Salambo and Olenghi

FAMILY COURT OF AUSTRALIA

SALAMBO & OLENGHI

[2016] FamCA 994

FAMILY LAW – CHILDREN – Final orders – where the child should live with the mother and the mother have sole parental responsibility for her – where the mother asserts the father perpetrated family violence against her – where the father unilaterally removed the child from Country C to New Zealand – where the mother did not see the child for almost two years – where it was ordered that the child be returned to the mother –where the mother and child moved to Australia – where the father relocated to Australia – where the father has not seen the child in almost three years – where the father lacks insight into the detriment caused to the child as a result of his actions –where there is a benefit to the child in having a meaningful relationship with her father – where the risks to the child are able to be managed with appropriate safeguards –where the child should be given appropriate counselling – where the time with the father should proceed on a gradual basis – orders as set out at the commencement of the reasons.

Family Law Act 1975 (Cth)

Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Salambo

RESPONDENT:

Ms Olenghi

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

2341

2010

DATE DELIVERED:

23 November 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11, 12, 13, 14 July & 11 August & 2 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the mother have sole parental responsibility for the child B born … 2007 (“the child”).
That the child live with the mother.
That the mother do advise the father within fourteen (14) days of any decision made by her in respect of major issues relating to the child’s education and medical treatment.
That the father do spend time with the child on a supervised basis at the Suburb D Children’s Contact Service or such other contact centre as the parties may agree for a period of two (2) hours each fortnight at such times and on such dates as shall be nominated by the said service and for that purpose:-
(a) Each party shall:-
(i)contact the relevant centre within seven (7) days of this order and arrange for an appointment to assess suitability;
(ii)comply with the requirements of the contact centre;
(iii)comply with all reasonable requests or directions of the director of the contact centre;
(b)After having completed six (6) supervised sessions, the father is to obtain a report from the centre in relation to his time spent with the child with the expenses in relation to the obtaining of that report (if any) to be paid by the father.
That thereafter the parties do all things necessary to arrange for the child to attend upon Ms E or Ms F (“the practitioners”) at such times and upon such conditions as may be directed by either practitioner, for the purpose of preparing the child for unsupervised time with the father.
That subject to the parties being able to obtain a mental health care plan to cover the cost of the involvement of the relevant practitioner, any fee that is charged over and above any payment as may be afforded by Medicare shall be met by the father.
That following the child’s attendance upon the relevant practitioner as may be directed by the said practitioner but in any event for not more than four (4) sessions, the father shall spend time with the child as follows:-
(a)For a period of not less than six (6) months each alternate Saturday or Sunday for a period of four (4) hours at times as may be agreed between the parties but in default of agreement from 1 pm to 5 pm on each alternate Sunday;
(b)Thereafter for a period of not less than six (6) months each alternate Saturday or Sunday for a period of not less than eight (8) hours at times as may be agreed between the parties but in default of agreement from 9 am to 5 pm on each alternate Sunday;
(c)Thereafter and commencing on 1 January 2018 from 9 am on Saturday to 5 pm on Sunday in each alternate week;
(d)Such other time as the parties may agree.
That all handovers shall occur at the Suburb G Children’s Contact Service and in the event that such service is not available THEN in the car park of the said service.
That the parties be restrained and an injunction be granted restraining each of them from:-
(a)Discussing the proceedings with the child or allowing any other person to do so SAVE AND EXCEPT as may be permitted by the practitioners or any worker or supervisor attached to the relevant children’s contact service;
(b)Denigrating the other party to or in the presence of the child or allowing any other person to do so;
(c)Discussing these proceedings or the allegations made in these proceedings with staff or parents at the child’s school (SAVE AND EXCEPT to notify the school staff about the arrangements provided by this order);
(d)Communicating with each other by telephone or SMS text message SAVE AND EXCEPT as may be permitted by this order or in respect of urgent parenting arrangements that may arise from time to time.
That the father be restrained and an injunction be granted restraining him from removing the child from the State of South Australia.
That the parties be restrained and an injunction be granted restraining each of them from removing the child from the Commonwealth of Australia without further order of the Court.
That the name of the child be placed on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2341 of 2010

Ms Salambo

Applicant

And

Ms Olenghi

Respondent

REASONS FOR JUDGMENT

Introduction

By Further Amended Initiating Application filed 22 June 2016 Ms Salambo (“the mother”) seeks parenting orders with respect to B born in 2007 (“the child”). A summary of the orders sought by the mother are as follows:-
(1)That the mother have sole parental responsibility.
(2)That the child live with the mother and spend no time with the father.
(3)That the father be restrained from initiating proceedings without leave of the Court.
(4)That the father be restrained from removing the child from the care of the mother, or from attending within 20 metres of the mother’s place of residence or employment, or the child’s school.
(5)That the father be restrained from removing the child from the Commonwealth of Australia.
(6)That the mother be permitted to remove the child from the Commonwealth of Australia.
By Response filed 12 May 2014 Ms Olenghi (“the father”) opposes the orders sought by the mother. A summary of the orders sought by the father are as follows:
(1)That the parties have shared parental responsibility.
(2)That the child live with the mother.
(3)That the father spend gradually increasing time with the child initially for two hours of supervised time at a children’s contact service eventuating to five night per fortnight consisting alternate weekends and one night in the intervening week.
(4)That the child spends equal time with the parties during school holiday periods and on special occasions.
(5)That all handovers occur at the Suburb H Street Police Station.
(6)That the parties are restrained from removing the child from the Commonwealth of Australia
(7)Other injunctive orders.

Background

The mother was born in 1984 and is 32 years of age. She has recently completed a bachelor degree and is seeking employment. She is an Australian resident of Country C descent.
The father was born in 1977 and is 39 years of age. He is a qualified professional but is undertaking further study at university. He receives a Centrelink benefit. The father migrated to Australia when he was 13 years old. He is an Australian citizen of Country C descent.
The parties met in Country C in 2004. The parties married in 2005 and separated on 15 June 2010. There is one child of the relationship. The child was born in Country C and has dual citizenship.
The mother and the child live with the mother’s partner, Mr I. The father lives with the paternal grandmother and Ms J (the father’s partner).
In March 2008 the parties travelled to Australia for a holiday. The father was offered employment and as a result the parties moved to Australia permanently in September 2008.
The mother says the relationship between the parties was volatile and can be characterised by the father perpetrating domestic violence toward the mother in the presence of the child. The mother says that it was a result of the father’s violent outbursts that she and the child vacated the former matrimonial home on 15 June 2010. The child continued to live with the mother, initially in emergency accommodation, and spent time with the father each alternate weekend from Saturday until Sunday.
The maternal family were living in Country C at the time. In early 2010 the mother requested that she and the child be permitted to travel to Country C as the maternal grandmother’s health began to deteriorate. The father suggested the parties travel together. In November 2010 the parties and the child travelled to Country C with the intention of remaining for six weeks.
The mother says that as a result of the father removing the child’s passport from her possession she was not able to return to Australia despite various efforts and enquiries to obtain a new passport from the relevant authorities.
The father initiated proceedings in the relevant Country C court in December 2010. It was ordered that the father spend supervised time with the child each Saturday. The mother says that she facilitated this arrangement until February 2012. It is the father’s position that the mother made it difficult for him to spend time with the child. Consequently, in 2011 he travelled to Australia with the purpose of filing a Hague Convention application in the Family Court of Australia. The application was dismissed and the child found to be habitually resident in Country C. The father returned to Country C in December 2011.
It was also in 2011 that by order of the Country C court the father was required to pay child support. It is the mother’s position that the father has never paid the child support and there is a significant amount outstanding.
Between 14 January 2012 and 17 February 2012 the father spent each Saturday with the child in the presence of the mother as had been ordered by the court.
On 17 February 2012 the father was scheduled to spend unsupervised time with the child. The father collected her from the local shopping centre. The father did not return the child to the mother’s care that evening, as had been arranged. The mother contacted the Country C police and on 21 February 2012 she filed a recovery order application with the Country C court. The mother became aware that the father had left Country C with the child and was resident in Europe after receiving a Facebook message from an unknown source. The Facebook user requested payment of $3,800 for information as to the whereabouts of the father. The mother did not engage with the source as she anticipated it was a scam conducted by the father.
It is the father’s position that he fled Country C with the child out of fear of being arrested for his failure to pay child support. He says that he was advised by his lawyer that the mother had sought his arrest, had obtained an Australian passport for the child and that she was planning to leave the country. The father says his lawyer assisted him with planning the escape from Country C. The father has since become aware that his Country C lawyer was not qualified. He suggests he was a “con artist”. He expects it was his lawyer who contacted the mother offering to disclose the father’s location for payment.
The father and the child initially travelled to Europe then Asia before settling in New Zealand where the father obtained employment and the child was enrolled at school.
In March 2012 the mother travelled to Australia. She visited the paternal grandmother in search of the child. It was not until September 2013 that the mother discovered the father and child were living in City K, New Zealand. The mother travelled to New Zealand and lodged a Hague Convention application. On 19 November 2013 the mother was reunited with the child by interim order of the New Zealand Family Court. Final orders were made by consent on 17 January 2014. The mother subsequently travelled to Australia with the child.
The mother highlights a number of developmental issues the child faced upon returning to her care. The child’s overall level of functioning was assessed at a low average range. She struggled with language and literacy and following the child attending upon a speech pathologist it was recommended that she continue to receive speech pathology treatment once per week. The mother also says that the child would not respond to her given name “B” and would only answer to “L” which is her second name.
The child has attended M School since returning to Australia and it is the mother’s position that her language and literacy abilities have significantly improved. She has continued to engage with a speech pathologist and a psychologist.
The father has not spent time with the child since she left New Zealand. He permanently relocated to Australia in August 2015.
The mother opposes the father spending any time with the child. She is concerned about the psychological impact it may have on the child and expresses fear that should the father be permitted to spend time with the child he will permanently remove her from the mother’s care.
The father says he recognises that his removal of the child has had a detrimental impact on the child and the child’s relationship with the mother. He places great weight on the ill advice he received from his lawyer in Country C and the fear he had that the mother would cause the father to have no contact with the child indefinitely.

PROCEDURAL HISTORY

The mother relies upon the following documents:
(1)Further Amended Initiating Application filed 22 June 2016
(2)Affidavit of the mother filed 22 June 2016
(3)Affidavit of Mr I filed 22 June 2016
In addition counsel for the mother relies upon a Case Outline document provided at trial.
The father relies upon his Response filed 12 May 2014, Trial Affidavit filed 1 July 2016 and a Case Outline document provided at trial.
The Independent Children’s Lawyer (“ICL”) relies upon the family report prepared by Mr N (“the family consultant”) dated 6 June 2016 and the affidavit of Ms O which annexes the family report prepared by Ms P dated 18 September 2014. In addition counsel for the ICL relies upon a Case Outline document and document entitled “documents to be tendered with the consent of all parties” provided at trial. The documents tendered with the consent of the parties included the following:-
(1)Reports prepared by Dr Q, paediatrician dated 4 May 2010 and 21 November 2014
(2)Speech pathology Assessment Report prepared by Ms R dated 5 March 2014
(3)Psychological Assessment Report prepared by Ms S dated 18 November 2014
(4)Speech pathology Assessment Report prepared by Ms T dated 6 October 2015
The trial commenced on 11 July 2016 and proceeded for four days. The matter was adjourned part heard recommencing on 11 August 2016 with the evidence of the family consultant. Final submissions were heard on 2 September 2016. On that date judgment was reserved.
The mother and ICL were represented by counsel while the father appeared in person.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I considered that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of further application.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.

EVIDENCE

The mother

The mother relies upon her affidavit filed 22 June 2016. The tenor of the mother’s evidence as reflected in the orders that she seeks is to highlight her strong belief that if the father is allowed to spend time with the child there is a serious risk that he will again remove her from the jurisdiction and the mother’s care. She also considers that the child remains significantly affected by her abduction from Country C and whatever safeguards may be put in place, the more acute issue is the child’s fear of her father.
In order to underpin her mistrust of the husband and to support her contention that the father is disingenuous and deceptive in his portrayal of his life in Australia as being settled and stable, she alleges that during the marriage the father was physically violent towards her.
Her trial affidavit sets out the purported history of family violence commencing soon after their marriage in 2005 whilst still in Country C. She says that she was slapped to her face and then dragged along the floor.
In an argument over the mother’s belief that the father was unfaithful, she alleges that he hit her with a leather belt. Photographs were taken of the welts, but she says that the father deleted the evidence of assault from the mother’s phone.
She alleges that an argument in 2008 resulted in the father pushing her backwards and then forcing her to the floor where he kicked her resulting in a broken toe requiring hospitalisation.
She reports that on three separate occasions between February 2009 and June 2010 the father slapped her across the face with an open hand after they had disagreed on routine parenting arrangements for the child. On 4 April 2010, following a minor dispute, the father slapped her across the face a number of times and punched her in the back, which caused the mother to fall to the floor whereupon she was kicked in the legs and stomach several times.
The mother reported the family violence to the police in June 2010 and vacated the family home with the child on 15 June 2010.
The parties maintained a relationship following separation and the mother was comforted by the father’s promise to change his behaviour, but also correspondence she received from a counselling agency that indicated the father had attended for counselling and in respect of a family violence program for men, he had attended five of a twenty week group program.

The father denied the mother’s allegations of family violence. In cross examination, the father showed the mother a declaration that she had signed on 18 February 2010 in support of her application to gain permanent residency in Australia. The document was admitted into evidence as exhibit 1. Its contents are unremarkable but certainly makes no mention of any concern in respect of family violence.
The declaration summarises her relationship with the father as follows:-
My husband supports me in finishing my course at university as soon as possible so that I can be a career woman. He supports me financially in this area. I support my husband in his decision as he supports mine. We talk about the things we want to do in the future for us and our future children.
There is nothing in the declaration which suggests that the relationship is underpinned by family violence or dysfunction. There is no suggestion that the relationship was borne of fear, or that the husband is controlling either physically or financially. The mother declared that the family is supported financially by the father.
The mother conceded that she had no corroborating evidence in respect of her allegations of family violence. She did concede that the parties agreed on 3July 2010 that the father would pay child support in the sum of $2,000 per month. Annexure “JCO3” to the father’s trial affidavit is a copy of the agreement signed by the parties.
The father also put to the mother that following separation they kept in close contact with each other. There were pictures taken of the child at the premises in which the mother was staying. The father assisted the mother in moving her place of residence and it was put to her that the father had spent four nights in the mother’s home. The mother concedes that following their discussion concerning child support they agreed that the child would live with the mother and spend time with the father overnight and on a regular basis.
The father also alleges that the statement made by the mother to the police was a fabrication, was not signed and was prepared by the mother to support a false allegation of family violence.
It is the father’s position that he was manipulated by the mother in that in order to maximise the benefit payable to her, he agreed to misrepresent to the Child Support Agency the extent of time that the child spent in the care of each of them.
The mother’s evidence of entrenched family violence within her relationship with the father was unconvincing. Whilst it must be recognised that it is difficult to provide evidence of family violence in circumstances where it is usually perpetrated behind closed doors, the mother struggled to acknowledge the extent to which the parties communicated and spent time with each other following separation.
The father asserts that he did not become aware of the mother’s attendance at the police station in June 2010 until 2011 when the parties were in Country C. There was nothing stated by the mother which suggested that she sought a more active role by the police other than potentially recording her statement.
A central focus of the mother’s case is the circumstances surrounding the parties travel with the child to Country C.
The mother bases the decision to travel to Country C on the maternal grandmother’s poor and deteriorating health. She sought the father’s permission to take the child with her to Country C, but the father objected and was only prepared to agree to the proposal if they all travelled together. The mother was so concerned about her mother’s health that she felt constrained to agree with the father’s proposal as being the only possible avenue available to her. They planned to travel for six weeks and left Australia on 25 November 2010. The mother acknowledges that the father paid for the flights and made the bookings. The father put to the mother that she was not telling the truth about the circumstances of the families travel to Country C. The father disputed that the maternal grandmother was ill, but rather, it was the maternal grandmother who had convinced the father to travel to Country C on the basis that it would enable the parties to consider a reconciliation.
The mother conceded that the tickets that had been purchased by the father were one-way tickets only. The mother was asked the obvious question, namely, that if she intended to remain in Country C for four to six weeks in circumstances where the father had purchased the tickets, then why did she not arrange for a return ticket.
The mother also conceded that shortly after the family arrived in Country C the father left the home of the maternal grandmother. The father contends that the parties agreed to a week about arrangement for the child but this is denied by the mother. It is difficult on the evidence to understand what the arrangements were, but the conduct of the parties would suggest that they did not intend to remain in Country C for the limited period of four to six weeks.
Annexure “JCO7” to the father’s affidavit is a letter from the solicitors that had been instructed by the parties to prepare enduring powers of attorney on the basis that “you are moving overseas for an unspecified period of time”. The mother did not resile from the implication in the correspondence that the return date from Country C was uncertain.
Whatever the arrangements may have been between the parties for the child to spend time with the father, it is common ground that he attended to collect the child on 22 December 2010. At that time he was served with the equivalent of a domestic violence restraining order which had as its principal allegation:-
[O]n Tuesday 21 December of the year 2010 at about 1900 hours my husband, [the father], in a very imposing manner firmly squeezed my arms in order to take my 3 y.o. daughter from me and threatened that the day he gets hold of our daughter in his arms I will never see her again, warning me not to play games with him because ‘you do not know what I am capable of doing’.
The father challenged the intervention order and appears to have been able to prove that as at the date and time of the alleged assault he was overseas visiting friends.
The mother was not able to explain the inconsistency, given that the date and time of the alleged assault was fixed in the mother’s mind by reference to a telephone conversation between the parties on 17 December 2010. At the time of the call, but unbeknown to the mother, the father was overseas.
The mother could proffer no credible explanation for the inconsistency and I formed the view that her allegation of domestic violence as having occurred on 21 December 2010 was a fabrication.
The father was mistrustful of the mother. He believed that she had formed a relationship. He had either hacked or was able to access the mother’s computer and therefore her email communication without her knowledge.
It was his belief that the mother had formed a relationship and may have been planning to leave Country C with the child. He refers to an email that the mother sent to a friend of 20 December 2010 as follows:-
Yes, I’ll call to teh (sic) Embassy and say that i lost them and if he put up a restrinction (sic) to travel…i’ll go to [Country U] en then she can travel!!!...yeah i was talking with a lawyer…
The father interpreted the email as an intention by the mother to leave Country C with the child.
The mother did not resile from the email. She conceded that she had formed a relationship with Mr I (her current partner) and was in communication with him.
The parties engaged in parenting proceedings in Country C.
The father retained the child’s passport and I accept that he had no intention of returning the child’s passport to the mother.
The evidence of each of the parties sets out the extent of the ongoing conflict between them. There was dispute as to the extent of the time that the child should spend with the father. Orders were made for the father to pay child support and it was his position that the extent of child support did not properly reflect the time that the child would spend with him.
The father put to the mother that the purpose of the mother’s pursuit of child support was to obtain a “detention” order which would have the effect of stopping any time between the father and the child.
The mother agrees that from 1 July 2011 to 18 July 2011 the mother was on holidays and not in Country C. The father alleges that the mother had told her parents not to comply with the court order for the child to spend time with the father whilst she was away.
Exhibit 3 is a translation of a submission made to the Court to provide an explanation for the non-compliance with the contact order. In summary, it was submitted that the mother had to travel within Country C with the child to carry out medical tests.
The substance of the submissions was false and I find that the mother was aware of the misrepresentation and was complicit in the deception.
The father spent time with the child in January and early February 2012. Whilst there is disagreement between the parties as to the extent of the father’s time, the mother concedes that the child enjoyed the visits with her father but reconciles this observation with her perception that the father went to considerable effort to engage the child in pleasurable activities.
On 17 February 2012 the father withheld the child from the mother and took her from Country C.
The father admits that he did not inform the mother of his intention to leave with the child and that his family were not informed by him of his or the child’s whereabouts. I do not accept the father’s evidence. I find that members of his family were aware of his plans.
Following a Hague Convention application, by interim order the child was returned to the mother’s care on 19 November 2013.
Paragraph 91 of the mother’s affidavit sets out her observations of the child’s presentation. The mother and child had been separated for nearly two years. The mother was concerned that the child’s clothing and footwear was inadequate. She observed that the child’s pre-existing speech difficulties were exacerbated and the child appeared to be detached from reality. The child identified with the name “L” and did not appear to know her correct age.
On 17 January 2014 the Hague Convention proceedings were concluded and orders by consent enabled the child to return to Australia with the mother. The father has spent no time with the child since 17 January 2014.
The focus of the father’s cross examination was to highlight that in the mother’s care the child had not been attending school on a regular basis and that the mother had not attended to the child’s speech pathology. He challenged the mother on her assertion that the child was fearful of him, highlighting that there was nothing raised by the mother in paragraphs 142 to 150 of her trial affidavit which supported the mother’s contention that the child was completely opposed to seeing her father.
Of particular concern to the father was the extent to which he considers that the mother’s partner has replaced his role as the child’s father.
At paragraph 170 to 174 the mother details the involvement of her partner in the day to day management and parenting of the child and of particular concern to the father is the recognition by the mother that the child refers to the mother’s partner as “daddy”. The mother did not concede that she has set about a course of conduct to see the father removed from the child’s life and replace him with her partner.
The father did not return to Australia until August 2015. It was the view of the Court that the issues in respect of the child were of such complexity that until the Court had the advantage of evidence it would not have been in the child’s best interests to put in place interim arrangements for the child to spend time with the father.
Whilst it is understandable that a parent would view with despair observations of a child calling a step-parent “daddy”, nonetheless, the reality of the child’s situation was that she focussed on her mother’s partner in circumstances where the father’s conduct had effectively removed him from the child’s life for an extended period.
The father should not have been surprised at the foreseeable consequences of his actions, namely, that following his abduction of the child from Country C, after nearly two years it would be a difficult pathway back to a relationship with the child.
In contrast to the mother’s evidence of her time with the child in Country C leading up to the child’s removal, I have significantly more confidence in her evidence as to the child’s current academic performance and development. Whilst there may have been some issues relating to the child’s school attendance, they are relatively insignificant when considered against the extraordinary emotional trauma sustained by the child as a result of her removal from the mother’s care and the total cessation of a relationship thereafter.
The persistent focus of the father’s cross examination on matters of insignificance suggested a profound lack of insight on his part as to the consequences for the child of his conduct.
The mother did concede that at some point the child should spend time with the father, but that should be dependent upon her being able to have a level of emotional resilience and maturity to the inevitable confusion of now not seeing her father for nearly two years.
The mother’s evidence is that the child remains anxious about the possibility of her father removing her from the mother’s care again and seems unaffected and disinterested in the cards and correspondence that the father has been permitted to forward.

Ms V

Ms V is the child’s treating psychologist. She did not file affidavit material. The witness has met with the child since 2014. During 2015 they participated in four sessions on 17 February, 17 March, 9 September and 2 December. She last met with the child in March 2016.
Following a referral by the child’s general practitioner, the child underwent regular therapy with the psychologist from July 2014. Ms V gave evidence that from the outset the child was not very verbal and considered that she may well have a measurable level of speech delay.
It was the psychologist’s opinion that the best way to deal with the issues affecting the child as presented by the mother was to engage the child in a “non-directive play approach”.
It was not the psychologist’s view that the child had developed behaviour that could be considered “clinically significant” but given the history of the matter and following a perusal of the various reports from the child’s teacher and others engaged in her care and management, she determined that non-directive play would be both benign and effective.
Whilst it was important to the mother’s case to highlight that the child was traumatised by the prospects of seeing her father, there was nothing in the interaction between the psychologist and the child which would support that position.
It was difficult to understand what the psychologist intended or hoped would be achieved by the therapeutic methodology adopted. It seems that on a regular basis the psychologist did little more than observe the child at play. There was little or no verbal interaction and any opinion or recommendation of the psychologist was based upon some abstract consideration of the child’s non-directed conduct during the play sessions.
Whilst the psychologist considered that there were occasions when the child’s play was unusual, I am not able to find that the interaction with the child and the methodology utilised by the psychologist was to the child’s benefit.
There were occasions however when the psychologist observed the child reading the father’s cards and letters and it is her report that the child appeared to give little or no emotional response. It was her assessment that the child’s lack of interest supported the contention that there was little or no real attachment between the child and the father.
That observation may be reasonable in circumstances where the child had spent no time with the father for a significant period of time.
Without being able to identify any indicators, by early 2016 the psychologist opined that there had been improvements in the child’s play and that observation was consistent with the mother’s history of the child appearing to be more settled.
The psychologist also admitted that she did not get a report from the child’s school. Given the importance of school being considered a “safe haven” it is surprising that the psychologist did not obtain all relevant background information in order to assist as to the therapeutic intervention that was most likely to address the mother’s concerns and the reason for the referral by the general practitioner.
Ultimately, I was not assisted by the evidence of this witness.

Ms W

Ms W was the child’s class teacher. As was expected, the teacher demonstrated clear insight and gave reliable evidence as to the child’s presentation. She recognised that the child had significantly delayed speech and a perusal of the learning plans clearly focussed on these matters.
The emphasis was therefore to provide the child with more instruction and assistance than other children in the class.
There has however been significant improvement. When the child was first enrolled, the child’s speech was poor and delayed. The teacher considered that her speech presentation was severe, but over a time whilst a number of impediments still remain they are lessening in severity. The child is happy and has a small group of friends. Socially she plays well, but the teacher observes that she is somewhat immature for her age.
The child is however happy and excited about being at school and whilst not performing at a year level 3, she is performing at a year level 2.
She appears to be tracking well and has made significant progress in the last six months.
The teacher had not been told that the mother intends to move the child in the 2017 academic year. Whilst not necessarily a matter for her, the teacher was concerned that any move should be undertaken in a way that minimises the impact. The child’s pleasing development and improvement is a direct outcome of the child being well-settled.
Her evidence was that if the child does change schools, then all of the information will be forwarded to the new school and efforts will be made to ensure that the transition progresses smoothly.
Notwithstanding that the father pressed the teacher, she did not consider that the child’s attendance at school was marred by frequent absenteeism and there were no issues in terms of any assertion that the child was late or did not attend.
The teacher was an impressive witness and was of assistance in highlighting the significant and exponential improvement in the child’s presentation and development.

The mother’s partner

The mother’s partner relied upon his affidavit filed 22 June 2016. His observations of the child’s presentation upon return from New Zealand were clear and unequivocal. He was challenged by the father in respect of these observations, but I find that his evidence on this topic was reliable. It is in any event not surprising that the somewhat dramatic change from the father’s care to the mother and then to the mother’s home in Australia from New Zealand would be profoundly unsettling for the child.
His observations are helpful in providing a benchmark against which to consider the child’s development over the ensuing two years.
Whilst this witness was highly supportive and indeed protective of the mother, there is a consistency in his observations and those of the child’s teacher.

The father

The father relies upon his trial affidavit filed 1 July 2016.
He currently lives with his partner and is enrolled in a degree course. He has also applied for entry into the public service and receives a Centrelink Austudy allowance.
He intends to reside in Australia permanently with his partner who is in fulltime employment in the health care sector.

The father and his partner have been together since about December 2012 and she has played an active and pivotal role in the care of the child before she returned to the mother’s care and then her move to Australia.
The father says that there will need to be a process of reintroduction and reunification arising out of “[t]he trauma [the child] experienced in not seeing her mother while she was in my care” and “[t]he length of time that has passed since [the child] last saw me”.
It is his proposal that the initial reintroduction and reunification takes place at a children’s contact service and if there is no adverse report or observation of the child’s relationship with the father, then he proposes that unsupervised time be introduced gradually leading to the child spending equal time with the parties.
Not surprisingly the father consents to an injunction restraining him from removing the child from the State of South Australia and in any event the child be placed on an Airport Watch List.
The father was challenged as to the accommodation arrangements upon the parties’ first arrival in Country C. The father’s evidence is that the family remained with the maternal grandmother for four days until he was told to leave the home. The father suspects that it was part of a well-orchestrated plan to have the mother and child return to Country C in circumstances where the father held the child’s passport and without his consent the mother could not remove the child from Australia.
Whilst the parties are not in agreement as to the history of disputation in Country C, I consider that the father’s version of events is more likely to be accurate.
Given my finding that the mother did not tell the truth in respect of her allegation that the father had assaulted her and was also complicit with her aunt (in her capacity as the mother’s solicitor) making a deliberate misrepresentation to the Country C court, where the parties differ in the evidence during this period, I consider the father to be the more reliable witness.
Whilst the father did not agree that the first time he had the child on an unsupervised basis was in February 2012, nonetheless he did agree that he removed the child from Country C without warning or notice.
The father explains his conduct by reference to advice being given to him by his solicitor. He says that the advice given was that the mother was about to remove the child from Country C and that unless he took action he would be denied a relationship with the child.
The father was also advised by his solicitor to go into hiding, requiring the father to travel with the child to a variety of different jurisdictions until ultimately settling in New Zealand.
He describes his solicitor as a “con artist” and attributes advice to his solicitor to the effect that the father should immediately escape with the child or risk never seeing her again, being arrested until the child support arrears were paid and that if he was detained for non-payment, was at risk of being killed in jail.
There was no acceptance by the father that he should be responsible for the consequences of his actions. To the extent that he casts significant blame on the advice of his lawyer as an answer or explanation for his actions is a proposition that is rejected. The father’s assertion that he was acting on erroneous legal advice does him no credit and compounds a significant difficulty for him arising out of his begrudging acceptance that his abduction of the child in retrospect may not have been in the child’s best interests.
I place no weight on the father’s evidence that his actions were motivated in part or in whole by the improper advice (if given) of his solicitor.
In the 21 months following his departure with the child from Country C, he accessed various funds and travelled through 12 countries. In various countries, in particular Europe, he lived with friends. He did not tell them the circumstances of him leaving Country C with his daughter.
He remained in South East Asia for nine months. The expiration of his visa forced him to travel and eventually he obtained a visa for New Zealand.
The father alleges that he was not able to return to Australia because he was aware of an order in Country C for his arrest and the recovery of the child.
The father conceded that he knew the mother was looking for the child and I interpret his actions as being entirely consistent with his clear plan and strategy to distance the child from the mother and to evade detection by the authorities.
Much is made by the father of his efforts in ensuring that the child had appropriate attention for her general development, but also the management of her delayed speech. He had apparently made arrangements for the child to attend for speech therapy, but by this time allegedly as a result of his duplicitous solicitor in Country C the child’s whereabouts became known.
The father also conceded that it was only in New Zealand for the first time that the child had engaged in any formal education.
It was put to the father that he adopted a deliberate strategy of referring to the child by her middle name rather than her first name. The father attempted to explain that the first and middle names were effectively interchangeable. It was his position that the child found her middle name easier to pronounce than her first name. I consider the father’s evidence to be disingenuous. It is clear from school reports and other materials that the father deliberately represented the child by her middle name in an attempt to avoid discovery and detection.
Whilst the father would wish the Court to accept that he was attentive to the child’s needs and responsive to her developmental and speech delay, he failed to understand or accept that whatever underlying problems the child may have presented with, the child’s stress and anxiety arising from the precipitous separation from her mother and then being unsettled by the various moves would only have added to her anxiety.
It was also put to the father that his selection of particular countries of refuge was primarily based on his understanding that they were non-Hague Convention countries. Whilst the father now accepted that this was the case he denied that he was aware of the status of the Asian countries he visited as countries not being signatories to the Hague Convention.
I do not accept that the husband is truthful in that representation. The husband presents as a high functioning individual. He was careful in his planning and had significant knowledge of the workings of the Hague Convention given that whilst in Country C he returned to Australia in the hope of bringing a successful application that would require the child to be returned to Australia. He was thwarted in that endeavour by a determination that the child was habitually resident in Country C. Irrespective of the outcome the father cannot say that he was not alive to the more obvious attributes of The Hague Convention and the countries that were not contracting states.
An exacerbating feature of the father’s conduct was his use of the mother’s credit card without her knowledge and the removal from the parties offset account the sum of $10,000 carried from Country C in his suitcase.
The father also took action to utilise a Power of Attorney in order to cause the sale of the former matrimonial home. The father accepted that it was only when the mother found out about the “for sale sign” being erected that she withdrew the Power of Attorney and thwarted the plan of the husband.
I consider that the evidence supports a finding that the father had planned to remove the child from Country C and that the arrangements that he made in respect of the mother’s credit card, money obtained from the offset account and his earlier actions in selling his motor vehicle (to his brother in law) are not indicative of the father’s removal of the child as a decision borne of haste and panic following the purportedly scandalous advice received from his solicitor.
The evidence also supports a finding that if the father’s extended family did not know of his whereabouts, then his mother most certainly did. In June or July 2013 he accessed the sum of $8,000 from his mother’s account and he agrees he did so whilst in New Zealand. He does not accept that his mother was aware of his actions. The necessary corollary must either be that he was deceptive with his mother or that she was complicit in his conduct. I prefer the latter scenario.
Ultimately the circumstances leading up to the removal of the child from Country C are background issues save and except where issues of credit arise. What is of greater moment is the effect on the child of the father’s actions.
At paragraph 12 in the report of the family consultant, the father considers that the child was doing well in her early learning school. This ignores the observations of the mother, her partner and the child’s school that upon her return to the mother’s care and then Australia, she was clearly compromised in her development and her speech was delayed. It is upon what was demonstrably a low base that the significant improvement in the child’s development and progress should be seen and attributed to the mother’s management.
Under cross examination, the father had difficulty in accepting that the child missed her mother following her removal. The father did not inform the mother of the child’s vaccination record in New Zealand and gives the mother no credit for the relationship that she had with the child whilst in Australia and Country C.
The father had no empathy for the mother, but of greater relevance to the proceedings, demonstrated no insight as to the very real and damaging effect that his actions had on the child.
Counsel for the ICL established that during his time with the child, he and the paternal grandmother were in contact.
He acknowledged that the parties are unlikely to ever be able to communicate with each other and have not done so now for six years. That state of affairs will not change.

The family consultant

The family consultant prepared a family assessment report dated 6 June 2016 (“the report”). He had the advantage of relevant documents from the Court file. He also engaged in telephone communication with the child’s psychologist and teacher in preparation of the report.
He conducted separate interviews and observation on 9 May 2016 involving the father, the mother, the mother’s partner, the father’s partner, the paternal grandmother and the child.
The family consultant accurately sets out the history of the matter and the respective proposals of the parties.
In his assessment of the father, the family consultant considered that he continues to believe it was necessary to remove the child from the mother’s care.
The father considered that there is no reason for the child to be afraid of him and that if she presented in that way it was because other people promoted the fear of removal by the father as a valid concern.
The father’s perception of the child was that when with him she was “a very happy child”.
In his assessment and observation of the child, the family consultant asked her of her recollection of her father. Her response is set out in paragraph 69:-
…Her recollection was hesitant and fragmented, in contrast to the easy fluency she had previously demonstrated. She stated, “I just got two fathers but one of them was bad. This is the story of a long time ago. Because he is still my father because I was born with [the father]. It was two years ago. I remember that [the father] put me in a school, in a house in New Zealand. This is a story from long, long, long, ago.” [The child] was becoming more agitated and distracted as she proceeded and her account became more fragmented and vague. She recalled an event where there had been a rabbit on the road, she recalled [the father’s partner] as being a woman with “black, long hair”, she recalled two friends in New Zealand, and there were other incoherent statements about houses.
The family consultant records the emphatic response of the child in terms of her reluctance or willingness to see her father. Her summary of what happened to her is encapsulated in the following words at paragraph 70:-
“No. I want to be with my true family. He took me to the airport and ran away from my mum. My mum looked all over the globe. The teacher told me”.
The family consultant considered that the father’s actions had a “profound and lasting negative impact on [the child’s] development and relationships”.
The child was not yet settled and continued to experience significant developmental delay.
She was also fearful of the father based upon her recollection of the events that caused her to be separated from her mother.
At paragraph 76 the family consultant highlighted the thread that passes through the warp and weft of the proceedings namely, the father’s inability to accept that his actions were not in the best interests of the child, but more importantly, that the child had suffered negative consequences as a result of his actions.
The family consultant records the father being critical of the mother in terms of her care and that any difficulties currently experienced by the child were not present during his time with the child and therefore must be as a result of the mother’s poor parenting.
He observed that the father’s presentation was such that doubt should be raised as to whether the father was able to recognise and cater for the child’s needs and summarises his assessment of the father at paragraph 77:-
It is of significant concern that [the father] continues to perceive that his removal of [the child] from [the mother’s] care was in some way necessary for his own wellbeing, which precluded informed consideration of the potential detrimental effects on [the child] of his actions in removing [the child] from [the mother’s] care. There was little information obtained in this report to indicate that he has a genuine focus on [the child’s] wellbeing. There also appears to be a dearth of clear information about [the child’s] living circumstances and [the father’s] care of [the child] during the time she was with him.
Ultimately, the recommendations of the family consultant were that the child should continue to live with the mother and the Court must determine whether the potential benefits of the child spending time with the father would outweigh the potential risks and detriment to her wellbeing. If time is to resume with the father, then it must commence with a series of supervised contact sessions at a children’s contact service.
The recommendation is based upon an assessment by the family consultant that the child is fearful of seeing her father and remains “adamantly opposed” to doing so. The family consultant also considered the opinion of a previous report writer as to the impact upon the mother and the increase in her level of anxiety should the child spend time with the father in the future.
There is however some recognition by the mother that whatever her own misgivings might be, she recognises there could be an advantage to the child in resuming a relationship with the father but only when the child is old enough to deal with the emotional sequelae that would result.
The family consultant was of little assistance to the Court in determining what the risk would be to the child if orders were made either that there be a resumption of time with the father, or the alternative, which is that the child should not see the father again.
In evidence, the family consultant conceded that these issues were valid areas of enquiry but that he was able to provide little or no assistance in assessing the benefit that might inure to the child of re-establishing a relationship with her father as opposed to the risk occasioned by anxiety, distress and potentially exacerbated by the likelihood that the mother would not support that outcome.
The ICL submitted that the evidence of the family consultant was equivocal and ambiguous and was ultimately of minimal assistance. Any suggestion that the Court should order the child gain the assistance of her previous psychologist was not supported.

PRINCIPLES RELEVANT TO PARENTING ORDERS

The child currently resides with the mother and spends no time with the father.
The mother expresses deep concern about the detrimental psychological effect time with the father would have on the child and her fear that should the father have unsupervised time with the child he would have the capacity to remove her from the mother’s care. It is the mother’s position that she should have sole parental responsibility for the child and that the child should live with her.
The father seeks shared parental responsibility, that the child live with the mother and spend gradually increasing time with the child eventuating to five nights a fortnight.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that during their relationship the father was a perpetrator of family violence towards the mother.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard as to whether the matters as set out in s 61DA(2) (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
This consideration is relevant in these proceedings as the father seeks an order of equal shared parental responsibility.
If the presumption is rebutted, the Court can proceed to make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.

I am of the view that notwithstanding the provisions of s 65DAA would not apply if the presumption of equal shared parental responsibility is rebutted, nonetheless, the separate proposals of the parties and the orders that each of them seek would nonetheless require a consideration as to whether they are reasonably practicable.
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, there is now a proper focus upon the practical reality of each of the parties proposals and the consideration of the primary and additional factors in s 60CC that are applicable to the circumstances of each case.

PARENTING CONSIDERATIONS

Meaningful relationship

The primary considerations as set out in s 60CC(2) mandate the benefit to the child of having a meaningful relationship with her parents but the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
The parties do not agree as to the extent of the relationship that the father should have with the child. It is the mother’s position that there is no advantage to the child of a relationship with the father, particularly in circumstances where the child is fearful of being removed from her mother’s care and the mother remains concerned that either the child will be removed from the jurisdiction, or that the father will undermine her relationship with the child.
The history of the matter provides at least some foundation for the mother’s concern and the child’s fear.
In Mazorski & Albright [2007] FamCA 520, Brown J commented the definition of “meaningful” and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for the time with the children to be, where possible and in their best interests, substantial and significant.
The consideration of the benefits to a child of having a meaningful relationship with her father must be tempered by the weight to be given to s 60CC(2A). If it is seen that a risk exists under s 60CC(2)(b) it is not necessarily determinative that there should be no relationship promoted between the child and her father but rather, unless an unacceptable risk exists, a meaningful relationship may well be promoted by orders that provide for a resumption of time and/or communication, but subject to terms and conditions that provide the necessary level of protection for the child.
The child did not see the mother for nearly two years following her removal from Country C. Whilst the father could only begrudgingly concede that this would have been far-reaching in its detrimental impact upon the child, for reasons that are explicable but with consequences no less damaging, the child now has had no relationship with her father.
Prior to the removal of the child from Country C the father had a close and loving relationship with the child. Whilst the parties may differ as to the extent of the relationship, I accept that the father had significant input into the child’s life.
The mother concedes that at some point it would be appropriate for the child to be reintroduced to the father, but only when she has attained a level of emotional maturity to cope with that event. Unfortunately the family consultant provided no assistance in respect to the resolution of that central question.
It seems however that the more time that elapses the harder any attempt at reintroduction and re-establishment of the relationship will be. It could not be seen to be a process that will become easier with time. Whilst the father remains in some contact with the child by forwarding cards and correspondence, that does no more than to remind the child of the father’s existence.
The ICL considers that it would be in the child’s best interests to resume a relationship with the father providing there are appropriate checks and balances put in place.
The ICL promotes an order that the mother have sole parental responsibility for the child, that she live with the mother and subject to the child gaining the assistance of a well-regarded child psychologist in order to prepare her to see the father, the father’s time should initially be supervised at a children’s contact service before gradually increasing as to time and frequency with a lessening of the provision as to supervision.
The parties’ present circumstances are entirely different to that which existed in Country C.
The mother lives in a committed relationship with her partner. They are settled and the child attends a local primary school.
The father and his partner now reside in South Australia and he is a student studying law and has also made application for acceptance into the public service.
The father’s partner is also in employment and they have stable accommodation.
A significant commitment was made by the father in moving from New Zealand to South Australia.
Whilst the father did not call his partner to give evidence, it is likely that she was complicit in assisting the father in attempting to avoid discovery of the whereabouts of the child by the mother. The family consultant was also of the view that the father’s partner was “cautious and hesitant” in her responses to questions.
I do not ignore my finding that the father has begrudgingly accepted that his removal of the child from Country C represents a callous disregard for the child’s relationship with her mother and adverse to her interests.
Nonetheless, I accept that providing the father is appropriately restrained, there is benefit to the child in resuming a relationship with him. The father has extended family, but in particular the paternal grandmother who resides in Australia. Whilst I have little doubt that she was complicit in the father’s conduct, those considerations go to risk but do not necessarily exclude the benefit that may be experienced by the child of a fulsome relationship with both the maternal and paternal families.

Risks to the child

The gravamen of the mother’s concerns arises from an apprehension that if given an opportunity, there is a risk that the father may remove the child from the jurisdiction. I accept that there is a basis for her to be concerned, but consider that the cautious proposal as promoted by the ICL minimises the risk to an acceptable level. That does not necessarily ameliorate the anxiety likely to be experienced by the mother and the fear held by the child consequent upon a resumption of time, but the mother’s anxiety is not so overwhelming that it is likely to impact upon her parenting and it is likely that once the child is confident in again seeing her father, her fears will be manageable.
Whilst I accept that the mother presents as anxious, there is no evidence to support the contention that her ability to parent the child would be adversely affected consequent upon a resumption of time.

The child’s relationship with the parties and other persons

The child has a close relationship with the mother and her partner. At present she has little or no relationship with the father save and except for her fragmented recollection of her time with him and his partner in New Zealand, and from her consideration of cards and letters from him.
I have already indicated that there is likely to be some benefit to the child of resuming a relationship with the paternal family subject to appropriate safeguards being put in place. In that respect there is common ground between the father and the ICL in that he concedes initially any time spent with the child would have to be under the supervision only available at a children’s contact service.

The likely effect of any changes in the child’s circumstances

At present the child spends no time with the father. Whilst it is not intended nor likely that the primary care will change, nonetheless there is likely to be considerable confusion and initially a level of anxiety experienced by the child in transitioning from spending no time with the father to now resuming some time.
As discussed, the Court was not assisted by the family consultant in terms of any assessment as to the effect on the child of resuming a relationship with the father.
The best that can be gleaned from the evidence is that whilst the child indicates that there is a level of fear and anxiety of her removal from the mother’s care, it does not seem at such a level that it is not able to be appropriately managed. The proposal of the ICL is that the child received the benefit of therapeutic intervention from an appropriately qualified child psychologist to assist in the child’s preparation to see her father.

The ability of the parties to support the child’s relationship with the other

The evidence of the willingness of each of the parties to reinforce the importance of the other parent’s relationship with the child is scant. The father’s action in removing the child from Country C was the very antithesis of his obligation to reinforce the child’s relationship with her mother. The mother is distrustful of the father and whilst there is proper basis for her concerns, her conduct prior to the child’s removal from Country C could not be seen as an example of her support for the importance of the father’s continuing involvement with the child.
I have found that whilst in Country C the mother was deliberately deceptive and was complicit in a manifest representation to the Country C court as to the alleged assault by the father upon her and then the fallacious attempt to keep the child from the father whilst she spent time with her partner in Europe.
Ultimately, recognition must be given to the likelihood that the parties will never be able to achieve a consensus or work cooperatively with each other and as such there must be clarity in the child’s mind as to the ongoing parental arrangements. If the child is to re-establish a relationship with the father it must of necessity be borne of the child feeling secure in the parenting arrangements and in the circumstances of this case that must translate to remaining in the primary care of the mother.

FAMILY VIOLENCE

The ICL considered that the mother’s evidence in respect of family violence was “improbable, implausible or at the very least exaggerated”.
The mother did not impress with her evidence in respect of family violence and it could not be said that the mother’s case was presented with family violence as a central component.
I have given careful consideration to the evidence in respect of the mother’s allegations, but ultimately consider they should attract little or no weight.

PARENTAL RESPONSIBILITY

There is a presumption that unless reasonable grounds exist to believe that a parent to the proceedings has perpetrated family violence or abuse or neglect of a child, then the presumption of equal shared parental responsibility must apply.
A determination of whether it is in the best interests of the child for the parents to have equal shared parental responsibility is determined by reference to the primary and additional considerations as set out in s 60CC.
I have determined that whilst the mother alleges family violence, such a contention is not supported on the evidence and at least in respect of one allegation I have found that the mother was either erroneous or untruthful in asserting that whilst in Country C she was assaulted by the father.
Accordingly, unless I find that the presumption is not in the child’s best interests, then an order of equal shared parental responsibility should be made.
Such a finding is not supported by the ICL. The ICL contends that the extent of communication between the parties has been effectively non-existent since the father removed the child from Country C. The extent of the mistrust engendered by the father’s actions were further underpinned by the conduct of the father following his removal of the child from Country C suggestive of a deliberate intention to avoid detection.
Of further concern is my finding that the father comes reluctantly to the realisation that his actions were highly damaging to the child and could not have advanced or enhanced the child’s development, particularly given her delayed speech.
The father argued strongly that in his care the child was improving in her development and presentation and any observation consistent with her regression was a reflection of the mother’s poor or inadequate parenting and failure to attend to the child’s regular school attendance.
The mother remains concerned that the child may be further removed from her care. There is good reason to find that the parties are never likely to resume a civil platform of communication.
The primary care for this child will remain resolutely with the mother. The child has special needs in the area of speech pathology, education and general development. The father’s actions in her removal from Country C had a measurable and adverse impact on the child’s development.
The parties are currently unlikely to develop a relationship between them which is devoid of conflict and mistrust and enable them to reach a consensus in respect of the major issues that are likely to affect this child from time to time.
Ultimately, the parenting decisions and the extent of the exercise of parental responsibility must be tested by what is in the child’s best interests.
In this case, the mother needs to have the unfettered ability to make major decisions in respect of the child with the certain knowledge that each such determination will not result in conflict and litigation.
The evidence to date is that since the child has returned to the mother’s care, the child’s development has been pleasing which reflects well upon the parental competency of the mother.
An order will be made that the mother shall have the sole parental responsibility for the child.
The ICL seeks to impose a further obligation on the mother that before deciding major issues in respect of the child’s schooling and medical treatment, that she consult with the father. That proposition is fraught with difficulty. It is however reasonable that the mother inform the father of decisions made, but that her ability to determine major issues be unfettered by any prior obligation to consult.

CONCLUSION

Notwithstanding the strong opposition by the mother, I propose to make orders that result in a resumption of time between the father and the child, underpinned by her primary care remaining with the mother.
As the subject of previous discussion, the Court has not been assisted by the lack of evidence as to the likely effect on the child of a resumption of time.
It is however a significant focus of s 60CC that promotes the benefits to a child of enjoying a meaningful relationship with his or her parents providing it is safe to do so.
In Baglio & Baglio [2013] FamCA 105 Murphy J considered a family where the father had neither seen nor spoken to the child for three years. The child had only scant positive memory of her father. The mother was fearful of the father and considered that he had been a perpetrator of domestic violence to both her and the child. The father admitted a history of criminality and substance abuse, but the evidence supported a finding that he had remained drug free in recent years.
His Honour found that the mother was “implacably opposed” to the child spending time with the father and would not encourage a meaningful relationship.
His Honour considered final orders that would be in the best interests of the child and ultimately made orders that provided for a gradual reunification between the child and the father, at least initially the subject of supervision by a family consultant.
At [111] Murphy J found there to be a “chance of a meaningful relationship … which is beneficial to the child” and that the absence of such a relationship may well cause harm to the child in the long term.
At [114]:-
…the assessment of best interests is to be conducted within the statutory objective of maximising parental involvement consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that “…[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … Best interests are values, not facts” (CDJ v VAJ (1998) 197 CLR 172 at 219).
His Honour found that if there was a finding of no unacceptable risk, then it was in the best interests of a child to have a relationship with her father.
His Honour considered that the mischief of not seeking to re-establish a relationship may result in the child transitioning to her later years with a distorted view of the father, namely, as a person to be feared.
I consider that the father does not pose an unacceptable risk to the child and that appropriate safeguards can be put in place to ensure that the child’s place of residence is firmly fixed within the Commonwealth of Australia.
Whilst not necessarily inevitable that absent unacceptable risk orders should always be made in favour of an ongoing relationship. In the circumstances of this case, it is in the child’s best interests for that to occur.
I make orders that appear at the commencement of these reasons.

I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 November 2016.

Associate:

Date: 23 November 2016

[2016] FamCA 994

23 November 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies