent. It was common ground that whoever had the care of the children should have sole parental responsibility.

4. The consequence is that the mother will have sole parental responsibility for the children.

5. There was no controversy about most of the orders proposed by the mother or the Independent Children’s Lawyer. The main difference between the orders proposed by each was that the mother suggested that, absent an agreement and the ability of the father to travel to the United States, there be four occasions for the children to spend time with the father. The Independent Children’s Lawyer suggested that there be six such visits.

6. Whilst it would be of benefit to the children to spend as much time with the father as possible, there are practicalities to consider, such as the cost of travel and taking the children away from their school and friends, for example. These children who are still young, should not be required to travel every two months.

7. Further, I am not satisfied, especially in the short term, that the mother could readily afford the cost of her share of six trips to Australia per year or being away from her business six times a year. I have already expressed reservations as to whether there would be funds made available to the father for him to pay his share of the costs associated with him spending time with the children. There can be no confident expectation that he, himself, will earn a significant income to pay these costs himself. Therefore, four visits a year is likely to be more economically feasible for him as well.

8. The father proposed that if the children were to live with him in Sydney, he would contribute up to $6,000 per year to assist the mother to travel to Sydney to spend time with the children. No offer was made to contribute to the costs of travel should the children live in State C with the mother. He, however, offered no submissions to oppose the orders sought by the Independent Children’s Lawyer and the mother, to the effect that he pay the costs of half the annual visits.

9. Nonetheless, for these reasons, and in the absence of any evidence that there is a crucial significance in having six visits per year as opposed to four (accepting that more time would be beneficial), the orders will provide for the children to have four annual visits with the father.

Dr QQ’s costs and expenses

1. The father sought an order that the mother pay one half of the costs and expenses of Dr QQ, which would be the usual order. It would, however, be in the children’s best interests for the mother to spend her limited financial resources (as they will be for at least the short term) on establishing a home for the children in their new environment. I therefore decline to make the order sought by the father.

I certify that the preceding three hundred and fifty six (356) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 26 November 2020.

Associate: 

Date:  26 November 2020