Papageorgio and Nicolaou

[2014] FamCA 31

FAMILY COURT OF AUSTRALIA

PAPAGEORGIO & NICOLAOU [2014] FamCA 31

FAMILY LAW – CHILDREN – Interim Proceedings – Relocation – Whether the child is to relocate to Greece – Where the mother is the primary carer of the child – Where the mother’s visa is expiring – Where the father is remaining in Australia – Whether there should be a change of primary carers pending final hearing – Whether res judicata applies to interim parenting orders

APPLICANT: Mr Papageorgio

RESPONDENT: Ms Nicolaou

FILE NUMBER: SYC 7757 of 2013

DATE DELIVERED: 28 January 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clarke

SOLICITOR FOR THE APPLICANT: Willis & Bowring Solicitors

COUNSEL FOR THE RESPONDENT: Mr White SC

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

IT IS ORDERED

1. That the wife cause the sum of $5,000 to be deposited in a Controlled Money Account with Michael Conley Lawyers to be held by them pending further order of the Court.

2. That a solicitor from Michael Conley Lawyers file and serve an affidavit confirming that the sum of $5,000 is held in accordance with Order 1 and annexing documentary evidence of the deposit.

3. That the wife file undertakings in the form prescribed in Rule 13.15 of the Family Law Rules that :

   (a)She will return to Australia to participate in the final hearing of the applications in relation to parenting orders affecting the child S born … May 2011 (“the child”); and

   (b)She will not institute proceedings in any other Court or jurisdiction in relation to the child; and

   (c)She will not challenge the jurisdiction of the Family Court of Australia to hear and determine any parenting proceedings in relation to the parenting of the child.

4. That upon compliance with Orders 1 to 3 herein, the mother is permitted to remove the child S born … May 2011 (“the child”) from Australia and to travel with the child to B Municipality in Greece.

5. That the child S born … May 2011 be removed from the Airport Watch List.

6. That the Australian Federal Police give effect to the preceding order by removing the child S born … May 2011 from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia

7. That during any period the child is living in Greece and the father is living in Australia the father shall have Skype access with the child at any reasonable time.

8. That during any period the father is present in Greece he shall spend time with the child as agreed between the parents and in the absence of agreement for four hours each afternoon.

9. That the matter be listed before the Honourable Justice Rees at 9.30am for Directions on 28 February 2014.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7757  of 2013

Mr Papageorgio

Applicant

And

Ms Nicolaou

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by Mr Papageorgio (“the father”) seeking final orders that the child S born in May 2011 (“S”) live with Ms Nicolaou (“the mother”) from Monday to Thursday each week and with the father from Friday until Sunday. The application is opposed by the mother who seeks orders that she be permitted to return with the child to Greece and that otherwise the child live with her.

FACTUAL BACKGROUND

1. The father (now 41 years old) is an Australian citizen. He lived in Greece from 1984 when he was 12 years old until he departed from Greece to come to Australia in April 2013.

2. The mother is a Greek citizen. She does not have Australian citizenship.

3. The parties commenced co-habitation in Greece in August 2009. Their child S was born in Greece in May 2011. He is now two and half years old. The child has both Greek and Australian citizenship.

4. When the relationship between the parties commenced, the mother was self-employed in the beauty industry operating her business out of the home of the maternal grandmother in Town A, B Municipality in Greece. The mother lived with her mother. The mother and the maternal grandmother also owned a block of land approximately 15 minutes’ drive from the grandmother’s home. They had begun to develop the block, building a house upon it.

5. At the time that the parties commenced their relationship the father was living with his brother in Town C, B Municipality and was self-employed in the entertainment industry. The father has extended family in Greece including his father and other relatives on his father’s side.

6. After the parties commenced living together they moved into rented premises in Town A. They then moved to Town C, where the mother opened a second beauty industry business. The business was opened in early 2010. The mother operated that business and the maternal grandmother continued to operate the business in Town A.

7. The child was born in Athens. After his birth the mother closed the business in Town C. The mother deposes that she then relocated with the child to the maternal grandmother’s home in Town A. The mother says that the father remained in Town C and travelled between Town A and Town C between May and September 2011 to visit the mother and the child. The mother says that his visits were irregular.

8. The father disputes that evidence and says that the parents always lived together. That is not a dispute that can be resolved within the limited scope of interim proceedings.

9. The mother deposes that at the end of September 2011 the mother and the child returned to live with the father in Town C and the mother reopened the Town C business. The mother employed a friend to assist with the day to day care of the child at home while she worked. The business only catered for about 12 clients, and the mother worked by appointment only. The mother was, therefore, able to be flexibly involved in the child’s care. The maternal grandmother assisted with the care of the child, travelling to Town C on a regular basis and spending time with the child, including overnight time.

10. From the time the mother returned to work in September 2011 the father was working long hours, leaving home in the morning at about 8.30 am and returning home often at 10.00 or 11.00 pm. The mother says the father worked seven days a week. On some occasions, he would return to the home for dinner and then go out again. It is the mother’s case that the father spent little time with the child during this period, seeing him usually in the mornings and “sometimes at lunch time if he returned for an afternoon siesta.”

11. It is the mother’s case that she was primarily responsible for the day to day care of the child throughout the period from the child’s birth until the father left Greece in April 2013.

12. The father did not dispute the mother’s evidence about his working hours but did not agree that he worked every weekend. He said that he was a devoted father to the child. In his affidavit sworn 22 January 2014 he said “I would sometimes bathe [the child], feed him and nurse him”. He said that on weekends he would take the child on outings to see horses, visit the beach and watch the yachts.

13. The father did not dispute that the mother was the primary carer for the child and in his affidavit sworn 22 January 2014 said that he has never had concerns about the mother’s parenting other than that she consumes alcohol to excess.

14. The father, in his affidavit sworn 22 January said “I am concerned if the mother was wholly looking after [the child] without support about the effect of her drinking to this extent”.

15. The concerns that the father now expresses, about the mother’s alcohol consumption, are inconsistent with his decision (albeit a decision made jointly with the mother) to leave the child with the mother and travel to Australia in April 2013.

16. In early 2013 the parties had discussions about moving to Australia. They agreed that they would marry in Greece before the father travelled to Australia. They married in April 2013 in Town C and the father left for Australia 9 days later. The mother and the child remained in Greece and moved back into the home of the maternal grandmother.

17. In May 2013 the mother, maternal grandmother and the child moved into the newly built property owned by the mother and the maternal grandmother and the child lived in that home with both his mother and maternal grandmother until October 2013.

18. In her affidavit sworn 15 January 2014 the mother said that in October 2013 she received a telephone call from the father who told her “I have a good [marketing] business and it’s time for you to come to Australia, and on your arrival, we will decide where we live.” The father does not deny that this conversation took place. The mother departed from Greece with the child and arrived in Australia on 24 October 2013 on a tourist visa.

19. It is not disputed that the visa which the mother holds is a multiple entry visa which is valid for one year and requires her to leave Australia permanently on 18 October 2014. Until that time she is permitted to remain in Australia for three months and then required to leave Australia to renew her visa before she returns. Her financial position, which is more fully discussed later in these reasons, does not enable her to pay for flights to and from Australia to some other country and to pay for accommodation while waiting for a re-entry visa.

20. There is no evidence to establish how many times the mother will be permitted to re-enter Australia. She asserted that she has been told by “the Immigration office” that if she were to leave Australia she would be allowed a re-entry visa for no longer than three months.

21. It is not disputed that the mother has no right to remain permanently in Australia.

22. The mother is currently in Australia on a Bridging Visa pending determination of her application to remain (I infer until these proceedings are completed). Her Tourist Visa expired on 24 January 2014.

23. Whether she will be allowed to stay, and if so for how long, are unknown. However the evidence is that she will be required to leave Australia on or before 24 October 2014.

24. If the matter were able to be heard in July 2014 then there would only, in the best case scenario, be a few months remaining when the mother was legally in Australia.

25. There is no guarantee that she will be able to remain in Australia until the hearing of the matter.

26. The child travelled to Australia on a Greek passport but when he arrived in Australia he was granted citizenship by descent on 4 November 2013.

27. When the mother and the child arrived in Sydney the parties commenced to live in premises in Suburb D which are owned by the father’s brother and occupied by him, his wife and their six year old son. The house is a three bedroom house and the mother and the child occupied a bedroom although there was no separate bed provided for the child so he slept with his mother.

28. Upon arrival in Australia the mother became aware that despite the father’s assertions to the contrary, he was unemployed and in receipt of Centrelink benefits.

29. The mother brought with her to Australia 2,000 Euros, in cash, which she used to support herself and the child.

30. In December 2013 the mother asked the father to contribute to the child’s support and he then commenced buying food. Other than the purchase of food he provided the mother with no financial support while they lived together.

31. The father conceded that he is in receipt of Centrelink benefits. He annexed to his affidavit a letter dated 14 January 2014 from the Chief Executive Officer of I Organisation to the effect that the father and his brother have a contract for the production of marketing material which is to be completed by March 2014 and for which they will be paid $10,000. There is no evidence of the amount to be received by the father. There is no evidence that he has been paid any money for work already done. The payment represents four months of work.

32. The father annexed to his affidavit a letter headed “To whom it may concern”, unsigned and undated which purports to be from a business that has a contract with the husband and his brother. The letter refers to “current work outlined” at $6,000 with further work to be charged on a monthly basis “TBA”. I infer that no agreement has been reached as to the rate of remuneration.

33. The father did not give evidence of any other employment or any regular income from employment and it appears that he will remain on Centrelink benefits although he hopes this will not be a long term position.

34. At Paragraph 42 of his affidavit sworn 22 January 2014, the father said “My brother and I are optimistic about our prospects and hope that within the next 6 to 12 months we will have a growing business and an income.”

35. Nothing in the material relied upon in the father’s case suggests that he can support the mother and the child in the meantime.

36. In her affidavit sworn on 15 January 2014 the mother gave evidence that the situation in the Suburb D home deteriorated and was exacerbated by the father’s brother who was verbally abusive to her. The mother asserts that the father’s brother yelled and swore at her and at the child. The mother and the father’s brother disagreed about physical punishment for the child and the mother says that the father’s brother is physically aggressive towards her and makes derogatory remarks to the father about her. The mother says that the child has witnessed the hostile behaviour towards her, by the father’s brother, and is frightened and distressed. The mother says that the child has become tearful, crying and very clingy.

37. The father agreed that the child is upset by the separation of his parents but disputed the mother’s evidence about the behaviour of his brother.

38. The father’s brother has sworn an affidavit in the proceedings and he also denied the mother’s allegations.

39. Because the matter is being dealt with on an interim basis, there is no opportunity for the evidence in relation to that issue to be tested. However, it is clear from the evidence of each of the parties, and the father’s brother, that there now exists a factual dispute between them. Each accuses the other of being responsible for unpleasantness in the Suburb D household. Whether that arises as a result of the conduct of the husband’s brother towards the mother, or as a result of her making false allegations about his conduct is irrelevant to the fact that there is now no cordial relationship between the mother and her only relatives in Australia.

40. The mother has no previous connection with Australia and has no friends in Australia. She has no supports in the Australian community.

41. The situation between the parents deteriorated to such an extent that by early December 2013 they separated. The mother initially proposed that she and the child would travel to London to spend some time with her sister and the parties made enquiries about shipping those belongings which were to be retained by the mother.

42. On 31 October 2013 the mother received a quote for shipping. She showed the quote to the father and the father said to her “You made me do something I don’t want to do. I have put [the child] on a Watch List prohibiting (sic) from leaving the country.”

43. The mother has since reconsidered her position and deposes that she intends to return to Greece to live in the house she owns with her mother and resume her beauty industry business.

44. It was submitted on behalf of the father that the mother’s change of position in relation to her destination is evidence of unreliability. I do not accept that submission. Her reasons are explained at Paragraph 39 of her affidavit sworn 15 January 2014 and are based on the greater financial and housing stability available to her and the child in Greece and the assistance she would receive from her mother.

45. On 19 January 2014 the mother and the child moved out of the Suburb D property and since then they have been living in a motel in Suburb E. She pays $780 per week for that accommodation. Her means of financial support are a credit card with a limit of 3,000 Euros (approximately $A4,500) and the sum of $A3,559 which her mother has deposited in her Australian bank account. She has made inquiries about accommodation in a refuge but at this time remains living in the motel.

46. In his affidavit sworn 22 January 2014, the father gave evidence that the mother has made enquiries about renting a flat but says, “The mother has not explained to me how she would meet the weekly rent”. Since the mother and the child moved out of the Suburb D property, the father has provided no financial assistance to her.

47. In his affidavit sworn 22 January 2014 he offered to give the mother half of his Centrelink benefit. He receives $500 per week. Half that sum would not be sufficient to support the mother and the child. In any event, the father has not put his offer into effect.

48. The father does not have the ability to support the mother and the child, whatever his intentions may be.

49. There is a mortgage over the property in Greece owned by the mother and the maternal grandmother on which the mother’s repayments are 400 Euros per month. She left 2,000 Euros in an account in Greece to pay the mortgage for five months, anticipating that the father would then be able to provide funds to make the repayment. The funds will cover the payment due on 14 March 2014 and thereafter the mortgage will be in default unless the mother can earn sufficient money to make the repayments.

50. As a consequence of the father’s actions although the mother can leave Australia and return to Greece, the child cannot accompany her.

51. The mother, because she is in Australia on a tourist visa, is not permitted to work. (The father alleges that she worked illegally in a beauty industry business for a short time).

52. She is not entitled to legal aid.

53. She is not entitled to any social security assistance.

54. There is no doubt that the jurisdiction of the Court to make orders in relation to arrangements for the child has been regularly invoked. The Court is now required to consider what arrangements should be made in relation to the child’s welfare in the period between the present time and the final determination of the father’s applications. It is the mother’s case that she should be allowed to return to Greece where she can live in the home which she and her mother own and resume her beauty industry business. She proposes that the child be permitted to return with her and she offers to the Court an undertaking that she will return to Australia for any final hearing and an undertaking that she will not challenge the jurisdiction of the Family Court of Australia to deal with the parenting proceedings.

55. She offers surety of $A5,000 which she says will be provided either by her mother or by her solicitor refunding that sum from his retainer.

56. In the father’s case, it is not disputed that the mother will be required to return to Greece at some time but he proposes that the child should remain in Australia and live with him.

57. It is necessary to make parenting orders to provide for the immediate future of this small child until such time as there can be a determination of the proceedings on the merits. The matter falls to be determined by a summary hearing applying the best interests principles.

THE HISTORY OF THE PROCEEDINGS

1. The father filed an application in the Federal Circuit Court on 30 December 2013 seeking interim and final orders that the child live with the mother from Monday to Thursday and with the father from Friday until Sunday; that the mother be restrained from removing the child from the Commonwealth of Australia; and requesting the Australian Federal Police to place the child’s name on the Watch List.

2. The matter came before the Federal Circuit Court on 7 January 2014 and was adjourned to 16 January 2014. Arrangements were made for the parties to participate in a Child Dispute Conference with a Family Consultant. Directions were made for the filing of affidavits. The learned Judge on that day heard the mother’s application to return with the child to Greece, and reserved judgement. Also on that day the matter was transferred to the Family Court of Australia.

1. Judgment was delivered on 17 January 2014. His Honour’s reasons were not available to me on 23 January 2014 but the Orders made were, in summary, as follows:

   1.The Respondent mother is restrained from relocating the residence of the child [S] born … May 2011 from the Commonwealth of Australia.

   2.The mother and father are to have equal shared parental responsibility for the child [S].

   3.The child [S] is to live with the mother and spend time with the father at times agreed between the parties.

   4.For the personal protection of the mother [Ms NICOLAOU] and the child [S] the Applicant father is restrained from assaulting, molesting, denigrating, abusing or threatening the mother or the child or permitting any third party to do so.

   5.The Applicant is to file and serve any affidavit upon which he seeks to rely within 21 days.

   6.The Application is transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit Court of Australia Act 1999.

   7.The Application is listed for directions before Registrar Campbell at 10.00 am on 22 January 2014.

2. The matter was listed before Senior Registrar Campbell on 22 January 2014 and transferred to me that day.

3. Before me on 22 January, the solicitor for the father asked that the matter be adjourned for 21 days for the filing of the father’s affidavit material.

4. It was conceded by the solicitor for the father that the mother was required to return to Greece but it was the father’s position that the child was not required to leave Australia and that he should remain in the care of the father until the matter could be heard and determined. Thus the issue which required urgent determination was the interim arrangements for the child – whether he should live with his father in Australia or with his mother in Greece.

5. I directed that the father’s material be filed by 5.00 pm on 22 January and that the matter be listed before me at 12.00 noon on 23 January. The matters to be considered on 23 January were the mother’s application to return to Greece with the child, pending the determination of the father’s application, and the father’s application that, on an interim basis, the child live with him if the mother returns to Greece.

6. On 23 January an Amended Application was filed on behalf of the father seeking, in addition to the orders for interim residence, a declaration in the following terms:

   A declaration that the Interim Application by the mother for immediate re-location of the child (named) to Greece is res judicata as a result of the judgement given on 17 January 2014 in the Federal Circuit Court.

7. The father relied upon his Amended Application, and affidavits sworn by him and his brother on 22 January 2014.

8. The mother relied on her Response and affidavits sworn by her on 15 January 2014, 22 January 2014 and a short affidavit in response to the father’s material sworn on 23 January 2014.

9. Each of the parties makes proposals for interim orders for the child to communicate with and spend time with the other if he lived with that parent.

10. The mother proposes Skype communication and visits by the father in Greece.

11. The father also proposes Skype communication and that he will pay the cost of the child and himself to travel to Greece twice each year for not less than two weeks.

RES JUDICATA

1. The judgement of the learned Federal Circuit Court judge was not available when counsel for the father made his submissions but became available before these reasons were delivered. It is clear from the judgement that the decision to refuse the mother’s application to relocate was neither final nor on the merits. For those reasons alone, the necessary elements of the doctrine of res judicata estoppel have not been demonstrated.

2. However, for completeness, the application of the doctrine to parenting matters needs to be examined.

3. In Reid & Lynch [2010] FamCAFC the Full Court dealt with the application of the doctrine of res judicata estoppel to parenting matters and held:

   230.    Res judicata, however, does not apply in relation to a final judgment with respect to the parenting of children. In Zabaneh and Zabaneh [1986] FamCA 18; (1986) FLC 91-766 Evatt CJ, with whom Fogarty and Renaud JJ agreed, said at 75,587: “The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered”. In Rice and Asplund Evatt CJ said at 78,906: “The court cannot determine the welfare of the child by applying some sort of estoppel rule”. In Newling and Newling; Mole (Applicant) [1987] FamCA 21; (1987) FLC 91-856 Nygh J, with whom Barblett and Fogarty JJ agreed, said at 76,467: “Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel”: see also McEnearney and McEnearney (1980) FLC 90-866 at 75,499 per Nygh J cited by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch [2009] FamCAFC 152; (2010) 42 Fam LR 1 at 17. To use the language of s 60CA of the Act, “a court must regard the best interests of the child as the paramount consideration”.

   231.    Section 65D(1) of the Act, which is in Division 6 of Pt VII, provides that in proceedings for a parenting order, the court may, subject to s 61DA and s 65DAB, and Division 6 make such parenting order as it thinks proper. Section 65D(2) provides that subject to s 61DA and s 65DAB and Division 6, the court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. Section 65AA, which is also in Division 6 of Pt VII, recites that s 60CA provides that in deciding whether to make a particular parenting order a court must regard the best interests of the child as the paramount consideration.

   232.    Section 64B(1)(a) of the Act provides that an order under Pt VII, including an interim order, dealing with a matter in s 64B(2) is a parenting order. Section 64B(1)(b) provides that an order under Pt VII discharging, varying, suspending or reviving an order or part of an order described in s 64B(1)(a) is a parenting order. Section 64B(2) provides that a parenting order may deal with one or more of the nine matters set out in paragraphs (a) to (i) which include the person or persons a child is to live with and the allocation of parental responsibility. In summary, an order under s 65D(2) is itself a parenting order: see Anthony Dickey, Family Law (Thomson Law, 5th ed, 2007) p 285.

   233.    It is therefore clear that in exercising the power in s 65D(2) of the Act a court must regard the best interests of the child as the paramount consideration. However, the issue that arises is whether there is any limitation on the circumstances in which the power in s 65D(2) may be exercised. As was pointed out by Dickey in Family Law at p 285, “there are no statutory conditions which must be satisfied before a court may vary a parenting order”.

4. The doctrine of re judicata estoppel has no application to these proceedings and the application for a declaration will be dismissed.

5. If the matter remains in my docket, it is likely that hearing dates would be allocated no earlier than July 2014.

THE UNDERTAKINGS AND SECURITY OFFERED BY THE MOTHER

1. The mother offers undertakings to the Court that she will return to Australia for the final hearing of the proceedings and that she will not challenge the jurisdiction of the Family Court of Australia to hear and determine the applications. She offers to lodge the sum of $5,000 by way of surety.

2. The father submits that the Court should not accept the mother’s undertakings and that the surety is inadequate.

3. Dealing firstly with the surety, the issue is not the amount of the surety but whether the amount is of such significance to the person lodging the surety that it will ensure compliance with the undertaking.

4. Both of the parties in these proceedings are impecunious. The mother has no present income and is living on her credit card. She deposes to having no source of funds other than the money she withdraws from her credit card account and a sum in her Australian bank account which was deposited by her mother and is sufficient to pay her airfares to Greece.

5. The sum of $5,000 will be paid by the maternal grandmother if she can raise the money. The maternal grandmother is employed in the beauty industry in B Municipality. It is not suggested by the father that the maternal grandmother is a woman of financial substance. In the event that the grandmother cannot raise the sum required, the solicitor for the mother has agreed to refund to the mother the sum of $5,000 from the retainer of $7,000 which she has paid to him.

6. I am satisfied that $5,000 is a significant sum to the mother and the maternal grandmother and not a sum they would lightly forfeit.

7. In the event that the mother does not return in accordance with her undertaking, the sum can be released to the father and would be sufficient to fund him to travel to Greece.

8. The father further argues that the mother is unlikely to return to Greece, or having returned there, to remain in Greece. The father deposes to the mother having significant debts in Greece. Annexed to his affidavit are two documents in the Greek language, one of which he describes as a judgement against the mother for the sum of 22,000 Euros. Portions of the documents (but not the whole documents) have been translated into English by a translation service in Greece and the translation is dated 13 January 2014. No issue was taken on behalf of the mother as to the accuracy of the translation. The proceedings in Greece appear to be civil proceedings in which the mother is the respondent. None of the translated documents is a judgement. The mother in her affidavit sworn 23 January 2014 says that none of the documents in Greek is a judgement.

9. The mother deposes in her affidavit sworn 23 January 2014 that the proceedings concern a complaint that she made against a police officer, which complaint is under investigation. The police officer has instituted proceedings alleging that the complaint is defamatory and seeking damages. The mother, in her affidavit sworn 23 January 2014 stated that the litigation remains on foot. She said “The litigation would be better dealt with, with the advice of my lawyers if I was in Greece”.

10. The father’s submission appears to be based on the assumption that, if the mother is not present in Greece, the litigation cannot proceed. There is no evidence before me about the operation of the legal system in Greece but I can comfortably assume that there are procedures that would allow the matter to be heard in the absence of the mother if she chose not to participate. This is particularly so when the mother owns property in Greece to which any judgement against her could attach.

11. I am not persuaded that the existence of the litigation would influence the mother to either leave Greece or not to travel there from Australia.

12. The mother has a home in Greece with her mother, she can earn a living in Greece and her mother is in Greece. I accept that she will remain in Greece until these proceedings are completed.

13. Counsel for the father and Senior Counsel for the mother both submitted that, if the mother declined to return to Australia in accordance with her undertaking, then the provisions of the Convention on the Civil Aspects of International Child Abduction ( the Hague Convention) could be invoked to secure the return of the child.

14. Having regard to all of the matters set out above, I accept that the mother will honour her undertakings.

DISCUSSION

1. Neither party disputes the benefit to the child of having a meaningful relationship with both of his parents. The matter to be determined is whether, on an interim basis, that relationship can be maintained with each parent, in circumstances where by virtue of the mother’s status in Australia, she is required to return to Greece by 24 October 2014. If the child must therefore live with only one parent, then the Court must determine with which parent he should live.

2. The father left the child in Greece with the mother on 29 April 2013 and travelled to Australia. He said that in the period from April when he left Greece until October when the mother arrived in Australia with the child, he communicated with the child using Skype. The father must have determined that this was an appropriate way to maintain their relationship for the six months they would be living in different countries.

3. The father could also live in Greece for the period until the proceedings are determined if he chose to do so. He could then have regular and frequent time with the child.

4. There is no allegation of abuse, neglect or family violence directed to either parent. 

5. Having regard to the child’s age (he is only two and a half years old) his views cannot be ascertained and would have no weight.

6. There is no dispute that the mother has been the child’s primary carer.

7. The father in his affidavit deposed to a good relationship with the child. The mother deposed to the father’s having a relationship with the child which is based on outings rather than day to day care. That would seem to be consistent with the father’s evidence about the time they spent together while they lived in Greece.

8. The father deposes to spending time with the child in Australia and re-establishing their relationship. He says they go on outings and watch television and draw together. The father does not suggest that he is otherwise involved in the day to day care of the child and it is likely that the child’s basic care, feeding, dressing, bathing, putting him to bed and attending to him in the night, has fallen to the mother, as she asserts.

9. Since April 2013, the child has lived in the same house as his father for less than three months.

10. The child has never been apart from his mother for any significant period of time. He has never spent a night with his father alone.

11. On the evidence available I am satisfied that the child’s primary relationship is with his mother.

12. The child has also lived for substantial periods, including between April and October 2013, in the same house as his maternal grandmother. While the mother had a working computer, the child spoke to his grandmother every day on Skype. The mother deposes, to the grandmother taking the child on a virtual tour of her house (where the child and the mother lived), and, to the fact that the child become animated and excited, laughing and clapping his hands and pointing to things. Unfortunately the mother’s computer stopped working on 13 January 2014 and, at least for some period of time, she was not able to continue to Skype with the child.

13. The mother reports the child as saying that he wants to go home and see his grandmother.

14. I am satisfied that the child’s relationship with his maternal grandmother is significant and important to the child.

15. On any version of the evidence, the father made a decision to come to Australia in April 2013, knowing that he would therefore not be able to spend time with the child for a considerable period of time, ultimately six months. Having regard to the fact that the child was less than two years old when he left (he had his second birthday in late May 2013) that was a significant decision.

16. I am unable to determine whether the father provided financial support for the child during the period when he was in Australia and the child was in Greece with his mother. The mother says in her affidavit that the father sent small amounts of money irregularly. The father says he sent approximately A$17,000. Ultimately, that issue will be resolved by documentary evidence.

17. The most significant factor, and that to which I give the greatest weight, is the likely effect on the child of being separated from either of his parents. Whether on 24 October 2014 or at some earlier time, the mother must leave Australia.

18. The father contends that, when the mother leaves Australia, whenever that may be, the child should stay with him.

19. The mother has provided nurture and comfort to the child for the whole of his life. Having regard to my findings about the child’s primary attachment to his mother, I am satisfied that separation of the child from her poses a real risk of psychological harm to him. I could not conclude that time with his mother using Skype could be a proper substitute for her presence and loving care or serve in any way to ameliorate the risk of harm to him caused by separation from her.

20. The child has already experienced separation from his father for six months in 2013. The father does not suggest that the child experienced any adverse effects. The mother gives evidence that the child was not distressed either during or after the Skype calls with his father.

21. On the basis of the child’s prior experience, I am satisfied that the child could tolerate physical separation from his father.

22. In the event that the child returns to Greece with his mother, and the father remains in Australia, his time with the child will probably be limited to Skype. There is no evidence that he is able, in the short term, to pay for airfares to visit.

23. However, there is no reason the father must remain in Australia. He contends that he will be financially better off in Australia. That may eventually be so, but if the father wants to have regular physical contact with the child he could also return to Greece. He may not be able to get employment which he considers suitable but he will then be placed in no worse position than that of the mother in Australia.

24. The mother gave evidence that the father has relatives (including his father) and close friends in Greece.

25. By contrast, the mother has no relatives in Australia except the father and his family and no supports.

26. The father’s proposal to take the child to Greece to visit the mother has to be viewed in the light of the evidence about his financial position for the next six months or so. The Court could not have confidence that the father would be able to afford to pay for the flights and, if necessary, accommodation.

27. The capacity of the parents to provide for the child’s needs must, in the circumstances of this case, require a focus on their financial capacity. The father is reliant on Centrelink benefits for the foreseeable future. He has no capacity to provide an adequate level of support for the child and the mother.

28. The mother has no capacity to financially support the child in Australia.

29. In Greece, the mother has a home to live in and a profession with which she can re-engage. She has the support of her mother who has provided financial support for her while she has been in Australia and who maintains the business which they operated together.

30. It was submitted on behalf of the father that the Court cannot assume that the mother will be able to financially support herself and the child in Greece. Certainly no assumptions can be made about the income she will be able to earn but, at least, in Greece, she can earn an income. Her past history is that she has been able to support herself as in her business and there is no reason to doubt that she will be able to maintain an appropriate, if basic, standard of living for herself and the child, particularly with the assistance of her mother.

31. She wishes to return to Greece and the Court has no power to require her to remain in Australia. Even if the mother were willing to remain in Australia she has no legal entitlement to live in Australia.

32. She has no means of support and the father cannot support her. She cannot be expected to live in destitution.

33. The mother must be allowed to return to Greece. For the reasons I have already expressed, the child must go with her.

34. Because there is now an order that the parents have equal shared parental responsibility for the child, it is necessary to consider whether an order should be made providing for the child to spend either equal time with each parent or substantial and significant time with each parent. Even if it were practicable for the mother and the child to remain in Australia, having regard to his age, it would not be appropriate to make such orders when the child has never spent a night with his father, in the absence of his mother.

1. Both parties request that the final hearing be expedited and the matter should be listed before me as soon as possible for directions for Trial.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 28 January 2014.

Associate: 

Date:  28 January 2014