RAYNE & ZAHAWI

[2015] FamCA 1003

FAMILY COURT OF AUSTRALIA

RAYNE & ZAHAWI [2015] FamCA 1003

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the father seeks to relocate the children to Country F – Where the father has already relocated and the children currently remain in Australia in the care of the father’s wife along with her own two children – Where the mother opposes the application and seeks equal shared parental responsibility for the children – Consideration of s 60CC – Where the children have lived in the primary care of the father for over three years now – Where the Court finds the presumption of equal shared parental responsibility is rebutted – Where the Court finds the father is unlikely to facilitate the children’s relationship with the mother if relocation is permitted – Orders made for the children to remain in Australia – Father to have sole parental responsibility for the children – Mother to spend time with and communicate with the children.   

Family Law Act 1975 (Cth) – ss 60B, 60CC, 61DA, 65DAA

MRR v GR  (2010) 240 CLR 461
Taylor & Barker (2008) Fam LR 461

APPLICANT: Ms Rayne

RESPONDENT: Mr Zahawi

INDEPENDENT CHILDREN’S LAWYER: Ebejer & Associates Lawyers

FILE NUMBER: MLC 8142 of 2012

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 9-10 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McClosky
SOLICITOR FOR THE APPLICANT:	Allan McMonnies

COUNSEL FOR THE RESPONDENT: Mr Paterson

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ebejer & Associates Lawyers

Orders

1. That all existing orders in relation to the children:

   ·B born on … 2008; and

   ·C born on … 2011

   (“the children”) are discharged.

2. That the father have sole parental responsibility for the children.

3. That the children live with the father noting that they will live with

   
   

   Ms D until the father returns from Country F to Melbourne.

4. That the father is restrained from relocating the children’s residence from Melbourne without the written consent of the mother or an order of the court.

5. That the children spend time and communicate with the mother as follows:

   (a)For four weeks following the date of these orders for five hours each Saturday and Sunday;

   (b)For the next four weeks from 2.00 pm on Saturday until 10.00 am on Sunday each alternate weekend and each Wednesday from the conclusion of school until 7.00 pm;

   (c)Thereafter and until the commencement of the 2016 school year, from the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and each Wednesday from the conclusion of school or 3.00 pm until 7.00 pm;

   (d)From the commencement of the 2016 school year:

   (i)From the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and from the conclusion of school on Wednesday until the commencement of school on Thursday in every other week;

   (ii)For one half of the terms 1, 2 and 3 school holidays as agreed between the parties or being the first half in default of agreement; and

   (iii)For one half of the Christmas school holidays commencing in 2016/2017 as agreed between the parties or being each alternate week in default of agreement.

   (e)       By Skype and/or telephone on at least one occasion per week.

6. That each of the parties inform the other as soon as is practicable of any significant illness or injury suffered by the children while in his or her care.

7. That the father provide all necessary consents and authorities to enable the mother:

   (a)       To consult with the children’s treating health professionals; and

   (b)To consult with staff at the children’s schools or child care centre and receive copies of reports, newsletters, photographs and any other information which is normally available to parents.

8. That both parties are at liberty to attend all functions and events to which parents are normally invited at the children’s school.

9. That the mother is at liberty to attend all events associated with the children’s extracurricular activities, including but not limited to martial arts classes.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8142 of 2012

Ms Rayne

Applicant

And

Mr Zahawi

Respondent

And

Independent Children’s Lawyer

Ebejer & Associates Lawyers

REASONS FOR JUDGMENT

The proceedings

1. Ms Rayne (“the mother”) and Mr Zahawi (“the father”) are the parents of two sons:

   ·B born in 2008 (aged 7); and

   ·C born in 2011 (aged 4).

   These proceedings concerning parenting issues, which include the father’s proposal that the children to relocate with him and his current wife to Country F.  The father in fact moved to Country F on 18 August 2015, leaving the children in the care of his wife Ms D.

2. The applicant father sought orders to the effect that the children live with him in Country F and, pending relocation, spend time with the mother on Saturday and Sunday of each alternate weekend.  Following relocation, the children would spend time with the mother in Australia for two weeks in July and one week in December each year.  In the event that the mother travels to Country F the children would spend time with her on two occasions, each of one week’s duration, in every year.  The father proposed that the children communicate with the mother by Skype, Facetime and telephone three times per week.

3. In the event that the children are not permitted to relocate to Country F the father proposed that the children live with his wife, Ms D, until he is able to return to Australia.  They would spend time with the mother each Sunday from 11.00 am until 2.00 pm for one month, then from 10.00 am until 6.00 pm for two months and thereafter from 10.00 am on Saturday until 6.00 pm on Sunday.  The father proposed that the children spend time with the mother during school holidays on a graduated basis, leading to one full week in each such period.

4. The mother and the Independent Children’s Lawyer (“the ICL”) opposed the father’s application for relocation of the children.  The ICL proposed that the children live with the father in Melbourne and spend time with the mother on a gradually increasing basis.  On the proposal of the ICL, the children would ultimately spend time with the mother each alternate weekend from Friday afternoon until Sunday evening and every other Wednesday night.  The ICL proposed that the children spend half of all short school holidays with the mother, commencing in term 1 2016, and half of the Christmas vacation from 2016/2017.  The ICL sought an order that the father have sole parental responsibility for the children.

5. Counsel for the mother submitted a Minute which suggested that she sought interim orders only at this stage.  This document contained a proposed order “that after six months a Family Report be prepared and the matter listed to consider the mother’s application that the children live with her.”  The mother proposed that “parental responsibility be shared between the parties with respect to medical and educational decisions”.  This Minute adopted substantially the proposals of the ICL, presumably on the basis that these arrangements subsist until a Family Report is prepared and her application for residence is afforded further consideration.

6. I will not accede to the mother’s application that interim orders only be made and that effectively, the proceedings be adjourned part-heard to enable the preparation of a further Family Report.  In my view, the children need certainty in their living arrangements.  As appears below, they have been subjected to significant changes and disruptions already in the course of their young lives.

Background

1. The mother was born in 1979 in Country E and is currently 36 years of age.  The father was born in 1981 in Country F and is presently aged 34 years.  Both parties are of the Islamic faith and of Indian background.

2. The mother and father came to Australia independently for the purpose of tertiary studies.  The mother arrived in this country in 2000 and completed a degree in architecture.  The father commenced post-graduate studies in Australia in 2003 and is a software engineer by occupation.

3. The father became a permanent resident of Australia in 2003 and gained citizenship in 2007.  The mother, who is a citizen of Country E, acquired permanent residence status upon the marriage of the parties. 

4. Following the marriage the parties lived in Melbourne until 2008, when the father took up a contract position in Sydney.  In 2009 the family moved to Country F for the purposes of the father’s employment.  They returned to Melbourne after living in Country F for approximately 18 months.

5. The mother and father separated on 15 August 2012.

6. In August 2012 the mother travelled to Country E alone and remained in that country until September 2013.  When the mother left Australia, B and C were aged four years and sixteen months respectively.

7. Communication between the mother and the children was very limited while she was in Country E.  The parties blamed each other for this regrettable situation.  The father alleged that the mother declined his offers to speak to the children by Skype and she claimed that he refused to facilitate the necessary arrangements.  Whatever the cause, the result was a significant and damaging interruption to the children’s relationship with the mother.

8. After the mother’s return from Country E in September 2013, the children continued to have contact with her on a very limited basis.  Until the weekend following the trial, the father refused to allow any unsupervised time.  On 10 September 2015 I ordered, by consent, that the children spend unsupervised time with the mother from 1.00 pm until 4.00 pm on 12 and 13 September 2015.  This arrangement was suggested by the ICL and I gave a strong indication that I proposed to make such orders, before the father proffered his consent.

9. Each of the parties levelled allegations of family violence against the other.  The mother maintained that the father subjected her to controlling behaviour and physical, sexual and psychological abuse.  The father contended that the mother directed verbal, physical and psychological abuse at him and subjected B to physical chastisement.  The father suggested that the mother suffers from a mental illness, a belief which he maintained despite the expert opinion of a psychiatrist, Dr G.  I refer to the evidence of Dr G below in these reasons.

10. On 6 September 2012 the father commenced parenting proceedings in the Federal Circuit Court.  In the mother’s absence, final orders were made on 23 January 2013.  These orders provided that the father have sole parental responsibility and that the children spend time with the mother as agreed between the parties.  The mother maintained that she instructed a solicitor before she went to Country E and expected that she would be represented in the Australian proceedings.

11. It seems that the mother initiated proceedings in a Sharia court in Country E.  There was little evidence in relation to those proceedings but the mother said that no orders were made in relation to the children.  The father travelled to Country E in December 2012 and the parties undertook mediation over the course of approximately one week.  During mediation they discussed the possibility of reconciliation.

12. On 26 March 2014 the mother filed an Initiating Application, by which she sought orders for equal shared parental responsibility and that the names of the children be placed on the Airport Watchlist.  She also sought leave to file an Amended Initiating Application, in which she would particularise her proposed parenting arrangements in due course.

13. On 15 April 2014 orders were made which caused the names of the children to be placed on the Watchlist.  On 13 June 2014 an ICL was appointed and orders were made that the children spend time with the mother for three hours each Sunday on a supervised basis.  These orders provided that the children communicate with the mother by Skype as agreed between the parties.

14. It would appear that the mother has encountered difficulties in arranging for appropriate supervisors.  In her oral evidence the mother said words to the effect:

    Since April 2015 I have not organised a supervisor.  I have asked many people – two sheiks, my brother, a friend, two babysitters, a bunch of Muslim girls.  I even offered them $50.  My friend who has just returned from [Country E], she supervised last week.

15. On 25 June 2015 the father filed an Application in a Case by which he sought orders which would permit him to relocate with the children to Country F.  As noted the father in fact moved to Country F alone on 18 August 2015, having accepted a job as a software engineering manager in July 2015.

16. In November 2014 the father was made redundant from his employment with H University.  He deposed that he made over twenty-five unsuccessful job applications in Australia before he accepted the position in Country F.

17. The father married Ms D in 2013.  They met on a dating website in February 2013.  Ms D and her two children spent ten days in Melbourne with the father and his family in March 2013.  Ms D’s children J and K are aged seven and four years respectively.  They lived with the father and Ms D in Melbourne until he moved to Country F in August 2015.

18. Ms D is a British citizen of Indian Muslim background.  Her family and the father of J and K live in the United Kingdom.  She worked as an academic in the United Kingdom before she moved to Australia.

19. The parties have taken out a series of intervention orders against each other.  It appears that the most recent orders were made on a mutual basis and expired on 21 September 2015.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and several “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents
   (para (b)).  In such a circumstance the Court is obliged to:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9]Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   …

   [13]Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   [15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in
   s 61DA(1) is not determinative of the questions arising under
   s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

1. In Taylor & Barker (2008) 37 FamLR 461 the Full Court (per Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:

   (i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:

   U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224 applied.

   (ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, such a proposal now also needs to be considered in the context of s 65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

   ….

   (v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s 65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.

   (vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

   Goode & Goode (2006) FLC 93-286 applied.

The evidence and witnesses

1. The applicant mother was the only witness in her case.  She was

   
   

   cross-examined by counsel for the father and the ICL.

2. The respondent father relied upon the following affidavits:

   a)Mr Zahawi (the father) affirmed 17 August 2015;

   b)Ms D (the father’s wife) affirmed 22 July 2015; and

   c)Ms L (psychologist for B) affirmed 21 August 2015.

   Only the father was required for cross-examination by counsel for the mother and the ICL.

3. I had the benefit of two Family Reports prepared by Ms M.  Ms M gave helpful evidence by way of her reports dated 23 June 2015 and 2 September 2015 and in response to questions put in cross-examination by counsel for all three parties.

Section 60CC Considerations

Primary Considerations

1. As noted, each of the parties levelled allegations of family violence against the other.  The father alleged further that the mother subjected B to physical chastisement.

2. In her oral evidence the mother said that she told a general medical practitioner that she “had been abused” by the father.  A letter dated 9 August 2012

   
   

   (Exhibit “2”) from Dr N to Dr O read as follows:

   Thank you for seeing this 32 years y/o, Female, who consulted me today.
   She has been under stress for some time with marital problems.
   Long history of problems with her husband
   and informs that he had been abusing her, verbally, Physically and psychologically.
   has been under mental health team in the past for the same problem.
   For your assessment and management please

1. In cross-examination the father was taken to a letter which he wrote to the mother on an unknown date (Exhibit “3”).  He stated, inter alia:  “I am deeply ashamed of my behaviour the last few days.  I had an act attack.”  The father said of this letter:  “I have not explicitly said I am apologising.  I said I was deeply ashamed and said I had an act attack.  That refers to a course we did.”

2. In cross-examination the mother described a volatile relationship between the parties.  She said:

   My relationship with [Mr Zahawi] was problematic from the beginning, a couple of months after the marriage.  There were heated arguments, I raised my voice at him and [B] saw that once.

3. The contents of Exhibit “2” indicate that the mother complained of “abuse” at the hands of the father in 2012.  This document does not establish the truth of the mother’s allegations but does show that she made complaints to an independent person.  Similarly, the father’s letter (Exhibit “3”) establishes that he regretted certain of his actions at some point in the parties’ relationship.

4. It seems to me that the relationship between the parties was volatile in nature from its inception.  There has been very little face-to-face contact between them, however, since their separation.

5. In terms of the primary consideration set out in section 60CC(2)(b), I consider that the real issue is whether there is any present need to protect the children from abuse, neglect or family violence in the care of either party.  The orders proposed by the father, and his consent to the children spending unsupervised time with the mother on the weekend of 12 and 13 September 2015, would suggest that he has no genuine concerns as to their safety and wellbeing in her care.  Nothing in the evidence gave any indication of a need to protect the children from abuse, neglect or family violence in the care of the father and/or Ms D.

6. The Family Consultant concluded that there is no present need to protect the children from a risk of harm in the unsupervised care of the mother.  In her second report she wrote:

   74.No significant concerns for the children in either parent’s care were identified.  There being no reports the children have been unsafe when with [Ms Rayne] or [Mr Zahawi] in the last few years.

7. For these reasons, I am satisfied that there is no need to protect the children from abuse, neglect or family violence in the care of either party.  The other primary consideration is “the benefit to the child[ren] of having a meaningful relationship with both of the child[ren]’s parents.”

8. As noted above, the children have spent very limited time with the mother since she returned to Australia in September 2013.  They had little or no

   
   

   face-to-face contact with her between August 2012 and September 2013, while she lived in Country E.

9. In these circumstances, it is unsurprising that the Family Consultant assessed that the children have a much more secure relationship with the father than is the case with the mother.  She offered these opinions in her second report:

   69.Both [B] and [C] described a relationship with their father that was stable and secure.  …  Given [Mr Zahawi] has been the children’s ongoing parental figure who is actively engaged with the children it is not considered to be in the best interests of this relationship to be disrupted unless it is replaced by a parent who is able to provide a similarly secure and consistent relationship.

   70.[B] and [C’s] relationship with their mother impressed as being important to the children and they had been able to retain an understanding of her as their mother and expressed a wish to continue to spend time with her.  [B] and [C] impressed as able to manage the frequent and extended periods of absence of [Ms Rayne] from their lives and to sustain their interest and engagement in a relationship with her primarily via Skype interactions.

   …

   72.Of further concern is the lack of experience [Ms Rayne] has in responding to the children whether they are anxious or under stress. …

   73.Given the significant impact to any young child experiencing a loss of their secure parental relationship, it is essential that they are able to engage with an adult they experience as understanding of their emotions and able to respond to their resultant behaviour.  It is unlikely the children have the experience of [Ms Rayne] in this capacity given their familiarity of her role as an important, yet absent parent.

10. When the Family Consultant prepared her first report, the father was contemplating a move from Melbourne to Sydney in pursuit of employment.  The Family Consultant opined:

    65.… It is in the children’s best interest that they remain in Melbourne for at least the next two years to enable them to continue to strengthen their relationship with their mother.

11. In her second report the Family Consultant opined:

    75.It is important the children’s relationship with their mother be enhanced by time spent in her care.  There is no information to indicate the children are at significant risk in her care and as they grow older they are increasingly able to tolerate more time away from their father.  As such it is recommended that should Mr Zahawi remain in Australia the children spend regular and frequent unsupervised time with their mother on alternate weekends and during the school holidays.

12. The Family Consultant considered that the children have “an important connection” with the mother.  I accept readily her recommendation that the children’s relationship with her should be continued and strengthened by regular face-to-face interaction.  In my view, the development of the children’s relationship with the mother is a significant consideration in the outcome of these proceedings.

Additional Considerations

1. As the children are aged only seven and four, their views as to prospective living arrangements would carry no significant weight.  A seven year old, and to an even lesser extent a child aged four, could not begin to comprehend the complexities and implications for them of the proposed international relocation.

2. The Family Consultant reported that both children told her that they wished to live with the father rather than the mother.  She reported further that both children expressed a wish to continue to spend time with the mother.  These comments suggest that the children feel comfortable with parenting arrangements as were in existence until the father’s departure for Country F.

3. Unsurprisingly, the Family Consultant assessed that the children’s “primary relationship” is with the father.  She reported that “the children in interview identified their father, Ms D and her children as their immediate family group.”

4. The Family Consultant assessed that the children have a comfortable and secure relationship with Ms D.  In her second report she opined:

   74.… The children appear secure and confident in the care of [Ms D] and they impressed as having achieved stability in her care which has aided them in their growth and development.  [B] and [C] have settled into a blended family of four children and having developed significant relationships with [J] and [K]…

5. The proposed relocation to Country F would carry very substantial ramifications for the children.  Significantly, they would be deprived of the best opportunity to develop a strong parental relationship with the mother.  It would be impossible for them to spend regular face-to-face time with her, as was considered very important by the Family Consultant.

6. A complicating factor in the father’s relocation proposal is that the mother was adamant that she will not travel to Country F.  She deposed:

   I would not feel safe living in Country F in light of how I was previously treated there by the father and his family members.  I do not believe [Country F] affords sufficient protection to women who are abused by men.  In this jurisdiction such abuse is taken seriously with protection available to victims of violence …

7. The mother described an alleged incident between the parties in Country F when she was “physically assaulted” by the father.  At the time the mother was pregnant with the parties’ child C.  She deposed:

   I reported the incident to police in [Country F].  I called the police on the telephone.  I found it difficult to communicate with them owing to not speaking [the language].  The police laughed at me.  They asked that I pass the phone to the father.  The father was laughing on the phone with the officer and I could hear laughing on the other side of the phone.  The police offered no help and did not attend at our home …

   The father conceded in cross-examination that he may have “giggled” with the police while he spoke to them on this occasion.

8. I am satisfied that the mother is most reluctant to spend time in Country F as a single woman.  She drew a distinction between that situation and her position as a married woman when the parties lived together in Country F.  I accept that the mother would feel uncomfortable and unsafe as a single woman in Country F, to an extent which means that she would not travel to that country even if the children live there with the father.

9. As noted, Dr G carried out a psychiatric assessment of each of the parents.  In relation to the mother Dr G assessed:

   At interview [Ms Rayne] presented as a modestly dressed 35 year old woman wearing a headscarf.  She was softly spoken, articulate and showed no evidence of anxiety or lower mood at interview.  There was no evidence of paranoia or an underlying psychotic illness as implied by [Mr Zahawi].

   On the basis of this assessment I could find no evidence that [Ms Rayne] is suffering from any acute psychiatric illness and certainly not one that would compromise her ability to care for her children.

10. In respect of the father, Dr G concluded as follows:

    [Mr Zahawi] presented as a neatly dressed, articulate 33 year old man of Indian origin.  His responses during the interview appeared to be very controlled and measured, however he showed no sign of mood or anxiety disturbance.  He attributed the difficulties he had experienced almost entirely to his relationship with [Ms Rayne] and her volatile, emotional nature.  There was no indication at interview that [Mr Zahawi] has any underlying psychiatric illness that would significantly compromise his capacity to parent his children.

11. The father refused to accept Dr G’s opinions in relation to the mother, although his counsel did not challenge this evidence by way of

    
    

    cross-examination.  During cross-examination the father said:

    I have serious concerns that she is mentally ill.  I have my doubts about [Dr G’s] opinions.  I have my concerns, I don’t know how she will handle extended periods with the children.  She has had clinical depression and anxiety.

    He then added:  “I can’t take [Dr G’s] report as accurate”.

12. The father’s adverse opinions of the mother as a person and parent appear to have affected his willingness to facilitate the children’s time and relationship with her.  Since the orders of 13 June 2014, at the father’s insistence, the children have spent time with the mother only under supervision and on an irregular basis.

13. The mother said during cross-examination:  “Since August 2012 there have been about 16 visits, mostly of three hours.”  The mother gave evidence to the effect that she saw the children on four occasions between April 2015 and September 2015, one of which was when she attended their martial arts class.  At another point in her evidence the mother said that she has attended two martial arts class.

14. The first Family Report, dated 23 June 2015, contained a recommendation that unsupervised time commence after three months.  Nothing in the evidence suggested that the father took any steps to arrange for the children to spend unsupervised time with the mother in accordance with that timeframe.

15. In cross-examination, counsel for the ICL solicited the father’s agreement that “time should be unsupervised” and that “she could have 1.00 pm to 4.00 pm next Saturday and Sunday in principle”.  He then added a rider, however, “but we have not worked out the details, such as what they eat, how she would settle [B] if he is upset”.  Counsel for the ICL then suggested a changeover point and the father replied that the children could spend time with the mother “if we don’t have anything on”.  As noted above, the father proffered his consent to this proposal only after I gave a firm indication that I intended to make orders in these terms.

16. The father produced a report from a lawyer in Country F in relation to registration and enforcement of Australian orders in that country (Annexure “MZ1” to the father’s affidavit).  The report stated that Sharia courts deal with “personal status matters such as marriage, custody of children, maintenance, guardianship, divorce and inheritance claims”.  The report stated that an Australian order could be registered and enforced in Country F, provided that it “must not conflict with public order or morals … or … an order already made in the same matter in [Country F]”.  It thus appears that enforcement of any orders which I make would be a matter for the discretion of a court in Country F.

17. It appears that Ms D has made genuine attempts to communicate with the mother in the interests of the children.  She invited the mother to attend the children’s martial arts classes and offered assistance with transport.  The mother and Ms D met for coffee on one occasion shortly before the trial.  The mother gave evidence that Ms D said to her:  “I am a bridge between you”.  The mother said that Ms D offered to supervise her time with the children but that she “had not taken it up”.

18. The father offered to pay the cost of the mother’s airfares between Melbourne and Country F.  At the same time, however, he said that he could not afford to lodge a bond of $30,000 to ensure his compliance with Australian orders if he and the children relocate to Country F.  He said that he may be able to lodge a sum of $5,000.  I am thus left with doubts as to whether the father could actually afford to meet the cost of the mother’s flights.  In any event, I accept her evidence that she will not travel to Country F.

19. Regrettably, the father elected to move to Country F before the conclusion of these proceedings.  He said that if the children cannot relocate to Country F, he will complete a six-month probationary period and then seek employment in Melbourne.  The father said that he expected that this process would take approximately nine to twelve months.  He said that he would be required to repay certain expenses which the company had covered and that he “would be in so much debt”.

20. The children are presently living in the primary care of Ms D.  I accept her evidence that she struggles to cope in the absence of the father, as she described in her proof of evidence (Exhibit “6”).  Ms D and the father, however, elected to place her and the children in this situation.

The presumption of equal shared parental responsibility

1. The father and the ICL proposed that he have sole parental responsibility for the children.  The mother sought an order that “parental responsibility be shared between the parties with respect to medical and educational decisions”.

2. The Family Consultant expressed divergent views on the issue of allocation of parental responsibility.  In her second report she opined:

   68… The possibility of equal shared parental responsibility is not a functional arrangement for the children should they remain living in Melbourne and is further complicated by the proposed relocation of the children to [Country F].  As such it is recommended that the parent the children live with have sole parental responsibility for [B] and [C].

3. In her oral evidence, however, the Family Consultant said:  “There should be equal shared parental responsibility if the children and both parties remain in Melbourne.”

4. It seems to me that the level of distrust between the parties is of such an intensity that they would be unable to share parental responsibility.  The father persists with a belief that the mother suffers from a mental illness and appears to hold a view that she is incapable of properly parenting the children.

5. The Family Consultant held concerns as to the mother’s ability to focus on the needs of the children.  In her first report, she opined:

   60.…  In interview [Ms Rayne] presented as a parent whose view of her world was preoccupied by her own situation.  This was evident in her constant referral to her experience of alleged family violence when discussing issues related to the children.  Her perspective appeared to overshadow her ability to think about the effect of her absence on the children and how this impacted on their ability to develop a secure relationship with her.  Whilst [Ms Rayne’s] ability to parent is not compromised by her mental health, it impressed as lacking in child-focussed understanding of the children’s needs …

6. For these reasons, I take the view that the parties would be unable to cooperate with each other sufficiently to make decisions in the best interests of the children.  I consider that the party with whom the children reside primarily should have sole parental responsibility.

Conclusion

1. As there will be no order for equal shared parental responsibility I am relieved of the obligation to consider whether the children should spend equal, or substantial and significant, time with each of the mother and the father.  I am at liberty to determine directly what parenting orders are in the best interests of the children.

2. For approximately two years, between August 2012 and August 2014, the children lived in the primary care of the father.  Since October 2013 they have lived also with Ms D and her two children.  The Family Consultant was of the view that the father and Ms D have established a stable and secure family unit, with which the children have a clear identification.

3. On one view of her application, the mother sought orders for an equal time arrangement.  I share the concerns of the Family Consultant that the children’s relationship with her as yet lacks sufficient strength to support such a change.

4. I am satisfied that the children’s best interests require that they continue to live in the family unit consisting of the father, Ms D, her children and themselves.  I am far from convinced that it would be in their best interests for this family unit to be relocated to Country F, for reasons to which I now make reference.

5. As indicated above, I consider that the development of the children’s relationship with the mother is a significant consideration in the outcome of these proceedings.  I cannot envisage how that process could evolve if they live at such a distance from the mother and have infrequent face-to-face contact with her.  If they remain in Melbourne, the children will have the benefit of regular and frequent face-to-face interaction with the mother.

6. I am not persuaded that the father would make sustained efforts to facilitate the children’s relationship with the mother if they live with him in Country F.  History demonstrates that he is capable of adopting a very restrictive stance with regard to the children’s relationship with the mother.  If the children are in Country F, he may take a similar attitude and there is no guarantee that the mother could enforce any orders of this court.

7. Country F is a non-Hague Convention country, thus the protections of that covenant are unavailable to the mother in terms of the relationship between the children and herself.  In any event, it may be that the father would move with the children to another country if he is permitted to relocate to Country F.

8. I appreciate that the father contends that he will suffer financial hardship if he is required to relinquish his employment in Country F and return to Australia.  The fact is, however, that he placed himself in this situation by declining to await the determination of the Court.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

13 November 2015.

Associate: 

Date:  13 November 2015