NOONAN & NOONAN

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOONAN & NOONAN

[2015] FCCA 2803

Catchwords:
FAMILY LAW – Father’s application for s.11F report – father seeking to keep children in Australia pending trial – children living predominantly in (country omitted) with mother – final orders by consent in December 2014 – mother failing to reveal domestic violence by her partner earlier in December 2014 – mother’s Rice & Asplund point dismissed – domestic violence incident clearly material change of circumstances – whether matter should proceed in Australia or (country omitted) – almost all witnesses living in (country omitted) – Rice v Asplund objection dismissed – father given opportunity to litigate in (country omitted).

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 64B(2)(i)

In the marriage of Rice & Asplund (1979) FLC 90-725
ZP v PS (1994) 181 CLR 639
Henry & Henry (1995) 185 CLR 571
EJK & TSL (2006) FLC 93-287
Eccleston & Eccleston [2013] FamCA 406

Applicant:

MR NOONAN

Respondent:

MS NOONAN

File Number:

MLC 10727 of 2011

Judgment of:

Judge Burchardt

Hearing date:

15 July 2015

Date of Last Submission:

15 July 2015

Delivered at:

Melbourne

Delivered on:

17 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Clancy & Triado

Counsel for the Respondent:

Ms Williams

Solicitors for the Respondent:

Coote Family Lawyers

ORDERS

THE COURT ORDERS THAT:

The Mother’s Rice & Asplund application be dismissed.
The matter be adjourned to this Court for mention before Judge Burchardt on 18 December 2015 at 9.30 am.

THE COURT NOTES THAT:

A.The Mother has given an undertaking to this Court that she will ensure that any time that her partner MR C spends with the children will be subject to supervision by an adult.
B.The Mother undertakes not to oppose an order in like terms to her undertaking given to this Court (noted in A above) in the event that the father files a proceeding in a court in (country omitted), such undertaking to expire on 18 December 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10727 of 2011

MR NOONAN

Applicant

And

MS NOONAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The parties met in (country omitted) in 2001. The mother is from (country omitted) and the father is from Australia. The mother’s visa ran out and she returned to (country omitted) in (omitted) 2001. The father either went with her or followed very shortly thereafter because they married in 2002. They remained in (country omitted) until 2010, when they returned to Australia. In the meantime, X was born on (omitted) 2004, Y was born on (omitted) 2006 and Z was born on (omitted) 2009.
They separated in Australia in October 2011, although there is a measure of dispute as to quite what the history of the relationship was prior to that time while they were in Australia, and by consent, following orders made on 30 November 2011 in the Family Court, I think, the mother and the children returned to (country omitted) in January 2012.
On 24 December 2013, the father filed an application. In substance, he sought that the children live with him for 21 weeks per year in Australia, and he further sought that his child support assessment be set at zero. There were, obviously, other matters in the application, but these are the ones that are of significance for present purposes. The mother’s response filed on 3 March 2014 sought, effectively, only that that application by the father be dismissed.
On 23 June 2014, Judge Turner dismissed the mother’s Rice & Asplund point, and in due course, a family report was ordered, to which I will return. On 11 December 2014, final orders were made, mainly by consent. The children were to continue to live with the mother in (country omitted). Time with the father was to be an alternating pattern of eight weeks in one year and nine weeks in this other year during the long (country omitted) holidays, essentially in the mid‑part of the year in Australia, and four weeks in Australia during the long Australian summer holidays, with two further weeks in (country omitted) during two of the Australian term holidays; in other words, a total of either 16 or 17 weeks with the father each year.
On 26 June 2015, the father filed his application in this case. It seeks a section 11F report as a matter of urgency and iterates that the full particulars of the father’s claim will be finalised thereafter. The mother’s response filed on 14 July 2015 seeks the dismissal of that application.
Notwithstanding those pleadings, the real issues are more complex. The children are due to return to (country omitted) on about 3 August 2015. I think the mother’s affidavit says she would propose to leave on the 4^th, but nothing turns on this minor discrepancy. The father wants the section 11F report, but, in truth, what he really wants is to keep the children here. The mother has raised a Rice & Asplund point, but she has indicated in her affidavit material she will come to Australia to attend a section 11F conference if so ordered.
It is appropriate at this stage to examine the relevant law that governs the way in which the Court should approach the matter, and I would start with the case of ZP v PS (1994) 181 CLR 639. I commence by reading the head note:
“The Family Court has jurisdiction to make a summary order that a child residing in Australia be returned to a foreign jurisdiction so that the foreign court can determine questions concerning the custody of the child.”
I will omit reference to authority:
“In a case in which the question arises of whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction, the first issue is whether the welfare of the child requires the making of a summary order that the child be returned to the foreign jurisdiction. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. The doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction.”
That was the finding of the whole of the court, and there is extensive authority then referred to. Here, of course, the children are within the jurisdiction, although, as counsel for the mother points out, they are not resident within the sense that that term is known at law.
I also note that the terms of the Family Law Act have changed since the decision of the High Court in ZP, which was given in 1994, but the relevant similar section of the Act is now s 60CA, which I will read out, and it is, to all effects and purposes, to identical effect to the law as it was articulated in that earlier case. Section 60CA of the Family Law Act 1975 (“the Act”) reads:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Here it should be noted that the father’s application for a s 11F conference is clearly a parenting order; see s 64B(2)(i). There are, however, some passages in the High Court’s decision which it is worth paying attention to, and at page 647, Mason CJ and Toohey and McHugh JJ said, relevantly:
“Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access. Its duty is to make such order as will “best promote and protect the interests of the child”. It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction. In In re F (Abduction: Custody Rights), Neill L.J. said:
“The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.”
In the same case, Lord Donaldson M.R. formulated the approach which must be taken when an English court hears a submission that the welfare of a child within the jurisdiction requires that a foreign court should decide a question concerning the custody of the child. His Lordship said:
“The welfare of the child is indeed the paramount consider-ation, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made.”
That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
In Re R. (Minors) (Wardship: Jurisdiction), Ormrod L.J., giving the judgment of the Court of Appeal, summarized the reasons why the welfare of a child may require the making of a summary order that the question of custody be determined in a foreign jurisdiction. His Lordship said:
“In a sentence, they are alienation from background, home, schools, friends, relations and, ultimately, from his country and its society and culture. These dangers have to be weighed against the risk to the child of possible, perhaps probable, separation from the mother, of being entrusted to the care of a father whose capabilities and fitness to act as a single parent may be in doubt, in surroundings which may be unfavourable in themselves, and of being subjected to a regime of law under which the protection of their interests may be open to question … The fitness or unfitness of the mother’s arrangements and the prospects or lack of prospects for the children if they become settled here, are also material considerations.”
I just interpolate briefly at this point and observe, of course, that there is no suggestion for a moment that (country omitted) curial authorities would be, in some fashion, open to question, as was the case in that case.
A further extract from the joint judgment of Brennan and Dawson JJ at page 663 to 664 is also, in my respectful view, relevant. Their Honours said:
“When a child is abducted from one country and brought to Australia and the abduction is not covered by the Convention, the abduction is relevant only by reason of the effect it has on the child’s welfare. In this respect, the judgment of Buckley L.J. in In re L. is unexceptionable:
“To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts … which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experienced of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country, may well be regarded as being in the best interests of the child.”
The next case which touched upon this matter was the High Court’s decision in the celebrated case of Henry & Henry (1995) 185 CLR 571. It is only necessary to read out paragraph 1 of the head note:
“Held, (1) that the test for determining whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum. This requires the court to determine whether the continuation of proceedings in the local court would be oppressive or vexatious in the sense those terms were used by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247.”
In EJK & TSL (2006) FLC 93-287, a Full Court of the Family Court returned to consider the matter, not least because there was dispute as to the extent of the operation, so to speak, of the High Court’s observations in Henry. On one view, they might be felt to have applied to any matrimonial proceeding, including a parenting proceeding.

On another view, it was thought that that might not be so.
I think it is fair to say, in my respectful view at least, that the Full Court of the Family Court did not accept the proposition that the Voth doctrine, as disposed in Henry, applied to parenting cases, as least in some circumstances.
At page 80,924 the Full Court, having traversed all these matters, said:
“We consider the following principles can be distilled from authority:
(i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii)     in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii)    the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;
(iv)    in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);
(v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi)    in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
(vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.”
The final case to which I will refer is that of Eccleston & Eccleston [2013] FamCA 406. Once again, and slightly differently to this case, as indeed in EJK & TSL, it was a stay application. The mother was in Australia. The father was in (country omitted). I would read out paragraphs [33] and then [68]-[69]. In paragraph [33], Aldridge J said:
“In Pascarl & Oxley [2013] FamCAFC 47 the Full Court said at [86 and 87]:
We do not understand anything said by the Full Court in Karim & Khalid (including at [60]) to be inconsistent with what we have earlier said at [73], being that the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
In this case, it is not clear that the child is within the jurisdiction. Nevertheless, the application by the father is one for parenting orders under s 64B and s 60CA provides in deciding whether to make a particular parenting order in relation to a child, the court must regard the interests of the child as the paramount consideration. For these reasons, even although the child may not be within Australia, the principle upon which to decide whether the Court should exercise its jurisdiction must be determined by the best interests of the child as being the paramount consideration.”

At paragraphs [68]-[69], Aldrige J continued:
“68. Secondly, in ZP v PS (1994) 181 CLR 639; (1994) FLC 92-480 at CLR 647 members of the High Court said:
“It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. In justice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a form non conveniens case are not relevant issues to make custody application. In some cases, those matters may bear on issues which touch the welfare of the child they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum.”
69. Whilst the court there was speaking of a somewhat different statutory scheme which was then contained in the Act their Honours comments as to what constitutes the forum non conveniens test are still apposite. The issues raised by the father are only relevant to the extent they bear on the best interests of the child.”
I turn now to the materials filed in the proceedings, and I would indicate that I have read the whole of the file and had regard to it, but, in my view, the appropriate starting point is the family report of Ms E dated 3 November 2014, from which I propose to read relatively extensive extracts. Having set out some background matters, Ms E’s report reads – indeed, I read paragraphs 11 to 13:
“11. Mr Noonan is currently in a relationship, and is living together with his partner, Ms H (sic) Ms H, at the home of the paternal grandparents in (omitted), Melbourne. Ms Noonan is also currently in a relationship with Mr C, who has primary care of his four children, A (14), B (13), C (9) and D (8). They do not live together at present, although the children attend the same school. At present the children and Ms Noonan live with the maternal grandparents.
12. Mr Noonan reported seeking parenting orders in line with his initiating application filed on 24^th December 2013. This includes the children spending time with him in Australia for approximately 15 weeks from around March to July each year. This would include attendance at a Victorian school for the entirety of the second term each year, along with the preceding and proceeding school holiday periods, until the children reach (country omitted) High School age.
13. He also seeks additional time with the children in (country omitted) for approximately two weeks during the Australian school term three holidays (generally from September/October), along with four weeks during the Australian summer school holidays (which would include arrangements to celebrate Christmas). His application appears to essentially equate to an equal shared care arrangement, being approximately 21 weeks per year with the children (approximately 5 months). He also seeks that the current telephone/Skype schedule is maintained.”
At paragraph 18, the family report continues, and I will interpolate some comments from time to time as I go:
“Mr Noonan presented as friendly and polite upon interview. However, he also appeared somewhat self-focused and highly blaming of the mother for their inability to resolve the parenting dispute, and for the difficulties within the parental relationship post-separation. In this regard, he appeared to display limited insight into his own contribution to the ongoing parental discord.”
I would interpolate and say that I agree. That is very much the tenor of his affidavit material filed up to that time.
At paragraph 22 of the family report continues:
“Both parents raised concern that X appears to have developed anxiety about her parents being in close proximity because of the ongoing tension between them. Mr Noonan appeared blaming of the mother for not being more mindful of this. Both parents also asserted that it is difficult to negotiate with the other parent and their communication in this respect appears strained.”
At paragraph 23 of the family report continues:
“Mr Noonan reported requesting regular updates from the mother about the children’s progress and activities, in order to ensure that he is kept abreast of their daily lives and also to have a point of discussion when speaking to them each week. He acknowledged that Ms Noonan has facilitated this request and thus he is generally kept aware of most aspects of the children’s lives. However, he raised concern that Ms Noonan does not always consult him when making decisions in relation to the children, for example when changing Z’s kindergarten. In this regard he felt disrespected as a co-parent.”
That strikes me, I would say, as being something of an overreaction.
At paragraph 26 of the family report continued:
“Both parents appeared of the belief that the children feel placed in the middle of the parental dispute and feel a sense of responsibility to choose sides. In this respect, it appeared the children have been telling each of the parents what they believe that parent wants to hear. However, this is not uncommon in separated families.”
I emphasise each child is telling each parent what they think they want to hear.
At paragraphs 27 to 30 of the family report continued:
“27. Mr Noonan reported considerable difficulties with the children becoming distressed upon separating from him at the conclusion of his time. He reported that Y in particular becomes upset and would prefer to remain with him. In contrast, Ms Noonan believed that the father’s behaviour exacerbates the children’s distress, by becoming upset when saying goodbye to them and drawing out their departure. She claimed the children often comment about how it upsets them to see their father distressed.
28. Upon interview, Mr Noonan confirmed that he often found it stressful to say goodbye to the children and to maintain his composure. In this respect, he acknowledged typically becoming upset and crying in the children’s presence when saying goodbye to them. Whilst it is natural for Mr Noonan to become melancholy upon the departure of his children, given the distance between them, it will be incumbent on him that he does not allow his own emotional difficulties to impact upon them. In this respect, he may benefit from counselling assistance in relation to the separation from his children. Similarly, the children will likely benefit from ongoing counselling assistance related to their purported difficulty separating from both their parents on changeover.
29. Mr Noonan raised concern in regards to the children previously attending upon a psychologist for counselling, given that he claimed such service had been unwilling to consult with him. He believed the children had initially required counselling support after the parental separation and relocation away from him. However, he has since withdrawn his consent for them to continue with their previous counsellor given he has been unable to become involved. He claimed that the psychologist reported the sessions as confidential, and would also not facilitate international calls, despite Mr Noonan’s willingness to pay. Whilst it would be important for the parents to become involved in the children’s counselling where deemed appropriate, retracting their capacity to receive such service does not appear to be in the children’s best interest.
30. Mr Noonan has been in a relationship with his current partner, Ms H, for the past two and a half years. Ms H is also reported to have originated from (country omitted) and her family remain in (country omitted). However, he claimed that they had no intention of relocating to (country omitted) as he had initially envisaged after the parental separation. He appeared to lack any insight into the impact of this decision on the children’s relationship with him in the future.”
At paragraph 35, the family report continued:
“Ms Noonan reported that it was imperative for the children to witness their parents getting along and an absence of tension between them. She reported suggesting to Mr Noonan that they go out for ice-cream with X in order to assist her anxiety in this respect. She would also like to meet the father’s partner so the children could see them all getting along.”
At paragraph 38, the family report continued:
“As with Mr Noonan, the mother claimed that the children cry during most changeovers between the parents. However, she appeared to normalise this more than the father, who appeared of the belief that the children’s reaction had related to them wanting to be with him. Ms Noonan made comment that the most recent changeover had not been distressing from the children, given that this occurred between the father and her partner Mr C, instead of her. She believed that Mr Noonan was less likely to become emotional in front of her partner, and thus the children had not become emotional either.”
At paragraphs 40 to 41 of the family report, which is by this point assessing X, says:
“40. X was reported by both parents to have been impacted emotionally by the parental dispute and tension between them. In this regard she is not comfortable when her parents are in close proximity and has elevated anxiety associated with this. Otherwise X is reported by her parents to be a typically happy child who is talkative, inquisitive and athletic. She currently plays (hobby omitted) and does (hobby omitted) in (country omitted).
41. Upon interview, X presented as highly anxious, despite being largely unaware as to why she was required to attend the assessment. She reported finding it difficult that her father did not live in (country omitted) and that she wasn’t able to see him regularly. She reported a preference for the parenting arrangements to be “fair” and equitable between each of her parents.”
At paragraphs 43 to 45, the family report continued:
“43. X acknowledged becoming sad at times when leaving each of her parents, and reported some difficulty going back and forth between them. However, she claimed that her father and brother Y often become significantly more upset than she does.
44. X acknowledged that she would typically become “nervous” when her parents were in the same room or attended the same event as they typically do not agree with one another or get along. Consequently, she worries that they may argue and that this would upset the entire family. However, she did not elaborate on this or provide any example of them having argued in public previously.
45. X reported getting along well with both of her parents respective partners and with Mr C’s four children, whom she appears to have developed a good sibling relationship with.”
At paragraphs 47 to 48, in dealing with Y, the family report says:
“47. Y appears to have a particularly close relationship with his father and appeared impacted by the geographical distance between his parents. In this respect, he reported

a desire for them to reconcile. He reported missing each of his parents when not spending time with them, and also acknowledged missing his pets at home, when he is in Australia. He reported becoming sad when leaving his father because he loves him.
48. Y reportedly enjoys attending school in Australia, and claimed that he would prefer this than staying home with his grandparents. Although he is happier when at home with his father than being at an Australian school. He reported having

a positive relationship with his mother’s partner and Mr C’s children, and claimed that it would be “fun” to live with

Mr C. As with his sister, Y reported a desire for equal time between each of his parents.”
At paragraph 51, in dealing with Z, who was much less able to be engaged within the family report given his young years, the family report says:
“Z acknowledged that Y cries a lot when saying goodbye to their father due to missing him, but denied that he or X cried in this regard. He reported his father typically cried when saying goodbye to them, however, the impact of this on Z remained unclear.”
In the evaluation section of the family report at paragraphs 52 to 54, Ms E said:
“52. The current matter before the Court relates to the parenting arrangements for 10 year-old X, 8 year-old Y and 5 year-old Z. Central to the dispute is the time that the children spend with their father and the impediments of the geographical distance between the parents’ respective homes. The issue of the children’s attendance at two schools in different countries also arose through the assessment. The differences between the parents, their inability to resolve their disagreements amicably or in the children's best interests, and the tension between them, appears to be impacting negatively upon the children at present, and will require the parents making a more concerted effort to resolve.
53. This assessment would suggest that Mr Noonan’s application appears self-focused and is not attuned to the children’s needs or best interests. In this respect, he is seeking that the children attend two different schools, with limited regard to the potential impact that this may have on them as they develop, or their loss of school holiday time as a result. Mr Noonan appeared to prioritise his own need to spend additional time with the children in this regard, and he does not appear fully cognisant of the potential impacts of his proposal upon his three children.
54. On face value it appears inappropriate for the children to attend two different schools, or for them to attend school as a form of child care arrangement during any time spent with their father. Having the children attend school in Australia appears to benefit the father’s needs primarily, given that he will likely be working during a large proportion of the children’s time with him. It is doubtful that it would be appropriate for children living primarily in Australia to attend two different schools in differing states of the country. Thus, it would appear even more inappropriate for the children to attend two schools in differing countries, particularly given the differing curriculums and competing school timetables.”
At paragraphs 62 to 63, the family report says:
“62. At present it appears probable that the father’s behaviour has impacted upon the children more predominantly than that of the mother’s, particularly in relation to his difficulty with self-regulation around the children. He appears to have ongoing and unresolved resentment towards the mother that will require his attention in order to ensure the successfulness of any future parenting arrangements. He also needs to better manage his emotions to avoid weeping at changeovers in front of the children. The mother will also need to ensure that she continues to support the children's relationship with their father.
63. The father reported that maintaining sole responsibility for travel expenses is likely to place him in an untenable position financially as he is currently relying on borrowed money to fund such expenses. This appeared particularly relevant to his time spent with the children in (country omitted), which is currently at the parent’s discretion. In contrast, the mother claimed that she is unable to assist with travel expenses given that the father reportedly pays minimal child support. This issue will likely require the court’s adjudication, as the success of any future parenting arrangements will be highly correlated with their capacity to maintain the requisite funds to travel.”
Now, I pause for a moment and refer back to the orders that were ultimately made by Judge Turner. The result, as I have said, was some, I think, 16 to 17 weeks with the father in Australia per year. More particularly, the child support issue appears to have been resolved at least to the parties’ sufficient satisfaction.
The next relevant document to which it is necessary once again to pay quite a degree of attention is the father’s affidavit in support of this application, affirmed on 25 June 2015. If any question arises in the future as to how there is an ink smudge on the front page, I own up.
Having set out some history, the affidavit deposes at paragraph 17:
“Although ultimately I always wanted the children to live with me in Australia, I focused on seeking more certain and workable orders which would enable the children to maintain

a meaningful relationship with me in the future as best as possible given the tyranny of distance. This was a very difficult decision but I was trying to make the best of a difficult situation and I was reluctant to again uproot the children given they had by then settled in (country omitted).”
At paragraph 24 of the affidavit it says, and this is describing the event that has given rise to this application:
“In summary, the children were present and witnessed a serious incident of family violence perpetrated by the Mother’s partner, Mr C, against her on 6 December 2014, some 5 days prior to the final hearing. The incident was not disclosed to me by Ms Noonan at the time or at all.”
At paragraphs 30 to 31, the affidavit asserts:
“30. I understand that Ms Noonan and Mr C separated briefly after the incident but resumed their relationship some 3 weeks later.
31. Ms Noonan and Mr C told the children not to tell me or talk to me about what had happened.”
At paragraph 35:
“In Court on 11 December 2014, Ms Noonan informed me (through Counsel) that she had separated from Mr C. At the time, there had been ongoing issues with Ms Noonan attending the children’s school pick-ups whilst the children were spending time with me, causing the children to become anxious. Ms Noonan had previously advised that she was only at the school to collect Mr C’s children, who attend the same school. In Court, Ms Noonan advised (through counsel) that this would no longer be an issue because her relationship with Mr C had ended. No other details were provided.”
At paragraph 36 the father deposed:
“When I spoke to the children after Court, I asked them if they were feeling okay about Ms Noonan separating from Mr C. They told me they “weren’t allowed to talk about it”.”
I continue onto paragraphs 37 to 42:
“37. When the children spent time with me in (country omitted) in December 2014, they informed me that they thought Ms Noonan and Mr C were back together. They later confirmed this. Ms Noonan also confirmed this to me in a co-parenting counselling session we attended in (country omitted), in the presence of the counsellor.
38. From time to time I noticed them acting strangely and showing some signs of distress. For example, in January 2015

I took the children out for dinner. During the course of the evening, I was offered and poured a beer. I do not usually drink. Y became very anxious and then broke down in tears. I comforted Y and did not end up drinking the beer. He did not say anything further at that stage. X also reported to me that she no longer stayed at Mr C’s house even though the boys do. I understand that she used to stay over there. I am also aware that she used to take Melatonin medication to assist her to sleep when she was in (country omitted). This was not required when she was living with me.
39. I continued to think about these issues after the visit and they concerned me greatly. When the children next spent time with me in April 2015, I tried to ask Y why he became upset when I had been offered a beer. He said he did not want to talk about it. I gently pushed the issue with him. I asked him if somebody had hurt him and he said no. I asked him if somebody had hurt his mother and he said yes. He started crying and said he did not want to talk about it any more. I did not want to push him.
40. On a few occasions I tried to broach the topic subtlety (sic) with the children. However, whenever I tried to raise it, they became uncomfortable and said they did not want to talk about it.
41. I was concerned with the safety and welfare of the children. I spoke to our co-parenting counsellor in (country omitted) for advice. We agreed together that the best course of action was to wait until the children arrived in Australia in early June 2015 to spend time with me, so that I could ensure the children were safe and then address the above matters.
42. I continued to think about the children’s behaviour after

I returned home and it really concerned me. I discussed the issue with my partner Ms H and we both had a “bad feeling” about it. We decided to investigate online to see what we could find.”

Now, I would interpolate here and say that these inquiries made of the children were, looked at objectively, both understandable but entirely inappropriate. It is clear from these paragraphs that the father was seeking to, as it were, sustain a suspicion, albeit of an inchoate sort, that he had already formed. It is also apparent from paragraph 41 that he was waiting until the children were in Australia before he pressed the point home. This was because he was scared that something might emerge, as the affidavit itself later makes plain, and that the mother would then not let the children come to see him. It is clear that he took a witting decision not to ask the one person he might perhaps have asked, namely the mother herself.
The affidavit goes on at paragraph 43 to detail the discovery of a Police log from (country omitted), which is annexure “C” to the affidavit. Annexure “C” shows that Mr C of (country omitted) was arrested by the (country omitted) Police on 12 June 2014. That is actually incorrect, because the text of the document says:
“On December 6, 2014, authorities made contact with one Mr C. The suspect was discovered to be in violation of “273.5(D)”, related to “Inflict corporal injury on spouse, cohabitant, or fiancé by strangulation or suffocation”.”
Then there are details of his age and address. There is a further screen dump on the following page which says:
“8:16 p.m. - Mr C, 34, of (country omitted), was arrested for domestic violence assault by strangulation/suffocation on (omitted).”
The actual criminal outcome is annexure “D”, and what Mr C in fact – he obviously pleaded guilty, as we would put it at least; I think in (country omitted) the language is slightly different – to a breach of section 243(e)(1) of the Penal Code, “in that he did wilfully and unlawfully use force and violence on the person JANE DOE” – but I do not think that there is any question that it is the mother – “a person with whom the defendant currently has a dating relationship.”
He was also found guilty of a breach of section 594(a) of the Penal Code, a misdemeanour, “in that he did unlawfully and maliciously deface with graffiti and other inscribed material and otherwise damage and destroy real and personal property, to wit, DOOR not his own, belonging to (omitted).” Annexure “D” is what he actually pleaded to, and it is not consistent with the reference to strangulation in annexure “C”.
The sentence imposed on Mr C includes, relevantly, “no further jail”, so there must have been some period of time during which he was incarcerated, one would infer. But when you turn to the fines that were imposed on him, (and other significant matters to do with probation and the like were also imposed), one sees that the fines were essentially almost entirely effectively fees. He was also fined $150 restitution for the door, which presumably means he had to have it made good, and he was fined $400 for domestic violence.
Now, it is axiomatic – and perhaps one does not need to say it, but

I think I should – that all domestic violence is abhorrent. So much is datum. But on any view of the matter and assuming, as one reasonably might, that (country omitted) authorities would regard family violence with the same abhorrence that authorities in this Court would, these are relatively low-end fines.
To return to the father’s affidavit – paragraphs 49 to 54:
“49. I was very concerned about the welfare of the children. They were by this stage due to arrive in Australia in about

2 weeks’ time. I knew that Ms Noonan would try to prevent the children from travelling to Australia to see me if I raised my concerns with her. Ms Noonan had already been pressuring X not to come to Australia to spend time with me in accordance with the Current Orders and to instead stay in (country omitted) to celebrate her birthday on (omitted). X was a little upset that she would not get to celebrate her birthday in (country omitted) with her friends. X and I discussed this issue with X’s counsellor, Ms P, and decided that it would be best for X to have a party with her friends in early June before she came to Australia. Rather than organising the party, Ms Noonan continued to suggest to X that she should stay in (country omitted) for her birthday and also blamed me and denigrated me to X.
50. After the children arrived in Australia on 8 June 2015, I was able to sit down with them individually and together to ascertain what had happened and to see how they were coping.
51. I had a one-on-one conversation with Y. I asked why he felt uncomfortable around alcohol. He looked very anxious and eventually started crying. He said he was afraid he would “get in trouble” and that “he didn’t want to get in trouble for talking about it”. I reassured him that everything was okay and that I just wanted to help him. He finally opened up. He told me that his mum had been drinking and that Mr C had hurt his mum. He told me that it happened at (omitted) and that he saw it happen and Mr C’s children were there too. He said the Police came. He said that his mum had later told him not to talk about it and, specifically, not to tell me what had happened. I asked him if he had seen a counsellor or spoken to anyone about it and he said no.
52. On another occasion I heard Y and Z arguing outside. I went outside and saw Y had pushed Z to the ground and was sitting on him and fighting with him. I asked them what had happened and told Y his behaviour was unacceptable. I asked him why he would behave like that and asked him if he had seen something like this before. He said yes. I asked him what he had seen Mr C do to his mum. Immediately, Z grabbed his own throat with his hands and said he had seen Mr C strangle his mum and hold her down on a couch. He also said that she had locked herself in the bathroom but that Mr C had “broken down the door”.
53. In a separate conversation, both Y and Z told me they were extremely upset about what they had seen and that they are now “scared of Mr C” and “scared it might happen again”.
54. I had a separate conversation with X. She was very reluctant to talk about the situation. She confirmed that the children had seen Mr C hurt their mum and that they were present when the Police arrived. She also said her mum had told her not to tell anybody what had happened. Since she has been in Australia, I have overheard X telling her brothers words to the effect of “not to say anything”.”
At paragraph 56 there is the account of the event on 6 December 2014. It is said to be a verbatim replication of the Police report read over the phone to the father from somebody at the victim witness program in (country omitted). It is, of course, all hearsay, but perhaps not too much needs to be made of that at this time. At paragraphs 66 to 69 the father set out his concerns about the children.
“66. The children have all been adversely impacted by this serious incident and subsequent events.
67. Y has been anxious, distressed and broken down in tears on a number of occasions as set out above. He has expressed feeling upset and scared and has exhibited out of character behaviour, including the incident where he physically fought with his brother, Z.
68. Z has expressed that he is upset and afraid.
69. X appeared upset when she spoke of the incident although it appears to me that she is trying to protect her mother and not “show too much”. I believe she is scared of Mr C given she no longer wishes to stay over at his house.”
At paragraphs 72 to 73 the father continued:
“72. Ms Noonan resumed her relationship with Mr C shortly after the incident of family violence. I do not know if there is a history of family violence between Ms Noonan and Mr C, whether the children have been exposed to any other incidents or whether there is a risk of further family violence in the future. I do not know whether Mr C is capable of directly harming the children.
73. I know that the children spend time with Mr C regularly and the boys stay over at his house. He often picks them up from school and takes them to their activities, for example. This is often unsupervised by Ms Noonan or anyone else.”
So I interpolate and say it is clear the boys are still spending time at his home.
At paragraph 85 in relation to nondisclosure the father deposed:
“Ms Noonan did not disclose the incident of family violence to me in Court on 11 December 2004 notwithstanding that it had occurred only 5 days prior. She did not disclose it to me at any stage. I ascertained the information myself from my investigations and my discussions with the children. I do not know what else has occurred that I do not know about.”
Now, I should say that that assertion is put in issue by counsel for the mother, but in my view it is clearly the case that the father was not aware of the incident in December 2014 when he agreed to the orders made later that month. So much is immediately apparent from his reaction when he finally found out about it and it is just not consistent with common sense that he would be in the Court making the assertions he now makes and pursuing the course he now pursues – that he would not have reacted – and in a very significant way - had he been made aware of it. The mother’s assertions that her counsel told the father’s counsel are, at the very least, not made out.
At paragraphs 90 to 92 we get to what the father’s real position is:
“90. In all the circumstances, I do not feel comfortable returning the children to (country omitted) at the conclusion of their 8 week stay here.
91. I am well aware that final parenting orders were made in December 2014 and I am reluctant to subject the children to further proceedings. However, given the enormity of the situation, I feel I have no choice.
92. Given the history of this matter and now these recent events, I believe it is in the best interests of the children for them to live with me in Australia.”
That is his real position and it is clear – at least, it is clear to me - that the section 11F procedure is essentially designed to forward and process that desire. Not quite the final document, but the next document it is necessary to refer to is the mother’s countervailing affidavit. Because in large part it is responsive and puts matters in issue it is not necessary to go through it in quite the same detail, although obviously I have regard to all of its terms.
At paragraphs 27 to 28 – and one of the difficulties is it is cross referenced, of course, to the father’s affidavit:
“27. Paragraph 13(a) - I deny that I have been un-cooperative or obstructive. It is difficult at times, due to the time difference, ages of the children and the children’s school and extra-curricular activities to co-ordinate a time for the children to be available to speak to Mr Noonan. Sometimes the children end the conversation of their own accord. X has a mobile telephone and Mr Noonan is able to contact her when it suits him. Y and Z both have mobile telephones that can send and receive messages when connected to Wi-Fi. Mr Noonan is able to contact Y and Z when it suits him.
28. Mr Noonan is overly critical of me for not making the children available to speak to him for extended periods of time. I say that I continue to encourage and facilitate skype communication between Mr Noonan and the children. Annexed hereto and marked “N-1” is a true and correct copy of the emails between Mr Noonan and I between 13 March 2015 and 15 March 2015 regarding communication with the children.”
I would say on an interim footing that I would accept the mother’s exculpation in that regard. The tenor of her affidavit is consistent with the tenor of the various communications annexed to both the parties’ materials and what they told Ms E. At paragraph 29:
“Paragraph 13(b) - The children have expressed to me on a number of occasions that they wished Mr Noonan lived closer.

I have told Mr Noonan that if he were to return to live in the (country omitted) that we could implement an equal shared care arrangement for the children. I believe this would be beneficial for Mr Noonan and the children.”
That remark is put on oath. It does have credit. Paragraph 32:
“Paragraph 24 – I gave instructions to my Counsel at Court in December 2014 to advise Mr Noonan (via his Counsel) of the events that occurred on 6 December 2014 and that I was no longer in a relationship with Mr C.”
In my view that assertion is extremely doubtful. I think it is more likely a reconstruction. It is far more probable that the mother had a vivid impression and understanding of what the father’s response would have been likely to be. She did cause her counsel to reveal the end of the relationship with Mr C, but in my view it cannot be accepted that she was likely to have told counsel to have told his opponent of the assault.
Paragraph 35:
“I made a number of false statements to the Police because I (sic) intoxicated. I was also highly stressed and emotional as I was flying to Australia the following day for the final hearing to determine the final parenting arrangements for the children.”
The latter part of that sentence is very understandable. It is very easy to see why the mother may well have been very emotional about the forthcoming proceeding, but her assertion that she made false statements to the Police is much more doubtful. After all, once she was sober, which she must have eventually become, she could have retracted anything that was untrue. Even if she may not even have remembered what she had spoken because she was so intoxicated, her partner would have known and it is after all the fact that it took quite some time for the matter to proceed to final disposition before the (country omitted) Courts.
Paragraph 40:
“Paragraph 31 – I deny telling the children not to talk (sic) Mr Noonan (or anyone else) about the incident. I have openly discussed the incident and my behaviour that evening with the children on several occasions. X told me she was afraid Mr Noonan was going to find out and ask questions. I told her if he did ask questions and she didn’t feel comfortable talking to him about it she could tell him to “ask Mom what happened”.”
X’s response is scarcely surprising, but I point out that if the mother was of the view that she was going to tell the father there would have been no need to have a conversation about keeping it quiet. Paragraph 42:
“Paragraph 33 – I deny that the children have shown any signs of distress following the incident. I saw that since the incident all three children have repeatedly asked if they can sleep over at Mr C’s house or spend time at his home with his children after school and on weekends. Y stayed the night at Mr C’s on

5 June 2015, the day before Mr Noonan picked him up to travel to Australia. I deny that the children have presented as being anxious or distressed around Mr C.”
Paragraph 45:
“On 3 July 2015, I sent Mr Noonan an email asking if I could have a private conversation with the children without him being present. Mr Noonan told me that it would be inappropriate for me to do so and stated the kids would not be available to speak to me.”
And she annexed the email that confirms that. I would say that the material passing between the parties shows each parent perceives the other as trying to influence the children to some version of the events that they regard as consistent with their own position and I further observe that they are probably both correct in those suspicions.
Paragraph 47:
“Paragraph 37 – Mr C and I have reconciled and participated in counselling. I spoke to the children about reconciling with Mr C. The children all told me that they liked Mr C and wanted us to stay together.”
I would interpolate and say this is a matter put on her oath. I will return to the question as to what should be made of that.
Paragraph 58:
“Paragraph 58(k) - Mr C has never been arrested or convicted of any criminal offences. He served in the (employer omitted) for approximately six years.”
Paragraph 82:
“Paragraph 83 – I am prepared for the children to participate in counselling but say this would mean a third counsellor for X and a second counsellor for Y. I suggest that any counselling take place with their (country omitted) counsellors which they have previously seen and built a rapport with rather than a new counsellor.”
I would interpolate to say to my way of thinking that is a sensible observation.
Paragraphs 91 to 93:
“91. In the event that I am ordered to do so I am prepared to travel to Melbourne, Australia to participate in s11F child inclusive counselling. I am also prepared to end my relationship with Mr C to ensure that the best interests of the children come first.
92. Paragraph 91 – I say that the incident occurred prior to the making of the Final Orders and therefore there has not been a significant change in circumstances pursuant to Rice v Asplund.
93. I am travelling to Melbourne to collect the children on

3 August 2015 and the children have flights booked to return to (country omitted) on 4 August 2015.”
At paragraph 98 the affidavit continues:
“Mr Noonan has re-partnered and I am aware that his partner is expecting a baby in (omitted) 2015. I am concerned that these proceedings are financially driven by Mr Noonan to reduce his travel expenses, reduce his child support obligations and entitle him to receive government Family Tax benefits.”
I interpolate again. Those observations do the mother no credit whatsoever. There is no reason to suppose that the father’s concerns are anything other than genuine.
Paragraph 99:
“I have asked Mr Noonan to arrange for me to meet his partner, who he has been in a relationship with for over three years. Mr Noonan has refused each time I have asked. To date, I have not met Mr Noonan’s partner.”
If that is the case, that does the father no credit. His children plainly benefit, as Ms E pointed out, by the parents being able to cooperate and be seen by their children to do so.
Finally, paragraph 100:
“I have previously raised concerns with Mr Noonan, via email and text message, regarding his brother who is living with him and who is a drug addict.”
And it goes on. Those remarks do not do the mother any credit either.
Both these parties, and it is understandable but regrettable in the circumstances, are seeking to tarnish in ways that, to my mind, are somewhat distasteful the general character of the other in circumstances where Ms E’s report makes it clear that they are good parents.
The only other document I need to refer to is (country omitted) orders tendered, very helpfully, by counsel for the father and marked as exhibit A1. The relevant, I think, part of this order is paragraph 6d which says:
“Facts in support of requested judgment contained in Attachment 6d.
The parties stipulated and the court ordered on October 12, 2012 that the Family Court of Australia at Melbourne had subject matter jurisdiction regarding custody and child support and that this court does not have jurisdiction to enter new or modified orders.”
That was, in essence, as I construe it a consent order. No submission has been made, and I would be surprised if it were, to suggest that the (country omitted) court could not re-engage if the parties’ consent was removed and/or if this Court was to declare that (country omitted) court was a more appropriate forum to hear the matter. The position adopted on that occasion merely reflected the fact that the parties were sorting out their financial arrangements in (country omitted), having already, as at that time, it was sorted out their parenting arrangements in Australia.
I turn now to the submissions of the parties. The mother ran a Rice & Asplund point. In case this is required to be read by any Judge overseas, I would simply say that that is a doctrine which broadly suggests that where final parenting orders have been made, the court should not embark upon a further examination of the children’s circumstances, unless there has been a material change of circumstances, and further it is in the children’s best interests to do so, the overarching consideration being the children’s best interests in any event.

That argument, in my view, can be dealt with summarily. It is clearly incorrect. The father did not know of the 6 December 2014 assault when the orders were made. The assault is clearly a material change of circumstance. Further, it took place in the presence of the children, although I note that X did not confirm to the father, despite all his inquiries, that she had actually intervened in the physical altercation between the parties, as is asserted in the (country omitted) materials.
The mother has not, so far as I can see, denied in detail the allegations of assault as she has not, in fact, put in terms in issue the question as to whether X tried to intervene. A matter of this sort involving a significant assault on any view, although I have made some comments as to the curial outcome in (country omitted), plainly, in my view, would readily defeat a Rice & Asplund point and the Rice & Asplund point is dismissed.
Otherwise, the father’s counsel concentrated on the issue of family violence. His submissions involved a detailed examination of what were put to be omissions in the mother’s affidavit, such as, for example, the absence of any specific account of the assault. And as I think I have already said, even though she was drunk, Mr C presumably was not and would presumably be in a position to assist her recollection. Furthermore, Mr C is not on affidavit, a valid point.
Counsel submitted that this was a classic case of domestic violence with the mother taking all the blame, minimising the incident and the like. It was put, as a result, that the risk element in the case was such that the section 11F inquiry was imperative. It is implicit in the father’s case, and, indeed, I think I have read out the passages from the affidavit where he says as much, that the assault in (country omitted) and associated risks that can be inferred from that are such that the children should stay in Australia with their father. The mother’s counsel did respond but her submissions were more particularly concerned with the Rice & Asplund point.
I should start, and I make it clear that I do start with s 60CA of the Act which I have already read out. They require the Court to regard the children’s best interests as the paramount consideration. The Court ascertains the best interests of a child and determines them by reference to s 60CC. Section 60CC(2) sets out the primary considerations which are:
“(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
Pursuant to s 60CC(2A), in applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b), in other words, the risks of family violence are to be given greater weight than the benefit to the child of

a relationship with each of their parents.
There are then a series of additional considerations set out in s 60CC(3). I do not propose to go through those seriatim because not all of them plainly are relevant, but I make the following points which arise from those matters in s 60CC(3).
First, the children have always lived with their mother as the primary carer. X is now 11, Y will be 9 in (omitted), and Z is 5. They have lived in (country omitted) all their lives, save for approximately 18 months in 2010 – commencing in 2010 and through to January 2012. I should say that, although it must be there somewhere, I did not readily find an exact date of their arrival in Australia but it appears to be something of that order. Albeit it should be noted that, although their primary residence has been in (country omitted), they have spent extensive amounts of time in Australia.
Removal from their mother and from their home in the (country omitted), and from Mr C’s children with whom they clearly would appear to have a good relationship, (they are much of an age), would clearly be likely to be traumatic. The incident of family violence in December 2014 would also likely to have been traumatic. The mother’s attempts to minimise it are very concerning, but I should emphasise, this is an interim hearing. I have not seen cross-examination. Indeed, I have not even had the benefit of actually seeing the mother at all.
In my view, it is not appropriate to adopt the conclusions urged upon me by counsel for the father, in the absence of the testing of the evidence. The submissions made by the father’s counsel about family violence in a general way are, in all too many cases, exactly what occurs and what continues to occur. He is correct to make those submissions in that sense.
But while s 60CC(2A) applies, there is no statutory provision that requires the conclusions the father urges upon this Court in each and every instance. As I have already said, family violence is deplorable, and what occurred here was deplorable on any view. But it is only one of the additional considerations referred to in the Act in s 60CC(3)(j). In the ultimate, the precise issue before the Court is this. Do I order a section 11F report and keep the children in Australia until all ramifications of the report are fully investigated and determined?
I would make the following points. First, the section 11F application the father makes refers to an inquiry which is primarily a tool to work out interim parenting arrangements. It is not inherently intended to or well suited to resolving issues vital to the outcome of a final trial. Secondly, the children have already been exposed to extensive questioning by the father and they can be in no doubt as to what he wants them to say. Third, as a result, any disclosures would have to be approached with a measure of caution, especially since they have been in his care for some recent period of time.
Fourth, in any event, the section 11F process would seem likely, of itself, to distress the children, especially in the context of presumably the recent arrival of their mother and the very real possibility that X, at least, would divine the likely consequences that might flow from such an investigation. I note that she was distressed and disturbed, as, indeed to a lesser extent the second child was, in the previous full family report interview.
Next, in the ultimate, the resolution of what happened on 6 December 2014, and perhaps more importantly what has happened since, in other words if the reconciliation with Mr C has gone well and the children remain happy to see him and so on, all depend on witnesses in (country omitted). In addition to the parties and the partner in (country omitted), it would include counsellors, police and other witnesses.
The next point to be made is that it appears the father is able to litigate in (country omitted). He has already got lawyers there. Finally, I note that the mother is prepared to give an undertaking to the effect that there be no unsupervised time by Mr C and the children, and I note that in the materials the mother lives with her own parents.
It should, however, be noted that in one of the authorities to which I referred the court was critical of the trial judge, of having regard to and giving weight to an undertaking that was unenforceable by this court because it was given in respect of an overseas country. I am mindful of, and accept fully, that reservation but there are a number of things to be said.
First, at least the mother is prepared to give it. Second, I would require the mother to give an undertaking also not to oppose an order to the same effect before a (country omitted) court. That is an undertaking that can be given. Next, the fact of the undertaking and any breach thereof would be relevant to a (country omitted) court were it to be brought to its attention in any event, even if the undertaking was not enforceable.
And, finally, and perhaps this gets to the heart of the matter, despite the December 2014 incident, the mother has deposed to an absence of risk on an ongoing basis. This is an interim hearing. I cannot find that she is untruthful on the affidavit material as it stands, and the section 11F process will not, in my view, be likely to resolve that issue as her denials are likely to be maintained. As it stands, on the evidence as it is, I am not satisfied that the children are at risk of violence if returned, notwithstanding the inferences I have been asked to draw by counsel for the father.
Taking all of these relevant matters into account, as I have set them out, I am minded to make the following orders. First, I would dismiss the mother’s Rice & Asplund application. Second, I would adjourn to enable the father to make such application as he may be advised in (country omitted). I repeat, there is no reason to presuppose that the (country omitted) authorities and protection services would not view family violence in the same way as those in this country. Third, I would be prepared to make any necessary declaration or order to remove any impediment to the father’s posited application in (country omitted) that might be occasioned by the extant court orders that constitute exhibit A1.
I am going to stand the matter down so that some things can happen. First of all, I expect counsel for the mother to contact her client and get the undertaking to which I have referred not to oppose a similar undertaking to an (country omitted) court. Secondly, the father will need to consider what, if any, sorts of declarations orders I might need to make to remove, as it were, exhibit A1’s effect, if it is necessary.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 14 October 2015

[2015] FCCA 2803

17 July 2015

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