MILLER & LENTON
[2010] FMCAfam 983
•10 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER & LENTON | [2010] FMCAfam 983 |
| FAMILY LAW – child – father Australian citizen mother Tanzania citizen – 8 month old baby born in Australia – mother in Australia on a two year Australian Development scholarship for [omitted] – mother due to leave Australia 14 September 2010 with no possibility for extension – child to remain in the care of the father in Australia. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Applicant: | Mr Miller |
| Respondent: | Ms LENTON |
| File Number: | BRC1122 of 2010 |
| Judgment of: | Baumann FM |
| Hearing dates: | 29 & 30 July; 19 August 2010 |
| Date of Last Submission: | 19 August 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 10 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Hall Payne Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Shoebridge |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That the Applicant Father have sole responsibility in respect of the long term care, welfare and development of the child [X], born [in] 2009.
That the Applicant Father have sole parental responsibility in respect of the day to day care of the child when she is residing with him.
That the child live with the Applicant Father.
That the child spend time and communicate with the Respondent Mother when she is in Australia on the following conditions and at times to be determined once the Mother’s plans and intentions to be in Australia are known:-
(a)That she notify the Applicant Father in writing of the dates on which she will be residing in Australia, thirty (30) days before the commencement date; and
(b)That she provide the Applicant Father with details of where she will be residing during her stay in Australia, that she reside at that place and that she also provide him with a telephone contact number at which she can be reached at all times.
That the Father keep the Mother informed of any major health issues or other issues affecting the welfare of the child.
That the Father keep the Mother informed of his residential address, home telephone number, email address, and an emergency telephone number.
That the Mother keep the Father informed of her residential address, home telephone number, email address, and an emergency telephone number.
That the Father shall undertake therapy as recommended in the report of Dr H, and for that purpose:-
(a)Shall provide to the ICL an authority to the therapist to keep the ICL informed of progress;
(b)The ICL shall have leave to provide the therapist with a copy of the report of Dr H.
The Independent Children’s Lawyer shall be discharged effective 31 March 2011.
IT IS NOTED that publication of this judgment under the pseudonym Miller & Lenton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Brisbane |
BRC1122 of 2010
| MR miller |
Applicant
And
| MS lenton |
Respondent
REASONS FOR JUDGMENT
Introduction
When the Mother in this case, Ms Lenton (aged 31 years) accepted an Australian Development scholarship to study [omitted] at a Queensland University she regarded herself as very lucky. As a highly educated native of Tanzania this area of study offered opportunities to learn and gather information likely to be of great benefit to her country. She won the scholarship over many hundreds of applicants from a number of African countries.
Although the Mother had to leave her baby son [Y] in Tanzania with her family, she accepted the scholarship and arrived in Australia on
19 January 2009. The visa which permitted her to enter Australia for no longer than two years was subject to two very important conditions:
a)The Mother could not stay after the visa expired and could not seek a substantive visa whilst remaining in Australia; and
b)A Special Return Criterion which prevents the Mother from returning to Australia for at least two years since leaving her course of learning.
Aware of these restrictions, the Mother, shortly after arriving in Australia, accessed an adult internet site which was designed to introduce adults for casual relationships. She met the Father (aged 43 years) on or about 15 February 2009 and on the first date they had unprotected sex.
The Mother fell pregnant and gave birth to a daughter [X] [in] 2009 and sixteen days later left the baby in the Father’s care so that she could return to Tanzania for work commitments and to see her baby [Y], now aged 2 years. The Mother returned to Australia nearly three months later.
By the time of the Mother’s return, the parents were in dispute about where and with whom [X] should live and are still in dispute, except the issue is now at a critical stage.
The Mother has flights booked to return to Tanzania on 14 September 2010. She intends to leave and says if she does not she will be deported and have to pay back her scholarship benefits. The Father says the child must remain in Australia with him. The issue is simple. The facts are complex. The alternatives are far from optimal for [X]. Time is running out and a decision, however difficult, must be made.
Issues
Does the child live with the Father in Australia, the result of which will be no time with the Mother for at least two years, or does the child return to Tanzania with the Mother on 14 September 2010 with the Father being unable to afford to travel to Tanzania to see the child regularly, if at all.
Principles
The orders I am asked to make are parenting orders and as such the Court must:
a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.
b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.
c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.
d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
e)When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010 HCA 4).
Structure of reasons
The focus of these reasons is directed to one reader in particular – the Mother. That is simply because the Court owes it to her to try and explain why it has decided it is in the best interests of [X] to stay in Australia and live with her Father. I do not expect to be able to do so to her satisfaction. She made it clear when giving evidence that she could not easily contemplate leaving Australia without her baby.
I am required for other potential readers of this decision to give a brief contextual history which follows and then I shall make some findings about the Mother, the Father and the two experts before an analysis of the primary and additional considerations as required by law. However in doing so, I will use language and an approach designed to explain to a heart broken mother how the Court has come to this position.
History
As already explained, the real story begins when the Mother arrived in Australia on her special student visa in January 2009.
Although the Mother claims the Father raped her on the initial occasion, it is conceded a number of further sexual occasions occurred in the first week of this casual relationship.
When the Mother was told she was pregnant, a discussion took place with the Father. A termination was discussed. The Mother said for religious and other reasons she would keep the baby. There seems to have been little further communication between the Mother and Father from April to June 2009 when the Father had a bike accident and was hospitalised.
The Mother says she agreed to live with him on weekends and look after him while he was rehabilitating. The Father had no employment and was then on sickness benefits. The Mother says they discussed her returning to Tanzania in December 2009 for “research” relating to her studies and that the Father would look after the baby in Australia.
There were a number of allegations made in the material about discussions and events before and shortly after the birth which I have decided do not assist me to resolve this issue. Suffice to say, this unusual cultural mix between two people who hardly knew each other but were having a baby together, included allegations of:
a)The Father having numerous pictures of naked woman on his walls at home;
b)The Father taking either posed or secret photographs of the pregnant Mother nude or semi-nude;
c)Attempts to access Centrelink funds for the “baby bonus” which the Mother says was to help [X] live in Tanzania;
d)Investigations by the Police and Department of Child Safety that the Mother was planning to sell the baby to the Father;
e)The Father attempting to bribe the Mother with payments (he gave her money for presents for her family when she returned to Tanzania [in] December 2009);
f)Threats to kill the Mother if she attempted to take the baby and the Father asking for half of the Mother’s bank account (of $15,000) if she wanted the baby back. These telephone calls are said to have occurred [in] January 2010.
The Father filed an application in this Court on 5 February 2010 seeking that [X] live with him. The Mother was served in Tanzania and claims she was “shocked” but did not return until March 2010. The Father did not facilitate any time between the baby and the Mother, fearing if she had the child she would leave the country.
When the matter was first mentioned in this Court on 10 May 2010, the Mother had spent no time with the child since 20 December 2009 – nearly five months earlier. On the day of the first Court date, the Mother filed a brief affidavit and a response prepared by her solicitors, seeking that the child “live with the Mother in Tanzania”. Although the Mother sought an order that the Father spend time with [X] on two days a week in Tanzania, she also raised the issue of paternity. On the first Court date, the Mother was represented by a Town Agent who had not been adequately briefed. I found the circumstances of the case amazing and troubling. The Mother, after further questioning from the bench, withdrew her concerns about paternity. I was extremely concerned the Mother was not seeing [X], however, the Mother’s material was deficient. I adjourned the matter to 27 May 2010; ordered an urgent family report and directed the Mother to make enquiries with the department of Immigration, amongst other things, to see what possibilities for an extension of her visa existed. I also ordered an Airport Watch.
When the matter returned to my list on 27 May 2010, I ordered the Mother to spend time with [X] each alternate day for six hours. Family report interviews with an experienced social worker Ms A were arranged for 22 June 2010 and took place.
The trial was listed to commence on 29 July 2010 with the parties to file material by 15 July 2010. The Court contemplated at that time the appointment of an Independent Children’s Lawyer, however with both parties being legally represented and the trial being less than two months away, there seemed no benefit in doing so.
Regrettably, the Mother lost legal aid funding and was forced to represent herself and prepare her trial material. The quality and order of the Mother’s material is a testament to her intellect.
The family report was released on 26 July 2010. Although the report writer refers to a book the Father wrote titled [omitted], the significance of that publication became stark when the Mother’s affidavit filed on 19 July 2010 was read by me. A copy of the book was attached. The Mother said she became aware of the book when she “googled” the Father in early July.
A transcript of the first day of the trial revealed that I attempted to assist the Mother, within proper boundaries, to present her case. The Father’s Counsel Mr Galloway was particularly sensitive and patient and agreed to cross-examine the Mother first. Other witnesses were called in the Mother’s case, however, after reading every page of the Father’s book overnight, on the morning of the second day of the hearing, I gave reasons for adjourning the trial to allow the appointment of an Independent Children’s Lawyer and the procuring of an independent psychiatrist to examine and assess the Father, particularly about his book and any sexual propensities he exhibited.
Although critical of the withdrawal of legal aid for the Mother, I have to acknowledge and thank Legal Aid Queensland for so quickly engaging Dr H and making investigations with the Department of Immigration, so as to be in a position when the trial resumed on 19 August 2010 for Counsel for the Independent Children’s Lawyer,
Mr Shoebridge, to be able to both examine the Father and make some helpful submissions. Without this assistance, the Court would have been in an invidious position to make this difficult decision.
The father
The Father is a first time Father. It is clear he probably thought his chances of being a Father had passed. His single life chronicled in his book (even though it was exaggerated) was filled with little responsibility and an obsession with sex. The evidence of Ms A and
Dr H support his claims of being an effective, caring and devoted Father. His general practitioner Dr C also speaks highly of the Father’s parenting approaches to the limited extent he has been able to observe the Father. The Father is supported by and lives with his 72 year old mother who gave evidence. This lady, [European] by birth, but an immigrant since 1964, was impressive. I have no doubt she would step in and protect [X]. I think it is likely that Father did not fully consider becoming a full time father until the Mother left in December 2009. Initially, his interest in the Mother was casual, but clearly when he was rehabilitating she helped him and he appreciated it. Strangely, they did provide a degree of emotional support to each other as they approached the birth.
The Father threw himself into the role of sole parent (assisted by his mother) when the Mother left to return to Tanzania. Although the Father’s behaviour when the Mother returned was not ample facilitation, the Mother’s actions on leaving and her claims no doubt incited the Father and I assume on legal advice he was reluctant to leave the child with the Mother unsupervised and without protection of a Court order. The Father appears to have recovered physically from the vehicle accident and does not intend to return to work until [X] is much older.
The mother
In assessing the Mother and her evidence, I am mindful of the fact that she comes from a cultural background quite different from Australia; was representing herself in a very unfamiliar legal environment; although able to write excellent English, Swahili is her first language and there were occasions (few in number) where clarification of English terms was necessary.
The Mother, in a word, presented as an outstanding and impressive person, highly intelligent and logical in thought but still only 31 years of age. She regards her obligations under her scholarship, to her country, her people and her employer [omitted] as paramount. She mentioned her obligations often. This of course raised concerns about the Mother’s commitment to her role as a parent compared to her other commitments.
In this arena, the Court is mindful of not assessing the Mother’s behaviour within the social norms of white Australian society. Although I had little evidence of the differences in this respect between Tanzania and Australia, I do accept it is likely there are differences culturally.
The issue that concerns me most about the Mother is not that she fails to love [X] or is not craving a relationship with her. She does and I regarded her occasional tears and emotional reactions as a genuine demonstration of the pain the possible decision could cause. She is a very strong and resilient person. However, within the space of two years, she has left two babies in the care of others (her mother for [Y]; the Father for [X]), whilst she pursued her career, research and work options. She says by doing so she is better securing the financial security of her children in Tanzania. Whilst that may be so, leaving [X] at 16 days of age for three months simply distorts, in my view, her primary obligation.
There is no evidence that the Mother sought to return to Tanzania before the birth, which the Father may have found almost impossible to prevent. Rather, earlier in her confinement, she made plans to go after the birth. Consistent with this troubling attitude is the apparent reluctance for the Mother to investigate and apply for an extension of her visas. Although the officer at the Mother’s University charged with the task of assisting international students was not aware of any available process to extend, it is clear from Exhibit 8 (procured by the Independent Children’s Lawyer) that although far from certain, an option to try and stay exists. The Mother has not, on the evidence, either applied or contemplated applying.
Of course [Y] awaits her return, but [X] is much younger and needs her Mother close in developmental terms. On balance, I regard these actions (and inactions) as reflecting sadly the Mother putting her own interests (and those perhaps of her country) before the needs of [X]. This is a critical parenting flaw.
The experts
Dr H
Arising from the concerns expressed by the Court about the Father’s book and some of the comments and assertions made in it, the urgently appointed ICL retained experienced psychiatrist Dr H to assess the Father. There was nothing in the material before the Court that triggered any suggestion the Mother should also be assessed.
Dr H interviewed the Father and produced a report dated 16 August 2010. He was the subject of cross-examination.
Dr H expressed the opinion that the Father “would not meet criteria for any psychiatric diagnosis”, and on the basis of the information gathered he further opined that:-
“OPINION
At the time of review Mr Miller was a 43-year-old man who was involved in a family law matter. He had never been charged or convicted of sexual or violent offences.
On the information available to me he would not meet criteria for any psychiatric diagnosis.
With regard to his personality he seems to give a history consistent with having some personality traits which resulted in him being a rather impulsive sensation seeking and at times rule breaking young man but these appear to have matured over time as is usually the case and he in my opinion did not reach the level of suffering form a personality disorder at the point in time of interview.
He seems to have come from a family where his mother has been a highly supportive figure throughout his life and his father was a rather critical and violent man. He appears to have been gone on to have had some difficulty with intimate relationships and eventually sought to deal with this via sexual preoccupation in my opinion.
The sexual preoccupation most likely was a way of dealing with his issues around self-esteem and unmet intimacy needs. This is not an uncommon male pattern in terms of dealing with unmet interpersonal and emotional needs. This appears to have gradually attenuated over the years and more particularly since he was about 35 years of age.
The book he has written, in my opinion, should be viewed in the light of expressing this preoccupation and also his frustration at the complexities of intimate relationships with women.
It seems to me that he continues to have somewhat rigid and inflexible views about women and possibly unrealistic expectations of a “perfect” relationship with a woman but that this appears to be maturing slowly over time.
There is no evidence to suggest that his sexual preoccupation has ever been turned towards paraphilic interests such as younger children or sadism or other criminal forms of sexual behaviour. There is no information to suggest that he is at increased risk of sexual offending.
There is no data suggest that his previous sexual preoccupation even if it continues in some form will have any detrimental effect on his parenting ability. In fact, it seems that being a parent may be a way in which he is meeting some of his unmet emotional needs in an appropriate and conscientious way and this often decreases the degree of sexual preoccupation an individual feels.”
The Mother, quite properly, raised her concerns with Dr H. In particular, relying on her evidence of the Father taking nude photos of her and exhibiting a number of provocative photos on his wall (together with his historical interest in pornography), she asserted the Father presents as a risk to this young child. Dr H clearly agreed that exposing a child to inappropriate pornographic material is likely to be harmful – however he did not assess the Father as likely to do so.
Dr H acknowledged that he could not entirely discount that the Father had not, as he says, experienced a diminished libido since the focus had moved to the full-time parenting of [X]. He also agreed that the Father’s growing focus on the child (not quite obsessive it seems) could, in the absence of adult balance, lead to an enmeshed relationship which is a risk in any “solo parenting” situation. The recommendation of Dr H for the Father to “see a therapist for psychotherapy around his issues in relationships” was taken up immediately by the Father. The Father gave evidence that he has consulted his general practitioner to develop a “Mental Health Plan” to allow a publicly funded series of appointments with a psychologist to begin shortly.
It is not necessary to incorporate large portions of Dr H’s report in these reasons. It is fresh in the parties’ minds. I accept the evidence and opinions of Dr H and give it significant weight.
Ms A
Ms A interviewed the parents, the paternal grandmother Ms E and observed the parents with the baby. A Swahili interpreter was available. A preliminary issue arose as to how, at the interviews on 22 June 2010, Ms A had knowledge of the Father’s book, as it was not revealed in the early affidavits. Ms A said that she was aware of the existence of the book, as a result of family report interviews conducted in another mater, where the Father Mr D was a party. Mr D was a boarder with the Father in this case. Ms A, before interviewing the Father, had read the book and put her concerns about the book to the Father. It would have been better for Ms A to have identified in her report the source of her information about the existence of the book.
The evaluation of Ms A is incorporated in full in these reasons, as it provided a balanced overview of the concerns and aspirations of the parents for this young girl, and the basis for the opinions expressed:-
“9.0 EVALUATION
125. These parents did not plan on having a baby or raising a child together. They had no relationship prior to the pregnancy. From this perspective they faced considerable challenges in terms of raising a child together. Added to this are their cultural differences and their different values and expectations. There is a good deal of conflict between them at present. From both their descriptions, [X] has been exposed to this at hand overs.
126. All the information gathered for this report indicates that it would be extremely difficult for these parents to co-parent. None of the factors that promote an effective co-parenting relationship are present. In addition, their plans are to live in different countries. Both indicate they are unable to afford regular travel to the other’s country.
127. Given these factors, it would seem impractical for them to share parental responsibility. They will be living in different time zones, different cultures and they have different expectations.
128. From their current positions, Ms Lenton and Mr Miller are effectively asking the Court to choose which parent will raise [X]. Both parents are anticipating the other will not play an active role in parenting [X].
129. [X] was less than 3 weeks old when she lost contact with her mother. She did not see her mother again until she was 5 months old. She therefore lost the opportunity to bond with her mother from an early age. The observations of
Ms Lenton’s interactions with [X] indicate there is not a secure attachment between [X] and her mother.
130. Such an attachment would take time and consistent contact to develop. Ms Lenton insists she cannot remain in Australia as her visa expires on 1.10.2010.
131. Ms Lenton made it abundantly clear that she wants to raise [X] and for this to be in Tanzania. She presents as feeling she has been punished as she has opted to complete her education in order to provide a better long term future for her children. She has also made it clear that she believes Mr Miller is morally unsuitable to raise a daughter.
132. Mr Miller is definite that he wishes to raise [X] in Australia. He has expressed concern as to Ms Lenton’s ability to care for [X] appropriately. He presented as devoted to his daughter. The observations showed a close bond between him and [X]. He has the advantage of practical and emotional support from his mother in caring for [X].
133. Given their close bond it is assessed that there would be a negative impact on [X] if she were to lose her relationship with her father.
134. A move to Tanzania would not only entail a different culture but also require [X] to adapt to a whole new set of carers. She has never met her maternal grandparents who would have an active role in caring for her. She has not yet met her half brother. She has been raised as an only child who is the sole focus of attention.
135. There have been allegations made to Dept Chid Safety. The Dept has conducted a home visit and a risk assessment. The assessment was that [X] was safe and there was low risk of harm.
136. Mr Miller has regularly taken [X] for review by his GP. He presents as conscious of the need to ensure her needs are will met.
137. Mr Miller presents as committed to [X] and determined to play an active role in raising her.
138. Ms Lenton presents as loving her daughter and wanting to be involved in raising her daughter.
139. Both parents are reliant upon the respective grandparents to assist them in caring for [X].
140. All the information gathered for this report leads to an assessment that [X] has received appropriate care whilst living with Mr Miller. Further, that removing [X] to Tanzania would significantly disrupt [X].”
Before Ms A was the subject of cross-examination on the final day of the hearing, the family consultant was provided with a copy of the report by Dr H. She indicated to the Mother that she held to the views expressed in her report.
The Mother, with some skill and a reflection of her preparation, identified a number of factual concerns which were all answered satisfactorily. Ms A accepted that the Child Concern Report in June 2010 was not substantiated. Most relevantly, Ms A acknowledged that when she assessed the bonding between the Mother and [X] at the interviews, she was aware that the Mother had spent limited time with the child since she was 16 days old. It would have been surprising, in my view, if the observations made by Ms A of the Father’s superior attachment and bond were any different considering the history of the first six months of [X]’s life.
Ms A sympathetically opined that the Mother lost a lot of opportunities to bond in those first few critical months of the child’s life.
Ms A said that she had weighed into her thinking and considerations, the entitlement for [X] to have a relationship with her sibling in Tanzania, but as the child has not had the experience of bonding with [Y], she really could take the matter no further. Clearly, it would be important for [X] to build a relationship with [Y], however whether those opportunities can be created will, in many ways, rely upon the decisions made by the Mother.
I give Ms A’s opinions significant weight in this matter. Clearly the observations made can only be a snapshot. As I have already noted, the best interests of [X] are not served by only having one active parent in her life, conceivably for at least the next two years, and it offends all the objects of the Act to do so when there are capable parents alive.
I put to Ms A what I gathered from the evidence and remarks of the Mother, to be a burning issue – namely isn’t it better and probably consistent with good parenting and common sense that a little baby girl should be in the predominant care of a mother. Ms A understood the issue raised – acknowledged that she holds a personal belief that gender balance is important – but reinstated that the professional opinion that the issue which “tipped” the balance in favour of the Father, was that the child at this time had a strong bond with the Father and that, at the time of the observations, the Mother’s “connection wasn’t there” and the Mother was not as attuned to the baby as the Father.
Primary considerations
Although both parents say it is in the best interest of [X] to have a meaningful relationship with both parents, the geographical divide that will be created for at least two years, conspires to prevent it occurring. Simply stated, if the Mother is unable (or does not wish) to return to Australia, then [X] will have no chance to build a meaningful relationship with her. If the child were to live with the Mother in Tanzania, then on the evidence the Father would have limited opportunities to maintain and nurture his current relationship. I am satisfied that if the parents lived in the same country (ideally in close proximity), then they would support and promote [X]’s relationship with the other parent. Sadly, that prospect of living close seems highly unlikely in the foreseeable future.
The Mother strongly urges the Court to find that the Father is a risk to [X]. In respect of his history of sexual behaviour, although I am not prepared to find the Father is without vulnerabilities, the weight of evidence does not establish an unacceptable risk exists. However, the Mother also relies upon her evidence that:-
a)The Father raped her. In that regard no evidence of complaint to Police was made, but more importantly I am satisfied further sexual intercourse took place between the parties and that the Mother took the step to actually live with the Father some of the time before the birth.
b)The Father has nude photographs on his wall. On balance, and considering the evidence of the Mother’s friend, Ms S, I accept the Father displayed photographs of women as alleged by the Mother. However, I am not satisfied that the Mother was an unwilling participant in respect of some photographs taken by her – although the Father should not have shown them to others (see Exhibits 4 and 5).
c)I do not accept the Father made racist remarks about the child as the Mother alleges.
It has to be noted that the Mother appeared to have few real concerns about leaving [X] in the care of the Father (all the previous events having occurred on her evidence) supported only by his elderly Mother, for a period of nearly three months, and also where she was a long way away. It is irreconcilable in my view, for the Mother to hold such real concerns about the Father and still leave to 16 day old baby with him as she did.
Additional considerations
The relevant factor which the following part of these reasons deal with are as follows:-
a)Nature of relationship (ss.60CC(3)(b));
b)Willingness to facilitate and the conduct of the parents in fulfilling the parenting responsibilities (s.60CC(13(c)(c) and (4));
c)Likely effect of change to the current situation (s.60CC(3)(d));
d)Practical difficulties and expense;
e)Capacity and attitude to parenting (s.60CC(3)(f) and (i));
f)Cultural background (ss.60CC(3)(g);
g)Family violence (s.60CC(3)(j)).
I chose to adopt a narrative style in dealing with these factors and rely upon, but do not repeat, earlier relevant findings.
As noted, the inevitable separation will have a disastrous effect on the Mother’s bond and relationship with [X] and give the child no opportunity to develop a relationship with [Y] or the Mother’s family. That effect weighs heavily on my mind, but is balanced against the severing (for that is exactly what would occur) of the established bond with the Father if the Mother were permitted to remove the child and take her back to Tanzania on 14 September 2010.
I think, as already observed, if both parents lived close, they could possibly and eventually make shared care work – however that is not an option with the Mother returning to Tanzania. The distances and lack of financial capacity make regular trips impossible. A child of [X]’s age needs frequency of time – and also the time must be physically interactive. Babies develop their bonds and sense of security and attachment form the basic senses of eight, touch and sound. Electronic communication (such as SKYPE etc) has no real benefit for a child this young.
I have already expressed concerns about the Father’s reluctance to facilitate time between the child and the Mother as soon as the Mother returned in early March 2010. In a perfect environment, and with good advice, the Mother could have urged the Court to list the mater earlier than May – however, she did not know how to do that and nearly three months of time was lost. I understand the Father’s concerns in the absence of a PACE Alert, which in this case was not unreasonable.
This decision has not been made by a comparison of raising a child in Australia compared to Tanzania. The Mother gave evidence, which I accepted, that Tanzania is a developed and developing country offering support, education and stability to its citizens. The Mother, as an example of the Tanzanian education system, speaks volumes as to its quality. The country is in no way “a third world country”. Although there were allegations (denied by the Mother) that she fed the baby dirt (to get iron) and gave the baby red wine (because they do so in her home country), this decision was not assisted by that evidence and I do not necessarily accept it.
One of the Mother’s difficulties was that she was a little vague about the arrangements that would exist when she returns – and particularly the supervision and care of [X] when she returns to work (after a period of maternity leave). I am satisfied that the Mother has the capacity to care property for the child in Tanzania and would make arrangements if she had work obligations.
The Father has demonstrated, as a first time father, and admittedly only for a matter of months, that he has an appropriate attitude to the responsibilities of parenting and a capacity to parent. I agree with the submissions of the ICL that he tried to present himself in the best light. I suspect his mother will continue to play a role, but I am satisfied it will not be a dominant role over the Father. In my view the Father did show some respect towards the Mother and I think he will need to continue to promote the Mother’s existence and love for [X], even in circumstances where she lives in Tanzania. I assess and find he will do so.
Culturally, it will be extremely difficult for the Father to be able to expose the child to the culture, traditions and customs of Tanzania. The Mother deposes to no community groups in [omitted] Queensland (although some Kenyan and other African support exists). It will be up to the Mother to be alert to finding age appropriate ways, as the child gets older, to assist the Father to inform and educate the child of her Mother’s homeland. Certainly, if the child lived with the Mother this would not be an issue. Although this factor weights in favour of the Mother’s proposal, it does not outweigh the other disadvantages to the child. Although there is evidence of a Domestic Violence Application being made, I am not satisfied, as between these parents, family violence is a significant issue. Certainly, tensions arose when the Mother returned – and was understandably frustrated by her lack of time with [X]. In any event, it now seems the parents will be living in different countries.
One issue raised by the Mother is that, essentially, she was told by the Father that he would allow her to return to Tanzania with [X], when her research scholarship finished. The documents lodged with Centrelink suggest that the Father at that time, regarded the child as living temporarily in Australia. Of course, even if there was “an understanding” it would not bind the Court. I am not satisfied there was such an agreement, although I assess the Father was probably ambivalent when the Mother left. By February 2010 I am satisfied that the joy of raising the baby had encouraged the Father to apply for an order that [X] live with him. His commitment for that to happen since then has only strengthened.
Evaluation
These are very unusual circumstances. In my view, the case was less a “relocation” type case and more a case of competing residence applications. The timing of the decision was not favourable to the Mother – but was brought about by the extraordinary fact that she is leaving the country on 14 September 2010; has decided not to try and stay; and is unlikely to return for at least two years.
The Mother says this is not a case about what is best for a nine month old girl, but rather where her long-term best interests be. It could be argued, analogously, that if the primary carer (who at the moment in this case is the Father) were to die, then the other parent would in time develop the same sort of relationship with a child this age. It may well be that the long-term best interests lie with the Mother in Tanzania. Of course, the Mother is not prevented from bringing such a future application if she believes it is in the best interests of [X].
However, I am of the view, at this time, and in this unique set of circumstances, the best interest of [X] lie with her remaining in Australia and living with the Father. The future is an area of unhelpful speculation, however, anytime the Mother can arrange to come to Australia (with or without [Y]) to see [X], full access should be facilitated by the Father. In fact the Father said he would, if necessary makes his Mother’s home available for the Mother to stay in.
The difficulties in practical communication are such that I believe it is in [X]’s best interests that the Father have sole parental responsibility. I propose to order that the Father keep the Mother informed of all major decisions and any significant health issues. As a result of the presumption of equal shared parental responsibility not applying, it is not necessary to consider whether equal time or substantial and significant time should occur. It is simply not reasonably practical because of distance. This is a consideration I have made as required, for completeness, under s.65DAA.
The ICL, who in final submissions supported the Father’s Application, says that the Father should commence and maintain a therapeutic relationship as recommenced by Dr H. The Father says he has begun to make those arrangements. The Therapist should have a copy of
Dr H’s report. The ICL offers not to be discharged for a period of time – say six months. I will make such an order.
This has been a difficult case conducted in a very short time frame. It clearly would have been better if the Mother could have remained in Australia for up to 12 months to allow [X] a real opportunity to bond with her. If a trial was held this time next year, the result may well have been different.
However, that was not an option in this case. The court, in exercising its discretion, was required to assess the best interest of the child now, allowing for the tragic reality that the Mother’s time with the child would rarely occur for some time if [X] remains in Australia.
It is to be hoped for [X] that at some time in the future, her Mother and brother will be able to travel to Australia – perhaps even live here. That will only occur if the Mother so chooses.
For the reasons given, the orders which I make are in the best interest of [X].
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 10 September 2010
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