PRS and KJK (No.1) - [2005] FMCAfam 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRS & KJK (No.1)

[2005] FMCAfam 180

FAMILY LAW – Children – residence – contact – passport – in proceedings under the Family Law Act 1975 the issue of the parties’ child must take priority – where child of the marriage is 3 years and 3 months of age – where father has had contact for a total of only 20 hours in the child’s life – where father sought a residence order during the proceedings – finding that the question of residence should be considered to avoid further litigation in the future – best interest of the child is the paramount consideration – child from Fijian Indian background – desirability of child having a relationship with grandparents, including grandmother who lives in Fiji – issue of passport – noted that Fiji is a Hague Convention country – no evidence that the mother would not return the child to Australia.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F
Passports Act 1938 (Cth), s.7A

In the Marriage of Raby (1976) 12 ALR 669; 2 FamLR 11348; 27 FLR 412; FLC 90-104
Re David (1997) 22 FamLR 489
Bright & Bright v Bright & Mackley (1995) FLC 92-570
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant:

R S P

Respondent:

K J K

File Number:

PAM 3234 of 2004

Judgment of:

Scarlett FM

Hearing dates:

13 February, 13 April, 21 May, 7 September 2004 and 5 April 2005

Date of Last Submission:

5 April 2005

Delivered at:

Sydney

Delivered on:

12 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

McDonnell Schroder

Solicitors for the Respondent:

In person

ORDERS

All previous parenting orders are discharged.
The child of the marriage, R R K, born on 8 January 2002, is to live with the applicant mother.
The mother is to have the responsibility for the long-term care, welfare and development of the child R.
From the date of these orders until 6 July 2005, the respondent father is to have contact with the child R from 10 am to 4 pm each Tuesday.
From 7 July 2005 until 7 January 2006, the father is to have contact with the child R as follows:
(a)from 5 pm each Friday until 5 pm on Saturday,
(b)from 5 pm on the Saturday before Father’s day in each year until 5 pm on Father’s Day.
From 8 January 2006 until the child R starts to attend school, the father is to have contact with the child as follows:
(a)from 5 pm each Friday until 5 pm on Sunday, except for the weekend that includes Mother’s Day in each year, when the child will remain in the care of the mother,
(b)from 10 am until 2 pm on the child’s birthday.
From and after the date when the child R starts to attend school, the father is to have contact with the child as follows:
(a)each alternate weekend during the school term from 5 pm on the Friday until 5 pm on the Sunday, extending to 5 pm on the Monday if the Monday is a public holiday,
(b)for the weekend that includes Father’s Day in each year, from 5 pm on the Friday until 5 pm on the Sunday,
(c)for the first half of the Autumn, Winter and Spring school holiday period in each year, commencing at 9 am on the Saturday immediately after school term finishes, and concluding at 5 pm on the middle Saturday of the school holiday period,
(d)in January each year, commencing at 9 am on 9 January and concluding at 5 pm on Australia Day,
(e)from 10 am until 2 pm on the child’s birthday.
The father is not to exercise contact with the child R on the weekend that includes Mother’s Day in any year from 2006 onwards.
Pursuant to s.7A2 of the Passport Act 1938, the child R R K, born 8 January 2002, is to be issued with an Australian passport, not withstanding the fact that the consent of the father for the passport for the child has not been obtained.
The mother is permitted to take the child R R K out of Australia for the purpose of visiting Fiji for a period of up to six weeks in any year.
The mother must provide the father with two weeks written notice of her intention to take the child R out of Australia in accordance with Order 10, and must provide the following information:
(a)a full travel itinerary, including flight numbers and times,
(b)contact address and telephone contact number whilst in Fiji.
The mother is not permitted to take the child R out of Australia to any country other that Fiji without leave of the Court. I require a transcript of my reasons for this decision.
I will stand the matter out of the list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM3234 of 2003

R S P

Applicant

And

K J K

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court relate to parenting and property issues arising out of a relatively short marriage. The proceedings have taken an inordinately long time to reach finality, and despite having been listed for one day’s hearing, which seemed an appropriate estimate of the time, I note that the proceedings were before the Court on 13 February 2004, 13 April 2004, 21 May 2004, 7 September 2004 and 5 April 2005.
The difficulties have partly arisen due to the somewhat complicated situation relating to the property and the fact that the father, who was previously represented, has chosen to conduct the case himself. What I have done is given priority to the matters regarding the parties’ child, R. The Court must act in the best interests of the child, as is set out in s.65E of the Family Law Act and, in my view, there is a need for final, firm and clear orders relating to this child, so that both parents know exactly what their rights and their obligations are. Today I shall concentrate on that. I am still to make my way through the plethora of material relating to the property, but I will be in a position to hand down a separate judgment in respect of the property issues within the next few days to a week, and my associate will advise everyone accordingly. As I said, the issue of this child must take priority, and there must be a set of orders that the parents can work with from today onwards.
The child’s name is R. She was born 8 January 2002. As can be seen, she is a little over 3 years and 3 months of age. She lives with the mother and has done so for her entire life. Both parents come from Fiji and are of Indian ethnicity. They were married on 23 January 2000 in Australia. The mother returned to Fiji the following day, but arrived in Australia a few months later and on 17 June 2000 the parties were married in a Hindu service at L. They commenced to live at L from that time on. The relationship was a tempestuous one and the parties separated 28 May 2001 when the mother left the father, having alleged the father had assaulted her on more than one occasion. One of the father’s affidavits indeed contains photographs of the mother taken by a police officer, showing several marks on her face and upper body, which she alleges were placed on her by the father.
There have been interim orders made by consent on 28 March 2003. Those orders provided for some degree of contact. The orders, which were made on an interim basis, provided the child R would live with the mother, that the mother would be solely responsible for the child’s day-to-day care, welfare and development, that the child would have contact with the father every Friday for four weeks from 9.30 am to 12 pm, then every Friday from 9.30 am to 5 pm. To exercise contact, the father was to collect the child from outside of the wife’s residence at commencement of contact, and return the child to outside of the wife’s residence at completion of contact. The father was to telephone the wife on Thursday evenings before contact was exercised, to confirm his intention to exercise contact. The situation that now arises is that there have been other arrangements relating to contact, which have not included overnight contact. The father is in employment as a security officer and currently works nights. He has commenced contravention proceedings, which will be heard on another occasion, alleging that the mother has not complied with the orders for one reason or another.
The situation that is before the Court at present is that the mother is seeking orders to the following effect on a final basis, first, that the child R should live with her; second, that she should be solely responsible for the child’s care, welfare and development. The father would have contact, initially it was proposed as agreed, but in the proceedings before me a graduated process of contact was put to me by Mr Battley for the mother. That contact would cover day-to-day contact, then would extend to overnight contact, and then contact for two nights as the child got older and got more used to the father.
There is also the issue that the mother wishes to take the child R to Fiji on occasions. The mother’s mother, in other words, the child’s maternal grandmother, still lives in Fiji, and the mother says that her health problems at times make it difficult for her to travel to Australia. The father opposes any order that would allow the child to obtain a passport or to be taken out of the country. He expresses the fear that if the mother were permitted to take the child out of the country and back to Fiji that the mother would not return, and he would not see his daughter again. He casts doubt on the state of health of the maternal grandmother, pointing out that for any serious medical treatment, the grandmother obtains that treatment by travelling to Australia rather than having it done in Fiji.
It is also an issue with the father that during the period of the child’s life, on his evidence, he has only had contact with his daughter for a period of in total 20 hours which he says is manifestly inadequate to build up a relationship, and it is a matter that causes him a considerable degree of concern. What the father has now done is to take a step to vary the situation by seeking an order that the child should in fact live with him, and that the mother should have frequent and regular contact. This amended application was brought during the proceedings, and whilst counsel for the mother objected, I took the view that it was appropriate to include that question in order to avoid further litigation in the future. I was also of the view that the evidence which had been led, or which could be led, would be sufficient to allow a decision to be made, not just on contact arrangement, but on the question of residence. Those then are the issues before the Court.
The parties have given evidence, and it is clear that there is a significant degree of animosity between them. At the moment, the cooperation between them relating to the child R is very low. The father is aggrieved by the failure of the marriage and what he says is the wife’s failure as a wife, and also failure as a mother to make appropriate arrangements for contact. He raises the issue that the only way that the child is ever going to have a relationship with him is if she actually lives with him and his parents. The father’s parents, the child’s paternal grandparents, live in Australia. The father in fact lives with them, and any contact or residence that the child has with him would also include contact with the paternal grandparents. The father expresses no confidence at all in the mother’s willingness or ability to make the child available for any significant period of contact.
The mother’s concerns relate to the father’s animosity towards her, to the small amount of contact that he has had, and to the unfortunate circumstances of the break-up of the marriage. She says that she has been the primary care-giver of this child for this child’s entire life, and that, for whatever reason, this child hardly knows the father at all. As far as the wish for a passport for the child, she insists that the father is being unreasonable, and indeed on one occasion during the father’s evidence, the father said that until he got contact the child would not get a passport. The father’s cross-examination of the mother was marked by animosity, and on one occasion it was necessary for me to disallow the question on the basis that it was hectoring and badgering the witness. The mother does raise concerns about the health of her mother and about the need for her child to have a relationship with her maternal grandmother who cannot always travel to Australia, whether for medical reasons or for anything else.
I look at the relevant law to be applied. As I said earlier, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interest of the child as the paramount consideration, see section 65E. Except when it would be contrary to a child’s best interests, a Court should have regard to the principles set out in s.60B (2) of the Act. These include children’s right to know and be cared for by both parents, and their right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development.
In determining the best interests of the child, the Court must consider the matters set out in s.68F(2). These matters include the wishes of the child, subject to the child’s maturity and level of understanding. The court may inform itself about the wishes expressed by a child by having regard to anything contained in a report given to the Court under s.62 G2. The Court must consider the nature of the relationship of each child with each parent, and the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents. There is a general view that if a child’s situation is stable and the child is doing satisfactorily, it is sensible to be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child, and I refer to “Australian Family Law”, Chisholm and Dewar (eds), published by Butterworth, Chatswood (2003) 1326.4, s.68F 57. This does not mean that there is an onus that a party must discharge before there can be a change to the status quo. The status quo is no more than one fact to be taken into account in determining what is in the children’s best interest. As long ago as 1976, the Full Court of the Family Court disproved earlier statements that suggested that changing the status quo was automatically a serious inroad into a child’s sense of stability. The Court said:
This may or may not be so at a particular case. Several matters may be relevant, the age of the child, the length of the status quo, its quality and in particular the nature of the child-adult relationships developed within it. If the status quo is predictably more detrimental to the child’s welfare than proposed alternatives, a change may not only be desirable, it may be necessary, see In the marriage of Raby (1976) 12 ALR 669,

2 FamLR11348, 27 FLR 412, FLC 90-104.
The Full Court examined the situation in Re David (1997) 22 Fam LR 489 FLC 92-776. In that case the Court concluded that on the facts, a change of residence was the only way to preserve contact with the other parent. The Court made it clear that altering residence was a serious step and referred to a number of matters that needed to be considered. These matters included, (a) the obligation of the resident parent to take all reasonable steps to ensure that a child is made available for the other parent for the purpose of contact and in compliance with the order, (b) that in high conflict situations, the child might adopt the position he or she thinks is desired by the resident parent, and (c) that it is necessary to determine if there is any basis for the child’s attitude, such as a genuine complaint of ill treatment and abuse.
In this case I will consider the matters set out in s.68F(2) of the Family Law Act. It was submitted by Mr Battley of counsel for the mother that all of the factors set out in that sub-section, when considered by the Court, would favour the mother. This may well be hyperbole, but it is appropriate for me to consider those factors that are relevant. This is not a case where the wishes of the child would be taken into account. She is 3 years and 3 months of age. She does not have the maturity or the level of understanding that would be sufficient to allow the Court to even consider what the child’s expressed wishes might be.
I look at the nature of the relationship of R with each of her parents and with other persons. R has been living with the mother since she was a baby. The parties separated in 2001 and the child has remained living with the mother. The only evidence before me is that the mother has always been the primary care-giver and there appears to be a strong relationship. The father has had relatively little contact with the child. He said in evidence that children can adapt to change, that change would mean the child would spend a lot more time with him, for that matter with his parents, and the child would grow to know him.
I look at the effect of any change in this regard. There are three options that I should consider, first of all, maintaining the contact at the present level, second, increasing the contact, or third, changing the residence. To my mind, the contact at the present level is not in the best interests of the child. She is not seeing a great deal of the father. The father complains that the child does not know him and conversely that he does not know her. To my mind, a period of 20 hours, if such be the time, over more than 3 years would give father and child very little time to get to know each other. Whilst the father does have an animosity toward the mother, he does have a wish to be a part of his daughter’s life and, in my view, the evidence would indicate that he should be given the opportunity to build up this relationship with his daughter. As she grows up if she does not have any significant contact with the father, she would be curious about him and would want to know why it is that her father is not a meaningful part of her life. It is, in my view, the normal situation that a child should have time with both parents and it is a drastic step indeed to keep one parent from the child. To my mind, there is much to be said for an increase in contact and it will give the father an opportunity to get to know his daughter, and as he says, give his daughter an opportunity to get to know him. The third option, of course, would be a change of residence. Whatever parent the child lives with, there will be no substantial physical difficulty about having contact with the other parent, as they both live in the Sydney area; it is not as if one parent lives in one state and the other parent lives on the other side of the continent. The difficulties relating to contact relate to the parents’ animosity between themselves and that is something that they must overcome if their child is to have a meaningful relationship with each parent.
Looking at the capacity of each parent to provide for the child’s needs, to my mind, the evidence shows that the mother has been caring for this child virtually single-handed for all of her life. The father, by comparison, is a bit of an unknown quantity as he has had relatively little contact with the child, although he does have the assistance of his parents, the child’s grandparents. There has been no criticism made of the paternal grandparents as far as their ability to provide assistance for a child is concerned. They also live in Sydney, with the father in fact, and the father also has a close relationship with his brother, who is another part of this child’s extended family.
Looking at the child’s maturity, sex and background, she is 3 years and 3 months of age. She is only little. She comes from a Fijian-Indian background; her parents both come from Fiji. She has extended family in both Australia and Fiji, and it would seem to me to be beneficial for her to maintain that connection, not only with family members in Australia, but also family members in Fiji from where her parents originally came. This, to my mind, would only add a richness to the child’s life, and would give her an understanding of the culture from where her parents emanated.

I am concerned about the need to protect this little girl from harm. It is unlikely that either parent would expose this child to physical harm. There have been allegations by the mother that the father has physically harmed her during the marriage, but those allegations have not extended past separation. There is more of a concern about psychological harm by the child being exposed to the animosity between the parents, and the father has been vehement throughout these proceedings in his criticism, not to say denigration, of the mother. His relationship with his daughter will not be aided by criticism of her mother.
If I look at the attitude to the child, with the responsibilities of parenthood, demonstrated by each of the parents, the mother has had care of the child since birth, and wishes to continue being the mother. She takes a cautious attitude towards contact by the father based on the relatively small amount of contact to date, but also based on her negative views of the father, and with the unfortunate history of the marriage, it is easy to see why she would take that view. The father’s confidence that if residence were to be changed that the child would adapt easily does not appear to me to be realistic, and indeed a change of residence, to my mind, at this stage would be distressing to a child who has spent most of her life in the day-to-day care of her mother and who’s contact with her father, for whatever reason, has been relatively limited. For her to go into a different situation and not see her mother on a daily basis would cause her, to my mind, a great deal of distress and insecurity.
I have mentioned issues relating to violence such as it is and my concerns about violence. Looking at the overall picture, I note that the father’s application for residence is relatively recent, and indeed only was made during the course of these proceedings. It is not, to my mind, a viable outcome. It does not appear to me to be in the best interests of this child to change residence at this stage. There is a long-standing, settled relationship with the mother. There is no evidence that the child is suffering physically or emotionally. The only concern is that there is not the degree of contact which, to my mind, is necessary to allow this child to build up a meaningful relationship with the father. What I propose, therefore, is to make an order that this child will continue to live with the mother. I do, however, propose to make orders which will not only increase the father’s contact, but will provide a graduated and steady increase in contact, including overnight contact, so that a proper foundation can be laid for father and child to get to know each other, and so that the child can build up a relationship, not only with her father, but also with her paternal grandparents.
The Courts over the years have had a lot to say about the desirability of children having a good relationship with extended family. In this case on the father’s side, there are grandparents and there is also an uncle, A, who has given evidence in these proceedings, although not, I hasten to add, on the parenting side. The decision of Bright and Bright, v Bright and Mackley (1995) FLC 92-570 makes it clear that there is a benefit to children in knowing that they are part of an extended family which includes grandparents, aunts and uncles. Greater contact between father and daughter will enable her to obtain access to this extended family here in Australia, so that she will see what her place is in the world, and so that she will benefit from it. I am of the view that grandparents in particular, can have a strong, but a different relationship with their grandchildren which can be a relationship of love and support, and encouragement, and the grandparents, often with their greater experience of children growing up, can provide a degree of support and comfort to the children, and both grandparents and grandchildren will benefit greatly from it. If this child does not have a proper regime of contact with her father, my fear is that she will not have a proper opportunity to have contact with her paternal grandparents.
Similarly, the mother’s mother lives in Fiji. She travels to Australia from time-to-time, but also I am told that her health makes it difficult for her to travel to Australia whenever she likes, and of course there are financial considerations. It is also important for this child to have a relationship with her maternal grandmother. The matters, therefore, that I must consider now relate to the issue of a passport for the child and permission to the mother to take the child out of Australia to Fiji. Now, the law in these matters is set out in two authorities which I propose to follow. First of all, I refer to the decision of the Full Court of the Family Court, in the matter of Kuebler and Kuebler (1978) FLC 90-434. In that matter, the Full Court set out the factors that should be considered in applications to take children out of the jurisdiction. There are five of them, (a) the length of the proposed stay out of the jurisdiction, (b) the bona fides of the application, (c) the effect on the child of any deprivation of access, now called contact, (d) any threats to the welfare of the child by the circumstances of the proposed environment, (e) the degree of satisfaction which the Court has in its assessment of the parties that promise to return the child to the jurisdiction. I am also mindful of the decision of the Full Court of the Family Court in the decision of Line and Line (1997) FLC 92-729. That case dealt with fixing an appropriate level of security for the return of children to Australia. There were four principles of the Court set out, (a) the purpose of the security, to provide a sum to realistically entice the person removing the child to return, and to adequately provision the party remaining in Australia to take action for the return of the children, (b) the degree of risk that the departing parent will not return, (c) whether the country of travel is a signatory to the Hague Convention on child abduction, and the likelihood of deviation to a non-Convention country, (d) the financial circumstances of both parties, and any hardship to either party if the level of security was increased or decreased, or imposed at all, I hasten to add.
I propose to consider the question of the issue of a passport and the mother’s ability, or otherwise, to take the child out of Australia to Fiji, for the purpose of visiting her mother or other family in that country, in the light of the principles set out in those cases. I am mindful of the fact that Fiji is a country that has acceded to the terms of the Hague Convention on international child abduction. According to Schedule 2 of the regulations, Fiji was in fact the 55th country to accede to the Convention, which it did on 1 May 2000. That is a matter of some relevance.
I look at the situation of the parents. Both parents are permanent residents of Australia. The mother’s mother lives in Fiji. The father’s parents and brother live in Australia. To my mind, both parents have, first individually and for a while jointly, decided to make their home in Australia. The child concerned is an Australian citizen. She was born in Australia; not that birth in Australia of itself confers citizenship, one or other parent must be either an Australian citizen or a permanent resident, so that situation is certainly the fact. What is the likelihood that the mother would take the child out of Australia, either to reside permanently in Fiji, or to leave the child permanently in Fiji? There is no evidence before the Court that that would be the situation. The mother is well settled in Australia, and all the evidence points to a desire for her to remain in Australia. The mother has had this child with her for all of this child’s life, 3 years and 3 months and continuing, why at this stage would she take the child out of Australia and leave her in Fiji? The likelihood that the mother would wish to be separated from her daughter on a permanent basis, or even a semi-permanent basis, is so remote a possibility that it is hardly worth considering. Is there a risk that the mother would, on going to Fiji with the child, deviate to a third country? To my mind, again it is relatively unlikely. I am also mindful of the fact that airline services between Australia and Fiji are usually direct flights. It is not, to my knowledge, at all common for flights by either Qantas or Air Pacific between Sydney and Nadi to divert to another country unless it was most extraordinary circumstances, due to weather or engine trouble or something. Most flights to Fiji are direct flights. I suppose it is certainly possible that the mother could book a flight to go on further, but the likelihood of this is just remote and there is no motive or reason for it.
Obviously the father needs to have some reassurance that if this child is taken out of Australia by the mother, that the mother will return within a reasonable time. The mother is seeking to be away for periods of up to three months. I am not satisfied that that would be desirable at this stage, it is too long. We are at a delicate stage in the relationship where, if the orders that I intend to make are to be given a proper chance, the father must be seeing his daughter regularly and for an increasing length of time. Three months would hinder that process and I do not see that that would be in the child’s interest. It would seem to me that at this stage a maximum stay out of Australia of six weeks would be more than sufficient to allow this child to spend time with her maternal grandmother and other relatives in Fiji, and indeed to see part of the country where her own mother came from.
I am also of the view that at this stage it would be inappropriate for an order to be made permitting the mother to take the child to a third country. There is no evidence before me that the mother has family in say New Zealand, or the Cook Islands, or anywhere else in the neighbourhood. At this stage it is either Australia or Fiji and, to my mind, an order made restraining the mother from taking the child to any other country would be appropriate in the circumstances. If the father is to have confidence that the mother is going to take the child out of the country and bring her back again, the only place she should go to is Fiji which, as I said, is a Hague Convention country. It is not a matter where I am of the belief that there is any need for security deposit whatsoever. I have considered such an eventuality, and indeed, the Full Court in Line and Line goes into the matter in some detail, but the circumstances are very different in this case. This is not a matter where the mother has cut her ties with Australia, or is even seeking to do so. She has strong ties with Australia, and I am confident that she will return.
As to the question of an Australian passport, there is just no reason why this child should not have a passport. The father has taken a very strong view about it and the reality is that little will be served in making orders that will require him to consent. The father has made his attitude clear and, to my mind, what the Court must do is grasp the nettle and make an order. Whether or not the father consents, I intend to make an order that this child will be issued with a passport. The father will not need to consent; the Court is making the orders.
It is for these reasons that I propose to make the orders as set out at the commencement of these reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 14 June 2005