Ryan and Van Ryan
[2010] FamCA 720
•16 August 2010
FAMILY COURT OF AUSTRALIA
| RYAN & VAN RYAN | [2010] FamCA 720 |
| FAMILY LAW – CHILDREN – With whom children live – Terminal illness of mother – Relocation |
| APPLICANT: | Mr Ryan |
| RESPONDENT: | Ms Van Ryan |
| FILE NUMBER: | TVC | 67 | of | 2010 |
| DATE DELIVERED: | 16 August 2010 |
| PLACE DELIVERED: | Townsville, Qld. |
| PLACE HEARD: | Townsville, Qld. |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 13, 14, 15 & 16 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Bevan and Griffin |
| COUNSEL FOR THE RESPONDENT: | Mr Betts |
| SOLICITOR FOR THE RESPONDENT: | Dillon Lawyers |
Orders
That all previous orders be discharged including the removal of the children’s names from the Airport Watch List as ordered in Order 10 of the Interim Orders made 3 March 2010.
Children to live with mother, be at liberty to return to Papua New Guinea and incidental orders relating to enforcement in Papua New Guinea
That the children of the marriage, L, born … April 2003 and E, born … November 2006 (“the children”) live with the mother.
That the mother be at liberty to live with the children in Y, Papua New Guinea, effective from commencement of the September/October school holiday period (Queensland) in 2010.
That whilst the mother is living with the children in Papua New Guinea, except with the written consent of the father or a Court order, the mother is restrained from relocating the residence of the children from Y.
The Registrar of the Family Court of Australia shall deliver to the mother the passports for the children.
As soon as possible after the making of these orders, the parties shall do all acts and things, and sign all documents, as are required to register these orders in the National Court of Papua New Guinea pursuant to the provisions of the Reciprocal Enforcement of Custody Orders Act 1978.
Prior to the mother returning to Papua New Guinea, she will produce to the Registrar at Townsville undertakings in the form required by the Family Law Rules containing the content set out in Annexure ‘A’ and made and signed by the following persons:
(i)J Van
(ii)M Van
(iii)N Van
(iv)T Van
That both parties shall do all acts and sign all documents necessary to enable the mother to leave Australia with the children for Papua New Guinea, including but not limited to the issue or renewal of any passports for the children of the marriage, including, if necessary, Australian passports.
Parental responsibility and particular issues:
That the parents have equal shared parental responsibility in relation to major long-term decisions concerning the children of the marriage, (“the children”).
That the parents consult in relation to the exercise of their equal shared parental responsibility and in particular:
(a)advise the other about decisions that need to be made;
(b)consult about those matters to attempt to agree on them;
(c) make a genuine effort to reach agreement.
That, without limiting or restricting the operation of Orders 9 and 10 hereof, consultation shall specifically be required in respect of the following matters:
(a)Any medical or health matter concerning the children, save for routine or usual childhood illnesses, ailments or injuries (being those which would ordinarily resolve with no long-term effect on health and which would ordinarily be dealt with as part of a parent’s day-to-day care of the child). Each parent (if requested) will authorise the other parent to access medical personnel and the medical file/s of the children, including immunisation certificates and the like;
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)Matters relating to the education of the children including, but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the children’s schools and that the mother provide an authority to the children’s school to enable the father to obtain (at his expense) copies of school reports, school newsletters and photograph order forms;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the children;
(f)Any proposal to change the name of the children;
(g)Any proposal to change the residence of the children beyond the boundaries of the town or city in which they are then living;
(h)Generally, any matter regarding the children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
In the event that either child suffers an injury, or appears to be suffering from an illness or ailment, being an injury, illness or ailment that would not ordinarily be expected to completely resolve itself within a matter of days, then in that event the parent with the care of the children at that time, shall ensure that the child attends upon a duly qualified medical practitioner. The opinion and treatment recommendations of the duly qualified medical practitioner are to be implemented notwithstanding the availability (if any) of traditional medicines in Papua New Guinea.
In the event of a life-threatening medical emergency affecting either child, the mother is to immediately notify the father and, if necessary or appropriate, in that event the child will be flown to Australia for treatment. In determining whether this is necessary or appropriate, account shall be taken of the: the urgency of the matter; the availability of treatment in Papua New Guinea (with the mother to obtain a written note or letter from the child’s treating Papua New Guinea doctor or hospital in this respect); the cost of treatment either in Australia or Papua New Guinea; the cost of travel to Australia; any medical or other insurance cover for the child; and any other relevant matters. To be clear, the intention of the parties is that the child receive the best medical care that is available, having regard to the circumstances.
That each parent shall have sole responsibility for the children’s day to day care, welfare and development during such times as the children are in that parent’s care.
Father’s time and communication with children prior to relocation:
That the father spend time with the children as was formerly provided for in the interim orders of 3 March 2010, and at all such other reasonable times as agreed.
The father shall be entitled to communicate with the children by telephone at his expense, at all reasonable times when the children are in the mother’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
Father’s time with children after mother and children return to Papua New Guinea:
A.If father is living in Australia:
That the father spend time with the children at all such reasonable times as may be agreed upon between the parties and failing agreement then as follows:
(a)For one half of each Papua New Guinea school holiday period in each year (to include Christmas Day in each second year), with the father being at liberty to bring the children to Australia during those holiday periods. The father is to be responsible for the costs of the children’s travel to and from Y;
(b)Upon the giving of fourteen (14) days notice in writing, at all reasonable times when the father may be visiting Papua New Guinea;
(c)At all reasonable times when the mother may be visiting Townsville with the children. If the mother is to travel to Townsville for medical treatment, the mother is to give the father at least one (1) month’s written notice of her planned visit (including flight details) so that the father may, within seven (7) days of being given that notice, pay for return flights for the children so that they may accompany the mother and thus be able to spend time with him.
The father shall be entitled to communicate with the children by telephone at his expense at all reasonable times when the children are in the mother’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
When the father has the children during school holiday periods, the mother shall be entitled to communicate with the children by telephone at her expense at all reasonable times. For this order, “all reasonable times” shall include at least one (1) telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
B.If father returns to live in Y:
That the father spend time with the children at all such reasonable times as may be agreed upon between the parties and failing agreement, then as follows:
i.Each alternate weekend from 5.00 pm Friday until 4.00 pm Sunday;
ii.For one half of each Papua New Guinea school holiday period in each year (to include Christmas Day in each second year), with the father being at liberty to bring the children to Australia during those holiday periods. The father is to be responsible for the costs of the children’s travel;
iii.On the children’s birthdays and the father’s birthday at times as agreed, and failing agreement for not less than three (3) hours if a school day or six (6) hours if a non-school day;
iv.In the event that Father’s Day falls on what would otherwise have been the mother’s weekend with the children, then the children are to spend time with the father from 9.00 am to 4.00 pm on Father’s Day.
The father shall be entitled to communicate with the children by telephone at his expense, at all reasonable times when the children are in the mother’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
In the event that:
(a)Mother’s Day falls on what would otherwise have been the father’s weekend with the children, then the father’s time with the children that weekend will cease at 9.00 am on Mother’s Day;
(b)The children’s birthdays or the mother’s birthday fall at times when the children are with the father, then the mother shall spend time with them on those days as agreed, and failing agreement for not less than three (3) hours if a school day or six (6) hours if a non-school day.
The mother is at liberty to bring the children to Australia during her school holiday periods with the children. The mother is to be responsible for the costs of the children’s travel.
The mother shall be entitled to communicate with the children by telephone at her expense at all reasonable times when the children are in the father’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the mother’s birthday, Easter Sunday, Christmas Day and Mother’s Day.
C.If mother relocates to Townsville:
That the father spend time with the children at all such reasonable times as may be agreed upon between the parties and failing agreement then as follows:
(a)Each alternate weekend from 5.00 pm Friday until 4.00 pm Sunday;
(b)For one half of each Queensland school holiday period in each year (to include Christmas Day in each second year), with the father being at liberty to take the children to Papua New Guinea during those holiday periods. The father is to be responsible for the costs of the children’s travel;
(c)On the children’s birthdays and the father’s birthday at times as agreed, and failing agreement for not less than three (3) hours if a school day or six (6) hours if a non-school day;
(d)In the event that Father’s day falls on what would otherwise have been the mother’s weekend with the children, then the children are to spend time with the father from 9.00 am to 4.00 pm on Father’s Day.
The father shall be entitled to communicate with the children by telephone at his expense, at all reasonable times when the children are in the mother’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
In the event that:
iMother’s Day falls on what would otherwise have been the father’s weekend with the children, then the father’s time with the children that weekend will cease at 9.00 am on Mother’s Day;
iiThe children’s birthdays or the mother’s birthday fall at times when the children are with the father, then the mother shall spend time with them on those days as agreed, and failing agreement for not less than three (3) hours if a school day or six (6) hours if a non-school day.
The mother is at liberty to take the children to Papua New Guinea during her school holiday periods with the children. The mother is to be responsible for the costs of the children’s travel.
The mother shall be entitled to communicate with the children by telephone at her expense, at all reasonable times when the children are in the father’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the mother’s birthday, Easter Sunday, Christmas Day and Mother’s Day.
In the event of the mother reaching a tertiary stage of her cancer, and thus being gravely ill, while the children are living with her in Papua New Guinea
The children are to remain living with the mother and her extended family (as that term is defined in Order 33 below), acknowledging that the extended family will be primarily caring for the children during this time. If the father is in Papua New Guinea during this period, he is (if possible) to spend time with the children each day.
NOTING THAT the parents and extended family are expected by the Court to put aside any differences at this difficult time so as to best promote the emotional wellbeing of the girls and assist them to cope with the passing of the mother.
In the event of either parent’s death:
The children are to live with the other parent, subject to Order 32 below.
In the event of the mother’s death in particular:
The children are to remain living with the mother’s extended family (as defined in Order 33 hereof) until six (6) weeks after the mother’s death. Thereafter, the children are to live with the father, and he is at liberty to relocate the children to Australia.
The children are to spend time with the mother’s extended family in Papua New Guinea (defined as the maternal grandmother, the maternal grandfather and the mother’s siblings and their children) as agreed between the father and the mother’s sister, N Van, and failing agreement:
IF FATHER LIVING IN PAPUA NEW GUINEA:
(a)The extended family shall spend time with the children on alternate weekends from 5.00 pm Friday to 4.00 pm Sunday and for one half of each Papua New Guinea school holiday period;
IF FATHER LIVING IN AUSTRALIA:
(b)The extended family shall spend time with the children for half of the Term 2 school holiday period each year, and for half of each Christmas school holiday period (to include Christmas Day every second year), with the mother’s extended family to be responsible for the cost of the children’s return travel between Townsville and Papua New Guinea;
(c)The extended family shall spend time with the children in Papua New Guinea at all other reasonable times as agreed in the event that the children have been brought to Papua New Guinea for whatever reason;
(d)The extended family shall spend time with the children in Australia at all other reasonable times as agreed in the event that a member of the extended family is present in Australia and in the same vicinity as the children.
The extended family shall be entitled to communicate with the children by telephone at their expense, at all reasonable times when the children are in the father’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, Easter Sunday and Christmas Day. To be clear, a telephone call from an extended family member is deemed to be made on behalf of all which come within that definition.
The father shall be entitled to communicate with the children by telephone at his expense, at all reasonable times when the children are in the care of the mother’s extended family during school holiday periods. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
In the event of the father’s death in particular:
The children are to spend time with the father’s extended family in Papua New Guinea (defined as the paternal grandmother, the father’s siblings and their children) as agreed between the mother and the father’s sister, C Ryan, and failing agreement:
i.If the mother is living in Papua New Guinea with the children, then in Papua New Guinea at all reasonable times as agreed;
ii.For half of the Term 2 school holiday period each year, at the home of the paternal grandmother;
iii.For half of each Christmas school holiday period (to include Christmas Day every second year), with C Ryan, with the father’s extended family to be responsible for the cost of the children’s return travel between C Ryan’s residence in Australia and the children’s home in Papua New Guinea.
The father’s extended family shall be entitled to communicate with the children by telephone at their expense, at all reasonable times when the children are in the mother’s care. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, Easter Sunday and Christmas Day. To be clear, a telephone call from an extended family member is deemed to be made on behalf of all which come within that definition.
The mother shall be entitled to communicate with the children by telephone at her expense, at all reasonable times when the children are in the care of the father’s extended family during school holiday periods. For this order, “all reasonable times” shall include at least one (1) telephone call per week, and a telephone call on the children’s birthdays, the father’s birthday, Easter Sunday, Christmas Day and Father’s Day.
General
The parents will keep the other informed of his or her residential address and landline telephone number and email address and notify of any change in those details within forty-eight (48) hours of such change occurring.
In the event of a parent’s death, the surviving parent shall keep the extended family of the deceased parent informed of his or her residential address and landline telephone number and email address and notify of any change in those details within forty-eight (48) hours of such change occurring.
Notwithstanding any other orders relating to communication, both parents will encourage the children to telephone and write letters to the other parent (and if that parent is deceased, that parent’s extended family), and, if practicable, will facilitate the children telephoning or writing to the other parent (and if that parent is deceased, that parent’s extended family) if the children express such a wish.
All parties have general liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Ryan and Van Ryan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC67 of 2010
| MR RYAN |
Applicant
And
| MS VAN RYAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother, who is 34 years of age and dying of breast cancer, wishes to return to her home in Y in Papua New Guinea with her two little girls, aged 7 and 3½, to allow her to receive the support of her family and to die with all her family around her.
The father opposes this.
The case changed during the course of evidence because, for the first time, it appears, the mother who had previously been advised that her treatment had been successful “and there was no evidence of any metastatic disease” learned that on the probabilities, she would be dead within five to seven years.
The mother came to Australia on 7 February 2009 on a Medical Treatment Visa, which expired on 31 December 2009. Prior to its expiry, on 14 August 2009, she applied for a Permanent Partner Visa. Consequently, on 31 December 2009, a Bridging Visa came into operation. This visa will remain valid until the Permanent Partner Visa is finally dealt with. The Department has advised that the mother does not meet the health requirement. All applicants for a Permanent Partner Visa must pass the health requirement. According to the mother’s migration agent, the Department may consider waiving the health requirement if provided with information regarding any compelling and compassionate circumstances which would potentially mitigate the cost or prejudice of access involved to the Australian community. A Health Waiver has been lodged but her future treatment involves the sum of some $80,000. If the Health Waiver is accepted, then she will receive a Permanent Partner Visa. If not, subject to an appeal process, then the application will be refused and she will, presumably, be deported.
All of this came about because the father came to Australia with the two girls in March 2009 to support the mother who had commenced chemotherapy. He had applied for Australian Citizenship, while still in Papua New Guinea, for himself and the girls, according to the mother, unbeknown to her. They were granted Australian Citizenship on 20 April 2009. He then applied to sponsor the mother as a partner to migrate to Australia on 7 August 2009, but on 2 October 2009, shortly after the separation, he withdrew his sponsorship. All of this has caused great disputation between the parties.
At the date of trial, the mother’s application for a Permanent Partner Visa had not been dealt with. The father in his affidavit deposed that he hoped that the mother’s application was successful so she could remain legitimately in Australia and be part of the children’s lives. He said it would be devastating, especially for the children, if the application was refused. He told the Report Writer that if the mother was only able to obtain a Tourist Visa to remain in Australia, he would have to consider letting her go home.
There has been a history of some family violence. Although there is some dispute between the parties concerning the circumstances, the father acknowledged to the Family Report writer the Family Violence Order issued by the Tasmanian Police on 28 November 2006 and acknowledged the incident against a work colleague in Papua New Guinea during which her car was damaged requiring him to pay compensation which apparently prevented criminal charges being laid. He further acknowledged to the Report Writer that in Townsville prior to separation, there were a number of incidents of family violence and that the mother had called the police on two occasions and locked him out a few times. With regard to past family violence, he acknowledged that for the duration of the relationship, there had been mutual family violence with frequent verbal arguments including swearing and name-calling but rarely physical. He reported that when he finally left the marriage on 21 August 2009, there had been a crisis and he went to stay with a friend.
Chronology
1978 Mother born (34 years old)
1977 Father born (33 years old)
2006 Parties commenced relationship
2001The mother alleges that the father was dismissed at work for being intoxicated while on duty.
2003The father told the Report Writer that he had fathered a child in PNG. He acknowledged that he may have a child in PNG.
April 2003Date of birth of first child – L (7 years old)
May/June 2004 Mother alleges a domestic violence incident and alleges that the father punched her while she was holding L. In any event, it is agreed that at that time, the parties separated for a period and the mother lived with the maternal grandparents and cared for L.
September 2005 The relationship resumed
2006 The parties married in PNG.
May 2006 The family moved to Hobart.
September 2006 The mother alleges a domestic violence incident where the neighbour called police and the father was taken away for a period.
30.09.2006Temporary Domestic Violence Order made in Tasmania.
November 2006 Date of birth of second child – E, now 3 years, 8 mths
28.11.2006A 12-month Domestic Violence Order made in Tasmania. That is the Domestic Violence Order acknowledged by the father to the Report Writer.
January 2007 Mother and children return to PNG.
May 2007Mother and children join father in Melbourne.
November 2007 Mother and children return to PNG.
December 2007 Father returns to PNG.
27.01.2008The mother alleges that the parties have an argument, that the father smashes a laptop computer and that the parties separate, with the mother and children remaining in the home of the maternal grandparents.
April 2008The mother alleges the father goes to Court re smashing the car window of a fellow work employee and was placed on a 12 months good-behaviour bond. This is the incident acknowledged by the father to the Report Writer. However, the father denies that any charges were ever laid.
July 2008Father obtains a home with his employer in PNG.
September 2008 Mother and children move in with the father and shortly thereafter, the mother becomes very ill and ends up moving back in with her parents.
November 2008 The mother and children move back in with the father.
27.11.2008The mother is diagnosed with cancer and shortly thereafter, the mother applies for a Medical Visa to come to Australia for treatment. She alleges she nominated the father as her Medical Escort.
January 2009 There is some dispute between the parties as to how all of this arises, but the mother alleges that the father renounces his status as a Medical Escort but does not tell her. She alleges she discovers this only when making her own enquiries at an Internet café about the delay in the issue of the visa.
31.01.2009The mother alleges unbeknownst to her the father applies for Australian Citizenship for himself and the children. It seems that the father was entitled to Australian Citizenship by virtue of the fact that his father had been a former Australian citizen and the children seemingly entitled due to exceptional circumstances, being their mother’s illness and need to stay in Australia.
07.02.2009Mother arrives in Australia for medical treatment.
February 2009 Mother starts chemotherapy.
03.03.2009Father and children arrive in Australia.
20.04.2009Father and children become Australian citizens. The father told the Report Writer that he applied for Permanent Residency for himself and the children rather than obtain an “Escort Visa” because he wanted a Multiple Entry Visa for himself and the children. He told the Report Writer that the mother was not eligible and she needed a Spouse Visa Application. He said that because the parents had now separated, he could no longer be her sponsor. In his affidavit, he deposes that it is his understanding because PNG law does not allow dual citizenship for persons over 18 years of age, he automatically lost his PNG citizenship upon being conferred Australian citizenship, but the two children were currently dual citizens of PNG and Australia until they turn 18, when they will choose one or the other. There was no evidence given as to this but I assume he would have no difficulty in obtaining PNG citizenship if he returned and applied for same. The children have passports issued to them by the Papua New Guinean government which enabled them to come to Townsville. These passports are being held by the Court until further order.
May/June 2009 The mother alleges a domestic violence incident with the father throwing furniture around the community organisation unit. The father acknowledges that there was an incident but denies throwing furniture around.
July 2009The mother undergoes double mastectomy.
August 2009 The mother alleges that the father forces her to have sex with him against her will. Father vigorously denies this.
21.08.2009Date of final separation.
September 2009 Mother starts radium therapy.
October 2009 Mother resumes chemotherapy.
02.10.2009Mother and children move to a Shelter (for Victims of Domestic Violence). The same day, the father writes to the Department of Immigration and Citizenship withdrawing his sponsorship of the mother for a Partner (Temporary Residence) Visa.
10.10.2009Mother and children move out of the Shelter
21.01.2010Father files Initiating Application.
26.02.2010Mother files Response.
03.03.2010Interim orders for equal shared parental responsibility, children to live with mother and spend time with father for two nights per week from 4.00 pm to 7.00 pm and each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday. However, both parents told the Report Writer that the father regularly visits the mother’s home to spend time with the girls and provide some practical housekeeping assistance and that they regularly take the girls on shared outings.
Father’s History
He was born in 1977 in Papua New Guinea of an expatriate Australian father and a Papua New Guinean mother.
His father died in PNG when he was 14 years of age. … He attended secondary school in Australia and then the University of Papua New Guinea, where he studied and qualified for a professional degree …. It was at that time that he met the mother. He has an older brother and sister. His sister and her children have recently moved to Canberra, where his uncle lives. His older brother still lives in Y.
After doing some further work after completing his training, he secured work with a private practice in Y.
A little time after the first child was born, some time in 2004, it seems, the father applied for work as a Tutor and commenced studying for his Masters Degree.
In 2006, the father applied for and obtained a Scholarship to study under the mentorship of a professional in Hobart for a period of 10 months.
In early 2007, he began training in Melbourne and according to the mother, he told her in order to undertake a professional examination and the regulatory body examination. If he successfully completes the regulatory body examination, he is entitled to be registered in Australia as a professional practitioner.
The father returned to Papua New Guinea at Christmas 2007. According to the mother, he told her he did not pass the regulatory body examination. There is a dispute as to whether in fact he sat the examination.
In March/April 2008, the father obtained employment at U Organisation in Papua New Guinea. ….
Until the parties came to Australia, because of the mother’s diagnosis of serious breast cancer, the father was still employed as a tutor and had almost qualified in his profession. To qualify, he has to complete his Masters’ degree which requires three months more work on his thesis and further work experience. He said that if he returned to Papua New Guinea, he would return to employment at U Organisation and private practice. He said that prior to coming to Australia, he was also working in PNG, being after-hours work. His employer provides accommodation at minimal rent and it was in that accommodation that the parties and children resided prior to coming to Australia. There are apparently some additional benefits associated with this position and in addition, if he qualified in his profession, although he did not know what he would be paid, it would presumably be more than he was receiving in his current position.
He conceded, in evidence, that he was prepared to return to Papua New Guinea.
Father’s Present Circumstances
He is a student studying Management and it appears that the only reason that he is studying that course is that it qualifies him to get a Centrelink Special Benefit, which is equal to a Newstart Allowance, together with Rent Allowance.
He was working nights at a Townsville company, but I am unsure whether he is still doing that.
He is living in rented accommodation which comprises a 2-bedroom unit on a 12-month lease, expiring in September 2010. He is paying $448 a fortnight rent.
He pays $30 a month Child Support.
He has recently purchased a car. Prior to that, he borrowed a car that had been loaned to the mother. Some difficulties arose with respect to that and I gather that was the reason for him purchasing a car. No evidence was led as to how he managed to finance the purchase of a motor vehicle.
He told the Report Writer that in order to practice as a professional in Australia, he must sit and pass the regulatory body exams, both written and viva and then register as a registered practitioner. He told the Report Writer that this might take the best part of 12 months in study and training.
He said in evidence that he proposed to sit the exam later this year.
He gave evidence that once qualified, he would probably practice in Townsville.
He said to the Report Writer when asked how he would practically manage a week-about living arrangement for the children, if he was successful in obtaining a position in his profession and thus required to work long hours, that he had not thought that far ahead and it was his view that he would not be able to care for the kids while he was working and would have to utilise child-care.
He acknowledged in evidence that the present circumstances of he and the mother were not sustainable.
He gave evidence that the children would be devastated if the mother returned to Papua New Guinea and the children remained here in Australia.
Mother’s History
The mother was born … in Papua New Guinea. It is a Melanesian society that fosters neighbourly and extended family relations. On the evidence, there is a vast richness of different traditions and customs. The mother has a strong Christian faith and was brought up in the Catholic religion, attending Catholic schools. She and her sister attended S Catholic school in Y, which is where the eldest child was receiving her education prior to coming to Australia. The youngest child was enrolled in a Day Care at that school.
The mother received her education at S Catholic school which the father acknowledges follows the New South Wales Primary and Secondary education curriculum and the teaching methods reflect this. The school fees have, and if the mother is permitted to return with the children to PNG, will be paid by the mother’s parents.
The mother’s family all attended schools and have tertiary qualifications. She completed a finance course externally from a Queensland TAFE while working in PNG.
Her sister is a supervisor in a distribution company, managing a team of 45 people. Her other sister is a travel consultant with local certification, and in the process of obtaining international certification. Her brother is an Information Technology Specialist owning his own business and has a Diploma in Information Technology with international certification.
Both of the mother’s parents worked until they retired although there is some question mark over whether the maternal grandfather has permanently retired. The evidence is that the mother’s family live well in Papua New Guinea and are a respected family. The subject children, according to the mother, are accepted members of the community.
Due to her cultural upbringing the mother believes in Initiation ceremonies, Papua New Guinea society being a matriarchal society where children basically belong to the mother’s clan and grow up learning the rituals and life skills handed down from their mothers and grandmothers.
According to the mother’s evidence, marriages such as the one between the parties here are common where the responsibility lies with the parents to impart traditions into the children’s lives so it would be incumbent on both parents to ensure that the children are taught traditions from both clans.
According to the mother’s evidence, there are many educated families in Papua New Guinea who have suffered marriage breakdowns and the children move between the father’s clan and the mother’s clan freely. Although the mother is Catholic, both her custom and religion teach respect for each other and the importance of love and supported extended family.
The mother is very concerned that the children be brought up exposed to all of these cultural experiences.
The father acknowledged in his evidence that the mother was very proud of her culture and that it was important for the children to experience their Melanesian culture and it was hard to do that if they were not in Papua New Guinea.
The mother and father commenced living together in June 2001 and it seems that for a considerable period of time between then and now, the mother and children, and on occasions the father, returned to live with her parents in their large home in Y. She gives uncontradicted evidence that it’s traditional in Papua New Guinea for girls to be able to return to live in their parents’ home with their families after they marry, if their husbands are unable to support them or if there are marital problems.
The maternal grandparents have a large house with self-contained separate living areas where, on the mother’s evidence, she and her sister have lived most of their lives.
She deposed that whenever she returned to live with her parents, she and her family occupy the 3-bedroom, upstairs unit, which is equipped with its own amenities and kitchen facilities.
She deposes that if she were permitted to return with her daughters to Y, they would live in the 3-bedroom house upstairs in her parents’ house, that her eldest daughter would return to school at S Catholic School where she commenced school last year, and that her younger sister will stay with her in her parents’ home to assist her with the care of the children, together with the assistance she will receive from her parents.
An issue was raised about the security of the children if they returned to Papua New Guinea and the mother gave evidence that it was a safe place where she lived with the children and her parents… There was a common fence around the compound and then fences around the houses.
Not only do her parents pay the school fees, but her father pays health insurance for the mother and children which covers most of the medical expenses in Papua New Guinea.
Mother’s Present Circumstances
The mother came to Australia to enable her to have urgent specialised treatment which was not available in Papua New Guinea. She has had a double mastectomy as well as chemotherapy and radiation treatment. She continues to receive Herceptin treatment approximately every three weeks. Herceptin is a particular type of chemotherapy. There is some controversy as to how long she should continue to undergo this treatment. It is not available in Papua New Guinea and so to continue with it requires her to stay in Australia.
It seems that the recommended number of treatments is 17. She has presently had seven, and proposes to have another two. She does not wish to continue with the treatment because to do so requires her to remain in Australia in her present living circumstances, and the cost of each treatment is approximately $4,000. Such cost is being met by her family.
She does not wish to continue to ask her family to make these large payments and her doctor, Doctor D, who gave evidence before me, was unable to give an opinion as to whether it would make any change to the prognosis that she has given. The mother still has cancer cells in her body which will ultimately kill her and as I have already said, the evidence discloses that on the probabilities, she will be dead within five to seven years.
She deposed that she had asked the father for permission to return home to Papua New Guinea with their daughters but he refused to allow her to take them.
She remains living in Townsville with the daughters and although she has received great support from her Cancer Treatment Team, her church and various community organisations, she now desperately wishes to return home.
Her family raised $80,000 for her treatment in Australia and up until the time of separation, the mother, father and children had been accommodated at a community organisation. However, once the father obtained accommodation through the Department of Housing and a Centrelink Parenting Payment, after the separation, it was necessary for all of them to move from the community organisation unit.
According to the uncontradicted evidence of the mother, the father refused to allow the mother accommodation and said that the accommodation he had obtained was for Australian citizens only and that the mother would have to find her own accommodation.
She then arranged emergency accommodation at a block of units where the manager allowed the mother and girls to stay rent-free for a week.
There was then, according to the mother, another domestic violence incident and as a result, she contacted the Domestic Violence Resources Centre and obtained accommodation at a Women’s Shelter, staying there until she obtained family emergency accommodation P where she and the children have continued to live.
With the assistance of her Social Worker, the mother appealed the Centrelink Determination that the father was the primary carer of both girls since, according to her, they had always lived with her and continued to do so. She received the support of the Church, a number of other charity organisations, the eldest child’s school and the youngest child’s day care centre all confirming her care of the children.
As a result, she is now in receipt of a special benefit of $135.53 per week in the name of the children for their support because her Medical Visa prevents her from receiving any Centrelink Benefits. She also receives assistance from the Catholic Church. The eldest child continues to attend G State School and the youngest goes to the K Child Care Centre each Monday, Wednesday and Friday whilst the mother is having medical treatment. Again, because of the mother’s Visa and her separation, she has not been entitled to receive a Child Care Benefit from Centrelink and has to pay for childcare.
She has been able, with the help of her Cancer Care Team to have all of her treatments within school and day care hours and she has also received assistance from the school community and the church in collecting and delivering the eldest child to and from school. There have been apparently various arrangements in place through community organisations which have been of tremendous assistance to the mother and the girls.
A friend that the mother met during her treatment gave her the use of a car to assist in transporting the children. As she does not have a licence, nor does she feel able to drive at the moment, she allowed the father to use the car to assist in transporting the children. This was not a success.
She deposed that since she does not drive, it was necessary for the girls and her to walk to the bus stop. She swore that they usually are up at about 6.00 am and leave home at about 7.30 am to walk a short distance to the bus stop where they catch a bus to the city. They then change buses and catch the bus that passes closest to the eldest daughter’s school. The younger daughter and the mother than walk L up to the school and on Tuesday and Thursday mornings, the mother helps with the readers at school. The younger daughter stays with her. They have to leave before 10.00 am to catch the bus to the K Day Care Centre on the youngest daughter’s day care days and on these days, the youngest daughter is at day care from about 10.30 am to 3.30 pm. In the afternoon, the mother collects the eldest daughter first from school at 3.00 pm and then catches the bus to collect E again, changing buses to travel home. She deposes it usually takes them about an hour to travel each way each day and she has to leave home soon after 1.00 pm in order to catch two buses to be at L’s school on time. Sometimes, she deposes, she just stays at the library rather than returning home for a couple of hours. She takes a pillow with her to rest in the library.
She swears that when she has had chemotherapy, the travel is particularly exhausting and she often suffers nausea. She has had a lot of help from her Church, the Women’s Shelter and Family Emergency Accommodation in assisting her with travel to and from medical appointments and transporting the children to and from school, but she swears that it is difficult for these organisations to maintain the level of assistance when they have so many other calls on their services and time. She says she is constantly reminded of how much easier it would be for her to have her extended family near at hand to assist her on a day to day basis with her own care and the care of the children.
In evidence, the father acknowledged that the mother had been the primary carer and that here in Townsville, she was dependent on charity. He said that he could understand her desire to be close to her family.
Expert Evidence
The Family Report is annexed to an affidavit of Ms V, the Family Consultant who is the Manager of Child Dispute Services of the Family Court of Australia for North Queensland.
Under the heading “Applications and Proposals of the Parties”, the report reads:
10.[The father] proposed the parents work towards a week about living arrangement for the children in Australia. He further proposed that if the mother returned to Papua New Guinea the children live with him.
11.[The mother] proposed the children live with her and she be permitted to return to live with the children in Papua New Guinea. She further proposed the father spend time and communicate with the children as agreed between the parties.
Although the final competing proposals were considerably more complex, Ms V has captured the essence of the dispute in her paragraphs 10 and 11.
The Report Writer, when she wrote the report, was concentrating on two matters. Firstly, the issue of the mother’s status and whether she was to be granted permanent residence or not and secondly, a 12-month time frame.
This is referred to in paragraphs 32, 47 and 70 of the Family Report. I set them out hereunder:-
32.[The father] viewed the ideal outcome would be if [the mother] secured permanent residency in Australia. He reported: “If [the mother] has permanent residency” he would “let her go back for 12 months”. [The father] reported that should this occur, he wanted a clause in the Family Court Orders specifying he could bring the children back to Australia should they require urgent medical treatment. In addition, he wanted the Family Court Orders to include a clause that “if either parent dies”, “the children go to the other parent”.
…
47.[The mother] proposed she be permitted to return to Papua New Guinea with the children. Her plan was “to live with her family for 12 months to get well and get organised. Then come to Australia after that”. [The mother] reported that if she were to remain in Australia now, she was still so unwell that she would require a carer to assist her with the children and “Who would support the carer (financially)?”
…
70.The children live with the mother in Papua New Guinea for at least 12 months.
Paragraph 70 is under the heading “Recommendations” and under the sub-heading “If the mother is granted Permanent Residence in Australia with the benefits of citizenship such as Centrelink benefits and access to free medical care”.
The report was written, of course, before the mother’s true prognosis was known.
In her evidence, Mr Fellows of Counsel for the father asked:
Now, could I ask, Ms [V], you to turn to paragraph 47 of your report where you record that the mother had a plan to return to Papua New Guinea only for a short period of time and then return to Australia, and this is linked, as I understand it, to your recommendation commencing at paragraph 69 that the mother should live with the children in Papua New Guinea for 12 months. Can I ask you to give me some background information concerning paragraph 47: did the mother’s plan come to you as something she, as it were, immediately volunteered and told you, “This is what I am doing,” or is it something that evolved as a result of your discussions with her?---[The mother’s] proposal that she live with her family for 12 months to get well and get organised then come to Australia was as a result of a discussion between us in regard to what are all the alternatives, and the bottom line for the mother was that, “I have to go home now. I’m exhausted. I need this time for myself. So please give me 12 months so I can be with my family and be nurtured and cared for and restore my health, because I don’t feel that I’m any good to anybody the way I am now.” So her view was that, “At least give me that; then I would be in a better position to then consider living in Australia,” with all the benefits that she agreed that would be there for the girls. So it was really in that kind of a context.
So it can be seen that the 12 months came about as a kind of compromise position.
Then a little later in her evidence, she was asked by Mr Fellows:
From the children’s perspective, and looked at only from their perspective, because my client mightn’t like the idea of the children going away from [sic] 12 months to Papua New Guinea anyway, and so on, but looked at solely from the children’s perspective, the proposition that they and their mother should spend this restorative period in Papua New Guinea, but then, ultimately, the whole family be living here in Australia is a good outcome for the children, isn’t it?---From my point of view, looking at the best interests of the children, given their young age, three and seven, the best outcome for the children is to live with their mother in the short and medium term, because they’re very, very young, and so wherever the mother lives, then the children should be with them [sic]. I suppose that’s the first thing I want to say. Secondly, given they are still so young, if the mother was living in Papua New Guinea, the benefits to the children of living with their mother in Papua New Guinea would, in the short to medium term, say for the next couple of years, would certainly, I think, would be equal to them living in Australia if we take away things like the healthcare, because they’re still very young, and in terms of their schooling, I’m sure that the primary schooling, the Catholic school they would go to, would be fine for them. I would only have concerns as they got older and they were looking at late primary to high school where I think, certainly, the advantages for them, in terms of their academic future, that I would say that would outweigh them living, say, with their women in their home in Papua New Guinea, given that the mother has described a safe secure environment and stable home in the home of the extended family.
I then asked the question which of course was predicated upon evidence that Ms V had heard, she being present during the evidence that was given by Dr D. I asked:-
The probability is, is it not, that by the time the children reach an age where secondary schooling is appropriate, circumstances will have changed so that the father will have them?---Sorry, can you say again.
By the time the children attain an age that is appropriate for them to engage in secondary schooling, on the evidence that you’ve already heard, the probabilities are that they will be living with their father?---Yes, yes.
Ms V then explored in evidence a matter that was not really canvassed in the Family Report because it had been written prior to the diagnosis just referred to. This question relates to the issue of what is in the children’s best interests, having regard to the probability that the mother will die within the next five to seven years. Mr Fellows asked:-
It is never pleasant for any of us [sic] to see the mother die. At what point in the process does it begin to be against the interests of the children to be daily witnesses of that deterioration?---That’s a very, very important issue, and certainly, in terms of the children’s emotional needs, and given that the mother is the primary attachment figure, it’s very important that the children are part of that whole process and can have significant time with their mother during, let’s say, the end stage of her illness, and one would think, and certainly hope and expect, that the father and other family members are doing the day-to-day care for the girls, for [E] and [L]. But [E] and [L] still need to be able to see the process of the deterioration and ultimate death of their mother, because that is very important in terms of their capacity to understand and then to be able to grieve appropriately and be able to deal with that as well as they can, depending on their ages, and to be able to then move on. So that has to be managed very carefully, and particularly, you know, certainly the final weeks and days and the funeral arrangements and also how the family come together after their mother passes away.
I then asked:-
You’re saying that it’s important that the children be involved in the dying process?---Yes, your Honour.
For their own emotional needs and their future development, is that - - -?---Yes, your Honour. That’s correct.
Why is that?---That’s because the mother has been their primary attachment figure, and her loss is going to be a profound loss, and we know that, for children, death of a parent can have a profound impact on their future emotional development, even into adolescence and adulthood. So, therefore, it has to be managed very, very carefully, and it’s important for the other adults in the family, and particularly, obviously, for the father, to be able to support and guide the children and give them developmentally age-appropriate explanations of what is happening to mummy at every step of the way.
Right through to the funeral and - - -?---Absolutely, most particularly, the funeral, the saying goodbye, and then, after that, the talking about mummy and the memories and the memory books and the special photos and the grave site. All of that allows the children to carry that with them so that when they are older, they do have those memories of the closure and the ending of mummy’s life, and then they have a place to go to, whether it’s a grave site, and they have their memory books, and they have their stories, too, that the father and the other relatives will tell them. “Do you remember when mummy did this?” and, “Do you remember the time you did that with mummy?” because for [E], in particular, she’s going to forget. If the mother dies within the next, say, 12 to 18 months, [E’s] going to have very few memories, because she’s only three years four months.
Then the issue arises as to what is to occur if the mother is sufficiently unwell not to be able to care for the children any longer. Mr Fellows asks:-
Importantly, though, Ms [V], the importance of the children’s participation in that process is not the same as, towards the end of that process, living with the mother, because at some point, they will have to be in the care of others, won’t they?
HIS HONOUR: You mean that a point in time will probably come when the mother is not up to [sic]?
MR FELLOWS: Able to, yes.
HIS HONOUR: Yes, but in that situation there’s really only two choices, then: there’s the mother’s family or the father. So someone has to care for them in the event that the mother’s just too unwell towards the terminal tertiary stage. What do you say about that? What do we do about that?---Ideally, I would say that I would hope that the maternal family and the father can put their differences aside and present a unified front for the children so that they can all, you know – and at this stage I’m assuming that the mother will want to be home to die.
I think that’s clear enough?---Okay, and then the best case scenario would be, then, for the father to be there for those months or weeks, and whether he lives in the maternal family compound or whether he lives close by, but that every day he and the children and the maternal family are involved in the process of caring for the mother and that the children have - - -
And watching the mother die?---Yes, and that the children then have little visits with mum. If she’s too sick and she’s in bed, then we have little quiet visits, and we have a little cuddle with mummy, and then we go away with daddy, and we do what we do or other activities. So it’s managed sensitively so that the children aren’t frightened, they can ask questions, and they feel that they can ask their grandparents questions, or they can ask daddy question, and they can have special time with mummy as much as the mother can tolerate during her last days.
I then explored the question of what should I do in the event that I came to the conclusion that the father and the maternal family could not cooperate. I asked:-
Can I ask you this question, and at the moment I’m not quite sure what the answer to this is. If the father and the maternal family can’t cooperate in this process that we’ve been talking about, what should I do then?---In the terminal stage of - - -
Yes?---The overriding priority for the children would be to be having daily contact with their mother during that terminal stage. So for that, they would need to be in [Y].
Sure. I am assuming that they were there?---Okay.
But you’re proposing the best course available with the father and the maternal family all pooling together to help the children cope with this, what’s going to be a dreadful time for them. What I’m asking you is what do I do in the event – and at the moment, I don’t think I’ve got any evidence about this – what do I do in the event that they can’t cooperate, that they’re sufficiently estranged so that they can’t do what you’re recommending? What do I do then? Whose care do I put them in at that time?---Then do you think there may be a possibility – well, what I’m thinking is then, perhaps, there could be cooperation between the paternal grandmother and the other paternal family members and the maternal family. Maybe they have better communication. I know that the father’s relationship with the maternal family has had its up and downs, but they have had a long history, and I think they’ve and difficulties and then are coming back together, and from my understanding, from talking to both of them, the paternal and maternal families, themselves, there’s not, like, a divide between the actual families. It’s really - - -
So you think that it’s – assuming that I made an order, for instance – this is the reason I’m asking you – if I made an order that, if the mother was unable to continue to look after the children – and that’s the context we’re now taking in – that the children live with the father, but in PNG until the mother dies, do you think that that would work so that the children, in this terminal stage of the mother’s life, would go through the process that you’ve recommended, or should I not make that order and only make an order that the children go to the father on the death of the mother? Do you understand the - - -?---I understand what you’re saying, your Honour. That’s - - -
And that’s a question that I’ve got to decide?---Yes.
Can you give me some advice about that?---As a safeguard, perhaps, if there was a real concern that if the children lived with the father then there would just be too much conflict for the father to be able to bring the children to the maternal family, then perhaps a second opinion - - -
Or no, perhaps whereby the children are brought by the father to the mother’s bedside and accommodated with the ability to go through the grieving process with her: that’s my concern?---Then, perhaps, an option, but obviously not number 1 option, would be that the children spend that block of time with the maternal family but have time with their father every day or second day.
It’s really a question, I think – I mean, it may be a matter for argument formally by counsel – but I think it’s really a matter of when I would change their living arrangements. If I’m to make an order that they live with the mother, the real question is do I do that until she dies, or do I do it until a point in time when she’s unable to continue to care for them, and then there’s that interregnum, and I’m not sure how that’s going to work with the maternal grandparents and the father because I don’t think I’ve any evidence – I stand to be corrected – but I don’t think I’ve got any evidence about how they would cooperate?---And I’m thinking, your Honour, that that’s a time when emotions will be strained and everyone will be feeling very distressed.
Highly strung?---So perhaps less likely to cooperate than more. Or it could go the other way, that perhaps everyone will put their differences aside. But perhaps it’s too risky to think that that my occur, and perhaps it - - -
You’re telling me that it is critically important for the children to go through this grieving process with the mother?---Yes, it is.
Then a little further on in her evidence, after having Exhibit E put to her and some more questions, it becomes clear that it is her opinion that it is important that there needs to be a set of rules for the children’s sake, relating to these matters and that this set of rules or plan needs to be understood within the broader family and acknowledged by them. She further agrees that it is appropriate for the children that if they are living Papua New Guinea with their mother, that they have all the benefits available to them of the Australian Medical System and that that should be spelled out in what Mr Fellows describes as “the plan”.
Towards the very end of Mr Fellows’ cross examination, he asks:-
The deterioration in [the mother’s] health, assuming that occurs: one scenario is that this draws people together. That is, families set aside their differences and they cooperate. That’s one scenario?---Yes.
And the opposite scenario is that the tension and difficulty and heartache, etcetera, of that process brings forward old enmities and old arguments, and people begin blaming processes, and it drives families apart?---Yes, that can happen too.
Is there anything that you would recommend, at least as a plan, to try to encourage cooperation, as distinct from disputation? Is there anything you can think of?---I would think that, if we had orders that acknowledge the importance of the role of the maternal family in the girls’ lives in the future, then that would show them respect and show that the culture and the maternal family are very, very important and that the girls are entitled to have exposure to that culture and that family until they’re 18, and then they can choose what they want.
Mr Betts of Counsel, on behalf of the mother, then cross examined Ms V and he asked:-
In paragraph 33 you have recorded the father as saying that the mother would comply with an Australian Family Court order. Do you have any other recollection to put that into any context, or is that all you’ve got?---Yes, certainly. In my second interview with [the father] I was trying to go through different scenarios with him, and I suppose, in a way, I’m trying to look at every kind of scenario that we could imagine in terms of what if the girls stay here or if the girls go, and I said to him – we were talking about, I suppose, in a way, the honesty between the parents and their relationship, and I asked him directly, “Do you think, in your opinion, would [the mother] comply with that order? Would she comply with a Family Court order?” and [the father] said, “Yes, she would comply,” in his view, “Yes, she would comply.” They were his words.
Then a little later in his cross examination, Mr Betts asks a question which I refined and the transcript records:-
Is what you’re asking, assuming that the mother survives another five years and then is in a terminal stage, the children are then eight and 12: does that affect this witness’s evidence in relation to how they need to be dealt with during the dying process?
MR BETTS: Terminal phase, yes. Thank you, your Honour.
HIS HONOUR: Is that?
MR BETTS: That was the question I was intending to ask?---If the mother became terminal in five years and the girls were eight and 12, their understanding of the process of their mother’s dying would be different because they are older. But my recommendations for their involvement in that end stage would be no different. They would need to be spending every day with their mother.
HIS HONOUR: They would just have, and the reality is, that they would have much greater insight than they do now?---Yes, your Honour.
And it would need to be managed, I would have thought, with even more care?---The explanations of what was occurring and what was happening to their mother and the conversations they had with the adults would be different, and would, again, reflect their increased developmental maturity.
Then a little further in her evidence, Ms V said:-
However, if there was high conflict and the father wasn’t getting on with the maternal family, I think that would be quite stressful and traumatic for the mother knowing that every visit was fraught with arguments before the children were allowed to come in to see her.
HIS HONOUR: That would be terrible, wouldn’t it?---Yes, it would be terrible.
Then a little later, she agrees that it would not be in the best interests of the children to be put on a plane and returned to Australia the day of, or the next day, after the mother dies.
Towards the end of her evidence, she is shown Exhibit 5 by Mr Betts, which is the penultimate set of proposals by the mother and asked to read paragraphs 28 to 30 of those orders.
The transcript records Mr Fellows asking questions but I am sure that’s a mistake and it was Mr Betts. In any event, the transcript shows as follows:-
MR FELLOWS: Do you have any opinions as to whether those orders, to the extent you’re able to say, would be in the best interests of the children, or do you have any comment to make about those orders generally that you’d like his Honour to know?---I think that it is important that after the mother’s death, and if the children are living with their father, that they do spend regular time with their maternal family, whether that’s in Australia or whether that’s back in Papua New Guinea.
HIS HONOUR: That they have contact with the maternal family?---Yes.
MR FELLOWS: And it would be equally true, wouldn’t it – I wouldn’t go through it with you now – but it would be equally true that, if the father were to be hit by a bus tomorrow or something happened to him, you’d want to see the same thing happen, reciprocal arrangements, for his family, or substantially reciprocal?---Yes, it’s important that the children have the benefit of a relationship with both families and both cultures.
Part vii of the Family Law Act 1975 (Commonwealth) (ss60A-70Q)
The High Court recently considered this part of the Act which was substantially amended in 2006. The decision reported as MRR v GR 80ALJR 220.
In a consideration of this case, it will help if I set out in some detail what the High Court had to stay.
[6] Part VII of the Act (ss60A – 70Q) concerns children. It was substantially amended in 2006 by the Family law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
[7] Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) 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 may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
The presumption clearly applies in this case. Both parents in their proposed orders seek equal shared parental responsibility and it is the recommendation of the Family Consultant in the Family Report that the parents have equal shared parental responsibility. As in the case considered by the High Court, there were no parenting plans entered into between the parties.
The High Court then goes on:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(Emphasis added.) Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
[10] Coker FM said that he applied the presumption of equal shared parental responsibility. His Honour noted that he was obliged, pursuant to s 65DAA, to consider “whether equal time with each parent would be in the child’s best interests and is reasonably practicable, and if equal time is not appropriate then whether substantial and significant [time] would be in the best interests and reasonably practicable”.
[11] Because the father had said he would not move from Mount Isa, the only possibility for equal time parenting would arise if the parties both remained in Mount Isa. In what follows his Honour was clearly of the view that they should do so. His Honour said:
If [the} parties remain in Mount Isa as the father suggests, then they are in the same locality. They are proximate to each other and there can be the opportunity for equal time which would be, in my assessment, in the best interests of this child.
[12] His Honour concluded that the father’s proposals of equal shared parental responsibility with the child living in Mount Isa most appropriately ensured the child’s best interests and welfare would be met and on that basis made the orders in question.
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the questions whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court then went on to consider the significance of section 65DAA(1) which had particular significance in that case and in my view has particular significance in this case. The High Court said:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[16] Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in “rough” areas.
[17] The mother had limited opportunities for employment in Mount Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mount Isa the mother supported herself from social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mount Isa for someone of her experience and there were limited opportunities for flexible hours.
[18] The evidence of the Family Consultant was that the mother was “definitely despondent” about being in Mount Isa, as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that “the mother’s anguish and depression in being in Mount Isa … can, to a significant degree if not in their entirety, be dealt with by … counselling” is not supported by this evidence.
[19] The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
It is clear that the High Court thought that section 65DAA(1) was concerned with the reality of the situation of the parents and the child and the High Court Judges thought it was the obligation of the decision maker to consider the circumstances of the parties and in that case, more particularly, those of the mother in determining whether equal time parenting was reasonably practicable.
The circumstances of the mother in that case was such that the High Court thought that had consideration been given to that question, only one conclusion could have been reached, one which did not permit the making of the order.
The circumstances of the mother in that case, though very difficult, pale into insignificance compared with the circumstances of the mother in this case.
As there is to be an order for equal shared parental responsibility in this case, I must apply the provisions of s 65DAA as explained by the High Court.
Firstly, I have to consider whether the children spending equal time with each of the parents will be in the children’s best interests.
To determine what is in the child’s best interests, I have to apply s 60CC.
SECTION 60CC How a court determines what is in a child’s best interests
Determining 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.
Additional considerations are:
(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 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;
(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.
(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 rights to maintain personal 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)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;
(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.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(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 a 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.
If the High Court meant that s 65DAA required (a) and (b) to be considered sequentially, then I think some difficulties arise for the decision maker. However, it does not seem that the legislature thought that (b) should be considered before (a). Perhaps the answer is that the decision maker considers them together. If that is so, it makes what is already a most difficult determination even more complex.
It must be clear, from what I have already said, that I consider the mother’s circumstances such that it is simply not sustainable for the present position to continue. The obvious answer is for the mother and children to return to Papua New Guinea. I state that now although I have not formally considered s 65DAA(1)(b) because it will help me in answering the questions posed in s 60CC.
I will now turn my attention to s 60CC.
There is no doubt that there is a benefit to the children in having a meaningful relationship with both parents in this case. There has been some previous domestic violence but I do not believe there is a need to protect the children from physical or psychological harm.
I now turn to the additional considerations.
No views were sought from the children because of their age. It is clear that the children have a good relationship with each of the parents, but that the mother has been the principal carer throughout their lives. On the evidence, it is also clear that the children have a very close relationship particularly with the maternal side of the family and the maternal grandparents.
On the evidence, I find that each of the parents is willing and able to encourage a close and continuing relationship between the children and the other parent but of course that is dependent upon where each of the parents live.
Although there was no particular evidence of the likely effect on the children of separation from their father, it is clear that they would be devastated if separated from their mother.
The practical difficulty and expense of the children spending time with and communicating with each of their parents depends again upon where the parents live. Clearly, if the mother returns with the children to Papua New Guinea and the father remains here in Townsville, considerable difficulties arise and there are quite extensive transport costs. On the evidence before me, there was a $3,000 return air fare for the mother and the two children to fly from Papua New Guinea to Townsville. However, there is absolutely no reason why the father cannot return to Papua New Guinea. The evidence is overwhelming concerning his security with respect to his professional advancement and accommodation were he to return to Papua New Guinea. If he were to continue his studies here in Australia, there is no certainty with respect to his future.
Each parent has the capacity to provide for the needs of the children including emotional and intellectual needs, although it is clear that the mother has in the past predominantly fulfilled that role. She has been substantially assisted in that by support from her parents. The present circumstances do not allow for this to occur other than as a result of basically the charity of others. Neither parent has the capacity to really provide for the basic needs of the children at the present time here in Australia. If the children live in Y, it is clear that the mother would be able to easily provide for the needs of the children particularly with the financial and other assistance which would be provided, on the evidence, by her parents. Also, if the father returned to Y, having regard to the availability of employment for him at U Organisation, he could much better assist in providing for the basic needs of the children.
I am required to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents and any other characteristic that I think is relevant. Immediately following that sub-paragraph is the issue of Aboriginal or Torres Strait descent which is also addressed in sub-paragraph 6 which relates to the maintaining of a connection with the culture and the support opportunity and encouragement for the children to explore the full extent of that culture consistent with the children’s ages and developmental levels and the children’s views and to develop a positive appreciation of that culture.
The evidence is that the children have been brought up in the Melanesian culture and there was no evidence that there were of Aboriginal or Torres Strait Islander descent. Nevertheless, that gives me some guidance, I believe, into how I should look at the issue of lifestyle, culture and traditions that are referred to in sub-paragraph (g).
The mother asserted the importance of the children being brought up in the Melanesian culture and the father conceded that that should happen. He also conceded that it was very difficult for that to happen if they did not reside in Papua New Guinea.
I am required to consider each parent’s attitude to the children and their responsibilities of parenthood. It is clear on the evidence that the mother has been the dominant influence on these children’s lives and has adopted a responsible attitude to her parenthood. The father seems to have put the children at some risk by his refusal to allow the mother to relocate with the children back to Y. It has been clear to him, in my opinion, for some time that the present situation was intolerable. Yet he refused the mother’s request to return with the children to Y.
I am also required to consider family violence and family violence orders and there is a Family Violence Order in evidence. Although there is some dispute with respect to this issue, I find on the evidence that it is tolerably clear that the father, in particular, has lost his temper on several occasions often in quite inappropriate circumstances, which has shown an irresponsible attitude to his parenthood responsibilities.
I am also required to consider an order which is least likely to lead to the institution of further proceedings and any other fact or circumstance that I think is relevant.
It is clear on the evidence that I need to make an order which is clear and which is acknowledged by the parents and, in particular, the maternal family as being binding.
Sub-paragraph 4 directs my attention to some matters which flow from sub-paragraph 3(c) and (i). I have turned my mind to those matters and what I have said under paragraph 3 is sufficient, in my opinion, to deal with the matters that the legislation directs my attention to in sub-paragraph 4.
Sub-paragraph 4A requires that I must, in applying sub-section 4 have regard, in particular, to events that have happened and circumstances that have existed since the separation occurred, if the parents have separated. I have done that. Sub-paragraphs 5 and 6 do not apply other than in the way in which I have already referred to sub-paragraph 6.
On the evidence I find that it would not be in the best interests of the children to spend equal time with each of the parents, wherever the parents lived.
On the evidence of the Report Writer, it is in the children’s best interests that they live with the mother wherever she lives. In my opinion, on all of the evidence, it is in the children’s best interests that they spend the majority of their time with the mother.
The interim orders that are still in place, provide that the children live with the mother and spend time with the father on two week nights each week and each alternate weekend. The orders that are sought by the mother are set out in the final parenting orders, being Exhibit 6. The father’s proposals for final parenting orders in relation to this matter, simply provide “insert specific orders determined by his Honour”.
Although the father contended at the interim hearing and proposed to the Report Writer that there should be week-about parenting, he conceded to the Report Writer that he would not be able to sustain such a regime here in Townsville, particularly if he obtained the employment that he was hoping to obtain.
No evidence was led before me with respect to this issue if the father returned to Y. However, the evidence is that he would return as a tutor in addition to studying to complete his Masters Degree and in addition, working in his profession after hours.
On that evidence, I consider I am entitled to make a finding that the same position would apply in Y and that the father would not be able to maintain a regime of week-about.
It is convenient to consider at this time, having found that it would not be in the children’s best interest to spend equal time with each of the parents wherever they may live, to consider whether the children spend substantial and significant time with each of the parents wherever they may live.
Substantial and significant time is defined in sub-paragraph 3.
For the reasons I have already given, I do not consider that it would be in the children’s best interest to spend substantial and significant time with each of the parents, wherever they may live.
Consequently, I consider that it would be in the best interests of the children to make the orders as proposed by the mother.
I next have to consider whether it would be reasonably practicable for the children to spend equal time or substantial and significant time with each of the parents.
This raises the issue of where the parents are going to live.
As the High Court said, the section is concerned with the reality of the situation of the parents and the children.
The reality of the situation is that although one of the children was born in Tasmania, they have been raised in Papua New Guinea, predominantly by the mother. Both parents were born in Papua New Guinea and until the father came to Australia, all were Papua New Guinean citizens.
The mother only came to Australia for the purposes of having treatment for her cancer. The father and children followed and later became Australian citizens. The children have dual citizenship.
The mother wishes to return with the children to Papua New Guinea. The Family Consultant recommends that the children should live with the mother, wherever the mother lives.
The mother cannot continue to live here in Australia. Her present situation is not sustainable.
The children would be devastated if the mother returned to Papua New Guinea without them.
The father can easily return to Papua New Guinea if he wishes.
It is clearly in the children’s best interests to return with their mother to Papua New Guinea where the mother and children will receive the full support of her parents and they will be brought up in the Melanesian culture.
Although there may be some advantages to them being in Australia, namely education and health services, the evidence is that the school which they will attend has the same curriculum as New South Wales schools and the maternal grandfather pays health insurance which covers the mother and the children for health services in Papua New Guinea. Further, the children can be brought to Australia for serious medical treatment if that is necessary.
It is clearly in their best interests, in my opinion, to return with their mother to Y.
In those circumstances, it is clearly not reasonably practicable for the children to spend equal time with each of the parents or, for that matter, substantial and significant time with each of the parents if the father chooses to remain in Townsville.
Consequently, if the father chooses to remain in Townsville, then I am entitled to make such orders, in my discretion, as are in the best interests of the children as a result of the considerations under s 60CC.
There are competing proposals in that event set out firstly in paragraph 5 of Exhibit F and paragraph 17 of Exhibit 6.
There are not significant differences other than some differences with respect to communication by telephone, and cost of travel.
In my opinion, the mother’s orders are more appropriate and reflect the best interests of the children and I do not consider if the father remains in Townsville that the mother should have to contribute $800 in January, April, July and October of each year as a contribution towards the cost of air travel that the father will incur.
It seems unreasonable, in my opinion, that if the father chooses to remain here in Australia living on benefits and perhaps some small contribution from casual employment, that the mother should be required to contribute those sums of money which will undoubtedly fall upon her family. I do not propose to make such an order.
Tendered in evidence, being Exhibits 1 and 2, are the Papua New Guinea Consolidated Legislation Reciprocal Enforcement of Custody Orders Act 1978 and the Gazetting of Australia as a Declared Country for the purposes of that Act.
….
The legislation provides for the reciprocal enforcement of custody orders. I am content that any orders I make will be appropriately registered and will make orders to that effect.
On the evidence I am persuaded that the orders will be obeyed by the mother and her family. The father conceded to the Report Writer that in his view, the mother would obey any Court orders. The mother gave evidence that she would obey the orders and the maternal grandmother gave evidence similarly.
The orders that are proposed by the mother, being Exhibit 6 in these proceedings, with a couple of minor amendments, in my opinion, deal with all of the known combinations of circumstances and provide for an appropriate mechanism which will provide certainty, insofar as that is possible, for these children.
I consider those orders, with the minor amendments that I shall make, to be in their best interests.
Consequently, I now make orders.
Annexure A
Content of the Undertaking required to be given
1.I acknowledge that I have read the Order of Justice Monteith of the Family Court of Australia dated 16 August 2010, a true copy of which is marked as Exhibit 1 to this Undertaking.
2.I acknowledge that in the event that [the mother] is by reason of death unable to care for the children, [L], born […] April 2003 and [E], born […] November 2006, that the children are to live with and be cared for by their father, [Mr Ryan], from six (6) weeks after [the father’s] death.
3.I undertake to abide by the terms of the Order of Justice Monteith of the Family Court of Australia dated 16 August 2010 a true copy of which is marked as Exhibit 1 to this Undertaking.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.
Associate:
Date: 16 August 2010
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