Sare and Rainey

[2020] FamCA 207

FAMILY COURT OF AUSTRALIA

SARE & RAINEY [2020] FamCA 207

FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks permission to relocate to Japan with the children – Where there is a risk the father will not abstain from drug use – Where there is a risk that should the children stay in Australia, the father will not engage with them – Where relocation would improve the financial and emotional circumstances of the mother and therefore benefit the children – Where a meaningful relationship between the father and the children can be maintained from Japan – Order permitting relocation – Order for sole parental responsibility in favour of the mother – Orders for the father to spend time with the children in Australia and Japan.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA and 65DAC
Evidence Act 1995 (Cth) s 140

Banks & Banks (2015) FLC 93-637
Malcolm & Monroe & Anor (2011) FLC 93-460
Maldera & Orbel (2014) FLC 93-602
Morgan & Miles (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1
WK v SR (1997) 22 Fam LR 592
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT: Ms Sare

RESPONDENT: Mr Rainey

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 502 of 2018

DATE DELIVERED: 2 April 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 11, 12 and 13 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITORS FOR THE APPLICANT: The Law Office

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITORS FOR THE RESPONDENT: HCM Legal

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Jacobs

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Lehmann Featherstone

Orders

Prior orders

1. All previous parenting orders be discharged.

Parental responsibility

1. The Mother have sole parental responsibility for the children, X born … 2013 and Y born … 2016 (the children).

2. That, in the exercise of her sole parental responsibility:

   (a)The Mother shall advise the Father in writing 28 days prior to any significant decision required to be made;

   (b)Thereafter, within 14 days, the father shall be permitted to advise the mother in writing of his views in relation to the matter under consideration;

   (c)The mother shall consider any views so expressed by the father;

   (d)The mother shall thereafter advise the father in writing of any significant decision made in the exercise of her sole parental responsibility within 7 days of making such decision.

Children’s living arrangements

1. The children live with the Mother.

2. The mother is hereby permitted to relocate the children to the environs of City B, Japan or within 50 kilometres thereof.

Children’s time with father

1. Until the mother relocates to Japan with the children, the father may spend time with the children as follows:

   (a)Each second Saturday for 2-4 hours supervised by G Service or such other person/organisation the parents may agree to in writing;

   (b)Such time shall occur at a venue agreed to by the parents in writing;

   (c)The cost of the visits to be paid for by the father.

2. Upon the mother relocating to Japan with the children, then the children are to spend time with the father as follows:

   (a)until such time as the child Y turns 5, and during all periods that the father is spending supervised time with the children, in Australia for 8 days in each calendar year, with the mother to nominate 16 days and the father to nominate 8 of those, with time to be supervised by either:

   (i)Ms F Rainey; or

   (ii)An appropriately accredited independent private supervisor.

   whomever is agreed between the parties prior to the commencement of time, and failing agreement, by an appropriately accredited independent private supervisor between 9:00am and 4:00pm, with any costs associated with the supervision to be shared equally between the parties;

   (b)Upon the child Y turning 5 years of age, and on the condition that time has progressed pursuant to these orders such that it is no longer supervised in Australia, for 1 week of the Summer term holiday period, which generally occurs in late July until late August and for 1 week in the Christmas school holiday period;

   (c)Upon the child Y turning 6 years of age, and on the condition that time has progressed pursuant to these orders such that it is no longer supervised in Australia, for 2 weeks of the Summer term school holiday period, which generally occurs in later July until later August and for 1 week in the Christmas school holiday period;

   (d)Upon the child Y turning 7 years of age and on the condition that time has progressed pursuant to these orders such that it is no longer supervised in Australia, for 18 days of the Summer term school holiday period, which generally occurs in later July until later August and for 1 week in the Christmas school holiday period;

   (e)Upon the child Y turning 12 years of age, and on the condition that time has progressed pursuant to these orders such that it is no longer supervised in Australia, for half of the Summer term school holiday period, which generally occurs in later July until later August and for 1 week in the Christmas school holiday period;

   (f)In the event that that time has progressed pursuant to these orders such that it is no longer supervised:

   (i)In each calendar year, for 3 periods of 3 consecutive nights in Japan during any school holiday period, with such periods not to commence or conclude more than 4 nights apart;

   (ii)Until the child Y turns 12 years of age, in each calendar year for 3 periods of 5 consecutive nights in Japan during any school holiday period, with such periods not to commence or conclude more than 4 nights apart; and

   (iii)Upon the child Y turning 12 years of age, in each calendar year for up to 10 consecutive nights in Japan.   

3. The time the children spend with the father in Australia during each Christmas holiday period, whether the same be supervised or not, shall include Christmas Day in 2021 and each alternate year thereafter.

4. The time that the children spend with the father in Australia shall occur on such dates and at such times as agreed between the parties in writing no less than 21 days prior to the commencement of the relevant school holiday period, and failing agreement, time shall commence as follows:

   (a)On the first Tuesday of the applicable term school holiday period;

   (b)On the first Monday of the relevant Christmas holiday period in 2021 and each alternate year thereafter; and

   (c)On the second Monday of the relevant Christmas holiday period in 2020 and each alternate year thereafter.

5. For the better implementation of order 9, the mother shall write to the father by way of email and nominate the relevant dates and the father is to respond within 7 days advising whether the same are suitable.

6. The father is to ensure that the children are never left unsupervised in the care of his partner Ms C.

7. The father shall give the mother at least 28 days written notice of his intention of travelling to Japan to spend time with the children. Changeovers shall take place in the lobby of the father’s hotel/accommodation unless otherwise agreed between the parents in writing.

8. The mother shall be responsible for arranging and facilitating the children travelling to Australia to spend time with their father in accordance with these orders and the father shall be solely responsible for his costs involved in travelling to Japan to spend time with the children.

9. The Father’s time with the children shall remain supervised until such time as the Father has produced to the mother 4 consecutive clean hair follicle tests (taken no more frequently than one every three months) during the 12 month period immediately preceding the proposed transition from supervised to unsupervised time.

10. The first hair follicle test of the father shall be undertaken within 7 days of the judgment being delivered in this matter.

11. The cost of all hair follicle testing shall be paid by the father.

12. The father shall provide to the mother the results of the hair follicle testing within 48 hours of receiving the results.

Children’s communication with father

1. The Father shall communicate via skype /facetime with the children each Wednesday between 6:00pm and 6:30pm, of the time-zone in which the children are, with the Father to instigate such call and the Mother to facilitate the same.

Other matters, restraints and authorities

1. The Mother be at liberty to register the children’s birth certificates in Japan whether or not the Father consents and whether or not the Father signs the necessary documents to effect such registration.

2. The Mother be at liberty to make application for or to renew an Australian passport for the children or either of them whether or not the Father consents and whether or not the Father signs the necessary documents for such passport to issue or be renewed, and this Order shall be deemed to be sufficient to enable the Minister to issue or renew such passport under s 11 (1) (b) (i) and/or (ii) of the Australian Passports Act 2005 in the absence of the Father’s assent or co-operation.

3. The Father shall, by himself, his servants and agents, be restrained by injunction from removing the children from the care of the Mother, or any person, place or institution (including day care, school, after school care, or vacation care) in whose care the Mother places the children other than those times when the children are permitted to be in the father’s care pursuant to the terms of these orders or by prior written agreement between the parents.

4. These Orders shall be and are hereby deemed to be an authority for the Father to obtain information and/or documentation (at his own expense) from any school, day-care facility or medical practitioner at which the children or either of them attend or have from time to time attended, whether the Mother provides consent or not.

5. The parents shall keep each other informed as to their contact telephone number and email address and advise of any change to same within 48 hours

6. The Independent Children’s Lawyer be discharged with the thanks of the court at the later of the expiration of the appeal period from these orders, or the determination of any appeal.

7. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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 Sare & Rainey 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 CAIRNS

FILE NUMBER: CSC502/2018

Ms Sare

Applicant

And

Mr Rainey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By her Amended Initiating Application filed 10 January 2020, Ms Sare (“the mother”) sought final parenting orders in relation to the parties’ two children, X, born … 2013, and hence presently six years of age, and Y, born … 2016, and hence presently three years of age (“the children”).

2. The orders which she sought included that she have sole parental responsibility for the children, who would live with her.  She also sought permission to relocate with the children from H Town to City B in Japan.  In the event that was permitted, she proposed a regime of orders under which the children would spend, initially, limited supervised time with Mr Rainey (“the father”) in Australia, but in the event that certain things thereafter occurred, then unsupervised time, both in Australia and Japan.  She also proposed a regime of communication between the father and the children.

3. For his part, by his Response filed 5 September 2018, the father opposed the mother having permission to relocate with the children to City B, and sought orders for equal shared parental responsibility, although his proposed orders conceded that the children should live primarily with the mother.  Further, like the mother, he also contemplated that, initially, his time with the children would be supervised, but again in the event that certain things occurred, then move to unsupervised time, culminating in alternate weekends and half school holidays.

4. The Independent Children's Lawyer substantially supported the position of the mother.

5. On 13 February 2020 the trial before me concluded, and I reserved my decision.  This is that decision and the reasons for it.

BACKGROUND

The father

1. The father was born on … 1983 and hence is presently 36 years of age.  He grew up in the H Town area, and after completing high school, initially worked in the fishing industry, but later obtained qualifications and ultimately became a tour guide.  It was at this stage of his life when, aged 20, he met the mother in 2004, and commenced a relationship with her.

2. At a time which is unclear on the evidence, but likely predating the parties’ relationship, the father commenced to smoke marijuana. 

The mother

1. The mother was born in Japan on … 1980, and accordingly is presently 40 years of age.  After completing her schooling in Japan, the mother qualified as a health care professional, in which occupation she was employed in a clinic in Japan.

2. In 2003, she and her sister Ms D, travelled to Australia on working holiday visas, intending to stay for 12 months and then return to Japan.  In November 2003, the mother travelled to H Town, and obtained work with a tour company, in which the father was also working.  Shortly afterwards, when she was aged about 24, the parties commenced their relationship.

The relationship

1. The parties commenced cohabitation in late 2004, initially living with the father’s parents for about 8 months.  During that time, the mother applied for a student visa, and undertook some studies.  It appears the purpose of those studies was to enable her Japanese qualifications as a health care professional to be recognised in Australia, but the cost of doing so ultimately proved prohibitive.  Hence she did not complete the course of study, and indeed remains presently unqualified as a health care professional in Australia. However she was able to obtain employment as a health care assistant.

2. On 15 July 2008 the mother was granted permanent residency in Australia.  At around that time, the father obtained an apprenticeship, but unfortunately his employer ceased operations, and in 2009 he returned to work as a tour guide.  In June 2009 the mother started working as a health care assistant in H Town.

3. In 2009 the parties purchased the former matrimonial home, and moved into it.

4. On 15 February 2010 the parties’ home was raided by police, who located some marijuana seeds, scales and a grinder in the bottom bedside drawer in the parties’ bedroom.  The father was not home at the time, and the mother denied any knowledge of the items.  Subsequently, on 17 February 2010, the father was interviewed by police, and according to their records “made full and open admissions to the located items.  [The father] stated he had quit.”

5. On 7 December 2010 the father was convicted of public nuisance, which apparently related to him fighting another man at 2.20 am in H Town.  In December 2012 the mother found out she was pregnant with X, who was born on … 2013.  The mother only ceased work two weeks prior to X’s birth, and returned one week afterwards.

6. Between 2010 and 2012 the father and mother hosted a succession of four, mature aged, homestay Japanese students.  Unbeknownst to the mother, the father had sexual relations with one of them.

7. In about 2012 the father commenced to use amphetamines on an occasional basis.

8. In 2014 the father completed his apprenticeship, and commenced employment as a tradesman. 

9. In July 2014, the parties were due to holiday in Japan.  Three days prior to their departure, the father confessed to the mother that he had an affair with one of the homestay students.  Although greatly upset, the mother nonetheless continued with the parties’ holiday, and according to her evidence, upon their return home, they tried to mend their relationship, and were successful in doing so for about 12 months.

10. At paragraph 67 of the mother’s trial affidavit filed 3 January 2020, she says as follows:

    67. In early 2015, I cannot recall exactly when, I noticed a change in the Father’s personality, appearance and behaviour. The Father became increasingly paranoid, and he was insistently accusing me of having an affair. His skin got paler -- sometimes he looked almost grey -- and his eyes often seemed glassy and sunken, and he often had very big pupils. I tried to speak to the Father about the changes that I saw in him but the conversations never went well as the Father would just yell at me and start calling me names like stupid, slut and prostitute.

    (As per the original)

11. In cross-examination, the father conceded that, at about that time, he did become obsessed in relation to his belief that the mother had been performing sexual acts upon other men during the course of their relationship.

12. There seems little doubt that the father’s change in behaviour, including his obsession with his belief about the mother’s conduct, was the result of his, by then, heavy amphetamine use.  I am reasonably confident that his then use was heavy, because in 2016, he told a drug counsellor that his amphetamine use “last year got out of control, was using up to 1 [point] most days, has cut down this year although amount and frequency have increased”.

13. Further, on 17 April 2015, the father tested positive to prohibited drugs whilst driving.  The mother now believes that the drug in question was crystal methamphetamine (“ice”), although the father told the mother that he had not been using ice, but selling it, and “only licking the content in the drug bags to check its contents”, which at the time, the mother believed, but no longer does.

14. On 23 December 2015, at about 9.30 pm, police attended the parties’ home to attend a domestic violence incident that had been reported to them. They observed the father yelling and pointing at the mother, who was pushed up against a car. After police intervened, the mother told them that the father had been accusing her of cheating on him, and that he had told her to leave.

15. The mother spent the night elsewhere, but the father continued to abuse her via text messages.

16. After she returned home the next day, the father intercepted the mother’s phone, and examined messages on it. In the course of doing so, he told her he would kill the person she had been (supposedly) “cheating with.” The mother then left the premises, and the father prevented her from returning.

17. On the basis of those facts, police sought an interim protection order on the mother’s behalf, which in due course issued. On 7 January 2016, a two year Domestic Violence Order (“DVO”) was made in the mother’s favour, albeit by consent, and without admissions.

18. However, notwithstanding the DVO, the father’s behaviour continued to be problematic. By then the parties’ relationship was in serious difficulty.

19. In April 2016 the father admitted to the mother that he was using ice, and that it was ice that was causing him to become aggressive.

20. On 6 May 2016 the father concedes that he hit a wall in the parties’ home with a closed fist.  The mother says that the father thereafter made a threat to her, by saying “I wish I could punch you in the face this hard”, although the father denies he said that. 

1. The paternal grandmother stayed with the parties between 28 May and 3 June 2016, to assist in the lead up to the birth of Y.  Prior to arriving, the mother spoke with her, and told her that the father was being abusive, and regularly using drugs.  The paternal grandmother’s evidence was “I had not seen any behaviour from [the father] to corroborate what [the mother] was saying.”  Further, during her stay with the parties she “did not observe the alleged behaviours in [the father] during this time.” Notwithstanding the mother’s request she not do so, nonetheless the paternal grandmother raised the mother’s concerns with the father, but “he denied drinking to excess or regularly using drugs.”  The paternal grandmother further says that she and her husband “were not aware of [the father] doing drugs in recent times and never saw signs that he was.  Neither have we seen him drink to excess or otherwise act inappropriately or strangely when in our presence.”

2. Further, in early June 2016, the mother says that the father attempted to suffocate her with a pillow over her face in bed.  The father admits that he threw a pillow, but denies that he attempted to suffocate the mother.

3. Y was born on … 2016.

4. On 17 June 2016 the father attended upon Alcohol Tobacco and Other Drugs Services (“ATODS”).  Records of that consultation were in evidence before me.  The father admitted to a four year history of amphetamine use, which had become out of control in 2015, and as at the time of his interview, he said he was using one point of methamphetamine, three or four days per week, and had last used on the previous day.  He further admitted to being a previous heavy cannabis user, having used up to three cones on two or three days per week, and had last used the previous week.  He denied having an extant intention to continue to use amphetamines, also somewhat contradictorily, he identified that he had a drug problem, and variously said he was, or at least thought that he may be, addicted.

5. The parties finally separated on 26 June 2016, when the father moved out of the parties’ home.

Post separation

1. It seems plain that, contrary to his 17 June 2016 statement of intentions to the ATODS drug counsellor, post-separation the father did continue to use methamphetamine.  I am confident of that, because the father told his general medical practitioner on 5 July 2016 that he “has been using Ice intermittently for five years, but recently using it more regularly in relation to relationship failure.”  Further it is said that he was “ambivalent about giving up the Ice/THC.”

2. In a later interview with the Family Report writer, the father reported that, post separation, his cannabis usage increased “to daily for approximately 12 months or more.”  That said, he also dishonestly reported to the Family Report writer that his methamphetamine use post 2013, was only “intermittent.”

3. Initially the parties appeared to cobble together some informal parenting arrangements, which saw the father attend the former matrimonial home, and consume meals there, in conjunction with spending time with the children.  However, perhaps predictably, this proved to be an unsuitable arrangement, with the father continuing to obsess in relation to the mother’s alleged infidelity, and accusing her in relation to it, and further, seeking to use the opportunity to engage in sexual relations with her.

4. On 30 September 2016, police sought to vary the terms of the DVO. The principal reason was the father’s continued accusations of sexual infidelity by the mother, including in front of X. The mother said in her application that the father was telling her he was entitled to enter the former matrimonial home any time he liked, which, coupled with her exhaustion at the father’s “persistence that I am having an affair or being a prostitute,” made her feel unsafe in her home.

5. A temporary variation restraining the father from coming within 50 metres of the former matrimonial home was made on 13 October 2016, (and a final variation on 9 March 2017).

6. In late 2016, the mother commenced to supervise the father’s time with the children away from the home. The mother says that when the father attended to spend time with the children on 26 February and 5 March 2017, he was under the influence of drugs.  That then led to the mother refusing to make the children available to the father, however behind the mother’s back, the father continued to see X by removing her from day care.  That led to the mother changing the day care of the children in November 2017.

7. In December 2017 the father commenced a relationship with his present partner, Ms C.  At the time she was facing serious charges of defrauding her grandfather to the extent of about $59,000.  In addition, she had failed to appear to answer those charges on a number of occasions, which resulted in more charges, and further, she was also on charges relating to shop lifting and stealing.  Also, on 17 October 2017 she had been charged with possession of a dangerous drug (seemingly MDMA), spoons, digital scales and a methamphetamine pipe.  This arose from the police executing a warrant at the house where she was staying, albeit the warrant related to stolen property. In her evidence before me, Ms C says that the admissions she then made to police, namely, that the drugs and utensils were hers, and that she had used the pipe to smoke “meth” sometime in the previous week, were all lies designed to save the true culprit from the consequences of possessing those items.

8. For reasons which are not altogether clear on the evidence, but likely relate to her serial non-appearance and breach of bail, on 28 February 2018, Ms C was taken into custody.  Whilst in custody, on 1 June 2018 she was convicted of the fraud charges, and sentenced to two years and nine months of imprisonment, which, taking into account the time that she had already spent in jail after 28 February, saw her eligible for release on parole on 28 November 2018.  Further, on 13 June 2018, she was convicted in relation to the several drug possession charges, and charges of failing to appear in breach of bail, and although a conviction was recorded, she was not further punished.

9. On 29 June 2018 the mother commenced these proceedings, seeking, amongst other things, permission to relocate with the children to Japan.

10. On 19 August 2018 the father was charged with driving under the influence of a drug, and admitted to police that he had recently used drugs.  The drug tests revealed that he was positive to both methamphetamine and cannabis. As a consequence, he lost his driver’s licence.

11. On 30 October 2018 a Child Dispute Conference was conducted.  The father was interviewed, particularly in relation to his drug history.  It is plain that much of what he then told the family consultant was unreliable, and some quite untruthful.  Nonetheless the Family Report writer (as the counsellor later proved to be) recorded that the parties agreed that the children could spend supervised time with the father, who would be obliged to undergo hair follicle testing.  It was further agreed that the father could have phone or electronic communication with the children twice weekly. Sadly, neither of those latter things thereafter occurred, until very recently.

12. On 18 December 2018 the father was charged with unlicensed driving. 

13. On 3 February 2019 police executed a search warrant at the father’s home.  During that search, they located three lots of cannabis, a bong, digital scales and a flick knife.  They also found a dangerous drug, namely Diazepam.  The father admitted that all of that material was his.  He was charged with the relevant offences.

14. Subsequently, albeit on a date that is not altogether clear, Family Report interviews were conducted, which led to the Family Report dated 25 February 2019.

15. At [39] to [40] of that report, there appears as follows:

    39. [The father] disclosed that his drug and alcohol history consists of onset of cannabis in mid-adolescence, with daily use until 2009. In 2010, cannabis usage decreased, however, in 2011 increased but not to its former levels, with frequency being every 2-3 days on average. In 2012, a $50 bag of cannabis would last him a week on average, with this reducing to negligible amounts when [the mother] was pregnant with [the child]. Post separation in 2016 consumption increased to daily for approximately 12 months. His last consumption of cannabis was in September and late December 2018. In addition to his cannabis and methamphetamine use, in his youth he had recreational and episodic use of LSD and Ecstasy.

    40. At interview, [the father] disclosed occasional methamphetamine use in 2011-2013, with intermittent use until August 2018. He alleged being drug-free since then and is willing to have hair follicle testing. He highlighted that a September 2018 supervised drug test was negative for illicit substances tested for.

    (As per the original)

16. Further at [42] there appears as follows:

    42. With regard to his criminal history [the father] disclosed a drunk and disorderly conviction in his early 20s. Resultant from the 2-year DVO he has no breaches. His driver’s licence has been suspended on 2-3 occasions, all for demerit points and none for drug driving. Presently, he has his full licence.

    (As per the original)

17. Plainly there were many untruths, both by commission and omission, in what the father told the Family Report writer.  To emphasise, he was then on charges of possession of marijuana arising from the execution of the search warrant that very month.  He was also then disqualified from driving, arising out of continuing to drive, notwithstanding his conviction and disqualification for drug driving, as recently as 19 August 2018.

18. On 7 December 2019, the father underwent a hair follicle test for drugs.  It tested negative.  However on his own admission, subsequently in December 2019, he smoked perhaps as much as half a joint of marijuana at a party.  He denies that he has otherwise consumed drugs.

19. On 25 January 2020 the father spent supervised time with children, which was the first occasion he had spent time with the children since November 2017 (leaving aside a chance encounter with X in August 2018 at a party).  Although Y did not recognise the father, he warmed to him, and it appears as though the contact was successful with both children.  Further contact occurred on 9 February 2020, which again was successful.

Current situation

1. As at the time of trial, the mother had not re-partnered, and lives in a unit with the children.  She continues to work part time as a health care assistant.  X is in her first year of school, and is apparently proceeding well.  When the mother is working, Y is in day care.  The cost of that day care restricts the extent to which the mother can work.

2. For his part, the father remains in a relationship with Ms C, and resides with her in the parties’ former home, which he now rents.  He remains employed as a tradesman.  Ms C is not presently in employment, but is keen to obtain some qualifications to enable her to do so.  Ms C shares the care of her eight year old son, Z, who lives with her and the father for a little less than half of the time.

3. The father denies any current use of drugs.  Ms C denies ever having used illicit drugs in her adult life.

THE ISSUES

1. At the Trial Management hearing conducted on 28 August 2019, the following were identified as the issues the resolution of which will likely inform the outcome of this litigation:

   1.What is the nature of the relationship between each parent and the children.

   2.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   3.What risk (including family violence and/or drug use), if any, does each parent and their household pose to the children and what, if any, means are available to mitigate such risk.

   4.Is it reasonably practicable for the mother to remain living in H Town, and if so, what effect would it have upon:

   (a)Her emotional and financial circumstances; and

   (b)Her parenting capacity.

   5.What benefits would relocation to Japan have for the mother, particularly in relation to:

   (a)Her financial circumstances;

   (b)Her family support; and

   (c)Her parenting capacity. 

   6.Is it reasonably practicable for the father to relocate to the Japan, and if so, what effect would doing so have upon:

   (a)His emotional and financial circumstances; and

   (b)His parenting capacity.

   7.If the mother and children relocated to Japan, but the father did not, would the mother facilitate a meaningful relationship between the father and children.

   8.Is it reasonably practicable for the father to spend time with the children in Japan and/or Australia.

   9.What is the likely effect upon the children if the mother relocates to the Japan but the father and children do not.

   10.If the mother relocates to the Japan but the father and children do not, would the father facilitate a meaningful relationship between the mother and the children.

   11.If the children are ordered to remain living in H Town, and the mother also remains, what impact would the parties’ proposed orders have upon the mother and the children.

2. I should record that the parties are agreed that subsequently, issues 6, 9 and 10 have evaporated in consequence of the way in which the parties conducted their cases.

3. Once I have addressed the relevant statutory provisions and legal principles, but in advance of deliberating the relevant considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”), I will address those issues, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Act contains the relevant statutory provisions dealing with children. Section 60B of the Act specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) 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.

   (2) The principles underlying these objects are that (except when 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 their parents, regardless of whether their 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 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).

2. Section 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. It is the case that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) of the Act to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that 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 either 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 family violence. Further, s 61DA subsection (4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC of the Act, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3), such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally, s 60CA of the Act provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion (Banks & Banks (2015) FLC 93-637at [49]).[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Maldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and s 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B subsection (1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Act in the following terms:

   abuse, in relation to a child, means:

   (a) an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d) serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of”.

1. “Family violence” is defined in s 4AB subsection (1) of the Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful.

2. Section 4AB subsection (3) provides that for the purposes of the Act, “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB subsection (2) and subsection (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   (1)      In a civil proceeding, the court must find the case of a party       proved if it is satisfied that the case has been proved on the     balance of probabilities.

   (2)      Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into   account--

   (a)the nature of the cause of action or defence;

   (b)the nature of the subject-matter of the proceedings; and

   (c)the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

   (Footnotes omitted)

3. Therefore consistent with s 140 subsection (2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See WK v SR (1997) 22 Fam LR 592 at p.599; Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 at [15].

Relocation

1. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the relatively recent decision of Malcolm & Monroe & Anor (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at [79]– [80], where her Honour said as follows:

   79.In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   79. It follows from my exposition of the legislation, that earlier core principles:

   -that the child’s best interests remain the paramount but not sole consideration;

   -that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.

   80. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   - if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

2. More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court said :

   47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) FLC 93-112 at [92]]:

   …The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

   48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

   (Footnotes omitted)

ISSUE 1 – NATURE OF CHILDREN’S RELATIONSHIP WITH PARENTS

1. Ultimately this issue did not prove to be particularly contentious.  The unchallenged evidence of Mr E, the Family Report writer, was that, as at February 2019, when he last observed the mother engaging with the children, they had a positive relationship, and the children’s primary attachment was with her.  He was of the view that the children derived nurture, comfort and support from that relationship.  He presumed, absent any information to the contrary, that remained the case at the time of his evidence.  I accept that is so.

2. In relation to the father, he was of the view that the children did not have any form of primary attachment with him, and noted that, from the two recent times when the children had spent supervised time with the father, it appeared as though X had warmed quickly to him, probably because she still had some residual memory of him, whereas Y had little experiential base, and his reaction to the father was likely the product of children naturally gravitating towards an emotionally available adult.  Again I accept that evidence.  It follows that the father’s relationship is, in effect, at a stage where it is commencing to re-develop with X, and starting to develop with Y.

ISSUE 2 – BENEFIT OF MEANINGFUL RELATIONSHIP WITH PARENTS

1. Mr E’s unchallenged evidence was that the children would benefit from a meaningful relationship with the mother, and I accept that is the case.

2. Dealing with the father, he was a little more cautious.  His unchallenged evidence was that the extent to which the children would derive benefit from the father’s relationship with them, would depend upon his stability, him maintaining a drug free status, him not prioritising his own needs over the children’s, and him providing the children with routine, availability and predictability.  He further thought that a parent who only intermittently engages in a child’s life can present some risk of harm to the child, because of the child’s needs for predictability.  However, provided that the father met all of the conditions which he recommended, he thought that the children would benefit from a relationship with the father.  He was not challenged in that respect.

ISSUE 3 – RISK POSED BY PARENTS

1. No party asserted that the mother posed a risk of harm of any kind to the children.  I accept that is the case.  Rather the focus is upon the father.

2. A simple review of the father’s criminal record and traffic history amply demonstrates the nature of the risk which he poses.  Further, his statements to ATODS in 2016 highlights his long history of the abuse of illicit drugs.  There is also an anti-social aspect of the father’s behaviour, in that he admits that he has engaged in drug dealing, presumably in order to fund his own drug use, and appears to have, in association with that activity, had unlawful weapons in his possession.

3. The father also has, in addition to use of methamphetamines, a long history of use of marijuana.

4. Even if the father is presently abstinent from the abuse of illegal drugs (which, given his long history of dishonestly presenting his current or recent use, must be seriously doubted) there is inevitably the risk of relapse.  Mr E’s evidence was that the father could be vulnerable at times of stress, and may resort to the use of drugs as a coping mechanism during such periods.  Given that stress is what the father has reported to others was the motivation, on occasion, for his drug use, including his heavy use of methamphetamine, I accept that is a very real risk.

5. That risk to the children is highlighted by the fact that, on two occasions now, the father has been detected driving with drugs in his system.  The fact that he has been detected twice does not, of course, mean that he has only done so twice; I am deeply suspicious that he will have done so on many more occasions, but has not been detected.

6. The Family Report writer’s evidence was that the risk to the children posed by a parent who is under the influence of drugs, is that they are not properly attuned to their children’s needs.  The younger the child, the higher the risk.  He said that over time, if children learn that the caregiver is not emotionally or otherwise available to them when under the influence of drugs, or when coming down off them, children will learn, in effect, maladaptive coping strategies.  He was particularly troubled about the times when the father would be coming down from being under the influence of drugs, in that during such times, he is likely to be irrational and paranoid, and at such times, he thought that the risk to a child in the father’s care rose exponentially.  He said the risk was both physical and emotional.

7. As to the magnitude of the risk, he said that heavy drug users can have irrational and psychotic paranoid thoughts, which can, on occasion, manifest themselves in physical activity.

8. In this regard it is unfortunately informative to look at the father’s long history of deceit and minimisation in relation to his drug use.  Moreover, it is noteworthy that the father has a habit of attempting to appear genuine, by volunteering incomplete or quite misleading information, under the pretext that he knows that it will be unhelpful to his cause, so as to encourage a belief that he is then being completely honest.  He did so to Mr E.  It is entirely possible that he did so before me as well, insofar as he admitted to using marijuana in December 2019.

9. The father’s history of untruthfulness to the Family Report writer, amongst others, means that I necessarily must have very great caution in accepting anything he says in relation to his drug use.  I am very circumspect about acting upon his assertion that he has only recently used drugs in December 2019.  In any event, even if it is that he has used drugs only on that one occasion post his clear drug test, it was only about two months prior to the trial.

10. Further, the father has not, other than on the one occasion, consulted ATODS, and seemingly not engaged with any other external supports to try and assist him wean himself off his drug habit, which as Mr E said, is a very difficult thing to do without assistance.  Moreover, the father does not appear to have identified, or at least not articulated, any alternative strategies which he might use instead of illicit drug use, at times of stress or hardship.

11. Given the father’s extensive history of drug use, including heavy use of both marijuana and methamphetamine, his failure to engage in any meaningful way with external services, and his extensive history of untruthfulness in relation to his drug use, I regret to say that I have formed the view that his risk of relapse is high.

12. Further, despite Mr E indicating that the father should re-engage with ATODS, undergo a psychiatric assessment, and engage with mental health counselling, those suggestions were not embraced by the father in his proposed orders.  All of this suggests to me that the risk of relapse remains high, in that the father does not intend to proactively undertake any of the mitigatory measures suggested by the Family Report writer.

13. If the father were to relapse, and to be under the influence of marijuana or methamphetamine whilst the children are in his care, the risks to them are considerable.  Leaving aside the risk he may drive with the children whilst under the influence of the drugs (and his traffic history is truly appalling) then there are still the risks that he would be careless in supervising them, be emotionally unavailable to them, be irritable, paranoid, or even delusional.  I accept that there are real risks of both physical and emotional harm to the children if they were in the father’s care whilst he was under the influence of drugs.

14. As to how that risk could be managed, Mr E’s evidence was that the father’s time with the children should remain supervised, unless and until he is able to demonstrate abstinence from illicit drug use for at least 12 months.  He thought that 12 months was a significant and appropriate length of time, in that a year would give a person exposure to a range of situations and stressors, which would test their capacity to remain abstinent.  Ultimately, both parties appeared to accept that evidence, in that both proposed a regime of, initially supervised time, in conjunction with hair follicle testing.  However the mother further argued that the risk of relapse supported her case in relation to relocation, in that there was a very live prospect that the father’s time with the children would never move beyond supervision, if he were unable to prove abstinent for 12 months.

15. I accept that is the case, and will return to consider this further when assessing relocation.

ISSUE 4 – REASONABLE PRACTICABILITY OF MOTHER REMAINING IN H TOWN

1. The mother has been residing in Australia since 2003.  Virtually all of that time she has been living in H Town.  Whilst post separation, she did seek psychological counselling, on any view she has been able to emotionally cope with living in H Town, rather than Japan.  She is in employment, albeit that the costs of child care for Y presently preclude full time employment.  That likely will change when Y commences school, although whether full time employment would then be possible, was not explored at trial.

2. Whilst the mother has no family in H Town, other than those who visit from time, she does regularly communicate electronically with her family back in Japan.  Further, she has friends and a social circle in H Town, and with X’s commencement of school, has started to interact with other parents. 

3. Therefore the mother is able to emotionally and socially survive, and with the assistance of family sending her money from time to time, financially survive, in H Town.

4. Further, on any view, the mother is an excellent parent.  Both children are apparently thriving.  There is no real suggestion that her parenting capacity in H Town is adversely affected by her living there.

5. Mr E was of the view that, if the mother was not permitted to relocate, she would be devastated, but predicted that she would cope, and noted that because in the past she has seen a psychologist, it demonstrated that she was self-aware in relation to her own mental health.  I am satisfied that remaining living in H Town would have a short term emotional impact upon the mother, but that she would likely recover.

6. Therefore I am persuaded that it is reasonably practicable for the mother to remain living in H Town, and doing so would have minimal long term effect upon her parenting capacity.

ISSUE 5 – BENEFITS OF RELOCATION TO JAPAN FOR THE MOTHER

1. Ultimately this issue did not prove to be controversial.  The mother’s evidence that she would be able to obtain rent-free accommodation from her family there, was not challenged, her and her sister Ms D’s assertions that the latter would move in with the mother, and assist both in relation to household expenses and family support, were all uncontentious, and her parents’ evidence that they would be available, from time to time, to travel the 30 minutes from where they live, to where the mother would be living, was not queried.  Moreover, the mother’s evidence, which was supported by the evidence of her family members, to the effect that family is a particularly important concept in Japan, was not in any way challenged.

2. Further, in Japan, the mother would be able to resume employment as a health care professional, rather than a health care assistant, and would be able to work full time, given the assistance of her sister and her parents.

3. I am satisfied that the improved financial circumstances, and the ready access to willing family support, is likely to significantly improve the mother’s perception of happiness and security.  The fact that she is also back in Japan, is likely to augment those perceptions.  Whilst that may not necessarily effect an improvement in her parenting capacity per se – given that it is already at an extraordinarily high level – as Mr E said, a happier, less stressed parent, is definitely better for a child.  I am therefore satisfied that the improved financial and emotional circumstances of the mother is likely to have some, albeit perhaps not necessarily great, benefit to the parties’ children.

ISSUE 7 – WOULD MOTHER FACILITATE A MEANINGFUL RELATIONSHIP BETWEEN FATHER AND CHILDREN FROM JAPAN

1. Other than her prudent insistence upon supervision of the father’s time with the children, given her concerns in relation to his drug use, there is no suggestion that the mother has failed to properly facilitate their relationship between the father.  She has not been resistant to him spending supervised time with them, and the fact that he has not done so until recently, is uncontentiously his choice, and not the result of actions of the mother.  Further, the children’s ready engagement with the father in the two most recent contact visits is suggestive that, far from the mother painting the father in a bad light, the children have not been given negative information in relation to him.

2. The mother has deposed to her desire to facilitate a relationship between the father and children from Japan, and she was not challenged in relation to that.

3. Mr E’s evidence was that he was firmly of the view that the mother would facilitate a relationship between the children and the father, and indeed the paternal family more generally, from Japan.  I accept that evidence, and would reach that conclusion independently on the other material before me in any event.

ISSUE 8 – REASONABLE PRACTICABILITY FOR FATHER TO SPEND TIME WITH CHILDREN IN JAPAN AND/OR AUSTRALIA

1. The father did not raise any case that it would not be reasonably practicable for him to spend time with the children both in Japan or Australia, in the event that relocation were permitted.  Indeed, in his alternative orders which he sought in the event that relocation were permitted, he contemplated extensive periods of time being spent with the children in Japan, in addition to the time which he sought in Australia.  The issue of reasonable practicability therefore, in reality, fell away.

2. I am satisfied that it is reasonably practicable for the father to spend time as both he and the mother proposed, in the event that relocation were permitted.

ISSUE 11 – IMPACT OF PARTIES’ PROPOSALS IF RELOCATION NOT PERMITTED

1. I have already adverted to Mr E’s evidence that, if the mother were not permitted to relocate, she would be devastated.  He emphasised that she has consistently indicated a desire to return to her home in City B.  He said that she would likely find it very difficult to cope, but ultimately thought that she would likely be able to do so.

2. As to the children, his evidence, which again was not challenged, was that it would depend on how the outcome was presented.  If they had been moulded to think that relocation to Japan was the only viable outcome, then it might be difficult for them to initially cope, but even in that event he thought that, over time, they would forge a “new reality.”  I accept that evidence.  I am therefore satisfied that it is likely that any negative impact on the children of them remaining in H Town, would be transitory, but whilst more significant for the mother, ultimately she would be able to cope.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have addressed both primary considerations, and a number of the additional considerations, in traversing the issues above.  However by reference to the additional considerations, I make the following observations.

2. Both children are too young to express any view deserving of weight.

3. Prior to separation, and perhaps in the immediate aftermath, X had a good relationship with the paternal grandparents, but it appears as though that has likely diminished over time.  It seems as though Y has no real relationship with the father at present.  That is to be regretted.

4. A significant additional consideration deserving of weight in this matter, is the father’s failure to take opportunities to participate in decision making in relation to the children, and to spend time and communicate with them.  As but as an example, the father did not seek to have any input in relation to the choice of school for X this year.  Notwithstanding the parties’ agreement to effect a communication regime between the father and the children, he never sought to implement it.  Further, notwithstanding that the parties had agreed that the father may have supervised time with the children, he seems to have been too proud to do so, as he thought that supervision was unjustified.

5. The reason why this is a significant issue is because it raises the very likely prospect that he will continue to act in that way, and that his recent engagement with the children was more litigation related, than genuine.  Whilst I do not so conclude, the reality is that is nonetheless a live prospect.  The fact that the father was prepared to be absent from the children’s lives, and not seek to engage with them in any way whatsoever, for over two years, cannot be ignored in this case, and is deserving of real weight.

6. The father is presently paying child support in relation to the children, and it seems that there are no arrears.

7. Inevitably, if the mother relocates, there will be practical difficulty and expense in the children spending time with the father, although not in communicating with him.  That may substantially affect their right to maintain personal relations and direct contact with both parents, although the absence of practical difficulty and expense over the last two plus years has not, in fact, seen them maintain personal relations and direct contact with the father, because he has chosen not to.

8. There has been family violence, even on the father’s own admission.  Further, I am satisfied that many of the text messages in evidence sent by the father at about the time of separation, dealing with his fixation on the mother’s alleged historic infidelity, are of themselves a species of family violence, in that they are threatening, and seek to coerce and control.

9. Family violence orders have applied between these parties.  The mother has been the protected party.  Those orders were initially made during the course of the relationship, and I am satisfied that the inference I should draw is that the father was then acting in a way which either comprised, or carried a live threat of, family violence.  I am satisfied that there is, at least historically, evidence of the father acting in a controlling way towards the mother.

10. Plainly it would be preferable to make orders which finally conclude the litigation between the parties.

11. The mother is a Japanese citizen, and for more than half her life has lived there.  Her family is all there.  Unsurprisingly, she wishes to return to the place where her family is, notwithstanding that she has been in Australia for over 16 years.  She has a right to live where she chooses, subject to relevant domestic law.  Any curtailment of that right, if it is contrary to the children’s best interests, must be balanced against the benefits that might flow to the children by such curtailment.  Here the mother correctly identifies that there is a very real risk that the father will either continue as he did for the last two years, and not engage with the children, or will not be able to prove abstinence from drugs for 12 months, such that his time with the children would remain infrequent and supervised.  The benefits to the children of a permanent supervised regime are doubtful.

PARENTAL RESPONSIBILITY

1. As I observed to the parties during the course of the trial, oddly in this case, parental responsibility, which under the Act logically falls to be determined first, is not divorced from the issue of relocation. Particularly, in the event that relocation were permitted, the benefits of having joint decision making between the parties in relation to the children in Japan, where the father is unlikely to know much of the relevant information pertinent to decision making, would be dubious.

2. Nonetheless, during the course of the hearing, and with the assistance of the parties, I identified the following as the points favouring equal shared parental responsibility, or being contrary to sole parental responsibility to the mother:

   (a)The father has substantial life experience, which may be of benefit in decision making in relation to the children, and further, he represents the best means of children experiencing their Australian heritage; and

   (b)The mother may use sole parental responsibility to adversely impact the children’s relationship with the father (although there is no history of her doing so to date).

3. On the other hand the following were the points against equal shared parental responsibility, or in favour of sole parental responsibility:

   (a)There is no recent history of equal shared parental responsibility, and hence it is unclear if it could work in reality;

   (b)The father has little knowledge of the children’s current life and circumstances;

   (c)The historic family violence might still effect a power imbalance between the parties; and

   (d)The father’s criminal history might suggest a history of poor choices, and therefore brings into question the actual value of his input into decision making in relation to the children.

4. The presumption of equal shared parental responsibility does not apply, as the father admits to family violence.  Therefore the question for my determination is what order in relation to decision making is in the best interests of the children.  Weighing the above factors in the balance, tells strongly in favour of an order for sole parental responsibility in favour of the mother, save that there should be an obligation on her part to inform the father of decisions to be made, to seek and consider his input in relation to them, and to advise him of the decision which she makes in due course.  Subject to that proviso, there will be an order for sole parental responsibility in favour of the mother.

WITH WHOM SHOULD CHILDREN LIVE

1. The father does not dispute that the children should live with the mother, whether it be in Australia or Japan.  There will therefore be an order to that effect.

FATHER’S TIME WITH CHILDREN

1. The father does not propose, on any scenario, that there be orders for equal time, or orders which would constitute substantial and significant time.  Therefore I am absolved from considering either such regime.  Rather it is the scope of the somewhat limited time which the father proposes, and indeed the mother proposes, which is the focus of this consideration.

2. As to that, obviously the mother’s relocation looms large.

3. With the assistance of the parties, during the course of the trial I identified the following points as being in favour of relocation of the mother and the children to Japan:

   (a)Relocation would likely improve the mother’s financial circumstances;

   (b)Relocation would likely provide mother with family support;

   (c)Relocation may improve the mother’s parenting capacity (although it is already high);

   (d)Relocation will provide the children with an experience of Japan and their Japanese heritage;

   (e)Ironically, the mother’s proposals for the children spending time with the father, if she relocates would, if availed of by him, see them spend more time with him, than they have in the last two years;

   (f)The mother has a demonstrated history of promoting the children’s relationship with the father;

   (g)The father’s relationship with both children is largely historical, and in relation to Y, in reality, is probably only commencing;

   (h)Relocation might help protect the children from exposure to any further criminal activity by the father;

   (i)Relocation may give the children better educational opportunities than are available in H Town;

   (j)Even if relocation were not permitted, there is no guarantee the father would continue to re-engage with the children, or given the risk of him relapsing into drug use, succeed in obtaining the necessary negative drug tests, which would see the mother obliged to live against her will in Australia, with effectively no corresponding benefit to the children;

   (k)Relocation protects the mother from further family violence from father and therefore an enhanced parenting capacity; and

   (l)Relocation would minimise the children’s exposure to such risks posed by Ms C.

4. On the other hand, I identified that the following matters weigh against the mother being permitted to relocate with the children to Japan:

   (a)Relocation would reduce the opportunity for the children to spend time with the father, from that which they would have if living in Australia, and hence obtain benefit from a relationship with him (although they have spent little time with him here in the last two years);

   (b)The father may not be able to afford travel to Japan to avail himself of any orders permitting him to spend time with the children there;

   (c)Relocation would preclude the prospect of the children ever spending either equal time, or substantive and significant time, with the father; and

   (d)Relocation would substantially curtail the opportunity for the father to be involved in many aspects of the children’s lives.

5. Weighing those matters in the balance tells, at least to my mind, strongly in favour of an order permitting the mother to relocate with the children to Japan.  I place considerable weight upon the father’s risk of relapse (assuming that he is presently abstinent in any event) and the risk that he may again not engage with the children, as any orders might permit him to.  There is therefore a very real risk that the mother would, in effect, be forced to remain in a country where she does not wish to live, with no commensurate benefit being derived by the children, in the form of a meaningful relationship with their father.

6. In any event, I am satisfied that a meaningful relationship between the father and the children can be maintained from Japan, with the assistance of regular communication by Skype or similar means.

7. The father’s criticism of the relatively sparse amounts of time which he will get to spend under either parties’ proposals with the children, must be weighed against the fact that he himself has chosen to spend less time face-to-face with the children in the last two years, than those proposals would afford him.

8. I am comfortably satisfied that an order permitting relocation is in the best interests of the children, and will make it.

9. That then brings into focus the parties’ differing proposals in relation to the amount of time which the father should spend with the children both in Australia and in Japan.  Also live is the question of who should contribute to the costs of travel.

10. Ultimately I am satisfied that the orders proposed by the mother (and broadly supported by the Independent Children's Lawyer) are more in line with the children’s best interests.  Particularly:

    ·The mother has very limited holiday leave in Japan, and the offer which she makes to, in effect, deploy most of that in facilitating the children’s relationship with the father by accompanying them, at least before they can fly independently, to Australia, appears generous;

    ·The father should be able to, at his expense, spend some additional time with the children in Japan; and

    ·Overnight time should not commence until Y is able to withstand it, being (probably) when five years old.

11. However:

    ·I accept that there should be a regime under which the father can spend supervised time with the children prior to relocation, as the father and Independent Children's Lawyer propose;

    ·I do not accept that, once he has had negative results to four compulsory, consecutive, hair follicle tests, there should be any further period when he can be required to submit to further testing, as this did not align with Mr E’s evidence;

    ·The H Town Contact Centre is not an appropriate supervisor under the orders, given their strictly limited times available to undertake supervision; and

    ·To the extent the father continued to press his mother as a supervisor, she is not sufficiently alert to the risks which the father poses, or independent.

FATHER’S COMMUNICATION WITH CHILDREN

1. I am satisfied that the orders proposed by the mother in relation to communication are in the children’s best interests, and will make them.

OTHER ORDERS

1. The only controversial order sought by the mother beyond those already addressed, was an injunction restraining the father from permitting his partner to be within 100 metres of the children (although this appears to have perhaps been abandoned in the ultimate iteration of the mother’s proposed orders). 

2. In her evidence, Ms C admitted to her very troubling behaviour up until the end of 2017, after which she was incarcerated for much of 2018.  That said, she appears to have kept herself free of involvement with the law in 2019, and thus far, in 2020.

3. Moreover, she does have a history of poor mental health, to the point where she was voluntarily placed in a mental health institution for almost three consecutive months during 2010 and 2011.

4. However against that, she has the care of her own child for approximately 50 per cent of the time, and there is no suggestion of departmental involvement in relation to him, or indeed, in relation to Ms C at all.  Therefore to suggest that she poses a risk of harm to the children, that can only be mitigated by requiring her to remain at least 100 metres away from them, borders on the ridiculous.

5. On the other hand, the father concedes that the children should not be left in her sole care whilst notionally spending time with him, and I am satisfied that is an adequate means of mitigating such risk (which I assess as very slight) as she may pose to the children.  There will therefore be an order in those terms. 

6. Otherwise there will be orders as contended for by the mother (and Independent Children's Lawyer).

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 April 2020.

Associate:

Date: 2 April 2020