O’DONNELL & DOWNING
[2016] FCCA 3125
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O’DONNELL & DOWNING | [2016] FCCA 3125 |
| Catchwords: PARENTING – Parental Responsibility –where the mother through her counsel in the end consented to an order that the father have sole parental responsibility for the child’s religious upbringing – where the court is concerned about whether the mother truly supports this outcome and about the potential for the matter to return to court over this issue – dispute about whether parental responsibility should otherwise be shared or sole to the mother – order made for shared parental responsibility notwithstanding the risks of the matter returning to court if the parties cannot agree about a major long term issue. PARENTING – International travel – where the father wishes to take the child to (country omitted) to see his family and the mother proposes that this not be permitted and that the child be placed on the Watch List until she is 18 – order made placing the child on the Watch List for three years. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA |
| Cases cited: Sampson & Hartnett (No.10) [2007] FLC93-350 |
| Applicant: | MS O'DONNELL |
| Respondent: | MR DOWNING |
| File Number: | NCC 1332 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 26 April, 2,3 and 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 14 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Joplin Lawyers |
| The Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Ms Flintoff |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Newcastle |
ORDERS
The father shall have sole responsibility for decisions concerning the religious upbringing of the child X born (omitted) 2010.
The parents shall otherwise share parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)During school terms commencing the first Friday after the start of each new school term, each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday.
(b)During school holidays from 5.00pm on the middle Saturday until 5.00pm on the last Sunday of each school holidays.
(c)For 2 nights during each of the (religion omitted) each year with the father to nominate the dates in writing at least 7 days in advance.
(d)At such additional or alternate times as may be agreed between the parents in writing.
Subject to Order (6) the mother is only required to take the child to the changeover location for time pursuant to Order (4)(a) and (b) if the father has sent the mother a text message by 8.00pm on the Thursday preceding the commencement of the time on each occasion confirming that he intends to collect the child at the time specified in the orders.
The father may in the text message advise the mother that he wishes to collect the child on the Saturday morning rather than the Friday evening specifying a time for collection no later than 10.00am and in that event the mother shall make the child available to spend time with the father on that weekend with the time to commence on Saturday.
If Mother’s Day falls on a day when the child would not otherwise be with the mother the weekends shall be swapped and the child shall spend the Mother’s Day weekend with the mother and the following weekend with the father.
If Father’s Day falls on a day when the child would not otherwise be with the father the weekends shall be swapped and the child shall spend the Father’s Day weekend with the father and the following weekend with the mother.
Changeovers shall unless otherwise agreed between the parties in writing occur inside the foyer of McDonalds Restaurant at the (omitted) on the (omitted).
The child shall have telephone communication with each parent as follows:
(a)The parent who has care of the child shall initiate the call to the other parent on days and times as agreed but failing agreement on Tuesday and Thursday between 6.00pm and 6.30pm.
(b)The parent initiating the call shall afford the child privacy during the call.
(c)If the parents have the means to do so communication pursuant to Orders (10)(a) and (b) shall take place via Skype, Facetime or the like.
The parent who has the child in their care shall not unreasonably refuse to allow the child to telephone the other parent if the child expresses a wish to do so.
These Orders authorise any school attended by the child to provide to each parent at that parent’s expense any and all documents, correspondence and information normally provided by the school to parents.
These Orders authorise any of the child’s treating medical practitioners to provide to each parent at that parents expense any and all documents, correspondence and information normally provided by that practitioner to parents.
Each parent shall:
(a)Keep the other parent informed of their current contact telephone number.
(b)Keep the other parent informed of their current residential address.
(c)Notify the other parent within seven (7) days of any change to their telephone number or residential address.
Each party shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.
The father MR DOWNING also known as MR DOWNING born (omitted) 1978, his servants and/or agents and the mother MS O’DONNELL be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X also known as X born (omitted) 2010 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List in force at all points or arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 31 December 2019.
The Registrar of this Court is directed to provide a copy of these Orders to the Embassy of (country omitted) with a request that the Embassy forward a copy of these Orders to the (country omitted) Government Department or Agency which issues or has the power to issue passports.
Each parent is restrained and an injunction is granted restraining them from:
(a)Denigrating the other parent or the other parents’ family members or the other parents’ culture or religion to or in the presence or hearing of the child.
(b)Permitting the child to remain in the presence or hearing of any other person who is denigrating the other parent or the other parents’ family members or the other parents’ culture or religion.
IT IS NOTED that publication of this judgment under the pseudonym O’Donnell & Downing is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1322 of 2014
| MS O'DONNELL |
Applicant
And
| MR DOWNING |
Respondent
REASONS FOR JUDGMENT
Introduction
X aged 6 is at the centre of a dispute between her mother and father about parental responsibility, where in New South Wales she should live, which parent she should live with and whether the father should be able to take her to his country of origin for a holiday.
There is also a simmering dispute about the child’s religion. The parents agreed when the child was born that she would be brought up a (religion omitted). The mother continued to agree to this after the parties separated and told the family report writer that she agreed to it but during the trial she resiled from this position.
At the end of the trial the mother’s counsel said that the mother did not oppose an order that the father have sole parental responsibility for the child’s religious upbringing but I have reservations about whether the mother truly accepts such an outcome.
The mother is Australian born and comes from the (omitted). She was brought up a (religion omitted) and said that she was currently agnostic although she recently started attending services conducted by a (omitted) church.
The father was born in (country omitted) and is a practising (religion omitted).
X has lived with the mother in the (omitted) since the parents separated more than two years ago and the mother sought orders that she have sole parental responsibility for X and that X live with her in (omitted).
The mother said that X should not be forced to learn (language omitted) and she strongly opposed the father ever being able to take the child to (country omitted). She sought a Watch List Order to remain in place until X was 18. She said that the father could not be trusted to return her and she raised the spectre of female circumcision.
The father has lived in Sydney since shortly after the party’s separation. He sought an order for equal shared parental responsibility and an order that the child live in Sydney. He said that he was willing to agree to a week about arrangement if the mother moved to Sydney but if she remained in (omitted) then X should live with him and spend defined time with the mother.
The father said that in Sydney X would have ready access to a (church omitted) and to someone who could teach her (language omitted), which was essential if she was to learn to read the (language omitted) and say the father’s name.
The parties took X to (country omitted) to visit the father’s family before separation and the father said that he strongly wished to take X to (country omitted) again. He said that there was no chance that his parents or members of his extended family would ever be able to visit Australia and that unless he was able to take X to (country omitted) she would never have a connection with her paternal family. He vehemently denied that he would fail to bring her back to Australia or that there was any risk of her being subjected to female circumcision.
The evidence
The mother relied on her affidavit filed on 18 April 2016 and the affidavit of the maternal grandmother Ms J filed on 19 October 2015.
The father relied on his affidavit filed on 15 October 2015 and the affidavit of his wife Ms P filed on 15 October 2015.
A family report was prepared by Ms D, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
The father represented himself at the trial. At the urging of the Independent Children’s Lawyer the court provided an (language omitted) interpreter for him but the father never asked for an interpreter himself and he spoke English throughout the trial and had only occasional recourse to the interpreter for translation of a few specific phrases.
The father speaks with a strong accent but he can make himself clearly understood in English.
The father trained as a (occupation omitted) in (country omitted) and he did a very thorough job of (employment omitted). It was clear that he had inspected the material produced on subpoena and prepared his questions.
Background
The parties met in Sydney in (omitted) 2008. The mother was then living and working in Sydney and the father was in Australia on a student visa.
In (omitted) 2009 the parties became engaged and in (omitted) 2009 they leased a convenience store in (omitted) which they ran together.
In (omitted) 2009 the mother fell pregnant with X and in (omitted) 2009 the parties were married by a (religion omitted). The marriage was registered under Australian law and (country omitted) law.
The parties commenced living together in (omitted) 2009 and X was born on (omitted) 2010.
The mother’s parents live in (omitted) and immediately after X’s birth the mother took X to her parent’s home and remained there for three months. The father remained in Sydney to run the (business omitted).
The mother said that the father agreed to her remaining in (omitted) for three months. The father disputed this and I cannot resolve the dispute but in any event in August 2010 the mother returned to Sydney with X and the parties lived together and operated the business.
The business had been failing for some time and by November 2010 the parties were struggling financially and they agreed that they would close the business and move to (omitted) to live with the paternal grandparents. The father was reluctant to leave Sydney but the mother’s family offered him the prospect of obtaining a (occupation omitted) job in the (employer omitted).
The father felt very isolated in (omitted) and was never happy there. His desire always was to live in Sydney where there were other (nationality omitted people) and other (language omitted) speakers and fairly soon after the parties moved to (omitted) he made it clear that he wanted the family to return to Sydney.
The mother admitted during cross-examination that prior to X’s birth she and the father had discussed the future and agreed that they would live in Sydney and that X would be brought up as a (religion omitted). However when the father pressed for the family to return to Sydney the mother refused to agree to do so.
The mother and the maternal grandmother sought to justify the mother’s refusal on the basis that the mother and father could not afford to live in Sydney but in my view this was an excuse given because the mother did not want to leave her family and place of origin. Had she been willing to move to Sydney with the father they would have made it work as millions do.
The mother repeatedly complained during the hearing that the father was controlling but if this is a feature of his personality he was a singular failure at being controlling during his relationship with the mother. The mother got her way in the matter of moving to the (omitted) and once there she refused to budge and despite the father’s strong desire to return to live in Sydney he stuck to his family and lived in the maternal grandparents home for two years, not an easy thing for an adult man to do.
The father obtained some work in the (omitted)/(omitted) area in 2010 but he worked in Sydney for 5 months commencing in February 2011 while X and the mother remained in (omitted). He returned to (omitted) in July 2011 and obtained a (occupation omitted) job there.
In October 2011 the family went to (country omitted). The mother returned after one month and the father stayed for three months.
In December 2012 when X was about 2 ½ years the parties moved out of the maternal grandparents’ home and rented a home in (omitted). However within six months their marriage was in trouble and they were sleeping in separate rooms when the father was at home. He was not always there; there is mention of him working in Sydney for periods in 2013 and in February 2014.
The circumstances of the parties’ final separation were that on 16 May 2014 while the parties were still living under one roof the mother filed an application in this court seeking orders for the child to live with her. The father was made aware that she had filed the application but he did not seem to understand what the mother was doing and on the day of the first court mention the parties drove to court together.
The mother met her solicitor at court and the parties were ordered to attend an 11F conference with a family consultant. The family consultant noted that the father was shocked when informed that the mother considered that the parties were separated.
When the matter came back before the court after the 11F conference the mother’s solicitor forcefully demanded that the court make an order for the child to live with the mother and the court did make that order because the mother had been X’s primary carer up to that time but it also made an order that X spend regular time with her father.
I feel considerable sympathy for the father as a result of what I consider to be the effective railroading of him by the mother at the first mention of the matter in May 2014.
Once the mother obtained an order for X to live with her and a Watch List order preventing X being taken out of Australia she left the former matrimonial home and commenced living separately in (omitted) with X.
The father initially remained in (omitted) and X spent time with him regularly pursuant to the orders over the next few months.
In or about September 2014 the mother filed an application in a case seeking that the existing orders be suspended and the father’s time with the child be supervised. The mother alleged that this was necessary because when she asked the father at a handover when the child would be returned the father named a time and added “If we are still alive (omitted) which she claimed was a death threat.[1]
[1] Paragraph 183 of the mother’s affidavit filed on 19 October 2015.
The father was adamant that this was something he often said and that it did not have any sinister meaning. However for a period of time after this an order was in place that the father’s time with the child be supervised.
Toward the end of 2014 the father formed a relationship with Ms P and relocated to Sydney although he initially kept both matters secret from the mother.
In March 2015 the parties attended interviews for the preparation of a family report. After discussion with the report writer they agreed that X’s time with the father would cease to be supervised and shortly afterwards X began spending time with the father in Sydney each alternate weekend from Friday to Sunday and for half of the school holidays. She met Ms P and formed a bond with her.
The parties could not agree about final parenting arrangements and the matter was listed for trial. It was not reached in October 2015 and proceeded to trial in late April 2016.
I am sure from listening to the father at trial that he cares deeply for X but between 24 October 2015 and 15 January 2016 he failed to spend any time with her. He gave a variety of reasons for this including that he needed surgery on his back and had car trouble but his explanations for why he did not see his daughter at all for three months were unconvincing.
X spent time with the father in Sydney from 15 to 25 January 2016 and spent four hours with him at (omitted) ((omitted)) on 21 February 2016 and he took her to (omitted) on 5 March 2016. He saw her on 13 April 2016 but did not see her again before the trial commenced on 26 April 2016.
The father had telephone communication with X throughout this period but the mother said, and I have no reason to doubt, that on a significant number of occasions he did not call.
The parties’ current circumstances
The mother lives in (omitted) with X. She has not re-partnered and is not in paid employment. She said that she was studying part time for a (qualifications omitted).
X commenced school at 4 years and 9 months old and appears to be a very bright child who is doing well at school. The mother takes her to (hobbies omitted).
The mother’s parents live in (omitted) and the mother sees them regularly.
The mother was brought up as a (religion omitted) and described herself as (omitted) but she has recently been attending services run by a (religion omitted) type group in the (omitted) area.
The maternal grandmother is a (religion omitted) who attends church regularly. She has commenced taking X to church with her which has caused confusion and difficulty for X and I will refer to this again later in the judgment.
The father raised concerns in his material about fighting between members of the mother’s family of origin in their home which included punch ups between the mother’s two brothers and between one of the brothers and the maternal grandfather. The mother and the maternal grandmother were not particularly forthcoming when questioned about this issue and I tend to the view that the father truthfully recounted what he had experienced while living with the maternal family. However the mother and child are not living fulltime in the maternal grandparents’ home.
The father lives in (omitted) Sydney with Ms P. She is an Australian who is a recent convert to (religion omitted) and she attended court wearing a (omitted). The father and Ms P are married under (religion omitted).
Ms P has an adult son who does not live at home and said that the father was living at her residence.
The father became an Australian citizen on 26 January 2014. He is the only member of his family living in Australia. His parents and all of his extended family live in (country omitted).
The father has worked as a (occupation omitted) in recent times and said that he was intending to study (course omitted). In his trial affidavit he said that he was in receipt of Centrelink benefits but at trial admitted some casual work as a (employment omitted).
X’s best interests
Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine X’s best interests.
The primary considerations are the benefit to the child of having a meaningful relationship with each of her parents and the need to protect the child from being exposed to or subjected to abuse, neglect or family violence.
There is absolutely no doubt that X will benefit from having a meaningful relationship with each of her parents.
There are some parenting capacity issues in respect of both parents but not to the point where any consideration would be given to X not spending time with either of them.
I have considerable concerns about the mother’s attitude to the father and to his culture and religion and about whether that attitude may result in X gradually losing her relationship with him. However the issue is complex because there are aspects of the father’s personality and parenting style which could play into the situation and cause difficulties and I will need to return to this after I make findings about the s.60CC(3) matters.
There was nothing in the evidence to suggest that the father had attitudes to the mother which meant that he was likely to attempt to undermine X’s relationship with her.
I must consider the need to protect the child from being subjected to or exposed to abuse, neglect or family violence.
Both parties perpetrated some family violence during their relationship and I will refer to this in more detail later in the Judgment. However there was no evidence that either parent had ever been violent outside of their relationship and no evidence that X was likely to be exposed to abuse, neglect or family violence in the separate care of either of them.
I must consider any views expressed by the child and the weight to be given to those views.
X was 4 years and 10 months old at the time of the family report interviews but she is an intelligent and articulate child and had a frank and forthright conversation with the family consultant who reported as follows:
X reports there is nothing that she does not like about living with the mother and reports there is nothing she does not like about spending time with the father. When asked if she would like the father to collect her from school on each alternate Friday, X smiled and said she would. When asked if she would like to spend two overnights with the father, X said this would be alright. When asked if she would be worried spending time with the father without the supervisors present, X said she would not. X was asked how she would feel if the court ordered that she live with the father in Sydney rather than live with the mother in (omitted). X said she would not like this and when asked why, X said she would miss the mother and would not like to leave her friends and her school.[2]
[2] Paragraph 87 of the Family Report.
The mother gave some evidence in her affidavit about X’s views. She said that X enjoyed spending time with the father and was upset when he did not collect her. She also gave some evidence about what she said were X’s views about learning (language omitted).
I have reservations about the reliability of the mother’s evidence generally. In her affidavit for example she suggested that she had suffered depression during the relationship because of the relationship whereas the family report writer noted that records established that the mother had suffered depression and anxiety since she was in her twenties.
There is always a risk in cases such as this of each parent selectively reporting things including things a child has said in order to achieve their desired outcome and I will need to be cautious about placing weight on the mother’s evidence about X’s views when it is given to support the outcome the mother prefers.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child
The mother has always been X’s primary carer and I am satisfied that X has a good relationship with her and she is X’s primary attachment figure.
X also has a good relationship with her maternal grandparents. Ms D said as follows in her report:
X was observed to have a close, affectionate and dependent relationship with the mother and a familiar relationship with the maternal grandparents.[3]
[3] Paragraph 88 of the Family Report.
X also has a good relationship with her father and the family report writer said as follows about that:
X was observed to smile and be excited when told she would be spending time with the father at the centre. X was observed to have a close and affectionate relationship with the father.[4]
[4] Paragraph 88 of the Family Report.
There are some issues in X’s relationship with the father but I intend to discuss those further when considering the father’s parenting capacity.
X has a good relationship with the father’s wife Ms P. The mother commented that X liked Ms P.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
The father has not paid much child support for X and it is open to question whether that is likely to change in the future. The father said that he was currently working part-time as a (occupation omitted) but the extent of his work, whether he could work more if he chose and what his working situation was likely to be in the future are all unknowns. He also said that he was intending to study (course omitted).
There is nothing in the evidence to suggest that the father’s failure to pay child support is due to a belief that he should not be required to do so as opposed to his financial situation and I cannot on the state of the evidence make a finding about whether he is making an insufficient effort to obtain work.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
The father missed a number of visits with X between October 2015 and April 2016. He said that he had car trouble and also said that during one period he had an operation.
These excuses are not satisfactory given all the time the father missed and I have misgivings about whether the father is missing time with the child because he is prioritising other commitments.
The father has been keen to participate in decision making in relation to the child indeed one of his complaints was that the mother enrolled the child to commence school at the age of 4 without taking his views into account.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
The mother did not propose any changes for X.
The father proposed two alternative changes. He wants X to live in Sydney and it was his case that this could be facilitated either by X living with him or X living in a week about shared care arrangement if the mother also returned to Sydney.
It is open to question about whether X would cope with either of these changes.
X has no memory of living in Sydney. She has lived in the (omitted) since she was a baby and she has commenced school in the (omitted). She told the family report writer that she would not like to leave her friends and her school.
Children can adapt to a change of place and they routinely have to. X is closely attached to her mother and if the mother moved to Sydney and happily settled there it is likely that X would adapt to the change of leaving (omitted) and living in Sydney and starting at a new school and making new friends.
However the mother does not want to live in Sydney. She successfully manoeuvred a situation after separation where the family were living in the (omitted) and she has maintained that bridgehead. She is close to her parents who live in the (omitted). The mother has some mental health issues and I would have to be concerned about how she would cope if she was forced to move to Sydney as the only way to retain a close connection with her daughter.
The father maintained that a move to Sydney was necessary to ensure that X remained connected with her (religion omitted) faith and learned (language omitted).
There is force in the submission that if X continues to live with the mother in (omitted) she may become disconnected from the (religion omitted) faith and will not learn (language omitted) but I will have to weigh up after making all other necessary findings in the case whether the advantages to her of these matters being attended to outweigh the disadvantages of her living either with the father or with a reluctant mother in Sydney.
I am not convinced that X would easily cope with a change of residence to living with her father. She is closely bonded with her mother who has always been her primary carer, and the father is a very different person living a very different life. The father loves X but it would be a massive change for her.
The father can come across as overbearing and insensitive on occasions and this has resulted in some difficulties during his telephone communication with X. He does not have the personality required to assist a child to adapt to a change which the child is likely to find difficult.
It is also open to question whether X would cope with a week about shared care arrangement. I will expand on this later after making findings about the remaining s.60CC (3) matters but of relevance is that the mother and father have a poor relationship. The mother is distrustful of the father and distrustful of outcomes which might follow for X from the fact that the father is a (religion omitted). The father is impatient with and sometimes disrespectful toward the mother when they meet at changeovers. He was open about the fact that he lacked respect for her because she went back on the agreement the parties made prior to X’s birth that the family would live in Sydney. These are not parents who have the capacity to share the care of their child week about.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live about two hours driving distance apart. This distance is not so great that alternate weekend time cannot happen but it does mean that anything more extensive than alternate weekend time and school holiday time is impractical.
If both parents lived in the same location it would be possible for the child to spend more frequent time with the father during the school terms than she does at present, indeed the family report writer recommended that this occur.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
X is a happy intelligent child who is doing well at school and there is nothing to suggest that the mother has problems at present looking after her on a day to day basis.
The mother does have longstanding mental health issues. She has suffered from anxiety and depression since her twenties and she told the family report writer that she had been prescribed Effexor in the past although she said that her doctor was in the process of weaning her off Effexor.
Prior to separation the mother was seeing a psychiatrist, Dr W, who diagnosed her as having a Cluster C Personality Structure. The mother told the family report writer that she developed strong feelings for Dr W and Dr W reported that the mother became angry when he did not reciprocate her feelings. As a result the mother stopped seeing Dr W, and has not since engaged in any further psychiatric treatment.
The family report writer, who has a nursing background, said that Cluster C Personality Disorder included Avoidant Personality Disorder, Dependant Personality Disorder and Obsessive Compulsive Personality Disorder but there was no evidence which would allow me to make a finding about the implications of this for the mother’s parenting and no evidence that mental health issues were impacting on the mother’s life at present in terms of leading to her having any involvement with the police, forming unsatisfactory relationships or using drugs or abusing alcohol.
The father cares for X satisfactorily during the time that she spends with him. He has the capacity to look after her day to day needs in terms of feeding and clothing her and if X lived with the father I am certain he would ensure that she attended school.
The father does have some parenting deficiencies however. He is very rigid with X and on occasion says to her “you have to obey your father”. A warm relationship was observed between X and the father at the family report interviews but the mother said and the father conceded that there were occasions on the phone when the father became very insistent and demanding when questioning X about whether she was studying (language omitted) and X became upset and withdrawn.
These issues do not suggest that the current time the father spends with X needs to be cut back but they do suggest that he might have difficulty assisting her to adapt if she struggled to cope with a change to her living arrangements.
Another difficulty for the father is that he did not provide much information at all about his housing and where he might enrol X in school. He was evasive when asked about his employment and did not provide any evidence about how he would provide day to day care and supervision for X.
I am sure that the father would make what he considered appropriate arrangements for X’s care and supervision but it difficult for the court to evaluate a parenting proposal if nothing is known about a parents working hours and the extent to which they will be available to care for the child themselves and the extent to which the child might be left in the care of others.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
X is (nationality omitted) through her father. I saw a photograph of her and she has that appearance.
The father is very keen for X to learn (language omitted) and to go to the (church omitted) and learn to read (language omitted).
During the parties relationship the mother agreed that X would be brought up as a (religion omitted) and when she attended the family report interviews in April 2015 she told the report writer that she agreed that an order should be made on a final basis that X would be raised in the (religion omitted) faith.
The mother told the report writer that she had made enquiries in (omitted) and found that there was a (church omitted) there and that she had introduced herself to some of the elders of the faith and had sourced members of the (country omitted) community in (omitted) who had told her the she and X would be welcome to participate in cultural or religious events. However the mother did not name those people and she has never in fact taken X to any events in (omitted) organised by members of a (country omitted) community nor has she ever taken her to a (church omitted) in (omitted).
The mother told the court during the hearing that the report writer had pressured her into agreeing that X would be brought up in the (religion omitted) faith and it was apparent that she no longer supported this outcome.
The mother was brought up a (religion omitted). In her evidence she professed to be (omitted) but said that she had recently attended some meetings at (omitted) church. Somewhat oddly given her professed (omitted) she sought an order that X spend time with her from “Holy Thursday” until Easter Monday each year. This is the first time I have ever come across the Thursday before Easter described as “Holy Thursday”.
The maternal grandmother is a practicing (religion omitted) who goes to church frequently and prior to the hearing she took X to church with her on a number of occasions.
The father gave evidence about an incident in his home which indicated that this had caused considerable conflict and difficulty for X. X made a comment to the father about an aspect of religion (from memory whether Jesus was the Saviour or a prophet) and the father corrected her. X became extremely upset and the father was at a loss to understand why, not knowing that the maternal grandmother had been taking X to the (omitted) Church.
The mother has countenanced X being taken to a (omitted) Church and it was apparent that she had not given any thought at all to the difficult position X would be placed in as a result. Her lack of insight into this issue is illustrated by the following passage in her trial affidavit:
I recall on Saturday 2 January 2016 X said to me words to the effect of:
Dad says I am not (religion omitted) but I am (nationality omitted). I don’t want to be I want to be the same as you.
To which I replied:
Wouldn’t it be good to be both?
To which X replied:
No I don’t want to go to (language omitted) school it is too hard.[5]
[5] Mother’s affidavit filed 18 April 2016 paragraph 68-70
I do not accept that the mother has any intention of ensuring that X learns about the (religion omitted) religion while in her care.
The mother’s evidence about the child learning (language omitted) was to the effect that it was the father’s job to facilitate this and that if he could not convince X to learn it that was too bad. At the same time she stated that X enjoyed learning (language omitted) at school.
This evidence strongly suggests that the mother does not value X learning (language omitted). A parent who values a child learning something helps the child through some resistance and an example of that is when children do not want to do their piano practice but are gently urged by a parent to persist.
It is abundantly clear that the mother is not likely to support the father in ensuring that the child learns some (language omitted).
There is a considerable risk that if X’s primary exposure to her country omitted) heritage is through the mother that some false beliefs may be inculcated in her. The mother is fixated on the idea that the father may arrange for female circumcision for the child. She has visited (country omitted) only once with the father and has a very limited understanding of the lifestyle of (country omitted) people.
There was absolutely nothing in the mother’s evidence to suggest that she had any sympathy for the paternal grandparents who are unable to see their granddaughter or a nuanced understanding or a willingness to gain a nuanced understanding of what life might be like in (country omitted).
X would have a much greater opportunity to be immersed in the (country omitted)/(religion omitted) side of her heritage and a better opportunity to learn (language omitted) if she lived with the father. However the father has married another English speaker and this is never going to be a case where the child is brought up in a home where (language omitted) is spoken as the language of choice, which is the situation which makes it easiest for a child to learn a language.
I have to consider any family violence involving the child or a member of the child’s family.
The mother told the family report writer that the father was verbally abusive to her during the relationship and that he began pushing and shoving her in 2012. She claimed she suffered bruising and alleged that on one occasion the father slapped her across the face causing a black eye and on another occasion pulled her by the hair and spat in her face.
She also alleged that the father was controlling in that he did not want her spending time with her family or seeing her psychiatrist.
In her trial affidavit the mother said that the father pushed her off the bed onto the floor and in November 2012 hit her 3 times in the face causing her a black eye and bruising. She said that the father claimed that he was teaching her lesson for spitting in his face earlier.
The mother alleged that at Easter 2014 the father spat in her face, pulled her hair and threw her phone, hit her on the leg leaving a bruise and pulled her arm so tightly it left a bruise.
The father said that there was an occasion when the mother spat in his face and kicked and scratched him and he grabbed her from behind and made contact with her face causing a black eye. He said that in June 2014 he slapped her face after she slapped him. He denied the mother’s allegations otherwise and alleged that the mother was violent to him during the relationship. He said that initially she was verbally abusive but that when she was pregnant with X she physically assaulted him on a few occasions by scratching him on the chest and arms, at times causing him to bleed.
The father alleged that the mother yelled at him and that there were periods when she scratched him with her fingernails two or three times a week drawing blood. He alleged that she kicked him in the testicles and that on one occasion she tried to strangle him.
The mother’s response to these allegations was that insofar as she had been physical to the father she had been acting in self-defence. She admitted that the father suffered an injury to his groin arising out an incident between the parties but said that he fell onto her heel. She said as follows in her trial affidavit:
I admit I did make contact with him by touching his chest and accidentally scratching him during an argument but it was self-defence. [6]
[6] Mother’s affidavit paragraph 97
The mother admitted slamming doors but said she did it because she was worn down by abuse and became verbally angry.
There are reports in the subpoena material of both parents making complaints to third parties about family violence perpetrated by the other.
The mother told Dr W during a consultation in November 2013 that there was some pushing and shoving in the relationship and she told the police on one occasion that the father had been physically violent to her over the past two years and claimed that he had kicked her, pushed her and hit her causing a black eye.
The father went to his GP with a complaint of groin pain which he said was the result of a kick injury one month previously and there is another reference in the notes to the father suffering an injury as a result of being kicked.
There are independent records which lend some credibility to each parties claim about violence perpetrated by the other.
Auspsych records indicate that on 24 February 2012 the mother reported that she “got violent with her husband, uncontrollable”.
The mother’s counsel produced a record dated 1 July 2013 stating that the father’s employment had been terminated because he was verbally abusive to another employee which he submitted gave support to the mother’s allegations about the father.
The father produced a note in the mother’s handwriting which he found in the home in which she recorded among other things that the father was “slow to show physical anger” and “puts up with my hormones.”
Each parent made some limited admissions to the family report writer about having been violent. The mother agreed that she was verbally abusive to the father and agreed that she pushed him on occasions. She also agreed that there was reference in her GP’s notes to her admitting that she had trouble controlling her anger and had at times physically assaulted the father.
The mother also conceded to the family report writer that on one occasion out of frustration she choked the father.
In her trial affidavit and during the hearing the mother tried to resile from some of these admissions. For example she said that she pushed the father because he slapped her and that she put her hands around his neck but did not intend to choke him but was pushing him away.
She denied that she had ever been violent to the father except for scratching him once.
The family report writer’s view after interviewing both parties and considering the subpoena material was that there had been mutual partner violence between the parties. She did not consider that on the information available to her it was possible to conclude that the father had engaged in coercive and controlling violence.
I agree with this and I do not accept the mother’s evidence at trial that she was always the victim and the father the perpetrator. I am satisfied on the balance of probabilities that both parties committed some acts of family violence. I cannot make any more precise findings.
I must consider if a family violence order applies any inferences which can be drawn from it.
The mother applied for an Apprehended Domestic Violence Order (ADVO) for her protection in September 2014 following the father making the comment at changeover which the mother interpreted as a death threat. An order was made by consent for 4 months and the application was dismissed in January 2015.
In April 2015 the mother saw the father at the child’s school and she again applied for an ADVO. It was again made initially by consent but was ultimately dismissed on 17 March 2016.
I cannot draw any inferences about family violence from the fact that these orders were applied for or made.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
The father missed quite a bit of time with X between October 2015 and April 2016. This is a significant period of time in the life of a then five year old and does not display a committed attitude to the child or a good attitude to the responsibilities of parenthood.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
No order stands out as meeting that requirement. The parties will inevitably return to court arguing about travel at some point in the future and any number of other issues could lead to them returning to court either because of a contravention proceedings or an application to vary the orders.
I must consider any other fact or circumstance which the court thinks is relevant.
The family report writer was very concerned about the father’s presentation on the day of the family report interviews. She said as follows:
The father presented alone at The Family Assessment Centre at the designated time. His demeanour was one of hostility, entitlement and aggression throughout the interview process. The father often shouted at this writer and jabbed his finger in this writer's direction. During the joint interview with the mother, the father shouted at and jabbed his finger at the mother and refused to leave the interview room when asked to by this writer. This writer was forced to stand in between the father and the mother in an attempt to shield the mother from the father's verbal abuse of her. As the father would not leave the interview room as directed, the mother was asked to leave to quarantine her from his anger. The father refused initially to leave the centre when instructed to by this writer and continued to argue with this writer until this writer shut the door leaving the father on the verandah of the centre. On more than twenty occasions the father stated his view, that as he and the mother commenced their relationship in Sydney, that X should live in Sydney. The father also stated on numerous occasions that as X is half (nationality omitted) she must live in Sydney so that she can be immersed in her culture, and religion and learn the (language omitted) language. The father demonstrated no ability to entertain any view that differed from his own and even when the mother offered to lift the supervision and have X spend weekend time and holiday time with the father in the continuing interim, rather than being grateful the father continued to berate the mother be accusatory of her and criticise her.[7]
[7] Paragraph 56 of the Family Report.
The family report writer was right to be strongly critical of the father for his behaviour at the report interviews. It was extremely poor and non-child focussed behaviour. It exposed X to conflict between her parents and it did nothing for his relationship with X. However the situation is not as simple as might appear from what happened at the report interviews.
The mother presented as calm and reasonable at the family report interviews and she sought to portray herself during the hearing and in her trial affidavit as a calm and reasonable person who was much put upon. However this presentation belies a significant underlying problem in this matter caused by the mother’s behaviour.
Prior to X’s birth the mother led the father to believe that she was agreeable to living in Sydney and after her birth she led him to believe that the move to (omitted) was temporary. The father went along with the mother’s wishes for several years notwithstanding that he was a fish out of water in (omitted).
The mother manoeuvred the father to court on 17 April 2014 where he was presented in front of the family consultant with the fait accompli that the mother intended to separate from him and was faced with the mother seeking court orders about parenting arrangements on that day when he had no time to prepare.
The mother agreed to X being brought up as a (religion omitted) prior to the child’s birth and continued to agree to it throughout the party’s marriage and after separation to the point of informing the family report writer that she would consent to a final order ratifying this. She even told the family report writer that she had researched (churches omitted) in (omitted). However she has never in fact sought out a (church omitted) in (omitted) and in recent times she has allowed her mother to take the child to services at a (omitted) Church which has led to distress and confusion for the child.
The mother pays lip service to the importance of X learning (language omitted) but she has never done a single thing to encourage it or support X within her home acquainting herself with this language which might have made all the difference to X’s attitude to learning it. At the same time she commented in her affidavit on how much X enjoyed learning (language omitted).
The mother enrolled X in school at the age of 4 years and 9 months over the father’s known opposition and without allowing him to attend the child’s first day at school and she called the police when the father turned up one day outside the school in April. There was absolutely nothing to suggest the father behaved in an untoward way at the school, he was just there, and there was no reason why he should not have been. He said that he wanted to see his daughter in her school uniform.
It is the mother who has behaved throughout with a sense of proprietorship in relation to the child, and her behaviour of saying one thing and doing something else or saying one thing but having a hidden agenda and manipulating the situation to achieve something else would be extremely difficult for anyone to deal with.
The father’s behaviour in response to the difficulties posed by the mother’s behaviour has been poor and confrontational which is counterproductive to him maintaining a good relationship with his daughter. His behaviour in shouting at the mother and pointing his finger at her during the report interviews and his behaviour in turning his back on her at changeovers is poor parenting. It has exposed X to conflict and tension and to the dreadful situation of seeing the two people she loves most fighting with each other. Children usually cannot tolerate too much of this and unless the father finds a more acceptable way to deal with the mother’s behaviour, which will not be easy, he risks alienating X for whom the mother is her primary attachment figure.
Parental responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in X’s best interests that her parents have equal shared parental responsibility for her absent a finding that one of them or a person living with one of them has engaged in family violence or abuse of the child.
Both parents engaged in some family violence and therefore the presumption does not apply. It is still however open to me to make an order for equal shared parental responsibility if that is what I choose to do.
The mother proposed an Order for sole parental responsibility and the father proposed equal shared parental responsibility.
Counsel for the Independent Children’s Lawyer proposed that the father have sole responsibility for decisions concerning X’s cultural and religious upbringing and that the mother otherwise have sole parental responsibility subject to giving the father notice in writing as soon as reasonably practicable after a decision was made.
She proposed an order that the mother be restrained from changing the child’s name without the father’s written consent, relocating to a place which made it significantly more difficult for the child to spend time with the father or taking the child to practice a faith other than her (religion omitted) faith including religious education at school.
During final submissions the mother’s counsel said that the mother would consent to an order that the father have sole parental responsibility for X’s religious upbringing but opposed an order that the father have sole responsibility for decisions concern her cultural upbringing.
The concession that the mother would consent to the father having sole parental responsibility for the child’s religious upbringing does not sit comfortably with the mother’s assertion at trial that she was pressured by the family consultant into agreeing to the child adhering to the (religion omitted) faith and is inconsistent with her recent actions in permitting the maternal grandmother to take the child to services in the (omitted) Church.
Nevertheless the concession was made, it is consistent with the agreement the parents made before the child was born and the mother’s agreement during the Family Report interviews and it was the outcome supported by Counsel for the Independent Children’s Lawyer. I therefore intend to make the order although I strongly doubt that the mother in her heart supports it and I fear that it will result in the matter returning to court sooner rather than later.
There is merit in the submission by the mother’s counsel that I should not make an order that the father have sole responsibility for the child’s cultural upbringing. Aside from the fact that the term “cultural upbringing” was not defined the child belongs to more than one culture, and each parent can foster the child’s connection with their culture during the time they spend with the child.
The major issue in the case is whether the parents should otherwise share parental responsibility for the child.
The mother’s counsel relied on the family report writer’s recommendation that the parents not share parental responsibility and it is easy to understand why this recommendation was made given the father’s behaviour at the family report interviews.
However it is a serious thing to remove parental responsibility from a parent and it has much wider implications than just allowing one parent to choose a school or organise a counsellor. Only a parent who has parental responsibility has a right to be consulted about the issue of a passport for the child, and it can have implications in Hague Convention matters. It also removes a parent’s right to have a say about matters which cannot necessarily be foreseen and may arise five or more years in the future when the situation of the parties and the child may be very different.
It is a very serious thing to remove parental responsibility from a parent who will be seeing their child regularly and will be a significant part of their child’s life.
There are occasions when the relationship between the parents is so bad that it is in the child’s best interests that one of them has sole parental responsibility notwithstanding that both parents will have an ongoing relationship with the child.
A family violence victim should not be forced to consult with a perpetrator if it will cause them fear and anxiety and if a situation may arise where they may agree to something which is not appropriate out of fear of the other parent’s reaction.
Some parents may have a demonstrated incapacity to reach agreement and a demonstrated propensity to argue endlessly and unproductively which is not only debilitating for at least one of them but could result in a decision not being made when it badly needs to be made.
In this particular case I need to carefully consider whether what the family report writer observed on the day of the interviews and anything else which has occurred is sufficient to justify an order that the mother has sole parental responsibility for X.
The first thing to observe is that X is a healthy child and decisions about major long term issues for her may not need to be made frequently. A school has been chosen. She does not have health or dental or psychological or psychiatric issues. The parents disagree about travel but they have asked the court to make a decision about that as a separate matter. An order for shared parental responsibility will not inevitably lead to constant disputes between the parents.
The second thing to observe is that these parents have been continuously in the court system since the very day of separation. There has never been any opportunity to test whether they are able to productively discuss issues concerning X against a background of the court having determined her living arrangements.
I do not accept the submission by the mother’s counsel that it is beyond doubt that the father will not accept the court decision about where X lives. He has never said that. He has argued passionately for his position but so has the mother. The father feels strongly that his position should prevail but it does not automatically follow that he will not accept the courts’ decision.
The mother’s counsel was critical of the father for not attending a Parenting after Separation course and not responding when the mother sent an exercise book dubbed “Communication Book” to him on a few occasions. He said that this did not auger well for the parents being able to communicate effectively in future.
I do not accept that submission. The family report writer recommended that each parent do a Parenting After Separation Course but no order was ever been made to this effect and I do not consider that the fact that the father, who was self-represented and from a non-English speaking background, failed to do such a course because it was recommended should be held against him.
The mother created a Communication Book and put entries in it in October 2014 and in May and June 2015. She provided some useful information pertaining to X’s day to day care but a number of the entries were not about X but about financial or property matters. I cannot draw an adverse conclusion about the father’s willingness to communicate because he failed to write in the exercise book.
Some things such as travel and religion may always be beyond these parties capacity to resolve by agreement but I am not convinced that it is a foregone conclusion that they will never be able to have a discussion or reach agreement about anything and I have considerable concern about whether it is appropriate to make an order that the mother have sole parental responsibility for this child when she has very limited insight into or sympathy for the fact that the child is (nationality omitted) as well as Australian. This concern was no doubt shared by the Independent Children’s Lawyer hence the orders proposed about the father having sole parental responsibility for the child’s cultural upbringing but that is not an order I can make.
In my view it is too soon to give up on any prospect of these parents being able to agree about any major long term issue. I am disturbed by the mother’s actions in enrolling X in school at the age of 4 years and 9 months and then applying for an ADVO when the father visited the school. There is considerable risk that if I make an order for sole parental responsibility it will send a message to the mother and to others that the father is less worthy than the mother to have a say about major decisions for X and that would not be in X’s long term best interests.
These parents may never be able to bridge the gap created by their vastly different upbringings and religions. The father may give up and drop out of X’s life. The order may need to be reconsidered but at this time I intend to make an order for shared parental responsibility.
The family report writer’s recommendations
The family report writer recommended that X live with the mother and that if the father lived no more than 40 minutes from X’s school that X spends five nights per fortnight with him being one mid-week overnight and each alternate weekend from Friday to Monday.
She recommended that if the father lived further than 40 minutes from X’s school that X spends two nights per fortnight with him being an alternate weekend from Friday to Sunday. She recommended that X spend an additional two weekends per year with the father to coincide with religious events or festivals and that she spend half of the school holidays with the father if the father was not rostered on to work.
She recommended that X communicate with the father via telephone or Skype once each week.
The family report was thorough and nothing in cross-examination suggested that the family report writer had made any errors of fact or drawn conclusions. I place weight on her recommendations but just as was the case with the issue of parental responsibility I will also need to have regard to the other evidence given at trial in order to come to a final decision.
Conclusion
The major issue to be decided is where and with which parent X should live and the best interests considerations point overwhelmingly in favour of her living with her mother.
The mother has always been X’s primary carer and X is primarily attached to her. I do not accept that X would easily cope with a change of residence. The father does not have the capacity to assist her to adjust to a change which would see her badly missing her mother.
If X remains living primarily with the mother it is very likely that she will pick up little (language omitted) and possible that she may lose her connection with her (religion omitted) faith despite any order the court makes about it. However she will continue to spend time with her father; the mother has always complied with court orders in this regard. I am concerned about whether X may over time form a negative view of the (religion omitted) faith and (country omitted) people as a result of living with the mother but she will retain a connection with that side of her heritage by spending time with her father and I cannot sacrifice her emotional well-being and sense of security by ordering a change of residence just to ensure that she has adequate exposure to and forms an appropriate view of one religion and one culture.
X is (nationality omitted) in appearance; the mother conceded that and it was apparent from the photograph I was shown. There is no perfect outcome for her in this matter but in my view the only outcome consistent with her best interests at present is an order that she live with the mother.
This is not a matter in which I could consider making an order for equal time even if the parents lived close together. Their relationship is poor and the child would be required to move week about between two radically different households. The father did not provide sufficient information about his living circumstances to allow me to assess his proposal and how it might impact on the child.
Even if equal time had much to recommend it I could not consider making an order that the mother be required to relocate to Sydney. In Sampson & Hartnett[8] the Full Court emphasised that while the court may have the power to order a parent to relocate it should only do so in exceptional circumstances.
[8] Sampson & Hartnett (No. 10) [2007] FLC93-350
The trial judge in Sampson & Hartnett[9] was concerned that the mother did not respect the children’s relationship with the father and that unless an order was made for the mother to relocate closer to the father so that regular time could occur then the children might lose the opportunity of having a meaningful relationship with the father.
[9] Sampson & Hartnett (No. 10) [2007] FLC93-350
That is not a consideration in this case. While I have concerns about the mother’s willingness to promote the child’s religion and ensure her connection with the cultural heritage she shares with the father the mother has complied with orders about the child spending time with the father and insofar as time has not occurred it is because the father has not collected the child.
The mother has been strongly resistant to the idea of living in Sydney since the child was born. She values living near her family in the (omitted) and she has some mental health issues. It would not be in the child’s best interests to make an order which could result in the mother struggling to cope.
I intend to make an order that the child live with the mother and that entails the mother and child continuing to live in the (omitted).
The father will be extremely disappointed with this outcome. He will be extremely disappointed that his plan of bringing his daughter up in Sydney where he feels at home because he can mix with other (language omitted) speakers and (nationality omitted) and where his daughter could have had ready access to (churches omitted) and (language omitted) has not come to fruition but he married an Australian who has her own wishes about where she prefers to live.
I have to make a decision about parenting arrangements for a 6 year old child who has lived almost all her life with her mother in the (omitted) and is happy there. If the father is to have a good relationship with his daughter he will have to put his disappointment aside and accept this as a reality. He will also need to accept as a reality that given where X lives and the mother’s less than warm embrace of the (religion omitted) faith and (language omitted) that there may be considerable difficulties in X meaningfully learning either.
The only hope for the father’s relationship with his daughter is if he is prepared to love her as a child and not for her proficiency in (language omitted) or reading the (language omitted). The situation X finds herself in is not her fault. All she wants at this stage of her life is two parents who love her and accept her as she is.
Unless the father is able to move on and put his disappointment about the way things played out in his marriage and his resentment toward the mother for the way in which she has brought the current circumstances aside then his relationship with his daughter may wither and the matter may end up back in court sooner rather than later.
The mother needs to obey the court orders and if she does anything in the future similar to enrolling the child in school without the consent of the father then this may also rapidly lead to the matter returning to court.
I then need to consider the orders about X spending time with the father, and the mother’s counsel proposed that an order be made that the child spend time with the father on one weekend each month. He submitted that for months prior to the trial the father had not taken advantage of the alternate weekend time. If time was cut down then there was more likelihood of it actually occurring and this would ensure that the child was not disappointed and the mother would not be put to the trouble of travelling to the changeover point only to find that the father was not there.
The mother’s counsel submitted that I could rely on the mother to agree to additional time if the father proposed it and made himself available.
Counsel for the Independent Children’s Lawyer proposed that the order be for time each alternate weekend and that the solution to the father not turning up was to have a notice provision, so that he had to give the mother a certain amount of notice by text message or she was not obliged to take the child to changeover.
In my view it is essential that the father spend more rather than less time with the child if at all possible. If the father does not see the child frequently enough their relationship could become fraught and it is not in the child’s best interests to lose her relationship with her father.
I therefore intend to make the time each alternate weekend with a notice provision.
I am not at all convinced that the mother would routinely facilitate an extra weekend each month if the father asked for it.
An issue which emerged during the evidence and which was not addressed during submissions was that the father said that he had concerns about X being required to travel after school on Friday and felt that it might be better if he picked her up on Saturday.
I intend to order that the time be on alternate weekends from Friday to Sunday provided that the father sends the mother a text message no later than 8.00pm on the Thursday before the commencement of the weekend to confirm that he will be at the changeover location to pick the child up.
I also intend to order however that the father may at his election give the mother notice of an intention to pick the child up at a specified time on the Saturday morning and if he gives that notice then changeover shall take place on Saturday.
This maximises the likelihood of time occurring fortnightly.
In her Minute of Orders sought the mother did not propose an order for X to spend holiday time with the father, which is odd because the interim orders provide for this and X has spent block periods of time with him in the past. Counsel for the Independent Children’s Lawyer proposed that the holidays be shared and the mother’s counsel did not speak against this during submissions. I therefore intend to make the order about school holidays proposed by the Independent Children’s Lawyer.
As noted earlier Counsel for the Independent Children’s Lawyer proposed an order that the father have sole parental responsibility for X’s cultural upbringing and she also proposed the following order:
The mother must do all acts and things necessary to:
(a)Foster the child’s (nationality omitted) culture whilst the child is in the care of the mother;
(b)Encourage, facilitate and promote the child’s participation in events relevant to the child’s (nationality omitted) culture;
(c)Encourage, facilitate and promote the child’s awareness, learning and understanding of the (religion omitted) faith; and
(d)Encourage, facilitate and promote the child’s learning of the (language omitted) language.
I do not intend to make an order in those terms. That should not be seen as an invitation to the mother to disregard the child’s (nationality omitted) heritage and culture but there are problems with the order, not the least of which is interpretation and therefore enforcement. There is also a limit to what the court can do to shape people’s behaviour and attitudes.
International Travel
There is a Watch List order in place until 31 December 2016 and the mother proposed that the court make an order that the child remain on the Watch List until she was 18. Counsel for the Independent Children’s Lawyer supported this proposal.
The mother’s case was that the father had made threats about retaining the child. She asserted that he had once said to her something along the likes of “One day I won’t bring her back. You just won’t know when.”
I have reservations about whether I should accept this evidence. The mother has a propensity to overreact and misunderstand situations and her evidence was not always reliable. However I accept that the mother has genuine concerns about the possibility of X being retained in (country omitted). (country omitted) is not a signatory to the Hague Convention and its legal system is not well known. People’s fear of (nationality omitted) means that it is natural for them to be concerned about whether religion and preference for males may influence a decision about the custody of a child.
The mother expressed concern about the issue of female circumcision but there was not a shred of evidence that this was something to be concerned about. The mother did not bring any evidence to the court about the prevalence of female circumcision in (country omitted) nor did she bring a shred of evidence to suggest that it was something which was likely to happen, indeed she said that it was illegal in (country omitted) and the father had agreed that it would never happen to X.
The father was somewhat embarrassed when questioned about this issue during cross-examination. He denied that he had any intention allowing such a thing to happen to X.
The mother also claimed that (country omitted) was unsafe. She produced a print-out from the Smart Traveller website which warned of numerous issues which could arise in (country omitted) including exposure to terrorism and which gave the current warning for (country omitted) as “reconsider your need to travel.”
While I can understand the mother’s reluctance to allow the father to travel with the child, there are enormous benefits to the child in being able to travel with the father. She has already been to (country omitted) once with the parents and nothing untoward occurred in terms of her safety. Smart Traveller warnings are not the be all and end all of whether it is safe to travel in a country especially in the company of a native of that country. There would a benefit to X in visiting her father’s country and meeting her paternal relatives again. Even if memories of such visits are lost or partially lost photos which are taken or stories that are told about the visit can become part of life long memories.
I also have a level of discomfort saying to the father that he can be trusted to spend regular time with his daughter in Australia but he cannot be trusted to take and return his daughter to (country omitted) in part because of a fear abroad in Australia about (country omitted) or (country omitted) countries.
It would not be appropriate no matter what the circumstances to make a Watch Order until X is 18. It is impossible to see clearly into the next 12 years and be sure that this is appropriate. Counsel for the Independent Children’s Lawyer said that the father could apply to discharge the order but while this is true if I make such an order it may send a message to a future decision maker that there is some barrier the father needs to overcome and prevent the matter being considered in the future with fresh eyes.
There are many potential benefits for X in travelling to (country omitted) and many potential benefits to her travelling with her father. However the mother’s fears would be extreme if travel occurred soon after this judgment was handed down, a judgment which is contrary to the outcome the father wishes for, and it is not in X’s best interests for the mother to be placed under extreme stress.
During submissions I suggested that perhaps an order for 2 years was appropriate but I intend to order that the Watch order remain in place until 30 November 2019. X will then be 9 years old. Closer to that time the mother can either apply to extend the order or the father can apply to travel. The matter can be reconsidered in the light of what has occurred in relation to X’s time with the father until then and the circumstances of the mother and the father and the state of Australia and the world at that time. It would simply not be in X’s best interests to make an order that a Watch list order remain in place until she was 18.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirty four (234) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 14 December 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Statutory Interpretation
Legal Concepts
-
Consent
-
Injunction
-
Procedural Fairness
0
1