Secco and Reid

[2017] FamCA 189

FAMILY COURT OF AUSTRALIA

SECCO & REID [2017] FamCA 189

FAMILY LAW – CHILDREN - Return to Australia

Family Law Act 1977 – sections 60B and 60CC

APPLICANT: Ms Secco

RESPONDENT: Mr Reid

FILE NUMBER: CAC 1283 of 2008

DATE DELIVERED: 24 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Armstrong Legal

SOLICITOR FOR THE RESPONDENT: Evans Family Lawyers

Orders

1. The mother is to cause X, born … 2005 (the child), to be returned to Sydney, Australia prior to 26 April 2017.

2. Orders 4-14 of the Consent Orders of 16 December 2009 as suspended by Judge Henderson on 13 December 2013 are reinstated from the return of the child to Australia or 26 April 2017, whichever is the earlier.

3. Until the child is returned to Australia or 26 April 2017, whichever is earlier:

   (a)       The mother shall have sole parental responsibility for the child;

   (b)The mother shall inform the father of all medical treatments performed upon the child;

   (c)The mother is permitted to retain the child outside the Commonwealth of Australia;

   (d)The mother shall inform the father seven days prior to the removal of the child from Country B of the fact of that removal and as to each other country he will travel to; and

   (e)The father may communicate with the child by telephone, Skype, email and written communication at any reasonable time.

4. On the child’s return to Australia the mother may communicate with him by telephone, Skype, email and written communication at any reasonable time.

5. The matter is otherwise adjourned for directions on 21 August 2017 at 10am.

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 Secco & Reid 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 CANBERRA

FILE NUMBER: CAC 1283 of 2008

Ms Secco

Applicant

And

Mr Reid

Respondent

REASONS FOR JUDGMENT

1. The proceedings involve the child who is almost 12 years old.  He is the son of Ms Secco and Mr Reid.  The child lives with his mother and with his half-sister, Y, in City A, Country B and has done so since the start of 2014.  He moved there in accordance with orders that were made in December 2013 that also provided for him to spend holiday time with his father for two lots of two weeks and one lot of four weeks each year.  The orders were made in contemplation of a public service posting which was a posting then of three years which was due then to end in February 2017, at which point the child was to return to Australia and to resume the previous arrangement, which is a 9/5 arrangement where he lives primarily with his mother but spends five nights a fortnight with his father.

2. The mother sought at some point an extension of her posting in City A.  She did so in order to allow her daughter, Y, to finish high school in City A.  Y is due to finish high school in the middle of 2017 and then in September 2017 plans to commence university in the United Kingdom (UK).  The extension would also allow the child to finish year 6 in City A.  The mother however has been unsuccessful in seeking this extension of her posting and has now taken a voluntary redundancy from the public service. 

3. Despite both the end of the posting and the end of the period set out in the orders which allowed the child to remain in City A, the child has not returned to Australia.  Currently it appears that the mother is in breach of the previous orders which were orders that allowed for a significant reduction in the time that the father was to spend with the child for a defined period.

4. The competing applications that came before me were on the father’s part the immediate return of the child or perhaps the return of the child in the April school holidays and for the mother for the child to remain in Country B until July but to spend two weeks with the father in the April school holidays. 

5. Whether or not the child is ordered to return, the mother intends to remain in City A until midyear and to support Y as she finishes her high school education. 

6. The mother says that the father has been aware for some time that her posting may be extended.  There is potentially some ambiguity in the previous orders as to what the effect might have been of an extension of that posting.  It is however reasonably uncontroversial that the father did become aware at some point that the mother was seeking to extend the time, but also it seems uncontroversial that the father has at no point agreed or acquiesced to the extension and has consistently communicated that opposition to the mother.  The mother advised the father in about November of last year that she intended to stay on whether or not the posting continued.  The rationale put forward by the mother is that to return before July of 2017 will cause distress to the child.  His sister was hospitalised this year initially for a short period of about one or two nights, discharged and then re-hospitalised although I have little information about this second period of hospitalisation.  The mother says that there is a close relationship between Y and the child and that she wishes to delay the separation of the brother and sister, as the sister will be moving to the UK in September to study.

7. I infer from the material that it is intended by the mother that she and Y and the child would all return to Australia at the same time in July pending that university education.  Even if the child was to return to Australia now it seems he would have further time with Y before Y commences university.

8. The mother also says it is important for the child to finish his year 6 in Country B for a number of reasons which I will return to.

9. The orders that the mother seeks means that the child would not be separated from his mother or his sister and that a conflict with the child’s views about what should happen would also be avoided. 

10. Moving to the child’s views, the mother asserts that she is aware that the child has raised with the father constantly on skype his desire to remain in Country B to finish primary school.  She has asserted to the father that “[The child] has told you many, many times that he wants to stay on until June 2017” annexure LS8.  The mother asserts [27] the child’s wishes to be that he “has expressed his very strong desire to remain”.  She describes particular reasons for that desire without directly attributing them to the child.  I am uncertain whether she infers that those are the child’s reasons or whether the child has expressed those as being his reasons.  They may be the child’s reasons.

11. The mother has set out that there are a number of activities that the child is scheduled to engage in as his primary school comes to a close.  One is his role in the Shakespeare play, and another is the usual end of school trip that is due to happen where the children will travel to the Country B countryside.  The child also hopes to have a joint birthday party with another friend from school.  There does not appear to be any argument that the child has not told his father about the importance of these things.  There are further assertions that the child is excited about his school, that he has thrived at the school, that it has been a positive school experience and has given him opportunities, that he would like the opportunity to say goodbye to his friends.  It appears that the child has expressed that he does not want to leave, that he wants to finish school, that he does not want to leave without Y and his mother and the dog. 

12. It also appears there have been Skype exchanges between the father and the child about this and that the child has attempted to negotiate with the father to stay in Country B.  At paragraph 31 of the mother’s material one of these instances is set out where it appears the child discussed the topic with his father with the mother within ear shot.  The father declined to engage the child, explaining that he did not want the child to be in the middle of the negotiations about this but the child became upset, the mother intervened and took the iPad that the Skype call was being conducted through.  There does not appear to be much argument that this is generally what happened on that occasion.  The mother is silent as to how the child’s expectations have been built up to stay in Country B.  The circumstances are that any expectations that he has have been built up in the context of the child living within her household.  They are certainly not expectations that have been built up by the father. 

13. The mother is concerned that the child suffers from separation anxiety and that he suffered some degree of upset since the death of Ms C who cared for him and formed a part of the mother’s household.  Ms C died about a year ago.  The mother has attached evidence from Dr D by means of a letter produced by Dr D on 27 February 2017 (LS-13).  Dr D appears to be the General Practitioner for the family.  Dr D spoke of separation anxiety, of the child not being pleased with the prospect of leaving City A and his family, of him being extremely anxious and emotional when having to separate, although this appeared to be in the context of Y being hospitalised.  It appeared to refer to the child’s reluctance to leave Y’s bedside at that point.

14. For some reason Dr D thought that the scheduled time for the return of the child was in July and that what was occurring was a pre-emptive removal of removal of the child contrary to an earlier arrangement.  That was not the case under the orders that allowed the move to City A.

15. Dr D did not recommend repatriation.  He said “it would literally be tearing his [the child’s] world apart, have a devastating effect on his family unity and would complicate his relationship with his father”.  I note in examining Dr D’s letter that of course it is in the context of the interim proceedings where it is difficult to make factual findings.  But in this case there is no setting out of how the assessment took place, no assessment of the child’s relationship with his father, what sort of contact the child has with his father, nor is there any real disclosure of where the information has come from to lead Dr D to form those conclusions.  It is unclear whether the evidence might have come from the child or his mother or from somewhere else.

16. Dr D did however recommend that there be a psychiatric evaluation to ease the child’s transition back to Australia.  LS-14 is a letter prepared by Professor E on 24 February 2017.  Professor E explains that he visited the boy and that the child expresses “distress with symptoms of anxiety-depression of a reactive type”, he wishes to finish his studies in Country B and exhibited distress at the loss of Ms C.  Professor E noted that the child cried when he spoke of Ms C and he had concerns regarding the health of his sister. 

17. Professor E thought that this strongly indicated that the child should be allowed to postpone his return to Australia.  He thought that forced removal could increase the child’s mental distress, that the child was already under a great deal of stress because of the death of Ms C and to add the additional loss of a mother and sister and friends and school could have extreme negative consequences which may, if he is forced to move back, reverberate on other parenting relationships.  Again, other than the fact that he spoke to the child and the child has clearly cried in front of him there is little information as to what were the sources of the information Professor E relied upon.

18. Further material was provided from the child’s current school at LS-15 and LS-16, letters being provided by the school.  LS-15 sets out activities that are due to take place in June 2017.  Interestingly that letter makes no mention of the child suffering from anxiety.  Both letters are positive about the child.  LS-16 which was prepared in June of last year expressed that the child’s confidence and self-esteem had flourished but suggested that the work would be undone if he was transferred mid-year.  I note that the school year seems to run from the middle of one year to the middle of the next year.

19. So in particular the mother takes in support the child’s assertions as to his views and the letters from the doctor and the psychiatrist as to the potential impact upon the child.

20. For the father - the father does not appear to contest that the child has said to him that he would like to stay on.  He says however, that in expressing those views it appears that the child is acutely aware of the conflict as to whether or not he would stay or go.  That appears to be an uncontroversial matter given each party’s description of the iPad incident, the father at [42], the mother at [31] being the Skype call where the mother intervened.  Additionally, it is common between the parents that at present there is a break-down in the father’s communication with the child.  There is conflict between them as to why there is this break down.  The mother describes the father as not taking the child’s calls, that the child is making attempts to call his father and the father is not taking the calls.  Again, the father does not appear to dispute this characterisation however, he explains that he does not take the calls because taking the calls seems to embroil the child in a dispute between the parties and to his mind constitutes an opportunity for the child to be manipulated in relation to the dispute.  While the father does not dispute that the child has said that he wants to stay in Country B for longer he says it cannot in truth be discerned to be the child’s view.  He notes that the reports by the doctor and the psychiatrist coincide with about the time that the mother took her voluntary redundancy that at least the report prepared by the General Practitioner is based on a misleading factual premise, and that the reports are prepared effectively in the context of litigation.  He further indicates that the state of affairs which has led to these difficulties is one that has been brought about by events that the mother has put in train, and that that ought to be taken to reflect poorly upon her attitudes as to parental responsibility and as to views that I might take about whether she would comply with orders.

21. In determining the matter it must firstly be acknowledged that this is a finely balanced matter. I note the objects as set out in s 60B of the Family Law Act1975 which include the priorities given to meaningful involvement of parents to the maximum extent that is consistent with the best interests of the child, protecting a child from harm, ensuring adequate and proper parenting and ensuring that parents fulfil their duties to their children.

22. In this case there are strong arguments put by each of the parents as to why the child should stay in Country B for a little longer and as to why he should return.  Again I am acutely aware that in interim proceedings, where there is a contest as to the facts, there are very few facts that are able to be established to enable the making of the decision.  In particular, case law encourages me to rely heavily, or more heavily on the uncontroversial facts.  In making a determination my focus is on the child’s best interests.  I specifically note that these proceedings about what will happen with the child do not involve any concept of punishment for noncompliance by the mother nor any concept of punishment of the father for a perceived inflexibility about whether or not the child should remain longer.  I am required to focus upon the child’s best interests as understood both through the objects and the s 60CC factors.

23. Before moving to discuss the matter further, the child on the mother’s case is due to at least visit Australia in April.  April is approaching quickly.  If an order was to be made for the child to be returned it does not seem practicable to order his return prior to the April school holiday break.  The effects then of the various orders that are open to me will either involve the child being separated from his father for a period from April to July or the child being separated from his mother and sister for the same period.

24. The key factors to consider then are the effects upon the child of a return, and the effects upon the child of upon staying in Country B.  Turning to the nature of the evidence about the impact of leaving I am cautious about the medical evidence.  It was made in contemplation of litigation, it was based on information the sources of which I am not sure of, based upon the obtaining of information under circumstances that I am unsure of, with no apparent assessment of the father within the relationship or what role he may play to the child.  The evidence does point to difficulties for the child in leaving school early, in being separated from his sister and his mother in a context where he is fragile from the death of his babysitter a year ago.  There is good reason to think on the limited evidence available to me that there will be a degree of upset on the child’s part at removal from Country B at this stage now that plans have been put in place to remain there until then.  This is one of the more certain aspects of the case at this interim stage.  What also appears to be clear are that these circumstances were brought on by the mother in the sense that she instigated these circumstances despite the steady opposition by the father.  The effect of these circumstances involve a reduction in the time that the child stays with his father, they involve an advance six months beyond the orders that were made of a suspension of the substantial and significant time.  They involve circumstances in which there is currently an obstruction in the communication.  Here it would be unwise to, and I am unable to, lay blame upon the father for not calling, or to lay blame upon the mother for the emotionally loading of the child.  That is a matter that cannot be determined at this point in the proceedings.  What can be safely inferred is that there is currently a break down in the communication between the child and his father.  The surrounding circumstances appear to be ones of potential negativity being exposed to the child because of the degree of conflict between the parents, about a matter that was previously resolved by the court.

25. It is also under circumstances where the father forewent the Christmas time with the child on the basis that the child was shortly thereafter to be returned to Australia.  This adds to the degree of separation from the father in the current arrangements. 

26. The effects then of bringing the child back early are it is likely that he will be upset and distressed.  There are potential ramifications of that upset and distress, some of those ramifications may impact on the child and his relationship with his father.  The effect of not bringing the child back means that it extends the period in which the relationship with his father is significantly limited.  It does so under circumstances where the conduct of that relationship between the child and his father has at this point become thwarted because of the conflict about this issue.  Maybe that would improve once the issue has resolved - at this stage I do not know.  It is under circumstances where the Christmas period of time has been missed, it will be under circumstances where the child would remain in a household where despite there being instances in the past of generous cooperation for example, the mother cooperating with the father travelling with her at Christmas time to the UK and the mother offering her home for the father to stay and to spend time with the child, at present it bears a risk as being a place where the father’s and the child’s relationship is unable to be conducted, an example of which being seen in the iPad incident.  Again, I acknowledge that I cannot properly assess the depth of this risk, I can just identify that there is some risk. 

1. Further, the delay in the child’s return delays his upcoming reintegration to the Australian school system pending his entry into high school.  These are difficult factors to balance now that the child is placed in this situation.  The two prominent factors are the distress that the child may potentially feel if he is to return to Australia against the current impediments in his relationship with his father.  On balance I give greater weight to the full resumption of his relationship with his father rather than protecting him from the distress of a move before July.

2. In doing so I acknowledge that the father will need to manage an upset and disappointed the child.  I have no reason to think that he will not be able to emotionally care for his son.  However, the child should be given as soft a departure as possible to ameliorate the distress that he may feel.  He needs to be given an opportunity to say goodbye - the return should not be immediate.  It has been proposed that the child visit in April.  This is a previous proposal made by the mother.  She had previously proposed that he could return in April if he was unable to stay until July.  In order to provide the child with the softest departure possible from Country B he should spend a large portion of the April holidays in Country B to enable him to say his goodbyes before he returns to Australia. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 March 2017.

Associate:

Date:  29 March 2017