Ryan and Russell
[2013] FamCA 787
•4 October 2013
FAMILY COURT OF AUSTRALIA
| RYAN & RUSSELL | [2013] FamCA 787 |
| FAMILY LAW – CHILDREN – INTERIM ORDERS – With whom a child lives – where the applicant father seeks orders providing for the child to live with him in Australia – where the respondent mother seeks orders providing for the child to live with her in Country J – best interests – orders made providing for the child to live in Australia with the father and to spend time with the mother in Australia as agreed between the parties. |
| Family Law Act 1975 (Cth) s 60CA; 60CC; 61DA; 64B; 65AA; 65DAA Hague Convention on the Civil Aspects of International Child Abduction Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children |
| Cilento & Cilento (1980) 6 Fam LR 35 ZP v PS (1994) 181 CLR 639 Cowling & Cowling (1998) 22 Fam LR 776 Goode & Goode (2006) 36 Fam LR 422 Kwon & Lee [2006] FLC 93-287 Karim & Khalid [2007] FLC 93-348 Morgan & Miles [2007] FLC 93-343 McCall & Clark [2009] FLC 93-405 Zabini & Zabini [2010] FamCAFC 10 MRR v GR (2010) 240 CLR 461 Marvel & Marvel (2010) 43 Fam LR 348 Pascarl & Oxley [2013] FLC 93-536 |
| APPLICANT: | Mr Ryan |
| RESPONDENT: | Ms Russell |
| FILE NUMBER: | ADC | 2409 | of | 2013 |
| DATE DELIVERED: | 4 October 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 13 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGinn |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke, QC |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon Lawyers |
Orders
BY WAY OF INTERIM ORDER AND UNTIL FURTHER ORDER:
The mother and father do have equal shared parental responsibility for the child B (the child) born on the … 2009.
The child B do live with the father.
The mother spend time with the child in Australia as agreed in writing between the parties and failing agreement that the mother have liberty to apply to the Court on short notice.
The father make the child available for communication by Skype with the mother on two [2] occasions per week at times to be agreed between the parties in writing and failing agreement at 6.00 pm Friday and 6.00 pm Tuesday each week.
Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child B born on the … 2009 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.
Consideration of the final orders sought in the father’s Initiating Application filed 4 July 2013 and the mother’s Response filed 20 August 2013 are adjourned to a date to be fixed by the Registrar as a matter of priority.
Paragraphs 3, 4, 5, 6, and 7 of the Orders made on 24 July 2013 by the Honourable Judge Cole of the Federal Circuit Court of Australia do continue in operation until further order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryan & Russell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2309 of 2013
| Mr Ryan |
Applicant
And
| Ms Russell |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns parenting orders sought on an interim basis by Mr Ryan (“the father”) and Ms Russell “(the mother”).
The proceedings concern the child of the parties B (“the child”). The child was born in 2009 and is now aged four.
Background
This section of the judgment seeks to “identify any agreed or uncontested relevant facts” in accordance with the approach to interim parenting proceedings outlined in Goode & Goode (2006) 36 Fam LR 422 at 445 (per Bryant CJ, Finn and Boland JJ).
In summarising those uncontested relevant facts, I have sought to avoid being “drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible” (Goode & Goode (Supra) at 441).
The wife was born in 1973 in the city of C in the Country D. She is 40 years of age. She is a citizen of the Country D and holds a Country D passport. The mother has in the past also held an Australian Partner Visa. She is not an Australian citizen.
The husband was born in 1974 in Country E. He is 38 years of age. He is an Australian citizen. The father states that he grew up in Australia and regards Australia as his home. His mother, step-father, sister and extended family also reside in South Australia.
The parties met in September 2007 in the city of City F in the Country G. The father had been living and working as an architect in City F since early 2005. The mother had been living and working as a teacher in City F since approximately September 2006.
The parties commenced cohabitation in approximately March 2008. The parties were married in 2009 in Country H.
The child was born in 2009 in City F.
The parties travelled to Country I in September 2009 with the hope of finding work.
The parties left Country I in October 2009 and moved to Adelaide. The parties lived with the father’s family members and friends initially. The father accepted a contract position as a manager in approximately November 2009. The father typically worked from 8.30 am to 5.30 pm. The contract was renewed on a number of occasions before expiring in November or December 2010.
The parties moved into rented accommodation in Adelaide in May 2010.
The mother applied for Australian Residency in January 2010.
The parties travelled to the Country D in December 2010 to spend time with the mother’s family. The father stayed for two weeks before returning to Adelaide. The mother and the child stayed in the Country D for a further ten days before returning in January 2011.
The parties came to an agreement that they would begin making arrangements to live in Country J. The father commenced looking for employment in Country J. That search was unsuccessful. The father did, however, gain employment with a company in City F in February 2011. The father moved to City F whilst the mother and child remained in Adelaide.
The mother was seeking employment opportunities in the Middle East whilst she remained in Adelaide. She was offered a teaching position in Country J some time between January and March 2011. She moved to Country J with the child in August 2011. The father took two weeks off work to assist the mother and the child in establishing themselves in Country J.
Adelaide was the home of the family from October 2009 until February 2011. The child lived in Adelaide from October 2009 until August 2011 apart from a brief holiday in Country D.
The father was unable to have his position in City F transferred to Country J until February 2012. Between August 2011 and February 2012, the father travelled from City F to Country J to spend time with the mother and the child on weekends.
In September 2012 the child commenced the Country J equivalent of Kindergarten.
The paternal grandmother lived with the parties in September 2012 to assist with the care of the child. The maternal grandmother lived with the parties in October 2012 to assist with the same.
The parties employed a resident housekeeper and child minder named Ms K in October 2012.
The parties travelled to Adelaide for a month to celebrate Christmas in 2012. The mother returned to her work in Country J in early January 2013. The father and the child remained in Adelaide until mid-January 2013.
The mother’s solicitors filed a divorce petition on behalf of the mother in the City C County Court in Country D on 20 June 2013. The divorce petition is part of Exhibit 1. It was signed by the mother on 18 June 2013.
The petition stated that the mother was domiciled in Country D at the date the petition was issued. The petition referred to the arrangement proposed for the child which included referring to her current address in Country J. It stated at Part 2, paragraph 4:
Currently the Petitioner and Respondent still live at the same address. It is, however, anticipated that the parties will separate and thereafter an agreed pattern of contact will take place to enable [B] to continue to spend time with her Father.
The paternal grandmother travelled to Country J on 20 June 2013 for the child’s birthday.
The mother last saw the child on 22 June 2013 in Country J.
On 23 June 2013, the paternal grandmother, the father and the child travelled form Country J to City F. There is a dispute as to whether this trip occurred with the consent of the mother.
Later that day, the paternal grandmother received news that her husband (the father’s step-father) had been hospitalised with heart problems. The paternal grandmother returned to Adelaide immediately. The father made the decision to accompany the paternal grandmother back to Australia. The father brought the child with him to Adelaide. They arrived in Adelaide on 24 June 2013. The father admits that he did not inform the mother that he took the child from City F to Australia until after they had arrived in Australia.
The mother emailed the father on 25 June 2013 querying when the child would be returned to Country J. The email speaks of a holiday that the mother planned to commence on 5 July 2013.
The father replied to the mother’s email via text on 28 June 2013, stating that he planned to return to Country J with the child by 4 July 2013.
Some time between 28 June 2013 and 3 July 2013 the father changed his mind about returning to Country J with the child on 4 July 2013. To that end, the father’s solicitors sent a letter to the mother’s personal and work email addresses on 3 July 2013 (Annexure “B” of Document 2). That letter states that the father and the child were due to leave Adelaide on 4 July 2013 to return to Country J. It goes on to state that the father “has instructed [his lawyers] to write to [the mother] to inform [her] he wishes to separate and he does not intend to return to [Country J].” It is also said that the father “wishes to continue to reside in South Australia and have [the child] live with him in this State” and that the father has instructed his lawyers to “issue urgent proceedings in the Federal Circuit Court in Adelaide seeking orders that [the child] continue to reside with him in Adelaide and other orders relating to her welfare.”
It appears from Exhibit 1 that the mother’s English solicitors (Slater & Gordon in City C, Country D) sent out letters dated 25 June 2013 to the husband’s address in Country J. The father became aware of the divorce petition on 31 July 2013 when his solicitors were served with it.
The father and the child remain in Adelaide. The father claims to be looking for work in Adelaide and making enquiries as to appropriate schools for the child.
The mother says in her affidavit sworn in Region L, Country D, on 9 August 2013 that since the father took the child to South Australia she has stayed with her parents in the Country D.
At the hearing on 13 September 2013 it was said that the mother continues to live and work in Country J.
Procedural history
The father commenced these proceedings by filing an Initiating Application, supporting affidavit and a Notice as to Risk document in the Adelaide Registry of the Federal Circuit Court of Australia on 4 July 2013.
The father was granted an exemption from filing the mandatory Certificate from a Family Dispute Resolution Practitioner.
The father filed an Application in a Case on 9 July 2013 supported by an affidavit. The orders sought in that application were:
(1)That this application be heard as a matter of urgency.
(2)That this application be heard in chambers.
(3)That the father be granted leave to proceed ex parte.
(4)That the father be granted leave pursuant to Rule 10.43(2) of the Federal Court Rules to serve the Initiating Application, Affidavit and Notice as to Risk, filed 4 July 2013 (“the documents”) on the mother in the Country D.
(5)That the father be granted leave to serve the documents on the mother by either:-
(a)Causing the documents to be emailed to the mother’s last known email addresses, being … and …; or
(b)Personally serving the documents on the mother.
(6)That the mother pay the father’s costs of and incidental to this application.
(7)Any further or such other orders as this Honourable Court deems fit.
The father’s Application in a Case was heard ex parte before Judge Cole of the Federal Circuit Court of Australia on 24 July 2013. The father was represented by Mr McGinn at that hearing. His Honour Judge Cole made orders in accordance with orders 4 and 5 as sought in the father’s Application in a Case. His Honour also made the following orders:
…
(3) During the period of the adjournment, each of [Mr RYAN] and [MS RUSSELL] and their servants and agents be and are restricted from removing or attempting to remove or causing or permitting the removal of [B] born on … 2009 (female) from the Commonwealth of Australia.
(4) During the period of the adjournment, [B] born on … 2009 be and is hereby restrained from leaving the Commonwealth of Australia.
(5) It is requested that the Australia Federal Police give effect to the preceding order by placing the name(s) of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years.
(6) Upon expiration of the period referred to in Order 5 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
(7) During the period of the adjournment, the parties and each of them personally or by their servants or agents be restrained and an injunction be granted restraining either of them from removing the said child from the Commonwealth of Australia.
(8)Liberty to the mother to apply on short notice.
(9)Proceedings are otherwise adjourned to 4 September 2013 at 9:30 am.”
The mother filed an address for service on 25 July 2013.
The mother filed a Response to the father’s Initiating Application, supporting affidavit and a Notice as to Risk document on 20 August 2013.
The matter was next before Judge Cole on 30 August 2013. The father was represented by Mr McGinn. The mother was represented by Ms Monastiriotis. Upon noting “the concerns about the recognition of the Federal Circuit Court orders internationally” and “that the wife has no intention of removing the child [B] born … 2009 from the Commonwealth of Australia without the appropriate Court order,” Judge Cole made the following orders:
(1)The husband file and serve an Affidavit in reply within 14 days.
(2)This matter be transferred to the Family Court of Australia at Adelaide for directions on a date to be fixed with a request that the proceedings be listed at the earliest available date (NOTING that this matter involves international relocation and that Counsel for the mother is seeking a hearing date on an urgent basis and be listed within 6 weeks).
On 6 September 2013, Registrar Paxton listed the matter before me for the hearing of the interim issues relating to the child on 13 September 2013. The Registrar also listed the application for final orders for directions before the Docket Registrar on 24 September 2013.
The matter was heard before me on 13 September 2013. The father was represented by Mr McGinn. The mother was represented by Ms Pyke, QC. The father was granted leave to tender an affidavit and a chronology despite the objections of counsel for the mother. I reserved my judgment after hearing the submissions of the parties.
The interim orders sought by the parties
The following are the relevant interim orders sought by the father as contained in his Initiating Application filed 4 July 2013:
…
(5)That the mother deliver up any passport in her possession, power or control relating to the child [B] born … 2009 (“the child”) to the Registrar of the Federal Circuit Court to be held by the said Registrar pending further Order of the Court.
(6)That the Australian Federal Police do place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and do maintain the child on the Watch List until further order of the Court..
(7)That the Marshall of the Federal Magistrates Court of Australia and all Officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia be required and empowered to give effect to these Orders and to take all necessary steps to restrain the mother either personally or by her servant or agents from removing the child from the Commonwealth of Australia.
(8)That until further order the parties and each of them either personally or by their servants or agents be restrained and an injunction be granted restraining either of them from removing the said child from the Commonwealth of Australia.
(9)That until further order if the mother returns to Adelaide, Australia, then the mother either personally or by her servants or agents be restrained and injunction be granted restraining the mother from removing the child from:
(a)the metropolitan area of Adelaide,
(b)the State of South Australia; and
(c)the Commonwealth of Australia.
(10)That until further order the father do have sole parental responsibility for the child.
(11)That until further order the child do live with the father.
(12)That until further order the mother spend time with the child within Adelaide, South Australia as determined by this Honourable Court.
(13)That the father do facilitate the child telephoning the mother each day between 6:00pm and 7:00pm South Australian time.
(14)That the mother do pay the father’s costs of and incidental to this application.
(15)Any further or other orders as this Honourable Court deems fit.
The relevant interim orders sought by the mother as set out in her Response to the father’s Initiating Application filed on 20 August 2013:
Pending further Order -
(3) That the Father and Mother have equal shared parental responsibility for the child named B born … 2009.
(4) That the said child live with the Mother.
(5) That the Father spend time with the child in Australia as follows:
(a)For a period of two months during the child’s summer school holidays in Country J.
(b)For a period of two weeks during the child’s Christmas school holidays in even numbered years.
(c)For a period of two weeks during the child’s Easter school vacation period in even numbered years.
(6) That the Father is hereby restrained from consuming alcohol at all times whilst the child is spending time with him pursuant to Order 5.
(7) That the Mother make the child available so that the Father may have communication by Skype with the child two days per week.
(8) That for the purposes of implementing Order 5 hereof that the Father ensure that the child is place on any flight arranged by the Mother for the child to be returned to her place of residence in [Country J].
(9) That for the purposes of implementing Order 5 hereof:
(a)That the father shall provide a copy of the child’s return flight ticket to the Mother not less than four weeks before any proposed travel;
(b)The Father shall provide particulars of the address where the child will be staying as well as a contact telephone number not less than four weeks prior to any proposed travel;
(c)Provided that the father has complied with Order 9(a) and 9(b) hereof, the Mother shall place the child on any flights arranged by the Father for him to spend time with the child in accordance with Order 5 hereof.
(10) That the Father make the child available so that the Mother may have communication by Skype with the child two days per week whilst the child is spending time with the Father.
(11) That in the event that the Father fails to comply with Order 8 above a Recovery Order shall issue pursuant to section 67U of the Family Law Act 1975.
(12) Pursuant to section 67Q of the Family Law Act 1975 a warrant issue authorising and directing the Marshall of the Family Court of Australia, all officers of the Australian Federal Police, and all officers of the police forces of the States and Territories of the Commonwealth of Australia to take possession of the Child, namely B born … 2009 and to deliver the child to the Mother, and for that purpose to stop and search any vehicle, vessel, aircraft or to enter and search any premises or place in which there is at any time reasonable cause to believe that the Child may be found, in particular [M Street, N Town], South Australia.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides a framework for making parenting orders on both an interim and final basis. The most relevant sections are:
Section 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How a court determines what is in a child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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 person relations and direct contact with both parents on a regular basis;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Specifically, the power to make interim orders is provided by s 64B(1)(a) which empowers the Court to make a parenting order “until further order.”
The Full Court of the Family Court of Australia (Bryant CJ, Finn and Boland JJ) in Goode v Goode (Supra) (“Goode”) commented on the legislative framework that must be followed when considering interim parenting orders:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
However, the legislative pathway must be followed.
In an interim case that would involve the following:
i)identifying the competing proposals of the parties;
ii)identifying the issues in dispute in the interim hearing;
iii)identifying any agreed or uncontested relevant facts;
iv)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
v)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
vi)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
vii)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
viii)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
ix)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
x)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
xi)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
At page 442 of the Goode judgment, Bryant CJ, Finn and Boland JJ stated:
... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Elsewhere in the Goode judgment, the Full Court overturned the principle (as established by the Full Court in decisions such as Cilento & Cilento (1980) 6 Fam LR 35 and Cowling & Cowling (1998) 22 Fam LR 776) at page 443 as follows:
The reasoning in Cowling … to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
As the interim orders sought by both of the parties concern the living arrangements of the child, the comments of the High Court of Australia (composed of French CJ, Gummow, Hayne, Kiefel and Bell JJ) in MRR v GR (2010) 240 CLR 461 at 466 on s 65DAA of the Act are relevant:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Submissions of the parties
Submissions of the applicant father
Mr McGinn for the father commenced his submissions by working through the chronology of the matter. He then tendered a “chronology of the husband” document with my leave.
Counsel then turned to the father’s current circumstances. The father wants to stay in Adelaide with the child. His extended family lives in Adelaide. He plans to gain employment in Australia.
Counsel then queried the mother’s employment status, noting that Annexure “D” of the wife’s affidavit seemed to suggest that the mother’s current employment contract expired in August 2013. Mr McGinn further noted that the mother’s ability to remain in Country J is linked to her employment, and that the mother’s living situation would be uncertain if her employment in Country J had in fact ceased.
Mr McGinn then referred to the mother’s entitlement to reside in Australia. He referred to a statement she made when applying for an Australian visa in 2010 that she and the father intended to raise their family in Australia as they “truly respect the values and quality of life in this beautiful country” and other statements to similar effect (see page 46 to 47 of Annexure “A” of the father’s affidavit filed 4 July 2013).
Counsel then referred to issues that the father may face in Country J. It is alleged that the father “has no control over [the child’s] sponsorship [in Country J] and has no legal relationship with [the child] under [Country J] law.” It is further alleged that the child’s Australian nationality has been revoked by the Country J Ministry of the Interior and that this has some implications with regards to the child being able to travel on her Australian passport when entering Country J. The father claims that the mother will automatically be awarded custody if the mother divorces him and that the father would have no control over the child’s care arrangements or her place of residence. Mr McGinn noted that these matters were disputed by the mother in her written material.
Mr McGinn then referred to Annexure “D” of the husband’s second affidavit. The annexure is a printed document from the Smart Traveller government website, which states that “[Country J] does not recognise dual nationality” and that “child custody decisions are based on Islamic law” in Country J.
Counsel submitted that these matters assume significance in the matter at hand, particularly because returning the child to Country J would not be a return to the child’s homeland as was referred to in the Full Court of Family Court decision in Karim & Khalid [2007] FLC 93-348 (Finn, Coleman and May JJ).
Specifically, counsel referred to paragraph [51] of the joint judgment in Karim, where Finn, Coleman and May JJ explained the principles which apply when an application is made for the return of a child who is in Australia to a non-Hague Convention country as outlined in the various judgments of the High Court of Australia in ZP v PS (1994) 181 CLR 639.
It is to be noted that Country J is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Child Abduction Convention”) or the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) (collectively referred to as “the Hague Conventions”).
The general principle outlined in the various judgments in ZP v PS (Supra) is that the Court should consider “whether the welfare of the child requires speedy repatriation to the country from which he or she was taken, with the courts of that country determining custody and other matters relating to the child’s upbringing.” Mr McGinn’s argument was that, given that the parties had always intended to raise the child in Australia, and also given that the child has not always resided in Country J, the principle outlined in ZP v PS (Supra) is not applicable to the matter at hand because the matter is “well and truly outside of the policy situation” described in that case.
Conversely, Mr McGinn argued that the lack of a “level playing field” in relation to the determinations that might be made pursuant to the Country J family law process concerning the child in the event of disagreement between the parties is a matter to which I should attach weight when determining the interim living arrangements for the child.
Mr McGinn then set out the competing proposal of the parties as set out above.
Counsel noted that the great distance that exists between the parties’ proposals indicates that the child may be required to travel to facilitate these proposals. Mr McGinn submitted that the child would be capable of undertaking that travel as she has undertaken significant travel in the past.
Mr McGinn then contended, correctly, that I was bound by the framework for resolving interim parenting disputes set out by the Full Court of the Family Court of Australia (composed of Bryant CJ, Finn and Boland JJ) in Goode. Mr McGinn further referred to the decision of Boland J (sitting as a single judge of the Full Court) in Morgan & Miles [2007] FLC 93-343. Specifically, counsel referred to paragraphs [79]-[80] of her Honour’s decision.
Mr McGinn also referred to paragraph [88] of Boland J’s judgment in Morgan & Miles (Supra):
[88]It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S [cited at [1998] FamCA 66] remain apt and relevant to determination of these cases.
Counsel also referred to the Full Court of the Family Court of Australia decision (composed of Bryant CJ, Faulks DCJ and Boland J) in McCall & Clark [2009] FLC 93-405 and the principles set out in that decision at [85], namely, that the Court should weigh up the prospect of each of the parties moving to the location at which the other party resides as part of a consideration of “a shared arrangement or a substantial and significant arrangement as required by s 65DAA.” The Full Court also stated that “there is no presumption in favour of or against relocation.”
Mr McGinn’s submissions included:
(a)There was no objective evidence of the child’s views before the Court. Even if there were, the child is not of an age where her views could hold much weight (s 60CC(3)(a));
(b)There is sufficient material before the Court to suggest that the child has a good relationship with each of the parents, and with the father’s extended family (s 60CC(3)(b));
(c)Both of the child’s parents have participated in the child’s upbringing (s 60CC(3)(c));
(d)The change in the child’s circumstances (the lack of physical contact with her mother, her change of residence) is something that the child will likely be able to cope with given the fact that the child has lived in multiple places in her life. This is said to be borne out by the material in the father’s second affidavit which suggests the child is well settled in Adelaide. (s 60CC(3)(d));
(e)The degree of practical difficulty and expense of the child spending time with and communicating with either parent was said to be high, given the fact that a round trip from Adelaide and Country J would cost approximately $10,000 given that the child could not travel unaccompanied. It was submitted that the mother’s proposal that the child return to Country J to live with the mother is the “least palatable” solution given the legal environment in Country J (s 60CC(3)(e));
(f)All of the matters raised in the mother’s written material that suggest that the father is not capable of providing for the needs of the child (such as his allegedly excessive alcohol consumption and violent outbursts) are denied by the father and should not hold any sway given the interim nature of the proceedings at the current point in time;
(g)Country J should not be considered as the home of the child. Neither of her parents are from that country. It was intended by the parties that the child would be raised in Australia. The child is said to be a “westerner living in the east” and that weight should be attached to the parties hope that the child would be raised in Australia (s 60CC(3)(g));
(h)The matters raised by the wife in her written material as to the father’s allegedly abusive, alcohol-fuelled outbursts are denied by the father and should not be dealt with in an interim hearing as set out by the Full Court in Goode. Mr McGinn contended that I should resolve the interim parenting orders on the basis that no family violence had occurred. That position was said to be reinforced by the fact that the mother was proposing that the father spend extended periods of time with the child unsupervised and with no condition other than a prohibition on alcohol consumption (s 60CC(3)(j);
(i)An Independent Children’s Lawyer should be appointed (s 60CC(3)(l));
Elsewhere, Mr McGinn noted that it would be appropriate for the child to stay in Australia pending the resolution of the proceedings as the proceedings are being conducted in Australia.
With reference to paragraphs [47] and [48] of the father’s second affidavit, Mr McGinn noted that it is possible that the father would be arrested and detained in Country J without charge (referring to a 2011 Amnesty International Report annexed to the affidavit) if he returned to Country J.
Counsel also noted that it is uncertain if orders of the Family Court would be enforceable in Country J given the country’s status as a non-signatory to the Hague Conventions.
In conclusion, Mr McGinn submitted that it was not appropriate for the presumption that it is in the best interests of the child for there to be an order for equal shared parental responsibility because of how far apart the parties’ proposals are.
Further, the circumstances are said to indicate that the child can be properly cared for and that her interest are best served by her continuing to reside in Australia, and that the mother’s relationship with the child can be facilitated in Australia as there is no impediment to the mother travelling to Australia as she did not appear to be employed at the present time.
Submissions of the respondent mother
Ms Pyke QC commenced her submissions by noting that her instructions were that the mother was living and working in Country J. She later noted that the mother’s contract of employment was set to expire in 2015 having been extended from August 2013.
Counsel further noted that the father’s submissions were silent on how the mother could move to Adelaide, given that she would have no employment, no income, no accommodation and no family support in Adelaide.
Counsel then sought to contextualise the case as one of an unlawful removal by the father of the child from her principal place of residence. It was said that the father’s submissions glossed over the fact that it was incontrovertible that the child’s principal place of residence prior to her removal was Country J. Ms Pyke submitted that it was irrelevant that the parties had planned (in 2010) to raise the child in Adelaide, rather, what did matter was the fact that the parties had been raising the child in Country J since August 2011.
Ms Pyke QC argued that this was not a relocation case; rather, the matter involves the determination of what the child’s living arrangements should be prior to the determination of the matter on a final basis. Counsel argued that the child should be returned to live in Country J with the mother pending that final determination. The mother was said to have no plans to apply for parenting orders in Country J. She noted that the mother is not a Country J national, but is in fact a Country D citizen.
Ms Pyke QC noted that the mother had initially sought to file in the Federal Circuit Court of Australia, but was prevented from doing so as the father’s proceedings had already been filed. This is said to suggest that the mother never had an intention of filing for orders in either the Country D or Country J. Counsel noted that the mother had joined in the proceedings in Australia and said that the mother has no intention of making an application in Country J. It was submitted that the issue for my determination is said to have “nothing to do” with where the child will ultimately live, but rather “all to do” with returning the child to her principal place of residence.
Ms Pyke QC than alleged that the father had “contrived duplicitously” with the sole intention of removing the child from her home. This is said to reflect the fact that the father has no interest in the welfare of his daughter, and further, that the father only removed the child to Australia to gain an advantage for himself in the ultimate determination of the child’s living arrangements.
Ms Pyke QC submitted that it is irrelevant that Country J is not a signatory to the Hague Conventions. The issue was said to be: if I return the child to Country J, is there anything that the mother has said or done that could cause me to believe that the mother will not comply with orders of this Court or participate in this Court’s processes. Ms Pyke QC argued that there was nothing to suggest the mother would not participate fully in these proceedings. She submitted that the mother is said to be comfortable with this Court determining the child’s living arrangements, but she is not comfortable with the allegedly unlawful removal of the child by the father. Counsel contended that I should not “reward” the father’s conduct by granting the interim orders that he seeks concerning the child.
Counsel then referred to the annexed material contained in the second affidavit of the father as “the desperate measures of a desperate man.” Ms Pyke QC submitted that the father did not leave Country J for the reasons alleged in those materials, as the father admits that he intended to return to Country J up until approximately 3 July 2013. Counsel noted that the father had requested an extension of unpaid leave from his Country J employer as evidenced by a letter from his former employer dated 3 September 2013 (Annexure “E” of Document 10). This was said to be an example of a man “hedging his bets” and that the father is “a blatant liar” about what his plans for his future are. It was alleged that the father would tell the Court “whatever he thinks is going to help him at the very minute that he is making his case.”
Counsel then referred to the email annexed to the mother’s affidavit that was sent by the mother to the principal of the school that the child attended in City F on 24 June 2013. That email was said to suggest that the mother was not aware where the child was as of that date. It is alleged that the father did not tell the mother he was going to City F with the child and the paternal grandmother.
It was submitted that the father’s decision to follow his mother back to Australia with the child to help her deal with the illness of the paternal step-grandfather was a “most inappropriate” decision to make, especially given the fact that the mother did not hear about it until after the child arrived in Australia. That was said to be an “appalling decision” that could “only be seen as an underhanded, duplicitous removal of the child” without the mother’s knowledge or consent. The removal was also said to be for no reason relating to the mother’s parenting, the child’s schooling or anything to do with the mother or Country J. Rather it was a “spur of the moment” decision to support his mother with his sick step-father.
The duplicity of the father was said to continue once the father reached Australia. The father’s email to the mother that suggested that the father and the child would be returning to Country J by 4 July 2013 was “tantamount to another lie.” It was on the basis of this email that the mother did nothing further to obtain the return of the child as she trusted the father.
The father’s complaints about the living situations in Country J are said to be baseless, given the context of the family living and working there for two years, and given the fact that the father appeared to be trying to maintain his employment ties in the country after he arrived in Australia. The child has lived in Country J for half of her life. The alleged concerns about the country are said to be “self-serving nonsense” given the fact that the father lived in City F for six months whilst the child and the mother lived in Country J, and was quite happy for the child to be residing with the mother during that time.
Ms Pyke QC argued that there was no reason not to return the child to live with her mother, who had been her primary caregiver, particularly during the period in which the father did not live in the same country as the mother and child.
Unlike the father, the mother has no extended support network in Australia. Counsel maintained a shared care arrangement in Australia pending final determination would not work as the mother would have nowhere to live and no means of earning an income.
Counsel reiterated her submission that this was an unlawful removal case, not a relocation case. She then referred to the Full Court of the Family Court of Australia decisions of Kwon & Lee [2006] FLC 93-287; Karim & Khalid [2007] FLC 93-348; and Pascarl & Oxley [2013] FLC 93-536.
In her concluding remarks, counsel contended that it would not be in the best interests of the child to leave her in Australia pending final determination of the matter as it would reward the father’s duplicitous behaviour. It is further submitted that the father is not offering the child “a single solitary thing” she did not have in Country J. It was submitted that the “only solution” was said to be to order the return of the child to Country J and for the child to spend time with the father as set out in the mother’s response to the father’s Initiating Application.
Mr McGinn made brief submissions in reply. He argued that this matter was not an unlawful removal case as there has not been a “breach of any law that has been made known.”
Consideration
There is no legally distinct category of children’s cases called ‘relocation’ cases. The provisions of Part VII are as equally applicable when one or more parties to proceedings under the Act seeks to relocate the child’s residence to some other city, state or country as they are in any other parenting dispute.
Other matters that may set apart cases with an international element to them are not present in the case at hand. Country J is not a signatory to the Child Abduction Convention. That precluded the mother from making an application for the return of the child on the basis of a claim of wrongful removal from her place of habitual residence.
This is not a case in which the parties are in dispute as to which country is the appropriate forum in which to hear the proceedings. The mother has submitted to the jurisdiction of this Court.
The mother is seeking, inter alia, that the child be returned to Country J to live with her. The Full Court of the Family Court of Australia has confirmed, in cases that have been decided after the 2006 amendments to the Act, that “the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is … the best interests of the child” (Finn, Coleman and May JJ in Karim & Khalid [2007] FLC 93-348 at 81,983; see also the joint judgment of Holden, Coleman and Boland JJ in Kwon & Lee [2006] FLC 93-287 and the joint judgment of Bryant CJ, Faulks DCJ and Finn J in Pascarl & Oxley [2013] FLC 93-536 at 87,074).
There is no presumption either for or against the relocation of a child. Rather, the Act “provides for the careful exercise of a structured discretion to determine the appropriate order to be made” (Boland J in Morgan & Miles [2007] FLC 93-343 at 81,869).
Boland J set out a list of matters to consider when determining cases involving the potential relocation of a child at [79] of her judgment in Morgan (Supra). Those matters were raised by Mr McGinn in his submissions and are extracted above at [62] of this judgment.
In summary, and in the words of Boland J in Morgan at [81], what the legislation requires, in light of the 2006 amendments, is:
(1)a consideration of the competing proposals against the criteria now in s 60CC informed by s 60B; and
(2)if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
Parental responsibility
The father seeks an order for sole parental responsibility for the child pending the final hearing of the matter. The mother seeks an order for equal shared parental responsibility on both an interim and final basis.
Subsection 61DA(1) of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child (or another child who was at the time a member of the parent’s family or that other person’s family) or family violence (s 61DA(2)).
Subsections 61DA(3) and (4) provide:
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I do not consider that there are reasonable grounds to find on an interim basis that there has been child abuse or family violence in the matter at hand. The matters raised by the mother as to the father’s alleged alcohol abuse, breaking of windows, and other matters are disputed by the father and will be considered at the final hearing. The mother is proposing equal shared parental responsibility. The mother is not seeking to impose any restraints on the father’s time with the child, other than a prohibition on the consumption of alcohol.
Counsel for the father’s submissions pursuant to s 61DA(3) that it was not appropriate in the circumstances for the presumption to be applied because of how far apart the parties’ proposals are was not compelling. The fact that the parties want the child to live in different countries does not (or should not) absolve them from exercising their parental responsibility to come to agreement about major long-term issues concerning the child.
It is therefore appropriate to apply the presumption in s 61DA(1) on an interim basis.
Where the presumption applies, an order for equal shared parental responsibility will “generally be made” (see the joint judgment of Faulks DCJ, Boland and Stevenson JJ in Marvel & Marvel (2010) 43 Fam LR 348 at 371).
I propose to make an order for equal shared parental responsibility for the child pending the final determination of the matter. The fact that the parties are located a great distance apart should not prevent them from consulting each other and making a genuine effort to come to a joint decision about major long-term issues relating to the child in accordance with s 65DAC of the Act.
The interim living arrangements for the child
Section 65DAA of the Act provides certain mandatory considerations consequent upon an order for equal shared parental responsibility. I am required to consider whether an order for an equal time living arrangement for the child would be both reasonably practicable and in her best interests. I must also consider whether an order requiring the child to live with one party and spend substantial and significant time with the other party would be both reasonably practicable and in her best interests.
The legislative pathway required to correctly make a parenting order as provided for by the 2006 amendments to the Act have been described by Warnick J in Zabini & Zabini [2010] FamCAFC 10 at [3] as “a dilemma of labyrinthine complexity.”
Reasonable practicability is defined at s 65DAA(5). An order for the child to spend equal time with each parent would not be reasonably practicable for a number of reasons:
(1)The mother lives in Country J. The father lives in Adelaide. Both parents have indicated to the Court that they have no intention of changing their current living arrangements. Those cities are approximately 11,000km apart. The affidavit material of the father suggests that a flight between Adelaide and Country J would take between 21 and 27 hours (s 65DAA(5)(a).
(2)A one-way ticket between Adelaide and Country J costs, on the father’s written material, between $2,000 and $2,500 one way per person. The child is not of an age where she can travel alone. That is not an expense that the parties could afford on a regular basis (s 65DAA(b)).
(3)Frequent airplane travel of approximately fifty hours for the child would not have a positive impact on the child (s 65DAA(d)).
Given that I will not make an order for equal time, I must consider whether making an order for substantial and significant time would be both reasonably practicable and in the best interests of the child pursuant to s 65DAA(2). “Substantial and significant time” is defined as s 65DAA(3).
I also find that an order for substantial and significant time would not be reasonably practicable within the meaning of s 65DAA(5), for the same reasons as discussed above in relation to equal time.
The child’s living arrangements fall to be determined with reference to the children’s best interests as the paramount consideration (s.60CA and s.65AA of the Act) without further reference to s.65DAA of the Act (See Goode & Goode (Supra) at 445).
Section 60CC(2) primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
The history of the relationship between the child and each of the parents indicate that both parents have supported the child having a meaningful relationship with the other parent. Each of the parties’ proposals indicate that notwithstanding the distance involved, both concede that there is a benefit to the child of having an ongoing meaningful relationship with each parent.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This consideration needs to be given greater weight. The difficulty in this matter is that the allegations concerning the father’s behaviour, which on the face of it, indicate that the child was exposed to family violence is strongly denied by the father.
Section 60CC(3) additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child is now aged four. There is no evidence concerning her views. At this age and in her current circumstances her views may in any event, not be a significant factor.
(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);
The evidence indicates that the child has a good relationship with each of the child’s parents and with the paternal grandmother, as well as the extended families of both the mother and the father.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The evidence before the Court indicates that each parent indicates that the other parent has participated in long term decisions, spent time with the child, communicated with the child and fulfilled the parental obligations. The mother maintains that she was the primary caregiver for the child. This is supported by the chronology which involved a short time when the mother and child were living in one country with the father living nearby, but visiting regularly.
(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;
The Court is unable to determine the likely effect of the child on any separation from the mother or any separation from the father. However, given the child’s age this is likely to be a significant factor whether the child remains in Australia or is returned to Country J.
(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;
As discussed earlier in the judgment there is considerable practical difficulty and expense for the child to spend time with and communicate with both parents whilst the mother is living in Country J and the father is living in Adelaide. Clearly, that difficulty and expense will substantially affect the child’s right to maintain personal relationship and maintain direct contact with both parents on a regular basis, particularly, face to face contact. There are suggestions by both parents that regular telephone and Skype contact would reduce the impact upon the child, but the practical difficulty of maintaining direct contact remains.
The father alleges that he would have considerable difficulty returning to Country J because he no longer has resident status in Country J. He is also concerned that the mother may take steps with the Country J authorities which would put him at risk of arrest. These factors are asserted but not proven.
There are also the unknown factors concerning the application of the law in Country J and whether any orders of this Court would be recognised and enforced in Country J.
(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;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents have the capacity to provide for the child’s needs on a practical basis. In relation to the emotional and intellectual needs of the child and the attitude of each parent to the responsibilities of parenthood, there are some facts which are contested. The father admits that he did not tell the mother that he was travelling to Australia with the child. The father maintains that his decision to remain in Australia is partly based on considerations for the child’s future and that the parties previously planned to bring the child up in Australia.
(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;
The child has experienced considerable changes in her residence in her four years. She has resided for significant time in Australia and most recently significant time in Country J. The lifestyle, culture and traditions of the child and the parents have however always been of a Western nature, even whilst living in Country J.
(h)if the child is an Aboriginalchild or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(j)any family violence involving the child or a member of the child's family;
The family violence alleged by the mother concerning the father’s behaviour is strongly disputed by the father. At this interim stage a decision cannot be made concerning these allegations. The mother has previously left the child in the care of the father and his family. The allegations of family violence need to be seen in that context on this interim basis.
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
Not relevant.
(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;
At this interim stage this is not a significant factor as there will be a need to determine the best interests of the child when the matter is finally determined.
(m)any other fact or circumstance that the court thinks is relevant.
The mother has previously obtained permission to reside in Australia. The child has Australian citizenship as does the father. The mother has qualifications as a teacher.
The mother instituted proceedings for a divorce in the Country D on 20 June 2013. It appears that the father was not aware of this until 31 July 2013 after he had decided to travel to and remain in Australia with the child.
Discussion
The father does not maintain that he told the mother of his plans to travel to Australia or that he had her permission to bring the child to Australia and to remain in Australia. As such there is substance in the submissions on behalf of the mother that this should not be considered a relocation case, but rather the Court’s consideration should be based upon the child being returned to her former place of residence.
Whether the case is categorised as return to the principle place of residence or relocation, the best interests of the child are the paramount consideration.
The child has spent time living in Australia, Country J and City F. Most recently the child was residing in Country J with her parents.
There are significant factors to be determined before a final decision can be made, and in particular, the ability of the father to spend time with the child if she resides on an interim basis in Country J.
It is significant that there are the allegations that the father may face difficulties concerning the child’s Australian nationality having been revoked by the Country J authorities and unknown factors concerning the application of Islamic Law, particularly as the mother has instituted proceedings for a divorce in the Country D.
The mother has indicated that she will submit to the jurisdiction of this Court, but seeks the return of the child to Country J on an interim basis. The capacity of the father to enforce any order in Country J is unknown at this stage.
It is accepted that currently the mother has limited support in Australia, but this factor is outweighed by the concerns that arise concerning the difficulties the father would face in returning to Country J even on a temporary basis.
On an interim basis and pending the determination of significant factors in this matter it is in the best interest of the child that the child remain in Australia where it will be more likely that the child can maintain her relationship with both parents.
I consider it important that this matter be resolved on a final basis as soon as possible. I propose to make an order that the final hearing of this matter be listed as a matter of priority. The matter will be listed before a Registrar for trial directions to facilitate that process.
I also consider it appropriate for there to be an Independent Children’s Lawyer appointed pursuant to s 68L of the Act.
I do not consider it appropriate at this stage of the proceedings to make an order restraining the father from consuming alcohol when in the presence of the child. The matters raised by the mother to support this order are the subject of denial by the father. Given the nature of the proceedings applicable in interim parenting determinations, I was not able to make any finding of fact that would satisfy me that such an order was necessary. That matter will be considered at the final hearing of the proceedings.
Conclusion
For the foregoing reasons, I make the orders as set out at page 2 of this judgment.
I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 October 2013.
Associate:
Date: 4 October 2013
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