Releheb and Adaab

[2009] FamCA 910

FAMILY COURT OF AUSTRALIA

RELEHEB & ADAAB [2009] FamCA 910

FAMILY LAW – CHILDREN – With whom a child lives – Mother seeks to relocate overseas

APPLICANT: Ms Releheb

RESPONDENT: Mr Adaab

INDEPENDENT CHILDREN’S LAWYER: Ms Warda

FILE NUMBER: PAC 4275 of 2007

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATES: 10 October 2008, 25 November 2008 18 December 2008, 9 April 2009, 15,16 & 17 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Conte-Mills

SOLICITOR FOR THE APPLICANT: John Spence & Associates

SOLICITOR FOR THE RESPONDENT: Mr Adaab appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Thomas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coleman & Greig

Orders

1. That all existing orders in relation to the child … born on … November 2001 (“the child”) be discharged.

2. 2.1     That, subject to order 2.2, the parties have equal shared parental responsibility for the child.

   2.2That the father have sole responsibility for making decisions as to the child’s education.

3. That the child live with the father as follows:

   3.1from 12:00noon on Sunday until the commencement of school on Wednesday in each week during school term time

   3.2for one half of all school holidays, being the first half in 2009 and each alternate year thereafter and the second half in 2010 and each alternate year thereafter, unless the parties agree otherwise in writing.

4. That the child live with the mother at all other times, subject to orders 5.1, 5.2 and 6.

5. 5.1     That the child spend time with the mother from 10:00am until 5:00pm on Mothers Day, if she is not otherwise in her care pursuant to these orders.

   5.2That the child spend time with the father from 10:00am until 5:00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.

6. That the child spend time on her birthday with the parent who does not have her care pursuant to these orders, for a period of approximately 3 hours on a school day or 4 hours on a weekend, at times which the parties shall arrange or which will be from the conclusion of school until 6:00pm or from 9:00am until 1:00pm on a weekend.

7. That the parties effect changeovers at C Police Station, in the event that it is impossible to do so at the child’s school.

8. That both parties do all things necessary to ensure that the child’s name remains on the Airport Watch List.

9. 9.1     That the mother shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of the child.

   9.2That the mother is restrained from making any application for the issue of a passport for the child by any country without the leave of the court.

10. That the mother is restrained from leaving Australia with the child without the leave of the court.

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Releheb & Adaab is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4275 of 2007

MS RELEHEB

Applicant

And

MR ADAAB

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr Adaab and Ms Releheb are the parents of a little girl, who was born in November 2001 and is now 7 years old.  Unfortunately for the child, there is a high level of conflict between her parents.

2. The applicant mother, Ms Releheb, proposed that she and the child relocate to Lebanon.  She would return to Australia with the child for one month each year, during which time she would spend day periods only with her father.  Mr Adaab would be at liberty to visit the child in Lebanon on 28 days’ notice to the mother.  She would have sole parental responsibility in these circumstances.

3. The mother would not return to Lebanon without the child.  Her alternate proposal was that the child live with her and spend time with her father each second Saturday and Sunday, with day periods only during school holidays.  Changeovers would take place at C Police Station.  She proposed to remove the child from S School and enrol her at J School.

4. The father seemed to propose that the child live with him during the week and spend time with her mother on weekends.  In fact, his proposal was not entirely clear to me and I have drawn this information from his affidavit sworn on 11 June 2009.  I note that, in his response filed on 15 October 2007, he sought orders for a week-about arrangement.  The father proposed that the child would continue to attend S school. 

5. The Independent Children’s Lawyer sought orders that the child live with her father and spend time with her mother each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays.  These arrangements would commence after a hiatus of two months, to enable the child to adapt to this significant change.  The parties would have equal shared parental responsibility, save that decisions regarding the child’s education would be made solely by the father.

Background

1. The father, who is now 38, and the mother, who is now 31, began to communicate with each other by telephone in August 2000 at the instigation of his brother-in-law.  At this time the father lived in Sydney and the mother in Lebanon.  They spoke to each other by telephone each day for about two and a half months. 

2. In October 2000 the father travelled to Lebanon to attend his sister’s wedding.  He and the mother commenced a relationship within a short time and married in Lebanon in February 2001. 

3. The father returned to Australia in March/April 2001 and the mother remained in Lebanon.  The child was born in Lebanon in November 2001 and came to Australia with her mother on 10 January 2002.  The maternal grandparents also came to Australia in June 2002.  The mother’s mother returned to Lebanon in June 2003.  Her father still lives in Sydney and shares accommodation with the mother and the child. The mother said that he has remained in Australia to seek medical treatment, for an undisclosed condition, but intends to return to Lebanon.

4. The mother and the child went to Lebanon in September 2003 and remained there until 24 February 2004.  She and the child were again in Lebanon between 19 April 2004 and 7 June 2004 and subsequently from 9 August 2004 until 9 February 2005.  On 16 May 2005 the mother and the child again returned to Lebanon and this time remained there until 14 February 2007.

5. The father travelled to Lebanon on 25 December 2006 and stayed there until 14 January 2007.  The parties and the child spent one week together at Daydream Island in February 2007, after the mother returned to Australia on 14 January 2007.  The mother and the child then lived with the paternal grandparents until April 2007.  By this time the parties’ relationship had broken down completely.

6. On 22 April 2007 the father obtained an order that the child’s name be placed on the airport watch list.  Apparently he made this application through the after-hours service conducted by the Federal Magistrates Court.

7. Police officers attended an incident between the parties at the former matrimonial home in G on 12 May 2007.  The result was that a provisional apprehended violence order was taken out for the protection of the mother. 

8. In the absence of the father, the Local Court issued an interim apprehended violence order against him on 17 May 2007.  This order became final, by consent, on 16 July 2007. 

9. On 8 August 2007 the father was charged with breach of an apprehended violence order after an incident at a shopping centre.  Further charges were laid against him following another incident, at a shopping centre in another suburb, on 18 September 2007. 

10. Following these incidents the father moved to Canberra.  He soon returned to Sydney and lived with his parents at D.  His father died in July 2007 and he now shares the home with his mother and brother.  His sister and her children stayed in the house for a period after the breakdown of her marriage.  The father’s sister L was married to the mother’s brother, R.

11. In November 2007 interim orders were made which provided that the child spend time with her father each Saturday from 12:00 noon until 6:00pm for six weeks.  It seems that only one of these visits took place.

12. On 4 August 2008 interim orders were made which provided that the child spend time with her father each Saturday and then on Saturday and Sunday until 5 October 2008.  On 18 December 2008 further interim orders were made, on the application of the Independent Child’s Lawyer and with the consent of the father.  These orders provided that the child live with her father:

    ·from 12:00 noon until 6:00pm on 25 December 2008

    ·each Friday, Saturday and Sunday from 10:00am until 6:00pm, commencing on 26 December 2008

    ·from after school on Friday until 7:00pm on Sunday for two out of three weekends, commencing in Term 1 of 2009

    ·on the basis of a three day cycle during the April 2009 school holidays

    ·for one half of all subsequent school holidays

    It seems that the child has lived with her father in accordance with these orders.

Approach to these Proceedings

1. Since the 2006 amendments to the Family Law Act, a number of first instance decisions have held that well established previous law governing “relocation” cases remains applicable.  That law is set out in authorities such as AMS v AIF (1999) FLC 92-825 (High Court of Australia); A & A (Relocation Approach) (2000) FLC 93-035 (Full Court of the Family Court of Australia) and U & U (2002) FLC 93-112 (High Court of Australia).

2. The principles which govern the determination of parenting proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory joint conferral.

3. If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each parent to have equal shared parental responsibility:  section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence:  sections 61DA(2) and 61DA(3).  This presumption may be rebutted if the court is satisfied that its application would conflict with the best interests of the child:  section 61DA(4)

4. When this presumption is applied, the court must first consider making an order for equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable.  If equal time is not in the best interests of the child or reasonably practicable, the court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable:  section 65DA(1) and 65DA(2)

5. The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5).  The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing him or her to share events of special significance with each parent.  In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement

6. If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined at large in accordance with the child’s best interests.  The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

7. The 2006 amendments to the Family Law Act introduced, inter alia, an obligation on the court to focus on two primary considerations and a number of additional considerations, in assessing what orders are in a child’s best interests: section 60CC. The primary considerations are the benefit to a child of having a meaningful relationship with each parent and the need to protect children from physical and psychological harm. These two considerations reflect the objects of Part VII, as set out in section 60B(1).

The Evidence and Witnesses

1. The only witnesses were the parties and the Family Consultant, Dr H, who prepared a report dated 25 November 2008.  I found Dr H’s evidence very helpful. 

2. Neither party impressed me as a truthful witness.  It is thus fortunate that the outcome of the proceedings does not turn, to any significant degree, on the credit of the parties.

Section 60CC(2):  The Primary Considerations

Section 60CC(2)(a):          the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. Since February 2009 the child has been spending overnight time with her father.  He said that she enjoys her time with him and his family and I have no reason to doubt that this is so.  It seems that she is currently in the process of building a loving, secure relationship with her father and paternal relatives.  I have every reason to think that her relationship with her father is currently “meaningful” and will become of even more benefit to her, if there is no interruption to its development. 

2. There is no doubt that the child has a meaningful relationship with her mother, who has been her primary carer for the whole of her life.  In my view it is now a priority that the child has the opportunity to strengthen her relationship with her father and paternal family.

3. The child will have a very limited opportunity to develop her relationship with her father and paternal family if she relocates to Lebanon with her mother.  For reasons which appear below, I am of the view that the mother is unlikely to encourage and facilitate the child’s relationship with her father, if she lives in Lebanon. I thus conclude that the proposal for relocation holds more disadvantages than advantages to her best interests, in terms of this consideration.

4. The proposal of the mother to reduce the child’s time with her father, and eliminate overnight stays, will do nothing to assist the development of their relationship.  This step would also hinder the child’s relationship with her paternal relatives.  As appears below, I am satisfied that the mother offered no valid justification for this proposal.  It seems to me that this proposal holds more disadvantages than advantages to the child’s best interests, in terms of this consideration.

5. The proposals of the father and the Independent Child’s Lawyer involve a change in the child’s primary residence from her mother to her father.  The orders sought by the Independent Child’s Lawyer would see her separated from her mother completely for an initial period of two months.  I have no doubt that she would suffer significant distress in these circumstances.  As will appear below, however, her educational and dental health needs would be well met by the father if there is a change in primary residence.  The advantages and disadvantages to the child’s best interests are finely balanced, in terms of this consideration.

   Section 60CC(2)(b):          the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

6. The mother attempted to portray the father as a violent man who was abusive to both her and the child.  It is probably the case that the child has witnessed high-level confrontation between her parents.  In my view, however, there are a number of indications that there is no need to protect her from abuse, neglect or family violence while in the care of her father.  As appears below there are reasons for concern that the mother has failed to attend to the child’s educational needs and dental health, to an extent which could be construed as “neglect”. 

7. The mother made one particular allegation that the father directed violence at the child.  In her affidavit sworn on 10 June 2009 she said:

   “On one occasion he screamed and hit [the child] when she didn’t have her jacket on…..”

   The date of this alleged abuse was unspecified.  She made no other allegations of any physical abuse of the child by the father.

8. When pressed by counsel for the Independent Children’s Lawyer on the reasons why she claimed that the father is a risk to the child’s safety, the mother said:  “he hit me in front of her” and “he hit me while I was holding her, when she was less than one year old”.  She then said:  “the next incident was in April 2007 when he tried to pull me out of bed while she was lying next to me”.  On the mother’s own evidence, therefore, there were no incidents which caused her concern for the child’s safety between 2002 and 2007. 

9. A further difficulty for the mother in pursuing this allegation was the evidence which she gave on 7 June 2007, during the apprehended violence hearing.  She said:  “I have no fears that he would abuse her but because my husband carries a number of names I have fears that he might kidnap her to a different state.”  She was then asked: “You just said you had no fear about [the father] harming your daughter in any way.  You just said that now?” and she answered:  “physically not but kidnapping her yes.”

10. The Family Consultant observed no indication that the child is fearful of her father.  Dr H reported:

    “[the child’s] attitude and behaviour did not confirm [the mother’s] earlier claims that the child does not want to see her father and is afraid of him”  and

    “Clearly, [the child] showed no sign of fear of or hostility towards [the father] when observed interacting with him.”

11. For these reasons I conclude that there is no need to protect the child from physical harm or abuse while in the care of her father, despite the allegations of the mother.  There was no suggestion that she is at any such risk in the care of her mother.

12. The mother made very general allegations that the father has been “violent” toward her in the child’s presence. There was little particularity to these allegations.

13. The file of the New South Wales Police Force in relation to the father (exhibit 16) shed some light on the mother’s allegations that the father has directed violence at her.  I should note that the father alleged that the mother is in a relationship with one Senior Constable P, an officer who has been involved in the apprehended violence proceedings.  I am in no position to make any finding about that allegation.

14. The first incident recorded in the police file was on 19 April 2007.  The parties argued about the mother’s refusal to adopt the father’s surname and her suspicions as to his allegedly dubious financial dealings.  There followed another argument on 21 April 2007 at the home of the father’s parents.  On this occasion a police officer applied for a non-urgent apprehended violence order for the protection of the mother. 

15. The next recorded incident was on 12 May 2007, at the former matrimonial home in G.  The mother went to the premises to collect certain items in the company of two men.  She claimed that she believed that the father would be away from the premises.  This statement conflicted with evidence which she gave during the apprehended violence proceedings on 7 June 2007.  She said then that she took the child with her to the house because:  “I thought it would be a good opportunity for the girl to see her dad”. 

1. In fact the father was at home when the mother and the two men arrived.  He claimed that he believed that the men were breaking into the premises and would injure him.  He said that he did not know these people and that he was afraid for his safety, so grabbed a kitchen knife for his own protection.  This explanation impressed me as logical and convincing.

2. The COPS entry stated that the mother informed officers that the child “saw [her father] make a threat”, while holding the knife, “which caused her absolute fear and caused her to urinate upon herself”.  The report continued:  “Police sighted the child to be fine.  The victim could not provide evidence of her claims that her daughter had urinated on herself due to fear caused by her father’s behaviour.  Her version stating that the child’s fear of her father were further disproved as the child ran towards him and hugged him at […] Police Station and seemed to be very happy in the presence of her father.”

3. The next incident recorded in the police file took place on 8 August 2007.  It seems that the father approached the mother and the child at a shopping centre, despite the fact that an apprehended violence order was in force.  He was charged with breaching this order. 

4. After another approach to the mother and the child on 18 September 2007, the father was charged with breaches of an apprehended violence order and bail conditions.  The police file, which was subpoenaed in March 2008, gave no indication of the outcome of these charges.

5. These incidents must have been distressing to the child.  It is probably the case that she has been present during further incidents of conflict between her parents. It would thus seem that there is a need to protect her from psychological harm arising from exposure to this conflict.

6. For reasons which appear below, in the context of the mother’s willingness and ability to encourage a close and continuing relationship with her father, I am of the view that there is a need to protect the child from psychological abuse by her mother.  As will become apparent, there are real indications that the mother places little value on the child’s relationship with her father.

7. As noted, there are reasons to conclude that the mother has neglected the child’s educational needs and dental health. I will refer to the relevant evidence below, in the context of the capacity of the parties to meet the child’s needs. 

8. In summary, the child requires protection from psychological abuse due to exposure to parental conflict and undermining of her relationship with her father and paternal family by her mother.  She also needs to be protected from neglect of her educational and dental health needs by her mother.

9. Neither of the two proposals of the mother would offer any advantage, in terms of protection of the child from undermining of her relationship with her father and paternal family or neglect of very basic needs by her mother.  As noted, I am satisfied that these risks would be enhanced by a relocation of the child to Lebanon as the father would have little or no opportunity to monitor these issues.

10. The proposals of the father and the Independent Child’s Lawyer have the advantage of meeting these concerns.  There remains the disadvantage of potential exposure of the child to conflict between her parents.  In terms of this consideration, the advantages to the child’s best interests outweigh the disadvantages in the context of these proposals.

The Additional Considerations

Section 60CC(3)(a):          any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. The mother relayed to the Family Consultant that the child is “unhappy in Australia in contrast to the happy young girl she had been in Lebanon”.  Having interviewed the child, however, Dr H reported:

   “Unsolicited, [the child] voiced a preference to remain in Australia, even though she said that she misses her maternal grandmother and cousins who are in Lebanon”.

2. I accept without question that the child expressed this view to Dr H.  It seems that the mother projected onto the child her own alleged unhappiness with life in Australia. 

3. The child has expressed certain views to a counsellor, Ms D, whose file was in evidence (exhibit 14).  The mother took the child to see this counsellor on 15 April 2009, without the knowledge or consent of either the father or the Independent Child’s Lawyer.  Ms D has never interviewed the father or observed the child’s interaction with him.

4. Ms D appears to have embarked on a process of counselling both the mother and the child.  It was not clear whether she sees them together or individually.  It seems that she accepted as truthful all which the mother has reported to her, including her complaints about the father’s alleged violence and poor character and the child’s supposed unhappiness in his care.

5. Ms D’s notes of 29 April 2009 stated that the child said:

   “He is mean to me.  I am sad when I go to my dad.  I’m happy with my mum.  I like it at dad’s when my cousins are there.  I get to feed the baby.”

   Similar comments were recorded in the notes of 15 April 2009 and 22 April 2009.

6. I do not place significant weight on these reported views of the child for a number of reasons.  Firstly, Ms D’s notes do not indicate whether the mother was present when the child made these statements.  Secondly, the context in which the child made these remarks is unknown.  Thirdly, these stated views of the child conflict with Dr H’s observations of her positive interaction with her father.  Finally, I have real concerns about Ms D’s objectivity, given that she appears to have been counselling both the mother and the child.

7. In any event the child’s views are not a compelling consideration.  She is only 7 years old and caught in a situation of high conflict between her parents.  There are far more compelling considerations, in terms of assessing what orders are in her best interests, than any views which she may have expressed.  I thus regard this consideration as neutral, in terms of advantages and disadvantages to the child’s best interests, of any of the proposals of the parties and the Independent Child’s Lawyer.

   Section 60CC(3)(b):          the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

8. As noted, the child has been in the primary care of her mother for the whole of her life.  There could be no doubt that the mother is her primary attachment figure, as can be inferred readily from Dr H’s report. 

9. The child has been separated from her father for lengthy periods while in Lebanon with her mother.   Although she was in Australia in 2007 and 2008, she did not spend regular time with him.  Since February 2009, however, overnight stays have commenced and the child’s time with her father has been regularised.  She has also had the opportunity for regular, frequent time with her paternal grandmother, uncle, aunt and cousins. 

10. The continuing allegations of the mother that the child does not want to go with her father and becomes distressed on changeovers are the only possible indication that there is any difficulty in the paternal relationship.  She made these complaints to Ms D in April, May and June 2009. Interestingly, however, she made no specific allegations of this nature in her affidavit sworn on 10 June 2009.

11. In that affidavit the mother said, referring to the child’s counselling sessions with Ms D:

    “She asked [the child] to draw a picture about how she felt when she was at the Applicant’s house and she drew a picture showing a face with big tears running down her face.”

    She said also:

    “I try to obey the Court’s orders about [the child] spending time with her father but she often says that she does not want to go to him and then I do not want to force her to go.”

12. She gave no other evidence on this subject.  The mother gave no specific examples of occasions when the child has been reluctant to go with her father.  She gave no evidence of what the child has allegedly said or how she behaves so as to suggest a reluctance to spend time with her father.  She made no allegation that there has been any occasion when the child did not go with her father in accordance with the orders of 18 December 2008 and 9 April 2009. 

13. It is telling that Ms D noted, on 9 April 2009, that the child “was upset and crying when her dad told her he wants to take her away for holiday at the last pick up from police station by dad”.  As a result of the orders of 18 December 2008, the father had not collected the child from a police station since the beginning of Term 1 in 2009.  He had collected her from school on Friday afternoon about 6 times.

14. Orders made on 9 April 2009 defined the dates of the 3 day cycles of time which the child spent with each of her parents during the April 2009 school holidays.  These orders provided that the father was to collect the child from C Police Station at 3:00pm on 9 April 2009, that is, the day of this counselling session with Ms D.  It seems likely that the mother took the opportunity to remind the child of a comment her father may have made in the past and to prompt her to make a complaint to Ms D.

15. It is also interesting to note that, on 22 April 2009, the child told Ms D that she was sad because “I have to go with dad today”.  Pursuant to the orders of 9 April 2009 the child went into the care of her father at 3:00pm on 21 April 2009, as part of the 3 day cycle.  The mother made no suggestion that this arrangement could not be implemented, due to distress on the child’s part or for any other reason.  For these reasons, I have serious doubts that the mother gave truthful evidence about reluctance on the child’s part to spend time with her father.

16. It is my assessment that any reluctance which the child may show in going to   her father is likely to be generated by her awareness that her mother does not support her relationship with him.  I am far from satisfied that there is any real ongoing difficulty with changeovers, given that the only evidence is that of the mother.  Changeovers during the April 2009 school holidays took place at C Police Station.  There was no evidence of any observations by police officers of distress or reluctance on the child’s part to go with her father.  I thus conclude that the child is developing a strong, loving and positive relationship with her father and paternal family.

17. Obviously, these important relationships would be compromised if the child moves to Lebanon with her mother.  Distance alone would bring about this result, leaving aside my real concerns that the mother would take the opportunity to undermine the child’s relationships with her father and paternal family.  I thus conclude that the proposal to relocate to Lebanon holds more disadvantages than advantages to the child’s best interests, in terms of this factor.  Her alternate proposal would limit the father’s role and significance in the child’s life but the disadvantages to her best interests would not be nearly as great as would be the case with a relocation to Lebanon.

18. The proposals of the father and the Independent Child’s Lawyer hold the significant disadvantage of separating the child from her primary carer.  In my assessment, all of the proposals advanced hold more disadvantages than advantages to the child’s best interests in terms of this consideration.

    Section 60CC(3)(c):          the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

19. My impression was that the father would facilitate and encourage a close and continuing relationship for the child with her mother.  I cannot say the same in relation to the mother. I share the concerns of Dr H, who said:  “I don’t see much evidence that she would encourage [the child’s] relationship with her father.  I do not see goodwill.”

20. The mother has a disturbing history of failure to make the child available to spend time with her father and an apparent open disregard for court orders.  The father said that she told him on 27 December 2008:  “I don’t care about any court orders” and on 2 January 2009:  “I don’t care about orders or what any judge or solicitor has to say”.  I accept that she made these statements.  It was my impression that these comments accurately reflect her attitude to the child’s time with her father. 

21. On the other hand, it appears that the child has been spending time with her father in accordance with the interim orders of 18 December 2008 and 9 April 2009 without difficulty.  For her sake, I can only hope that there has been a softening in the attitude of the mother.

22. The police file (exhibit 16) provided illustrations of pressure placed on the child by the mother at times of changeover.  The accounts of police officers suggest that she did little or nothing to alleviate the child’s distress or to encourage her to go with her father.

23. On 1 December 2007 an officer noted that the child was “upset and crying at the initial process of being given to [the father] and this emotional level has then progressed into [her] being hysterical.”  The COPS entry continued:  “police could see and hear [the child] being hysterical and fighting against [the father].  The fighting consisted of physically hitting and scratching [the father]”.

24. The notes stated that the mother was “extremely upset about the process and was needing police support”.  Officers took her into an interview room “in an attempt to calm this person”.  There was no indication that she took any steps to calm the child or encourage her to go with her father. Ultimately, police officers persuaded the father to abandon the visit.

25. A police officer described the incident on 8 August 2007 at a shopping centre.  He noted that the mother said to the child:  “Your father is here, do not go with him.  He will take you.  If he tells you to come don’t go.”   Obviously the father should not have approached the mother, as he was subject to an apprehended violence order.  She, however, should not have made such an inappropriate comment to the child.  Significantly, she denied in cross-examination that she had told the child “that her father will do something horrible to her, kidnap her”.  It is plain that she did so on this occasion at least, and probably at other times as well.

26. The attitude of the mother towards the child’s time with her father seemed to be summarised by a comment she made in cross-examination.  She said:  “Initially she used to suffer every time she went to stay overnight but I told her that I would be imprisoned if she did not go.  I said that she had to do it until this hearing and then the problem would be solved.”

27. The mother was obviously oblivious to the pressure and inappropriate sense of responsibility which this comment must have placed on the child.  She burdened the child with a belief that her mother would be taken from her and put in prison if she refused to go with her father.  It is very disturbing that the mother led the child to believe that there is a nexus between her spending time with her father and saving her mother from imprisonment. 

28. The mother has been prepared to ignore court orders for the child to spend time with her father, despite the fact that a finalisation of these proceedings was pending.  This attitude confirms for me that she did express to the father that she is unconcerned about orders of the court.   Although there is some reason to hope that her attitude has softened in recent times, there is a very real concern that she would fail to facilitate the child’s relationship with her father if she is able to move to Lebanon with the security of final orders and residence in a country which is not a signatory to the Hague Convention.  For these reasons I conclude that the relocation proposal holds more disadvantages than advantages to the child’s best interests, in terms of this factor.

29. The alternative proposal of the mother could also be seen to be unsupportive of the child’s relationship with her father and paternal family and thus holds more disadvantages than advantages to her best interests, in terms of this consideration.  As I am confident that the father would facilitate the child’s relationship with her mother, I conclude that his proposal and that of the Independent Child’s Lawyer hold more advantages than disadvantages to her best interests in terms of this consideration.

    Section 60CC(3)(d):          the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents;  or

    (ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

30. On the mother’s proposal, a relocation to Lebanon would mean that the child would see her father and paternal family once per year in Australia.  For reasons which I have indicated, I am not at all confident that she would obey any orders which I might make for her to return to Australia so that the child could spend time with her father and his family.

31. The child has lived in Lebanon for a substantial part of her life, so she would experience no difficulty in adjusting to the culture of a different country.  She has previously attended the school where the mother proposes that she will be enrolled.

32. Significant aspects of the details of the proposal of the mother for the child to live in Lebanon were uncertain.  Her work commitments are unknown, as are the arrangements she would make if employment made her unavailable to care for the child.  She said that she would obtain assistance from her mother and sister but they gave no evidence that they are willing or able to do so.

33. The mother said that she would stay with her parents initially, while she arranged her own accommodation.  There was no evidence from her parents that they are able to offer this assistance.  In fact, there was no evidence that her father would by then have returned to Lebanon.  Further, there was no evidence as to the cost or availability of suitable rental premises. 

34. The mother said that the school fees at the proposed school are US$2,000 per term or per annum.  She did not seem to be sure how much it would cost for the child to attend this school.  She said that she would be able to pay these fees from income she could earn from modelling work.  Her employment plans were vague, thus I cannot be confident that she could afford to pay these fees. 

35. Dr H identified a real risk to the child’s relationship with her father if she lives in Lebanon with her mother.  He reported: 

    “If [the mother] were to take [the child] to live in Lebanon, the likelihood of [the father] playing a parental role in the child’s life appears very slim.  There is not presently any cooperative parental alliance, nor is there any indication of a strong joint parental commitment to providing the child the opportunity to have both parents in her life.  The distance between Lebanon and Australia and the cost of travel between the two countries would almost certainly militate against [the child] being able to spend any significant time with her father.”

36. As noted, the mother’s history of non-facilitation or obstruction of the child’s time with her father gives me no cause for confidence that she would support the paternal relationships if they live in Lebanon.  In my opinion there is a real risk that she would take advantage of distance and the fact that Lebanon is not a signatory to the Hague Convention to undermine the child’s relationship with her father and his family.

37. The mother’s alternate proposal also involves substantial changes for the child.  I digress to note that there is a significant difference between the proposals set out in her amended application, dated 10 June 2009, and a Minute of Orders submitted at the commencement of the trial on 15 June 2009.  Initially her position was that the child should spend alternate weekends, from Friday afternoon until Sunday afternoon, and half of all school holidays with her father.  Five days later, she sought orders that the child’s time with her father be limited to day periods only.  There was no explanation for this significant change in her position.

1. The father’s proposal, too, involves significant changes for the child.  She would be required to adjust to the primary care of a parent with whom she is still in the process of building a close, secure relationship.

2. The father’s work commitments are not yet defined.  He is in the process of organising employment in a business operated by his brother.  At the time of the trial, his plan was to work from home.  I am of the view that the father would tailor his work commitments to ensure that the child receives proper care.

3. The father was strongly opposed to the proposal for a change of school to J School.  He complained, with some justification, that the mother has provided him with no information about this school. Similarly, she adduced no evidence which would enable me to assess whether a change of school would benefit the child.

4. The mother claimed that the child is the victim of bullying at S School.  There was no evidence of any such bullying or that the child is unhappy at the school for any other reason.  The Independent Child’s Lawyer has been in regular contact with school personnel and had access to the child’s file during these proceedings.  I have no doubt that she would have led evidence that the child is bullied or is otherwise unhappy at school, if that had been the case.

5. In these circumstances, it is difficult for the mother to succeed in her application for a change in the child’s school.  She has a legitimate difficulty in getting the child to S School on time by public transport. I address this problem, to the extent which I can, in the orders which I will make.

6. All of the proposals advanced by the parties hold disadvantages for the child’s best interests, in terms of this factor.  The least advantageous proposal is the suggested relocation to Lebanon, because of the real risk of damage to the child’s relationship with her father and paternal family.

7. There can be no doubt that the child would miss her mother greatly, if she is suddenly placed in the primary care of her father.  I am confident that the father would make proper arrangements for her care and, in fact, bring about considerable improvements in terms of her school attendance and dental health.  I expect that it would be a challenge for him to cope with her distress at separation from her mother. The proposals of the father and the Independent Child’s Lawyer thus hold starkly contrasting advantages and disadvantages to the child’s best interests, in terms of this consideration.

8. I can see no advantage to the child’s best interests in the proposal to limit her time with her father to day periods. The mother advanced no good reason for such a change and, in my view, this proposal is no more than an illustration of her lack of respect for the child’s relationship with her father and paternal family.  In my view it is clear that this proposal holds more disadvantages than advantages to the child’s best interests, in terms of this factor.

   Section 60CC(3)(e):          the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

9. The mother lives in rented accommodation in J in Sydney’s south-west.  She is solely reliant on public transport.  The father lives in a more central suburb and has a car.  He is thus able to move around Sydney much more freely than is the mother. 

10. The father offered to arrange rented accommodation for the mother and the child closer to S School.  He claimed, and I accept, that the mother has been uncooperative in putting this plan in place.  Specifically, he alleged that she insisted that he accompany her on inspections of potential premises.  He refused because there was an apprehended violence order in operation, which is an entirely reasonable response.  Further, he said that she insisted that he accompany her at a time when he was suffering from gout and found it painful to walk.  On another occasion he was unable to get to a real estate agent’s office in time to pay a rental deposit.  He asked the mother to pay the deposit, presumably on the basis that he would reimburse her, but she refused.

11. Arrangements for the child to spend quality time with each of her parents will obviously be made much easier if the father does arrange accommodation for the mother in the S area.  I would encourage him to renew his efforts and for the mother to adopt a more reasonable response.

12. There would be obvious practical difficulty and expense in the child’s spending time with her father and paternal family if she moves to Lebanon.  She would not be able to travel unaccompanied between Lebanon and Australia for several years.  It would thus be necessary for one of her parents to make these international trips with her.  There is an obvious issue with the cost of the flights, plus accommodation and living expenses for the father in Lebanon and the mother in Sydney.

13. Obviously, the proposal to relocate to Lebanon holds more disadvantages than advantages to the child’s best interests, in terms of this consideration.  Otherwise, all proposals which would see the child and both of her parents living in Sydney would be neutral to her best interests, in terms of this consideration.

    Section 60CC(3)(f):  the capacity of:

    (i)each of the child’s parents;  and

    (ii)     any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    Section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

14. As noted, I have doubts as to the mother’s capacity to provide for the child’s needs and her attitude to the responsibilities of parenthood.  I have referred already to one major area of concern, which is her lack of respect for the child’s relationship with her father and paternal family.

15. The mother claimed that her attitude has been influenced by the father’s allegedly nefarious financial dealings and violence.  I have already considered the evidence in relation to the allegations of violence.

16. I am in no position to make findings with regard to the allegations as to the father’s pattern of dishonest behaviour.  In any event, I agree with Dr H’s opinion that “if he is a shady character, he may still be a reasonable enough father”. 

17. The mother has been unable to ensure that the child arrives at school on time, or attends at all, on a consistent basis.  The school records show that the child was absent for 71 days and arrived late on 23 days in 2007.  One effect of these absences is that it has been necessary for the child to repeat a grade in 2009.  This disruption to her educational progress could probably have been avoided if she had attended school consistently.

18. In part the mother explained the child’s non-attendance at school on the basis of her alleged fear that the father would “kidnap” her.  In my view, there was no valid basis for this alleged fear.  In any event, the mother could have taken far more constructive steps to prevent any “kidnapping”. For example, she could have approached the court for orders to prevent the father from attending the school other than for specified purposes.

19. As noted, I accept that the mother had a legitimate explanation for some of the child’s late arrivals at school.  She said that it is a 10 minute walk from her home to J Station and then a 40 minute train trip to S.

20. Computer generated train timetable and trip planner search results were in evidence as exhibit 8.  The trip planner showed that the distance between the Station and S School is approximately 1,200 metres.  To be sure of arriving at school before the commencement time of 8:45am, therefore, the mother and the child would have to catch a train at J at around 7.20 am.  The 7:30am service arrives at around 8:30 am and the 7:50 am train at around 8:40 am.  Neither of these services, assuming an on-time arrival, would allow sufficient time for the mother and the child to walk to the school by 8:45am.

21. For these reasons I accept that the mother has experienced genuine problems in getting the child to school on time by public transport on some occasions.  On the other hand, I am satisfied that she failed to cooperate with the father in organising accommodation closer to the school.  The problem could have been solved if she had accepted his offer graciously, and focussed on the benefits to the child, rather than seizing the opportunity to create difficulties.  Further, it is of concern that she said in her oral evidence:  “on most days she was late she didn’t want to leave home”.  Obviously, it is not for a 5 year old child to decide whether or not she would leave home to go to school.  It is the responsibility of a parent to ensure that she attends school punctually.

22. It should be remembered, however, that the mother told the child that her father would “take” her at least once (exhibit 6).  In my opinion it is highly unlikely that she made such comments only on an isolated occasion.  It could thus have been that the mother instilled in the child a fear that her father would “take” her if she attended school.

23. Another matter of concern in relation to the mother’s capacity to meet the child’s needs is the state of her dental health.  The records of the Sydney South-West Oral Health Service were in evidence as exhibit 9.  A referral dated 5 September 2008 stated:  “ …multiple caries due to poor OH and diet.”  A form headed “recommendation for admission” to Hospital stated it was necessary for the child to undergo a general anaesthetic to enable a dentist to extract some of her teeth.  As far as I am aware, this treatment has not taken place.  The Health Service records support the father’s contention that the child regularly eats sugary foods and fails to brush her teeth while in the care of her mother. 

24. The father said, and I accept, that he has made four attempts to take the child to a dentist but the mother has not delivered her to attend the appointments.  I find it difficult to understand why the mother would prefer to frustrate the father’s endeavours than to cooperate with him in securing proper dental treatment for the child.  

25. The father is largely untested as a primary residence parent.  I take some reassurance, however, from Dr H’s opinion and assessment that: 

    “He is certainly keenly conscious of [the child’s] educational needs and seems more committed than [the mother] to provide for those needs.  He also displays a capacity to enter into the child’s play world.”

26. Since Dr H’s interviews and observations in mid-November 2008, the child has regularly spent alternate weekends and block periods during school holidays in the care of her father.  The mother made the following complaints about these overnight periods: 

    ·The father slept on or in the same bed as the child while he was wearing only boxer shorts

    ·The child returns home without having been showered and wearing the same underclothes in which she left

    ·The child’s hair has not been brushed when she returns

    ·The father lives with his girlfriend at an unknown address, rather than at the home of his mother.

27. The father denied these allegations.  He said that he and the child once fell asleep while watching television on his brother’s double bed.  Otherwise, she sleeps in her own bed in her room.  He denied that he wears “revealing underwear”. 

28. The father said that the child wears clothes which he has purchased while in his care.  His mother washes her school uniform and any other clothes which she brings with her.  It would thus be logical that she would return to her mother in the same underwear in which she left her home.

29. The father said that the child initially told him that she was “fearful that she would get into trouble with Mum if she had a shower”.  Such a comment would be consistent with other attempts by the mother to undermine the child’s relationship with her father.  He said that she now “easily follows the routine for showering, teeth cleaning” which he has explained to her.  He said that his sister has helped with showering and brushing the child’s hair.

30. The father denied that he has a girlfriend or that he lives anywhere other than at his mother’s home in D.  This allegation was based solely statements allegedly made by the child to her mother.  I accept that the father has no current relationship and lives at D with his mother and brother.

31. I accept that the father is conscious of a need for structure in the child’s life and that he has established a routine for her in his home.  I find no substance in the mother’s complaints about overnight time.  I consider it likely that she is displeased about the child’s growing relationship with her father and paternal family and advanced these complaints in an attempt to use these proceedings to limit their involvement in her life.

32. There are deficiencies in the capacity of each of the parties to meet the child’s needs and real concerns about the mother’s attitude to the responsibilities of parenthood.  The disadvantages of a relocation to Lebanon, in terms of this consideration, are the mother’s inability or unwillingness to recognise the significance of the child’s relationship with the paternal side of her family and her failure to cater for her educational and health needs.  The father would have little of no opportunity to monitor the child’s educational progress and the mother’s attention to her health needs.  I reiterate my concerns as to the likely fate of the child’s relationship with her father and paternal family, if she moves to Lebanon with her mother.  In terms of this consideration, the relocation proposal holds more disadvantages than advantages to the child’s best interests.

33. The mother’s alternate proposal does nothing to address the problems of the child’s irregular school attendance and neglect of her dental health.  On the contrary, her proposal to cut down the child’s time with her father would eliminate some opportunity for him to monitor these difficulties.  In my view, it is clear that this proposal holds more disadvantages than advantages to the child’s best interests.

34. The father’s proposal, that the child lives with him on school days and with her mother on weekends and during school holidays, has the advantages that she would attend school regularly and that her health needs would receive proper attention. The disadvantage would be her distress at separation from her primary carer.  The advantages and disadvantages to the child’s best interests, in terms of this consideration, are finely balanced.  The same observations apply to the proposal of the Independent Child’s Lawyer.

    Section 60CC(3)(g):          the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

35. The child is a seven year old girl with Lebanese Christian heritage.  She has lived in both Australia and Lebanon.  This consideration is neutral, in terms of advantages and disadvantages to the child’s best interests, in terms of all proposals advanced by the parents and the Independent Child’s Lawyer.

    Section 60CC(3)(j):  any family violence involving the child or a member of the child’s family;

    Section 60CC(3)(k):          any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order;  or

    (ii)     the making of the order was contested by a person

36. I have dealt already with the evidence relevant to these two considerations.

    Section 60CC(3)(l):  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

37. If the mother takes the child to live in Lebanon, there is a real prospect that she will fail to obey orders for her to spend time with the father.  It is thus likely that there will be further litigation, especially as there are unresolved property proceedings which will necessitate that she returns to Australia from time to time.  This proposal thus holds more disadvantages than advantages to the child’s best interests, in terms of this consideration.

38. There is likely to be further litigation, on any other proposal, if the mother continues to obstruct or fail to facilitate the child’s time with her father.  This consideration is thus otherwise neutral, in terms of the advantages and disadvantages to the child’s best interests.

Evaluation of the Proposals of the Parties and Independent Child’s Lawyer

1. It follows that I conclude that the proposal which offers the fewest advantages to the child’s best interests is that of the mother to relocate with her to Lebanon.  I have real concerns that her relationship with her father and paternal family would be imperilled in these circumstances.  I have real concerns that the mother would fail to attend properly to her needs, particularly with regard to her health, if the father has little or no opportunity to monitor the situation by regular contact with the child.

2. I have concerns also about the proposal of the mother to reduce the child’s time with her father to day periods.  As noted, she failed to justify this proposed change to the current arrangements.  It seemed to me that she was motivated by a desire to limit the father’s involvement in the child’s life, rather than a genuine concern for her welfare.  I am concerned that the mother would frustrate even this limited time for the child with her father and paternal family. 

3. I have concerns also about the proposal of the father that the child live with him on school days and with her mother on weekends and during holidays.  As Dr H noted, in this arrangement “the child would be separated from her mother who has been her primary carer and strong attachment figure throughout her life”.   The child could only be very distressed, at least initially, if this proposal is implemented.  On the other hand, she would attend school regularly and her health needs would be properly addressed.  I am confident that the father would facilitate an ongoing relationship with her mother.

4. I make a similar evaluation of the proposal of the Independent Child’s Lawyer, with the rider that the 2 month hiatus in the child’s time with her mother would be likely to enhance her distress.  I appreciate the logic of the proposal but I have concerns that the father would be unable to cope with the child’s reaction to this substantial change. 

The Presumption of Equal Shared Parental Responsibility

1. The Independent Child’s Lawyer submitted that the father and the mother should have equal shared parental responsibility other than for decisions relating to the child’s education, which should fall solely to him.  I accept that there are valid reasons for such an order, being principally that the mother has failed to ensure that the child attends school on time and regularly.

2. I am then required to consider whether it is in the child’s best interests, and reasonably practicable, for her to spend equal time with each of her parents.  Obviously, an equal time arrangement is impossible if the child and her mother live in Lebanon and her father remains in Australia.  If both parents and the child remain in Sydney, an equal time arrangement would be problematic because of the high level of conflict between them.  I can see little reason for optimism that they could alter their attitudes and focus on the child’s best interests.

3. It then is necessary for me to consider whether it is in the child’s best interests, and reasonably practicable, for her to spend substantial and significant time with each of her parents.  It seems to me that a mix of the proposals which would see the child remaining in Australia would is most likely to best meet her interests.  It would assist in her regular attendance at school if the child spends time with her father during the week, rather than on weekends.  On the other hand, she should have some leisure time with her father and his family and her mother should have the opportunity to be involved with her school environment.  There is no reason why the child should do other than share her school holidays equally between her parents.  She should have the opportunity to share special occasions with each of her parents.

1. It seems to me that the best arrangement for the child would be for her to live with her father from 12:00noon on Sunday until the commencement of school on Wednesday in each week and otherwise with her mother.  The father would then be able to take her to school on 3 out of 5 mornings each week.  The mother should take heed that a continued failure to ensure that the child attends school on time and regularly may well put at risk ongoing residence with her on Thursdays and Fridays.  She could take steps to alleviate her difficulties with public transport by cooperating with the father to rent accommodation closer to S School.  The father could make all necessary appointments for the child’s dental health needs to be addressed while she is in his care.

2. This arrangement will allow the child some weekend leisure time with her father and paternal family.  She will also have the opportunity for enjoyable activities with him during school holidays.  I thus am of the view that this arrangement would mean that the child spends “substantial and significant time” with each of her parents.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              7 September 2009