RASHID & HIJAZ
[2018] FamCA 619
•17 August 2018
FAMILY COURT OF AUSTRALIA
| RASHID & HIJAZ | [2018] FamCA 619 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility – Where the mother seeks for the child to live with her in Australia and spend time with the father in Australia – Where the father seeks for the child to spend time with him in the USA twice per year – Where the child was born in the USA – Where the mother unilaterally relocated with the child to Australia – Where the mother alleges coercive and controlling conduct on the part of the father and his mother – Court finds there would be an unacceptable risk of the child being retained in the USA if she were to travel there – Court finds safeguards would not adequately ameliorate the risk – Court is not satisfied of conduct amounting to controlling or coercive conduct as contemplated by s 4AB of the Act – Presumption of equal shared parental responsibility satisfied – Orders made for the child to live in Australia with the mother – Orders made for the child to spend substantial and significant time with the father when he is present in Australia – No orders made for the child to spend time with the father in the USA. |
| Family Law Act 1975 (Cth) ss. 43, 60B, 60CC, 60CA, 61DA, 65DAA, 65DAC Convention on the Rights of the Child arts. 3, 18 Hague Convention on the Civil Aspects of International Child Abduction |
| AMS v AIF (1999) 199 CLR 160 Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249 |
| APPLICANT: | Mr Rashid |
| RESPONDENT: | Ms Hijaz |
| FILE NUMBER: | SYC 145 of 2015 |
| DATE DELIVERED: | 17 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 26 - 28 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Spain |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
Parenting orders
The child, X, born … 2009 (“the child”) live with the mother.
The parties have equal shared parental responsibility for the child.
In the event that the father travels to Australia during the school term, then the child will spend time with the father as agreed between the parties and in the absence of such agreement, as follows:
(a)On the first weekend that the father is in Australia, from Friday after school (or 3.00 pm if a non-school day) to 6.00 pm Sunday and each alternate weekend thereafter; and
(b)Monday and Wednesday each week from after school (or 3.00 pm if a non-school day) to the commencement of school the next day (or 9.00 am if a non-school day).
In the event that the father travels to Australia during the school holidays, then the child will spend time with the father as agreed between the parents and in the absence of such agreement, each alternate week for seven nights, commencing at 4.00 pm on a date to be elected by the father and concluding at 4.00 pm, seven days later.
The school holiday period is said to commence at 9.00 am the day following the last day of the school term and conclude at 6.00 pm the day before the first day of the next school term.
Upon the father travelling to Australia, he is to notify the mother of his intention to spend time with the child and the dates upon which he proposes that occur, 14 days prior to spending that time with the child.
Notwithstanding any other order made herein and unless otherwise agreed between the parties, the child shall spend time with the mother, as follows:
(a)From 9.00 am to 5.00 pm on Mother’s Day when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(b)From 9.00 am to 5.00 pm on the mother’s birthday when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(c)From after school (or 3.00 pm if a non-school day) to 6.00 pm on the child’s birthday, if the child is otherwise in the father’s care on that day; and
(d)From 9.00 am on Christmas Eve to 3.00 pm on Christmas Day in years ending with an odd number and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in years ending with an even number.
Notwithstanding any other order made herein and unless otherwise agreed between the parties, if the father is present in Australia at the relevant time, the child shall spend time with the father, as follows:
(a)From 9.00 am to 5.00 pm on Father’s Day when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(b)From 9.00 am to 5.00 pm on the father's birthday when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(c)From after school (or 3.00 pm if a non-school day) to 6.00 pm on the child’s birthday, if the child is otherwise in the mother’s care on that day; and
(d)From 9.00 am on Christmas Eve to 3.00 pm on Christmas Day in years ending with an even number and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in years ending with an odd number.
When changeover is to occur in accordance with the commencement or conclusion of the child’s school day, it shall occur at the child’s school. Otherwise, changeover shall occur by the father collecting the child from the mother’s residence at the commencement of his time with her and returning her to the mother’s residence at the conclusion of that time.
By consent, each party take the child to her social events (including birthday parties) and extracurricular activities when the child is in their care.
Each party be permitted to attend the child’s school and extra-curricular activities normally attended by parents, when the child is not otherwise in their care.
Ancillary orders
By consent, in the event the child is taken to hospital for any reason or consults a specialist whilst in either party’s care, that party shall promptly inform the other party of the name of the hospital and treating doctor and authorise the other party to contact the hospital/doctor/specialist to make enquiries as to the child’s wellbeing.
The child have telephone communication with the father when she is not otherwise spending time with him, at times as agreed between the parties and in the absence of such agreement, each Monday, Wednesday and Friday for up to 30 minutes from 5.30 pm to 6.00 pm.
By consent, each party notify the other of the address and telephone numbers of the place/s where the child will be staying during holiday periods in Australia spent away from their residence, no later than 24 hours prior to the commencement of any such holiday.
By consent, neither party shall criticise or denigrate the other to the child or within hearing distance of the child.
By consent, the mother shall send the child’s report cards to the father each year and keep the father informed of the child’s health and progress at school and the child’s residential address, mobile phone number and email address at all times.
By consent, each party notify the other, no more than 48 hours after any change to their address, landline phone number, mobile phone number and/or email address.
The mother retain possession of the child’s passports and be permitted to apply for renewals of the same, upon their expiration.
Each party, Mr Rashid, born … 1961 and Ms Hijaz, born … 1983, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X, born … 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia until 17 March 2027.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rashid & Hijaz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 145 of 2015
| Mr Rashid |
Applicant
And
| Ms Hijaz |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application, brought by the father, for parenting orders in respect of the child X, born in 2009 (“the child”). The child lives with the mother in Australia and the father lives in the United States of America (“USA”). The father originally sought orders for the child to be relocated to live with him in the USA, however he withdrew that aspect of his claim shortly before the hearing.
The parties are in agreement that the child should spend time with the father when he is in Australia. The main area of disagreement is whether orders should be made requiring the child to spend time with the father and his family in the USA. The mother opposes such an order on the basis that she contends that there is an unacceptable risk of the child being retained in the USA if the child was to travel there.
Orders have been made confirming arrangements for the child to spend time with the father when he is in Australia. Orders have not been made requiring the child to spend time with the father or his family in the USA.
Background
On 22 August 1961, the father was born in Country B, Africa. The father has lived in the USA since he was 12 years of age. The father is a citizen of the USA. The father has Bachelor’s and Master’s degrees. The father is a self-employed consultant and, in that capacity, mostly works from home. He is also a Director of O School.
In 1983, the mother was born in Sydney, Australia. The mother is an Australia citizen. The mother has a PhD and a Master’s degree and is currently employed full-time in a professional capacity.
On 15 November 2007, the mother met the father in Sydney. The parties became engaged a short time after meeting and married in a religious marriage ceremony in Sydney in 2008. After the religious ceremony, the mother moved from Sydney to the USA to live with the father and his parents.
The parties agree that on later in 2008, they had a civil marriage ceremony. The mother contends that the ceremony was in the USA, while the father contends that the ceremony was in Sydney. That difference is not material to this decision.
In 2009, the child was born in the USA. The child is a dual citizen of Australian and the USA.
In September 2013, the mother, with the father’s consent, travelled to Australia. The father contends that he agreed to the mother travelling with the child on the understanding that the mother would be overseas for one month. The mother acknowledges that, at the time of travel, it was her intention to return to the USA, however that intention changed and she did not do so. Since that time, the child has lived in the home of the maternal grandparents in Suburb A, NSW with the maternal grandparents, the mother and two maternal aunts, Ms C and Ms D.
In February 2014, the child commenced attending E School.
On 29 September 2014, the father travelled to Australia. The father contends that, at that time, the mother advised him that she would be remaining in Australia indefinitely. The father further contends that the mother agreed that the child would remain with her in Australia for a few months and would return to live with the father in the USA, if the father agreed to divorce her.
On 27 February 2015, the father travelled to Australia with his parents, he says, to facilitate the return of the child to the USA. The father asserts that, around that time, he engaged a lawyer to draft a parenting plan, but that the mother refused to sign it.
On 2 March 2015, the mother sent to the father a proposed parenting agreement providing for the child to live with the mother until the child turned nine years of age and thereafter, with the parties in accordance with her wishes.
In mid-March 2015, the father instructed his legal representatives to provide a draft revised parenting plan to the mother.
On 24 March 2015, the father returned to the USA.
In April 2015, a Divorce Order was made by this Court.
On about 17 May 2015, the mother says that the parties were granted a religious divorce in Sydney. This is disputed by the father, who contends that a religious divorce cannot occur without his consent.
In March 2016, the father travelled to Australia to spend time with the child.
On 26 March 2016, an incident occurred at “F Café” during which the father held the child for a period of time and declined the mothers request for the child to be returned to her. The incident became heated, with the mother striking the father’s arm with her fist. The child did not spend any time with the father after this incident, until consent orders were entered into on 14 September 2016.
On 23 May 2016, the Department of Family and Community Services filed a Form 2 Application, seeking the return of the child to the USA pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On 30 June 2016, the Central Authority discontinued the Hague Convention proceedings, following the issuance of a report prepared by Ms G (“Ms G”), Family Consultant, dated 16 June 2016, setting out the wishes of the child.
On 1 July 2016, the father commenced these proceedings.
On 14 September 2016, the parties entered into consent orders, whereby the child would live with the mother and spend time with the father on specific dates until January 2017. Thereafter, the ongoing arrangements for the child to spend time with the father, pursuant to those consent orders, were:
4. That the father spend time with [the child] from the commencement of Term 1 2017 during term time as follows:
a. in Week One from after school to 6.00 pm on Thursdays; and
b. in Week Two from after school Friday to 6.00 pm Sunday.
5. That during the April 2017 school holidays [the child] spend time with the father from 9.00 am on 7 April to 6.00 pm, 11 April 2017 and from 9.00 am on 19 April 2017 to 6.00 pm on 23 April 2017.
The father travelled to Australia to spend time with the child between 18 October and 12 November 2016, 24 November and 14 January 2016 and 22 January and 26 January 2016.
On 13 February 2017, Ms H, Family Consultant, released a Child Responsive Program Memorandum.
The father travelled to Australia to spend time with the child between 15 March and 26 March 2017, 12 April and 2 May 2017 and 6 November and 9 November 2017.
On 23 November 2017, a Family Report prepared by Ms H was released to the parties.
The father currently resides in the USA with his parents.
Applications
The father’s application
At the hearing, the father applied for the following orders be made:
Parental responsibility
1. The parties have equal shared parental responsibility for the child for major long-term decisions about the care, welfare, and development of the child including (but not limited to) issues concerning:
(a) The child’s education (both current and future);
(b) The child’s religious and cultural upbringing;
(c) The child’s health;
(d) The child’s name; and
(e) All changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each of the parents pursuant to these Orders.
ORDERS IN THE EVENT A RELOCATION TO THE USA IS PERMITTED
Registration of orders in the USA
2. IT IS NOTED that once these Orders are registered in State J, any impasse about the terms of these Orders will be decided by a Court in [State J, USA].
3. The mother and father each have sole responsibility for making decisions about the day to day care of the child whenever the child is in their care.
…
In the event the child remains in Australia
8. That in the event the court refuses the father's application to relocate the residence of the child to the USA, then the child will live with the mother and spend time with the father as follows:
(a) At times and dates as agreed between the parties;
(b) For one half of the end of Term 1 and Term 3 school holiday periods as agreed and absent agreement the first half;
(c) For the entire end of Term 3 school holiday period and during such period the father shall be permitted to travel with the child to the United States of America;
(d) For 4 weeks of the end of Term 4 school holidays as agreed and absent agreement, the first 4 weeks of each school holiday period in years ending in even number and the last 4 weeks of the end of Term 4 school holidays in years ending with an odd number, and during such period the father shall be permitted to travel with the child to [State J] in the United States of America.
(e) In the event the father travels to Australia during the school term, then the child will spend additional time with the father as agreed and in the absence of agreement, the child spend time with the father for a period of up to half the period the father is in the Australia by agreement and absent agreement as follows:
i. Friday after school (or 3pm if a non school day) to 6pm Sunday each weekend;
ii. Monday and Wednesday each week from after school (or 3pm if a non school day) to the commencement of school the next day (or 9am if a non school day).
9. In the period from the making of these orders until the child attends 10 years of age, in the event the mother elects to travel to [State J] with the child to facilitate the child spending time with the father then the father shall meet one half of the mother's costs of travel or $2,500 whichever is the lesser sum, provided the mother provides the father with 60 days’ notice of her intention to travel with the child to [State J] to facilitate the child's time with the father. In the event the mother elects not to travel to [State J], the father will be responsible for travelling with the child, out of the commonwealth of Australia.
10. The father shall be responsible for [the child’s] travel costs to [State J].
11. That the father shall 2 months prior to any travel to State J as proposed in these orders purchase the return airfare tickets for the child in respect of her travel to [State J], and provide a copy of the child's travel itinerary to the mother.
12. In the event it is proposed the child travel out of the Commonwealth of Australia with the father, the mother shall provide the child's passport to the father, and the father shall return the passport to the mother upon the father returning the child to the care of the mother.
13. The mother shall send the child’s report cards to the father each year and keep the father informed of the child’s health and progress at school, and the child’s residential address, mobile phone number and email address at all times.
14. The mother shall ensure that the father’s contact details are provided to any school or pre school the child is enrolled in, and that the father’s name is listed as the next of kin in any form concerning the child’s education, health, future care, welfare or development.
15. In the event the child is taken to hospital for any reason or consults a specialist whilst in the mother's care the mother shall promptly inform the father of the name of the hospital, treating doctor and authorise the father to contact the hospital/doctor/ specialist to make enquiries as to the child’s wellbeing.
16. In the event the child is taken to hospital for any reason or consults a specialist whilst in the father’s care the father shall promptly inform the mother of the name of the hospital, treating doctor and authorise the mother to contact the hospital/doctor/ specialist to make enquiries as to the child’s wellbeing.
17. That neither parent shall criticise or denigrate the other parent to the child or within hearing distance of the child.
GENERAL ORDERS
18. Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing and the parties are in the same country, [the child] spend time with the father:
a. From 3pm the Saturday before Father's Day Sunday to 6pm Father's Day Sunday;
b. From 9.00am to 5.00pm on the father's birthday when it falls on a weekend or during school holidays (or a non school day);
c. From after school to 7.00pm on father's birthday when it fall's on a school day;
d. For no less than 4 hours on [the child’s] birthday as agreed between the parties and in the default agreement, between 3pm and 7pm if [the child] is in the mother's care;
e. From 9am Christmas Eve to 3pm Christmas Day in years ending with an even number and from 3pm Christmas Day to 6pm Boxing Day in years ending with an even number provided the Husband and Wife are in the same country.
f. At other times as agreed between the parties in writing.
19. Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing and the parties are in the same country [the child] spend time with the mother:
a. From 3pm the Saturday before Mother's Day Sunday to 6pm Mother's Day Sunday;
b. From 9.00am to 5.00pm on the mother's birthday when it falls on a weekend or during school holidays (on a non school day)
c. From after school to 7.00pm on the Mother's birthday when it fall's on a school day;
d. For no less than 4 hours on [the child’s] birthday as agreed between the parties and in the default of agreement, between 3pm and 7pm if [the child] is in the father's care;
e. From 9am Christmas Eve to 3pm Christmas Day in years ending with an even number and from 3pm Christmas Day to 6pm Boxing Day in years ending with an odd number provided the Father and Mother are in the same countries.
f. At other times agreed between the parties.
20. That in the event [the child] is on holidays away from her residence, then the child communicate with the other parent by telephone and/or FaceTime and/or Skype each alternate day unless otherwise agreed between the parties at times to be agrees and in the vent of no agreement between 7am and 8am.
21. That each party notify the other, no more than 48 hours after any change to their address and/or landline and/or mobile number and/or their email address.
22. That each party notify the other of the address and telephone numbers of the place/s where [the child] will be staying during holiday periods in Australia spent away from their residence no later than 24 hours prior to the commencement of any such holiday.
23. That pursuant to section 65 (Y)(2) of the Act each parent be allowed to travel overseas with [the child] given [the child] is in their care pursuant to these Orders subject to providing written notice to the other party at the earliest opportunity no less than 28 days in advance of the departure date and notifying the other party of the address and telephone number/s of the place/s where [the child] will be staying during holidays.
24. That the school holiday period shall commence at 9am the day following the conclusion of the school term, and conclude at 6pm the Sunday before the child resumes the next school day.
25. The midpoint of the school holiday period shall be 6pm on the middle day of the school holiday period.
26. When changeover does not take place at [the child’s] school and/or preschool, the father shall collect [the child] from the mother's residence at the commencement of her time with the father and the mother shall collect [the child] from the father at the commencement of [the child’s] time with her mother (i.e. Conclusion of the father's time with [the child]), unless otherwise agreed.
27. That each party take [the child] to her social events (including birthday parties) and extracurricular activities when [the child] is in her respective care.
28. Both parties do all things and acts and sign all documents as are necessary to register in the appropriate Court of [State J], USA, a copy of these Orders, including making a written request to both the Registry Manager and the Registrar of this Court pursuant to s 70M(2) of the Family Law Act 1975 (Cth) (“the Act”) and Regulation 24(2) Family Law Regulations 1984 (Cth).
29. Costs.
On the final day of the hearing, the mother provided a copy of the father’s minute of orders sought, highlighting the orders to which she agreed (Exhibit “F-5”). In relation to certain orders, the mother agrees to part of the order proposed by the father, but does not provide an alternative for those parts which she does not agree to. Where the Court considers it appropriate, certain of those orders will be made by consent.
During the course of the hearing, the father provided an amended minute of order which included a provision for the father to pay a bond of $15,000 if he is to take the child to the USA, as follows:
1) That on any occasion the father travels with the child out of the Commonwealth of Australia, then not less than 14 days prior to such travel the father shall pay a security bond in the amount of $15,000 by way of bank cheque or eft transfer to the Trust Account of the father's lawyers such sum to be held on trust for both parties and disbursed as follows:
1.1. To be repaid to the father 7 days following the child's return to Australia;
1.2. To be paid on account of legal and other appropriate fees incurred by the mother in the event the father fails to return the child to Australia for the purpose of this order.
2) On a without admissions basis, any travel shall be limited to countries which are parties to the Hague Convention on the Civil Aspects of International Child Abduction.
3) The child's name shall be removed from the Airport Watch list.
The mother’s application
At the hearing, the mother, who was self-represented, sought that the following orders be made:
1. That I have sole parental responsibility for [the child];
2. That [the child] live with me;
3. That [the child] spend time with the Father at times as agreed, and failing agreement, as follows:
(a) During the NSW school term, in a two-week cycle, as follows:
1. in week one, from after school to 6pm on Thursdays; and
2. in week two, from after school Friday to 6pm Sunday,
(b) During the NSW Terms 1, 2 and 3 school holidays, for a block period of 6 nights; and
(c) During the NSW Term 4 school holiday, for 2 separate block periods of 6 nights, with at least 3 nights in between each block.
4. That the time provided for in sub-paragraphs 3(b) and 3(c) are subject to the Father providing me no less than 28 days prior written notice, being 28 days before the first Saturday of each school holiday period, of the exact dates he seeks to spend time with [the child];
5. That in the event the Mother unable to facilitate [the child] spending a block period of school holiday time with the Father, provided for in subparagraphs 3.2 and 3.3, the Mother is to provide the Father with written notice of the dates that [the child] is not available to spend time with the Father, no less than 35 days prior to the first Saturday of each school holiday period;
6. That if the Father cannot exercise time he shall provide the Mother with no less than 14 days' notice of unavailability (unless unforeseen circumstances prevent that);
7. When changeover does not otherwise take place at [the child’s] school, changeover shall take place at my residence;
8. That [the child] be permitted to speak with the Father when she is not otherwise spending time with him, at times as agreed between the parents and in the absence of agreement, then on Monday, Wednesday and Friday for up to 20 minutes from 5.30pm to 5.50pm
9. That each party, by their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting [the child’s] removal from the Commonwealth of Australia;
10. That [the child’s] name be indefinitely maintained on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia;
11. That each party notify the other as soon as possible, and in any event, within 2 hours of any serious injury or illness suffered by [the child] whilst with that party
12. That each party notify the other, no more than 48 hours after any change to their address and/or landline and/or mobile number and/or their email address, and any change regarding who they are living with;
13. That each party take [the child] to their social events (including birthday parties) and extracurricular activities when [the child] is in their respective care;
14. That each party be allowed to attend [the child’s] school, sports and social events and activities even when [the child] is not in his/her care; and
15. That the Father shall use his best endeavours to provide me with 14 days' notice of any need for him to travel out of the Commonwealth of Australia or in any event as soon as reasonably practicable, such notice to be provided in email.
Evidence
The father relied upon the following documents:
a)His Affidavit filed on 24 January 2018; and
b)Affidavit of Ms K Rashid (Exhibit “F-2”) sworn on 30 January 2018.
The mother relied upon the following documents:
a)Her Affidavit filed on 23 January 2018; and
b)Affidavit of Ms L Hijaz filed on 23 January 2018.
The law - concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) of the Act notes that an additional object of Part VII is to give effect to the Convention on the Rights of the Child (“the Convention”). Article 3 of the Convention provides:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
Presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 (“Dundas & Blake”) at 87,399, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that it would not be in the interests of the children for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 (“VR & RR”), the Full Court said at 88,937:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for the parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
In the Family Report, Ms H expressed the following opinion:
The level of conflict between [the mother] and [the father] is so high that an expectation of child-focused, co-parenting and responsible joint decision making in respect of [the child], is potentially not realistic. In such circumstances, particularly if one parent is living in the USA and one is living in Australia, proper decision making about major long-term issues in respect of [the child] would best be in the province of the parent with whom she is living.
During cross-examination, Ms H qualified her opinion in the context of evidence that, since consent orders were made in September 2016, the parties have been able to cooperate in respect to the time that the child spends with the father and, further, that the mother has been considerate in forwarding information concerning the child’s education to the father. The following exchange took place between Ms H and Counsel for the father:
Question: So you would agree, wouldn’t you, that that communication is polite?
Answer: Yes.
Question: And it’s appropriate?
Answer: Yes.
Question: And do you agree that any conflict – well, the conflict between the parties is often at its highest around this time when the matter is before the court?
Answer: Yes.
Question: And that conflict often dies down, doesn’t it, once are orders are made and these proceedings are over with?
Answer: Yes, but I would say in the context of the allegations that have been made regarding coercive controlling family violence, that’s not necessarily always the case. Conflict can continue for years afterwards.
Counsel for the father then put the following proposition to Ms H:
Question: And given the way the parties have been able to reach agreement recently about the father’s time with [the child], and given that the communication between them recently has been quite polite, it’s highly possible, isn’t it, that they will be able to reach an agreement on her high school?
Answer: Again, I think it will depend on the court’s findings of coercive, controlling family violence allegations. If that’s found to – if there’s merit to her allegations, there could potentially be considerable conflict for years to come, but in the absence of risk, yes, I agree with you.
The mother acknowledged that, as at March 2015, the parties’ relationship was such that she considered they would be able to exercise joint parental responsibility and, for that reason, she included a provision to that effect in a draft parenting plan that she provided to the father on 2 March 2015.
The mother attested to the parties’ relationship deteriorating over time and expressed the view that, unless there was a reduction in the level of conflict between the parties, the nature of the conflict between them is such that she did not think it was possible for the parties to “co-parent”, which she explained as meaning making joint decisions together.
As I will discuss below, the incident that occurred on 26 March 2016 satisfies me that there has been a high level of conflict between the parties. I have found that the father held the child in his arms and declined to return her to the mother in order to highlight the distress that he felt by the mother not facilitating the child spending time with him. The mother acknowledges that, during that incident, she physically struck the father’s arm with “some force”. The father acknowledges that, during that incident, he made some statements that were offensive to the mother.
The parties’ conduct during the course of these proceedings also satisfies me that there is an ongoing level of conflict and pattern of disrespectful communication between them.
While it is necessary to acknowledge the intense context of cross examination of the father by the mother, who was self-represented at the hearing, the disrespectful communication was evident. For instance, in circumstances where the mother was not satisfied with an answer she received from the father, the following exchange took place:
The mother: You snatched her from me as we were leaving. Do you recall that? You are under oath?
The father: If you’re going to put words into my mouth then I would like you to be under oath too because I did not snatch her. Why don’t you accept that?
A further example of the disrespect and distrust between the parties is the following exchange:
The mother: So you’re denying everything. Every conversation that I have with you you’re pretty much denying everything?
The father: So you want me to accept everything you ask me? I mean I don’t - - -
The mother: So is everything I’m saying wrong?
The father: So then why are you questioning me?
Counsel for the father contended that the real issue in respect to the mother’s allegations of controlling and coercive conduct relates to the mother’s relationship with the paternal grandmother. This was substantially acknowledged by the mother, who stated during her cross examination of Ms H that her concerns were “primarily against the paternal grandmother”.
As I will discuss, I am satisfied that the paternal grandmother has a strong personality. The tension between the mother and paternal grandmother was evident during the course of the mother’s cross examination of her. The mother’s primary concerns in respect to the father substantially relate to his failure to intervene, with a view to moderating the interactions between the paternal grandmother and the mother.
Other than the incident that occurred on 26 March 2016, to which I refer below, I accept the submissions of Counsel for the father that the mother has failed to provide evidence that would satisfy the Court that she has been the subject of coercive and controlling conduct on the part of the father.
In that respect, I note that the father agreed to the mother travelling to Australia with the child on two occasions prior to the mother relocating to Australia in September 2013. Those earlier trips occurred in 2010 and 2011. The father paid for the flights for the mother’s travel.
Despite the mother’s contention that the father was financially controlling, I am further satisfied that the father did not attempt to restrict the mother’s ability to invest in the stock market and, in fact, she invested in silver bullion with the assistance of the father. While the mother’s purchases may well have been scrutinised by the paternal grandmother, the father nonetheless provided her with a credit card and at times, cash. In that respect, I note that the father was not challenged on his evidence, as set out in paragraph 126 of his Affidavit, that he did not place a budget on the mother’s expenditure.
I accept that the father was initially reluctant for the mother to return to work. However, in the period after the child turned three years of age, he subsequently placed no impediment on the mother seeking employment and she did, in fact, attend job interviews with the knowledge of the father.
I further note that, consistent with statements that the mother’s allegations of coercive and controlling conduct are made primarily against the paternal grandmother, rather than the father, is the fact that, subsequent to the mother relocating to Australia in September 2013, she engaged in discussions with the father regarding the prospect of her and the child returning to the USA if he obtained independent accommodation away from his parents.
Despite some reservation arising from the interaction that I observed between the father and the mother during the course of these proceedings, having regard to the principles adumbrated in Dundas & Blake and VR & RR, I am not satisfied that the father has engaged in coercive and controlling conduct to an extent that justifies departing from the legislative obligation for the Court to apply the presumption of equal shared parental responsibility.
In that respect, it is relevant that the parties are in agreement in respect to the child’s religion and, fortunately, there have been no major incidents impacting upon the child’s health. Accordingly, the major issue where the presumption of equal shared parental responsibility will apply will be in respect to the child’s high school education.
As an order for joint parental responsibility will be made pursuant to s 65DAA of the Act, I am required to consider whether the child should spend equal or substantial and significant time with both parents. I will address this once I have considered the parties’ applications in light of ss 60CA and 60CC of the Act.
Paramount consideration in making parenting orders
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations set out in s 60CC(2) are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. In this matter, to ensure that all s 60CC considerations are taken into account, it is appropriate to address the additional considerations set out in s 60CC(3) prior to addressing the primary considerations set out in s 60CC(2).
Additional considerations
The additional considerations set out in s 60CC(3) of the Act broadly deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
Issues relating to the child – their views, level of maturity, culture and relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the Court considers relevant to the weight that should be given to those views.
A number of reports have been prepared in this matter which give some insight into these factors. I refer to relevant extracts from those reports below.
Ms G prepared a report for the purposes of the Hague Convention proceedings, dated 16 June 2016. Under the heading “Evaluation” Ms G stated:
12. It is evident that [the child] is very much settled in Australia. One would expect this to be the case for a child of seven years of age who has been living in the same place for two and a half years (since she was four years old). "Australia", to [the child], means her mother and her extended family, the house and the neighbourhood she lives in and her school and friends there. She remembers little, if anything, about America and her life there. She does, of course, remember her father as she has seen him a number of times in Australia but the long gaps between visits and the current lack of any other contact with him have led to his being relegated to having an unimportant position in her life at this time. This is to be expected if her mother and maternal family do not actively encourage her to maintain contact and a positive relationship with him.
Further, Ms H set out the following observations in her Child Responsive Program Memorandum under the heading “Evaluation”:
22. [The child] stated that she wishes to remain in her mother's care and only spend time with [the father] in Australia. Given [the child’s] age and stage of development it is understandable that she desires to remain close to her mother who has been her primary carer all of her life. Nevertheless her relationships with her father and extended paternal family members are also important and the challenge for [the mother] will be in ensuring that those relationships are nurtured and maintained which may be challenging given the circumstances.
In the Family Report, Ms H reported that, in response to her question as to whether the child would like to visit her father in the USA, the child responded as follows:
[The child] said that she has never been to America to spend time with [the father] and the paternal family. When asked if she would like to visit [the father] in America, [the child] responded decisively, "No! I like it here [Australia] best". She said, "I never want to leave Australia", and she would only ever consider a holiday abroad "with mum".
Ms H further reported:
[The child] reiterated numerous times that she does not want to go to America because she “loved Australia” and she would miss her friends and “[Grandpa]” and “[Grandma]” [the maternal grandparents].
Ms H reported that the child’s response to her question as to what her reaction would be if she was required to relocate to the USA was that she would “run away and hide somewhere so that no one can find me”. As I will discuss, that comment is particularly relevant in the consideration of the potential risk associated with the child travelling to the USA.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
It is not disputed that the mother has been the child’s primary carer since birth and that the mother and the child have a close and loving relationship. In recording her observations of the child’s interaction with the mother, Ms H observed that the child appeared to be “extremely comfortable and talkative” and that the child responded to her mother with warmth and affection, exchanging hugs. Ms H recorded the mother’s interactions with the child as “supportive, encouraging and there was much banter and laughter”. Having recorded those observations, Ms H expressed the opinion that the mother and the child “have a close, affectionate and mutually enjoyable relationship”. I accept that opinion.
The mother was not challenged on her evidence that the child has a close relationship with her maternal grandparents and her two maternal aunts with whom she lives in a large home in Suburb A. Further, the mother was not challenged on her evidence that the child enjoys playing with her maternal cousins and that she spends time with her two maternal uncles on weekends.
Relevantly, Ms H set out the following observations in her Child Responsive Program Memorandum:
21. [The mother] said that she supports [the child] having a relationship with [the father] and his family but she said that she is concerned for [the child’s] safety and wellbeing in [the father’s] care due to his neglectful parenting. [The mother] said that she hoped [the father] would continue to spend time with [the child] in Australia but she was firm in her view that this time should be child focussed with [the father] committing to a regular and consistent schedule that best meets [the child’s] needs, preferably in the school holidays.
Further, Ms H noted that the child and the father had not spent time together for approximately six months prior to her observing them together as part of the Family Report assessment. Ms H observed that, after easing into the situation, the child was observed to “jump up and ran to greet her father with a warm hug and kiss”. Ms H recorded her observation that the child chatted cheerily with the father as they walked into the observation room and that the child “appeared to enjoy spending time with [the father] playing a board game, chatting and laughing with one another”.
It was also relevantly noted, in the report prepared by Ms G, that:
13. [The child] is at an age and developmental stage at which she is still very close to and reliant for her emotional security and well-being on, her primary carer, her mother. Her mother and extended maternal family are doing a wonderful job of raising her. She is a delightful child. As she grows older, however, it is likely and natural that she may develop curiosity about her father, the more so the less contact she has with him, and she could feel the absence of him in her life keenly. She is, after all, connected to him in a unique way through genetics and life history. Wherever she lives, it would be to her benefit that she is able to maintain a relationship with him and that her maternal family is able to help her feel good about the part of her that she has inherited from her father.
The father contended that, until such time as the mother travelled with the child to Australia, he had a close relationship with the child and was involved in a number of parenting tasks, including changing nappies, bathing, feeding and settling the child when she was a baby. The mother disputes the extent of the father’s involvement in caring for the child, but acknowledges that the father would hold the child and “occasionally” change her nappy. At paragraph 39 of her trial Affidavit, the mother stated that “the father provided some assistance in caring for [the child], as his work permitted”. I accept that the father provided assistance in the care for the child, consistent with his work commitments.
I accept the father’s evidence that he visits the child as often as he reasonably can and that he spends quality time with her in Australia. I further accept that when the father spends time with the child, he engages with her in a number of meaningful ways, including conversing about her school activities and what books that she is reading, making her breakfast and going out for meals at lunch and dinner, visiting the father’s sister and friends who have children and participating in a number of leisure activities with her. This includes, for example, ice-skating, roller skating, swimming, Lego building, visiting parks, age-appropriate plays, shopping centres, amusement parks and water parks.
Ms H expressed the view that the child and the father have a “close and loving relationship”. I accept that opinion.
The child resided at the home of the paternal grandparents in the USA until she was four and a half years old. The mother acknowledges that, during that time, the child had a close relationship with the paternal grandparents. In that respect, I accept the evidence of the father that the paternal grandmother assisted in feeding and bathing the child. I also accept that the paternal grandfather would play with the child, take her to the park and play tennis with her.
I further accept that the paternal grandparents, the father, the mother and the child all attended religious summer camps together in the USA.
The child has spent very limited time with the paternal grandparents since relocating to Australia. The father is concerned that, if orders are not made for the child to travel to the USA, she will lose contact with her paternal grandparents and other members of the paternal family who reside in the USA. The mother agreed that the child likely misses the paternal grandparents and that it is important for her to have a relationship and to spend time with them.
The father also has three nieces and nephews, who reside in the USA. I accept that if the child remains living in Australia, as is the application of both parties, and orders are not made to facilitate the child regularly travelling to the USA, the child’s relationship with her paternal relatives who reside in the USA will be detrimentally affected.
In the Family Report, Ms H summarised the father’s concerns in relation to orders preventing the child from travelling to the USA, as follows:
[The father] expressed his dissatisfaction that the current Court Order (by consent) prevents him from taking [the child] to America to spend time with her paternal family, and he is concerned that [the mother] has potentially indoctrinated [the child] to perceive spending time in America as being extremely negative. For example, [the father] said that [the child] has often informed him that she will never travel to America. [The father] is concerned that [the child] requires a broader context of family life. He referred to [the mother] living a very "insular" life in a particularly regimented family system. [The father] said that [the mother’s] alleged behaviour has also had an impact on [the child’s] relationship with his parents. He said that [the child] now sometimes refuses to talk to the paternal grandmother on the phone or via Skype.
I am satisfied that, prior to relocating to Australia, the child had a close relationship with her paternal grandparents, however, that relationship has inevitably been impacted by the child living in Australia while her paternal grandparents remain in the USA.
As stated, the father does have a sister who lives in Sydney, with whom the child can spend time. The father stated that the child and the father spend time with that paternal aunt when the father is in Australia. This will enable the child to maintain some connection to the paternal family if she does not travel to the USA.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
Lifestyle
In the Family Report, Ms H described the child as being “delightful and endearing”. Ms H reported that the child presents as “bright, funny, articulate and very outgoing”. The evidence of both parties was consistent with that assessment. The mother was not challenged on her opinion that the child is gifted and doing well at school, particularly in mathematics. The child is also doing well in her language classes. The father was not challenged on his evidence that the child is considerate and compassionate.
I am satisfied that, despite the animosity between the parents and ongoing tension associated with this litigation, the child is a well-rounded individual with many positive traits, as described by the parties and Ms H. The parties are to be commended for this.
The child expressed to Ms H that she has a happy and fulfilling life. As noted by Ms H:
[The child] described a happy and fulfilling life in [the mother’s] care. She said that she and [the mother] "do lots of fun stuff' together, such as "swimming" and "playing". [The child] identified her family as being [the mother], "…" [sic] (maternal grandfather), "[Grandpa]" (maternal grandmother) and her maternal aunts, "[Ms D]" and "[Ms C]". She said that "[Grandpa]" [sic] works in a factory …, which reportedly makes him "smell like bleach, …". She said that "…" is "kind and good", and she reportedly takes very good care of [the child] and helps her to read. "[Grandma]" is also apparently an excellent cook and makes "delicious" [Middle Eastern] food. [The child] said that she shares a bedroom with her mother, and she soon hopes to get a pet dog or a pet rabbit.
The child also expressed her enjoyment with spending time with the father. In that respect, Ms H noted:
[The child] spoke positively of [the father] and she reportedly thoroughly enjoys spending time with him playing at the park, ice-skating, and going to "Wet & Wild". She said that [the father] has an apartment in Suburb R where she has her own bedroom.
The parties and the child are religious. Ms H observed that:
It would appear that there are cultural factors involved in this matter, which have impacted the relationship between the parents.
As I will discuss, I accept that to be the case.
In the USA, the child did not attend daycare or preschool. It was common ground, however, that over the summer, the child participated in a youth camp run. The evidence of the father, in that respect, was as follows:
… [the child] spent summers at a youth camp in [State J] that I am also involved in running. [The mother] also helped out and worked at these summer camps (June to August each year). The summer camps run for nearly the entirety of the Summer in the United States. The camp is located at [State J], USA. [The child] would socialise and play with other campers and would go swimming, go on nature walks, with me, and other children in attendance at the camps.
Religious views
The mother has expressed the view that the father and the paternal grandmother are more conservative than her in their religious beliefs. To substantiate that contention, the mother refers to paragraphs 121 to 123 of the father’s Affidavit, as set out below, where he sets out his understanding of theology in respect to the issues of divorce and child custody. I will subsequently discuss that evidence in greater detail.
In respect to the views of the paternal grandmother, the mother refers to an event that occurred at a camp that the parties, the child and the paternal grandmother attended in August 2013. The incident was described by the mother, as follows:
I recall, in or about August 2013, I was briefly bidding a friend farewell, the paternal grandmother started yelling very loudly at me in front of other campers at the camp “[Ms Hijaz]! Where are you? We need to finish all the work!” When I express my disappointment following this incident, she replied with words to the effect, “when I speak to people I do not talk about vain things, I only talk about [God]”.
In cross examination, the paternal grandmother stated that she did not recall the mother farewelling her friend Ms M at the camp event and further stated that she did not recall the mother objecting to being interrupted in her discussion with Ms M. The paternal grandmother did, however, appear to agree with the mother’s contention that she said to the mother: “When I speak to people I do not talk about vain things, I only talk about [God]”.
The evidence of the paternal grandmother was generally unsatisfactory. During the course of the proceedings, an issue arose as to the accuracy of a statement that she made at paragraph 13 of her Affidavit in response to an assertion by the mother that she had given away personal items of the mother. The paternal grandmother’s responses to questions put to her by the mother in cross-examination concerning the consistency between her oral and written evidence in respect to that issue were as follows:
Question: Have you read that affidavit?
Answer: Yes.
Question: You see, you say there at paragraph 13: “I gifted much of these items, which included face creams, cleansers and the like, to friends and community members”. Did you read that?---
Answer: No.
Question: ---before you signed it?
Answer: Maybe I – no. I – I did not say. Maybe they made this story, not me. I did not say this.
Question: Well, no. I asked you, did you read that?
Answer: Yes, but it’s not true.
Question: Well, why did you sign it if it wasn’t true?
Answer: Yes. Because I sign it, maybe, I don’t know, but it’s not true.
As a result of my concerns regarding the inconsistency of the paternal grandmother’s oral and written evidence, I requested that Counsel for the father obtain instructions as to whether the Affidavit had been read by the paternal grandmother and if it was not read by her, whether someone read it to her. After a brief adjournment, Counsel responded:
Well, your Honour, my instructions are, in relation to it, we’re trying to get hold of the associate at the firm who actually drafted the document, but she did it upon instructions. She spoke to the grandmother on the phone, drafted it on instructions from her. When the grandmother saw it, she read it and then signed.
In cross examination, the paternal grandmother was asked by the mother whether she could recall an incident where the mother fell down some stairs at the paternal grandmother’s home in the USA. The date of that incident was not identified, however, the paternal grandmother said: “Yes, I remember. You fainted”. The paternal grandmother denied “yelling” at the mother for disturbing her prayers when she fell down the stairs, but acknowledged that she “didn’t want the commotion in the house while [she was] praying”.
During the mother’s cross examination of the paternal grandmother, the following exchange occurred in respect to the incident:
Question: Is it true that you came out of the room and you were yelling at me that I disturbed you from your prayers? Can you confirm that?
Answer: I said in my prayers, I don’t want anybody to disturb. I was in the room praying. I broke my prayer.
Question: Okay. So yes, is that right? Is that a yes?
Answer: It’s more important, my prayers, yes.
The mother and the father are of the same religion and both adhere to the same school of thought. Nevertheless, I accept that the father and paternal grandmother place a different emphasis on aspects of religious law, as compared to the mother.
I concur with the statement of Ms H, as follows:
It seems important that [the mother] and [the father] find a way, without compromising their own beliefs, to pass their values and beliefs onto [the child] without giving her the impression that one interpretation of [their religion] is more 'correct' than the other.
Expressed in the reverse, Ms H stated:
At the end of the day, there will be significant gains to [the child] if they are able to focus on the similarities between their beliefs and minimise their conflict concerning their religion.
Association with the culture of the USA
While stating that, in her view, the culture of the USA “is not that much different from Australian culture” during cross-examination, the mother agreed with Counsel for the father that it is important for the child to have an “understanding of her American culture”.
The evidence presented by the father does not, however, satisfy me that the child was, in fact, exposed to the broader culture of the USA when she resided there.
In that respect, at paragraph 15 of his Affidavit, the father stated:
Prior to the mother's unilateral retention of [the child] in Australia, she socialised and was well loved in our community in [State J]. There were a number of little girls her age who also attended [O School] [N] was a very close friend of [the child]. [N] resided and continues to reside with her family in the same neighbourhood in [State J]. The father of [N] is the assistant director of [O School] and is a family friend who would bring her over to our house to play with [the child] and we would do the same. Amongst her other friends are [P] and [Q] who also reside in the same neighbourhood in [State J]. They would also play with [the child] at camp and attend [O School]. [The child] would have attended school with [N] and [P], had she not been restrained by her mother in Sydney.
That evidence suggests that the child’s experiences in the USA, when spending time with the father, would primarily be associated with what the father described as the “[religious] community”.
That is not to say, of course, that the culture of the religious community in the USA is not part of the culture of the USA. However, there are aspects of the culture that the child experienced in the USA that may not be consistent with the practices of the broader community. In that respect, Counsel for the father suggested to the mother that an aspect of the culture in the USA is for children to attend camp during the summer holidays. The mother agreed with that proposition, but stated that the child has also attended camps in Australia.
I have earlier referred to the evidence of the father that the child would attend camps organised by O School. The child engaged in activities at those camps that gave her the opportunity to experience certain aspects of the environment and culture of the USA. However, other aspects of those camps did not appear to reflect the broader culture of the USA. In that respect, in cross examination, the paternal grandmother acknowledged that when she attended one of those camps, she dissuaded the mother from playing the piano, telling the mother that “it is not good” to play the piano. In explaining why she proffered that advice to the mother, the paternal grandmother stated “in our culture we don’t play piano” and “we don’t believe in the piano”.
Accordingly, while it is necessary to consider the benefit to the child of travelling to the USA in order to retain an association with the culture of that country, it is relevant that the child would primarily be exposed to the religious community aspect of that culture. The child and her maternal family are also involved in the religious community in Australia.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
That consideration is not a relevant in this matter.
Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
In her Affidavit, the mother challenged whether the father had taken the opportunity to spend as much time with the child as he reasonably could have. In that respect, the mother asserts that, between March 2015 and September 2015, a period of approximately six months, the father did not attempt to contact her or the child. In cross examination, however, the mother acknowledges that at that time, she was herself cautious about facilitating the child’s contact with the father and while she did not prevent the child from speaking with the father, she did not facilitate contact occurring.
The mother further contends that, in the period between consent orders being made on 15 September 2016 and 22 January 2018 (the date that she swore her Affidavit), the father missed 43 of 72 scheduled visits with the child (Annexure “N” to the mother’s Affidavit). The mother was not challenged on her evidence that during the six-week summer school holiday period between December 2017 and January 2018, the child did not spend time with the father.
The father, on the other hand, asserts that, consistent with his business and personal commitments, he has taken every opportunity that has been reasonably available to him to travel to Australia and to spend time with child.
The mother agrees that, in the period subsequent to her and the child arriving in Australia in September 2013, until the date of the hearing, being some four and a half years, the father has travelled to Australia to visit the child on 13 separate occasions.
Despite the mother’s concerns, I agree with the opinion expressed by Ms H that “to [the father’s] credit, he has travelled a significant distance at considerable expense to see [the child]”.
I also note that the father has incurred the expense of renting an apartment in the suburb of Suburb R in Sydney to ensure that the child has a familiar place to stay when she spends time with him. I further note that the father has acquired a motor vehicle to use when he is in Sydney to assist in collecting the child and taking her for outings.
Prior to the mother travelling to Australia with the child in 2013, I am satisfied that the parents made joint decisions in respect to major long-term issues in relation to the child. In respect to the period of time since that relocation, the mother has predominantly made decisions regarding major long-term issues impacting upon the child, including the place of her education, her engagement in extracurricular activities and decisions relating to her health. This has necessarily been the case, as the mother has been the child’s primary carer. I am satisfied that, if the opportunity had been available to him, the father would have participated in making those decisions.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The mother was not challenged on her evidence that the father currently pays child support of $318.92 per month (Annexure “U” to her Affidavit). The Child Support Assessment Notice attached to the mother’s Affidavit indicates that the amount of child support being paid by the father has been assessed on an adjusted taxable income received by him of $48,308.
The mother expressed concerns that the amount of child support being paid by the father does not accurately represent the income that he is actually receiving. This has some substance, in the context of the father stating that he pays $36,000 per year to rent his apartment in Suburb R. That fact suggests that the father’s income is actually higher than has been assessed by the Child Support Agency.
The mother acknowledges that on 16 September 2017, the father transferred the sum of $1,000 into the child’s bank account. Other than that contribution and the child support paid by the father, the mother meets all expenses for the child. Those expenses include meeting the child’s daily living expenses and expenses in respect to the following specific matters:
a)Swimming lessons at approximately $640 per year;
b)Language school at approximately $1,360 per year;
c)Scouts at approximately $160 per year;
d)Gymnastics at approximately $340 per year;
e)School band fees at approximately $600 per year;
f)Dance fees at approximately $400 per year; and
g)Dental expenses at approximately $650 per year.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
The mother was not challenged on her evidence that the child’s daily routine is as follows:
a)The mother prepares the child’s lunch and school uniform;
b)The mother wakes the child up at approximately 7.20 am and gets the child ready for school, sometimes with the assistance of the maternal aunt;
c)The child leaves for school at 8.50 am;
d)The maternal grandmother collects the child from school at approximately 3.00 pm;
e)After having something to eat and a period to relax, the child commences her homework at approximately 4.00 pm;
f)The mother arrives home at approximately 4.45 pm and assists the child with her homework; and
g)The child usually goes to bed before 9.30 pm.
The mother was also not challenged on her evidence that she is engaged in facilitating the child’s attendance at a number of social and extracurricular activities, including taking the child to and from swimming lessons, Scouts and language school.
Due to the nature of her work, the mother is able to spend time with the child during school holidays. Further, the mother was not challenged on her evidence that she volunteers to assist students at the child’s school and that she participated as a volunteer at a camp attended by the child in June 2017.
Ms H expressed the following view that she had no concerns regarding the mother’s parenting capacity:
There are no concerns raised within this assessment about [the mother’s] capacity to parent. This assessment indicates that she is a capable and committed parent who has done a commendable job raising [the child], as well as balancing her work and personal life. [The mother] has provided stability and prioritised [the child’s] needs, and she and [the child] very clearly have a close and loving relationship.
I accept that the father has been an attentive and loving father to the child. I accept that when the child lived with the father in the USA, consistent with his work commitments, the father assisted with the care of the child, including settling the child to sleep, taking her for walks, taking her to visit family members, reading her stories, bathing her and, once she commenced eating solids, feeding her.
I am also satisfied that as the child became older, the father arranged play dates for the child and that the child attended O School with the father, where he worked and, while there, that the child interacted with other children. I am satisfied that the father encouraged the child to engage in activities at O School including reading, painting and creative play.
The orders proposed by the father would have the child continuing to live with the mother, who would continue to be her primary carer. No concerns have been raised in these proceedings regarding the father’s capacity to adequately provide for the needs of the child when she spends time with him in accordance with the orders proposed by either of the parties. Despite the father’s more limited time with the child, Ms H observed the father to respond appropriately when the child was being somewhat “silly” in his company. In that respect, Ms H stated:
[The child] was observed to be somewhat 'silly' at times, however, when observed with her father. She began throwing and kicking the die from a board game around the room. [The father] was observed to calmly suggest that she refrain from such behaviour, but [the child] resisted and continued throwing and kicking the die.
[The father] then appropriately redirected [the child] and suggested they make a game of catching the die, and [the child] appeared to be satisfied with this suggestion. There was nothing else remarkable noted during the observation.
Counsel for the father stated that the mother had acknowledged that the father is “a good father” and that “he cares for [the child] and they have a close relationship”. I accept that to be the case.
Attitude towards the child and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude of each of the parties towards the child and their parental responsibilities.
The father contends that the mother’s unilateral decision to retain the child in Australia displays a lack of appreciation for the responsibilities of parenthood, on her part. There is substance to that contention.
The mother acknowledges that, in January 2014, she made a decision to enrol the child at E School without consulting the father. The mother stated that she did not consult the father because the parties “were in a high conflict situation at that time”. Nonetheless, the mother’s conduct in selecting the child’s school without consulting the father was contrary to her parental responsibilities.
Both parties alleged that the other party has attempted to emotionally manipulate the child and draw her into the parenting dispute.
In that respect, Ms H noted that when she asked the child how she knew that these proceedings concern, in part, whether she relocated to the USA, the child appeared to be uncomfortable. Ms H described:
[The child] appeared to be extremely uncomfortable and her face became flushed. She pursed her lips, hid her head under the table and almost whispered, "I just know". [The child] commented in a somewhat concerned tone, that [the father] has discussed her potential relocation "just once, but Mum doesn't". She later contradicted this comment and said that [the mother] discussed [the father’s] proposal with her "last night".
Ms H also noted that:
[The child’s] comments in interview, that she would never consider holidaying in America and that her mother informed her, "America's not that good anyway" would also suggest that [the mother] has, at times, perhaps inappropriately attempted to influence [the child].
The mother acknowledged that the night before the interviews with Ms H, she “might have” discussed the father’s proposal with the child. The father’s proposal, at that time, was for the child to relocate to live with him in the USA. The mother acknowledged that discussing the matter with the child was not appropriate. The mother stated, however, that she was not endeavouring to influence the child, but rather, was attempting to explain to the child that during the course of the interview with Ms H, she anticipated that the child and Ms H would “discuss about going to America, things like that”.
The mother also conceded that the child’s negative views of the USA may have been as result of the impression that she has received from her.
The mother denied that she had attempted to coach the child as to what to say before the interviews with Ms H and Ms G, but acknowledged that the child may have heard her discussing matters relevant to these proceedings with her parents.
Having regard to the child’s comments to Ms H, I find that it is likely that both parties have, at times, inappropriately discussed with the child what was, until the commencement of this hearing, a fundamental issue in this case, namely the prospect of her relocating to the USA. As noted by Ms H:
Children’s exposure to this kind of information can be experienced as confusing and hurtful. Children who have been subjected to family violence, conflict and/or weak parenting alliances also often develop strong feelings of anxiety, anger and frustration, which tends to constitute much of their emotional life and cause them great social difficulty. [The child] appears to be cognisant of the friction between her parents, which is most unfortunate.
The mother acknowledges that, on occasions, she has limited the child’s communication with the father, but asserted that it was necessary because the father had frequently discussed these proceedings and possible parenting arrangements, including the child’s return the USA, with the child.
The mother acknowledged the importance of the child having a relationship with the father, however, she also asserts that the child is at risk of being manipulated by the father. In that respect, the mother contends that she was informed by the child that the father became highly distressed, to the point of crying, in an endeavour to persuade the child to sleep over at his residence one evening. The father denied that this occurred. The evidence is not such that I am able to make findings in relation to this issue.
The mother acknowledged that, for some months prior to the father arriving in Australia in March 2016, she had blocked the father from speaking with the child. The mother acknowledged that her actions may have caused the father frustration. The mother’s actions, in that respect, were not consistent with her responsibilities as a parent, which include taking such steps as she reasonably could to foster a meaningful relationship between the child and the father.
The mother further acknowledged that by 5 July 2016, she was aware of a proposal by the father for the child to spend time with him during the course of a visit he had planned to Australia, but that she did not facilitate that occurring. This was also inconsistent with the mother’s parental responsibilities.
The mother further acknowledged that she did not agree to a proposal by the father, communicated through his legal representatives, that the child spend time with the father during the father’s visit to Australia between 30 August 2016 and 23 September 2016. This was also inconsistent mother’s parental responsibilities.
While those aspects of the mother’s conduct, to which I have referred, are inconsistent with her parental responsibilities, as noted by Ms H, the mother has “facilitated [the child] spending time with [the father], at least to the extent where [the child] has maintained a developmentally important relationship with her father”.
During the incident that occurred on 26 March 2016, the father acted in an irresponsible manner in physically restraining the child from returning to the mother. This occurred in circumstances where it was evident that the child was in significant distress. I will discuss that incident in further detail below.
At this point, it is sufficient to note that the conduct of both parties on 26 March 2016 was inconsistent with their responsibility to act in a child focussed manner.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
Section 4AB of the Act defines family violence as:
(1) … 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.
The mother’s allegations of coercive and controlling conduct when she resided in the USA
The mother contends that when she resided with the father at his parent’s home in the USA, she was subjected to coercive and controlling conduct on the part of the father and the father’s mother.
In his interview with Ms H on 1 August 2017, the father acknowledged that his mother has a “strong personality”. This was consistent with my observations of the manner in which the paternal grandmother gave her evidence, by way of telephone, in these proceedings. Specifically, in cross examination by the mother, the paternal grandmother frequently failed to answer the questions asked of her but, instead, made such statements as she saw fit. On one occasion, the paternal grandmother unilaterally adjourned her cross examination. A person who was present with the paternal grandmother, at that time, explained that she did so in order to go to the bathroom.
During the course of the hearing, it was clear that the mother’s primary concerns were in respect of the conduct of the paternal grandmother. Her main concern in respect to the father was that he failed to intervene to protect her from being the subject of controlling and coercive conduct on the part of the paternal grandmother.
Ms H reported that, in her interview with the father, which was undertaken as part of the preparation of the Family Report, the father said that the mother’s “demonising” of the paternal grandmother was misdirected. The father acknowledged, however, that there were some issues of tension between the mother and the paternal grandmother and, in that context, the father stated to Ms H “we all have parents who have opinions”. Ms H commented that the father advised her that he had voiced his opinion to his mother at times, but conceded that “sometimes I’m silent”.
The evidence presented by the mother satisfies me that there was considerable tension between the paternal grandmother and the mother when the mother lived with the child in the USA. I am not, however, satisfied that the conduct of the paternal grandmother amounted to controlling or coercive conduct as contemplated by s 4AB of the Act.
That letter also sought answers to the following questions:
A. When did your client book his flight out of Australia on 12 July 2016?
B. Was there any reason your client made interim proposal that he did, despite flying out of Australia on 12 July 2016?
C. Was your firm aware of your client’s plans to leave Australia on 12 July 2016? If so, why were they not disclosed to our client?
I accept that neither the father, nor the father’s solicitors, responded to those questions.
I accept the mother’s evidence that, at the time of the incident that occurred on 26 March 2016 at F Café, she held a concern that the father intended to take the child from her. The father denied that he had any such intention.
Similarly, I accept that the mother did not agree to the child spending time with the father on 11 July 2016, as she was concerned that the father intended to travel with the child back to the USA. Again, the father has denied having any such intention.
However, the evidence of those two events is not such that I can be reasonably satisfied that the father intended to take the child from the mother and return with her to the USA.
I have earlier referred to the father’s adherence to the views of religious leaders that after the first two years of a child’s life and until the child reaches maturity “the right of custody is the father’s alone”. In terms of risks associated with the father’s religious views, I have also earlier referred to the father’s email to the mother dated 10 April 2015, wherein he stated that he would not grant the mother a divorce “until you give me my daughter which is my God-given right”. [Emphasis added].
However, in cross examination, the father appeared to moderate his position. This is reflected in the following cross-examination of the father by the mother:
Question: Do you still believe that [the child] being under your care is your God given right?
Answer: Yes. I’m her father.
Question: Under your care alone?
Answer: Not alone. I would never allow my child to be raised alone. Never. If the other parent is alive, it’s absurd to say that the child should be raised alone. It’s unhealthy.
While I do not find there to be a probability of the child being retained in the USA, there is, in my view, a possibility of that occurring. In that respect, I note that the father appeared to moderate his views that it is his God-given right to have the custody of the child. However, there was no evidence that the father has ceased to follow the interpretation religious law advanced by the scholars, to which he refers in paragraphs 121 and 122 of his Affidavit, including that “if the mother marries after separating from the father she forfeits her right of custody, and the custody will be the exclusive right of the father”.
I have earlier referred to the strong personality of the paternal grandmother and the father’s reluctance to challenge her in respect to her dealings with the mother. In those circumstances, where the paternal grandmother continues to live with the father, her views are relevant in considering the issue of risk. In that respect, I note the paternal grandmother’s response to the following cross-examination by the mother:
Question: So do you think it’s your son’s God-given right to have full custody of [the child]?
Answer: Yes.
Question: So you believe [the child] should be living with her father, right, in America?
Answer: Yes. Yes.
Question: Do you think that if I remarry, that [the child] should not stay even overnight with me?
Answer: If you remarry, [the child] has to go with her father, yes.
In giving oral evidence, Ms H agreed with the mother that, if it was the case that the paternal grandmother exercised a high degree of control over the father, then “potentially” there might be that risk of the child being retained in the USA.
In this matter, it could not be said that the evidence establishes that the paternal grandmother has a high degree of control over the father. However, I am satisfied that the father shows some deference to the views of his mother. That dynamic is, therefore, an additional matter that I consider in assessing whether there is a risk of the child being retained in the USA.
The consequence to the child of her being retained in the USA
I accept that the child is now happy and well settled in Sydney. If she were to be retained in the USA, she would be removed from her extended maternal family in Australia, with whom she has lived for the past five years, as well as her many school and neighbourhood friends. I am satisfied that this would be very distressing for the child, to the point that it would present a risk of psychological harm.
In that respect, Ms H observed that the child has always lived with the mother and that the mother is considered to be the child’s primary carer. I agree with the observation of Ms H that “a change of resident carer and relocating to State J without her mother would suggest an enormous loss, as her closest and most enduring relationship would be disrupted”.
Ms H also stated that:
If [the child] were to return to [State J], it would be likely that her relationship with her maternal grandparents and maternal aunts, who have been most significant in her life, at least since she relocated to Australia with her mother in 2013, would be compromised. She will also be required to establish new friendships, in a new school, in a now unfamiliar country, which would likely be extremely stressful for her.
While expressed in the context of the father’s application for orders for the child to relocate to the USA, I agree with Ms H that, if it occurred that the child was improperly retained in the USA, that would “likely be extremely distressing and stressful for her and she would be highly susceptible to experiencing significant symptoms of grief and loss”. I further agree with Ms H’s conclusion that an outcome that resulted in the child living in the USA with her father would not be in the child’s best interests.
In giving oral evidence, Ms H described the consequences for the child of being retained in the USA in the following terms:
I think that would be absolutely devastating for [the child]. She has established herself here with her mother and her maternal family with whom she has lived for many years now. Her mother is her primary attachment figure; has been for all of her life. I imagine that would be an enormous loss to her if that occurred, if she was retained.
I am also satisfied that there is a potential physical risk to the child if she were taken to live in the USA. There is no suggestion that either the father or any member of his family would attempt to physically harm the child. However, I note that, when asked what her reaction would be if she was required to relocate to the USA, the child stated that she would be so distressed that she would “run away and hide somewhere so that no one can find me”. In that way, there is a potential physical risk to the child, as a result of her own conduct of running away, if she were to be retained in the USA.
Possible management/mitigation of risk
In the article by the Hon. John Fogarty to which I have referred above, his Honour wrote:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’...
By way of letter dated 29 January 2018 (Exhibit “F-4”), the solicitors for the father wrote to the mother advising that:
When [the child] travels to the USA, during the entirety of the term 2 holidays; and a period over the end of Term 4 holidays, your client travel with [the child] to the USA, and our client will meet half your client’s airfare cost, and half the cost of an air bnb apartment for your client to stay during that period (our client’s half contribution not to exceed $1,000). Your client would therefore have possession of the passport for [the child], thus removing the concern raised by your client in respect of overseas travel.
The mother was questioned as to whether she could retain the child’s passports as a possible safeguard to her concerns that the father would retain the child. While this would limit the ability of the child to be removed from the USA, the mother expressed her concern that her retention of the child passports would not be a safeguard if the father did not want the child to be returned to Australia. I accept that the mother’s retention of the child’s Australian and USA passports would provide a safeguard against the child being removed from the USA, but would not be safeguard against the child being retained in the USA once she had been transported there.
During the course of submissions, I questioned whether supervision of the child’s time with the father by a trusted third party or professional service could be implemented in order to mitigate against any risk of the child being retained in the USA, should she travel there. Counsel for the father submitted that there was no such risk to be addressed, but acknowledged that there was no evidence before the Court as to whether there is such a regime in the USA whereby parties can access the service of contact centres and that neither party had done any research in respect to that issue.
I have previously noted that in an endeavour to provide some comfort to the mother regarding the child being returned from the USA, the father has proposed that he pay a bond of $15,000 prior to any travel undertaken by him with the child outside of Australia.
In determining what amount is appropriate, I have again been guided by the principles set out in Line & Line. In that case, the Full Court cited with approval, at 83,846, the decision of Asche SJ in Kuebler & Kuebler in confirming that the two fold purpose of such a security is:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
I have also had regard to the case of Sukova & Allen [2011] FamCA 340, where Cronin J indicated at [46] that any security imposed by the Court needed to strike a balance between providing sufficient comfort to the non-travelling parent but, at the same time, not be so high that it would make travel prohibitive.
On the facts before it, which involved proposed travel to the USA, the Full Court in Line & Line decided that a security of $20,000 was appropriate. It is to be noted that that case was decided more than 20 years ago.
Having regard to transportation and accommodation costs, as well as potential legal fees that the mother would incur in the event of it being necessary to commence an action pursuant to the provisions of the Hague Convention, I am not satisfied that the bond of $15,000 proposed by the father is adequate to mitigate against the risk of the child being retained in the USA.
Having regard to the requirement of “balance”, to which I have earlier referred, it is my opinion that the benefit of the child travelling to the USA in order to spend time with the father and the paternal family, together with retaining an association to the culture of the USA, does not justify taking the risk of her being retained in the USA. In weighing that balance, I have noted that the evidence does not satisfy me that the paternal grandparents or other members of the paternal family, for that matter, could not travel to Australia to visit the child.
Equal time or substantial and significant time
As previously noted, as I have determined that it is appropriate for there to be an order for the parties to have equal shared parental responsibility, it is necessary to consider whether orders should be made for the child to have equal time or substantial and significant time with both parents.
Section 65DAA(5) of the Act provides that, in determining whether it is reasonably practicable for a child to spend equal or substantial and significant time with each of their parents, the Court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Equal time
The fact that the father resides in the USA and the mother and the child reside in Australia creates a situation where it is not reasonably practicable for there to be an order for the child to spend equal time with both parents.
An issue does arise as to whether such an order should be made, however, during those times that the father is physically in Australia.
I note and agree with the opinion of Ms H that:
Equal time arrangements typically require parents to possess the capacity to communicate, negotiate and compromise at the optimum level. [The mother] and [the father] do not appear to have this capacity.
For reasons set out in my discussion regarding the presumption of equal shared parental responsibility, I retain reservations regarding the parties’ capacity to communicate in a non-conflictual and respectful way. Accordingly, having regard to those findings, in the context of applying the consideration set out in s 65DAA(5)(c) of the Act, it would not, in my opinion, be appropriate to make an order for the child to spend equal time with both parents.
Substantial and significant time
Section 65DAA(3) of the Act sets out the parameters for what constitutes substantial and significant time, as follows:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the period since consent orders were made in September 2016, the child has lived with the mother and spent substantial and significant time with the father on those occasions when the father has been in Australia. In the Family Report, Ms H recommended that the child “spend meaningful and significant time” with the father. This was not disputed by the mother, although, the parties differ as to what that amount of time should be.
In considering s 65DAA(5)(a) of the Act, in this matter it is necessarily the case that an order for the child to spend substantial and significant time with the father is impacted by the fact that the father resides in the USA. Nevertheless, such an arrangement is reasonably practicable during those times that the father is in Australia.
In considering s 65DAA(5)(b) of the Act, I note that, in the period subsequent to consent orders being made in September 2016, the father has been able to travel to Australia to spend time with the child and the parties have substantially cooperated in facilitating that time.
In considering s 65DAA(5)(c) of the Act, I have earlier referred to my concerns regarding the level of conflict between the parties and I have made observations in terms of the disrespectful nature of the communication between the parties. However, despite those concerns, I note that the parties have been reasonably cooperative in reaching agreement in respect to parenting arrangements, at least in the period since September 2016.
In determining the amount of time that the child should spend with the father, the major consideration is that identified in s 65DAA(5)(d) of the Act, which concerns the impact of such an arrangement on the child. Both parties are in agreement that the child is academically gifted and is doing well at school. The parties also agreed that it is appropriate for the child to continue with Arabic studies and for her to continue to be involved in her current extra-curricular activities. It is important that parenting arrangements do not adversely impact upon the child’s routine and ability to focus on her studies and other activities.
The father is to be commended for acquiring rental accommodation in Sydney which provides a stable base for the child when she spends time with him and for acquiring a motor vehicle to enable him to transport the child to and from school and her extra-curricular activities.
The orders proposed by the father in respect to the amount of time that he spends with the child during the school term are, as follows:
8. …
(e) In the event the father travels to Australia during the school term, then the child will spend additional time with the father as agreed and in the absence of agreement, the child spend time with the father for a period of up to half the period the father is in the Australia by agreement and absent agreement as follows:
i. Friday after school (or 3pm if a non-school day) to 6pm Sunday each weekend;
ii. Monday and Wednesday each week from after school (or 3pm if a non-school day) to the commencement of school the next day (or 9am if a non-school day).
The father’s proposal would result in the child spending four out of seven nights per week and almost the entirety of each weekend with him. It is to be recognised that those orders have been proposed in the context of the father being limited in the amount of time that he can spend in Australia, as result of him living in the USA. Nevertheless, there may well be periods where the father can spend lengthy amounts of time in Australia. In those circumstances, there may be significant periods of time when the child does not spend weekend time with the mother. This would be inconsistent with s 65DAA(3)(a)(i) of the Act.
Accordingly, I propose making orders for the child to spend time with the father during non-school holiday periods in accordance with those orders proposed by the father, save insofar as the weekend time that the child spends with the father will occur on alternate weekends. The mid-week time that the child spends with the father will be in accordance with the father’s proposed orders. This will result in the child spending six out of 14 nights per fortnight during the school term with the father, which constitutes substantial and significant time.
The father proposed that the child spend block periods of time with him during school holidays. That application is made in the context of the father seeking orders for the child to travel to the USA to spend time with himself and his family on two occasions each year.
As I will not be making an order requiring the child to travel to the USA, there is not the need for such lengthy periods of block time to facilitate overseas travel. In those circumstances, I propose making orders for the child to spend equal time with both parents during school holidays. That time will be arranged as agreed between the parents and in the absence of agreement, on the basis of a week about arrangement.
Conclusion
For the reasons that I have set out, I propose to make orders for the child to live with the mother in Australia and to spend time with the father when he is in Australia on alternate weekends and each Monday and Wednesday night. Further, I make orders for the child to spend equal time with the parties during school holidays.
As explained above, if the child were to be retained in the USA, it would have significant adverse consequences for her. I am of the view that requiring the child to travel to the USA to spend time with the father and the paternal family presents an unacceptable risk. In that regard, I have been unable to identify steps that would adequately ameliorate against the taking of that risk.
That finding has been made in the context where I am not satisfied that the child’s paternal grandparents and other members of the paternal family are incapable of travelling to Australia to spend time with the child.
There was some agreement between the parties in respect to ancillary orders relating to facilitating communication and other matters identified in the orders set out at the commencement of these reasons for judgment. Where there is no agreement between the parties in relation to certain ancillary orders, particularly in circumstances where the father is living overseas and will not be spending regular time with the child, I have preferred those ancillary orders as proposed by the father.
Further, as a result of the issue of risk that I have identified I will make an order, as sought by the mother, that the child remain on the airport watch list until she attains the age of 18 years.
I certify that the preceding two-hundred and ninety-nine (299) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 August 2018.
Associate:
Date: 17 August 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction