Salway and Hackley and Anor - [2012] FMCAfam 1209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALWAY & HACKLEY & ANOR

[2012] FMCAfam 1209

FAMILY LAW – Parenting dispute over child under two years’ old – mother Balinese and in Australia on temporary visa – possible final return to Bali by mother in December 2012 – child having lived with paternal grandmother and father since four months’ old – why mother gave child to grandmother – whether child should be transitioned to live with mother – whether child should return to Bali in December 2012 if transition not complete – consideration of objects and principles in s.60B of the Family Law Act – consideration of child’s best interests.

Family Law Act 1975, ss.60B, 60B(2), 60C, 60CC, 60CC(2), 60CC(3)

Goode v Goode [2006] FamCA 1346

Applicant:

MS SALWAY

First Respondent:

MR HACKLEY

Second Respondent:

MS HACKLEY

File Number:

MLC 5136 of 2012

Judgment of:

Burchardt FM

Hearing date:

8 & 9 October 2012

Date of Last Submission:

9 October 2012

Delivered at:

Melbourne

Delivered on:

13 November 2012

REPRESENTATION

Counsel for the Applicant:

Ms B. Phelan

Solicitors for the Applicant:

Women’s Legal Service of Victoria

Counsel for the First Respondent:

Mr C. Dunlop

Solicitors for the First Respondent:

Fiona R. McGregor

The Second Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Dowler

Solicitors for the Independent Children’s Lawyer:

Septimus Jones & Lee

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5136 of 2012

MS SALWAY

Applicant

And

MR HACKLEY

First Respondent

MS HACKLEY

Second Respondent

REASONS FOR JUDGMENT

Introductory

This case is all about the heart-wrenching difficulties that confront [X] born [in] 2010, and those who have been intimately involved in his life. For reasons which will become apparent, this Judgment has been prepared urgently. While I have considered all the evidence and submissions, this decision records the matters I consider significant in reaching my conclusions.
The applicant mother, who is an Indonesian from Bali, wants [X] to live with her, preferably in Australia but if needs be in Bali.
The second respondent, who is the paternal grandmother, is in truth the substantive opponent to the mother’s application although she is fully supported by her son, the father of [X]. They want [X] to live in Australia come what may, although Ms Hackley’s position is more opaque as to whether the child should be gradually transitioned back to the mother if she stays in Australia.
The Independent Children’s Lawyer, not without serious misgivings and qualifications, ultimately supports the proposition that [X] should be returned to his mother, even if she has to leave Australia and return to Bali on a permanent basis in December 2012.
This is an extraordinarily difficult case which has only been held in this Court because of the parties’ entreaties that it be heard and determined quickly, something the Court has been able to accommodate.

The Facts – the affidavit material

The mother’s initiating application filed on 8 June 2012 sought that [X] live with the mother and that she have leave to remove him from Australia. The mother filed an affidavit, also on 8 June 2012.
The mother deposed that the parties:
“commenced our relationship as boyfriend/girlfriend when we were 15 years old in or around mid May 2009. We were married [in] 2010 in Bali, Indonesia and we separated on a final basis in April 2012.”
It is common cause that the parties did meet in about May 2009 (when they were 17 years old, not 15) and were married [in] 2010 in Bali.
It is also common cause that [X] was born [in] 2010 by caesarean section, slightly ahead it would appear of the anticipated birth date.
The mother deposed she was born [in] 1992 and that the father was born [in] 1992. It was asserted, and indeed is common cause, that the father is unemployed and that he suffers from Attention Deficit Hyperactivity Disorder. He also has Aspergers syndrome and has been a drug addict, although the extent of his rehabilitation is not entirely clear.
Following the commencement of the relationship in mid-May 2009, the mother spent from January 2010 until March 2010 in Australia as a guest of the second respondent and the father. In about June 2010, she again visited Australia and remained until September 2010.
The parties were married in Bali in a Hindu ceremony on [date omitted] 2010 and the father returned to Australia shortly thereafter.
The grandmother and father arrived in Bali on or about 13 December 2010, this being the date they had planned to arrive before [X]’s slightly earlier arrival.
The mother’s affidavit deposed that in early 2011, the father proposed that [X] and the mother come to live in Australia with him. The mother deposed (paragraphs 16 and 17):
“16. … The Respondent said he would apply for Australian citizenship for [X] and then make an application to the Department of Immigration and Citizenship for a spousal visa for me.
17. I trusted the Respondent would keep his word and agreed to sign all necessary documents required to obtain Australian citizenship and a passport for [X].”
The mother’s affidavit then jumps to 4 April 2011 on which date, it is common cause, the grandmother brought [X] to Australia. The mother deposed:
“18. It was very hard to say goodbye to [X] but Ms Hackley told me that arrangements would be made for me to come to Australia shortly. I felt sad but reassured that I would see [X] soon and that [X] would get an opportunity to spend some time with the Respondent and the extended paternal family.
19. After [X] arrived in Australia, I received no further communication from the Respondent. Further contact between the Respondent, Ms Hackley and I was instigated by me.”
The mother went on to depose to Skype contact on a daily basis, and referred to an occasion when the father told [X] “his mum didn’t love him and “to come here, you little shit”. The father admits the latter allegation although he explains it away.
The mother deposed to a failure on the part of the grandmother to return [X] to Bali at the age of six months for a hair-cutting ceremony. She deposed that in about May 2011, she telephoned the father to ask when she would be able to come to Australia and was told it was too expensive to send for her, and that the father would not support her anymore.
The mother deposed that this devastated her and that she contacted a number of Australian friends with a view to coming to Australia. She was able to contact a friend named [A], who in November 2011 arranged and paid for her flight to Australia.
She deposed that she then arranged to stay with the grandmother for a month and that [X] was happy to see her having had contact with her on Skype.
She deposed that during this visit the father abused her, calling her “monkey face” and said that he didn’t want her and that after a few days she was forced to return to Perth. She returned to Indonesia on 31 December 2011. She again contacted further friends and was ultimately able to return to Australia on 17 May 2012 with the assistance of

Ms M.
The affidavit otherwise explained the orders the mother sought. She also deposed that her visa was due to expire on 17 June 2012 and that this of course gave the matter certain urgency.
The matter came before the Court on 14 June 2012 when a Watch List order was made, and was the subject, on 29 June, of a relatively unproductive (scarcely surprising in the circumstances) section 11F report. Nonetheless, orders were made on that date for the mother to spend more extensive time with [X], notwithstanding that the section 11F counsellor, Dr J, was clear that there was greater warmth between [X] and his grandmother and that this was absent when [X] was with his mother and, indeed, with his father.
The responding affidavit from Ms Hackley filed in Court on

14 June 2012, obviously prepared under some pressure of time, relevantly deposed that it was the grandmother who organised the passport, visa and citizenship for [X]. She deposed that the mother “told me that she wanted me to take [X] with me when I returned to Australia” but that in the ultimate, it was agreed that the father and the grandmother would return to Bali at the end of March to collect [X], and that this had occurred on 5 April 2011.
The affidavit confirmed that the mother had visited in November 2011 but that it had been unsuccessful because of the breakdown of the relationship between the mother and the father.
The grandmother put in issue the amount of time spent by the mother with [X] via Skype. She deposed to [X]’s generally satisfactory development, his primary relationship with the grandmother and the relationship with her own father who lives in the same household, and the paternal aunt and her family who live next door. She deposed that [X] attends day-care three days per week and loves it. Otherwise, the affidavit essentially explained the grandmother’s reservations about [X] going to Indonesia.
The next affidavit filed was that of the father on 28 June 2012. The father confirmed that he was unemployed and that he suffers from Aspergers syndrome. He also confirmed that he has Attention Deficit Hyperactivity Disorder and that this affects his mood and behaviour. He further confirmed that he was undergoing a period of rehabilitation at Tandana for an addiction to the drug Ice.
The father relevantly confirmed details of the relationship with the mother. He deposed that he had taken with him to Bali in October 2010, the documents necessary for the mother to make application for a spouse visa, but the mother seemed uninterested.
He deposed that he had returned to Australia in January 2011 and that it was the mother who was keen for [X] to obtain an Australian passport. He deposed that it was his belief that [X]’s dependence on the mother had impacted on her lifestyle and that he had concerns about the extent to which she would be able to prioritise [X]’s needs over and above her own.
He deposed that he had been in constant contact with his wife, usually about money, and complained of the demands for cash for dresses and the like that the mother had made.
He confirmed that there had been discussions about [X] returning to Indonesia for the hair-cutting ceremony but deposed that this was not practical as [X] was still being settled down in Australia.
He went on to make a number of criticisms of the mother, and did confirm that he had called her “monkey face” when she stayed with his family in November 2011 (albeit that he said this was a term of endearment).
He confirmed that he and the mother argued constantly when they were together in November 2011 about the mother’s other boyfriends and the fact that she had come to Australia paid for by a boyfriend in Perth.
The affidavit was otherwise essentially responsive to the mother’s material in terms that do not need to be traversed in any greater detail, save that he noted the mother had achieved a six-month extension to her visa.
The grandmother filed a further affidavit on 27 June 2012. This corrected some errors in her earlier affidavit and responded to the mother’s affidavit in greater detail. Relevantly, it should be noted that she deposed that arrangements were made between December 2010 and January 2011 for [X] only to come to Australia and that the mother was not making arrangements for herself at that time. She deposed that when [X] came to Australia in 2011:
“16. … [Ms Salway] was quite happy at the airport to say goodbye and there were no concrete discussions about her coming to Australia to live at that stage. I have photos of [Ms Salway] and her family at the airport. Annexed hereto and marked with the letter “A” is a copy of the said photos.”
It should be noted that the grandmother was not cross-examined about the photographs which, if they were taken at the point of departure, would appear to show the mother happily in the company of [X] and the grandmother. The affidavit otherwise essentially traversed matters already stated.
The mother filed a trial affidavit on 1 October 2012. It is not necessary, once again, to traverse it in detail because it largely recapitulates matters already asserted. I note, however, that at paragraph 23 the mother said:
“When [X] was around 12 days old, [Mr Hackley] and I applied for Australian citizenship for [X]. This was clearly important to [Mr Hackley]. I also believed it was in [X]’s interests to have Australia, as well as Indonesian citizenship.”
The mother went on (paragraphs 25 to 35) to depose:
“25. In early 2011, [Mr Hackley] suggested that [X] and I come and live in Australia with him. [Mr Hackley] and I had already applied for Australian citizenship for [X] soon after his birth. His plan was then to make an application to the Department of Immigration and Citizenship for a spousal visa for me.
26. [Mr Hackley] told me it would be easier for me to obtain an Australian visa once [X] was living in Australia, as I would be moving to Australia to join my husband and my son.
27. I believed [Mr Hackley] and I trusted that he wanted us to live together as a family in Australia. I also believed that he would keep his word. As a follower of the Hindu faith, I was brought up to trust without question words spoken between a husband and wife.
28. I had already agreed to sign all necessary documents required to obtain Australian citizenship for [X], and agreed to [Mr Hackley] obtaining a passport for him.
29. As we were husband and wife, I did not doubt that [Mr Hackley] wanted me to live with him in Australia.
30. From his birth in December 2010 until April 2011 I was [X]’s primary carer. I never had any intention for this to change. I truly believed that I was going to live with [Mr Hackley] in Melbourne, together with our son.
31. In or around early 2011, [Mr Hackley] contacted me and told me that Ms Hackley would be coming to Bali to visit [X] and I and that she would be bringing the fees and paperwork required to obtain a spousal visa for me.
32. [Mr Hackley] and I agreed that once the paperwork had been processed, both [X] and I would travel with Ms Hackley to Australia.
33. On or around March 2011, Ms Hackley came to Bali to visit [X] and I. [Ms Hackley] told me that she had forgotten the fees and paperwork to arrange a spousal visa for me.
34. Ms Hackley suggested that she take [X] back to Australia with her and then she would immediately make arrangements for a spousal visa for me, so that I could join [X] in Australia. I trusted Ms Hackley would keep her word, as she had not lied to me before.
35. It was very hard to say goodbye to [X] but Ms Hackley told me that arrangements would be made for me to come to Australia shortly. I felt sad but reassured that I would see [X] soon and that [X] would get an opportunity to spend some time with [Mr Hackley] and his family.”
Otherwise the affidavit largely recapitulates the earlier recitation of the various visits to Australia, but the affidavit goes on to assert the improving relationship between herself and [X], given the time that the Court had ordered. The affidavit also referred to the father’s various difficulties. She opposed [X] being left alone with his father (something that is agreed by all).
The mother went on to say, under the heading “My proposed care arrangements for [X]”:
“70. At this point in time I do not know whether I will be able to stay long term in Australia. This is a matter for the immigration authorities.
71. I do think it is relevant whether I live in Australia or in Bali. [X] is my son. I am his mother and want to be his primary carer. I believe that it is in his best interests to live with me, and be brought up knowing his Indonesian culture, language and heritage.
72. I have the support of my mother, my brother and my community in Bali. I have appropriate accommodation, and I have access to medical facilities and schooling for [X].
73. I do not have much money, but we manage quite well on a day-to-day basis.”
She went on to assert that she would support time spent by the grandmother and father in the event that they came to Bali to visit [X], and that [X] would be made available to them by Skype on a regular basis.
The mother went on to depose that if [X] remains in Australia she believes she will not see him again as she does not have the money to come to Australia on a regular basis.
She went on to depose that she was in a loving and committed relationship with Mr H and that Mr H and [X] got along very well.
She then took issue with the family report by Ms B, pointing out that she is not immature and has been working and supporting her family since she was 12 years’ old. She deposed that her father died when she was 12 years’ old and that from that time she supported and cared for her mother and younger brother. She was employed as a nanny from the age of 12 to 14, looking after three children from 6 am until bedtime, seven days a week. From the age of 14 she has been employed in [omitted] work and she would be able to take her child to work with her as is the custom in Bali. Her affidavit concluded with what her case really is:
“I believe that it is in [X]’s best interests to be in my care, whether I am living in Bali or in Australia. I am his mother.”
Mr H filed an affidavit on 2 October 2012 in which he confirmed that he is the mother’s boyfriend, is 27 years’ old and is in good health. He first met the mother in Bali in January 2012 and he had returned on three occasions by May 2012. The relationship between them had become intimate it would appear, according to the affidavit, in June 2012. Mr H lives in his own three bedroom home with an enclosed yard and makes about $90,000 per annum before tax. He deposed at paragraph 11:
“I would be very happy to have [Ms Salway] and [X] live with me. I will support [Ms Salway] to the best of my ability. I would also assist her in facilitating any time that is to be spent between [X], his father and his paternal grandmother.”
Ms M, a friend of the mother, filed an affidavit on 5 October 2012. Relevantly, she deposed to contact with the grandmother via Facebook and she annexed as “JAM1” a printout from the grandmother’s Facebook which she asserted “confirms that she was going to Bali to get [X]”.
Exhibit JAM1 includes a post dated 28 March 2011 in which

Ms Hackley asserts:
“Two more sleeps then of to bali for 6 days can not wait then [X] will be hear with us yahoo.”(sic)
And, relevantly, a post by Ms H which read:
“Have a safe trip and bring our little man home safely.”
Ms Hackley responded:
“Oh i will [Ms H].”
I will return to the significance of this exhibit later.

The oral evidence – the mother

The mother was called first to give evidence. She had to be recalled following the evidence of Ms M.
The mother confirmed that she had been in a relationship with

Mr H since June 2012 and proposed to seek to marry him in about November or December 2012. She confirmed that she would seek a transition of [X] to her care by April 2013 and confirmed that [X] had stopped smacking her after about two months or so of spending time with her.
She confirmed that she would support a relationship between [X] and his father and grandmother if she returned to Bali and confirmed also that [X] would be likely to be upset if he was removed from his grandmother. She repeated, however, that she is the mother and [X] should be with her.
She was quite clear that Mr H had proposed to her albeit the marriage date had not been set.
In response to cross-examination as to why she had allowed [X] to be removed from her in April 2011, she said that his father had missed him so much. She said that she did not like the grandmother because of the dishonesty over her passport but she nonetheless confirmed that [X]’s primary attachment is with the grandmother.

She confirmed that she is a full-time [occupation omitted] who works from 9am to 6pm, it would appear seven days a week, and has to go back at 8.00 pm to close the store where she works. If she lived in Australia she would propose weekend time for the father and grandmother.
Her evidence was that [X] was only four months’ old when he left Bali. She thought that he would be back in two months for his hair-cutting ritual. She said words to the effect that she was extremely reluctant but the grandmother had said that [X]’s father missed him so badly and could not take leave.
It should be noted that this assertion, central to her explanation for allowing [X] to depart Bali, was not deposed to, certainly in anything like any significant fashion, in her affidavits.
The mother said that she understood what the effects of [X] being separated from her would likely to be but said, “What can I do?” She confirmed that she had stopped breastfeeding [X] and put him on formula before the grandmother took him. She confirmed that she lives in rented accommodation in Bali and goes to work by motorbike.
Following part of Ms M’s evidence, the mother was recalled. It emerged that the grandmother had rung the mother and called her a slut (something the grandmother denied when called). It emerged that Mr S and Ms S, who are slightly older Australians, had given her money to buy a motorbike. She also confirmed that she had, while pregnant, been to the [omitted] nightclub, a place where she confirmed there are many prostitutes. She also conceded that she had on one occasion told the father that he would not see [X] if he did not send her money.
Ms M’s evidence concentrated on her brief interaction with the grandmother. She deposed that the grandmother was really angry with the mother over the issue of money, and that the grandmother was asserting that the mother had been seen at a nightclub and might be involved in prostitution. Ms M confirmed that the mother is a very caring mother.

The evidence of the father

The father’s evidence was that immigration papers to assist the mother were not taken to Bali when [X] was born, only papers for [X]. He said that he found out (after returning to Australia) that the mother was cheating on him and deposed (without challenge) that her best friend was a prostitute. It was the cheating on him that led him to change his mind about the mother coming to Australia.

The evidence of the grandmother

The grandmother said that she had gone to Bali to collect [X] because this was already organised. She stuck by her evidence that the mother had not been initially interested in coming to Australia. She acknowledged the mother as the mother and said words to the effect, “I love that boy as my son but he’s not my son”.
She confirmed that she lived in a three bedroom house and that [X] shares a bedroom with his father, something she readily agreed ought not to be the case and would not continue.
She confirmed that her daughter, [Ms R], lives in the garage and is another carer and attachment of [X].
She confirmed, as all appear to agree, that [X] is generally developing very well and is a happy and adjusted child.

The Family Report

The family report in this matter prepared by Ms B is dated 3 September 2012 and followed interviews in late August 2012.
The background to the dispute is detailed in terms that are largely uncontroversial. I note that both the father and his mother impressed Ms B as being candid and honest. The accounts given by the adults are, scarcely surprisingly, consistent with their evidence in their affidavits and before the Court.
Relevantly, Ms B recorded (at paragraph 42 of the Family Report) that:
“[X] was observed to enjoy a closely attached relationship with his paternal grandmother, Ms Hackley and a familiar relationship with his father. Whilst Mr Hackley tended to abdicate the parenting role to the paternal grandmother he impressed as a loving and caring parent to [X]. [X] sat with Ms Hackley and cuddled with her and often sought her proximity. In Ms Hackley’s company [X] seemed comfortable and confident.”
The interaction with the mother was recorded (at paragraphs 43 and 44) as follows:
“43. When Ms Salway arrived, she immediately adopted an elevated and excitable manner towards [X]. She eagerly called out his name, trying to encourage him to come close to her. The mother’s friends Ms M and her daughter also were animated and energetic calling out to [X] and trying to encourage him to identify them and their names. [X] seemed to recognise his mother and smiled suggesting he was pleased to see her but he initially remained sitting on his paternal grandmother’s knee. [X] needed much encouragement to leave Ms Hackley’s side to approach his mother. When [X] approached Ms Salway he readily accepted an embrace with her and seemed comfortable and happy in her company.
44. As the morning went on, [X] relaxed and enjoyed spending time with all of the adults present. Generally interactions between [X] and adults were positive and age appropriate. Given his young age [X] was not formally interviewed for the assessment.”
The report continued at paragraphs 45 to 51:
“45. This matter concerns a young child [X] (aged 20 months). He is vulnerable due to his youth and he is highly dependent on trusted adults to provide for his care, welfare and development. The parents in this matter are young and immature and their parenting competencies are seemingly undeveloped and questionable. The father Mr Hackley has a range of mental health and psychological functioning issues which prevent him from being considered an appropriate independent carer for [X]. Time between Mr Hackley and [X] needs to be supervised by Ms Hackley in the immediate future.
46.    For reasons in dispute [X] has spent limited time with his mother and as a result he has not formed a close and familiar relationship with her. Ms Salway is an Indonesian citizen and lives in Bali. She has occasionally travelled to Australia for periods of time. [X] has lived with his paternal grandmother and father in Australia since he was four months of age following final separation in April 2011 and it is Ms Hackley with whom he has formed a secure based attachment relationship. Ms Salway has not parented [X] alone for extended periods of time and their relationship is only just beginning to develop. Independent time between [X] and Ms Salway has only recently commenced. Given [X]’s primary attachment is to Ms Hackley there is no benefit to [X] of removing him from his paternal grandmother’s care and placing him with the mother at this stage. Given these circumstances, support is given to [X] remaining living with

Ms Hackley at this stage.
47.    To date it is unclear if Ms Salway has been genuinely commitment (sic) to being involved in [X]’s care and upbringing and whether she has abdicated parenting responsibilities to the paternal grandmother. The Court will need to consider the evidence in this matter to determine the veracity of Ms Salway’s and Ms Hackley’s assertions about the other’s role in [X] travelling to Australia to live with Ms Hackley and Mr Hackley. It is unclear what impact this would have on the current matter concerning [X]’s living arrangements.
48.    Given that Indonesia is not a signatory to The Hague Convention there is an unacceptable level of risk that [X] may not return to Australia if he travels overseas at this stage. The risk is elevated by the fact that the parties are in dispute and cannot communicate and cooperate with regards to [X]. At this stage it is suggested that [X]’s name remain on the Airport Watch List and he be prevented from leaving Australia and travelling to Indonesia with Ms Salway.
49.    While initially Ms Salway proposed for [X] to live with her and return to Bali, she said at interview that her first preference was to live in Australia with [X]. Ms Salway has been granted an extension of her current visa and is pursuing residence so she can live here. Whilst her plans were unclear, it seemed that Ms Salway intended to live with her current partner of six months, Mr H or perhaps with the [family omitted] in Ballarat. The stability of Ms Salway’s relationship with Mr H is unknown and untested, Ms Salway has not parented [X] for any extended period of time and if [X] lived with her and Mr H their relationship would confront many challenges. Future time and living arrangements will depend on the outcome of Ms Salway’s application.
50.    For [X] to develop a closer relationship with his mother he needs to spend regular and extended time with her. Whilst Ms Salway is understandably eager to resume a role in his care and upbringing, at his young age he may not tolerate being separated from Ms Hackley for extended periods of time. Ideally [X] needs time to age and mature before he should be separated from Ms Hackley and placed with Ms Salway for lengthy periods.
51.    Before any clear recommendations about future living arrangements can be made, the outcome of Ms Salway’s residence application will need to be clarified.”
The report went on to recommend equal shared parenting responsibilities for the three adults and that [X] live with his grandmother and spend time with his parents.
When called to give evidence Ms B adopted her report. She confirmed that if the mother stays in Australia then there should be over time (at least six months) a process whereby [X] would be returned to his mother’s primary care. She confirmed what is probably obvious, namely that if returned to Bali the position would be that the situation would be entirely unfamiliar to [X].
Tellingly, Ms B said in respect of [X] returning to Bali words to the effect, “[X] should go. My heart says so.” She confirmed that the child should eventually end up with his mother but she was clear that departure with his mother in December would be too soon. She confirmed that language would not be a difficulty at the age of 22 months in the sense that [X] would rapidly pick up Indonesian.
Mr H was called. He is a [occupation omitted] earning $90,000 a year and has been with the same employer for seven years. His evidence was candid and unremarkable. He did, however, confirm that he is not engaged and has not proposed marriage, but he also confirmed that he has every intention of marrying the mother. It should be noted that the mother reacted extremely histrionically when Mr H denied being engaged or having proposed.

The submissions of the parties

It is not necessary to traverse the submissions of the parties in any great detail. Each of the primary players contended for the positions they had already adopted. It should be noted, however, that in the ultimate, and following some vacillation, the position of the Independent Children’s Lawyer was that in the end the mother should be the primary carer of [X]. This would be the case even if, as is very possible, it would mean [X] leaving with the mother in December at a point when it is, in my view, incontrovertibly the case that [X] will not have properly bonded with his mother.

Findings about the facts

It is clear that the mother has had a difficult life. Following the very early loss of her father when she was 12, she has effectively worked full time in a most commendable way to support her mother and younger brother. She must have grown up fast. By the age of 17 she was able to embark upon a relationship with the father in this proceeding.
Having seen the father over several days, it is worthy of note that his demeanour is not superficially attractive. By this I refer to the fact that, no doubt because of the various health problems he has, he sat in a completely disengaged way at the back of the Court, appearing at times to be either asleep or in some fashion comatose. He made at least one interjection that suggested he was almost completely disconnected from the proceeding.
Mr Hackley is now three years older and more mature than he was when he first met Ms Salway, and I am not able to avoid the conclusion that part of the attraction that he represented was a passport to a better life. Such a finding is only conformable with the dire economic circumstances in which the mother and her family live in Bali, and the inherently somewhat antisocial qualities demonstrated by the father which are consistent, it would seem, with the social difficulties often experienced by Aspergers syndrome sufferers, of which I take judicial notice.
The parties’ relationship rapidly ripened and following quite an extensive period of time spent in 2010 in Australia by the mother as a guest of the father and his family, they married in [omitted] 2010. The mother was of course well pregnant by this stage.
[X] was born in [omitted] 2010 and shortly thereafter his father and grandmother arrived in Bali. It is common cause on any view that a passport was rapidly obtained for [X]. The papers to enable this to be done must have been taken at the time. It is in any event, as far as I can see, uncontroversial that citizenship for [X] was agreed to by all and effected very quickly.
There is of course a dispute, and in one sense a significant one, as to what was said, agreed and/or done or not done about citizenship for the mother.
At this point it is necessary to say a few words about the credit of the witnesses. The mother is clearly a woman, as I have said, of resource, ingenuity and force of personality. So much was obvious from seeing her in the witness box and, indeed, when she was sitting in the Court.
She has a well-developed talent for fomenting friendships that are beneficial to her with Australians. I emphasise that this is not put in any possible sense as a criticism or in any pejorative way. The fact is, however, that Mr and Ms S have bought her a motorbike, she has married the respondent father, she has a friend called [A] (sex and nature of relationship unknown) in Perth who had paid for her to come to Australia in 2011, and she is now engaged to Mr H, as well as having formed a friendship with Ms M and her family who have also paid for her to come to Australia.
As far as I can see, all of these initiatives have taken place between 2009 and 2012.
The mother’s evidence was given with some measure of what appeared to me to be exaggeration, and I am troubled by two aspects of her evidence and demeanour. First, there was the histrionic reaction to

Mr H’s denial of the engagement and proposal. Marriage is an important matter for any human being and it is not possible to avoid the conclusion that the mother was deliberately exaggerating the strength of her relationship with Mr H when she gave the evidence that she was engaged to be married.
The other aspect that concerns me is her failure to have mentioned prior to the witness box the very important evidence that allegedly gave rise to her decision to give up her child when four months’ old, namely that emotional pressure was put on her by the grandmother to the effect that the father was missing his child so badly.
If this was the true reason the child was given up, I would have expected to have seen it as a focal point in her affidavit material but it receives no specific mention at all. I think that this was an explanation made up on the run. It had every appearance of being so.
The grandmother was in the main an excellent witness. She was certainly telling the truth, although I suspect that in part she has suffered, as is so almost universally the case in human affairs, from a measure of reconstruction. She presented as being entirely sincere and it is quite clear that she adores [X] and has been the primary carer for most of his life.
The father, despite his various difficulties and problems to which I have already referred, impressed me as being an honest witness, albeit one with a relatively poor recollection. His drug difficulties and other problems make this scarcely surprising.
Ms M was a palpably honest witness, albeit that she was also clearly partisan.
Mr H was a quite excellent witness. In the event that he does marry the mother, she will be getting a hard-working, down-to-earth, very sensible man. I have no doubt that he would behave entirely appropriately towards both [X] and [X]’s extended family.
In the light of these more generalised observations, I turn now to deal with the factual controversy about the passports issue and why it was that the mother let [X] come to Australia.
The issue of the mother’s passport is difficult. It is clear on any view that the initial focus was, by consent of all concerned, on [X] getting Australian citizenship. This, in my view, reflected a desire on the part of the father, then only of course recently married, to have the mother come to live with him in Australia. Once [X] was an Australian citizen it seems to have been a common perception amongst the parties that this would in fact smooth the mother’s application for citizenship, even though in fact that is not the state of the law as I apprehend it.
I am not able to say with certainty whether the mother was or was not initially lukewarm about coming to Australia. It seems to me, however, given the finding that I have already made about the partial orientation of her affection for the father that she must have at all times wanted to come to Australia and obtain citizenship. It is not possible for me to say exactly when and if forms for the mother to achieve citizenship were taken to Indonesia because the evidence is simply not sufficiently compelling one way or the other. What is clear is that when [X] was given up to the grandmother it was in the context of a very clear understanding on the mother’s part that this would improve her prospects of obtaining a permanent residence visa. Her own affidavit material says so in terms.
The fact is that it is clear that during her pregnancy the mother attended a nightclub notorious as a haunt of prostitutes. She said she went there to meet a friend and I see no reason to doubt her evidence. I also am not prepared to adopt the vague suggestions that the mother herself may have been engaged in prostitution. There is no objective evidence to suggest such an assertion. Nonetheless, for a young woman of just 18 or so the fact that she might still want to enjoy herself socially is scarcely surprising. It is possible that her attitude towards becoming a mother at so young an age was to some extent ambivalent.
Whether that be the case or not, the one thing that one can say with certainty is that the mother gave up a four month old child to his grandmother.
It is clear from exhibit JAM1, to which I have referred, that the grandmother went to Bali in the confident expectation that she would be bringing a child back to Australia. Ms M regards this as a sinister expression of intent but that is a view in which hindsight plays a large part.
To me it seems far more probable than otherwise that it was in fact foreshadowed and in effect agreed that the grandmother would go to collect [X] and bring him to Australia. This conclusion is fortified by the fact that [X] had been weaned before the grandmother arrived. Her visit was not a long one.
Furthermore, the mother’s affidavit material makes it clear that she thought that letting [X] come to Australia would improve her prospects of obtaining permanent residence. This was of course a serious error of judgment on any view. Her bargaining position would have been infinitely stronger had she kept the child with her.
The reality is that this case is in large part about conventional notions of what a mother’s role in a child’s life should be. Even Ms B has allowed her heart to ultimately govern her conclusions when what the Court would be hoping for would be a decision wholly based on reason. This is not a matter for criticism. The idea of sundering a relationship between a mother and child strikes at all emotions that any reasonable person would have, let alone the assumptions that underpin the relevant provisions of the Family Law Act 1975 (“the Act”).

Equally, however, it is utterly counter-intuitive that a woman who really loves her young son would give him up to somebody else, even for two months (the time which she says she had in mind) whatever the father might be thinking. It is impossible to avoid the conclusion that the mother’s love for the child was simply not great enough to countervail her desire to improve her visa prospects. This is a very serious finding and not one at which I arrive with any pleasure or haste. But there is simply no other reasonable explanation for what took place and to the extent that the mother proffers other explanations, I do not, for the reasons I have already indicated, accept them.
Accordingly, as I find, [X] was taken to Australia with the consent of his mother at the age of four months in circumstances where it was anticipated, entirely reasonably, by the mother that she would be joining him relatively shortly with her visa status satisfactorily concluded.
Things of course did not proceed in this way. Tittle-tattle appears to have reached the father to the effect that the mother was nightclubbing and having other boyfriends. She certainly was nightclubbing but whether she had had other boyfriends is opaque. It matters not. The fact is that the father believed it and he, and in due course his mother, essentially reneged on the understanding that the mother would be coming to Australia as a spouse.
Thereafter Skype contact took place from time-to-time. Its frequency is not clear but for any to have occurred at all, the grandmother must have been at least willing to foment the relationship between the mother and the child, which is entirely to her credit.
It took the mother, understandably enough, until November 2011 to arrange a trip to Australia which was certainly paid for by somebody in Australia, with whom it would appear she stayed for over a month in any event. Nonetheless, when the mother finally was able to visit her child the relationship between her and the father was so poor that the grandmother very understandably brought the visit to an end within a short period of time.
The mother ultimately had to depart Australia again and has only been able to return in May following which the sequence of events I have earlier described, namely the course of this proceeding, has eventuated.
There is no doubt that [X]’s primary attachment is to his grandmother. He has a secure and satisfactory relationship with his father and a developing relationship with his mother. He also has a good relationship with his great-grandfather, who lives in the same house, and I see no reason to doubt that [X] is adored by the father’s aunt and her family who live next door, as well as his own aunt, [Ms R], who lives in the same dwelling.
If [X] returns to Bali, his mother will love him and look after him with the assistance of her brother. Although she has said her mother can assist, the extent of this assistance is unclear.
On any view [X]’s circumstances will be disadvantaged in Bali. His accommodation is not likely to be as good as it is in Australia and more particularly he will be spending most of his life in the [omitted] where his mother works. I should make it clear that I accept that [X] would be properly looked after if he were to be with his mother in the [workplace]. I accept that Balinese custom is such that he would be adequately child-minded in these circumstances, although looked at objectively of course, this is far less attractive than what would be available to him in Australia. It is important, however, to remember that the Court should not allow crude and simplistic notions of economic benefit, inter-related with perhaps inappropriate cultural assumptions of superiority, to have any weight in its deliberative process.

The law

In Goode v Goode [2006] FamCA 1346 the Full Court of the Family Court analysed the effect of the amendments to Part VII of the Family Law Act which constitute the relevant law for these purposes. At [65] the Full Court said:
“In summary, the amendments to Pt VII have the following effect:
1.    Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.    The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3.    If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4.    The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.    When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.    The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.    The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.    Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.    The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”

The application of the law to the facts

Parental responsibility

In this case, the presumption of equal shared parental responsibility not only arises as the first matter to be considered under the statutory pathway but is of perhaps even more significance than would otherwise ordinarily be the case because of the extraordinary factual circumstances.
There is no suggestion that there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence. The mother only lived with the child for the first four months of his life and her time since then has been limited to overnight stays. There is nothing in the materials to suggest that she has in any way subjected the child to abuse or family violence.
The matter that does stand against the mother is her decision to give the child up to the grandmother at the age of four months but that is not a matter which in the circumstances can properly, in my view, be described as abuse. It remains nonetheless a very concerning matter.
The father has on occasions said words to the child which might be thought to constitute abuse but for all his limitations, I accept that the occasional use of inappropriate language does not in the circumstances of the case amount to abuse or family violence. I note that, as independently observed by the family report writer, he has a satisfactory relationship with the child within his limitations.
It is furthermore quite clear that the grandmother has at all times been a devoted carer whose efforts as a parent can only be applauded.
Thus, in the ordinary way of things there is no proper basis for concluding that the presumption of equal shared parental responsibility should not apply. The difficulty is of course what should happen in the event that the mother is forced by the migration authorities to return to Indonesia. If this occurs, is it in the child's best interests to retain the significant artificiality of having an order for equal shared parental responsibility that will remain wholly unenforceable while the child is in Indonesia, both because orders of this Court do not operate extraterritorially and because, as a matter of practical politics, the mother will have complete charge of the child on a day-to-day basis?
For reasons to which I shall come shortly, I think that there will need to be orders made which operate, so to speak, in the alternative. If [X] remains in Australia then there should be equal shared parental responsibility between the mother and the grandmother who are in effect his carers. The father is not a person appropriate for parental responsibility as he himself concedes.
If [X] returns with his mother to Indonesia, in my view the only order the Court can properly make is that she have sole parental responsibility. This outcome reflects both the incapacity of this Court to make orders that operate extraterritorially and the practical realities of the situation. It would not be in the best interests of this child even if it were in some way notionally enforceable, which it is not, to be subject to orders for joint parental responsibility in circumstances where the second person having such parental responsibility, namely the grandmother, will be thousands of miles away from him and seeing him at best only on a very intermittent basis.

Equal time

Once again, it is necessary to consider this proposition in the alternative.
If [X] goes to Indonesia then plainly equal time will not be appropriate, nor will it be practicable. Neither of the parties has the money to send [X] routinely from Bali to Australia for equal time to occur so it is plainly not practicable. It is equally clear that if [X] lives in Bali it would not be in his best interests to spend equal time in the two households which might receive him. It is clear from the report of Ms B that [X] needs a secure primary attachment and indeed so much is implicit in the positions of all the parties. Given his tender years, the proposition that he spend equal time with his parents (or more accurately, equal time with his mother and grandmother) is plainly untenable.
In the event that [X] stays in Australia, the difficulties as to the practicability of equal time would dissipate completely. Nonetheless, it is equally clear that [X] ought not spend equal time in the two households. As already said, it is implicit in the positions adopted by all of the parties, including the Independent Children's Lawyer, that a child of only two years will need a single primary attachment. While there is still work to do to determine who that primary attachment should be with, it is clear that equal time is not appropriate in [X]'s best interests given his age and stage of development. So much is effectively self-evident.

Substantial and significant time

If [X] lives in Indonesia, substantial and significant time will be impossible. Once again this is self-evident for the reasons already given in relation to equal time.
If [X] remains in Australia, he should certainly spend substantial and significant time with the person who is not his primary carer, either his mother or his grandmother as the case may be. [X] is undoubtedly loved by both his mother, his grandmother and his father and, given his age and lack of school commitments, there is no reason why he ought not spend substantial and significant time with the person he does not ordinarily live with.
Consideration of this matter in more detail, however, is complicated by the fact that at the moment, [X] lives with his grandmother and spends time with his mother. That time, in my view, does not technically conform with substantial and significant time but given [X]'s age and stage of development, the reference to the spending of weekend time is of less moment.
What will need to happen here is that the issue will need to be revisited in the event that:
a)The mother stays in Australia; and
b)[X] transitions into her primary care.

Consideration of [X]'s best interests by reference to the matters in section 60B and section 60C of the Act

Although I have endeavoured to follow the statutory pathway, the reality is that in the context of the facts of this case it is the working-out of [X]'s best interests pursuant to s.60C that is at the heart of the matter.
Counsel for the mother referred to s.60B and recitation of some of the objects immediately highlights the difficulties the case presents. Section 60B(1) reads as follows:
“The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The objects have underlying principles set out in s.60B(2) as follows:
“The principles underlying these objects are that (except where it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both of their parents, regardless of whether the parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CC explains how the Court determines what is in a child's best interests. The primary considerations set out in s.60CC(2) are the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required to give greater weight to the need to protect the child than to the benefit of having a meaningful relationship with both parents (Section 60CC(2)(a)).
I will deal with each of the additional considerations set out in s.60CC(3) in turn.

(a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views

The child has expressed no views. [X] is only just 23 months’ old.

(b) The nature of the relationship of the child with each of his parents and other persons, including any grandparent or other relative

[X] has a closely-attached relationship with his paternal grandmother and a familiar relationship with his father. In the grandmother's company, [X] seems comfortable and confident (Ms B's report, paragraph 42).
[X] seems to recognise his mother and smiled when he met her, suggesting he was pleased to see her, but needed encouragement to leave his grandmother's side to approach his mother. He readily accepted an embrace with her and seemed comfortable and happy in her company and this improved as the morning went on (Ms B's report, paragraphs 43 to 44).
It is clear from this independent observation that [X] has a primary attachment to his grandmother and is comfortable with his father. I am prepared to accept that [X]'s relationship with his mother is gradually improving and becoming more familiar.
[X] also has, however, on the uncontradicted evidence, an excellent relationship with his great grandfather with whom he lives, his aunt, [Ms R], and with his great aunt and her family who live next door and who have a number of siblings (age and number not disclosed). There is no reason to doubt the evidence that all of these persons love [X] and that he would have a loving relationship with them, albeit clearly less well-developed than with his grandmother and father.

(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child.

This is an area of some difficulty. In the end, although I have already dealt in terms that mix both criticism and perplexity with the mother's decision to give the child up, the fact is that she has taken such steps as are open to her to spend time and communicate with the child and to participate in decisions about his life. While it is clear that the amount of time the mother spent with the child on Skype is not as great as she herself asserted, I pay proper regard to the difficulties that the mother would have in effecting such contact from Bali to Australia. It may well be also that on occasions, she has allowed her other interests (such as Mr H) to diminish the times she has spent with [X] but I do not think that in the circumstances the mother found herself in, any great significance can be given to this. She is a woman with many responsibilities in her life in Bali in any event.
No such criticism is open of the grandmother. No more needs to be said about this than that. The father in my view, for all his deficiencies, must be accepted to have behaved sufficiently to develop his relationship with the child to a point where Ms B described him as "a loving and caring parent to [X]" (paragraph 42 of Ms B's report).

(ca) The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

Here the most obvious failure is that of the mother in giving [X] up at the age of four months. This matter has perhaps been dealt with sufficiently already in these Reasons but cannot be overlooked. Criticisms by the mother apparently made from time-to-time about the failure of the father and/or the grandmother to send sufficient funds to her in Bali in the first four months of [X]'s life in my view are of no moment. It is plain that there was a dispute about money between the parties during this period but its extent and the extent to which either party's position was, so to speak, justified is impossible to ascertain.

(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.

This of course, in the circumstances of this case, is in large part the area of greatest difficulty. [X] has lived with his grandmother since he was four months’ old. There is no doubt that he would think of her as his primary carer and in effect his mother. She is only 45 years old and thus not wholly outside the normal age of child-rearing in any event. It is clear that the grandmother is a devoted de facto parent. While Ms B was clear that in the ultimate [X] should live with his mother even if it necessitates a return to Bali (“my heart says he should go”) she was equally clear that December, if that is what it comes to, is too soon.
[X] would undoubtedly be deeply traumatised by removal from the only home he has ever remembered living in, the absence of not only his grandmother and father, the latter with whom he has a good relationship, but also of his grandfather and the extended family to whom I have earlier referred.
One can only wonder with horror at how [X] would respond at being taken onto an aircraft, in all probability frightened and distressed, and flying for four hours to a country of which he has no memory, with somebody with whom he has only a developing relationship. The effects would necessarily, as a matter of ordinary human experience, be traumatic in the extreme.
Similarly, however, the effects of total excision from his mother (which would be the net effect if she goes back to Bali and is not thereafter able to return to Australia) would be traumatic albeit not in the short term. [X] is not yet sufficiently bonded, nor will he be by December, for the absence of his mother to traumatise him. His mother has only recently re-emerged into his life and as at August when Ms B saw him with his mother, he was pleased to see her but not yet intimate. Assuming as I do that that relationship will become more grounded and solid by December, he would doubtless miss her if she departs. Given, however, that he will still be in the primary care of his grandmother throughout this period, his mother's absence will not be traumatic for [X] at this stage.
The difficulty with this aspect of the matter, however, is the sundering of the relationship between the mother and the child. To an extent

Ms B's recommendation reflects the natural and normal view - one might say, at the risk of over-generalisation, held in almost every society on earth - that the relationship between a child and his or her mother, particularly in the youngest years, is of critical significance. It is a relationship which receives force in the objects and principles of the Act, although I note that there is no particular primacy given to a mother's role in the legislation.
Nonetheless I have no difficulty in accepting that there would be damage to [X] in having his relationship with his mother substantially if not wholly reduced. So much seems to me to be self-evident. Also self-evident is the appalling distress that would be caused to the mother.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

It is quite clear that if the mother returns to Indonesia with [X] time with his father and extended paternal family will be very significantly affected if not expunged completely. The converse will apply in the event that the mother returns to Bali without [X]. If the mother stays in Australia then all these practical difficulties dissipate completely in my view.

(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.

There is nothing to suggest that the mother is not an adept-enough parent, albeit that she has had but little experience looking after [X]. No suggestion to that effect has been made in any serious way by the grandmother or father, albeit there have been assertions that [X] was left in the company of other family members in Bali. Given that [X] spends three days a week in childcare in Australia and appears to spend time with the father's extended family, any such criticisms of the mother must be approached with considerable reservation. There is nothing in the material that suggests to me that [X] being looked after by extended family in Bali would be against his best interests and in my view, the mother is plainly a competent carer.
Everyone agrees that the father is not a competent sole carer for the child albeit that he loves the child and has a good relationship with him.
The grandmother is plainly an excellent carer for [X] and is well-able to look after his emotional needs.
The reservation that one must have about the mother's capacity to look after the child and attend to his future needs arises out of her course of conduct in letting [X] go at the age of four months, and the possible fear that her desire to promote relationships which will, putting the matter bluntly, enable her to come to live in Australia permanently might give rise to some further abandonment of [X]. While concerns of this sort have occurred to me, in the ultimate I think that they are sufficiently speculative that they should be accorded no weight.

(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 the Court thinks are relevant.

Both [X]'s parents are immature and young. The volatile nature of the relationship between the parents is very much that of persons in adolescence who became parents before they were ready for it. Nonetheless, the mother is not in one sense nearly as immature as her years would suggest. She has, as I have already indicated, had a hard life and had to provide for herself from an early age. She impresses me as being street-smart and in that sense wise beyond her years, albeit still with immature lapses of judgment (such as letting [X] go from her).
The father is plainly attended by numerous difficulties. He is, at best, a recovering drug addict, with various psychiatric and personality difficulties and will always be deeply challenged.
Consideration needs also to be given under this sub-heading to the cross-cultural issues that [X] faces. He has not had the sort of cultural development he would have obtained in Bali (including the important haircutting ceremony that does not yet appear to have occurred). From the photographs taken of him, it will always be obvious to him that he is of mixed race. If he stays in Australia he will wonder about the nature of his Balinese heritage as he gets older and he will largely be excluded from participation in it. This will be the case even if his grandmother and father take him back routinely to Bali, as I would certainly order them to do in any event if he were to remain in Australia.
Conversely, however, if [X] returns to Indonesia he will be largely expunged from any day-to-day time with his Australian heritage. It would seem improbable that the mother would permit [X] to return to Australia given that there would always be the likelihood of overholding. The mother would be very ill-equipped to cope in the event that that was the case, given her lack of resources.

(h) (Not relevant).

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

This matter has been traversed sufficiently already under other grounds.

(j) (Not relevant)

(k) (Not relevant)

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

I will endeavour to draft orders that limit future litigation but I suspect that it may yet be necessary to consider the matter depending upon the march of events.

(m) Any other fact or circumstances that the Court thinks is relevant.

Here the critical difficulty is that the mother's visa may expire in December 2012 but may be extended for a further six months. The importance of this cannot be overstated given my earlier findings about the trauma that would be inflicted upon [X] in the event that he were to be removed from Australia and his current carer in December 2012. This difficulty stands at the heart of the practical problems that this case presents.

Conclusions

It is my normal practice to set out my conclusions at the beginning of the case since, as the judgment-writing courses urge, "The first page says it all". I have not been able to do this in this instance because the matter is so difficult. Others may see the matter more clearly than I, but in my opinion this case requires a balancing of very difficult countervailing considerations.
It appears to be common cause that [X] ought to be transitioned from the primary care of his grandmother to his mother. This is the position adopted not only by the mother but by the Independent Children's Lawyer and by Ms B. Even the grandmother herself said words to the effect that, "He's not my son" from which I would infer that while she loves him dearly and is quite prepared to look after him for the rest of his childhood, she nonetheless accepts the proposition that his mother should be his primary carer.
Accordingly, I would be minded to make orders to transition [X] into the primary care of his mother over a period of some six months or so until next April, this being the time period recommended by Ms B. In my opinion, a time period of that order seems eminently conformable with common sense. It is no small thing to move a child, as it were, from one mother to another.
The parties will no doubt have no difficulty in drawing up orders to give effect to this aspect of my conclusions.
The difficulty of course is what happens in the event that the mother has to leave Australia on what for all effects and purposes must be presumed to be a relatively final basis in December. The Independent Children's Lawyer, when pressed, says that even if this is the case the child should be made to go with his mother, although it was emphasised that this was a difficult matter and finely balanced.
Ms B, who supports the transitioning to the mother, nonetheless said that December was too soon and I am afraid that I agree.
What is in [X]'s best interests in this regard is that he remain with his primary carer. If the primary carer, as will be the case in December, is his grandmother then, in my view, it is not in his best interests to be removed from her and taken in the traumatic way I have described to Bali.
On the other hand, if the mother's visa extension is granted and transition is effected so that he is in the primary care of his mother and has a secure attachment with her, then despite all the various other difficulties, he should go with her to Bali.
It should be noted that a decision as to whether [X] should live in Bali with his mother is in some ways not one in which the arguments are by any means overwhelmingly strong one way or the other. [X] will have a loving household whether he lives with his mother in Bali or in Australia. He will gain in cultural ways whichever country he lives in. I am certainly not prepared to give primacy to a familiarity with either Balinese or Australian culture. There are benefits in both.
It is possible that life in Australia would offer some material benefits, for example perhaps in education and/or health care, but for the reasons I have given I think one must approach such issues with a measure of caution.
In the ultimate, if the mother has to return to Bali before she is his primary carer then I think it is in [X]'s best interests to remain with his primary carer, his grandmother, in Australia.
If I understand the matter correctly, it is anticipated by those representing the mother that the terms of this decision may impact in some way upon whether an extension of visa time is granted. To the extent that it is within my power to do so I would implore (and that is not too strong a word) those in the relevant authorities who may consider this matter to grant the mother the extension of time which apparently is possible. This little child has had many difficulties in his life already. It is in his best interests that he should transition to his mother's care and a failure to extend her visa will not only mean that this does not occur, but for the foreseeable future she is excised from his life.
I naturally hope, as does the mother, that she is granted an extension to her visa. Having seen Mr H I also would hope that her matrimonial plans in that regard are fulfilled. He impressed me as a thoroughly decent young man. Should this be the case then the intensity of the difficulties this case represents at the moment will in my view largely dissipate. I really do hope that the relevant migration authorities accede to this plea and that the matter can proceed in that light.
The parties will doubtless need to consider these Reasons for Judgment and I will hear from them further before making what in effect will necessarily be interim orders. That is the case because although transition to the mother's care has been something close to a datum between the parties in the event that the mother's visa is extended, in my view, the progress of that process needs to be monitored carefully. Its outcome, while perhaps probable, should not be taken for granted.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 13 November 2012