Ormond and House

[2018] FamCA 861

FAMILY COURT OF AUSTRALIA

ORMOND & HOUSE [2018] FamCA 861

FAMILY LAW – CHILDREN – Parenting orders – International relocation – Where the mother is from the United Kingdom and has lived in Australia for 10 years – Where the father is from Australia and has European heritage – Where the mother seeks to return to England and relocate the child – Where the father opposed relocation of child and sought orders that the child live with the mother in Australia and spend time with the father – Where the mother has an uncertain visa status in Australia as well as limited support and finances – Where the Court is not persuaded that a finding that the mother deliberately let her student visa expire is determinative of the dispute – Where the father accepts that the child’s best interests are met by living principally with the mother – Where it is considered that the best interests of the child are met by allowing relocation.

Family Law Act 1975 (Cth)

Baudin & Rose [2012] FamCA 724

APPLICANT: Ms Ormond

RESPONDENT: Mr House

INDEPENDENT CHILDREN’S LAWYER: Julie Harrington

FILE NUMBER: BRC 6059 of 2017

DATE DELIVERED: 26 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 22, 23 & 24 October 2018

REPRESENTATION

THE APPLICANT: Ms Bertone

SOLICITOR FOR THE APPLICANT: VM Family Law

COUNSEL FOR THE RESPONDENT: Ms Firth

SOLICITOR FOR THE RESPONDENT: Berck Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Lawyers

Orders

1. That all previous parenting orders be discharged.

2. That the child, X born … 2017, (“the child”) shall live with the mother.

3. That the mother be permitted to remove the child permanently from the Commonwealth of Australia, without the father’s consent, as soon as necessary travel arrangements are put in place by the mother for that purpose, subject to the requirements of paragraphs (4) and (5) hereof firstly being complied with before her departure.

4. That prior to the child’s removal in accordance with paragraph (3), the child shall have no less than three supervised visits with the father from 9.00 am to 4.00 pm on days as agreed to by the parties, but failing agreement, the child shall spend supervised time with the father from 9.00 am to 4.00 pm on Saturday 27 October, Monday 29 October and Tuesday 30 October, with supervision to be provided by one or both of the paternal grandparents and/or Ms E. Changeovers for these three visits shall take place as they have been pursuant to orders that have been in place up until the making of these.

5. That the mother and father shall each do all acts and things and sign all documents necessary to register these parenting orders with the appropriate Court in the United Kingdom or other UK Government authority to enable their enforcement in that jurisdiction where necessary.

6. That, subject to compliance with paragraph (7) hereof, the mother shall have sole parental responsibility for the making of all decisions in respect of “major long-term issues” in relation to the child (as the term “major long-term issues” is defined in s 4 of the Family Law Act1975 (Cth)) save for decisions about the child’s name for which the mother and the father shall have shared parental responsibility.

7. That before making a decision for which she has sole parental responsibility, the mother shall inform the father in writing of the major long-term issue about which a decision has to be made, as well as the various options open to her in respect of the decision and she shall invite his written input into the making of the decision and consider any such input he provides before she makes the decision, then she shall give him written notice of the decision she has made and her reasons for doing so.

8. That the child shall spend time with the father and communicate with the father as agreed to by the parties, but failing agreement, the child shall spend time with the father and communicate with him in accordance with the following paragraphs.

9. That in the event the father moves to live within 50 kms of the mother’s residence in England before the end of March 2019:

   (i)The child shall spend unsupervised time with the father from 9.00 am to 2.00 pm each Monday, Wednesday and Saturday for the first two months after he so moves;

   (ii)Provided the father has been spending time with the child as per (i) hereof, the time shall increase so as to be from 9.00 am to 4.00 pm each Monday, Wednesday and Saturday for ten calendar months after the first two months have expired;

   (iii)Provided the father has been spending time with the child as per (ii) hereof, the time shall increase so as to be from 9.00 am to 5.00 pm on the Saturday and Sunday of each second weekend for another block of six months after that block of ten calendar months has expired;

   (iv)Provided the father has been spending time with the child as per (iii) hereof, the time shall increase so as to be from 9.00 am on Saturday to 5.00 pm on the Sunday of each second weekend after that block of six calendar months has expired;

   (v)The child shall spend unsupervised time with the father, as agreed between the mother and the father, on each of the following special days:-

   (a)Father’s Day;

   (b)Christmas Day;

   (c)Easter Sunday;

   (d)The child’s birthday;

   (e)The father’s birthday;

   (vi)Such Skype or telephone communication as the mother and the father may agree upon.

10. That in the event the father remains living in Australia:

    (i)The mother shall cause the child to communicate with the father by Skype/Facetime or such similar internet based video calling between the hours of 6.00 pm and 6.30 pm Australian Eastern Standard Time (which will be the morning in England) each Monday, Wednesday and Friday and each such video call shall be of a duration agreed upon between the parents at the time it is taking place with regard being had to the circumstances and behaviour of the child at the time; and

    (ii)The mother shall cause the child to communicate with the father by Skype/Facetime or such similar internet based video calling between the hours of 6.00 pm and 8.00 pm Australian Eastern Standard Time (which will be the morning in England) as the following special days fall in Australia:

    (a)Father’s Day;

    (b)Christmas Day;

    (c)Easter Sunday;

    (d)The child’s birthday;

    (e)The father’s birthday;

    (f)The birthdays of the paternal grandparents and other extended paternal family members as requested by the father via email at least three days prior to the particular birthday;

    (iii)In the event that the father can travel to England for a holiday then, on the father’s giving of three weeks’ written notice to the mother of his itinerary, the child shall spend time with the father from 9.00 am to 4.00 pm every second day, for the duration of the father’s holiday;

    (iv)That should the mother be able to obtain the visa permission of the Australian Government to travel to Australia with the child, which permission she is obliged to seek, she shall travel with the child to Australia at least one time per year commencing upon her return to the UK, staying for not less than four weeks on that occasion;

    (v)That in the event the mother is able to secure the Australian Government’s permission to return to Australia at least once per year then, the mother shall give three weeks’ written notice to the father of her itinerary, and the child shall spend time with the father from 9.00 am to 4.00 pm every second day for the duration of the mother’s stay in Australia;

    (vi)That in the event the mother cannot secure the permission of the     Australian Government to return to Australia at least once per year from the date of her return to the UK and, consequently does not make at least one trip to Australia for four weeks each year with the child, then if the father makes at least one trip to the UK in that same year, the mother shall contribute the sum of AUD$3,000 towards the father’s costs of that trip, giving that sum to him during his stay in the UK.

Restraints

1. That the father shall not consume any illicit drugs or alcohol whilst the child is in his care, nor shall he still be under the influence of any illicit drugs or alcohol whilst the child is in his care.

2. That the mother be restrained from using any name for the child, other than X House-Ormond.

3. That the mother be restrained from leaving the child unattended with her brother, Mr P Ormond.

4. That each parent:

   (i)shall not physically discipline the child and shall not allow any other person to physically discipline the child;

   (ii)shall ensure that the child is transported in vehicles fitted with an appropriate child restraint;

   (iii)shall not smoke cigarettes in close proximity to the child or within an enclosed space with the child, such as in a car or a house, and shall not allow the child to be in close proximity of any other person smoking cigarettes or within an enclosed space with a person smoking cigarettes;

   (iv)shall not leave the child unsupervised;

   (v)shall keep each other informed as to their current residential and postal addresses, email addresses, Skype contact details, landline and mobile telephone numbers and shall notify the other of any change in relation thereto within 24 hours;

   (vi)shall be entitled to attend any kindergarten or school event in which the child is involved, irrespective of with whom the child is spending time on that occasion;

   (vii)shall encourage the child’s relationship with the other parent and shall not undermine the child’s relationship with that parent.

5. That neither parent shall:

   (i)Question the child about the personal life of the other parent and shall respect the other parent’s privacy;

   (ii)Denigrate or insult the other parent, or the other parent’s family, to the child or in the presence of the child; and

   (iii)Discuss these proceedings or the contents of any document filed in or used in these proceedings with the child, or with any other person in the presence or hearing of the child.

Information and Communication

1. That the parents shall use a joint Dropbox account that can be set up to provide weekly photographs, school reports and medical reports in respect of the child.

2. That the mother shall provide to the father by use of the Dropbox account weekly updates about the child, including but not limited to:

   (i)At least one photograph of the child taken that week;

   (ii)Information about milestones achieved;

   (iii)Anything new the child has experienced, eg starting kindergarten or school including full details of the address and contact details of the kindergarten or school;

   (iv)What the child has been enjoying;

   (v)What the child has been struggling with;

   (vi)Any hobbies or extra-curricular activities the child is engaged in; and

   (vii)Any health issues affecting the child including full contact details of the address and contact details of any health professional the child has attended upon.

3. That the father shall be entitled, notwithstanding the parental responsibility orders contained herein, to make contact with any kindergarten and school the child attends, and any health professional the child attends upon, to request and obtain any information about the child that is otherwise lawfully able to be provided by the kindergarten, school or health professional to a parent of a child attending such kindergarten, school or health professional about that parent’s child. 

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

5. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6059 of 2017

Ms Ormond

Applicant

And

Mr House

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Little X was only born in March last year. He is still getting used to life and probably does not know of the turmoil that has been going on around him ever since he was conceived. His parents have been in conflict with each other since around the time of his unplanned conception. After they met in early 2016, their relationship progressed at a rapid pace and, very soon, they were living together. The mother was 33 and the father was 31 years of age. Despite their age, they were living a life of partying, alcohol consumption and use of illicit drugs such as cocaine, cannabis, and ecstasy (MDMA). The mother unexpectedly fell pregnant within a couple of months of their cohabitation and, to her credit, immediately ceased taking drugs as soon as she learned of that. The father did not stop going out, drinking and taking drugs and during the course of the pregnancy their relationship rapidly descended into arguments, fighting and physical violence directed at each other. One fight during the mother’s pregnancy ended with the father forcefully putting the mother outside their home and locking her out, resulting in her kicking the door in to regain entry to get some possessions before leaving again for a short stay away.

2. The father says he stopped taking drugs when X was born. The mother disputes that. She is supported by her mother in that assertion. I accept that they are right about that. I do not accept his evidence that he did. Only four weeks after X was born, the mother took X and left the father. She had tried to do that only a few days before, but the father would not let her take X and, consequently, she did not leave on that occasion. She then consciously orchestrated a situation where the father would be out of the home for a time and during that time she left with four week old X. That was the end of their relationship and the real beginning of their ongoing parenting dispute. As can be seen from that short history, their co-parenting relationship did not have much positive foundation to build on.

3. What appears from that introduction to be a very sad situation for young X is actually far worse still. Proceedings were quickly commenced in the Federal Circuit Court by the mother seeking parenting orders. Now, a year later, this Court is being asked to decide between permitting the mother to take X with her back to live in the UK where she comes from or putting X into the care of his father, an Australian, leaving the mother to return to the UK without him, or to leave X in his mother’s care whilst prohibiting her from taking him back to the UK, forcing her into a tortuous, uncertain future of applying for a visa that she would not be expected to get, taking the refusal for review in the AAT that would not be expected to succeed, then seeking a favourable exercise of Ministerial discretion which, if unsuccessful in a number of years’ time might result in her having to leave the country then after handing X over to his father to care for. Whichever outcome, it is relatively clear, from the history of conflict and lack of good communication between the parents, that X’s relationship with the other parent will have little prospect of surviving and thriving in a meaningful way. Deciding which one of these comparatively poor outcomes is in X’s best interests is the unenviable task now confronting this Court.

Some Relevant Background

1. The mother is an English woman. She was born and grew up there. In late 2008, at the age of 25, she travelled to Australia on a three month ‘tourism, recreational informal study visa’. She got another three month tourist visa in January 2009. She was given consecutive tourist visas before getting a working holiday visa in mid-2009 and then a study visa in July 2010. She was then given consecutive student visas with the last one being valid until 20 October 2017. At some point in time, prior to the cessation of that visa, she deferred the course of study that she was undertaking as she had given birth to X. She had also separated from the father and was struggling emotionally and financially. She simply could not continue her studies at that time. At the end of October, last year, her student visa expired.  

2. The mother’s state of mind at the time of the expiration of her visa is a fact in dispute between the mother and the father. The mother said she had overlooked the expiry of that visa and that she thought the institution she was studying at was responsible for doing something about her visa renewal. I do not accept that she truly believed that. She had been in Australia, on many different visas, for nine years. There was evidence that she and the father knew of her visa status in 2016 and understood the need to do something about securing her right to live permanently in Australia given that they had formed a live-in relationship and he is an Australian man and she is an English woman. The evidence is that they were planning on opening a business together. They had clearly discussed the visa issue and acknowledged that the father could not sponsor the mother for a partner visa as he was still lawfully married to another woman, though separated from her. The father told the Court that the mother had “pressured” him to finalise the divorce from his former partner to whom he was still lawfully married. He said he just did not get around to doing it, apparently not having given enough thought to the need for the mother to permanently secure her right to live in Australia and the dilemma that the family could find itself in in the years ahead if she did not – a dilemma that they do actually find themselves in now.

3. At the end of the trial, counsel for the father submitted that the Court would find that the mother deliberately and calculatedly allowed her student visa to expire and deliberately and calculatedly did not apply for another visa within the maximum period of 28 days allowed within which you can reapply for another visa without being considered to have overstayed. She submitted that the Court would be satisfied that the mother did that to “force the Court’s hand” in respect of permitting the mother to take the child with her back to the UK. She submitted that the Court would accept that as evidence of the mother’s intention to deprive the father of a relationship with the child and evidence sufficient to support a decision to place the child in the full-time care of the father.

4. Counsel for the father certainly put the assertion to the mother during cross-examination of her. The mother denied the assertion. In my assessment, her denial was credible. As I have already observed, the mother said that she had overlooked the expiry of her visa. Not accepting that she truly believed the school she had attended was responsible for renewing her visa does not equate to finding that the mother is lying when she said she overlooked the expiry of the visa at the end of October 2017. The maternal grandmother was visiting Australia from England in October 2017. She gave evidence that there was some talk between her and the mother during that visit about the mother and the child returning to the UK to live, but she did not give any evidence that caused me to think the mother had deliberately decided not to renew her student visa.

1. To have deliberately and calculatedly allowed her visa to expire so that she no longer had a lawful right to remain in Australia whilst proceedings relating to the future parenting arrangements for the child were still underway, thinking that would force the Court’s hand to permit her to take the child with her to live in the UK, would have been an enormous gamble for the mother to make, given that she could have absolutely no certainty that the Court would permit the child to go with her. Having observed the mother in the witness box for over a day and in the Court for three days, I am not satisfied that she did take that gamble. I am not persuaded that she acted deliberately as submitted. Whilst satisfied that she always knew that her visa renewal was her responsibility, I am not convinced that she is not telling the truth when she says that it expired before she realised it as she was caught up with the obligations of caring for a six month old, dealing with the conflict going on between her and the father and managing her involvement in these proceedings. In any event, as I said in the exchange with counsel for the father during her oral submissions, even if I am wrong about this, I am not necessarily persuaded that a finding that the mother deliberately let her student visa expire would be determinative of the dispute in itself. There is no evidence, not even amongst the evidence given by the solicitor who is an expert in migration law, of a visa that the mother would have been eligible for that would have given her anything other than a right to stay for a short while longer in the country. In any event, ultimately it is the best interests of the child that guide the discretionary exercise in determining the proper orders to make, and the mother never having had a right of permanent residence in Australia was always going to make this a more difficult case for the father, particularly given the age of the child and his primary attachment to his mother.

2. The unexpected advent of the pregnancy, so soon after their relationship commenced in early 2016, whilst they were still enjoying a lifestyle of partying, seems to have brought on and increased the level of conflict between the mother and the father rather than consolidating their love for each other and generating a mutual resolve to secure the mother’s right to live permanently in Australia. As I observed during the trial, the advent of the unplanned pregnancy without the mother having secured a right to live permanently in Australia, combined with the level of conflict between them, meant that the sad position they now find themselves in was approaching like a speeding locomotive coming at them down a fairly short, dark tunnel.  

3. The evidence persuades me that the mother herself was acutely aware of the need to secure a change in visa status in order to secure the right to live permanently in Australia. Affidavit evidence she gave in these proceedings in mid-2017 confirms that. In fact, she said there that she was intent on taking steps to try and secure a new and different type of visa. Notwithstanding having said that, she did not do it and, as already observed, in October last year her student visa expired leaving her with no immediate right to stay in the country.

4. The mother said that it was in January this year, when she went to a Centrelink office and enquired about her potential qualification to receive Commonwealth support in the form of Medicare benefits, that she was informed that she had overstayed her visa and was living in Australia without valid visa authority. The mother was granted a Bridging visa allowing her to stay lawfully in Australia whilst these proceedings that had been commenced last year are finalised. She told the Court in her evidence that her current Bridging visa expires at the end of this month – the 31^st October. It is apparent now, that with no change to her current visa status in the near future, she will be required to leave the country and has no right of lawful permanent return. Indeed, the evidence is that she may very well be prohibited from coming back to Australia, even for a short visit, for as long as three years.   

5. The mother does have a history of problems with her mental health since she was a child and for which she has had treatment. She was sexually abused by her older brother when she was only young. She was suicidal in her late teens. She has been diagnosed as having anxiety and has accessed psychological support on and off throughout her adulthood. The anxiety apparently makes her obsessive and compulsive, causing her to clean a lot. She does not take any medication though. Unsurprisingly, she appeared to be quite anxious throughout the trial before me.

6. The mother’s family still lives in England. Her elderly mother does, as do her siblings and their children. She has a sister and two brothers and says she gets on well with her mother, her sister and her sister-in-law. She has a strained but existing relationship with the brother who abused her as a child. She was six and he was ten at the time and the abuse went on for about a year. The maternal grandmother confirmed in evidence that she knows about the abuse perpetrated on the mother by her brother, and believes the mother in saying that it happened. The evidence is that her brother admits it happened, has confirmed that to their mother, has suffered emotionally himself as a consequence and is remorseful for his actions.

7. The father is an Australian man who grew up in the intact relationship of his parents who were 50 and 42 years old when he was born as the only child of their relationship. His father had three children of an earlier relationship. One of his two half-sisters recently passed away. The other sister lives in the Republic of Ireland. There is Irish ancestry going back to his paternal grandparents. There was no expert evidence adduced about the father’s right to live in the UK, notwithstanding the fact that I made it known to the parties at the trial management event approximately one month before the trial that I was interested in this issue. In his affidavit and oral evidence, the father made it very clear that he has no desire whatsoever to move to the UK. He said he had no knowledge of whether he could. He said he is an Australian, has lived all his life here and now has his elderly parents who are 83 and 75 years of old to care for.

8. On questioning, however, the father did tell the Court that he would “do anything he could” not to be separated by 12,000 kms from his son. Other questioning resulted in the father telling the Court that his Australian born sister had secured an Irish passport because their father was born in the Republic of Ireland of Irish parents. It is, therefore, likely that the father could secure an Irish passport in the same way. Whilst the Republic of Ireland and the UK are both members of the European Union, one would expect that the holder of an Irish passport could reside in the UK if he or she wanted. However, the impending exit of the UK from the European Union, currently scheduled for 29 March 2019 could be expected to impact upon that. Accordingly, it appears possible that the father could seek Irish citizenship and use that to travel to the UK to live provided he does that before 29 March 2019. Even though he said that he would “do anything he could” not to be separated from X, realistically, I am not satisfied he would try to move to the UK if I permit the mother to take the child to live with her there, though the fact that it appears open to him to try to is, in my judgment,  a relevant matter for me to consider in determining the outcome of this dispute.

9. Both of the parents have had three or four previous significant adult relationships, though X is the first child for each of them. Clearly, there is a historical absence of demonstrated relationship stability on both their parts.

10. There was very little evidence demonstrating any reliable work history either. In fact, neither parent said anything much at all about any work history in their affidavit evidence. There is little evidence about what they were doing in their lives before they met and most of the evidence about what they were doing in their lives in the time between commencing co-habitation and X’s birth is about the party lifestyle they led and the conflict that ensued after the mother unexpectedly fell pregnant. Some oral evidence of work history was adduced in response to questions asked during the trial.

11. It is approximately four years since the father held full-time employment in a service centre. Since then he has worked as a casual for a charitable foundation for little more than a couple of days per week, in addition to some sound technician work when music festivals are on. He also told the Court that he plays musical instruments and has played in bands all over Australia, but is not in a band now. He said he is dabbling in trying to write advertising jingles, but he also added that it is a hard sector to break into. Otherwise, he has been receiving Commonwealth Newstart Allowance and rental assistance. He could not remember when he started receiving that benefit.

12. Since the mother has lived in Australia, she has studied various vocational courses, but has also done some work in sales for a wholesaler of alcoholic drinks, some work for a friend’s festival promotion business, as well as some remedial massage therapy. There is also evidence that in the middle of last year she at least actively sought to engage as an escort, though she denies having actually done any such work. At that time, she had a four month old baby that she was caring for by herself, she was not able to receive financial assistance in the form of Australian Government income support benefit, rental assistance, Medicare benefits and the like. She was only receiving child support from the Child Support Agency sourced from the father, taken directly from his Newstart Allowance, of around $8 per week, whilst the evidence shows the father regularly spends significantly more than that amount on liquor and sports betting (on race horses and greyhounds) in an evening, several times each week. I am satisfied that the mother sought to obtain escort work in such circumstances, reflects her financial desperation at the time. She gave very credible evidence about the plans she had made in respect of X’s care if she had obtained such escort work. It appeared to be carefully considered and entirely appropriate.

13. It is common ground that the father spent a lot of time, including days at a time, away from the home he shared with the mother after she fell pregnant. She said that he would just go out and stay away and gave her little emotional and practical support. He said that he just tried to avoid conflict and stayed away from home to avoid that conflict. He said that the mother would want to know where he was all the time and that caused conflict, so he just chose to avoid it by not returning her calls or messages and not returning home. It is hardly surprising that they argued when he eventually did return home in these circumstances.

14. There was an occasion when the mother was about three months pregnant when the father said that he went out around 5:00 pm to “play pool” with friends. He initially told her he would be home around 6 pm, but continually extended his estimated home coming time later into the evening. He ignored text messages received from the mother as the night drew longer and when he ultimately went home sometime between 10:00 and 11:00 pm, he accepts, they started arguing. He concedes ripping up a photograph of an ultra sound image of the baby the mother was carrying that was posted on the fridge during the argument. He said that the mother attacked him punching and kicking him and scratching his face. He said that she grabbed his mobile phone and smashed it. He asserted he ripped the ultra sound photograph up in “frustration” and, in his oral evidence, he asserted that it did not matter that he had done that as they had other copies. He said that he pushed the mother away whilst she was trying to attack him and she slipped and fell over. He said that he grabbed her wrists and pushed her out the door and locked the door. He conceded that the mother had kicked the door in after repeatedly screaming at him to let her in so she could collect some things.

15. The mother said that she did smash the father’s phone and that he pushed her causing her to hit her stomach. She said that she smashed the phone in retaliation to him ripping up the ultra sound photo. She said that he shouted at her, cruelly telling her he hoped she miscarried. He denied that. She said that they scuffled and he grabbed her by the legs and dragged her out the door before locking her out. She kicked in the slats on the door to unlock it to retrieve her pet dog and her purse and she then left with a friend she had called to come over for support.

16. There was another incident during the pregnancy when the mother went to hospital having experienced some bleeding. The father was away from home and after she contacted him to tell him, he eventually turned up at the hospital at 5:30 am. She said he was under the influence of alcohol and/or drugs when he did. He accepts he had been drinking all night, though denies having had drugs. They had another argument and he left before she had a scan to determine if the unborn baby was still healthy.

17. There was another incident when the father arrived home from an evening out drinking with friends. He had bought a pizza and was eating it on the way home. On arriving home, he and the mother argued again. She said that he threw the part-eaten pizza at her. He said that he had finished the pizza and simply threw the empty pizza box across the room.

18. I do not consider it necessary to have to decide who is telling the truth about these varying allegations as to who did what first. Findings of fact as to who did what are, in my judgment, not actually necessary to determine the outcome in this case. I will say though that the father did not help his own credibility by asserting in the witness box under cross-examination that he had torn up the photo of the ultrasound of the baby in frustration after the mother had physically attacked him and smashed his phone, whereas in his affidavit sworn only ten days before the trial he had deposed to tearing up the scan in response to the mother yelling at him, which then prompted a response from the mother in which she smashed his phone and physically attacked him. It is also to be remembered that he is describing something that happened late at night after he has consumed at least six beers (without reference to quantity) in five hours. I consider the mother’s memory likely to be more sharply focused. 

19. In March 2017, X was born. A few weeks after he was born they had further conflict about the name the child would be registered under. The mother said that she wanted the child to have a hyphenated family name combining both of the parents’ names but that the father was insisting the child only bear his family name. The father said that the mother just wanted to give the baby her family name and that it was him who wanted the hyphenated name. The maternal grandmother, who had come out from England for the birth, was staying with the parents and the newborn baby. The mother said that she and the grandmother tried to leave the house with the baby but the father refused to let them take the child and was demanding the mother hand over her passport. He was apparently fearful she was going to leave the country with the child. The mother called the police, who attended at the home and spoke to all parties, coming things down. Less than a week later, in April, 2017, the parents separated when the mother gathered up her things and baby X and left the home, supported by her mother who was still in Australia at the time, and left the home whilst the father was out of the home for an extended period.  

20. The mother applied for and obtained a temporary family violence protection order. When the father went to the local police station to report baby X as a missing person, police served him with a temporary family violence order. A couple of weeks’ later, the father who obtained specialist family law advice and representation, applied for a family violence order against the mother. His application for a temporary order was refused. He told this Court at the trial before me that he sought an order against the mother not on a “tit for tat” basis but to ensure each of them behaved appropriately towards the other. At that time, the father did not know of the residential whereabouts of the mother and the child.

21. At the Magistrates Court on a June 2017 return date of their competing applications, they agreed to a parenting plan that resulted in X spending time with his father on Mondays, Wednesdays and Saturdays each week for a few hours at a time. The father’s time with the child was, at the mother’s insistence, supervised by one or both of his parents or his adult niece who has children of her own. The mother has maintained her position that the father’s time must be supervised because of her belief that he will use or be under the influence of drugs whilst the child is in his care.

22. The mother filed her application for parenting orders in the Federal Circuit Court in June 2017, soon after the agreed parenting arrangements started. In that application, she sought sole parental responsibility and a maintenance of the parenting agreement that they had already reached. She also sought orders permitting her to take X to the UK for a ‘trip’ without specifying the length of time she wanted that permission for. She also sought an order for the father to join with her in having the child’s name registered as X House-Ormond with the Queensland Registry of Births, Deaths and Marriages as his birth had not been registered yet. Though, again, the disagreement that exists over the naming of the child is a factual dispute I consider I do not need to decide, it seems that the mother, at least, was quite content in June, 2017 to have the child’s name registered as a hyphenated family name made up of both parents’ family names. 

23. It is agreed that the mother did not produce X for time with his father on 8 occasions through from late June, to August over a period of 9 weeks – 8 of 27 scheduled visits. She said either the child was sick or she was or both of them were on those occasions. She said she gave notice via text message to the father’s niece. The father adduced the evidence in support of his case that the mother does not value his relationship with the child. I do not find that she did cancel the visits for illegitimate reasons. The evidence is that from late August 2017 to the time of the trial before me, over a year, the mother had only cancelled one of the scheduled visits and she said she did that for medical reasons. I accept that. In the same time, the father had, for legitimate reasons, cancelled three visits himself. Generally, there seems to have been an adherence by both the mother and the father to the parenting regime put in place.

24. In September 2017, mutual family violence protection orders were made in favour of each of the parents against the other, by consent without admission in each case.

25. In October 2017, Orders were made in the Federal Circuit Court at Brisbane with the consent of the parents for X to continue to live with the mother and to spend time with the father from 10:00 am to 1:00 pm each Monday, Wednesday and Saturday under the supervision of the paternal grandparents or one of the father’s nieces. The Orders also provided for the parents to communicate with each other in respect of the child by email.

26. In March this year, after the mother’s visa problems emerged as a real issue, she amended her application to seek an order allowing her to take X to live with her in the UK and, pursuant to the protocol that exists between this Court and the FCC, the matter was transferred to this Court.

1. In April of this year, the father was charged with driving whilst disqualified from driving, as his licence had been suspended after an accumulation of demerit points, presumably for speeding fines garnered within a certain period of time.  He was also charged with a drink driving offence. He had a blood alcohol reading of 0.049 but because he was disqualified from driving at the time, it was alleged to be an offence for him to drive with any concentration of alcohol in his blood. He pleaded guilty to the charge of driving whilst disqualified because of an accumulation of points. That offence carried a mandatory six month disqualification, and he was again disqualified from driving for that time and remains disqualified from holding a drivers licence until next month. The police offered no evidence on the drink driving charge, so that charge was dismissed.  

2. The evidence supports findings that the conflict that characterised the parents’ relationship whilst they lived together still remains a problem for them today. There have been numerous incidents of verbal conflict arising at the changeovers of the child. They have been in dispute about the requirement to transfer a communication book backwards and forwards between them with the child, having disagreements about what is to be communicated in it. On one occasion, the father threw the book down at the mother’s feet at a changeover. The book, adduced into evidence, reflects very few entries made in it by the father, though the mother continued to write in it. The father was apparently upset that the mother was not writing more in it about the child’s day to day life and he felt he had so little time with the child that he did not want to spend it writing in the book. They stopped using it some months ago and the mother made an attempt, through the father’s niece, to see if the father would agree to her communicating with him via email. It seems not much became of that.

3. The mother recently moved into crisis accommodation provided by a not for profit community organisation. It is only available on a temporary basis. She also recently obtained a special benefit from the Commonwealth that provides her with income support whilst she remains in Australia as these proceedings are determined. She has been receiving financial support from her mother who has been sending her money from England that she is able to spare from her pensions. It has been from 500 to 700 British Pounds per month. She has had some assistance also from friends in Brisbane.

4. The father has been living in a new 2 bedroom apartment close to the city for almost a year. His parents live in Town C and his niece lives in an outer eastern suburb of Brisbane. She has principally been providing the supervision for the child’s time with the father, though she maintains the father does not need it.

The Parties Preferred Proposed Positions

1. The mother wants to return to the UK to live and to take X with her. In fact, she says she has little choice herself.  She and her mother propose that the mother and the child can, in the first instance, take up residence in the maternal grandmother’s home in the City B area, which is suitably large enough to accommodate them. The mother says that she will have the welcome support of her mother, her sister and her sister-in-law, all of whom live in the same area. Her mother is 68 years old but not in robust health. Her sister and her brother have children, all of whom are older children or already adults, who are X’s cousins, who he will be able to have relationships with.

2. The mother says that after she and X settle into life in the UK, she will try to find employment in the care industry early next year. She has already begun making enquiries about this. She asserts that the care industry offers flexibility with casual work hours that would suit her and her parenting responsibilities. She says that she would be entitled to some UK Government benefits whilst getting settled and finding employment, benefits that she is not entitled to here in Australia.

3. The mother still seeks sole parental responsibility because of what she perceives is the inability of the father and her to communicate reasonably with each other. She is agreeable to communicating with the father and seeking his views and input on things provided she has the final decision making power. Through her counsel, she indicated that if she was given sole parental responsibility she would consent to a limitation being placed on that in respect of the right to change the child’s name.

4. The mother says that if the child is permitted to go to the UK with her and the father moves to the UK she would agree to the same amount of time that he currently has with the child. If he does not move to the UK, she says she will facilitate a relationship via Skype video calling and telephone. She says she will set up a joint drop box account to access photographs and relevant documentation. Clearly, this will require her to load such things into the Dropbox.

5. She says that she will visit Australia, if she is permitted, once per year with X and stay for no less than six weeks. In those weeks, she says she will provide the child to spend time with the father each second day for no less than five hours. She says she would require the father to prove he is drug free if he wants to have unsupervised time though.

6. She says that she and her family will facilitate visits if the father visits the UK and stays for a time.

7. The father proposes that the child stay here in Australia. His preferred option is that X continues to live with the mother here and continues to spend time with him, but without supervision being required, gradually increasing over time as he grows and the relationship continues to develop. He wants the Court to make an Order that the mother “do all acts, and take all steps necessary to remain in Australia, and apply for permanent residency.” He asks the Court to make an order that the child transition to his care if an application by the mother for permanent residency is refused. In the alternative, he says that if the Court will not make that order that the parties be ordered to attend family dispute resolution and if they cannot reach agreement about X’s future that they be given liberty to apply to the Court again for determination of the issue – that is, by way of another trial.

8. In relation to the father’s proposal, the mother said that she would only try to stay in Australia if the Court ordered that the child was not allowed to be taken from Australia, but if that happened she would do everything within her power to try to stay in Australia to remain with the child.

9. The father’s proposal, in the event that the mother leaves Australia to return to the UK, is that the child live with him. The evidence is that the paternal grandparents who are now 83 and 75 years of age are intending to sell their Town C home and want to purchase a home in Brisbane, hopefully in the inner eastern suburbs. The father proposes that if the child is in his care that he and the child will move in with his parents so that he has his parents’ assistance in caring for the child. He says he would care full-time for the child though.

10. The paternal grandmother gave evidence. She told the Court these were the plans of her and her husband. He is, she said, in the very early stages of Alzheimer’s disease, and they intend to move to Brisbane to access better care for him.

What is the position in respect to the Mother’s ability to stay in Australia?

1. The ICL adduced evidence from Mr D, a solicitor with expertise in Australian immigration law. Critically, he confirmed that no visa is granted to a person wanting to stay in Australia on the basis of the best interests of an Australian child. Every person who applies for an Australian visa must meet the normal criteria for the visa they apply for.

2. After a careful expose of the subject and his opinions about the matter, Mr D said that the best options for the mother for obtaining residence in Australia would be one of the following two:-

   (i)Applying for a visa whilst still here that Mr D expects would be refused by the Department, then appealing to the AAT transparently admitting that her objective is to await the AAT’s confirmation of the Immigration decision, then seek Ministerial intervention. Mr D said the case would likely take one to two years to come before the Minister, giving the mother time to develop a case. Mr D could not proffer any opinion on the prospects of success of an application for Ministerial intervention. He even raised the spectre of this approach being considered an abuse of process but said that arguably it would not be if the visa application had some merit. He did not offer an opinion as to any particular visa she might apply for that would have merit; or

   (ii)Leaving Australia with the intention of applying in the UK for Contributory Parent Migration. He said this option would cost more than AUD50,000 and take around 4 years to be considered. He said that the mother would be strongly advised to secure a reliable sponsor and obtain sponsor documents before leaving Australia. He said if a health or character issue arose, that would likely further delay the process and could significantly affect the prospect of success. He did refer to her anxiety issues as a potential health problem of impact.

3. As I have already observed, either of these paths would be tortuous, demanding and uncertain for the mother. I am not persuaded that ordering her to follow the second option is at all appropriate. If she was to be ordered to take the first option, she would be reliant on obtaining bridging visas in the meantime securing her right to continue to stay here whilst her application, appeal and application for ministerial intervention were finalised. Being reliant on a bridging visa for the right to continue to stay in Australia, would, I am satisfied, impact upon her employment opportunities. Not many employers would be content to give her employment, I am satisfied, if she only has a right of short-term residence. Furthermore, if the mother’s heart is not in the process of trying to secure a visa that permits her to stay, it will, in my judgment, make it far more difficult for her to secure such a visa in the future.

4. She does not wish to stay in Australia. There is absolutely no certainty of gaining the right to stay if she is made to follow the first path, and the uncertainty of her position here and what might happen in the future would, in my view, likely increase her anxiety issues and potentially fuel the conflict between her and the father even further, as she would blame him for preventing her going back to the UK as she desires. Additionally, she would just not have the family support available to her that is offered by a return to the UK. She would not have the ability to secure better quality, more secure employment or to access Government benefits legitimately available to someone like her in the UK.

5. Those are but some of the matters I must consider in determining what orders to make that I judge are in X’s best interests.

The Principles by which this matter is to be decided

1. The Court is required, by the competing applications of the parties, to make a parenting order in relation to this little boy. Section 61DA(1) of the Act requires the Court, when making such an order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Without a parental responsibility order in place, each of the parents of a child has parental responsibility for the child and parental responsibility in relation to a child means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (ss 61B, 61C).

3. The presumption just referred to above does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s 61DA(2)). In addition, even if that exception to the application of the presumption does not apply, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared responsibility (s 61DA(4)).

4. The definition of “family violence” is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence. Relevantly, they include “an assault” and “intentionally damaging or destroying property.” Without even deciding who was responsible for starting the fights that took place between the former couple in this matter, there is no doubt that there were “assaults” between them and that each of them intentionally damaged or destroyed property. It is conceded by both parties that “family violence” occurred in the relevant sense and that, consequently, the s. 61DA (1) presumption does not apply.

5. I am not persuaded by the balance of the evidence that it is in the child’s best interests for his parents to be given equal shared parental responsibility in this case. As I mentioned to the parties during the hearing, my view on this is directly related to the provisions of s 65DAC of the Act. Those provisions apply if, under a parenting order two or more persons are to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. The provisions of the section, when such an order is made, require that decision to be made jointly. It is to be made jointly after each of the persons on whom shared parental responsibility is conferred has consulted the other person in relation to the decision to be made about that issue, and after each has made a genuine effort to come to a joint decision about the issue. There is, it seems, no exception to the obligation imposed upon the persons upon whom shared parental responsibility is conferred to make such a decision jointly. That means if there is no jointly made decision there can be no decision made at all.

6. I say repeatedly in judgments in these difficult parenting cases that I am satisfied that to make an order that imposes such an obligation on two persons who cannot communicate respectfully and effectively, and with demonstrated recognition of the important co-parenting role the other parent plays in the life of the child, is not in a child’s best interests. In this case, counsel for the father submitted that these parties are not in such high conflict that they should not share parental responsibility and be required to jointly make the decisions about the major long-term issues (as defined in the Act). I respectfully reject that submission. The mother and the father had barely lived together and settled in to a shared life when the mother fell pregnant and their fighting seriously started. They separated after around a year of living together during which they constantly fought. They have been in conflict since. They have not been able to agree on very much at all. Significantly, they have not even been able to sustain the use of a communication book between them in which they tell each other about the child.  They struggled to agree on the family name to be given to the child. They have little, if any demonstrated respect, for each other.  They both considered they needed family violence protection orders against the other. They both consented to such orders being made against them, without any admissions being made as to the need for such orders. Nevertheless, they consented to them.

7. I am not convinced that the problems they have had with mutually acceptable communication historically since separation will not create insurmountable difficulties for this former couple and their child if parental responsibility is shared and they are obliged to make decisions about major long-term issues in relation to the child’s religion, education and health jointly. I will not make an order that confers shared parental responsibility for those major long-term issues on both parents. I am not satisfied that it is in the child’s best interests. I consider it is in the child’s best interests for the parent he principally is going to be living with to have sole parental responsibility for all decisions about major long-term issues save for any changes to the child’s name which will still require the agreement of the other parent. However, all decisions for which sole parental responsibility is being exercised will still have to be made after written consultation with the other parent and consideration of the other parent’s position on the issue.

8. I must go on to decide the proper parenting order to make, with regard to the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, I must consider all of the matters set out in s. 60CC (2) and (3). Those subsections set out two primary considerations and multiple additional considerations that include the very broad consideration of “any other fact or circumstance that the court thinks is relevant”.   

The Evidence of the Family Report Writer

1. Experienced social worker and family consultant, Ms T, was commissioned by the ICL to provide a family report in the matter. It was provided as recently as 17 September. It was of great assistance to the Court. Importantly, Ms T assessed X as having a secure attachment with his mother, contributed to by the fact that the mother is still breastfeeding him on demand. She proffered the view that he is still developing an attachment to his father.

2. Relevantly, Ms T asserted that the father did not demonstrate any understanding of how X may experience the absence of his mother, demonstrating limited understanding of X’s needs in the current context.

3. Ms T said that if X starts living with his father now “it could cause him to experience significant problems with the security of his attachment” with the experience of loss of his primary attachment, his mother, potentially negatively impacting on his feelings of security in his relationship with his father. Ms T does not think that by speaking with his mother by electronic means, the child would be provided with enough experience of her to mitigate the loss of her from his life or to support him to cope with it. Ms T did say that if the father could provide X with a high level of responsive, sensitive care it is possible that this could alleviate the problems X is likely to experience if his mother leaves and returns to the UK without him. However, Ms T points to the father’s lack of experience in caring for X for longer than short periods and opines that it is likely that such inexperience will mean that the father does not have the capacity to accurately interpret X’s needs. Having considered all of the evidence, I am satisfied that Ms T’s opinions are likely to be correct. I accept them.

4. In contrast, Ms T opined that if X moves to England with his mother there is unlikely to be any direct detrimental impact for him. He will continue to be cared for by his primary attachment figure. Not spending the physical time with his father that he currently does is not likely to have any immediate detrimental impact on him, as his mother will remain a consistent attachment figure for him. Ms T said that receiving support from her wider family is also likely to reduce the stress the mother is experiencing in the current situation and this could be beneficial for X.

5. Ms T was cross-examined at the trial, particularly by counsel for the father. Counsel proposed to Ms T that it was most important for X to live in close proximity to both of his parents. Ms T rejected that suggestion and said that at this stage of X’s life it is most important for X to live with his primary attachment, who is his mother.

1. Ms T was asked about long-term detriment to X in the event that he is taken to the UK by his mother and she does not facilitate and encourage the ongoing development of a relationship between him and his father. Ms T readily conceded that if X goes to the UK with his mother, he will be entirely reliant on his mother to facilitate his relationship with his father. She said that if X does lose his relationship with his father in the long term, there is potential for that to have some negative impact upon him, particularly so if his mother speaks to him negatively of his father and generally denigrates the father in his presence. I am not convinced that she would do that. I am not convinced the maternal grandmother would do that either.

2. Ms T actually pointed out in her report that the mother and the father have minimal capacity to communicate co-operatively to co-parent X, just as I have already found. She actually said that living in different countries is likely to reduce any problems related to conflict between them at regular handovers that X would be likely to witness. In her report, Ms T went on to suggest that the impact on the relationship between X and his father that will happen if X goes to the UK with his mother and his father does not go to live in the UK as well, can be mitigated by the mother facilitating the relationship with regular skype contact, regular communication of information about X to his father physical visits whenever possible. The mother says she will do all these things. Indeed, she proposes orders for Skype (or similar) communication three times per week and on special days such as birthdays, Father’s Day, Christmas and Easter. She did initially propose that she will travel with the child to Australia for six weeks each year to let him spend time with the father. She also now proposes orders prefaced on her not being able to come to Australia (eg. if she is prohibited by the Australian authorities as forecast as a possibility by Mr D because she overstayed her visa) that require her to contribute AUD$3,000 to the father’s costs of travel to the UK once per year. She also proposes that the orders that are made by this Court are registered in a UK Court so that they are enforceable there, ostensibly showing the level of her commitment to court supervised compliance with the proposed orders.

3. I observe that Skype style contact will only be able to be facilitated by interaction and co-operation of the parents. The conflict between them and the difficulties that will present for regular skype communication troubles me. However, if conflict occurred and the mother considered it as troublesome for the child she could be expected to terminate the skype session. In such circumstances, it would at least be in the interests of the father to avoid any conflict whatsoever and sensitively contain his feelings if he wanted it to work. There might then be less prospect of the calls being terminated by the mother in this way. There is evidence that X and his mother are already accustomed to Skype style communication between Australia and the UK as they communicate with the maternal grandmother in this fashion.  

4. Notwithstanding my concerns about potential for conflict, I got every sense that the mother is devoted to X and his well-being and that her stated commitment to facilitating the relationship between the child and his father to the best of her ability as he grows has some faithful substance. I got a sense that she appreciates how important such a relationship might be for his healthy development. As I already just observed, she proposes giving the orders this Court makes the force of a UK Court order by registering the orders in a Court there as well, making them enforceable against her by the father there.

5. There was no expert evidence about the utility of an order of this Court that obliges the orders to be registered in a UK Court, though I do observe, as I have in a previous judgment[1], that Australia and the UK are signatories to the Hague Convention of 19 October, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

   [1]Baudin & Rose [2012] FamCA 724 [86].

6. I understand that Convention to provide a right to both parents to apply in the UK for the order of this Court to be declared enforceable in the UK or registered for the purpose of enforcement in the UK. Once the order has been declared enforceable or registered for enforcement in the UK, enforcement should take place in the UK in accordance with its law and to the extent provided by such law, taking into consideration the best interests of the child.[2] This being the case, the father could have some confidence that he could take steps in the UK (whether he is living in the UK or Australia) to enforce the provisions of the orders I will make that provide for the child to spend time with him, should the mother’s expressed commitment to compliance and facilitation of the relationship between the child and the father prove hollow or wain in the future.

   [2]See the Practical Handbook on the Operation of the 1996 Child Protection Convention, 2014, p 110 [10.22] to be found at  

7. In making my assessment about this issue, I have considered the evidence, pointed to by the father, that the mother unilaterally obtained a British passport for X without his father even knowing about it until the trial, as well as the evidence that the mother complained to police about the father’s behaviour on several occasions, hoping to have him charged with a breach of the family violence order. Counsel for the father submitted that these two factual matters add weight to the submission that the mother cannot be trusted to support and facilitate a relationship between X and his father if they are living in the UK and he is living here in Australia.

8. The mother applied for and obtained a British passport with the assistance of office of the British Consul in Brisbane. There was no evidence of British law adduced, so I presume that she was permitted by British law to apply for and obtain a passport for the child without the father’s consent or an order of the Court. I accept the mother’s evidence that as soon as she received the passport that she returned it to the British Consul’s office for safekeeping pending need. There is absolutely no evidence that the mother sought to get X out of Australia without his father’s knowledge or consent without the sanction of this Court. She gave evidence that she has been well aware of the Hague Convention on the Civil Aspects of International Child Abduction and had no intention of trying to get X out of the country without permission. I accept that evidence she gave as truthful. I am not persuaded that applying for and obtaining the British passport in those circumstances proves she is not to be trusted on assertions of commitment to relationship facilitation in the future.

9. The evidence about her multiple complaints to the police demonstrates the level of her anxiety as well as her apparent desire to have the father refrain from conflict with her. However, it also highlights some obsessive inflexibility that probably exacerbates conflict between them. That evidence, along with the evidence that the father also made a complaint to police about the mother based on fairly trivial assertions of having breached a family violence order, is part of the evidence that causes me concern about their capacities to develop and maintain a reasonable co-parenting relationship in the future. However, it does not persuade me that the mother cannot be trusted to maintain the relationship to such a level that it would be determinative of the outcome of this case falling in the father’s favour.

10. My most significant concerns about the prospects of the father’s relationship with X not getting the chance to develop in the future if the child is living in the UK with the mother arises, I respectfully observe, out of my concern about the actual level of the father’s commitment and capacity to maintaining it and developing it with all that distance potentially in between them. In the first instance, I am concerned about his emotional capacity to be able to communicate with the mother without conflict. If conflict continues then it is far more likely that the opportunities for the relationship to survive and develop will get cut off. I do not consider that he has the temperament and skills to avoid conflict and to diffuse any that arises.  Several times in his affidavit and oral evidence he offered the assertion that he does not like conflict and that he avoids it. I am rather more satisfied that the real position is that he does not know how to avoid getting into conflict or how best to manage positive ways out of it when it does arise.

11. I am also concerned about the father’s financial capacity to travel out of the country to visit the UK or to pay for the child to travel to Australia, as well as his actual willingness to expend large amounts of money on the processes of keeping the relationship growing and developing. As observed, he has contributed very little financially to the support of the child in the first 18 months of the child’s life whilst at the same time spending far more than his child support contributions on alcohol and gambling each week. At the end of the trial, his counsel submitted that I should order the mother to pay for him to fly to the UK twice per year to spend time with the child, though the evidence does not give me confidence that she will ever get any meaningful financial assistance towards financially supporting and raising the child from the father. As the father readily acknowledged in the witness box, it would be costing the mother significantly more than the $16 per fortnight that he contributes to the financial support of X to raise the child. The father did not even try to explain how he considered a contribution of $16 per fortnight demonstrated fulfilment of his obligations to help maintain X. In the circumstances, he just could not assert that it does.

12. Ms T ultimately recommended that X should remain living with his mother. She then made recommendations in respect of the matters that should be provided for in the event that the mother and X are living in the UK. I will return to those later.

My determination

1. I am quite satisfied on all of the evidence before me that X should continue to live with his mother. Even the father told Ms T recently that he does not have any concerns about the mother’s actual care of X. Ms T reported that he thinks “it likely she is a good mother and X seems healthy and happy”.

2. Accordingly, the parenting orders I will make will provide for the child to live with the mother. The critical question then becomes one of whether she ought simply be permitted to take the child with her to live in the UK now or whether she ought to be ordered to stay with him here in Australia for as long as she can, doing all that she can to secure permanent residence in Australia, only to re-litigate the question of whether she can take him to live in the UK if she is unsuccessful in securing a right of permanent residency via Ministerial intervention.

3. In my considered judgment, the child’s best interests will be served by permitting his mother to take him with her to live in the UK as soon as she can rather than making an order that forces her down the other tortuous path of timeless uncertainty and ultimate dependency on the favourable exercise of a discretion by the Australian Immigration Minister. It gives the mother the right to go back to her place of origin. It gives her the right to live with her mother who she draws strength and support from; to be close to siblings and the families of siblings from whom she will also draw strength and support from; to seek employment of her choice with a view to better being able to provide financially for the support of herself and her son where she gets virtually no financial assistance from her former partner and father of the child. It gives her the right to lawfully receive assistance from the UK Government that she cannot legitimately expect to get from the Australian Government. It allows the child to remain with his mother, his primary attachment, and to reap the positive benefits that can be expected from all of those changes in his mother’s life.

4. It also is an option that provides the parents with a real opportunity for them to live in the same country by reason of the father’s apparent ready capacity to obtain Irish citizenship – at least if he was to pursue that course before the end of March next year. Although he is tied to Australia through filial loyalty to his parents, he does not own property here, and he has no deep seated employment obligations or greater prospects for employment here than he would in the UK. Apart from it not being his preferred option, it is, apparently, an option available to him if he is true to his stated commitment to do everything he can possibly do that is within his power to do so as not to be so drastically distanced from his son.

The Precise Orders I will make

1. At the end of the trial, each of the ICL, the mother and the father were requested to provide my chambers within 24 hours a minute of the precise orders they each asked the Court to make. I have received proposed orders from each of them. Having determined to permit the mother to take the child from Australia to live with her in the UK, I have gone carefully through each of the proposed sets of Orders sent to me and considered them.

2. I have determined to make the Orders that I set out at the commencement of these written reasons. They include permission for the mother to leave Australia with the child as soon as necessary travel arrangements can be put in place by her. Her visa runs out at the end of Wednesday next week, 31 October 2018. I have made the departure conditional on two things though firstly occurring – three more days of time the child spends with the father, with a little extra time thrown in, but with supervision still being required, purely to make the mother comfortable with it happening and the child being safely returned to her after each visit, now that everyone knows he will be leaving for the UK soon. Also, the Orders I will make are to be registered in a UK Court so that they are enforceable there as well. If that cannot be done within a few days, the mother will need to stay in Australia, with the permission of the Australian Government, until that is done. If it cannot be done before 31 October, it is sincerely hoped that the Australian Government will give favourable consideration to granting the mother a suitable bridging visa permitting her to stay until it is done. I expect the mother will do everything she can to achieve the registration as quickly as possible so that she can leave Australia as quickly as possible.

3. If the mother is unable to comply with that condition before 31 October 2018 and is given the necessary bridging visa to permit her to stay with the child until the registration of the Orders is effected in a UK Court, it is expected that she will continue to provide the child for time with the father, supervised as before, until she and the child are able to leave. I will not make an Order to secure that, but expect that is what will happen.

4. The Orders I will make will provide for the child to spend time with the father in a gradually increasing way in the event that he moves to live within 50 kms of the mother and child in the UK before the end of March 2019. I do not expect that he will, but in the event that he does, these Orders will regulate parenting arrangements for some time into the future, allowing things to settle and for the parents to then access British courts if they need to seek judicial variation to these arrangements.

5. The Orders will also provide for the child to spend time with the father and to communicate with him in the event that the father remains in Australia, as I expect he will do. Video calling is provided for at a frequency considered appropriate and also on special days that are specified. Physical time with the father has been provided for in the event that the father can travel for a holiday to England without restriction on the number of times in a calendar year that he manage it.

6. It is hoped that the mother will not have difficulty obtaining the permission of the Australian Government to obtain visitors visas to travel to Australia once per year so as to bring the child out to spend time with his father. I would encourage the Australian Government officials who might be considering her application for such a visa to look favourably upon her application despite her previous overstay. I am satisfied that the mother will not be looking to overstay any visitor’s visa she obtains in the future.

7. My Orders will oblige the mother to bring the child out to Australia once per year for a minimum stay of four weeks if she is able to secure the permission of the Australian Government. I consider that an appropriate amount of time to oblige her to stay to permit the child to spend time with his father. My Orders will provide the time the child is to spend with the father and it is not required to be supervised.

8. In the event that the mother cannot secure the permission of the Australian Government to return to Australia at least once per year from the date of her return to the UK and, consequently does not make at least one trip to Australia for four weeks each year with the child, my Orders will oblige her to contribute the sum of AUD$3,000 towards the father’s costs of at least one trip per year that he might make to the UK. Of course, he can make as many as he wants, but she will only be obliged to pay him the said amount for one of those trips.

9. My Orders will include restraints that the parties have considered it appropriate to ask for or to be agreed to, including one that will be included in order to make the father feel more comfortable in respect of the mother’s brother who sexually abused the mother as a little child. The mother proposed restraint on bringing the child into contact with that brother, though the father only proposed restraint on her leaving the child unattended with that brother. It is the restraint sought by the father that will be in my Orders as I consider that sufficient to give him the comfort he seeks. Should the mother not want to bring the child into contact with her brother that is a matter for her, but the evidence did not persuade me that such itself is necessary. Some of the other restraints provided for have been worded slightly differently by me from the drafts presented to the Court. I am satisfied the wording I have provided is the proper wording to apply.

10. The parties also provided drafts of proposed Orders for the exchange of information. I have included such Orders with some slight changes to the wording in accordance with what I consider proper.

11. I will also discharge the Independent Children’s Lawyer.

12. I sincerely hope that despite the animosity and rancour with which the parents of X have conducted their relatively short relationship over the last few years, they will be able to now move forward with greater certainty in a way that allows them to now accept that certainty and focus more acutely on ensuring that X’s needs, including in respect of his need to grow up having a meaningful relationship with both of his parents, are lovingly met.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 October 2018.

Associate:

Date: 26 October 2018