Reger & Hanney
[2023] FedCFamC1F 805
•20 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reger & Hanney [2023] FedCFamC1F 805
File number(s): SYC 6696 of 2023 Judgment of: CHRISTIE J Date of judgment: 20 September 2023 Catchwords: FAMILY LAW - EX TEMPORE – HAGUE – INTERIM HEARING – Habitual residence – Application for the child to be returned to Australia from the United States of America – Where the child is in a non-Convention country – Where the applicant asserts that the child was habitually resident in Australia prior to the respondent taking the child to the United States of America – Where the respondent asserts that the child was and always has been habitually resident to the United States of America – Declaration that the child is habitually resident in Australia – Jurisdiction – Where the respondent has filed proceedings in the State B District Court – Forum non conveniens – Whether Australia is a clearly inappropriate forum – Finding that the Federal Circuit and Family Court of Australia (Div 1) is not a clearly inappropriate forum – Declaration that the Federal Circuit and Family Court of Australia (Div 1) has jurisdiction over the subject child – Interim parenting – Orders for the children to live with the applicant in Australia – Orders for the applicant to have sole parental responsibility – Orders for the children to have electronic communication with the respondent – Orders for the children to have supervised time with the Respondent in the event he travels to Australia – Orders in relation to the preparation of an Expert Report. Legislation: Family Law Act 1975 (Cth) Pt XIIIAA, Div 4, ss 4AB, 69E, 111CD
Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Cimorelli & Wenlack [2020] FamCAFC 58
Goode& Goode (2006) FLC 93-286
Henry v Henry (1996) 185 CLR 571
Kwon & Lee (2006) FLC 93-287
LK v Director General Department of Community Services (2009) 237 CLR 582
Re B (minors: abduction) (No 2) [1993] 1 FLR 993
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 20 September 2023 Place: Sydney Solicitor for the Applicant: Legal Aid NSW Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 6696 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REGER
Applicant
AND: MR HANNEY
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 SEPTEMBER 2023
THE COURT ORDERS THAT:
Declaration / jurisdiction
1.The child X born 2021 is declared to be habitually resident in Australia.
2.Pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth), this Court has jurisdiction to take Commonwealth personal protection measures in relation to the child X born 2021, including making parenting orders pursuant to s 65D of the Family Law Act 1975 (Cth).
Parenting orders
3.Until further order the mother shall have sole parental responsibility for the children X born 2021 and Y born 2023 (“the children”).
4.Until further order the children shall live with the mother in Australia.
5.Until such time as Order 10 is effected, the mother shall communicate with the child X via video chat each day from 6.00 am to 6.30 am AEST (3.00 pm to 3.30 pm Central time) and for the purposes of this order:
(a)the father shall do all things necessary to facilitate his cousin Ms C or such other person as may be agreed in writing to be present to assist X to communicate with her mother; and
(b)the father is otherwise not to be present in the room during the time that X communicates with her mother.
6.Within 48 hours of being served with these orders, the father is to provide to the mother written confirmation of the current residential address for X and is to keep the mother informed, in writing, of any changes to that address.
7.The father is to give the mother 28 days’ notice of any intention to travel to Australia and spend time with the children.
8.In the event the father travels to Australia pending further order, the father is to spend time with the children as follows:
(a)under the supervision of a contact centre nominated by the mother and to facilitate such time each party must contact the nominated centre to arrange an appointment for assessment for suitability for supervised contact and complete any required intake procedures;
(b)the father is to spend time with the children for not less than two hours at such times and on such days as the contact centre can facilitate; and
(c)the father shall pay the fees nominated by the contact centre for the provision of its service.
9.After X returns to Australia in accordance with Order 10 the mother (or her nominee) shall facilitate the father communicating with the child X via video chat each week on a date nominated by the father in writing from 6.00 am to 6.30am AEST (3.00 pm to 3.30 pm Central time).
Orders to facilitate the return of the child to Australia
10.The parties are to do all acts and things to ensure the child X born 2021 is returned immediately to the State of New South Wales, in the Commonwealth of Australia.
11.The father is to deliver the child X born 2021 to the mother, or the maternal grandfather Mr E, at the Courthouse in Region D, State B, USA, at the time and date nominated by the mother in writing.
12.For the purposes of order 11, the mother shall provide the father with 72 hours written notice of the time and date for the handover, such notice will be effected by the mother or her solicitor sending an email to:
(a)the father at …@...; and
(b)the father’s solicitor.
13.Upon delivery of the child to the mother, or the maternal grandfather, the mother and/or the maternal grandfather are permitted to remove the child from the United States of America and return to the Commonwealth of Australia with the child.
American passport
14.The father is directed to produce all passports for X to the Courthouse in Region D, State B, USA within 48 hours of being served with these orders and such passports shall be held by the Courthouse and released to the mother or maternal grandfather upon their request.
Australian passport
15.The requirement for the father’s consent to the child X born 2021 having an Australian passport is dispensed with.
16.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the mother is permitted to apply for and the Australian Passports Office is asked to issue an Australian passport for the child X born 2021 without the father’s consent.
Watchlist
17.Until further order, each of the parties and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, Y born 2023 from the Commonwealth of Australia.
18.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/s of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the court orders its removal.
Other orders
19.Each of the parties has leave to provide copies of documents filed in these proceedings, along with sealed copies of any orders made by the court, to the District Court of Region D, State B in proceedings number ….
20.The mother be permitted to disclose documents filed in these proceedings and these reasons for judgement to the Australian Central Authority, the Central Authority for the United States of America and International Social Services.
21.That each of the parties have liberty to relist this matter on 24 hours’ notice, in relation to the implementation of these orders.
22.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and the children are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times as directed by Child Court Services.
23.Part 1 of the event will occur by video using MS Teams or in person on 22 November 2023 with:
(a)the Applicant to attend at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 at 9.00 am; and
(b)the Respondent to attend at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 or (at his election) via MS Teams at 10.30 am. A MS Teams link will be provided to the respondent by the Court Child Expert prior to the event if the respondent elects.
24.Part 2 of the event will occur in person at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 on the morning of 24 November 2023. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
25.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to section s 62G(3A), unless otherwise determined by the Court Child Expert that section s 62G(3B) applies.
26.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
27.Not later than 4:00 pm 7 days after the making of these Orders the parties must provide their contact telephone numbers and email addresses to …@...
28.Pursuant to Order 22 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
29.Upon completion, the Child Impact Report shall be provided to the Judge for release to the parties, including by way of Order made in Chambers.
30.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)the Court file;
(b)all documents produced in these proceedings on subpoena once leave has been granted to the parties or their legal representatives to inspect same; and
(c)all documents produced to the Court pursuant to an Order or request of the Court including state Court files once leave has been granted to the parties or their legal representatives to inspect same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is, in the first instance, an application about whether this Court has jurisdiction to hear and determine an application concerning the child X, there being no argument that the Court has jurisdiction to hear an application about X’s sibling, Y.
X was born in 2021 in State B, in the United States of America (“USA”). X’s mother is Australian. X’s father is American.
In mid-2022 X travelled to Australia with her mother. The father followed in late 2022.
In early 2023 Y was born in Australia.
In early 2023 X and the father travelled to the USA.
On 31 May 2023 the father filed a petition of Divorce in the District Court, Region D, State B, USA. That petition sought parenting orders in respect of both X and Y.
On 25 July 2023 the mother filed an application with the Australian Central Authority seeking return of X under the Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). That application has not progressed for reasons which are not clear.
On 11 September 2023 the mother filed an Initiating Application in the Federal Circuit & Family Court of Australia (Division 2).
On 12 September 2023 that application was transferred to the Federal Circuit & Family Court of Australia (Division 1) and I set it down for directions.
The matter came before the Court on short notice and I set it down for an interim hearing on an urgent basis as requested by the mother. I was informed that proceedings relating to the subject children were listed before the court in State B on Thursday 21 September 2023 and accordingly a listing prior to that date was sought.
The father's affidavit suggests that after I listed the matter he filed with the District Court a petition entitled “petitioners plea to the jurisdiction and request for court to exercise jurisdiction” ("the Petition”).
That request asks the court to exercise jurisdiction based on the following facts:
a. The parties were married in [Town F, State B] [in] 2021;
b.The child [X] was born [in] 2021, in [Town G, State B];
c.Petitioner’s Original Petition for Divorce was filed in [Region D, State B] [in mid] 2023;
d. Respondent was personally served on July 31, 2023
e.Respondent filed an Initiating Application on September 8, 2023, in the Federal Circuit and Family court of Australia (Division 1), [actually Division Two] cause SYC6696/2023;
f.A hearing is set for a temporary hearing before this court on September 21, 2023; and
g. The child has lived in [State B] since [early] 2023.
(As per the original)
The Petition does not appear to mention the child Y.
The above history makes plain that there are two sets of proceedings about the two infant children of the parties who are presently separated and living: Y in Australia with the mother and X in the USA with the father. Both parents seek orders which would have the effect of reuniting the siblings but each seeks an order that both children live with him or her.
Each parent was legally represented and filed an Outline of Case Document setting out their comprehensive written submissions. At the commencement of the hearing each party outlined the evidence upon which they relied.
Habitual Residence
The primary issue for preliminary determination is the habitual residence of X. The mother contends that she is habitually resident in Australia and the father denies same. The father says that X is (and has always been) habitually resident in the USA.
The statutory framework for this jurisdictional debate is found in a reading of Div 4 of Pt XIIIAA and s 69E of the Family Law Act 1975 (Cth) (“the Act”).
The USA is a signatory to the Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”). However, the USA has not taken steps to ratify the Child Protection Convention and so, for the purpose of Pt XIIIAA of the Act the USA is treated as a non-Convention country.
By operation of s 111CD(1)(e) of the Act read with s 69E this Court will only have jurisdiction in respect of X if I find she is habitually resident in Australia.
Habitual residence is a question of fact.
The leading authority in Australia is that of the High Court in LK v Director General Department of Community Services (2009) 237 CLR 582 (“LK”). That decision gives guidance about the type of factual matters which are relevant to appreciate the habitual residence of a child.
The uncontroversial evidence relevant to the question of habitual residence would appear to be as follows:
(a)X was born in the USA;
(b)X is a citizen of both the USA and Australia;
(c)X is present in the USA;
(d)X lived in the USA with both her parents from the time of her birth until mid-2022;
(e)X lived in Australia with her mother from mid-2022 and with her mother and father from late 2022 to early 2023; and
(f)X travelled to the USA with her father in early 2023.
The contested evidence concerns parental intention and whether the mother consented to X’s removal from Australia and if so in what circumstances. It is therefore necessary for me to consider what if any findings can be made about these contested issues.
The mother gives evidence that the father was abusive to her almost from the inception of the parties’ relationship. These are interim proceedings and the evidence has not been tested. I must therefore rely on any objective evidence which is available to reach cautious conclusions on an interim basis and findings about contested matters should be “couched with great circumspection”: Cimorelli & Wenlack [2020] FamCAFC 58 at [80].
As part of the conduct relied upon by the mother she says the father kept her in unliveable accommodation when she was pregnant with X when they lived together in the USA. She says that in mid-2021 when the father’s step mother Ms H visited the home, she commenced to stay with Ms H and the father’s father, Mr J. The father does not seriously dispute this account.
During that period the mother says the father slammed down dishes and threw them across the room when he read communications in the mother’s phone between the mother and her mother concerning the father’s spending. The father denies this allegation.
The mother’s affidavit says the father was abusive towards her after the birth of X yelling that she was a “bitch”, “worthless”, a “narcissist” to “fuck off back home” and that she was a “terrible mother”. The father denies using these expressions.
On 31 January 2022 the mother says that the father punched two holes in the wall next to her during an argument. The father denies this conduct and says that it was the mother that punched two holes in the wall next to him. I cannot resolve this dispute.
On 26 February 2022 the mother says she and the father had an argument which resulted in a physical altercation at the conclusion of which the father said that he would use the friend who was present as a witness to establish that the mother was abusive. The father denies the mother’s account and mentions this friend again in his affidavit as “hav[ing] a better memory than [him] of what actually happened that day [if anything]” but has not filed any evidence from that witness. I cannot draw an inference from that failure given the tight timetable for filing in this matter.
The mother says she was locked out of the house by the father in mid-2022 following an argument and attended on the Police. The police record reads:
Female crying advised her and [Mr Hanney] got inot [sic] an argument and he told her to leave. Per caller she is suffering from post partum depression
Certainly the mother’s account of being told to leave by the father is confirmed by the contemporaneous record. The father says the mother left after an argument voluntarily.
While I am unable to make findings where the evidence is contested I am able to safely conclude that the parties had a short volatile relationship during which they argued frequently. Some of the remaining evidence is less contested.
In mid-2022 the mother and X travelled to Australia. The father remained in the USA. As discussed later it is difficult to understand this from the father’s perspective if he believed X was at risk.
When X arrived in Australia in mid-2022 there is no suggestion in the material that this was without the father’s consent. She travelled to Australia on a one way ticket with her mother. She commenced to live with extended family in Australia. Given the agreement of both of her parents and the fact that her father joined her (and the mother in late 2022) I find that X was resident in Australia and that from at least the time the father joined them (if not before) her residence in Australia was habitual. Both parents had determined together that that is where she would be living. Her age at that time means that significant weight might be placed on her parents’ joint intentions at that stage. While each of them may have differed in their view as to how long the period in Australia would be it was their shared intention at that stage to live in Australia as a family. I appreciate that by early 2023 the father had formed a view that his period of time in Australia was unlikely to be lengthy.
There is evidence attached to the mother’s affidavit of messages between the parties while the mother and X were in Australia and the father was in the USA in mid-2022. The messages are aggressive in nature. The messages also include voice messages left by the father on the mother’s phone. The written messages read:
RESPONDENT FATHER: THEN ANSWER THE FUCKING PHONE
APPLICANT MOTHER: atop [sic]
Try again tomorrow
RESPONDENT FATHER: [voice message]
No trying again tomorrow. Answer the phone.
APPLICANT MOTHER: Or else what? that a threat because this can get worse if you want
RESPONDENT FATHER: Thats me telling you to answer the phone.
Because this is getting so much fucking worse than if you just answered the phone.
APPLICANT MOTHER: mate are you drinking because my god you’re really bad and abusive right now
RESPONDENT FATHER: No one is drinking. And how am I abusive? Because I want to talk to my god damned wife on the other side of the world?
APPLICANT MOTHER: put the phone down do yourself a favour and don’t hurt me any more then you are go to sleep get the passport shit done today rest more and then try again for the sake of this marriage just put the phone down
RESPONDENT FATHER: You can either answer the phone
Or go to my funeral
2 options
APPLICANT MOTHER: listen to yourself look how you’re acting
let me sleep
I need the rest if you care about us just let it be
RESPONDENT FATHER: Thats your final decision
Fine.
Goodbye.
APPLICANT MOTHER: I’m starting to cramp very badly so I’m putting my phone down I don’t need this and I wish you were smarter
RESPONDENT FATHER: I wish you somewhat even cared
I loved you.
I wish you loved me too.
goodbye
enjoy your life [Ms Reger]. raise [Y] and [X] to be better than me
(As per the original)
The voice messages are as follows:
You better shut the fuck up right now, [Ms Reger]. I swear to fucking god.
You’re doing nothing but pissing me off more and fucking more with your bullshit.
Why would I be getting upset, because you’re mad at me because I’m calling you, because I miss you. Why would… Why would I call you and say that I miss you if I didn’t want to fucking come.
What do you mean “goodbye”? what kind of fucking stupid shit is that?
Then fucking answer!
No. No one’s fucking verbally abusing you, I’m telling you to fucking answer the god damn fucking phone, [Ms Reger].
No one’s fucking verbally abusing you. No one’s saying that, “oh all of this is your fucking fault”. I’m literally telling you just to fucking answer the phone.
You better answer the phone this next time I call you, or else.
Having listened to those messages I am of the view that their tone is as abusive as their content.
The father arrived in Australia in late 2022 and lived with the mother (and the mother’s family). An incident occurred in early 2023. The mother was having a nap and heard an argument between the father and her mother (via the baby monitor). The mother’s affidavit says her mother was angry that X was unattended while the father played video games. The mother says that the father invented a story to implicate the maternal grandmother in an assault. The maternal grandmother deposes to being assaulted by the father. The father says he was assaulted by the maternal grandmother. The police attended and took statements but no one was charged. The mother says that the father manipulated her so that she came to believe that they should move out of her parents’ home and in a hotel funded by the paternal grandmother and her husband. I will not be able to make findings about the contested evidence at this stage.
The father began to indicate to the mother, according to her affidavit, that he intended to return to the USA in about early 2023. He said his family told him he had to bring X back. The mother says he called her “worthless”, “hopeless”, and to “go drown”. This type of argument occurred on 7 April 2023 and the mother says she contacted a domestic violence line and the call was recorded. She indicated she reported the father’s conduct to the worker. The mother did not approach the police (as she had been advised to do) at this time.
On 22 April 2023 the mother says that the father asked her to sign a “affidavit” in front of a notary. The affidavit was to authorise X to travel with the father to the USA. The mother says she subsequently tore the affidavit up into pieces. That document (with its visible tears) is Exhibit 2 in the proceedings.
On 24 April 2023 the mother says she begged the father not to take X away and that the father swore at her and punched a hole in the bathroom door behind which she had taken shelter. She says he forced entrance and grabbed her shoulders and shook her saying “I bet you weren’t raped and just enjoyed it but regretted it after. I will call the guy who did it to you and tell him your address and let him rape you all over again, since you enjoyed it so much”. The mother says the genesis of these comments were that she had confided in the father that she was sexually assaulted when she was at school and developed suicidal thoughts at the time. The father confirms that he did say “I bet you weren’t raped and just enjoyed it but regretted it after”. This concession satisfies the definition of family violence in s 4AB of the Act. The father denies the balance of the mother’s allegation. I am presently unable to resolve this.
One significant concern raised by the mother is that the father’s comments to her such as “go kill yourself” are designed to goad her to self harm. I understand the father disputes that he said these things but I remain concerned in circumstances where the maternal grandmother has given evidence – taken from her text messages between her and the father of similar threats. At [19] of the maternal grandmother’s affidavit she says:
19.I was very worried for [Ms Reger] and called [Mr Hanney] to try and convince him not to kick her out of the house. He did not answer my calls, so I sent a message to [Mr Hanney] saying “she can’t leave this late at night”. [Mr Hanney] sent me a message to say he was driving and would talk to [Ms Reger] after he returned home. He then continued to send me long messages accusing [Ms Reger] of hitting him “for an hour and a half straight” and admitting that he “spent 7 hours in total last night trying to convince her to kill herself”. I was very worried for my daughter’s immediate safety and was not reading [Mr Hanney’s] messages in full, so I did not respond to [Mr Hanney] saying this, other than to ask if [Ms Reger] could sleep in the car. I was desperately trying to ensure she had a roof over her head that night and was not out on the streets after dark.
(Emphasis added)
The mother says that after this fight the father said that he and X would return in a month’s time. By mid-2023 the mother says the father indicated that he intended to remain in the USA with X.
On 31 May 2023 the father filed an application in the District Court, Region D, State B, USA. The proceedings including the father’s application for parenting orders in respect of both X and Y.
Before the hearing today there was an issue about whether or not the father met the jurisdictional requirements to invoke the jurisdiction of the District Court in State B. At the interim hearing today the solicitor who appeared on behalf of the father opened her submissions by making a concession that the District Court in State B did not have jurisdiction in respect of the child X at the time the father filed his application in that Court and does not presently have jurisdiction in respect of X. This is significant.
It is necessary to set out the relevant provisions from the State B Family Code in order to appreciate how they operate in the circumstances of this case.
The relevant State B Family Code contains various definitions. Subparagraph 7 reads:
(7)“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent, or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period.
Another section relates to the international application of the relevant chapter and reads in part:
(a)a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this subchapter and subchapter C.
Another section is headed “Initial Child Custody Jurisdiction” and an excerpt reads as:
(a)Except as otherwise provided in 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1)this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state, but a parent or person acting as a parent continues to live in the state;
(2)a court of another state, does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child, and at least one parent, or a person acting as a parent, have a significant connection with this state other than the physical presence; and
(B)substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4)no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).
(b)Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c)Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
Another section is headed “Information to be Submitted to Court” and provides:
(a)except as provided by Subsection (e) or unless each party resides in this state, in a child custody proceeding, each party, in its first pleading or in an attached affidavit , shall give information, if reasonably ascertainable, under oath as to the child’s present address, or whereabouts, the places where the child has lived during the last five years, and the names, and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1)has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number and the date of the child custody determination, if any:
(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective, orders, termination of parental rights, and adoptions and, if so, identify the case number, and the nature of the proceeding; and
(3)knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(b)If the information required by Subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(c)If the declaration as to any of these items described in Subsection (a)(1) through (3) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
(d)Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
(e)If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interests of justice.
Consideration of the above provisions confirms the view that (on the material before this Court) the father did not provide the District Court in State B with a fulsome picture of the jurisdictional issues in the case as required by the State B Family Code. The following matters are also apparent:
(a)State B did not have home state jurisdiction in respect of X at the time the father field his original petition;
(b)The earliest date on which an application might be filed in reliance upon home state jurisdiction is 28 October 2023;
(c)It is not apparent how State B would assume home state jurisdiction in respect of Y.
The fact that the District Court in State B may have jurisdiction in respect of X in the future does not influence this court to abstain from hearing the matter until such time as the State B Court obtains jurisdiction.
I turn now to consider the application of the principles derived from the case law concerning habitual residence to the facts and circumstances of the child, X. I take into account the agreed matters set out above where X has lived since the time of her birth, and her citizenship of both countries. I accept that in her short life X has spent more time in the USA than Australia. One of the most significant factors weighing in the balance is that the father permitted X to accompany the mother to Australia in mid-2022, in circumstances, where both parties knew that the mother was pregnant with Y at that stage. X travelled on a one-way ticket to Australia and her mother had no legal right to return to the United States unless she applied to have her overstaying forgiven. These are agreed facts.
Accordingly, X and the mother were from mid-2022 living in Australia in the ordinary course, and in so far as they lived with family and that at least at that stage, the father had agreed with the mother that they would live in Australia, although there is no general agreement as to the period of time they intended to live in Australia. This is then further supported by the fact that in late 2022, the father travelled to Australia and commenced residing with the mother and X in furtherance of their plan to at that stage live in Australia.
In this case evidence about parental intention cannot be considered except in the context of the nature of the relationship between the parents.
It is difficult to discern a shared settled purpose. There is no sense in either parties’ case that the mother gave her consent to X living in the USA without her.
The case law provides that settled purpose is a shared intention to live in a place “with a sufficient degree of continuity to be properly described as settled”: LK at [40] citing Re B (minors: abduction) (No 2) [1993] 1 FLR 993 at 995.
It follows that I am approaching the facts and circumstances in respect of X absent a jointly shared settled purpose as between the parents. X has been physically present in the United States and has been living with a parent. It is therefore necessary to look at the situation from her perspective, it would appear from the father’s material that she has lived with her father and been cared for by a number of people. He tells the Court she is in receipt of assistance for developmental difficulties and attends sports with a neighbour. He tells the court that she has a large number of family members who live in close proximity. Those things without more, may speak to habitual residence, but for a very small child, it is difficult to see that she would have become well settled for an appreciable period since having only arrived in early 2023, and being separated from her mother and other sibling. This is compounded by the fact that the evidence on its face indicates that X has already lived in at least two separate residences with the father in the USA. The “Affidavit of Consent for Children Travelling Abroad” indicates that the father’s and X’s residence would be K Street, Suburb L, State B as at early 2023. Conversely the husband’s pleadings and Exhibit 3 (being a letter from State B Department of Family and Protective Services dated 21 August 2023) indicate an address of M Street, Suburb N, State B.
The situation for X in Australia was in some sense the reverse. She was: living with a parent, surrounded by Australian family members, seeing a general practitioner, and being cared for by her mother.
I agree with the respondent’s lawyer that the time at which I must consider the habitual residence of the child is as at the time of the application.
I agree with the respondent’s lawyer that parental intention is not to be given controlling weight. It is one of the factors to be considered amongst the other relevant factual matters.
I cannot find that the situation for X contains a “degree of settled purpose from the child’s perspective” since she has been separated from the parent who until early 2023 had been her primary (and at times sole) carer.
In an appropriate case, even absent shared intention a child may be found to be habitually resident in the new country however, in the circumstances of this case, the duration and the circumstances in which she left do not lead to the conclusion that her Australian habitual residence has been lost.
The father relies significantly on what he would describe as the mother’s consent to remove X from Australia in early 2023. It is important in those circumstances to understand the nature of that consent.
It is an agreed fact that the mother signed a document which gave the mother’s consent to travel (in this case for the father to take X to the USA). The document itself is entitled “Affidavit of Consent for Children Travelling Abroad”. The document refers to a “ONE WAY Trip date of flight [early] 2023”.
The evidence does not establish a clear coherent position taken by both parents about their future living arrangements in the first half of 2023. The father says that during that period “[Ms Reger] and I argued almost daily about where [X] and [Y] would live”. It seems likely, as at the date of departure, that it was in the contemplation of the mother that the parties would be reunited as a family in the USA. The father’s evidence at [74] is relevant and reads as follows:
74.…[Ms Reger] changed her mind soon after signing it, ripping the two copies into six pieces, which I still hold today. [Ms Reger] then deposes that she never agreed for [X] to leave Australia permanently and hoped that without the signed affidavit, I would not be able to leave with [X]. Whilst I accept that [Ms Reger] did not want to be permanently separated from [X] and would not have consented to being separated from [X] on a permanent basis, she did consent to [X] coming with me to live in America where she would follow us after obtaining her green card. My home, [X’s] home and [Y’s] home was always meant to be [State B], USA. I am unsure what [Ms Reger] wanted, but I know she did not want to be separated from the children despite consenting to the same.
Both parties agree that the mother tore up that consent. The father gives evidence that the mother told him of her opposition at the airport. In so far as settled purpose is concerned – it was very unsettled (except perhaps in the father’s mind). The mother was at best equivocal. It calls to mind a passage from LK cited by the respondent’s lawyer in her written submissions):
29. First, individuals do not always act with a clearly formed and singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous….
And:
34….No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change their place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary top examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Given the concessions of the father about some of his conduct as regards the mother, I would have significant concerns about her capacity to give a consent in the circumstances she found herself in. I therefore attach very little weight to the fact that the mother signed a document permitting X to leave Australia. If X had left Australia with the full consent of both of her parents, she could, according to the case law, acquire habitual residence in another country short time frame but that has not been the case here. The mother never foresaw that she was consenting to being separated from X.
Finally, I consider that the fact that there is presently no jurisdiction to hear and determine an application in respect of X in the place where she is present is a relevant factor as one of the wide variety of circumstances referred to in LK which are relevant to the assessment of whether her residence in the USA may be regarded as habitual. It speaks, as the applicant’s lawyer submitted, to the extent to which it might be thought that she has integrated into that place. It follows that I intend to make the declaration that X is habitually resident in Australia.
Clearly inappropriate forum
There is no issue that this Court has jurisdiction to hear and determine a parenting dispute about Y. The father raises an issue about whether or not Australia is the “appropriate forum” – the father having instituted proceedings first in time in the District Court in State B. The father’s argument about having filed first in time is undermined by the lack of jurisdiction in the State B Court to hear and determine the application.
The test to be applied is the “clearly inappropriate forum” test: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571 (“Henry”). The best interests of the subject children are a relevant but not paramount consideration.
In Kent v Kent [2017] FamCAFC 157 the Full Court adopted the non-exhaustive list of “the matters properly to be taken into account” when considering whether Australia is a “clearly inappropriate forum” as articulated in Henry and summarised in Whung v Whung (2011) 45 Fam LR 269:
1. No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2. If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4. Other considerations include the order in which the proceedings were instituted.
5. Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Original emphasis)
Given the appropriate concession of the father’s lawyer about the present lack of jurisdiction in State B it is, as the lawyer for the mother submitted, unnecessary to move past point 1.
In effect the father is seeking that this court decline to exercise jurisdiction in respect of either child until such time as the Court in State B acquires jurisdiction, perhaps in respect of one child. This position is untenable. The children are separated in circumstances where both parents do not think that ought be the case. X, who until early 2023 had never been separated from her mother, has now been separated from her mother since that time. To decline to exercise jurisdiction could not be in the best interests of these children.
The mother has a prima facie right to invoke the jurisdiction of the court in respect of Y and following my findings in respect of X and hence the onus is on the father to establish that Australia is a clearly inappropriate forum for proceedings about these children.
The Full Court in Kwon & Lee (2006) FLC 93-287 said at 80,924:
…in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration…
Here I am not being asked to grant an anti-suit injunction but the father asks that I find that Australia is a clearly inappropriate forum and consequently dismiss the application and so the principles are relevant and in particular to Y who is inside the jurisdiction.
Having determined that I have jurisdiction to hear and application in respect of both children I should note that I am obliged to take into account principles of judicial comity. I am aware that there are proceedings before another court and I should not lightly consider making orders about the same subject matter. The factors which persuade me that it is appropriate to do so in the circumstances of these children are as follows:
(a)Two infants are separated from one another in circumstances where it is less than clear that both parents intended this to be an ongoing situation;
(b)There is an urgency in so far as there are no orders for these children and the parents are in dispute;
(c)The lawyers for the mother intend to apply to register the Australian orders with the State B Court; and
(d)Most significantly because the State B Court does not presently have jurisdiction.
The mother was in the USA on an Electronic System for Travel Authorisation ESTA (tourist visa) which permitted a stay of three months. The mother overstayed that visa. The father’s material says that for the mother to enter the USA she would need to apply for forgiveness for overstaying her visa. There is no such restriction on the father’s capacity to enter and remain in Australia for the purpose of participating in court proceedings.
The father has conceded that at this present time the child Y should not be separated from the mother and did not seek to invoke the jurisdiction of the State B court through the recent petition in respect of Y. Accordingly the father tacitly accepts that this court has jurisdiction in respect of Y albeit he requests that the Court not exercise it.
I cannot for the above reasons find that this court is a clearly inappropriate forum to hear and determine parenting dispute in respect of both children.
Parenting dispute
It follows that each party is asking that I make orders albeit I accept in the case of the father he was seeking that the mother’s application be dismissed and in the alternative he sought that X be declared habitually resident in the USA.
The father’s Response does not specifically seek parenting orders (in the event that I found that X was habitually resident in Australia), but in his affidavit at [87], the father says that “it is not possible to have Y in [his] care when he has not seen [the father] since he was 2 months old.”
Further he, says that if the Court finds it has jurisdiction in respect of the child X then the Court should abstain from making parenting orders at this stage. It was submitted that orders would be premature and the Court would only be minded to make parenting orders upon, for example, receipt of an Expert Report and material produced on subpoena.
I accept that the matter has been listed with urgency but the father commenced proceedings in the USA in May, the mother made an application to the Central Authority in July. The circumstances for these children cannot keep waiting until the information available is optimal. I am persuaded that it is appropriate for me to make such orders as appear consistent with the evidence available to the court. Not having collateral material such as an expert report or subpoenaed documents are real deficiencies in this case but it does not displace the urgency in this matter. I therefore do not consider it is a reason not to make parenting orders however I accept such factors may be a reason to revisit orders in the future.
In the alternative the father seeks X remain living with him and the mother can see her in a neutral third country like Country O. He also says he would support regular video calls. The father’s affidavit says that if the court finds it has jurisdiction over Y, then the father wants to see him in a third neutral country like Country O and should be allowed regular video calls. The father says that if the Court finds it has jurisdiction over both children, then they should remain with him in America and spend time with the mother during the school holidays. In the context of his affidavit as a whole it strikes me that this particular part of his affidavit represents what he would see as the final position given his concession that Y should not, at this stage, be separated from the mother.
The mother seeks parenting orders as follows:
3.Until further order the mother shall have sole parental responsibility for the children [X] born […] 2021 and [Y] born […] 2023 (“the children”).
4. Until further order the children shall live with the mother in Australia.
5.That until such time as order 9 is effected, the mother shall communicate with the child [X] via video chat each day from 6am to 6.30am AEST (3.00pm to 3.30pm [Central] time) and for the purposes of this order:
(a)the father shall do all things necessary to facilitate his cousin [Ms C] or such other person as may be agreed in writing to be present to assist [X] to communicate with her mother, and
(b)The father is otherwise not to be present in the room during the time that [X] communicates with her mother.
6.Within 48 hours of being served with these orders, the father is to provide to the mother written confirmation of the current residential address for [X] and is to keep the mother informed, in writing, of any changes to that address.
7.The father is to give the mother twenty eight (28) days’ notice of any intention to travel to Australia and spend time with the children.
8.In the event the father travels to Australia pending further order, the father is to spend time with the children as follows:
(a)under the supervision of a contact centre nominated by the mother and to facilitate such time each party must contact the nominated centre to arrange an appointment for assessment for suitability for supervised contact and complete any required intake procedures;
(b)the father is to spend time with the children for not less than two (2) hours at such times and on such days as the contact centre can facilitate, and
(c)the father shall pay the fees nominated by the contact centre for the provision of its service.
Orders to facilitate the return of the child to Australia
9.The child [X] born […] 2021 be returned immediately to the State of New South Wales, in the Commonwealth of Australia.
10.The father is to deliver the child [X] born […] 2021 to the mother, or the maternal grandfather [Mr E], at the [Region D] Courthouse in [Region D, State B], USA, at a time and date nominated by the mother.
11.For the purposes of order 10, the mother shall provide the father with 72 hours written notice of the time and date for the handover, such notice will be effected by the mother or her solicitor sending an email to:
(a) the father at […@...]; and
(b) the father’s solicitor.
12.Upon delivery of the child to the mother, or the maternal grandfather, the mother and/or the maternal grandfather are permitted to remove the child from the United States of America and return to the Commonwealth of Australia with the child.
American passport
13.The father is directed to produce all passports for [X] to the [Region D] Courthouse in [Region D, State B], USA within 48 hours of being served with these orders and such passports shall be held by the Courthouse and released to the mother or maternal grandfather upon their request.
Australian passport
14.The requirement for the father’s consent to the child [X] born […] 2021 having an Australian passport is dispensed with.
15.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child [X] born […] 2021 is permitted to have an Australian passport.
Watchlist
16.Until further order, each of the parties and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, [Y] born […] 2023 from the Commonwealth of Australia.
17.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/s of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/s on the Watchlist for the said period, or until the court orders its removal.
It is necessary to evaluate both parties’ proposals through the statutory framework provided by the Act and with the guidance provided by the Full Court in Goode& Goode (2006) FLC 93‑286.
At an interim hearing the Court is usually significantly reliant on the uncontested facts.
The following matters are relevant and uncontroversial:
(a)From the time of her birth until early this year X has lived with her mother and father (although the father remained in the USA between mid-2022 and late 2022);
(b)When X travelled to Australia with her mother in mid-2022 it was on a one way ticket;
(c)From early this year X has lived with her father;
(d)The mother gave a form of consent to X leaving Australia with the father but since that time has been at best equivocal and generally opposed to that course on both parties’ cases;
(e)From the time of his birth Y has lived with his mother and father until his father left Australia in early 2023;
(f)The father accepts that he cannot assume full time care of Y at present;
(g)The mother has no automatic right of residence in the USA;
(h)The father has no automatic right of residence in Australia;
(i)Both parents have been present in the country of the other parties’ citizenship with electronic tourist visas; and
(j)Neither parent accepts that it is appropriate that the siblings be separated.
The matters which are more controversial relate predominantly to the nature of the children’s relationships with both parents and whether there are any risk issues in the household of one or other of the parties.
There is no objective evidence in respect of the nature of the children’s relationships with both parents.
Risk issues in the mother’s care
The father says the children are safer with him.
The father’s affidavit material makes a number of allegations about the mother's mental health. The first mention is at [50] where the father says that after the birth of the child X he observed the mother to be “extremely depressed”. He goes on to say that when he was around the mother was either sleeping depressed or suicidal. He claims that this has had an impact on X’s development causing developmental delay. The father's material contains number of allegations that the mother either threatened suicide or engaged in acts of self harm. While not particularised the father says that there were more than 10 occasions during the relationship where the mother “attempted suicide.” The father says that the mother reported to him as history of self harm starting when she was about 13 years old. Specifically the father says that in his presence the mother proceeded to harm herself in early 2023 in the context of his having spoken to her about returning to the United States with X. The father curiously does not say what action he took protectively in respect of either the mother, Y or X at this point.
The mother accepts that she has experienced some depression and that as a teenager she engaged in self harm which conduct was repeated once during the parties’ relationship. She otherwise denies the nature and extent of the father’s allegations. I accept the mother’s mental health is relevant but I am not satisfied the children are at risk in her care on the available evidence. I am otherwise satisfied that any risk is ameliorated by the mother having in place a mental health plan where she attends upon a psychologist approximately every two weeks.
It is difficult to reconcile the father’s concern about these matters with the father’s decision to leave, who at that stage was only really a newborn, in the mother’s care.
The father asks the Court to find that the children would also be in risk in the mother’s care as a consequence of the mental health of the maternal grandmother. The mother and Y live with the maternal grandmother and grandfather. The grandmother addresses the father’s evidence in her affidavit material accepting that she has experienced mental health challenges, in particular anxiety and depression. She gave evidence of a background of childhood trauma and having consulted counsellors on and off since 2012. She gives evidence of a number of acute incidents. The situation may well warrant further exploration but I could not, on the evidence before the court, conclude that the father’s allegations if accepted mean that the children at risk in the household of the maternal grandmother.
There was an incident between the father and the maternal grandmother in early 2023 which led to the mother and the father leaving the home of the maternal grandmother in circumstances where the police were involved. I cannot at this interim hearing make a finding about what happened on that day.
Risk issues in the father’s care
It is plain that each of the parents in this case is young and vulnerable and now are both parents of young vulnerable infant children living in separate countries.
Just based on the agreed facts the parents have had marginal housing and the father has had many changes of employment and unemployment. The mother had no right to work in the USA and the father no right to work in Australia.
The father says at [61] that he has been depressed and that depression has manifested in aggression. The father’s text messages to the mother demonstrate that he has made threats of self harm. Whether they represent instability in his mental health or attempts at manipulation of the mother they also warrant further investigation.
The children have lived with grandparents, in hotels and in substandard (on both parties’ cases) rental accommodation.
The father is currently working for his stepfather in a business which travels around State B. Consequently, X is in the care of an unnamed nanny and a family friend.
However, these circumstances, while unfortunate are not conclusive of harm. The more significant issues relate to the father's conduct as it relates to the mother. As set out above there are some matters which remain contested and I am unable to make findings about them at this stage. The case law cautions that this is not the same as being able to ignore the potential risk to the children if in due course they are established by admissible evidence. The most significant of these issues relate to the father’s alleged violence and control of the mother.
I turn now to some of the less disputed material. The following examples are taken from the father's materials and I have treated them as concessions. The father agrees that he told the children's mother that she could be deported because this was a matter of fact. The father's affidavit material says that he can now in retrospect see how his former partner may have felt pressured by him to have sex although he denies pressuring her. The father agrees that the house that the parties had rented in the United States had the electricity disconnected by the landlord in circumstances where the father says he was working two shifts a day, leaving that house without electricity for a significant period of time. This coincided with a period when his partner was expecting their first child. The father accepts that in mid-2022 following their argument he did find the mother speaking to a police officer. The father makes allegations about the mother's mental health but makes absolutely no comment about why in those circumstances he left the child Y in her sole care as a vulnerable baby. The father accepts that during an argument with the mother he said to her “I bet you weren't raped and just enjoyed it but regretted it after”. Whilst the father expresses remorse for this in his affidavit that conduct raises significant concerns about him as a parent, role model and in intimate relationships. The father accepts that he did text the mother saying “she's passed out bitch” when speaking about his child X an explains it as being language in general use in America.
The mother also refers to the father’s parents telling her of a conviction of the father when he was a juvenile. At [17] of her affidavit she says that the father’s parents advised that the father “had previously been convicted of [a sexual offence] when he was around 12 or 13 years old and that he had spent time in juvenile detention”.
The father says that he does not know anything about this conversation but discloses at [31] of his affidavit:
a. at the age of 10 I was charged for an incident relating to another [child]. The incident was sexual in nature.
b.I received a deferred adjudication and was in juvenile detention […].
c. I was then referred to an outpatient program through the juvenile justice system
d. I was then referred to an inpatient program at the juvenile justice system where I stayed […]
e. I was then required to engage in therapy until I was 13 or 14
f.I received a “deferred adjudication” due to my age and the file was “sealed” meaning I am restrained by way of court order from:
i. Disclosing the names of the parties in the case
ii. Disclosing the particulars of the case
g.The issue was not recorded against my name and when [Ms Reger] subsequently used this issue to report me to local police and the Child Protection Authority in [State B] and say that I posed a risk of harm to [X], the investigation was closed, and a finding was made that the alleged abuse/ neglect had not occurred.
These circumstances and the truncated nature of the interim hearing prevent me from forming a view as to whether the father’s conduct as a juvenile poses a risk to the children.
Parental Responsibility
This is an interim hearing where the presumption of equal shared parental responsibility need not apply. It certainly makes little sense from the children’s perspective for their parents to be required to consult about long term decisions for the children (at least on an interim basis). It follows that parental responsibility should be allocated to the parent with whom the children will live.
Live with orders
This is a difficult case since the parents do not live in the same country and it is not then possible to make orders which would see the children divide their time so that they see each parent regularly and frequently. I am asked to choose (at least on an interim basis) one parent, one home and one country for these children. So, while I acknowledge the importance to the children of being able to maintain a meaningful relationship with both parents that will only be possible if the parents are able to facilitate it from afar.
Some of the matters discussed above remain relevant. I am confident that the father can presently travel to Australia as he has not breached any visa conditions. I am confident that the father is not seeking to disturb Y’s living with the mother at this time. Therefore, the mother’s household offers the only interim opportunity for the children to live together. The relationships between siblings are significant to the children and each parent supports them living together. This is a highly significant factor.
I am concerned about the allegations which the mother makes about the father’s conduct during their relationship. I have set out in detail above the limits of what I can find by reason of concession or objective evidence. That does not permit me to ignore serious allegations merely because they are denied at an interim hearing. The children’s interests oblige me to consider the consequences for the children if in due course the allegations are established. It is for that reason that the mother seeks orders that any time with the father be supervised. Until the time can be tested that would appear to be an appropriately cautious approach.
I also take into account the concerns the father has raised about the mother’s parenting but in circumstances where he has now on two occasions voluntarily left first X and now Y in her sole care the weight I can give to the matters which he sets out is not significant.
I also take into account the fact that the mother is in a position to provide day-to-day care for two children while the father has employment obligations. This should not be seen as saying that parents should not work – they must and they do. However, these are both infants and the mother is available to provide day to day care for them while the father is reliant on paid care and a family friend.
Those factors persuade me that it is in the best interests of X and Y to reside with the mother.
The mother she proposes to register the orders in State B and the State B Code provides for registration of the orders.
Electronic communication
The mother sought orders that she communicate with X each day. I accept that this is appropriate in light of the orders I propose to make about X’s return. The intention is that X see her mother and hear her mother speaking to her to prepare her for return to the mother. I do not anticipate the whole of the 30 minute window will be practical given her age but whatever time occurs should occur within that window.
The father did not seek specific orders in the event that both children lived with the mother. It is my view that the children should have electronic communication with their father once per week. The same rationale for the frequency in the mother’s short term calls does not exist as X and the father have not been separated. As I discussed above, the children’s ages preclude any more lengthy period and it is not considered that this interaction is a way in which the children could properly develop a meaningful relationship but it may be more important that the children recognise both parents to facilitate whatever final orders are made (for live with or spend time with).
As earlier indicated the mother was the only one who made a concrete proposal about the father’s time in the event that the children return to her. Her concrete proposal involves supervised time in the first instance. The parties should do all acts and things to facilitate that occurring should the father choose to travel to Australia.
Further conduct of matter
These are interim orders. I am going to order a Child Impact Report. I note that the mother seeks to release the documents in these proceedings to the Central Authority, State B Court and ISS. I am hopeful that ISS will facilitate mediation of this difficult matter for the parties and render any other assistance to them within their remit. I will also permit these reasons to be similarly released.
I have ordered a Report by a Court Child expert to assist the parents in the preliminary stages of this matter to explore settlement. Obviously, if the matter cannot be resolved by agreement further hearing (including perhaps interim hearing) may be required.
The matter will be relisted for case management following release of the Child Impact Report.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 20 September 2023
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