Nonaka and Nonaka

[2019] FamCA 920

FAMILY COURT OF AUSTRALIA

NONAKA & NONAKA [2019] FamCA 920

FAMILY LAW – CHILDREN – International Relocation – where the father seeks permission to relocate with the child to Japan – where the child has been spending supervised time with the mother – where the mother has failed to comply with drug testing orders – where the mother has failed to appear – final orders made permitting the child to relocate with the father to Japan.

Family Law Act 1975 (Cth) s. 60CC
Family Law Rules 2004

APPLICANT: Mr Nonaka

RESPONDENT: Ms Nonaka

FILE NUMBER: BRC 5552 of 2016

DATE DELIVERED: 19 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 19 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Okamoto Lawyers

THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Mr P Dooley
Dooley Solicitors

Orders

1. That the child, X born … 2009 (“the child”) live with the father.

2. That the father and the mother have equal shared parental responsibility for all major long-term issues in relation to the child.

3. That the father have liberty to depart the Commonwealth of Australia with the child to reside in Japan by 31 December 2019.

4. That the child shall spend time with the mother as agreed between the parents, but failing agreement as follows:

   (a)Conditional upon the mother producing a negative drug test report from her attendance on 8 November 2019 and until relocation to Japan, every Saturday morning from 9.00am to 11.00am unsupervised at Park B, Suburb C (except for 23 November 2019);

   (b)Commencing in 2020 and in alternate years thereafter, eight (8) consecutive days for two (2) hours each in duration during July/August in Japan, with the costs of flight and accommodation to be borne by the father; and

   (c)Commencing in 2021 and in alternate years thereafter, eight (8) consecutive days for two (2) hours each in duration during July/August in Australia, with the father to deliver the child to and collect the child from the mother at the father’s expense.

5. That the mother’s time with the child under Orders 4(b) and 4(c) above shall be conditional upon the mother submitting to a drug test and producing a test report to the father showing negative for illicit drugs at handover, and in the event the test report shows positive for illicit drugs then the father is permitted to withhold visits and the mother shall reimburse the father for any cancellation costs in relation to airfares and accommodation booked to enable such visits.

6. That pursuant to Section 65Y(1)(c)(ii) of the Family Law Act 1975 the father be permitted to depart the Commonwealth of Australia with the child unconditionally.

7. That the mother shall not take steps to place the child on the Family Law Watch List and shall not procure a third-party to place the child on the Family Law Watch List.

8. That the father shall be at liberty to retain the child’s passport in his safe custody.

9. That the father and the mother shall do everything possible to have the child issued with an Australian and/or Japanese passport and that such passport be renewed each time they fall due for renewal.

10. That the father and the mother shall participate in mediation or family dispute resolution on a date as far as practicable one (1) year from the date of these Orders for the purpose of reviewing parenting arrangements and where necessary to formalise such arrangement by way of consent orders in Australia and/or Japan.

11. That the mother be at liberty to communicate with the child by telephone, Skype, FaceTime or LINE as agreed between the parents, but failing agreement from 7.30pm to 8.00pm (Japan Time) every Monday and Thursday provided that the mother notify the father by email of her desire to effect such communication no later than by 5.00pm (Japan Time) the previous evening.

12. That by this Order the father and the mother are hereby authorised to obtain such reports and information as he/she requires from any school, teacher, child carer, doctor, hospital or other treating professional in relation to the child, with the costs of such report and or fee to be borne by the party requesting same.

13. That following relocation to Japan, the father shall give authority to any school, teacher, child carer, doctor, hospital or other treating professional in relation to the child in Japan to enable the mother communicate with and obtain information from such professionals and organisations.

14. That neither parent denigrate the other parent in the presence of or in the hearing of the child, and they shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

15. That each party inform each other as to their respective addresses, telephone numbers, and email addresses within seven (7) days of change.

16. That the mother shall execute any documents forwarded by the father for the purposes of registering their divorce in Japan.

17. That each party bear their own costs of these proceedings.

18. That the Independent Children’s Lawyer be discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5552 of 2016

Mr Nonaka

Applicant

And

Ms Nonaka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. Sadly, the mother who has been engaged in constant litigation with the father in these proceedings, relating to their daughter, X, who is 10 years of age, has failed to appear today.  Her failure to appear is concerning because of the conversation the Court had with the mother, who is unrepresented in these proceedings, on 7 November 2019.  At that time, the mother indicated, as the record would reveal, that she no longer opposed X relocating to Japan.  The father is a native of Japan, although he has lived in Australia for a number of years.  The mother is Australian, but she lived with the father in Japan for some time before X was born.  As I recall, X was born in Australia.

2. The parties’ relationship is detailed at some length in a report prepared by Mr Dooley’s nominee, Mr Dooley being the Independent Children’s Lawyer (“ICL”), namely, Dr D.  The report is recent.  It is dated 31 October 2019.  The report indicates in its recommendations that the writer cannot:

   “…comment on the request for the child to reside in Japan with the father and spend holiday time with the mother…”

   for these reasons the report writer was uncertain about how parenting arrangements between Australia and Japan would be enforced. 

3. Certainly, the family report makes it clear that although there have been now more regular supervised visits between X and the mother at a facility at G Town called F Centre, the child has not, it seems, returned to the type of close relationship the mother had hoped through those visits. 

4. The reports show (now part of Exhibit 1 tendered today by the ICL) in the case that, in more recent months, there have been more consistent visits.

5. Certainly, there were a number of visits before, X was interviewed for the purpose of the family report by Dr D on 1 October 2019.  This is an important context because, although the child at 10 years of age now is not of sufficient age and maturity to understand the effect of a relocation to Japan, she is, at least, of an age where her wishes should be given some weight in my view, although not determinative weight.  At paragraph 6.01 to 6.17, Dr D sets out her interview with the child, concluding with:

   “She stated that she wanted to reside in Japan with her father and that she thought Japan was a better place to live than Australia”.

6. It is open to the Court to find, on the whole of the report, that the child knows full well that her father’s desire is that he live in Japan with her.  The information before the Court suggests that whilst the child has been primarily in the care of the father, he has maintained appropriate standards of parenting and that the child enjoys living with him.  There is nothing to suggest that, as he wishes to live in Japan, his standard of parenting of the child in Japan would be any less.  It, in fact, may improve because he will be a happier parent.

7. The concern that arises from a relocation to Japan is that there is very little likelihood that the child would see the mother in Japan because, it seems, the mother does not have the funds, and, even if she had the funds, it is not clear she has the motivation to travel to Japan.  I can recall, on the last occasion, she indicated to the Court from the Bar Table that she had no intention of travelling to Japan.  In those circumstances, although the father’s proposal post-relocation is initially in 2020, for eight consecutive days for two hours each in the June/July holidays, it is difficult to see how that will occur if the mother chooses not to go to Japan.

8. The father, it seems, is proposing, at paragraph 4(b) of his orders to meet the costs of the mother coming to Japan.  However, as I have already indicated, the journey to Japan does not seem to be something the mother is prepared to contemplate.  The other concerning issue in this case is that, not surprisingly in view of the mother’s previous use of drugs as set out in the report and the collateral material, the time the child should spend with the mother is conditional upon the mother completing an appropriate illicit drugs test, at least.  I had made comments on the last occasion that, in view of the material at this stage, and even though there has been evidence before the Court of the mother having a significant alcohol abuse problem that has required, at times, hospitalisation and admission to a clinic, there is no current test that would allow alcohol use to be really appropriately tested before visits.

9. On the last occasion the mother informed me – and I am told by the ICL which I accept that the mother has also informed him – that she no longer opposes X relocating to Japan with the father.  I made it clear to the mother that I wished to try before the child left in 2020 – which is when the father hoped to go so as to allow the child to start school at an appropriate time in Japan – I wished the mother to comply with an illicit drug screen.  I sought that and made such an order because it appeared to me in the evidence that the mother had failed to comply with at least three reasonably recent requests by the ICL for that testing to take place.

10. The mother sadly gave the Court on the last occasion, no evidence but a number of excuses from the Bar Table as to why it did not occur.  The transcript will reveal that on 7 November 2019 I was at pain to explain to the unrepresented mother the importance of her completing a drug screen.  In that regard, I indicated to her that I required her to complete the drug screen the following day, being Friday, 8 November 2019.  She indicated to the Court that she would do so.  I explained to her and I asked her whether she had sufficient funds to undertake the testing.  She answered in the affirmative.

11. Conscious of the timetable being set in this matter – not unreasonably in my view – by the father considering how long these proceedings have been before the Court, I listed the matter today hoping, perhaps even as far as expecting, that the mother would have completed the drug testing as ordered on 7 November 2019, on 8 November 2019 and had submitted a copy of her drug test results to the ICL so that it was possible to consider today the child spending time with the mother in a totally different environment than she has been for the last over 12 months, nearly 18 months.  Namely, where the Court being satisfied that the likelihood of the mother being affected by drugs was minimal, time could be unsupervised and the time between the mother and the child will be taking place in a context where the child would know that the mother was not opposing her travelling and living in Japan.

12. If the mother had complied with the order I made and if I made orders around some limited – not necessarily overnight – unsupervised time, then there was a chance that the child’s relationship with the mother may have repaired even further, such that when the child is in Japan, maintaining contact via electronic means – which seems to be the only means likely – it had a better chance of occurring.  Sadly, the mother has failed to appear today.  She has indicated to the ICL who has told the Court today that she did not do the test.  She said she did not have the money to do so.

13. In view of the mother’s poor track record in view of testing (including that she said she did not know she had to do it) and in view of the very clear dialogue I had with her on 7 November 2019, it is open to the Court to infer that the mother’s failure to comply with drug testing means that she may still be using illicit substances.  Such was the concern raised by Dr E in his psychiatric report.  Although, there are some positives about the mother in his report as well, in my view, it is not in the best interests of X to keep delaying these proceedings.  I cannot, in the circumstances, ignore the possibility that the mother’s failure to appear here today is strategic or tactical.  She is not an unintelligent lady.

14. Whilst I accept she very much loves her daughter and has been very distressed by the turn of events that have caused the child to live with the father and now to move to Japan – whilst I take into account that the mother has been able to visit her for some time now, it is, in my view, in the best interests of the child not only that the Court finalise the case today, but also, in the best interests of the child, that the orders sought by the father in his proposal – with a couple of slight amendments – be made on a final basis.  In forming this view, I give significant weight to the opinions expressed by Dr D.  I do not ignore the fact that the child has clearly aligned her views with those of her father, who has been desperate for her to live, in the future, with him in Japan.

15. However, that of itself is not a reason why the child should be required to remain in Australia with a mother who has only been able to exercise supervised time because she has not, it seems, dealt with drug issues which prevented moving into an unsupervised environment.  In any event, as I indicated, the mother, on the last occasion, indicated to the Court – and a record will indicate that I gave her great credit for so doing – that her relationship with her daughter is tenuous at the moment and unlikely to improve if the child continues to see her mother as the obstacle for her living in Japan, as she wishes to do.

16. I have considered all other relevant issues under section 60CC(a) and (b) which I have dealt with tangentially in these Reasons.  I have indicated I am prepared to expand these reasons if required to do so, however, I am satisfied the orders proposed by the father – with a couple of short amendments – are in the child’s best interests. The orders will permit X to leave the Commonwealth of Australia after Christmas 2019.

17. I have to acknowledge that there is a very strong likelihood that physical time between the mother and X will cease upon her living in Japan.  That is because:

    a)the mother will not travel to Japan even though she, as I say, has lived there previously;

    b)she could possibly, even if she wished to, not afford to do so; and

    c)the conditions, not unreasonably set by the father, that she provide evidence that she is no longer using drugs, are not likely to be complied with by the mother.

18. If the mother is unable, in the remaining time before the child leaves to go to Japan, to provide the drug test satisfactory to the father under the order, then time will continue at F Centre.  I say that because I do want there to be at least some continued contact between the child and the mother until she leaves Australia, but there is at least some prospect that the mother may not choose to turn up.  The father’s proposal – which I will mark Exhibit 2 in these proceedings – requires amendment to paragraph 5.  For the reasons I have indicated, I am not satisfied there is a test that allows the mother to do an alcohol test so I am just going to make it a drug test.  So in paragraph 5 I will remove where it says “for alcohol”.  So “positive for illicit drugs”.  So we will just amend that. 

19. The date for the child to reside in Japan I will make by 31 December 2019.  That he has got permission to depart by then.  It is up to him.

20. I have explained to the father that these orders having been made in the absence of the mother, the mother could seek to set aside these orders pursuant to the Family Law Rules 2004, but in so doing, she would need to satisfy the Court:

    d)why she failed to appear today;

    e)why she failed to undertake the drug test specifically ordered on 7 November 2019; and

    f)why, if that is the case, her position in relation to the child relocating to Japan with the father before the end of the 2019 calendar year has altered.

21. I will make those final orders.  I will discharge the ICL.  I will publish those reasons in due course.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 November 2019.

Associate:

Date:  7 January 2020