Rance & Demaris
[2023] FedCFamC1F 455
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rance & Demaris [2023] FedCFamC1F 455
File number(s): BRC 7500 of 2019 Judgment of: BAUMANN J Date of judgment: 8 June 2023 Catchwords: FAMILY LAW – PARENTING – CHILDREN – Best interests - With whom the child lives with – With whom the child communicates with - Where the father remains residing in Country C – Where the child was born in Australia and continues to live in Australia with the mother – Evidence relating to family violence Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 70 Date of last submission/s: 9 June 2022 Date of hearing: 25 & 26 May 2022 Place: Brisbane Counsel for the Applicant: Ms P Kirkman-Scroope Solicitor for the Applicant: Cherry Family Lawyers Counsel for the Respondent: Ms K Carmody Solicitor for the Respondent: Norris Law Counsel for the Independent Children's Lawyer: Mr N McGregor Solicitor for the Independent Children's Lawyer: Ms K Perkins, Wallace Perkins Family Law ORDERS
BRC 7500 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RANCE
Applicant
AND: MR DEMARIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
8 June 2023
THE COURT ORDERS ON AN INTERIM BASIS PENDING FURTHER ORDER:
1.That all previous orders be discharged.
2.That the mother, Ms Rance, have sole parental responsibility for the child X born 2017 ("the child").
3.That the mother shall otherwise update the father as to any major information in relation to the child’s health and well-being, to his nominated email address.
4.That the child shall live with the mother.
5.That within fourteen (14) days of the date of this order, unless otherwise the mother has attended to same, the mother shall attend upon the child 's general practitioner so as to obtain a mental health plan for the child with a psychologist. The mother shall thereafter facilitate the child's attendance within sixty (60) days for such sessions and times as directed by the psychologist. The mother be at liberty to provide the psychologist with a copy of the Family Report of Dr B filed 22 December 2020 to assist the child in obtaining counselling in relation to his communications and/or time with his father, developing a safe and positive relationship with his father.
6.That the mother shall hereby authorise the father to contact the child 's psychologist so as to obtain and reports, at his own cost, in respect of only the child 's engagement.
7.That the father shall be at liberty to send cards, letters and presents to the child from time to time, with such items to be directed to the mother's nominated mailing address. For the purpose of this order, the mother shall facilitate the child receiving all such items from the father save and except where such communications and/or gifts are not child appropriate.
8.That the father be at liberty to communicate with the child on one occasion in each week via video call and for the purpose of this order the following shall apply:
(a)The call between the child and father shall be facilitated by the psychologist and/or contact centre with the father to organise such booking during a time and at a venue as nominated by the mother having regard to the time difference and the child's commitments.
(b)The father shall otherwise meet the costs of the supervised call;
(c)For the purpose of this Order, leave be granted for the contact centre and/or psychologist to be provided with a copy of the Family Report of Dr B.
9.That the mother and father shall otherwise continue to engage in psychological support in terms of parenting and co-parenting matters and for the purpose of this Order, leave is granted for the parents to provide the report of Dr B filed 22 December 2020 and these Orders.
10.That the father shall provide to the mother, prior to his spending supervised time with the child in Australia, evidence of his engagement with a Psychologist setting out his engagement in a parenting and family violence protection program with reference to the report of Dr B.
11.That the mother shall undertake a post-separation parenting program and Circle of Security course within twelve (12) months of this Order.
12.That pursuant to s 11 (1) (b) and s 11 (5) (b) of the Australian Passports Act 2005 (Cth), the child is to be issued with an Australian Passport, notwithstanding the consent of the father has not been obtained and any requirement for the father's signature on a passport application for the child be dispensed with.
13.That pursuant to s 11 (b) of the Australian Passports Act 2005 (Cth), the child be permitted to leave the Commonwealth of Australia in the company of the mother.
14.That this matter be adjourned for Case Management Hearing at 9.30am on 16 October 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
15.That each party shall file and serve a short affidavit setting out details as to the compliance with the terms of the Order by 4.00pm on 2 October 2023.
16.That the Independent Children’s Lawyer be at liberty to apply upon the giving of seven (7) days’ notice in writing to all parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rance & Demaris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
When the mother in this case was aged 21 years, she was travelling through Africa and, in particular, Country C, when she met and commenced a relationship with a local man, who is the father in these proceedings. The cohabitation shortly after they met was solemnised with a marriage which took place in 2015 and, ultimately, the birth of a child, X, who was born in Australia in 2017. At the time of this Judgment, X is five years of age. The parties are in conflict as to what future orders, if any, are in X’s best interests, arising from the breakdown of the relationship in December 2018.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
BACKGROUND
The following statements of fact should be regarded as findings of fact. The father was born in 1990 and is now 32 years of age. The mother being born in 1993, and she is currently 30 years of age. As earlier indicated, the parties commenced a relationship in Country C in 2014. There is some controversy about the nature of the relationship from the time it was commenced.
Certainly, I am satisfied that after the marriage, in early 2016, the mother underwent a termination of a pregnancy at that time. The father says that this put a strain on the relationship because he fundamentally opposed the termination taking place. Notwithstanding his strong views in that respect, the evidence is that he supported his wife, the mother, by arranging and facilitating her to come to Country D, where a termination could occur.
The parties generally lived all their relationship in Country C, until final separation. The wife’s parents visited them in mid-2017, and evidence from the maternal grandmother is before the Court. She says that, at that time, in short, she was concerned about the nature of the parental relationship and what she felt were the pressures on her daughter in what she assessed to be a somewhat unhappy relationship.
Nonetheless, it seems the parties were delighted when the mother fell pregnant, and by arrangement decided that the child, X, would be born in Australia. The evidence is that the mother and father spent some six weeks together in Australia, post-birth. During that period, the maternal grandmother, in her affidavit gives evidence that she observed that the mother initially experienced some difficulty in bonding with the child. The evidence is not sufficient to make any finding as to whether, for example, the mother was suffering post-natal depression or something similar. As I say later in these Reasons, however, the mother, as a teenager, had suffered some significant mental health challenges (mostly associated with the breakdown of her own parents’ relationship) and was, and may well still be, vulnerable to falling into bouts of depression and anxiety.
Nonetheless, by early 2018, the mother chose to return to Country C with the child, and the parties resumed their relationship. At that stage, it was clear that the intention of the parties was to try and seek to return to Australia and live as a family. This was reflected in the application made by the father for a visa, sponsored by the mother, to Australian authorities, filed in early 2018. In respect of that application, the father provides the Court (see annexure MD1) with a statement signed by the mother dated early 2018 in support of his visa application.
A reading of that statement paints an entirely different picture of the parties’ relationship than what the mother’s affidavit now asserts. There are significant inconsistencies, and a failure possibly to be candid with Australian immigration authorities, if the mother’s affidavit is to be preferred to the statement (said to be a statutory declaration) which the mother signed in early 2018. Be that as it may, I am satisfied that the relationship between the parties began to deteriorate during the course of 2018.
By the time of a major incident in late 2018, and a further incident one week later, as I will soon indicate, the mother had, I believe, formed a view that she should return to Australia with X, as the relationship with the father had no future in her view. After the second incident in late 2018, the father was arrested by local authorities and, ultimately, detained for several days. A local court made an order in late 2018 for the protection of the mother and that the child, and resulted from the mother’s claims (consistent with the charges laid against the father), that she had been the victim of family violence.
Whilst the father was in custody, in late 2018, the mother was able to travel to Australia with the child, who was then over one year of age. It is clear that she had financial support from her family to do so and, it seems, support by Australian consular authorities to facilitate her leaving the country. Three days after the mother left the country, the father was released. The evidence is he was not ultimately tried or convicted of the offences upon which he was arrested. There is an absence of any documentation from Country C police authorities to give some further context to those events.
In early 2019, there were some attempts to maintain regular telephone calls between the father and X. Text messages attached to the affidavits indicate that the father was distressed by the removal of the child from the country. Tensions were further developing. By March 2019, telephone calls between the child and the father ceased. In mid-2019, the mother sought a temporary domestic violence order under Australian law, in Queensland, and that order was ultimately made permanent for five years, expiring in 2024.
The existence of that order permitted, in these proceedings, a party to have the benefit of lawyers appointed under the section 102NA Cross-Examination Banning Scheme. This would have been a much more difficult case, heard in Covid-19 conditions electronically, if the father, who is resident in Country C, had not had a lawyer representing his interests.
In July 2019, the mother applied for orders in the then Federal Circuit Court of Australia, with the proceedings being transferred to the then Family Court of Australia in January 2020.
As a result of interviews (with the father engaging electronically) in October/November 2020, the family report writer, Dr B, produced a report dated 1 December 2020. Dr B was the subject of brief cross-examination in the trial conducted by the Court.
On 21 October 2021, on an interim basis and with the directed consent, to some degree, of the mother, I made orders for video calls between the child and the father to take place, supervised by the maternal grandmother.
The evidence suggests, and the father says, that at least two of the calls went very well. I accept that evidence. However, as the calls appeared to be going well, they then abruptly came to an end, with the last call taking place some time ago. Confronted with the total breakdown of any communication between the parents in relation to X, in January 2022, the matter was listed for trial to commence on 25 May 2022.
The Court regrets its delay in providing reasons in this matter.
COMPETING PROPOSALS
The Independent Children’s Lawyer, represented at the trial by Mr McGregor of Counsel, proposed at the end of the trial that the orders sought in the case outline filed by the Independent Children’s Lawyer on 23 May 2022 were in the child’s best interests. Those orders are attached and marked Appendix One to these Reasons. In effect, the orders provided for the mother to have sole parental responsibility; for the mother to be restrained from changing the child’s name, save for a hyphenated inclusive name, for the child to live with the mother in Australia; and orders preparing the child and the parties for ongoing supervised video time were proposed as well as possible physical time in Australia.
In final submissions, Ms Carmody, on behalf of the father, broadly adopted the proposals of the Independent Children’s Lawyer.
The mother, represented by Ms Kirkman-Scroope of Counsel, strongly and strenuously opposed any time orders in respect of the father and the child. The orders sought by the mother in her case outline filed 18 May 2022, and confirmed in the written submissions of her Counsel filed 9 June 2022, were that:
1.That the mother, [Ms Rance], have sole parental responsibility for the child [X] born […] 2017 (“herein referred to as “the child”).
2That the child live with the mother.
3.That there be no orders for the child to spend time with or communicate with the Respondent Father.
4.That pursuant to section 68B of the Family Law Act 1975 (Cth) the Father be restrained and an injunction issue restraining the Father from contacting or approaching (or attempting to contact or approach) the child at any location.
The proposal of the mother also provided for orders that permitted the child to obtain an Australian passport.
By proposed order 7, the mother sought a further order that:
in the exercise of the mother’s sole parental responsibility, the mother be permitted to change the surname of the child with the Registry of Births, Deaths and Marriages Queensland, notwithstanding the consent of the Father has not been obtained, and any requirement for the Father’s signature on such application for the child be dispensed with.
This application was not pressed ultimately by the mother (see paragraph 2 of the mother’s written submissions).
These competing proposals identify that the issue broadly in dispute, and importantly, a significant issue for this child, is whether the limited and supervised opportunities for the child to communicate with the father as proposed by the Independent Children’s Lawyer, and adopted by the father, are in the best interest of the child, or whether it is in the best interests of the child to adopt what the mother proposes, which will have the effect of removing the father (and effectively the paternal family) from the life of the child during his infancy.
I will deal with the competing proposals within the matrix of the primary and additional considerations, subject to two discrete issues which I deal with now.
Family violence
I agree with the submissions of the mother’s counsel that:
A major focus at the hearing was the mother’s allegation that the father had engaged in conduct constituting family violence as defined in s.4AB of the Act.
The mother particularises, and I incorporate in these Reasons the particulars set out in paragraph 5 of the written submissions as a broad summary:
i.Strangulation on more than one occasion and on one occasion when she was pregnant;
ii.Physical abuse, pulling her hair, dragging her by the hair, pushing her, kicking her, hitting her whilst she was holding the child [X], punching her in the face whilst she was holding the child;
iii.Damage to her property – smashing laptop, smashing plates, damage to her phone, smash walls;
iv.Control her movements
v.Verbally abusing her at home and at her workplace, screaming and swearing at her whilst she held the child;
vi.Coercive control, threatening to commit suicide, thrusting a butchers knife at her whilst making stabbing motions;
vii.Driving erratically and at high speed with the mother in the car.
I believe it is helpful, particularly for the father, if he is aware of the definition of family violence that is contained in section 4AB of the Family Law Act 1975 (Cth), which is as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
There are many disputes between the parties as to events during the relationship, and although there is some corroboration by the maternal grandmother in her evidence, that could only be, of course, observed by her on the limited opportunity that she had when she was in Country C in 2017, and for the period post the birth of X in 2018. The maternal grandmother was cross-examined in these proceedings, and also was able to give some evidence, having supervised the telephone calls between X and the father. The father, in his affidavit, essentially denied perpetrating any form of family violence upon the mother.
One reason why the full definition of family violence as applied in Australian law is incorporated in these reasons is to debunk any thoughts the father may have that the term “family violence” only relates to physical violence. It is not clear whether there are cultural differences about how violence is interpreted in Country C to that in Australia. Clearly, it is appropriate that I apply the Australian law in respect of analysing the evidence. It is not necessary for the purposes of the dispute to make findings on each of the events asserted by the mother and denied by the father.
In particular, the mother gives evidence about the way she believed she was controlled in Country C by the father. She asserted that she had been the subject of physical, verbal and financial abuse by the father. A particularly significant event appears to be an event referred to in paragraph 37 relating to a camping incident, where a dispute arose between the mother and the paternal grandmother. The mother’s view is that the father “egged on” his mother to engage in the dispute. The father has a contrary view. The mother says that she felt at the time, that the father did not support her in the dispute with his family. The father denies that to be the case.
It may have been helpful if I had received some evidence (capable of being tested) from the paternal grandmother. I did not. To the extent that the mother says that she was the subject of coercive and controlling behaviour, even to the extent of her ability to see friends and travel, this appears to be inconsistent with the evidence of the father, that she had access to a motor vehicle; that he was working long hours consistently and as such that she had a significant amount of freedom. On that issue, I prefer the evidence of the father.
With a lack of corroboration about events in Country C, including police records that support the mother’s allegations of calling them for assistance “on more than one occasion”, it is difficult to be certain as to all of the events.
I am not required to make findings on every event referred to in the mother’s affidavit, where she details significant allegations from paragraph 9 to paragraph 105. It is, in my view, however, important to put some context around the events that led to the final separation.
The father denies that he threatened to kill the mother using a knife, or otherwise was abusive of her on a date in late 2018, and further, then, one week later. I am satisfied that, by this stage, the relationship was crumbling. The mother, at least in late 2018, says, and I accept, she had begun discussions with the father about returning to Australia and leaving the relationship, a proposition which the father significantly opposed. What is clear, and does not require corroboration because it is an accepted fact, is that in late 2018, the father was arrested by local authorities.
The father, at paragraph 26, 27 and 28 of his affidavit, says as follows:
26[In late] 2018, I was arrested by [E Town] Police officers due to allegations of domestic violence made by [Ms Rance]. I was remanded in custody for [several] days. During the period of my incarceration, I was presented with a settlement agreement by [Ms Rance’s] lawyers. I was placed under duress to sign it. I was told by [E Town] Police and [Ms Rance’s] lawyer that I would spend 10 years in prison if I didn't sign the agreement. I have since learned that the agreement was made a final order by [a magistrate] of the Magistrate Court for the District of [F Region] [in late] 2018. I was not present in Court when the order was made. The order makes provision for [Ms Rance] to travel to [Country D] and Australia with [X] between [late] 2018 and [early] 2019. [Ms Rance] now asserts that the order allowed her to live permanently in Australia with [X], although I deny that is the case, nor the agreement reached between us.
27.I signed an affidavit of travel [in late] 2018 staling that I consent to [Ms Rance] travelling to [Country D] and Australia for the Christmas holidays until [early] 2019 when they are to use any port to return to [Country C]. Although I say that I signed the affidavit under duress, I say that [Ms Rance] has failed to return to [Country C] and has contravened orders made in [Country C].
28.[Ms Rance] withdrew her allegations against me after I signed the agreement. I was then released from custody [in late] 2018. By the time I was released from prison, [Ms Rance] had fled the country with [X]. I was distraught. I have not seen or spoken to [X] since [late] 2018.
I do not accept the mother’s claim, not strenuously asserted, that the Magistrates Court order for the District of F Region in late 2018 should be construed as an order permitting permanent and indefinite relocation of the child to Australia. On all the evidence, I am satisfied that the mother had formed an intention to return to Australia some time in late 2018 – with the events in late 2018 being, for her, the catalyst for this concrete decision. When the husband was retained by authorities in custody, it gave the mother the opportunity to leave the country, and she did so.
On the evidence, I do not accept the mother has, since leaving Country C, ever formed an intention to return with X, even temporarily. Orders post the mother’s return to Australia in late 2018 must be seen within the context of the father feeling as (from his perspective) is understandable, that the mother had taken an opportunity to leave Country C with X and had formed the intention to either make any contact he had with the child by electronic means difficult – with an ultimate aim to remove him from the child’s life – as is the mother’s final proposal to this Court.
The mother submits that in relation to the allegations of the family violence, the father’s denials in his affidavit and, at times, in the witness box under cross-examination, were simply untrue. It is clear that the father appears to have made more admissions about his behaviour to the report writer than, by the time he swore an affidavit for these proceedings, he was prepared to acknowledge (see for example paragraphs 5.40; 5.44; 5.47; 5.49 and 5.51 of the family report of Dr B). I will turn shortly to the importance of those “admissions” by the father in the ultimate conclusions reached by Dr B that the father has demonstrated some insight into his past behaviour, an opinion which the mother strongly challenges.
I have formed the view that the father has minimised, in his affidavit and his evidence before this Court, his actions in [Country C] towards the mother. I accept that it is likely, at times, the child, although a baby under the age of 12 months old, was exposed to the conflict between the parents. As I indicate further in these Reasons, the effect of that conflict on this mother is one of the factors which I have to consider.
Mother’s capacity to facilitate time
Although the mother relied upon evidence by her treating psychologist, Ms G, I am satisfied that at least some of the evidence of the treating psychologist has been based on a less than sound premise. Although the mother had commenced sessions in late 2021 with the psychologist, which continued until shortly before trial, I am satisfied on all of the evidence in cross-examination that the vulnerability of the mother associated with significant historical mental health challenges (including self-harm and non-consensual institutional admission as a teenager) were not taken into account by her psychologist.
It seems clear from the evidence of Ms G that she began her summary as to the mother’s current functioning from a foundation that the mother’s “experience of trauma over several years was pervasive and severe, and has impacted negatively on her mental health and socio-emotional and behavioural functioning.”
Importantly, however, she indicated that the mother demonstrates some resilience and an ability to engage in goal-directed behaviours in the key areas of her life relationships. Although Ms G acknowledged that the mother’s capacity to facilitate time for the child with the father is uncertain and compromised, she indicated that she would work with the mother to assist her in the best interests of the child, facilitating any orders made by the Court.
The mother’s own evidence to the Court was that she would do her best to comply with orders of the Court, although, clearly, her preferred position, and strongly so, is that all contact with the father cease. On the evidence, the mother has formed a strong therapeutic relationship with Ms G. The submission of the mother at paragraph 26 to 33 concludes with a submission that:
33.The mother remains genuinely distressed at the prospect of the child having any contact with the father. The mother herself wishes to have no contact whatsoever with the father and any order from a Court that requires the mother to have to communicate with the father or for the child to have to communicate with the father will arguably impair the mother’s caregiving capacity, having regard to her PTSD diagnosis.
I will take into account this evidence in my ultimate conclusion, as to what orders are in the best interests of the child.
PRIMARY CONSIDERATIONS
Section 60CC(2)(b) provides that the Court is to take into consideration “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” and that this factor is to be given greater weight than the considerations set out in paragraph 60CC(2)(b), namely “the benefit to the child of having a meaningful relationship with both of the child’s parents.”
The risk factors that arise in this case, some of which have already been identified, include and were summarised by the report writer at paragraphs 9.64 to 9.72:
9.64In summary, the parents of [X] were in a highly conflicted relationship that has been described by both parents as being an inappropriate and harmful environment for themselves and their child. Research advises that a conflicted parental environment is not conducive to the healthy emotional development of a child.
9.65The conflict, which was emotional, verbal and physical, appears to have escalated in regard to the issues of family and children.
9.66[Ms Rance] and [Mr Demaris], with their very different cultural origins and family backgrounds, also hold very different values in regard to many aspects of life including religion, pregnancy, family, marital roles, discipline and parenting.
9.67These differences in values seem to have been a lesser priority to the couple prior to marrying and starting a family, yet increasingly interfered with their relationship and lifestyle once the couple had to function together as husband, wife, parents and as part of an extended family system.
9.68While both parents appear to have played a role in sustaining the conflict, [Mr Demaris] clearly accepts that his behaviour, particularly his controlling and physical behaviours, were unhelpful and harmful to the relationship.
9.69The parents were unable (or had limited access) to seek professional support and advice that may have assisted them to discuss their differences in a helpful and constructive manner.
9.70In addition, [Ms Rance] was, at the time, residing in a foreign country, with no family support, few friends and limited language skills. She was unaccustomed to living a lifestyle within a country that did not support her autonomy and independence, and was naive to the consequences for the parents of their vastly different personal values.
9.71The parents disagree about their parenting roles when living together. Of note, [Mr Demaris] spoke knowledgeably and enthusiastically about parenting his infant son. [Ms Rance] provided contrary statements regarding the father’s parenting, stating that [Mr Demaris] was a loving and devoted father, and also that he completed little of the parenting. She also provided contrary statements about her own parenting during the parental relationship. [Mr Demaris] stated that [Ms Rance] seemed uninterested in her parenting role and somewhat distant.
9.72[Ms Rance], by her own and the maternal grandmother reports, has become an involved parent since living in Australia. She reported being more comfortable currently than she was when [X] was an infant, with his parenting and care responsibilities.
The mother’s desire to have no contact with the father, or for the father to have contact with the child, from her perspective, is totally opposed by the father, who wants, as limited as it may be, an opportunity to connect with his son, which, on the evidence, is likely only to be possible electronically for the foreseeable future.
Dr B, in her cross-examination, identified, as she sets out in her report, the risk to the child of a total severing of any connection. Submissions made during the course of final submissions by Ms Carmody were to the effect that this child’s rich cross-cultural heritage provides this child with a wonderful opportunity to take the best of both cultures – that is, Country C, in respect of the father and his family, and Australia, in respect of the mother and her family.
I am not satisfied that, at this stage, the child is at risk of harm from maintaining contact with the father by electronic means, which the father and the Independent Children’s Lawyer propose and is not supported by the mother. There is a possibility that the time will eventually cease, and the effect that the mother seeks will be achieved. I will return to this topic when discussing making orders less likely to lead to further proceedings below.
I am satisfied that it would be of benefit to this child to have a meaningful relationship with both parents. I do not regard the father’s conduct, as uncertain as some of it might be, has reached a level where he can provide no benefit to the child in a relationship. It is interesting to note here that the evidence of the maternal grandmother. Her observations shortly after birth was how the father was a doting father, almost taking over the role that she believed that the mother should be taking, but that the mother was, at that stage, unable emotionally to fully bond with the child.
The father’s evidence is that he is distressed by a lack of relationship with his child, and desperately wants one. It is a matter that has some relevance in this case, as in all cases, where the Court is satisfied that a child will gain a benefit from a relationship with the other parent, about that might be in the future.
ADDITIONAL CONSIDERATION
Given the history of the parties’ relationship and the fact that X left Country C when he was but one year of age, one could not apply any significant weight to anything the child says. His feelings are almost entirely to be shaped by his life experience since coming to Australia, where his primary relationship has been his mother and, no doubt, supported by maternal family. It follows that the child’s security arises from his relationship with his mother and that, at this stage, the child has little other than a tenuous relationship with his father. It is not certain how much of the memories of his discussions with his father, limited as they were, and set out under my earlier orders, he recalls. There is evidence that he has a good relationship with his maternal grandmother as well. There has been no real opportunity to develop any relationship with the paternal family in Country C since the mother returned to Australia.
I am satisfied that since the mother came to Australia she has, in effect, made all the decisions and that any limited opportunities that father has had to spend time and communicate with the child has been regulated by court orders after approximately early 2018. The capacity for the father to navigate the court system has been made more difficult by his continued residence in a foreign country and being unfamiliar with the laws of Australia and the practices of the courts in Australia.
The mother points to the fact that the father has failed to meet his obligations to maintain the child by paying child support. That appears to be correct. Of course, being a resident of Country C, any liability for him as a parent to the child is very difficult to enforce. The mother has essentially got on with maintaining the needs of the child through her own financial resources and those of her family without seeking any support from the father. It would of course be entirely inconsistent with the mother’s proposition that the father had no time or connection with the child for her to pursue him for child support and I take that into account.
There are practical difficulties and expenses if the child was to be ordered to spend physical time with the father. As I indicate in my conclusions to these reasons for judgment, it is impossible, on the current evidence, to be satisfied as the Independent Children’s Lawyer’s orders propose, whether physical time in Australia is in the best interests of the child. To a large degree, any foundation for physical time must be developed initially by the electronic time that the Independent Children’s Lawyer proposes. It is too uncertain as to whether the father will even be successful in obtaining a visa to enter Australia. The evidence at the trial was that he had made attempts to obtain a visa but there was no confirmation that a visa had ever been granted. My impression is that the father would not come to Australia unless there is the possibility of him being able to see his child – it being observed that the mother opposes any physical time, even supervised and limited as the Independent Children’s Lawyer proposes, occurring between the child and the father.
I am not satisfied that it is necessary to make a finding as to the capacity of the parents as the mother’s role of primary carer is not disputed and there is little evidence about the fact that she does meet the current needs, including emotional, intellectual and physical needs, of the child. The observations made by Dr B, albeit short and for the purpose of the family report, revealed a happy, contented little boy which is a credit to the mother.
It is relevant, in my view, to acknowledge that this child has a background that involves having a rich and, one might suggest, a different cultural and traditional heritage arising from the father and his Country C cultures. I accept that the mother has some awareness of this culture, having lived in that country for a number of years from 2014, at least. The effect of the mother’s orders would be, it seems to me, most likely to remove aspects of his cultural heritage from the child’s understanding. The mother says that she would be aware of the need to do so, and would do her best to do so but the only person really who can offer some real experience in respect of Country C culture and traditions is, in my view, the father and his family.
Section 60CC(3)(i) requires the court to consider, if relevant, the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. I do not fully adopt the opinion of the family report writer that the father has developed insight into his contribution to the conflict between he and the mother. As I say, the father’s admissions, to the extent they are made to the family report writer, are at odds with his sworn evidence. However there are some aspects of the mother’s behaviour and attitude to parenting which I also find of concern. Although I have no evidence from a person who she claimed to be her likely partner at the time of the trial, it is clear that the mother’s hope is to have many more children – in evidence she indicated she would like four further children. The father of X has in her view, no role to play in the future life of the child.
I am not able to make any assessment of how, with her current partner, her capacity to maintain an adult relationship with the stresses of bringing up five children would be affected. However, the way that she gave her evidence before me made it clear, in my view, that she would prefer to get on with her life with a new partner (whether the current gentleman or not); have more children in that relationship and, in a sense, “airbrush” her decision to have a child with the father in this case, from the child’s life. She seeks to do so because of the unhappiness of her relationship with the father. It seems to me however that she fails to accept responsibility for her decisions in remaining in the relationship during the course of the child living in Country C allowing, as I find she did, the father to play an active role in the day to day care of the child, particularly when she was working, and then to come to this Court now and say as a result of the difficulties she would have in facilitating and supporting time, even electronically, it is not in the child’s best interests to have any contact with the father.
I have made findings in relation to family violence and the existence of family violence orders. There is very little likelihood of any family violence between these parties electronically, particularly if supervised, and no prospect of physical family violence unless the father is in the country.
The Court is required to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. Although this was not the subject of submissions before me (noting that oral submissions at the conclusion of the evidence on 26 May were made by counsel for the Independent Children’s Lawyer and father but that the mother’s counsel was permitted time to provide written submissions which she did), it is open to the court to consider making an interim order in these proceedings.
I have formed the view that it is appropriate in this case to make interim orders for the following reasons at least:
(a)There are a number of conditions which will be imposed upon the commencement and maintenance of electronic time which, if not met, could cause the time to cease. In a final order, if that occurs, that is almost inviting the parties to return to the court on enforcement or contravention proceedings, as difficult as that might be for the father to initiate from Country C; and
(b)I have formed the view it is not possible, with any confidence other than theoretical application of normal principles, to determine whether it is in the best interests of the child to have physical time with the father in Australia at a future time because:
(i)the foundation for a relationship between the father and the child has not yet been re-established through electronic means; and
(ii)there is an absence of any evidence that suggests that the father will be able to come to Australia to spend physical time with X.
PARENTAL RESPONSIBILITY
By final submissions, it was not contested that there should be an order made for the mother to have sole parental responsibility. The orders I propose to make will restrain the mother from changing the child’s name. Even though the mother did not press for an order that she have the authority to change the child’s name, granting her sole parental responsibility without such a restraint (which could be overcome with the consent of the father) could mean that she could, once this case is finished, use the powers under an order for sole parental responsibility to make an application without knowledge to the father.
Otherwise I am content for the mother, as the father acknowledges in a practical sense, to exercise sole parental responsibility. However, as the orders I propose to make will reflect, there will be some obligation on the mother to keep the father informed of major decisions. I do not propose to require the father to be consulted and I do not believe, in view of his limited relationship with the child, that he would be able to add any value at this stage to those major long-term decisions in the circumstances of this case.
CONCLUSION ON ANY TIME OCCURRING
I do not regard, for the reasons set out in this judgment, and at this stage, on the evidence, it being in the best interests of X to effectively remove the father from his life in the manner proposed by the mother. The emotional risks to X of absolute removal and the potential difficulties the mother says she will have in facilitating and supporting even video calls are outweighed by the benefits I assess that flow to the child of having an opportunity to connect with the father and to have a better understanding of his heritage.
For the reasons which I now have given, I make interim orders as set out at the commencement of these Reasons for Judgment which, at this stage, are in the best interests of X.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 June 2023
APPENDIX ONE
1.That all previous orders be discharged.
2.That the mother, Ms Rance, have sole parental responsibility for the child X born 2017 ("herein referred to as "the child").
3.That the mother is hereby restrained from changing the child’s name save and except for where hyphenated and inclusive of the father's surname name.
4.That the mother shall otherwise update the father as to any major information in relation to the child’s health and well-being, to his nominated email address.
5.That the child shall live with the Mother.
6.That within fourteen (14) days of the date of this order, unless otherwise the mother has attended to same, the mother shall attend upon the child 's general practitioner so as to obtain a mental health plan for the child with a psychologist. The mother shall thereafter facilitate the child's attendance within sixty (60) days for such sessions and times as directed by the psychologist. The mother be at liberty to provide the psychologist with a copy of the Family Report of Dr B filed 22 December 2020 to assist the child in obtaining counselling in relation to his communications and/or time with his father, developing a safe and positive relationship with his father.
7.That the mother shall hereby authorise the father to contact the child 's psychologist so as to obtain and reports, at his own cost, in respect of only the child 's engagement.
8.That the father shall be at liberty to send cards, letters and presents to the child from time to time, with such items to be directed to the mother's nominated mailing address. For the purpose of this order, the mother shall facilitate the child receiving all such items from the father save and except where such communications and/or gifts are not child appropriate.
9.That the father be at liberty to communicate with the child on one occasion in each week via video call and for the purpose of this order the following shall apply:
The call between the child and father shall be facilitated by the psychologist and/or contact centre with the father to organise such booking during a time and at a venue as nominated by the mother having regard to the time difference and the child's commitments.
The father shall otherwise meet the costs of the supervised call;
For the purpose of this Order, leave be granted for the contact centre and/or psychologist to be provided with a copy of the Family Report of Dr B.
10.That prior to the father travelling to Australia so as to spend time with the child, he shall advise the mother of his intention at least three (3) months prior.
11.Upon the father travelling to Australia, he shall be at liberty to spend supervised time with the child at a contact centre as recommended by the psychologist as set in Order 6, and for the purpose of this Order, the following shall apply:
The father's time shall be supervised for a period of up to two (2) hours on two (2) occasions in each week;
That leave be granted for a copy of these Orders and the Family Report to be provided to the contact service.
12.That the mother and father shall otherwise continue to engage in psychological support in terms of parenting and co-parenting matters and for the purpose of this Order, leave is granted for the parents to provide the Report of Dr B filed 22 December 2020 and these Orders.
13.That the father shall provide to the mother, prior to his spending supervised time with the child in Australia, evidence of his engagement with a Psychologist setting out his engagement in a parenting and family violence protection program with reference to the report of Dr B.
14.That the mother shall undertake a post-separation parenting program and Circle of Security course within twelve (12) months of this Order.
15.That pursuant to s 11 (1) (b) and s 11 (5) (b) of the Australian Passports Act 2005 (Cth), the child is to be issued with an Australian Passport, notwithstanding the consent of the father has not been obtained and any requirement for the father's signature on a passport application for the child be dispensed with.
16.That pursuant to s 11 (b) of the Australian Passports Act 2005 (Cth), the child be permitted to leave the Commonwealth of Australia in the company of the mother.
NOTATION:
A.That upon the father relocating to Australia or following him spending periods of supervised time with the child and travelling to Australia, the parties shall otherwise be at liberty to engage in Family Dispute Resolution with a view to longer term orders that facilitate the child 's time with the father.
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