Mayne and Sowden

[2009] FMCAfam 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAYNE & SOWDEN [2009] FMCAfam 83

FAMILY LAW – Parenting – relocation – mother is a Thai national – children born in Thailand – now aged seven and five – father is an Australian citizen – parents never married – father spent limited time with children before they first came to Australia with their mother when aged approximately five and three years – mother was subsequently required to return to Thailand because of visa restrictions – the older child stayed with the father and the younger child came into the father’s care when aged four – issues of attachments of children – willingness of a parent to foster the relationship between the children and the other parent – effect of separation from a parent and maintaining connections with cultural backgrounds – mother unable to stay in Australia – mother allowed to relocate children to Thailand.

Family Law Act 1975, ss.60CC, 61DA, 65DA

A & A: Relocation Approach (2000) 26 Fam LR 382
KB v TC [2005] FamCA 458
Taylor & Barker (2007) 37 Fam LR 461
U & U (2002) 29 Fam LR 74

Applicant: MS MAYNE

Respondent: MR SOWDEN

File Number: SYC 6424 of 2008

Judgment of: Walker FM

Hearing dates: 2, 3, 4 February 2009

Date of Last Submission: 4 February 2009

Delivered at: Sydney

Delivered on: 12 March 2009

REPRESENTATION

Counsel for the Applicant: Mr Ladopoulos

Solicitors for the Applicant: David H Cohen & Co

Counsel for the Respondent: Ms McIntosh

Solicitors for the Respondent: Marbury Chambers

THE COURT ORDERS THAT:

1. The children, [X] born in 2002 and [Y] born in 2003 are to live with the mother.

2. The names of the children, [X] born in 2002 and [Y] born in 2003, are to be removed from the Airport Watchlist forthwith.

3. The mother is permitted to relocate permanently with the children to Thailand.

4. The parents are to have equal shared parental responsibility for the children.

5. The father is to return the children to the care of the mother by delivering them to the Child Dispute Services Section on Level 2, Family Court, Goulburn Street at 4.00pm on Friday 13 March 2009. 

6. The father is to provide any passports in his possession to the mother within 48 hours of the date of these orders.  Should the children require passports, each of the parties is to do all acts and things and sign all documents necessary to ensure that the children have current Australian and Thai passports.

7. Within 7 days of the date of these orders the father is to pay the mother the sum of $3,500.00 for airfares and associated travel costs of the mother and children to travel to Thailand. 

8. The mother is to make the children available to spend time with and communicate with the father as follows:

   (a)In 2009 on two occasions in Thailand for a period of two weeks on each occasion, provided that the father gives the mother 28 days written notice prior to each occasion.

   (b)In 2010 and for each following year in Australia for at least two block periods of time totalling a minimum of six weeks each year during the Thai school holidays, providing the father gives at least 28 days written notice prior to each occasion. 

   (c)In 2010 and for each following year at any time the father is in Thailand provided at least 28 days written notice is provided to the mother.  Such time is to be spent with the children outside school hours if the children are attending school when the father visits.

   (d)Telephone and or electronic communication with the father on at least three occasions each week including by telephone at 5.00pm Thai time each Sunday. 

   (e)Such other time as may be agreed in writing between the parties.

9. The children’s time with their father in Australia pursuant to order 8(b) above, is conditional upon the father prior to their travel, paying the costs of the children’s return airfare to Australia, and providing to the mother an itinerary of their flights. 

10. The father is to be responsible for making the arrangements for and for the costs of the children to be accompanied by an adult on such flights.

11. Parties have liberty to restore to the list if necessary in relation to implementation of Order 6 in relation to passports.

IT IS NOTED that publication of this judgment under the pseudonym Mayne & Sowden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6424 of 2008

MS MAYNE

Applicant

And

MR SOWDEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders where the mother seeks sole parental responsibility of the children, [X] born in 2002 and [Y] born in 2003 and an order that she be allowed to permanently relocate the children from Australia to Thailand. The father seeks orders that he have sole parental responsibility for the children and that they live with him in Australia.

Background

1. The mother was born in Thailand in 1977.

2. The father was born in Bulgaria in 1963. He became an Australian citizen in 1998. He is an [occupation omitted]. He first married his present wife, Ms S, on 1 February 1987. According to Mrs SowdenS she and her husband separated in March 2000, reconciled during 2007 and 2008, and remarried in December 2008. They have two daughters, [N] born in 1997, now aged 11 and [E] born in 1987, now 21.

3. The parties met when the father spent a short period of time in Thailand in 1999.  The parties subsequently commenced a relationship.

4. The mother is a Thai citizen and the evidence is that on the various occasions she has come to Australia she has come on a tourist visa or visitor’s visa.  She has a son, [Z], born in 1996, from a prior relationship. 

5. The father told the family report writer that separation occurred in July 2007.  His evidence is that there had been at least one earlier separation in 2005.  In cross-examination when he was asked when the last separation occurred he said “to me, between July and October 2007.”

6. The mother told the family reporter that she and the father separated on 26 August 2008. 

7. The children were born in Thailand and resided there until they came to Australia with their mother in November 2006. [X] has not been back to Thailand since then. [Y] has remained in Australia since 6 November 2007 when she arrived from Thailand with her mother.

8. On 5 November 2007 the father filed an application which came before the Federal Magistrates Court in Adelaide on 8 November 2007 (“the Adelaide proceedings”). On that occasion ex parte orders were made which, during the period of an adjournment, restrained the mother from removing the children from Australia. The names of the children were placed on the airport watch list. The mother left Australia on

   
   16 November 2007

   .  On 23 November 2007, in her absence, orders were made that the children live with the father, that the mother spend time with the children as agreed and that she be restrained from taking the children out of Australia.

9. [X] has been in the care of the father from 24 April 2007 to the present, apart from periods from 1 May 2007 to 11 July 2007[1] and 26 May 2008 to 26 August 2008, when the mother was in Australia with a tourist visa and lived with the children and father.  During some of this time the father was away working overseas.  [Y] has been in the care of the father from 16 November 2007 to the present, apart from the three month period 26 May to 26 August 2008.  Thus [X] has been in the care of the father in the absence of the mother for approximately fifteen months up to the hearing, and [Y] as been in the care of the father in the absence of the mother for approximately eleven months up to the date of the hearing.  This overstates the period the children have been in the care of the father to some degree because there have been periods when the father was working in Adelaide and the children were in the care of his wife in Sydney.

   [1] This includes a short period when the parties visited Thailand with the children.

10. The mother returned to Australia on 22 October 2008 and on 31 October 2008 filed the application presently before the court.

11. Interim orders by consent were made on 21 November 2008. They included orders that the mother have supervised time with the children each Saturday from 11.00am to 3.00pm at Darling Harbour. As will be discussed later the mother has spent less time with the children than was provided for in those orders.  At the conclusion of the hearing on

    
    4 February 2009

    , orders by consent and pending further order were made which provided, inter alia, that the mother was to spend time with the children each Saturday from 10.30am until 4.00pm at “Lollypops” Playland at Moore Park unless otherwise agreed in writing. 

12. At hearing the mother relied on her affidavits sworn 31 October 2008, 17 November 2008 and 23 January 2009.  The father relied on his affidavits sworn 17 November 2008, to which was annexed earlier affidavits of his sworn 5 November 2007 and 20 November 2007 in the Adelaide proceedings, and on his affidavit sworn 15 January 2009.  Affidavits in support of his application were sworn by Ms Sowden sworn 14 January 2009, Ms B sworn 13 January 2009, [E] sworn 14 January 2009, Ms M sworn 15 January 2009, Mr K sworn 15 January 2009. 

13. The mother used a Thai interpreter in the proceedings.  Her evidence is that she cannot read or write in English.  This was not in dispute. However initial comments by the father’s counsel appeared to raise an issue as to whether the mother’s understanding of English was such that she did not require the assistance of an interpreter.  From my observations of the mother during the course of the hearing it was evident that although she might have some understanding of very simple English, she certainly required the assistance of an interpreter to understand and respond to the questions asked of her.  The family reporter also stated in his report that the mother had minimal understanding of English.  He interviewed her with the assistance of an interpreter. 

14. The father’s counsel raised issues as to the mother’s credit, particularly in relation to her version of what the father had said to her when his application was before the Court on 8 November 2007, what knowledge she subsequently had of the orders that were made and her initial denial in cross examination that she had made a threat to commit suicide in a telephone conversation with the father in October 2008.  There was no doubt the mother was not truthful in her initial evidence about the suicide threat.  However the mother’s veracity was tested at length in cross-examination on other issues, for example in relation to her current visa/immigration status.  The mother’s evidence about her dealings with the Department of Immigration and Citizenship and the legality of her status in Australia was confirmed when a document from the Immigration Department was produced by her the following day.  Although the Court formed the impression that at times the mother gave answers which she thought would best serve her interests,

    
    

    I cannot conclude that overall her evidence was unreliable.  The Court has found that in some issues in dispute her evidence is to be preferred to that of the father.  It was also evident to the Court that on occasion she was confused by a particular question and needed an opportunity to clarify her initial response.  On one occasion she responded “yes” to a series of questions about the Thai Civil and Commercial code only to respond when asked “do you understand what I’m asking you?” – “not all of it.”   A further problem with understanding the mother’s evidence in relation to some matters arises from the manner in which her affidavits have been drafted.  Events are often not set out in a clear chronological order and it is at times unclear to what period particular assertions relate. 

15. The mother’s demeanour throughout the hearing was calm and composed.  She listened carefully to the interpretation of questions and was responsive to the questions asked.

16. The Court formed the view that aspects of the father’s evidence were less than frank.  This related particularly to his evidence about his reconciliation with his former wife.  Again however no overall adverse finding about credit is made in relation to the father. 

The history of the relationship between the parties

1. The parties agree that the father met the mother in 1999 when she was aged about 22 and was working [in the hospitality industry] at Pataya in Thailand.  This is about eight or nine hours by road from Ban Tak where the mother lived with her family.

2. It is agreed that an intimate relationship commenced and that after about 5 days the father travelled back to Australia.  The mother says that when the father returned to Australia he communicated with her regularly by telephone and sent her money because he wanted her to stop working in the night club.  She says the father returned to Thailand about three to four months later and told her that he could not live with his wife any longer and intended to get a divorce.  She says after two weeks the father returned to Australia and continued to communicate with her and send her money.

3. In her affidavit Ms Sowden says she and her husband separated in March 2000.

4. The mother says that both she and the father regarded their relationship at the time as serious and that she took the father to meet her parents and extended family.  The father says that after the first visit when he came to Thailand to see the mother he stayed in her house apart from one occasion when he says he spent some days staying with a former colleague.

5. The mother says that the father arranged for her to travel to Sydney on two occasions to spend time with him, and on two later occasions to Perth when he commenced working there.  Immigration records tendered in evidence indicate that the mother arrived in Australia on four separate occasions between March 2000 and November 2001 and that she stayed approximately six weeks and eight weeks on each of the first two occasions, nearly three months on the second occasion and two months on the fourth occasion.

6. After what would have been the fourth of these visits, the mother returned to Thailand and gave birth to [X] in 2002.  The father flew from Perth to visit the mother and [X] for a period of two weeks.  Shortly after he commenced working in Saudi Arabia for a period of two years from 2002 to September 2004.  He continued to visit the mother and [X] during his holidays.  The mother gave birth to [Y] in 2003.  

7. The father in his oral evidence said that he had an “on/off relationship” with the mother.  He told the Family reporter that the relationship had always been casual and had been a function of his “mid life crisis.”  He says the mother discovered she was pregnant “after we broke up when she returned to Thailand”.[2] 

   [2] Father’s affidavit sworn 17 November 2008

8. The mother says that initially the father was angry when she told him she was pregnant.  She says that “he wanted me to have an abortion and end our relationship as he didn’t want to have any more children”[3] and that subsequently the father changed his mind, accepted the pregnancy and travelled to Thailand to see her.  The mother says that she travelled to Perth when she was five months pregnant and lived with the father until she returned to Thailand when she was approximately seven months pregnant.  The father agrees that in the later stages of the mother’s pregnancy she travelled to Perth.  This is consistent with the Department of Immigration records.

   [3] Mother’s affidavit affirmed 23 January 2009 at paragraph 19.

9. The father says that he visited the mother in Thailand as often as he could, work permitting and that when she fell pregnant with [Y] they discussed whether or not to keep the baby at an early stage of the pregnancy.  The father denies he suggested that she have an abortion and says that he told her it was her decision to make.  On the account of either off the parties the father visited the mother and [Y] not too long after the child’s birth. 

10. It is agreed that over the next few years the father visited Thailand and saw the children on about four occasions a year for about two weeks on each occasion.  The father in his oral evidence said he stayed in a hotel on only one early occasion and that otherwise he lived in the mother’s house which is close to that of her parents and other extended family members.  The parties differ on how often the father stayed in a hotel but on either version the father spent time with the mother’s parents and extended family during those periods he was in Ban Tak.  The father financially supported the children.  The mother says that while the children were living with her in Thailand the father paid her $1,000.00 per month for the support of the children.

11. The father says that in 2000 there was an application by the mother to be a permanent resident on a spousal visa but it was refused because “we were not married”.  He says “I did not want to get married so there was no way this visa could be granted to my knowledge”[4] and also “the mother did mention to me once if I could arrange a long term visa but to my knowledge there is not one, only extensions if applied for on good grounds.”[5]  The mother also gave evidence in cross-examination, which was not challenged, that she requested the father to assist getting her other son [Z], now aged twelve, to come and live in Australia but she said “there was no help.”

    [4] Father’s affidavit sworn 15 January 2009 at paragraph 49

    [5]Father’s affidavit sworn 15 January 2009, paragraph 50

12. The mother says that the father “continued to sleep with me and promised that there was a future in our relationship of being together permanently and for us to live in Australia.”[6]

    [6] Mother’s affidavit sworn 31 October 2008 at paragraph 16

13. She says that when [X] turned five the father asked her to travel with the children to Australia to stay with him at his home in Adelaide.[7]  She says that the father had contacted her in mid 2006 by telephone and said that “he wanted the children and me to live together as a family in Australia as he missed me and the children very much.”[8]  

    [7] Mother’s affidavit sworn 31 October 2008 at paragraph 17

    [8] Mother’s affidavit sworn 23 January 2009 at paragraph 31

14. The father says “I broke up with the mother in November 2005” and she agreed to come to Adelaide to settle the children into school in Australia.[9]  We had both agreed that it would be beneficial for the children to be educated in Australia and an agreement was reached in that regard.  I travelled to Thailand in November and we all travelled back to Adelaide together.  In the context of the Adelaide proceedings the father says that “Whilst the mother would never commit to herself remaining in Australia permanently she had agreed that the children would remain here and would attend school.  She agreed to travel to Australia in November 2006 with the children and would stay long enough to ensure that the children settled here”[10].  He says “the mother had never sought out citizenship and indeed was satisfied in coming to Australia on tourist visas but as a result this required her to leave the country regularly.”[11]

    [9] Father’s affidavit sworn 17 November 2008, paragraph 2.17, referred to 2006 but this was corrected by the father’s counsel during the hearing to 2005.

    [10] Father’s affidavit sworn 5 November 2007at paragraph 18

    [11] Father’s affidavit sworn 5 November 2007at paragraph 21

15. The parties were together from the mother’s arrival with the children on 10 November 2006 until 11 July 2007, apart from periods when the father was required to work away from Adelaide. Indeed in the Adelaide proceedings the father said “We continued to cohabit in a de facto relationship during the period that she was living in Australia.”[12] The first five months of that period up to 8 April 2007 was spent in Australia.  The father says that he and the mother went to Thailand with the children in April 2007 to enjoy the Thai New Year celebrations.[13]  The parents and children departed together for Thailand 8 April 2007.  [X] and the father arrived back on 24 April 2007.  The mother and [Y] arrived back on 1 May 2007.  The father says that the reason for the different departure dates was because travel arrangements were disrupted by the death of his uncle in Bulgaria.[14]   

    [12] Father’s affidavit sworn 5 November 2007 at paragraph 24

    [13] Father’s affidavit sworn 5 November 2007 at paragraph 25

    [14] Father’s affidavit sworn 17 November 2008, paragraph 2.19

1. I find that there are particular difficulties with the father’s evidence about these matters.  His evidence of an application by the mother to be a permanent resident and a request by the mother to arrange a long term visa[15] is not consistent with his other evidence that the mother never sought out citizenship that she was satisfied coming to Australia on tourist visas.  His evidence that the mother had agreed to only stay long enough to settle the children in is not consistent with the length of time the parents and children remained together, even travelling back to Thailand for the New Year celebrations and returning to Australia.  The mother’s evidence is that she would not have made the trip to Australia with [X] and [Y] if she had not believed the father’s promise to marry her and live together as a family in Australia.[16]  For the reasons mentioned above the Court finds that the mother’s evidence that she bought [X] and [Y] to Australia in the expectation that they would live together as a family in Australia is to be preferred to the father’s account. 

   [15] Father’s affidavit sworn 15 January 2009

   [16] Mother’s affidavit sworn 23 January 2009 at paragraph 37

2. The mother and [Y] then left for Thailand on 11 July 2007.  The mother says that she and [Y] returned to Thailand at that time as her tourist visa would not allow her to stay any longer in Australia.[17]  She says that she and [Y] were not happy to leave [X] but that she was reassured by the father “that we would all be living together soon once he had made arrangements for this to occur.”[18]

   [17] Mother’s affidavit sworn 23 January 2009 at paragraph 36

   [18] Mother’s affidavit sworn 23 January 2009 at paragraph 36

3. The father says that when the mother returned to Thailand in July 2007 and took [Y] with her she requested that he provide her with a sum the equivalent of approximately $17,000.00.[19]  The mother said in cross-examination that at this time she received a sum of approximately $15,000.00 from the father.  In his affidavit the father said that he gave the mother this money and considered it as a property settlement.  His oral evidence was slightly more qualified when he said that he saw it “as a property settlement in a way.”  There is no evidence that the mother saw it this way.  In his oral evidence, the father said “there were a number of phone calls in October and I put it more clearly to her that this relationship was not going to work.”

   [19] Father’s affidavit sworn 17 November 2008 at paragraph 2.20

4. Mrs Sowden’s evidence in her affidavit sworn 14 January 2009 is that she and her husband “reconciled” during 2007 and 2008 and remarried on 7 December 2008.  She says “It was about two years ago when we saw each other because of the girls and he said to me that he really didn’t want to live with the other ‘I really want to live with you, I made a mistake.”[20]

   [20] Affidavit of Ms S sworn 14 January 2009 at paragraph 7

5. The father was asked in cross-examination about Mrs Sowden’s evidence about the timing of a reconciliation and in particular whether he had reconciled with Mrs Sowden before mid 2007.  The father was asked if her recollection was wrong and said “No, this is how I remember it now.”  The father was asked “You made a decision to get back with Ms Sowden a bit over 2 years ago?”  He responded “not entirely it was discussed, mentioned, not much followed” When pressed further that he had moved back in with Mrs Sowden two years ago the father replied “For a very brief period, yes.”  It was the put to the father “you moved back in with her on the occasions that you were up in Sydney you were living with her?”  The father responded “No, not.”  “Can you explain exactly what it means ‘living with her’ and for what periods you refer?”  “Because I was working shifts and I was spending time in Sydney and time in Adelaide.”  The father then said that he could not recollect the exact period of time. 

6. I find the father’s evidence on this unconvincing. The father still appeared to have difficulty acknowledging the status of his relationship with Mrs Sowden in his affidavit sworn on 17 November 2008.  In that the father says “whilst my first wife and I have been very close over the past 10 months and there is a possibility that we will reconcile I have never indicated to the mother that I would again live with her or reconcile with her.  This simply was not the case.  I do admit to discussing our relationship but no outcome was achieved.”[21]  According to Mrs Sowden, on 7 December 2008, some few weeks after the father swore this affidavit, the father and Mrs. Sowden remarried. 

   [21] Father’s affidavit sworn 17 November 2008 at paragraph 2.50

7. Given Mrs Sowden’s evidence and the father’s admission that he could not recall the date when he decided to reconcile with his wife I find that the father was at least thinking about, if not actively pursing, a reconciliation with Mrs Sowden when the mother left Australia with [Y] leaving [X] behind with the father in July 2007.

8. The mother’s assertion that she left on 11 July 2007 with [Y] because her visa had expired was not disputed other than by reference by the father to her going to Thailand for orthodontic treatment. 

9. When the mother and [Y] left in July [X] remained with the father.  He turned five in January 2007 and had been enrolled at [M] Primary School in Adelaide.  The mother says that she and [Y] were not happy to leave [X] but that she was reassured by the father that they would be living as a family together when he had made arrangements for this to occur.  She says that at this time she believed that the father was sincere about their plans for the future.[22]  The mother was not cross-examined about this. 

   [22] Mother’s affidavit sworn 23 January 2009 at paragraph 34

10. I find on the evidence that the mother was content leaving [X] behind because she thought the relationship was still on track.  She did not know that the father had commenced a process of reconciliation with his wife and had formed a view that there was no future in the relationship.  The father’s evidence about his phone calls in the following October and his evidence to the family report writer indicates that his intention in regard to the relationship had not been clearly expressed to the mother when she left in July.  I find that her view that the relationship was continuing was therefore reasonable at the time.  Her evidence on her affidavits that she agreed to the arrangement about [X] because of her expectation of the relationship is therefore credible.  

11. On the day before she left with [Y] the father arranged for the mother to sign a statutory declaration.  In cross-examination he said that things were not going so well between he and the mother at the time she left in July 2007 and she was saying to him “I want to go home.”  The father’s evidence is that he “was concerned that the mother may not return with [Y] and I raised these concerns with her.  She agreed to sign a statutory declaration which consents to me having ‘custody’ of the children.  I know that this is not legally binding however the signed document indicates the mother’s intent.”[23]  The statutory declaration dated 10 July 2007[24] says “I give my consent for Mr Sowden to have full custody over our children [X] and [Y].”  The mother’s name is printed in handwriting beneath and the document indicates that it was signed by the postal manager at Rundle Mall Post Shop.

    [23] Father’s affidavit sworn 5 November 2007 at paragraph 28

    [24] Annexure marked VS2 and attached to the Father’s affidavit of 17 November 2008.

12. In his evidence at hearing the father was asked about this statutory declaration and said “At the time I didn’t understand the law.  I thought a statutory declaration might be of some assistance.”  When pressed further he said “I also needed the statutory declaration if I had to sign anything about [X]’s schooling while she was away so that was another reason for the statutory declaration.”  Thus it appears that the mother signed a statutory declaration which the father thought might have some legal effect at a time when unknown to her, the father was thinking of ending their relationship and had given her a sum of money which he says he saw as “a type of property settlement.” There is no evidence as to whether the mother had any independent advice or any understanding of the document. The fact that it was signed at a Post Shop indicates this was highly unlikely. To the extent that this is suggestive of the father taking advantage of the mother’s lack of knowledge of Australian law, this behaviour does not reflect well on him. 

13. The father’s oral evidence is that in telephone conversations with the mother in October he put it more clearly to her that the relationship was not going to work.  He filed an application in the Federal Magistrates Court in Adelaide on 5 November 2007 the day before the mother was due to return to Australia with [Y].  He said he did this because he was concerned that the mother would come to Australia and attempt to take the children   He said under cross-examination “I approached the Court after I had conversations with the mother.  She said that I would never see [Y] again and she would come to Australia and take [X] as well…she came to take her belongings.”

14. The father says the mother should have been aware that there were major problems in the relationship when she arrived on 6 November 2007 with [Y].

15. On 6 November 2007 the mother and [Y] arrived back in Australia.

    
    

    It appears a very short term stay was intended. In the Adelaide proceedings the father said “I am aware that the mother is arriving in Australia on Tuesday 6 November 2007 but is leaving to return to Thailand on Friday 9 November 2007.”[25] Immigration documentation[26] indicates that her visa was valid up until 9 November 2007 when she arrived.  The mother says that when the father met she and [Y] he said to her “I don’t want you to live with me.  I want you to stay in a hotel, which I have already booked you in.”  She says “I was in a state of shock and very upset with being rejected as well as being told I was not to see or stay with my children.”[27] The father agrees that he wanted the mother to stay in a hotel and the children to stay with him at his home. He agrees that the mother was not happy about this and that he agreed that the mother could stay in the house and he would stay in the hotel. The mother also says that the father on that day told her that he had applied for a Court order for the children, that she asked why and the father said “don’t worry about it.” The father agreed in his oral evidence that he told her about his application that day. He denies that he told the mother there was nothing to worry about. The father gives evidence that he responded to the mother’s upset by changing his plans. He may well have told her that there was nothing to worry about.  That would be consistent with his apparent lack of candour in obtaining her signature to the Statutory Declaration. However these are contrary assertions and the Court cannot make a specific finding in this case. 

    [25] Father’s affidavit sworn 5 November 2007, paragraph 34

    [26] Annexed to the Father’s affidavit sworn 21 November 2007

    [27] Mother’s affidavit sworn 23 January 2009 at paragraph 40

16. The mother says the day after she arrived she was served with what she now understands were court papers but because she cannot read English she did not understand what they were at the time.  She says that the father was not at home when she was served but that when he returned home she told him that during the day someone had served her with some documents and that he said “Don’t worry that’s nothing”.  She says that he did not give her any further explanation as to what the papers meant.  The father in his oral evidence said perhaps it was on

    
    

    6 November when the mother was served.  He said that he was present on one occasion the mother was served but that he did not think that was when the mother was served with documents on 6 November.  The father denies that he said “don’t worry” on that occasion.  He says he told the mother to see an interpreter and get legal aid.  It cannot be certain whether the father means to refer to this occasion or later when he hoped she would sign consent orders.  His evidence in the Adelaide proceedings was that the mother initially agreed to consent to orders that the children live with him and that he recommended she seek advice of a lawyer and the use of an interpreter[28] so that she could completely understand the orders he would be seeking however she “refused to do this”. 

    [28] Father’s affidavit sworn 21 November 2007 at paragraph 5

17. The mother then says that approximately one to two days after she was served with the Court papers, the father said to her that she could no longer stay in his home and that she had to move to a hotel.  In his oral evidence the father says that he suggested that the mother move to the hotel and the children stay with him but that the mother would not let go of [Y] so he suggested that [Y] stay with the mother at the hotel.  He agreed that this probably occurred on 8 November, the first date his application was before the Court.[29] 

    [29] Documents annexed to the father’s affidavit sworn 21 November 2008 indicate that 8 November 2007 was the first mention date of the father’s application in Court.

18. The mother says that when she was booked into the hotel with [Y] by the father she received a telephone call from the father who said to her “You’ll have to come to Court because you have to see what’s going on.”[30]  She says the father gave her the Court’s address but as she was leaving the hotel room with [Y] to catch a taxi to meet the father at Court, she received another telephone call in her room from the father and that he said, “Look it doesn’t matter now; you don’t need to come to Court…I want to meet you in the City instead.” When cross-examined the father agreed that he contacted the mother and told her that she had to come to Court. He said this was because an agreement had been discussed between them and that consent orders were being prepared by his solicitor with the intention that the mother would come to Court and sign the orders. He said he called the mother a second time to check that she was coming. He denies telling the mother that she did not need to come to Court. In cross-examination he said that the court was adjourned and another hearing was scheduled. He agreed that he met the mother later in the day. The father was asked in cross-examination what he told the mother when he met her. It was put to him that he did not tell the mother what had happened in Court. The father responded “I told her that the hearing was adjourned.”

    [30] Mother’s affidavit sworn 31 October 2008 at paragraph 31

19. Orders were made on 8 November 2007 until further order restraining the mother from leaving Australia with the children and putting their names on the watch list.  The matter was adjourned to 14 November 2008.[31]

    [31] Attached to the Father’s affidavit sworn 21 November 2008 is a copy of orders made on 8 November 2007.  The documents indicate that the matter was adjourned for further consideration to 14 November 2008.

20. The mother denies that when the father met her he told her that the matter was adjourned.  She also says that the father collected all her belongings from the hotel and moved them back to his home.  She said “We continued to live together as if there was no Court.”  The father was asked whether he and the mother had sexual relations at this time as the mother indicates in her affidavit material.  The father denied that this was the case.

21. In his affidavit filed in the 2007 proceedings[32] the father said “The mother was previously residing in my house while I stayed in the Granada Hotel”, but that on 13 November 2007 he returned to his home and the mother who had [Y] in her care at the time, moved into the hotel.[33]  14 November 2007 was the next Court date in the matter.  It is unclear on the evidence whether the mother and [Y] moved from the father’s house into the hotel on one occasion or two occasions.  There was some limited cross-examination on this issue during which the father said that the move to the hotel was because he needed access to the computer in his home.  That move coincided with the next Court date on either of the father’s accounts. This must at least raise suspicions about the bona fides of the father’s behaviour. 

    [32] Father’s affidavit sworn 21 November 2007

    [33] Father’s affidavit sworn 21 November 2007 at paragraph 9

22. The mother’s application for a short stay visa was lodged on
    9 November 2007 and the mother was approved to stay until
    

    [34] The Department of Immigration and Citizenship letter referred to above as an attachment to the father’s affidavit.

    7 December 2007.[34]

23. The father’s evidence in the Adelaide proceedings is that he had discussions with the mother over the weekend of 10 November and that “we came to an agreement whereby we would seek Orders that the children are to live with me.  The mother initially agreed to this.  I recommended that she seek the advice of a lawyer and the use of an interpreter so that he could completely understand the orders however she refused to do this.”[35]The father says he had instructed his solicitors to draw up consent orders.  However on 14 November the mother did not attend court.  The father says he rang the mother on her mobile phone to inquire why she did not attend court.  He says she said she “didn’t have time.”[36] 

    [35] Father’s affidavit sworn 21 November 2007 at paragraph 5

    [36] Father’s affidavit sworn 21 November 2007 at paragraph 8

24. It was suggested to the father in cross-examination that he had arranged things so that he got an order from the Court without the mother being present and knowing what was going on in Court.  The father asked why he would do this if he though there would be consent orders made.  It was then put to the father that there was no consent by the mother that the children live with him.  The father agreed saying ‘she changed her mind.’

25. The mother says the father told her that he had Court orders and that she could not take [Y] back to Thailand with her[37].  She says she was very upset by this and that she was crying when she arrived at the hotel.  She says she spoke to a lady at reception who gave her an address to go to and said that there would be someone at that address who spoke Thai and could help her.[38]  The mother says that she did not go to that address but that she went back to negotiate with the father who, she says, said to her “don’t worry there is nothing to worry about I just  got the Court orders go back to Thailand and everything will be alright, then you can come back and see the kids.”[39]  The father denies this.[40]  He says “no such discussions were had between the mother and myself and [Y] was voluntarily handed over to me before the orders were made”.[41]The father in his affidavit in the Adelaide proceedings told the Court that he advised the mother that he would be “happy to take the children to Thailand to visit her regularly.  I also offered for the mother to come back to Australia to visit them.  I offered to pay for her expenses in doing so.”[42]  “I will also allow them to see their mother regularly”.[43]

    [37] Mother’s affidavit sworn 23 January 2009 at paragraph 58

    [38] Mother’s affidavit sworn 31 October 2008 at paragraph 41

    [39] Mother’s affidavit sworn 31 October 2008 at paragraph 41

    [40] Father’s affidavit sworn 17 November 2008 at paragraph 2.41

    [41] Father’s affidavit sworn 17 November 2008 at paragraph 2.41

    [42] Father’s affidavit sworn 21 November 2007 at paragraph 14

    [43] Father’s affidavit sworn 21 November 2007 at paragraph 21

26. The father says that the mother told him on 15 November that she was tired and wanted to go back to Thailand.  She said she would leave the children with him and left the next day.[44]

    [44] Father’s affidavit sworn 21 November 2007 at paragraph 11

1. The father’s assertion that he did not have the discussion with the mother as outlined by her is difficult to understand.  His own evidence in the Adelaide proceedings is that he had had discussions with the mother along the lines suggested by her. 

2. The mother says the father never showed her any Court orders.  The father says he was present when the mother was served on one occasion, but apparently not the first occasion.  There is no evidence by either party that any documents served on the mother were translated to her.  Her evidence of course is that the father told her that orders had been made stopping her from taking the children back to Thailand.  The mother says the father did not tell her about the adjournment.  He says he did.  With her limited level of English language it cannot be certain that if he told her this she would have understood.  The Court cannot make a finding about this on the evidence.

3. The mother says “He was in control. I was not in a position to oppose him. I was alone in a country where I could not speak the language.

   
   

   I did not know that I had any rights…and I did not know what was going to happen to the children.”[45]  The father says that the mother ignored his recommendation that she get legal advice and made a “flippant statement that I was paying the judge and that he would not get a fair hearing in any event because she was not a citizen of Australia.”[46]  Such comments by the mother would be consistent with her evidence about her beliefs and to some extent may explain why she preferred to attempt to negotiate with the father. 

   [45] Mother’s affidavit sworn 23 January 2009 at paragraph 58

   [46] Father’s affidavit sworn 17 November 2008 at paragraph 2.28

4. The mother gives some seemingly inconsistent evidence in her affidavits.  She says on the one hand that she never consented to the children living in Australia without her[47] and “I only consented to [Y] remaining with the Respondent Father as the Respondent Father told me that it was his intention to have me return to Australia within a month when we will all be living together on a permanent basis.”[48]   At one level these statements are hard to reconcile although both indicate no intention to have the children permanently living in Australia without her, as does the fact that on the father’s evidence, she failed to sign consent orders. 

   [47] Mother’s affidavit sworn 23 January 2009 at paragraph 98

   [48] Mother’s affidavit sworn 23 January 2009 at paragraph 33

5. The father’s evidence is that there were negotiations and that he expected that he would be able to have the mother sign consent orders.  Possibly this could be an explanation for the short term visa extension as the evidence is that the mother’s visa would have expired before the matter was next in court on 14 November 2007

6. The sum of the evidence is that the father had instituted proceedings to coincide with the mother’s arrival in Australia with [Y] and that when the mother arrived she refused to go to a hotel in part at least because when first proposed to her that meant separation from the children.  She did not sign consent orders, as requested by the father, for the children to live with him.  She knew at some point that there were orders restraining her from taking the children overseas.  The father’s evidence in the Adelaide proceedings is that he gave her certain reassurances by telling her he was happy to take the children to Thailand to visit her regularly and said he would pay her expenses for her to come back and visit them.  Although the father says that the mother ‘voluntarily’ left the children with him and left Australia before the visa date expired, there must be a doubt as to whether the mother thought she had a free choice about this.  In the circumstances as set out the court cannot draw an adverse inference in relation to the mother’s desire to have the children with her by the fact that she left Australia without the children on 16 November before the further visa granted to her on expired on 7 December 2007.  It is not to the father’s credit that in all the circumstances as set out, he maintains that this was the case.  There is no evidence at all that he told the mother before she left that he was planning to take the children to Sydney to live with he and Mrs Sowden. 

7. Mrs Sowden says “After the 2007 Court proceedings finished and [Mr Sowden] had orders that the children live with him, [Mr Sowden] and the children moved to Sydney after the school in Adelaide had finished at the end of the 2007 school year.”[49]  The father says that he travelled from Adelaide to Sydney with the children in December 2007 for a Christmas break and that it was agreed that he would reside with his former wife and daughters.[50]  He says he had leave from his work in Adelaide.  He took [X] out of his school in Adelaide and enrolled [X] at a school in Sydney and [Y] at a preschool.[51]  The father says that initially he had a flexible work roster but that over time the flexibility decreased and that there were times when he had to be “away from home” in Sydney for a week at a time.

   [49] Affidavit of Ms Sowden sworn 14 January 2009 at paragraph 11

   [50] Father’s affidavit sworn 17 November 2008 at paragraph 11

   [51] Father’s affidavit sworn 21 November 2008 at paragraph 13

8. After the mother’s departure, orders dated 23 November 2007 were made in the Adelaide proceedings.  The mother’s evidence about her knowledge of these orders is unclear.  On the one hand she has said she had no knowledge of the orders made but under cross-examination she said that they had been translated to her by a child of a relative.  She said that she became very upset after this and telephoned the father and that he said “not to worry”.  The father denies that he said that.  The mother also said in cross-examination that after she received the orders she did not see the children for six months but that the father then arranged to her to come to Australia for three months and stay with the children.  She said he assured her that there was no problem with the Court order.  She says that the father also lived with her when she next came to Adelaide.  This will be referred to later.  Certainly the father’s behaviour may have caused her to be somewhat uncertain about the orders. 

9. In May 2008, six months after she left Australia without the children the mother arrived back in Australia.  She says she was “not allowed to travel to Australia for a period of six months…this was because the father refused to pay for any travel expenses during the six month period.”[52]  The father’s affidavit evidence in response to this is a denial followed by an assertion that “the mother voluntarily left before her visa expired and that on all previous occasions the timing of the visits had to be mutually convenient.  It was agreed between the mother and I that the next visit would be in May 2008.”[53]  This evidence is misleading both because of the impression it seeks to create about the ‘voluntariness’ of the mother’s behaviour in leaving Australia and for further reasons discussed below. 

   [52] Mother’s affidavit sworn 31 October 2008 at paragraph 42

   [53] Father’s affidavit sworn 17 November 2008 at paragraph 2.42

10. The father says that he travelled with the mother and the children to Adelaide where they stayed in his Adelaide home.  The children were re-enrolled in their Adelaide schools – presumably pre-school in [Y]’s case.  The father says that he spent two days organising schooling and ensuring that the mother and children had all they needed.  He then worked away from Adelaide in the field until 12 June and went to Bulgaria from 16 June to 26 July and returned to Adelaide on 27 July.  There is no doubt that the timing of this visit was convenient for the father and there can also be little doubt that the reality is that the father controlled the timing of the visit.  I find that the mother’s evidence that she was not allowed to travel for six months because the father refused to pay is to be preferred to the father’s statement about a mutual agreement.  Such behaviour by the father is not consistent with his evidence in the Adelaide proceedings about allowing the mother to see the children regularly. 

11. The mother left Australia on 26 August as her visa had expired.  The father agrees that this was the case.

12. The father says that during the period the mother was in Adelaide “we had discussed our relationship and whether or not it would work if we tried again. Although we discussed these issues I was unconvinced that many of the differences that we had could be overcome and a lasting relationship would flourish.”[54] The mother says that the parties resumed a sexual relationship at this time.  In the context of the mother later saying she was pregnant in order to have the father assist her return to Australia in October 2008 the father acknowledges that he and the mother had a sexual relationship during May to August 2008 visit, although “only one occasion where she and I had consumed wine.” The father’s behaviour towards the mother in terms of what might be expected from the relationship continued to be ambivalent at the very least.

    [54] Father’s affidavit sworn 17 November 2008 at paragraph 22

13. The father then returned to Sydney with the children.  He re-enrolled [X] in his Sydney school.  Apparently the mother did not know of this intention when she left Adelaide as the father says “the mother was upset when I informed her that I had returned to Sydney and she insisted that I return to Adelaide with the children.”[55]  He says he thought that the mother was jealous of his developing relationship with his former wife and resented the fact that he was living in her household “despite the fact that I was living in a ‘granny flat’ at the rear of the property.”[56]  If the father is suggesting that he had not resumed his relationship with Mrs Sowden at that time he is not being truthful. 

    [55] Father’s affidavit sworn 17 November 2008 at paragraph 23

    [56] Father’s affidavit sworn 17 November 2008 at paragraph 23

14. The mother says she wished to return to Australia but could not return before 22 October 2008 as the father refused to pay for her return airfare and she did not have the funds to pay for her return air fare and accommodation in Australia.  She says that she did not know the location of the children as the father had refused to give her these details.[57]  She says that the only way she was able to persuade the father to allow her to return to Australia was to lie to him and say that she was pregnant.  She travelled from her hometown to Bangkok and there had a telephone conversation with the father during which he said that he had changed his mind and that it was better if she did not come.  She said that she had the ticket and wanted to come to Australia and see her children, the father said that he was going to cancel the ticket.  She responded that if he did she would buy a ticket and come.  She said the father told her that if she came to Australia she would not be able to find him or the children.  Finally the mother says the father said it was probably better if he came to Australia and spoke to him face to face.  It appears from the father’s evidence in cross-examination that it was intended that the mother stay for a short time only.  He said “her visit was scheduled for a couple of days” and that he purchased a return ticket which “she let lapse”. 

    [57] Mother’s affidavit sworn 31 October 2008 at paragraph 58

15. In cross-examination about his willingness to assist the mother to return on this occasion, the father said “it’s just that this visit was not planned and it was happening on  her request and it was taking some  time to have everything organised and I wasn’t  very happy with her having - coming at this particular stage.”  When it was suggested to the father in cross-examination that the mother had to say that she was pregnant with his child to get him to agree to her coming.  The father’s response was “To some extent but I did purchase the ticket.”  The father in his affidavit does not deny any of the other contents of this part of the mother’s affidavit evidence.

16. The Court in this matter had the assistance of a Family Report dated

    
    28 January 2009

    . 

17. The matter came before the Court when the mother filed her application on 31 October 2009 seeking orders that she be able to relocate permanently to Thailand with the children. 

The relevant law

1. The Full Court in A & A (2000) 26 Fam LR 382 suggested three steps that should be followed by the Court in a relocation matter:

   ·Identify the relevant competing proposals

   ·Consider the proposal and evidence in the terms of the relevant factors set out in the Act which the Court must consider in determining the best interests.

   ·Explain why one particular proposal is to be preferred in terms of the best interests of a child.

2. In U & U (2002) 29 Fam LR 74 the High Court considered the approach to relocation matters and said the Court may not be able in every case to treat each of the steps as discrete and explained that the objective is always the child’s best interests.

3. The Full Court in KB v TC [2005] FamCA 458 explained the approach as follows:

   “We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A.  In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s.68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”

4. Following the amendments to the Family Law Act in 2006 the Full Court in Taylor & Barker (2007) 37 Fam LR 461 said that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of making the necessary findings in relation to the relevant section 60CC matters and that such proposal also needed to be considered in the context of section 65DAA.

The competing proposals

1. A significant issue in the matter is that the mother is not an Australian citizen or resident.  She has travelled to Australia on a tourist visa or a visitor’s visa with the support of the father.  In the context of the present proceedings, in order to stay in Australia, the mother has requested the Department of Immigration and Citizenship to waive the “no further stay” condition that was imposed on her tourist visa which was due to expire on 22 January 2009.  This condition has been waived.  Correspondence from the Department of Immigration and Citizenship dated 21 January 2009 and 22 January 2009 tended in Court indicates that the mother’s application for a further stay in Australia as a Visitor was being considered at that time.  The evidence is then that the mother is not able to say in Australia permanently.  The father acknowledged this in his proposals.

The father’s proposal

1. In his Response filed 19 November 2008 the father sought orders that the children live with him.  In his case outline document he sought orders that he have sole parental responsibility for the children and orders that he pay for the mother for one return airfare from Thailand to Australia per annum with the return date to be not less than

   
   

   two weeks after the arrival date, and an order that he provide to the mother assistance if required to obtain the necessary visa for this visit to take place. There was provision that he provide her with accommodation during her stay in Australia and her reasonable expenses during the stay.  He sought a further order that the mother was to spend time with the children whilst in Australia at times agreed between the parties but not less than two hours on each second day during her stay.  He sought an order that he enrol the children in Thai language classes and ensure their reasonable attendance and that he communicate with the children about matters of cultural significance with the mother to provide the father “details of such matters”.  There was provision for the mother to be at liberty to communicate with the children by telephone on the father’s landline on a number of specified times three days per week.  The father was to provide the mother with copies of school reports, progress reports and reports on activities and inform the mother of medical issues relating to the children and purchase an airline ticket for the mother in the event of a serious medical condition. 

2. Immediately prior to submissions at the conclusion of the hearing the father’s counsel indicated that the father wished to amend his proposal.  The amended proposal provided that the father pay for two return airfares from Thailand to Australia for the mother in each year with the return date to be not less than four weeks after the arrival date and each visit to be not less than six months apart.  It also provided for the father to give the mother $1,000.00 in respect of accommodation during each of the two stays in Australia and $100.00 per week during her stay.  This proposal provided for the mother to spend time with the children during her stay as agreed between the parties and if not and the mother’s visit occurred during a school term, then from 5.00pm Friday to 5.00pm Sunday each week and one afternoon during the week, and if the visit is during school holidays, not less than a block of two weeks in the school holidays and not less than four weeks over the Christmas holidays.  Telephone contact was specified to provide that the mother was not to call later than 8.00pm Australian time or earlier than 8.00am Australian time and is limited to a reasonable number of calls.  The father told the family reporter that he would consider allowing the children to visit their mother in Thailand when “things settled”.[58] 

   [58] Family report dated 28 January 2009 at paragraph 8

3. The father’s amended proposal also provided for the mother to undertake a psychiatric assessment by a psychiatrist recognised with Australian qualifications or by a practitioner agreed by the father prior to the mother spending unsupervised time with the children and subject to the assessment determining that the mother poses no risk to the children whilst the children are in her care.  In the event that the psychiatric assessment determined the mother did pose a risk to the children her time with the children is to be suspended until such time that the mother is deemed no risk with the mother’s time with the children to be in a contact centre. 

4. Given the evidence before the Court it cannot be certain whether the children will live with their father in Sydney or Adelaide.  The father’s work is based in Adelaide.  He currently lives in Sydney with

   
   

   Mrs Sowden and their daughters, [N] and [E].  Mr Sowden works a shift under which he spends two weeks in Adelaide and two weeks in Sydney.  If these current arrangements are to continue this means that the care of the children is shared between Mr Sowden and his wife.  The evidence is that she took the children to their respective first days of school in 2009.  For [Y] this was the first day she had ever attended school.  Mrs Sowden works full time as an [omitted] and she and the father are assisted in the care of the children by babysitters.

5. There is a possibility that the father would be required to move to Adelaide.  Mrs Sowden says that she and the father have had many discussions about whether they live permanently in Sydney or Adelaide.  She says she prefers to live in Sydney as she is settled there with the children who include her daughters.  She says that she accepts that there is some possibility that they could move permanently to Adelaide.

6. The father gave evidence at the hearing that if he was required to move to Adelaide because of his work that Mrs Sowden would move with him.

The mother’s proposal

1. In her application the mother sought orders that she have sole parental responsibility for the children, that they live with her and that she be allowed to permanently relocate the children from Australia to Thailand.

2. She proposed that the father spend time with the children in Thailand to coincide with school holidays provided that the father gave 28 days written notice of his intention and that the father spend time with the children in Australia for two weeks to coincide with school holidays provided that he gave 28 days written notice.  Her proposal also included further time as agreed between the parties.  She proposed that the children communicate with the father by telephone once a week, by web cam and email.  She told the Family reporter that she proposed that the father spend time with the children “any time he is in Thailand”.[59] 

   [59] Family report dated 28 January 2009 at paragraph 7

3. If the children return to Thailand with the mother they would live with her in her home in the village of Ban Tak which she says is north of Bangkok.  She says her home has three bedrooms and is situated near a river.  The mother says the land on which the home is built was owned by her father and that he gave it to her.  She says that the home was built with financial assistance from the children’s father.  He gives evidence of it being renovated during one of his stays in Thailand.  The mother says that she has used funds which the father provided with her in July 2007 to buy a block of land north of her house.  Her evidence is that she still has this land.  She offered to provide a photograph of it to the Court.  The mother says that the children were well settled in Ban Tak before they came to Australia. 

4. The mother says her parents live opposite her.  Other relatives live nearby and evidence was given about her sister in law, Ms N, who has often minded the children.  Her parents are in their early sixties.  The mother says she now has a business [in sales] and that she works with two other people in this business. 

5. The mother says the children have been enrolled in the International School in the nearby town of Tak.  She says that this school teaches English and Mandarin as well as Thai and that it is equipped with computers.  She says the school is approximately twenty kilometres away from Ban Tak and that it takes up to fifteen minutes to drive there by car.  The mother says that this is the school [X] attended before he came to Australia and that at that time he was in Kindergarten at the school.  She says [X] was almost four when he started there and she gave evidence that initially she drove [X] to school in her car. 

6. The mother has another son, [Z], who is presently aged 12.  She says he is living with her parents but that he lives with her when she is in Ban Tak.  She says the children have a close relationship with him. 

The issues

·The children’s attachments and their primary carer

·The mother’s behaviour when she returned to Australia in October 2008 and whether she poses a risk to the children

·The father’s willingness to foster and encourage a close and continuing relationship between the children and the mother and in particular whether the children would be able to continue a relationship with their mother if they lived with their father in Australia

·Whether the children’s relationship with their father would be likely to continue if they returned to Thailand to live with their mother.

·The respective proposals for the children and their relative capacity to provide for the emotional and intellectual needs of the children

·The children’s cultural ties

Section 60CC

1. Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.

Primary Considerations

Section 60CC(2)(a) requires consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. The periods when the children have been in the care of their respective parents have been set out above.  The family reporter says the father would have been a somewhat remote figure to the children until about two years ago.[60]  Up to the hearing, apart from those periods when the children have been in the care of Mrs Sowden, they would have been exclusively in the father’s care in the case of [X] for approximately

   
   

   15 months and in the case of [Y] for about 11 months. 

   [60] Family report dated 28 January 2009 at paragraph 42

2. The mother says that she was the primary carer of the children when they were infants and that she has looked after them well and that they are very close to her.[61]  The family reporter says that the father told him that neither he nor the mother was the primary carer of the children.[62]  In cross-examination the father seemed to qualify this.  He said that he did not believe he put it this way to the family reporter and that what he said was “The mother always has significant help in raising the children.”  He said that there was always a nanny around and parents who were taking care of and minding the children.  By the nanny he meant the mother’s sister in law, Ms N.  The father said that this view was based on his observations when in Thailand that there were times during the day when the mother herself was not caring for the children.  He said that she went on outings without the children[63] and that she also spent two hours a day gambling and left the children with her relatives.  The father does not suggest that the mother has returned to the work as a [omitted] which was work she was engaged in when he met her in 1999.  He told the family reporter that she gave up the practice when he began to support her.[64] 

   [61] Family report dated 28 January 2009 at paragraph 13 & 14

   [62] Family report dated 28 January 2009 at paragraph 41

   [63] Father’s affidavit sworn 5 November 2007 at paragraph 16

   [64] Family report dated 28 January 2009 at paragraph 21

3. The father said in cross-examination that on those occasions he was in Thailand that he and the mother took the children to Chiang Mai, that they made short trips around the area of Ban Tak where the mother lives, and that on a number of occasions he and the mother took the children to the larger town of Tak because there was a large shopping centre and children’s playgrounds at the town.  The father was asked if during the times he visited Thailand there was an opportunity for him to spend time with the mother without the children.  He said, “Yes, for a couple of hours” and that the children would be looked after by Ms N, whom he found to be good at looking after the children.  The father agreed that his opportunity to observe the mother’s arrangements for the children was limited to a period of eight weeks each year. 

4. The father told the family reporter that one of the reasons the children should remain in his care is because they are not attached to the mother[65] but when asked he “agreed that both children show affection for the mother and love her.”[66]   

   [65] Family report dated 28 January 2009 at paragraph 37

   [66] Family report dated 28 January 2009 at paragraph 22

5. The father’s case is that the mother had help raising the children and that there were periods in the day when she was not with them.  The mother acknowledges that her parents assisted her in caring for the children when she worked. The mother asserts she was the primary carer of the children. The totality of the father’s evidence does not challenge this On the evidence before the Court I find that the mother was the primary carer of the children while she lived with them in Thailand and indeed in the period totalling approximately twelve months when she lived with the children in Australia. The father’s evidence is that he was away working, and also for a time overseas during part of the time the mother was in Australia with the children. 

6. The opinions of the family report writer are also relevant here.

   
   

   Mr Lemaire’s opinion was that the children appear to be more attached to the mother than the father.[67]  Mr Lemaire was an impressive witness.  He was not challenged significantly on any matter during cross-examination.  There was a limited challenge to his expertise when it was put to him that he was not an expert in “cultural or international relocation-type matters” to which he agreed.  The relevant evidence which Mr Lemaire gave in this matter, in particular about relationships and attachments, drew on his expertise as a Psychologist registered by the Psychological Registration Board and member of the Australian Psychological Society. 

   [67] Family report dated 28 January 2009 at paragraph 42

7. The family reporter’s opinion, having seen the children with their father was that they also have a close relationship with him and that it was apparent that they are comfortable with his family.[68] 

   [68] Family report dated 28 January 2009 at paragraph 39

8. The evidence in this matter suggests that the children would benefit from a meaningful relationship with each of their parents.  However a particular difficulty in this matter is that it is unlikely that the mother will be able to stay in Australia even if she wished. 

Section60CC(2)(b) requires consideration of the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. The father’s case is that the children need protection from what he says has been the mothers “increasingly irrational behaviour”.  He says that this behaviour is manifest in the mother saying to the father that she will “commit suicide” if the children do not live with her.  The father also points to an incident where the mother hit the father on the face in the presence of the children and to a further occasion where he says she physically restrained [Y] from returning to him after the conclusion of supervised time provided in the orders of 21 November 2008.  The father gave affidavit evidence of the mother making numerable telephone calls to him between the end of October and December 2008 which he says he found “harassing”.  In submissions it was asserted that “the mother uses violence or that she lies, cannot control her actions or her emotions and conduct in front of the children.”  The father also says that [X] reported to him that the mother hit him all the time with a coat hanger whilst they were living in Adelaide. 

2. Submissions on behalf of the father were that “the mother slapping the father is the commencement of erratic behaviour.”  These allegations about the mother’s behaviour, apart from hitting [X], relate to the period since she returned to Australia on 22 October 2008. 

3. The evidence is that the father collected the mother from the airport on 22 October 2008, that he arranged accommodation for her in what he says was classified as a “deluxe cabin” in the Dural Village Park which he said had cooking facilities and playground facilities for the children.  He later bought the two children to visit her.  The father also says that the mother asked him if she could take [Y] to festivities to be held in Thailand in November.  He says that he initially agreed to this and had purchased a ticket for [Y] to leave with the mother but changed his mind when [Y] said she would not be coming back.  The father says that on 25 October 2008 he went to the place where the mother was staying and confronted her and that she admitted she was not planning to come back with [Y] if she found out that he had entered into a relationship with his ex-wife.  The mother gives no account of this and there was no cross-examination of either party about it.  She says that early on the morning of 24 October the father came and said to her that [X] had to go back to school that day.  She says the father tried to take [X] away to school but that [X] refused to leave the mother and hugged her and said that he wanted to stay with her.  She says that both the children became very upset and oppositional and that [Y] started to kick the father and that the father did not press the issue and he said that he would let the school know that [X] would not be attending on that day.  The father in his affidavit sworn 17 November 2008 agrees with this version although he seems to say that the events occurred on 25 October.  The mother says that while the father did not insist on the children leaving with him at that time, he said that he would force her to return to Thailand and that if she did not he would call the police and she would not be able to come back to Australia and that she would never see her children again.[69] 

   [69] Mother’s affidavit sworn 23 January 2009 at paragraph 80

4. The father says he asked the mother to release the children to him, she refused and he could see that the children were beginning to become upset.  He that he told the mother to have breakfast with the children and that he would return after breakfast.  The father says that he returned at 10.00am and found that the mother had left in a taxi with the children.[70]  The events are a little unclear due to the way the affidavits for each of the parties have been drafted.  It is agreed that the mother left with the children on this occasion.  

   [70] Father’s affidavit sworn 17 November 2008 at paragraph 25

5. The mother said in cross-examination that the reason she took the children was because of a threat by the father that if she did not leave the country the police would come and take her and she would not be allowed to return to Australia for five years and that she would never see her children.  It was put to the mother in cross-examination that she had made up this threat and that it was not included in her October affidavit.  The mother denied making up this evidence and said that she had referred to it in her January affidavit.  She said that she took the children because of a threat that she would never see them again and that she was looking for help.  The mother also spoke about this to the Family report writer.  She told Mr Lemaire that “he is angry with me because we had to go to Court…he tells me to go back to Thailand, he says he’s got a Court order and he can tell the police to catch me and I can’t come back for five years”.  There is evidence that the father involved the police on many occasions.  He says he “confronted the mother”.  It is likely that some threat was made. 

6. The mother says that after the father left she approached the Thai Consulate and was referred to the Thai Welfare Association.  The father telephoned the mother. He says she refused to tell him where the children where but that he spoke to them on the phone “once or twice” at this time. The father says the mother agreed to meet him on

   
   27 October 2008

   at the Thai Consulate building in Sydney.  The father says that he met the mother in front of the Thai Consulate on

   
   

   27 October and asked her to let the children come home with him as [X] needed to be in school but the mother refused.  He says that they arranged to meet on the following day and that he went to this meeting with further copies of the Court orders. He says he had obtained the assistance of a private investigator. The mother says that on 28 October the father gave her a copy of the letter from his solicitors inclosing a copy of the orders made on 23 November 2007.[71] She says in her affidavit that she had never seen these documents before and had not been made aware of the contents. In cross-examination she agreed that she had received copies of orders in Thailand and that they had been translated to her by the child of a relative. She said that as she could not read English she could not tell if these were the same orders. It was submitted that the mother was being untruthful when she said that she had not seen these documents before as they had been served on her in Thailand.  The evidence is that following service on her of the orders in Thailand the mother had returned to Australia and had cared for the children in the father’s absence.  She may have had reason to be confused about the orders.  The Court cannot make a finding about this on the evidence. 

   [71] Mother’s affidavit sworn 31 October 2008 at paragraph 63

7. The mother says that after the meeting at the Thai Consulate she went to the Thai Welfare Association where the children were being minded.  She says that she was confronted there by the father and another person with a video camera and that the father said that he was going to call the police.  The father says that the mother was with a Thai woman and that he showed her the Court orders.  The mother says she became distressed by what she regarded as the father taunting her and saying to the Thai welfare worker, “Look I’ve got the orders, can’t you read?”  She says the father took hold of her hand and said to her, “You are not going anywhere, I am calling the police.”  She says that the children were becoming quite upset and that she and the father were both holding on to the children as was the Thai welfare worker.  She said she became very upset and pulled her arm away and slapped the father on the face.[72]  The father says that it was at this time he called the police.  The father does not deny that another person was present with a video camera on this occasion.  The mother says that when the police arrived the father showed them the orders and the police allowed the father to take the children. 

   [72] Mother’s affidavit sworn 31 October 2008 at paragraph 67

8. Evidence has been given that in a telephone conversation with the father towards the end of October the mother threatened to kill herself if the Court did not make orders for the children to live with her.  This will be discussed later.

9. The mother says that after the return of the children to the father she received a call from him on about 6 November and he said “if you would like to see the children I will see you at Parramatta”.  The mother says she then saw the children on that date at Parramatta Park and that the father gave her $40.00 for train fares for four visits to Parramatta.  She says that on Saturday 8 November 2008 when she thought she was to see the children at Parramatta Park, the father took both of the children to Adelaide.[73]  The father gives no evidence about this. 

   [73] Father’s affidavit sworn 17 November 2008

10. The matter came before the Federal Magistrates Court on 21 November 2008 when interim orders were made by consent.  Those orders provide that pending further order the father was restrained from moving the children from the Sydney metropolitan area and the mother spend time with the children each Saturday from 11.00am until 3.00pm at Darling Harbour or at other times as agreed.  It was also provided that the father was to bring the children to Darling Harbour and was to remain with them to supervise the time the mother spent with the children.  Provision was made for the mother to telephone the children at particular times.  The father was to provide the mother the money order in the sum of $100.00 each Saturday at the commencement of time she spent with the children.  The father arranged for the supervision to be carried out by a number of people who were unknown to the mother, although he remained in the background. 

11. The father says that on Saturday 22 November 2008 he took the children to Sydney to see their mother pursuant to the orders.  He said that on the following Monday the mother phoned him and said that her son, [Z] who was living with her parents in Thailand was admitted to hospital with a seizure while swimming.  She said that he nearly drowned and was unconscious and that he had to send some money urgently.  She asked the father to assist her with the money as the loan she had arranged had not come through yet.[74]  The father says he gave her $200.00 which he says was an advance on the money he had been ordered to give her.

    [74] Father’s affidavit sworn 15 January 2009 at paragraph 9

1. There is no realistic proposal that the father would live with the children anywhere else other than in Australia.  Mr Lemaire expressed the opinion that if the children lived with their father in Australia that the mother’s absence from Australia, and her lack of English, suggests that she would become less significant for the children as time passes.[83]  The Court agrees. 

   [83] Family Report dated 28 January 2009 at paragraph 43

2. The family reporter’s evidence was that the children appear to be more attached to their mother than their father.[84]  His evidence firmed somewhat in cross-examination and he expressed the view that in his opinion the children are in temporary care and that the issue for the Court was whether the temporary care should be terminated and they should go back to their natural mother.  He thought this should occur if the Court found her to be the primary carer. 

   [84] Family Report dated 28 January 2009 at paragraph 42

3. Mr Lemaire said there had been sufficient time for [X] to have developed a close relationship with his father.  Mr Lemaire was asked whether he had observed a good attachment between [X] and his father.  He responded that he had not referred to an “attachment” to the father although he considered that [X] had come to love his father and benefits from his relationship with his father.  His evidence was that so far as attachment is concerned the crucial years are the first five years and that that would allow the mother to emerge as the primary attachment.  [X] was still a child and still in need of nurturing from his primary attachment figure.  Mr Lemaire said that in a couple of years [X] would be at the stage of development where he would need a paternal connection, if he stayed in Australia that would be met.

4. Evidence was given that at times there had been discussion of [Y] remaining with her mother and [X] staying with his father.  It was put to the mother that she had suggested such an arrangement to the father.  The mother’s evidence was that this had initially been the father’s proposal.  She said that she would have preferred to have at least one of her children rather than none but that she wants both children to live with her.  It is not necessary to make a finding about this.  Both parents gave evidence that the children should not be separated.  Each of the parents referred to the bonds between the two children.  Both parties maintained that it was in the best interests of the children for them both to be in their respective care.  The family reporter said that it was not appropriate to separate the children.

5. The Court then needs to consider the likely effect on the children of a separation from a parent or from any other person with whom they have been living.  The family reporter’s evidence was that from his observation [Y] would feel the mother’s absence and that all sorts of psychological consequences may occur including feelings of abandonment from not having the presence of the person she has looked on as fundamentally the one providing her needs for nurturing.  Mr Lemaire said that if [Y] was not returned to her mother’s care, therapeutic intervention should occur.

6. Mr Lemaire considered that [X] could be less affected as he was not showing the same intense desire to be with his mother. He cautioned however that because [X] was not as demonstrative did not mean that it did not have the need. Mr Lemaire identified a risk for each of the children should they not be placed with their mother. He acknowledged that there could also be a risk to [X] of growing up without the presence of a father. However he said [X] was still a child and still in need of nurturing from his primary attachment figure although in a couple of years or so would need a paternal connection and if he stayed here that need would be met.

7. Mr Lemaire acknowledged that [X] who has just turned seven would have a significant adjustment task to work through if he was suddenly removed from his school and his father’s family. He was asked whether he considered that [X] would require professional assistance in such a situation.  He responded that it would be a help but that whether it was necessary was another issue.  He considered that if [X] was attached to his mother he would have sufficient emotional resources to “weather the storm”. 

8. It was submitted on behalf of the father that “the focus should be on [X]”. The Court must of course consider the best interests of both children. The family reporter’s evidence was unshaken at cross-examination is that the children benefit from the relationship with both parents but the separation from the mother was a greater risk than separation from the father. 

9. This consideration of the effect of any changes in the children’s circumstances and the effect of separation from a parent, favours the mother’s proposal especially as the Court has found that the father has not shown a willingness to facilitate a relationship between the children and their mother. 

Section 60CC(3)(e) relates to 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.

1. In this matter the proposal of each of the parents would mean that there would be practical difficulties and expense for the children communicating with the other parent.  The question is also how this would affect the children’s right to maintain those relations and direct contact with those parents on a regular basis.

2. As noted the father is not consistent in the evidence he gives about the mother’s financial needs. 

3. The mother was cross-examined about how she had financed her current stay in Australia and gave evidence about a loan from her parents. The Court finds that the mother has limited financial resources. 

4. The father gives evidence that he earns “something over $150,000.00 per annum”.  Mrs Sowden works full time as an [omitted].

5. The Court finds that the father is better able to meet the expenses of maintaining direct contact with the children than the mother. This is a consideration which favours the mother’s proposal. The father’s counsel submits that a difficulty the father would face would be the enforcement of an Australian Court law in Thailand in the event that the mother breached the orders for him to spend time with the children.  She raises the issue of the father’s legal standing in the Thai legal system given that he and the mother did not marry and on the evidence that no steps were taken to recognise his status as the children’s father in the Thai legal system.  It is conceded that the father would be likely to have difficulties accessing the Thai legal system and as noted could well have difficulty enforcing orders, even given that Thailand is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. 

6. However this is one of many aspects of the advantages and disadvantages of the proposals of the parties and it needs to be considered in the context of all the other issues relevant to the welfare of the children. 

7. On balance this consideration of the practical difficulties and the expense on maintaining personal relations and contact with a parent favours the mother’s proposal.

Section 60CC(3)(f) relates to the capacity of each of the child’s parents and 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.

1. Certainly the evidence is that the father has been very focused on the educational needs of the children, although because of his work commitments they have been moved between schools/pre-schools in Sydney and Adelaide on several occasions.

2. The Court has some concerns about the father’s capacity to provide for the children’s emotional needs particularly their need for a relationship with their mother.  The Court has found that the father has restricted the children’s contact with the mother since he resumed his relationship with Mrs Sowden.

3. The father told the family report writer that he believed that the children’s needs were better served in his care because of the questionable nature of the mother’s lifestyle. He said she had gambling issues and arranged for the children to be cared for by her parents and other relatives who do not value education. He said that while she gave up being a “go-go dancer and sex worker” when he began to support her, he believed that she might return to that lifestyle.  He said that she has no financial resources and that the home he built for her family is over crowded. He said that she would leave the children with her parents or expose them to inadequate village life where opportunities are few. 

4. The father acknowledged that he relied on other people to care for the children when they were in his care.  His evidence was that there was no other option if work was involved and agreed that there was no problem about this if the carers were appropriate people.  Under cross-examination he said that the mother can work where she wants to but “the issue is leaving the children with the paternal grandparents.”  The only criticism the father made of the maternal grandparents was that they did not value education.  He described Ms N, who also assisted with the children as “a decent and respectable person” whom he found to be quite good taking care of the children.   

5. The mother was questioned on the circumstances of her 12 year old son, [Z].  The mother acknowledged that [Z] would have been two or three when she went to work as a bar girl in Pataya.  She says that she worked for less than a year in Pataya which was about a nine to ten hour drive from Tak. She said that she would spend about three months in Pataya, come home for two weeks and then return to Pataya. Her evidence is that during that time [Z]’s father took [Z] to his home and that the paternal grandparents also assisted in his care.  She says that [Z] now primarily lives with her parents but lives in her home with her when she is in Thailand.

6. The father’s fear is that the mother will leave [X] and [Y] with the grandparents as she did [Z].  The father’s evidence is also that the mother ceased working at Pataya when he commenced financially supporting her.  It is not suggested that the mother has resumed this work, rather that there is risk that she might and it would take her away from the children.  It is not suggested that the mother has been in a relationship with anyone other than the father throughout this time.  The risk must be assessed on the basis of the mother’s behaviour over the last ten years.  Pressures that potentially could arise from her financial situation cannot be ignored.  The evidence is that as a result of her length of stay in Australia on this occasion her return airfare has lapsed.  She was cross-examined about how she was funding herself at present and how she would be able to fund a return airfare to Thailand.  She says that the money will be transferred from her parents and that she has some financial reserves from her [sales] business which she would draw on.  Certainly this need to rely on her parents reflects her straightened financial circumstances.  The father’s evidence is that she recently asked him for financial assistance when [Z] was admitted into hospital during her absence in Australia. 

7. The attachment observed by the family reporter between the mother and the children indicates that she has a capacity to meet their emotional needs. The father agreed that both children showed affection for their mother and loved her.[85]  The evidence clearly indicates that the mother is able to meet the emotional needs of the children.

   [85] Family Report dated 28 January 2009 at paragraph 27

8. Similarly, the family report writer observed a close relationship between the father and children[86] and the mother said she believes the children love their father and have a close relationship with him.  The father has shown that generally he can meet their emotional needs although his actions have shown that he has not appropriately fostered their relationship with their mother.  His developing relationship with Mrs Sowden occurred at the time the mother’s visits to Australia became more difficult.  There is every indication that the father was putting his own needs above those of the children, and their need for a relationship with their mother at this time, although he interprets his actions as being in the best interests of the children.

   [86] Family Report dated 28 January 2009 at paragraph 15

9. There is no doubt that the father can offer the children higher standards of living and better educational opportunities than the mother.  This is a factor in favour of his proposal.  At the same time, financial assistance from the father would improve the children’s prospects and opportunities in Thailand. He has said he would provide this assistance. 

10. The father agreed in cross-examination that during the mother’s long stay in Australia commencing November 2006 he was working and travelling away from home for block periods which amounted to

    
    

    two weeks out of every month and that while he was away the children were cared for by their mother.  The mother cared for the children again for three months in Adelaide between May and August 2008.  In total the mother cared for the children in Australia over the two periods for approximately 12 months.  For part of this time especially on the second occasion the father was away for work purposes and overseas for a significant part of the time.  He was clearly happy for the children to be in the care of their mother at this time.  He has given evidence that at some time he had obtained a visa for the mother so that she could care for the children.

11. More recently the father has expressed some concerns about the mother’s care of the children at these times.  [X]’s report that the mother hit him with a coat hanger when they were in Adelaide has been discussed.  The father also says that the mother seemed unsettled and at one point he was working rosters where he would be away from Adelaide for one to two weeks at a time.  He says that he would try to ring her each day to speak to the children but that on occasions she would not take his calls and that both her mobile number and the home number would not be answered.  He said “at one point in time I became so concerned about this that I called the police and asked them to check on the mother and the children”.[87]  While again this shows the father’s propensity to resort to the police, the fact that there is no further evidence about this matter must indicate that no problems were identified.  The father complained that the mother found caring for the two children by herself without the assistance of family members demanding.  This is not surprising given that she was alone in Adelaide with the children, and possibly without the benefit of ties with neighbours or friends given that the father felt it necessary to call the police to check on the home.  There is no evidence arising from the time she cared for the children in Australia that reflects adversely on her capacity to care for them. 

    [87] Father’s Affidavit sworn 5 November 2007 at paragraph 26

12. The father alleges that the mother has a gambling problem.  He made this allegation in the Adelaide proceedings where he said in his affidavit “Shortly after [X] was born I noticed that the mother was having gambling problems where she regularly would attend at local card playing games and gambling for money.  She could therefore leave [X] and [Y] with either friends or relatives for long periods of time almost every day of the week.  She admitted to me that she would leave the children for 3 to 4 hours at a time and sometimes longer.  When I would go to Thailand to spend time with her I would witness this gambling continued”[88].  In his affidavit sworn in the current proceedings he says “I noted that the arrival of [Y] seemed to have a positive effect on the mother.  I did not witness much gambling on the mother’s part during these visits.  She spent considerably more time with [Y] than she did with [X] when he as a younger child.”[89]  This inconsistency with the evidence that the father gave earlier must be a concern. 

    [88] Father’s affidavit sworn 5 November 2007 at paragraph 14

    [89] Father’s affidavit sworn 17 November 2008 at paragraph 2.16

13. The mother was cross-examined about her gambling.  It was alleged that the mother had told the father on the phone that she gambled every day.  There was no evidence as to when this was said or what period it related to.  The mother said she is not a gambling addict.  She said she played with family members.  She said this was social gambling and the participants played for one or two baht.  She also said that the father had been present when such gambling took place.  The father was asked whether he had observed this gambling.  He said “on a couple of occasions.”  He said that the mother would have taken him there and shown him what was happening and that he would shortly return.  The father said that it was a game of cards and the mother explained it was between friends and it was at the time when it was the Thai New Year and she said everyone around gambles.  The father said the mother told him that there were other occasions when she gambled.  It was put to him that he had given no details of anything the mother had told him about her gambling in his affidavits.  What the father has said he has seen in relation to the mother’s gambling could not be evidence of a gambling problem.  He does not allege that she gambled during the 12 months she spent in Australia.  On the evidence before the Court, the Court cannot find that the mother has a gambling problem. 

14. The evidence does not indicate that there are factors in the mother’s lifestyle that will be detrimental to the children. The standard of housing and education she can provide for the children is not likely to be of the same standard as is currently provided by the father who, compared to the mother, has a better financial capacity to enhance the children’s educational and material wellbeing. To his credit he acknowledged in cross-examination that he would continue to provide assistance to the mother if the children were in her care. 

15. The Court finds that the mother has a higher capacity to attend to the emotional needs of the children, although in the future [X] is likely to benefit from a paternal presence.

16. The proposals of each of the parties assessed in terms of the parties capacity to provide for the intellectual and emotional needs of the children are closely balanced. 

Section 60CC(3)(g) relates to 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;

1. Cultural issues are relevant in this matter.  The children were born in Thailand and as the family reporter notes, they spent their formative years there and have absorbed Thai culture. 

2. The Court finds that the chances of the children retaining connections with their Thai background and culture are limited, if non existent, with father’s proposal.  The father has shown little appreciation of the children’s cultural background.  The father’s proposal about enrolling the children in Thai language classes must be viewed as a superficial gesture given the likelihood that if the children were in the father’s care the mother would become less significant for them as time passes.  The lack of commitment in the father’s proposals of taking the children to Thailand and his apparent failure to do this despite what he said in the Adelaide proceedings are also significant. 

3. The father’s apparent lack of concern that his proposals mean the children would have virtually no relationship with their extended family in Thailand is also an indicator of his lack of recognition of the significance of the children’s background.  This is also reflected in the reference to religion in the children’s after school care enrolment at the [A] after school care centre.  The mother’s evidence is that she is Buddhist.  The after school care form completed for [X] at the [A] child care centre shows in the box where religion is to be indicated “none” and for [Y] “no religion”.  Mrs Sowden in her affidavit sworn 14 January 2009 says she takes the children to her local Anglican parish church. 

1. The Court finds that the father’s proposal would mean that over time the children’s connection with their Thai background and culture would diminish.  This is a consideration which favours the mother’s proposal. 

Section 60CC(3)(i) relates to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.

1. Both parents have shown a strong commitment to their children.  The father has acted in accordance with what he regards as the best interests of the children.  His focus has been particularly on their educational opportunities and material wellbeing.  The evidence is that he was able to arrange flexible working conditions for some time while they were with him in Adelaide but that this became impossible because of shift changes. He has sought to ensure that the physical needs of the children are met at all times and that they are well supervised. He has arranged before and after school care and has been available for them as reflected in the family reporter’s observations of their relationship with him. 

2. The mother has persevered in her attempts to have the children with her. She has sought to be with them in Australia, subject to visa requirements, and more latterly subject to the reluctance of the children’s father. She has remained in Australia to pursue these proceedings since October 2008 when her financial resources have been strained, she is required to borrow money from her parents and when her opportunity to see the children has been restricted. For a significant time she was not able to see the children at all. The mother was not cross-examined about the bona fides of her concern about what happened to her son [Z] while she has remained in Australia. It must be accepted that this has been another worry for her. She told the father that it has been very difficult for her being alone and not knowing what to do and this it has been reflected in her telephone calls to him. Her commitment to the children cannot be doubted. 

3. There is evidence of discussions between the parties about separating the children and that the mother would have returned to Thailand with [Y] alone.  On the other hand she gave evidence that this was not what she wanted and that she wants both children.  The Court accepts this evidence.  Her son [Z] on the evidence has mainly been raised by his grandparents.  However the mother has been in Australia for lengthy periods since the end of 2006.  There is evidence that she asked the father for assistance in bringing [Z] to Australia.  There is no reason to find that the mother would be anything other than a responsible parent to these children.

4. The Court has found that at a significant time the father put his needs above fostering the relationship between the children and the mother.  The father focuses on the educational and material needs of the children in what can be described as a rather uncompromising manner though the Court does not doubt that he believes that he is acting in the best interests of the children. 

5. At the same time there is no doubt that the father’s beliefs are likely to result over time in excluding the mother from the children’s lives.  This means a loss of what she can bring to the children in terms of their emotional needs, family connections and cultural background. 

6. The Court finds that the father’s actions in securing the care of the children and restricting the mother’s capacity to have a relationship with them means that in a significant way the father has not shown an appropriate attitude to the responsibilities of parenthood.  On balance this consideration favours the mother’s proposal. 

Section 60CC(3)(j) relates to family violence involving the child or a member of the child’s family.

1. The only family violence that has been alleged in this matter is the incident of the mother slapping the father’s face. The Court has considered circumstances of this incident and finds that it does not amount to family violence within the definition in the Family Law Act in that it would not have caused the father to reasonably fear for his personal wellbeing or safety.

Section 60CC(3)(k) relates to any family violence order that applies to the child or member of the child’s family. .

1. This consideration is not relevant.

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.

1. This does not favour the proposals of either parent.

Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.

1. Issues arising from this consideration have been discussed elsewhere in the judgment. 

Parental responsibility

1. The analysis of the respective proposals in the light of the considerations set out in section 60CC of the Family Law Act particularly in terms of their attachments and their future relationships with their mother indicates that the best interests of the children are more likely to be fostered if the children live with their mother in Thailand, with provision for time with their father in Australia and Thailand than if they live with their father in Australia.

2. Section 61DA states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

3. In this matter each of the parties has sought an order for sole parental responsibility.

4. The parent’s relationship is presently characterised by conflict and lack of trust.

5. However the evidence is that the children would benefit from a continuing relationship with both parents.  Both have much to offer the children and in many ways what they can offer is complementary.  For this reason it is in the best interests in the children to make an order that the parents have equal shared parental responsibility for them.

6. The Court having made this order is required to consider section 65DA. The Court must therefore consider whether the children spending equal time with each of the parents would be in the best interests of the children and whether the children spending equal time with each of the parents is reasonably practicable.

7. The Court’s consideration of this is affected by the nature of the parties proposals and the inevitability that the mother will have to leave Australia.  If the parents were able to live in some proximity to each other there may well be a benefit with the children spending equal time with each of the parents particularly given the father’s frequent absences in Adelaide.  However given that the mother has no option to reside permanently in Australia at this time an equal time arrangement is not practicable.  The same considerations apply to the possibility of significant and substantial time.  The Court will make an order that the children live with the mother but will provide for them to spend the maximum amount of time with their father which is reasonable in the circumstances of the parents residing in different countries. 

Conclusion

1. Mr Lemaire recommended that if the children were placed in the mother’s care, a regular and predictable pattern of time with their father should occur, for example a month twice a year which could be all in Australia or some in Australia and some in Thailand.  

2. There was no clear evidence given to the Court about the school holiday periods in Thailand.  The mother said that schools have been closed for some time over Christmas.  The father said he had made inquiries about Thai school holidays but gave the Court no evidence about this.  In these circumstances while the Court will make orders for the father to spend time with the children both in Australia and in Thailand it is difficult to be precise as to the timing of such arrangements. 

I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Walker FM

Associate: 

Date:  12 March 2009