Sheldon & Weir (No.3) - [2010] FamCA 1138

FAMILY COURT OF AUSTRALIA

SHELDON & WEIR (NO. 3)

[2010] FamCA 1138

FAMILY LAW – CHILDREN – Parenting arrangements – where young child – relocation – where mother seeks child lives with her in Republic of Ireland – where father opposes relocation application – whether child is Aboriginal – factors about whether person is Aboriginal discussed – where child found to be Aboriginal – culture – heritage – parental responsibility – presumption of equal shared parental responsibility does not apply – poor relationship between parents and inability to communicate – relocation granted

Aboriginal and Torres Strait Island Commission Act 1989 (Cth)
Aboriginal and Torres Strait Islander Act 2005 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA(2), 61DA(4), 64A, 65AA, 65DAA, Pt VII,
Native Title Act 1993 (Cth)
Racial Discrimination Act 1975 (Cth)
Family Law Rules 2004, rr 16.04(1), 16.08

AMS v AIF (1999) 199 CLR 160
Attorney-General of the Commonwealth v Queensland (1990) 94 ALR 515
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Collu and Rinaldo [2010] FamCAFC 53
Commonwealth of Australia and Others v Tasmania [1983] 158 CLR 1
Cook's Construction Pty Ltd v Brown & Anor [2004] NSWCA 105
Firth v Firth (1988) FLC 91-971
Gibbs v Capewell (1995) 128 ALR 577
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Hort & Verran (2009) FLC 93-418
Johnston and Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 263 ALR 368
Starr & Duggan [2009] FamCAFC 115
Sealey & Archer [2008] FamCAFC 142
Taylor and Barker (2007) FLC 93-345
U & U (2002) FLC 93-112

APPLICANT:

Mr Sheldon

RESPONDENT:

Ms Weir

FILE NUMBER:

NCC

3259

2009

DATE DELIVERED:

8 December 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

5, 6, 7, 8, 9, 12 & 13 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cook

SOLICITOR FOR THE APPLICANT:

Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Elbourne

SOLICITOR FOR THE RESPONDENT:

Burke Elphick & Mead Lawyers

Orders

That all prior parenting orders and injunctions made in relation to the child R born … April 2008 (the child) are discharged.
Ms Weir (the mother) shall have sole parental responsibility for the child.
The mother is permitted to relocate the child to the Republic of Ireland.
The child is to live with the mother.
Until the child relocates to Ireland she shall spend time with the father as follows:
(a) each Sunday from 9.00 am to 4.00 pm; and
(b) each Wednesday from 9.00 am to 4.00 pm.
the purposes of implementing order 5, changeover shall take place outside T Police Station.
From when the child relocates to Ireland until 1 January 2014 any time the child spends with the father shall occur in the Republic of Ireland.

In the event the father does not live in Ireland the child shall spend time with him as follows:

Until 1 January 2014:
(a)from 9.00 am until 2.00 pm on the first and third days nominated by the father; then
(b)from 9.00 am until 4.00 pm on the three consecutive days thereafter;
(c)on the following day the father shall not spend time with the child;
(d)thereafter in a pattern of three consecutive days from 9.00 am until 5.00 pm followed by a day when the child does not see the father;
(e)if the period during which the child is to spend time with the father exceeds three weeks, from the commencement of the fourth week, after each alternate three day period, there shall be two days during which the child does not spend time with the father;
(f)on the child’s birthday, father’s birthday, a day in NAIDOC week and Father’s Day at the same time as the immediately preceding time together;
(g)from 9.00 am to 6.00 pm on Christmas Day in each even numbered year the child’s time with the father is suspended;
(h)from 9.00 am to 6.00 pm on Boxing Day in each odd numbered year the child’s time with the father is suspended.
From 1 January 2014, the child is to spend time with him in the Republic of Ireland during the Australian December/January school holidays at dates and times as agreed between the parties, but failing agreement:
(a)until the child commences primary school, for the first two weeks, from 9.00 am on the first day until 5.00 pm on the third day; then
(b)from 9.00 am on the fifth day until 5.00 pm on the seventh day and continuing in that pattern until the commencement of the third week; then
(c)for seven consecutive days, from 9.00 am on the first day until 5.00 pm on the last day; then
(d)from 5.00 pm when the child has been returned to the mother the child shall be in the mother’s care until 9.00 am on the third day thereafter (that is after two nights in the mother’s care); whereupon
(e)the child shall spend one week with the father in accordance with order 9(c) and the pattern established by orders 9(c) and 9(d) shall continue until the end of the school holidays;
(f)on the child’s birthday, father’s birthday, a day in NAIDOC week and Father’s Day at the same time as the immediately preceding day period together;
(g)from 9.00 am to 6.00 pm on Christmas Day in each even numbered year the child’s time with the father is suspended;
(h)from 9.00 am to 6.00 pm on Boxing Day in each odd numbered year the child’s time with the father is suspended.
From 1 January 2014, the child shall spend time with him in Australia for the duration of the Irish June school holidays. For the purpose of this order, the school holidays are deemed to commence the day after classes finish and end the day before classes resume. The child is to be back in Ireland no later than three full days before classes resume.
Upon order 10 becoming operational, until the child commences primary school, during the Irish June school holidays when the child is with the father in Australia, his time with the child is suspended during periods agreed between the parties, but failing agreement, each third day from 9.00 am to 2.00 pm.
When the child commences primary school, during the June school holidays when the child is with the father in Australia, his time with the child is suspended during periods agreed between the parties, but failing agreement, once each week from 9.00 am to 2.00 pm.
Upon the child commencing secondary school, for the duration of the Australian December/January school holidays in Ireland provided that:
(a)the child attends school; and
(b)the father makes the child available to the mother as agreed, but failing agreement, no less than once per week, from 9.00 am until 2.00 pm at a date and time nominated by him.

In the event the father lives in Ireland he shall spend time with the child as follows:

(c)on the first weekend, on Saturday from 9.30 am until 4.30 pm;
(d)on the second weekend, the father does not have time with the child;
(e)on the third weekend on Saturday from 9.30 am until 4.30 pm;
(f)on the fourth weekend on Saturday and Sunday between 10.00 am and 5.00 pm on each day;
(g)each Irish Father’s Day from 9.00 am until 4.00 pm;
(h)in the event that the child’s or father’s birthday falls on a week day the father will have time with the child for two hours on the applicable birthday at such times as agreed between the parties;
(i)on Saturday of NAIDOC week between 9.00 am and 4.00 pm;
(j)on Christmas Day in each odd numbered year from 9.00 am until 6.00 pm;
(k)on Boxing Day in each even numbered year from 9.00 am until 6.00 pm;
(l)in the event that the Irish Mother’s Day falls on a day in which the child is in the father’s care, his time with the child is suspended for that day.

From 1 January 2014 and until the end of term 1, 2014 each alternate weekend from the conclusion of school on Friday afternoon until 4.00 pm on Sunday evening with the father to collect the child from school and in accordance with orders 15(b)-(f) inclusive.
From the end of term 1, 2014 and thereafter as follows:
(a)Each alternate weekend from the conclusion of school on Friday afternoon until the commencement of school Monday;
(b)in the event that Father’s Day falls on a weekend during which the father would not otherwise have time with the child, the father will have time with the child on that weekend from the conclusion of school on Friday afternoon until the commencement of school Monday;
(c)in the event that Mother’s Day falls on a weekend during which the father would have time with the child, the father’s time with the child is suspended on that weekend;
(d)in the event that the child’s or father’s birthday falls on a week day, the father will have time with the child for two hours on the applicable birthday from after school;
(e)in the event the child’s birthday falls on a weekend, the child will spend time with the parties as agreed but failing agreement, will spend time with whichever party has care of the child on that weekend;
(f)for the NAIDOC weekend from after school Friday until the start of school Monday;
(g)from 5 pm on Christmas Eve until 12 noon in Christmas Day in each even numbered year
(h)from 12 noon on Christmas Day until 12 noon in Boxing Day in each odd numbered year
(i)in even numbered years during the Christmas school holidays from 10 am the day after classes end until 4 pm the following Friday and each alternate week thereafter until the conclusion of the school holiday period;
(j)in odd numbered years during the Christmas school holidays from 10 am at the end of the first week of the school holidays until 4 pm seven days thereafter and each alternate week thereafter until the conclusion of the school holiday period;
(k)in even numbered years during the mid term holidays from 10 am the day after classes end until 4 pm the following Friday and each alternate week thereafter until the conclusion of the school holiday period;
(l)in odd numbered years during the mid term holidays from 10 am at the end of the first week of the school holidays until 4 pm seven days thereafter and each alternate week thereafter until the conclusion of the school holiday period until the conclusion of the school holiday period;
(m)upon the child commencing secondary school for the first half of each mid term holiday in even numbered years and the second half in each odd numbered, the father to collect or return the child from school whichever is applicable;
(n)At such other times as the parties agree.
Notwithstanding any contrary order, from 1 January 2014 if the father lives in Ireland he may, at his election, spend time with the child in Australia as provided for in orders 10-12 inclusive.

Further orders of general application

When the child is to spend time with the father in Australia, to the extent required the mother shall do all things required to facilitate the child spending time with her as set out in these orders.
For the purpose of the child spending time with the father in Ireland, the father shall be responsible for his costs of travel.
For the purpose of the child spending time with the father in Australia, the mother shall be responsible for the cost of her and the child’s return airfares.
Changeover in Ireland shall take place as follows:
a)At the child’s school in accordance with the times set out in these orders;
b)At the County Library;
c)Or such other place as the parties agree.
Changeover in Australia shall take place as follows:
a)At a contact changeover centre nominated by the father;
b)If changeover is to take place at a time when the nominated contact centre is unavailable, at T Library.
In the event the father lives in Australia he shall gives the mother at least 28 days written notice of his intention to spend time with the child pursuant to these orders and the duration within that period.
In the event the father lives in Ireland he shall gives the mother at least 28 days written notice of his intention to spend time with the child in Australia pursuant to these orders and the duration within that period.
That if the child is not otherwise spending time with the father, the child shall communicate with the father as follows:
(a)by telephone, web cam or other similar visual technology on no less than two days per week at times and days agreed by them, and in the absence of agreement, between 6.30 pm and 7.00 pm Irish time each Sunday and Thursday;
(b)by telephone, web cam or similar visual technology on the morning of the child’s birthday, the father’s birthday, Father’s Day and Christmas Day, between the hours of 7.30 am and 8.30 am Irish time.
The parties shall do all things reasonable to promote communication as set out in these orders including, but not limited to, ensuring the child is available to communicate at the designated times by maintaining an internet connection of such speed as to ensure that the web cam / Skype communication is working at optimum level and by encouraging the child to participate and ensure that there are no disruptions or distractions during the communication and/or interface by the other parent.
During any period the child is with the father, he is restrained from:
(a)consuming alcohol;
(b)permitting the child to be in the presence or vicinity of his father, the paternal grandfather;
(c)removing the child from the country where the child is spending time with him.
At all times the parties will ensure that the other has a telephone contact number and email address available for the other party to communicate with the child whilst the child is in the care of the other party.
The mother shall provide to the father copies of any newsletters, school reports, notices or other information or material concerning the education of the child.
Neither party shall denigrate the other, nor allow a member of their family to denigrate within the presence or hearing of the child the other or the other’s family.
That the parent then caring for the child shall promptly notify the other if the child suffers a serious illness or is treated by a medical specialist in a hospital.
On those occasions when the child is in the father’s care the mother shall communicate with the child as follows:
(a)by telephone no less than two days per week at times and days agreed by them, and in the absence of agreement, between 6.30 pm and 7.00 pm each Sunday and Thursday;
(b)by telephone on the morning of the child’s birthday, the mother’s birthday and Christmas Day, between the hours of 7.30 am and 8.30 am.
The mother shall give the father no less than 14 days written notice of when she will take the child to live in Ireland.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 3259 of 2009

MR SHELDON

Applicant

And

MS WEIR

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings in relation to the parties’ only child, R, who was born in April 2008.
The child’s parents, Mr Sheldon (“the father”) and Ms Weir (“the mother”) separated in Ireland in January 2009. After separation, the mother wanted the child to remain with her in Ireland and the father wanted her to return to Australia. The father returned to Australia and in March 2009 he lodged an application pursuant to The Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”), in which he sought that Australia request Ireland to return the child to Australia. The father was successful and on 27 December 2009, he brought the child back to Australia. This was the first time the child, who was then 20 months, had been away from the mother for more than a few hours.
On a different flight, the mother arrived in Australia the same day. Prior to their departure from Ireland, the Irish courts said the child would be in the father’s care for ten days after they arrived in Australia during which period the mother was to spend time with her in accordance with her requests. The father rejected the mother’s requests that she be able to see or speak to their daughter. At the end of the ten days, he refused to return the child. Consequently, the child did not see or speak to the mother from 27 December 2009 until 13 January 2010 when this Court ordered she be delivered to the mother.
Since late January 2010, the child has resided with the mother and spent two separate days each week with the father.
The father, who is the applicant, proposes the child resides in Australia and her time with him increase incrementally so that in about nine months, when the child would be three, during school terms she would live with him six nights each fortnight plus half of each school holiday period. It was his case, unless orders were made as proposed by him, the child would be denied the opportunity for a meaningful relationship with him and the right to enjoy her Aboriginal heritage. Whether the father and thus the child are Aboriginal was contentious.
The mother wants to return to Ireland with the child. In Australia, she is without family. According to her, she did not intend to reside in Australia and it was only because she received medical advice she should not fly during her pregnancy that she remained in Australia for the child’s birth. The mother proposed a graduated program for the child to spend time with the father, initially in Ireland and from 2014, when the child would be nearly six, in Ireland and Australia.
The child has dual Australian and Irish citizenship. The mother has the right to reside in both Australia and Ireland. The father has the right to reside in Australia. He has not applied for permission to live in Ireland.
Because of the complex issues raised in the proceedings a Family Report was ordered. It was the family consultant's recommendation the child should reside with the mother and that she should be permitted to return to Ireland.

Background facts

Unless stated differently, throughout these reasons, the balance of probability will determine findings of fact (s 140 Evidence Act 1995 (Cth)).
The mother was born in Ireland in October 1977.
The father was born in Newcastle, Australia in April 1979.
In about 1999, the father and his family moved from the western suburbs of Sydney back to the Hunter/Newcastle region. This is where the father had lived with his family from birth until about the time he commenced high school.
On 2 April 2004, the Aboriginal Co-operative issued the father with a Certificate of Aboriginality.
On 2 February 2005, the mother left Ireland for an international working holiday. Together with an Irish girlfriend, she travelled throughout South East Asia then arrived in Australia on 5 May 2005. With her friend, for about three months, she toured Australia after which the mother next moved into shared accommodation with a different Irish girlfriend in Sydney.
In late 2005, the mother commenced paid work in Australia.
In about November 2006 the mother returned to Ireland for her sister, Ms N’s wedding.

In late January 2007, the mother returned to Australia. She was granted a 457 Temporary Resident Visa, which enabled her to remain in Australia for a specified period provided she remained employed by a nominated employer.
On about 5 February 2007, the mother commenced full-time work in sales with an Australian company.
The parties met on 28 May 2007 when the father answered an advertisement the mother placed for a housemate in her shared apartment in Sydney. Although the father did not move into the mother’s apartment, within a short time they began dating.
By August 2007, the mother was pregnant with the subject child. From when the mother discovered she was pregnant, she told the father she planned to return to Ireland to have the baby where she wanted the child to grow up. The father was supportive and agreed to accompany her to Ireland.
On 1 September 2007, the mother told her parents she was pregnant and that she and the father would be moving to Ireland, where she would have the baby. The mother’s father immediately began to make enquiries about work and migration information for the father and on 3 September 2007 by email, sent details of internet addresses that contained information for foreigners about working in Ireland.
On 2 September 2007, the parties visited the father’s parents at Newcastle. The father informed them of the pregnancy and that they would be moving to Ireland, which was where the child would be born.
On 9 September 2007, the parties moved into a single bedroom apartment they rented in Sydney.
On 16 September 2007, the parties booked two one-way air tickets to Ireland scheduled for departure on 21 December 2007.
Later that evening the mother’s leg began to swell. The following morning she attended a Sydney Medical Centre where a doctor made a provisional diagnosis she had deep vein thrombosis. She was referred to Hospital for urgent treatment where a Doppler scan of her right leg revealed a blood clot. Two doctors advised her it was very rare to find deep vein thrombosis in the first trimester of pregnancy. She was assessed as being in a high-risk category in relation to the development of further clots and advised not to fly. The mother was advised her chances of a live birth were slim with the majority of pregnancies where a deep vein thrombosis had developed so early resulting in miscarriage. The mother was prescribed a blood thinner called Clexane. Clexane is administered by injection and for the balance of the pregnancy she injected herself twice each day.
Because of the risks they understood flying would pose to the mother and the baby, the parties agreed to postpone their journey to Ireland and cancelled their flights.
It was a condition of the mother’s visa she works with her nominated employer. Because of the deep vein thrombosis, she was unable to comply with this condition. This jeopardised her ability to remain in Australia even for the birth. In addition, her visa excluded access to Medicare benefits. The mother’s need for intensive medical supervision during the pregnancy and after the birth meant she faced the real prospect of extensive medical expenses. Against this background, the medical advice she could not return to Ireland without serious risks to her and the baby created a terrible dilemma. The father was supportive and understanding of the mother’s situation and offered to care for her. Although the parties had known one another only a few months, they decided to try to make their relationship work for their baby’s sake.
On 17 October 2007, the mother accepted the father’s proposal of marriage.
The mother attended at the Hospital Haematology Clinic on 24 October 2007. The doctor advised provided she broke the journey, wore support stockings and maintained Clexane injections she could safely fly to Ireland[1]. However, the mother understood such a trip was still not without risk and thus the parties made no further plans to travel to Ireland prior to the babies’ birth. At the Hospital, the mother was identified as being at high risk of post-natal depression.
[1] Exhibit ‘H’
The parties agreed their flat was too small for a baby. They discussed their options in relation to which the father suggested they move to the Central Coast. This would provide cheaper accommodation and enable them to save towards the cost of travelling to Ireland after the baby’s birth to be closer to her maternal family. In addition, the mother anticipated it would be easier for the paternal grandmother to help her with the pregnancy and new baby. They decided to move and put in train steps to implement this decision. Relevantly, this involved the father making application to the Department of Education to transfer from his job as a teacher at a Sydney School to a school on the Central Coast.
On 18 December 2007, with the father’s support, the mother lodged an ‘Application for Migration to Australia by a Partner’ visa.
In January 2008, the father told the mother he had a position at a School on the Central Coast. The parties searched for rental accommodation on the Central Coast, which they found at P. After they signed a three months lease, the father told the mother his transfer had not come through. By then they had moved out of their Sydney apartment and there was no choice but to move to P.
The mother did not know anyone on the Central Coast. After they moved, the father commuted daily to Sydney. He left for work at around 5.00 am and did not return until about 4.00 pm or 5.00 pm. Because he took the parties’ car, with the exception of her weekly visits to the Hospital in Sydney, the mother was essentially housebound.
The child was born at a Sydney Hospital in April 2008.
Around the time of the child’s birth, the father obtained a transfer to a school in Newcastle.
The child was discharged from hospital in late April 2008.
On 28 April 2008, the father commenced full time work as a teacher in Newcastle.
The mother breastfed the child and from the child’s birth she was overwhelmingly responsible for her care. When the father was not at work, he too was involved in the child’s care.
In June 2008, the mother’s brother and then her parents visited the parties with whom they stayed. The mother’s parents stayed for about four weeks. During this time, arrangements were made between the parties and the mother’s parents for the parties and child to reside with them in Ireland until they found employment for the father and suitable alternate accommodation. There were discussions between the parties and the mother’s parents about when the parties would come to Ireland. Initially, the parties proposed they leave Australia in about September 2008 to be in Ireland for the start of the Irish school year. The maternal grandmother discussed this idea with the father and suggested they delay their departure until the end of the 2008 NSW school year. Thus, the parties would have the benefit of his six weeks paid leave and thereby longer to settle in with less pressure upon him to immediately obtain employment. This approach the parties adopted.
According to the father, after the mother’s parents returned to Ireland he was mostly responsible for the child’s care when he was not at work. At times when he arrived home, the mother informed him the child had cried all day and she asked that he take her, in effect, so that she could have a break. At that stage the parties were unaware the child had health difficulties and it would appear there was a time when prior to her being diagnosed, she was difficult to settle and a demanding baby. I accept when the father was home, he was involved in the child’s care. However, she was still breastfed and his care was complimentary to the mother’s.
In about August 2008, the mother realised the child regularly had diarrhoea and had started passing blood in her stools. The child’s paediatrician diagnosed her as lactose intolerant.
On 9 August 2008, the parties booked three one-way tickets to Ireland on a flight scheduled to depart on 16 December 2008. A few days earlier, the maternal grandfather transferred €2,500 to the mother’s account, partly to cover costs while he had been in Australia and as a contribution towards the parties’ travel costs. The purchase of one-way tickets lends support to the notion this was an open-ended journey in relation to which there was no clear plan to return to Australia.
For some time the situation in the parties’ home had been tense in relation to which the mother was stressed and anxious about the father’s behaviour. The mother sought advice and assistance from Lifeline. As I understand it, this is a free telephone advice and referral service. The person the mother spoke to at Lifeline wondered if she had post-natal depression. After a particularly stressful incident with the father, on 27 September 2008 she sought advice from her general practitioner, Dr H. Dr H referred the mother to a psychologist, Ms S. Amongst other matters, Dr H was concerned the mother may have been suffering from post natal depression.
The mother commenced the first of five appointments with Ms S on 8 October 2008. Ms S determined the mother did not have post natal depression but suffered from the effects of the father’s verbal and emotional abuse.
In October 2008, the parties obtained an Irish passport for the child. Although the child is a dual Australian and Irish citizen they agreed, because they planned to remain in Ireland and Europe for a prolonged period, she should have an Irish passport. In preparation for their move to Ireland, the parties commenced shipping belongings to Ireland. Three or four bundles were sent to the mother’s parents. They sold their car on 27 October 2008 and until they departed the father’s mother loaned them hers. Because rental properties in Ireland are usually fully furnished, the parties did not ship furniture to Ireland. The mother made enquiries with a shipping company in relation to the cost of sending the child’s cot, change table and other items to Ireland. As it would be cheaper to purchase these new, they were left in Australia.
During October 2008, the father’s sister D Sheldon stayed with the maternal grandparents in Ireland. She discussed with the mother’s brother her plan to visit Gallipoli for ANZAC day 2009, when she said the father would be living in Ireland and able to join her. She said to the maternal grandparents that the father had previously beaten her.
On 29 October 2008, the father attended upon Ms S. The father was unhappy with the direction the consultation took and after about 30 to 40 minutes ended the session. Ms S diagnosed him as having a narcissistic personality disorder. For reasons I will discuss later, Ms S agreed she formed her opinion too soon and her diagnosis was an error of judgment.
On 18 November 2008, the father made a second application for parental leave, from the end of Term 4, 2008 until 1 November 2009. To be eligible for parental leave the father needed to establish he would be the child’s primary carer. Because the mother did not have paid employment his application was refused. According to the father the statutory declaration he swore on 18 November 2008[2], which said, between 15 December 2008 and 1 November 2009, whilst on paternity leave, “I [father’s name] will be the primary carer of my child, [the child]” was true. He explained this meant he was to be the “joint primary carer” and that after the parties returned to Ireland the mother would work and he would care for the child. However, the evidence established the mother did not apply for paid employment, but he did. Prior to the parties’ departure for Ireland, the father submitted a number of written job applications in which he sought fulltime employment on the basis he and his family were about to move to Ireland permanently. I accept the mother’s evidence they intended the father would look for work while she would continue to breast feed and care for the child. Counsel for the mother said the father’s evidence “primary carer” meant the same as “joint primary carer” was inherently incredible. I agree the words convey different meanings. I am doubtful about the integrity of the information the father provided in the statutory declaration.
[2] Exhibit ‘D’
In late 2008, the father’s parents again separated. Theirs has been a violent marriage with numerous separations and reconciliations. In any event, the father’s mother needed somewhere to live. She moved in with the parties who then gave three weeks notice on the property at P, in relation to which they were refunded their full rental bond. As arranged, the father’s mother immediately executed a lease for the P property. The parties’ furniture and those appliances not transported to Ireland remained at P for her use.
The father obtained a referral to Mr F, who is a psychologist, from his doctor. He consulted Mr F for the first of six appointments, the last of which was shortly prior to this hearing. Mr F said the father presented with depressed mood and adjustment issues. In the first session, the father reported the parties’ marriage was under strain due to the mother’s post natal depression. The father stated the mother’s moods were becoming progressively worse and that she desired the support of her family. Mr F recommended marriage counselling and because the parties were shortly leaving for Ireland, no further appointments were made.
After an awful incident, on 14 December 2008 the parties attended the local Hospital where the father was provisionally diagnosed as having a narcissistic personality disorder.
Before the parties departed Australia, the father applied for permanent work in Ireland as a teacher. The mother was still breastfeeding and did not apply for work in Ireland.
The parties and child departed Australia on 16 December 2008 and arrived in Ireland on 17 December 2008. Upon arrival, they moved into the mother’s parents’ home in Ireland. The parties spent the first few days settling in and recovering from the flight. The father also made further job applications, including to a school to which the mother’s brother, Z, drove him. Z provided internet employment website information to the father. While in Ireland, the father downloaded job advertisements for employment as an Instructor, Supervisor, Teacher, Youth Justice Worker, Project Co-ordinator with Probation and Linkage and part-time Administrator with the same agency. The father began to search for cars to buy in relation to which Z said he would accompany him for inspection.
On 20 December 2008, the father accompanied the mother’s brother, Z, and some of his friends on a night out, in the nature of a pub-crawl. When they reached the R Bar, the group had each consumed about seven pints of full strength beer. Although the mother’s brother did not see how the incident started, he saw the father had one of their group, Y, by the throat up against a wall. Bouncers separated them and escorted them from the bar. Y, who is a medical doctor, departed. The father and Z went on to the C Bar. At the C Bar Z asked the father what had happened. The father responded, “Your mate is a pussy” then left the smoking area.
Not long afterwards, the mother’s brother followed. When he entered the main part of the hotel, he saw the father punching a young male patron in the head. The mother’s brother attempted to pull the father away, at which point the father hit Z twice in the face with a closed fist. The father said to him “keep your fucking hands off me mate”. Bouncers intervened and escorted the father and Z from the hotel. This was the first time Z had been evicted from a hotel. As will be discussed later, this was not the first time the father had been involved in a violent incident where alcohol was involved.
The mother’s brother caught up with the father and asked what he was doing. Unprovoked, the father turned around and grabbed him. The father jammed his thumb into Z’s right eye until he collapsed. Because Z felt responsible for the father, he pulled himself up and went back to him. The father gouged his eye again. The mother’s brother realised he needed to escape and went home. He arrived home at about midnight and told the mother she should lock the door and if the father returned, to call the police. The maternal grandparents and mother all saw that Z’s eye was swollen and bloody. Blood was running down his cheek. Between 2.00 am and 3.00 am, the mother discovered the father asleep on the doorstep. Although he denied he was drunk, I am satisfied he was. Indeed, he was so drunk he could barely stand. The mother got the father to a downstairs couch where he passed out. When the mother woke the father in the morning, she saw that during the night he had urinated in his pants and through the couch. The mother sent the father to an upstairs bathroom. When she followed, she discovered him asleep on the toilet with vomit everywhere. The mother refused his request she clean up after him and he did so himself. Later that day the maternal grandmother gave the bathroom a thorough clean.
The father does not deny there was an incident that evening or that Z was injured. He said it was no more than skylarking in which Z was accidentally injured. Although the maternal grandmother wanted her son to seek medical attention, he declined. Counsel for the father submitted this indicated his eye injury could not have been as serious as described and it was clear the maternal families’ evidence about the injury had been exaggerated. I do not agree. The maternal family spoke of their shock about the incident. Theirs is not a family where violence occurred or is acceptable. In short, they did not know how to deal with the situation. Z wanted to put the incident behind him and shrugged off the idea of medical help. His failure to heed his mother’s advice is consistent with this and does not persuade me his evidence was exaggerated. Nor does his and the maternal family’s failure to call police. Doing so would have compounded an already difficult family situation.
From the mother’s perspective, this incident was a turning point in the parties’ relationship. It is from this time the situation between them and in the maternal grandparents’ home became increasingly tense.
On 22 December 2008, at the father’s request, the maternal grandfather drove him to the County Hospital where the father saw a psychiatrist. Later that day the psychiatrist spoke to the mother. He confirmed his advice to the father, which was that he should not drink alcohol and he was neither suicidal nor depressed but would benefit from ongoing counselling.
In the days that followed relations between the parties continued to deteriorate with the father variously saying he would leave with the child or wanted the parties to leave the mother’s parents’ home.
The situation came to a head on 3 January 2009. Although the father said the mother’s parents demanded he leave their home, I accept they did not and it was he, who wanted to leave. Initially the father told the mother they should leave. When she refused, he became verbally aggressive then said, “Well, if you won’t come with me, I’m leaving and I’m fucking taking [the child] now.” The father slammed his fist on the child’s high chair, which caused her to cry, whereupon the mother grabbed her and ran from the room. Her parents tried to calm the situation. The maternal grandfather reasoned with the father and pointed out the inappropriateness of his notion he would take a breastfed baby out into the freezing cold. The maternal grandfather contacted Mr N, who is the mother’s sister, Ms N’s, husband. When the father remained adamant he would leave, the maternal grandfather arranged with Mr N for the father to stay with him and Ms N.
On 4 January 2009, the mother telephoned the father and asked if he wanted to see the child. The father considered the mother’s proposal for anything less than overnight contact to be unacceptable and demanded she stop breastfeeding. Having reached an impasse the mother terminated the telephone call.

On 5 January 2009, the father made a booking for marriage counselling the following day. He telephoned and sent an SMS message to the mother to inform her of the appointment, however, she refused to speak with him.
The same day, at the mother’s request, the maternal grandfather and Z took the child to the mother’s sister’s home so that the father could spend time with her. The father ordered the maternal grandfather from the home and, in response to the maternal grandfather’s observation that the father had no right to order him from his daughter’s house, the father called out to Ms N “call the police, call the police”. The maternal grandfather decided the prudent course was to leave. He returned about one hour later and without difficulty collected the child. The father informed the maternal grandfather about the marriage counselling appointment. The maternal grandfather advised the father that he was welcome at their house the next day or any other time to see the child.
That evening the mother telephoned the paternal grandmother in Australia and informed her of what had happened. She told the paternal grandmother she loved the father and explained she hoped they would attend marriage counselling.
On 6 January 2009, the father attended upon the marriage counsellor. While there, he received a text message from the mother to the effect she was unable to make it and would make other arrangements. The father declined her invitation he visit and spend time with the child.
The mother invited the father to dinner at her parents’ home where he could also see the child, on 7 January 2009. The father did not attend.
The mother arranged marriage counselling with a counsellor at 11.30 am on 9 January 2009. At approximately 8.30 am that day, she sent the father an SMS message and asked if he wanted to spend time with the child whilst she was at counselling. At about 12.00 noon, the father responded and, in effect, said he had only just received her message and would have loved to have the child.
Later that evening the parties spoke and arranged for the child to be delivered to the father at Mr and Ms N’s home the next day. In addition, they agreed to attend marriage counselling the following week.
The mother delivered the child to the father at her sister’s home on 11 January 2009 where she was with him from 11.30 am until 4.00 pm. Four and half hours for a nine month old baby to be away for the first time from her primary carer was not an inappropriately short time. It also showed the mother had confidence in the father’s ability to attend to the child’s needs and the child’s ability to be away from her for that amount of time.
On 13 January 2009, the parties attended marriage counselling where they agreed to separate and attend mediation. Together they walked to a mediation centre and booked an appointment for 21 January 2009. The critical issue was the child’s living arrangements. By then it was clear to the father that the mother did not agree with his proposal the family return to Australia forthwith.
The parties had decided to wait until they were in Ireland to arrange the father’s long-term visa. Because of the speed with which events unfolded, he did not apply for a long-term visa. After they separated, the mother said she would not sponsor his visa application. Thus without a job or a visa which would enable him to remain for what he understood would become a long legal battle, the father decided he would return to Australia alone. He told the mother, he needed to return to Australia for a few months to in effect, collect his thoughts, and to obtain a working holiday visa for Ireland. They understood, provided he applied before he turned 30 years (in April 2009) a visa would be granted.
By agreement, the parties postponed mediation for about one month.
In the days that followed and until the father left Ireland, he had regular contact with the child for a few hours at a time, at either the maternal grandparents or the mother’s sister’s home. The duration and frequency of contact was age and circumstantially appropriate.
On 27 January 2009, the mother and child farewelled the father. At the airport, he told the mother he loved her and promised to return soon. The father flew to Paris where he holidayed for one week. He arrived back in Australia on 2 February 2009.
The day after the father arrived back in Australia, he consulted Legal Aid who referred him to the Australian Central Authority.
After the father arrived in Australia, the parties began to speak to each other by Skype. This started on 4 February 2009. Thereafter they spoke most days by Skype until 3 March 2009. During these calls the child usually sat on the mother’s lap although, because she was just starting to crawl and her attention span was short there were times when she was out of the father’s sight. During these calls, the father attempted to discuss their situation, in particular, that the mother brings the child to Australia. When the calls digressed to these adult issues, the mother ended them. For example, on 26 February 2009, she terminated a call because she felt the father’s conversation with her was bullying which made her feel ill. She reiterated to the father the purpose of the Skype calls was for he and the child to spend time together. So that it is clear, the father denied his conversations with the mother amounted to harassment. While I agree the matters he raised were important, he knew they were not matters the mother wished to discuss. A better and more appropriate approach would have been for him to try to persuade her to discuss them separately, or if that was impossible, through lawyers.
On 13 February 2009, the father lodged an application with the Department of Community Services in New South Wales in which he sought that Australia request Ireland to return the child to Australia.
The father consulted Mr F a second time on 17 February 2009. In his report dated 1 May 2009[3], Mr F summarised the history that the father gave him about the parties’ separation and parenting issues. The father reported having become increasingly depressed and anxious about not being able to see the child and how he had been treated by the mother. Mr F assessed the father as being willing to compromise for the sake of the family’s welfare and having positive qualities, which “run counter to the impression of [the father] as a dominating, abusive figure which has been cast.” The father was assessed as clearly suffering, in relation to which Mr F said he planned to continue offering psychological support. He saw him again on 5 June 2009 and not then until 12 January 2010.
[3] Annexure ‘D’ father’s affidavit p 66-67
The last time the father contacted the mother by Skype was 3 March 2009. They were also in contact via Facebook. However, after the mother realised their personal matters were being discussed by the father with others on Facebook, she closed her Facebook page to preserve her privacy.
The father and child did not have contact from 3 March 2009 until he returned to Ireland in June 2009.
On 23 March 2009, the Irish Central Authority commenced proceedings in the High Court in Ireland pursuant to the Abduction Convention.
The mother was served with the father’s Abduction Convention application on 25 March 2009.
Sometime prior to 6 April 2009, the mother withdrew her application for ‘Migration to Australia by a Partner’. This is significant in two respects, firstly it would appear by then the mother had decided she would not return to live in Australia. Secondly, I infer because the parties had separated, she was ineligible for a visa, which was initially sponsored by the father.
On 24 June 2009 the father and his brother, W, arrived in Ireland for the Abduction Convention proceedings. They mainly lived in an international youth hostel. Before he arrived in Ireland, the father sent the mother an email and asked for time with the child. She agreed but said it would be limited to two hours, twice each week, at her parent’s home. By then the level of distrust and tension between the parties was extremely high.
On 24 June 2009 interim orders were made in the High Court for the child to spend time with the father as follows:
IT IS ORDERED:
(a)That the applicant and respondent herein or their servants or agents or any person having notice of the proceedings herein or of the making of this order be restrained from removing the Child named in the title hereof [the child] from the vicinity of the Respondents home until determination of the proceedings herein
(b)That the applicant to have access to the Child in the title hereof each day commencing on the 25^th day of June 2009 for two hours increasing to three hours from the 26^th day of June 2009 the Child to be accompanied by her maternal Grandmother or some other person familiar to the child which can be agreed upon between the parties until such time as the parties are in agreement that the applicant may have access on his own
(c)said access to take place in a neutral venue within a three mile radius of the Respondents current home
(d)the Applicant will provide his mobile phone number and information concerning his whereabouts should the parties agree that the applicant may have access on his own
(e)Liberty to apply.[4]
[4] Exhibit ‘F’
The father alleged the mother breached the orders by insisting he spend time with the child at her home. According to him, his time with the child “was not to be in the [Weir] home”. He asked that his brother W accompany him as “the other person familiar to the child” which the mother refused. W would not have been the child’s comfort figure anticipated by the orders. The father said each time he attended the mother’s home the child was asleep and on a few occasions, he waited a couple of hours for her to wake up. Curiously, he considered this a further breach of the orders. On 30 June and 1 July, he did not spend time with the child but went to Dublin to see his lawyer. No criticism could be made of him for having missed those visits.
When asked to explain how these matters amounted to breaches, the father said order (c) entitled him to take the child away from the mother’s home provided he remained within the designated radius. I do not agree. The injunction against the child’s removal referred to in order (a) applied to both parties. By order (b), only if the parties agreed the father could spend time with the child on his own, did order (c) override the injunction in order (a). In other words, the father was restrained from spending time with the child away from the maternal grandparent’s home, until the parties agreed he could. Upon agreement, he was restrained from taking the child further away than three miles. When regard is had to the father’s level of education and the fact he was legally advised and represented both then and when he gave his written and oral evidence in these proceedings, his protestations the mother breached these orders are unlikely to be based upon a genuine misunderstanding. Amongst other reasons, order (d) made it highly likely the father knew the true effect of the orders but, for perceived forensic advantage, he tried to suggest they meant something else. Such conduct by him was not an isolated occurrence.
The Abduction Convention hearing at which the parties gave evidence and were cross-examined was held on 2 and 3 July 2009. The High Court reserved its decision.
According to the father, further interim contact orders were made on 3 July 2009. The mother says the orders were varied on 10 July 2009. Although I requested a copy of these variation orders, they were not provided and it is not possible to determine the date upon which the orders were varied. In any event, the parties agreed the effect of the orders was that the father would spend time with the child unsupervised for three hours each day at agreed times. Changeover would take place at the Garda (Police) Station. Contact did not take place every day between 3 July 2009 and 10 July 2009 but occurred daily between 10 and 17 July 2009.
Later I will discuss an incident, which occurred on 7 July 2009 at a contact visit. In essence, the father was verbally aggressive towards the mother and when she left, he followed her. When the mother broke into a run, the father ran after her. The mother and child were very distressed and, having obtained advice from the Garda, the mother sought a Safety Order against the father.
On 15 July 2009, the mother and her mother took the child to the Garda Station for changeover. At changeover, the father threw the child’s nappy bag she prepared on the floor then left. The mother and her mother waited a few minutes then they too departed. Outside they saw the father and child. When the child looked at the mother, she waved and said “Bye bye [R]”. The father put his arm over the child’s face to block her vision and yelled, “Get away from me. Stop harassing me”. The mother and her mother ran towards their car and left.
The father returned to the Garda Station where he complained the mother allegedly interfered with his access and, supposedly, the High Court orders. By his solicitor’s letter, dated 15 July 2009 the mother was advised her “breach of the High Court order … would be brought to the attention of the Court”. I do not accept the mother interfered with the father’s access, nor was it established she breached orders. In the circumstances described above, from the child’s perspective it would have been, perplexing, if having seen her mother she was ignored. It is from about this time whatever vestiges of the parties’ capacity to communicate with each other were extinguished. Since then at different times, one or other of the parties has wanted matters to be communicated through lawyers. Although, this is a situation to which both parties have contributed, it is instructive that the mother more often sought to communicate with the father about the child. There has been no effective communication between the parties since then.
On 17 July 2009, the High Court granted the application by the Irish Central Authority and, inter alia, ordered that the child be returned to Australia. During the course of the Abduction Convention proceedings, amongst other matters, the father said he would vacate the P home in favour of the mother and child, provide her with a car and contribute towards the cost of her and child’s airfare to Australia. The High Court accepted his evidence and these matters were made conditions precedent to the child’s return. Having made the necessary threshold findings the High Court adjourned the proceedings to 21 July 2009 in relation to passport issues and arrangements for the child’s return.
The orders made on 17 July 2009 by the High Court are set out below:
THE COURT DOTH DECLARE
1.That the place of habitual residence of [the child] the Minor named in the title hereof is Australia
2.That the retention of the said Minor in the jurisdiction of the Courts of Ireland was unlawful within the meaning of Article 3 of the Convention on the Civil aspects of International Child Abduction (The Hague Convention)
And IT IS ORDERED that the said Minor be returned to the jurisdiction of the Courts of Australia
And the Court doth adjourn this matter to Tuesday the 21^st day of July 2009 for the purpose of hearing said Counsel on the terms of compliance with the Order and the arrangements which must be made in the said Minor’s interests to give effect to the Order.
After the High Court made its return order, discussions occurred, through the parties’ lawyers, about the changeover point for the father’s visits with the child. The mother sought to have changeover at a park or shopping centre and that her mother accompanies her. The father felt this left him open to allegations of harassment and proposed that changeover continue at the Garda Station. An impasse was reached, the effect of which was the father and child did not see each other between 17 and 21 July 2009.
On 20 July 2009, the father applied to the District Court in Ireland for an ex parte Barring Order.
On 21 July 2009, the High Court made orders set out below.
IT IS ORDERED
(i)That pending the determination of this matter in the Australian Family Courts that custody of [the child] the minor herein shall remain with the Respondent.
(ii)That pending his return to Australia the Applicant do have access to the said minor as follows:
(a)on Monday, Tuesday and Wednesday of each week between 2.00 pm and 5.00 pm at [Garda Station 1].
(b)on Thursday, Friday and Saturday between the hours of 2.00 pm and 5.00 pm at [Garda Station 2].
(c)on Sunday the 26^th July 2009 access will take place at [Garda Station 1] between 2.00 pm and 5.00 pm.
(d)on the following Sunday – 2^nd August 2009 access will take place at [Garda Station 2] between 2.00 pm and 5.00 pm
(e)thereafter, the Sundays will alternate so that the Sunday after that will be [Garda Station 1] and the Sunday after that will be [Garda Station 2].
(iii)Access will be for a three-hour period only. The hand over of [the child] will be by the Respondent personally to the Applicant. There shall be no other family members of the Respondent in the vicinity and there will be no interaction between members of the Respondent’s family and the Applicant. Any intended alterations in such arrangements shall be in writing.
AND IT IS ORDERED that pending the final Order of the Australian Family Court the following interim Orders be made in such Court as a condition precedent to the return of [the child] to Australia:
1.That the family home will be made available, rent paid, for the exclusive use of the Respondent and [the child]; that the property be fully furnished, including a fully stocked fridge, at the time of use by the Respondent and [the child]. All personal effects of the Applicant and his family will be removed prior to the Respondent and the child returning. All of the child’s belongings, toys, et cetera, will remain in the child’s bedroom. A mutual non-molestation clause shall apply, that neither party shall attend at or in any way interfere with the other party pending any further Order of the Australian court.
2.That there will be a car fully insured for the Respondent’s use and including a child’s seat which will be made available to the Respondent for a period of four weeks. The car will be available to be collected by the Respondent at the airport on her arrival (the arrangement for picking up this car to be arranged between the Solicitors), such that there shall be no interaction between the Applicant and the Respondent.
3.The Applicant will pay by way of contribution the sum of €250, approximately 500 Australian dollars, towards the cost of the ticket of the Respondent. This will be paid through the Respondent’s Solicitors. The payment is to be acknowledged in writing within one day of receipt.
4.The flight ticket for [the child] is to be paid by the Australian Government. It is noted that normally such a ticket is conditional upon the child traveling [sic] with the Applicant. However, the Applicant has applied to have this condition lifted so that the Respondent and [the child] can travel on a separate flight.
5.That the sum of 1,000 Australian dollars by way of maintenance for [the child] for a period of four weeks should be paid in advance pending any further Order of the Australian Family Court said sum to be with the Respondent’s Solicitor 48 hours prior to her departure for Australia. The issue of maintenance to be subject to regulation by the Australian Family Court thereafter
6.When in Australia the Respondent is to have day-to-day care and control of the child with agreed access to the Applicant on Sunday and Wednesday of each week between 10.00 am and 3.00 pm subject to any other Order of the Australian Family Court. The delivery and collection of [the child] will take place at [T Police Station]. The access will commence on the first relevant day, be it Wednesday or Sunday, following the return of the Respondent to Australia. These terms remain pending any order of a court of competent jurisdiction in Australia.
7.Subject to any right of the parties to make an ex-parte application, neither party shall make application to the Australian Family Court without notice to the other, save for the purpose of putting in place this ‘mirror order’
8.All matters pertaining to [the child] shall be listed before an appropriate Australian Court as soon as possible and the parties will take every measure in order to expedite the hearing.
9.That the Applicant will not take any steps such as would advance any criminal proceedings of any nature in respect of the time spent in Ireland by the Respondent with the child. He will use his best endeavours to ensure that there are no sequelae pursuant to criminal law arising from the time spent in Ireland by the Respondent with the child.
10.The Respondent will fully cooperate in the obtaining of an Australian passport or visa with the details of this co-operation recorded in writing by the Respondent’s Solicitor to the Applicant’s Solicitor. Each step which is taken will be supervised by the Solicitors in order to ensure that there is full and proper compliance with this aspect of the Order.
11.The Applicant shall be given three days notice as to when the access arrangements are to commence in Australia. Pending further Order of the Australian Family Court there shall be no interaction between the parties save for the purpose of giving effect to the provisions of this Order.
IT IS FURTHER ORDERED that a period of six weeks will be permitted between the date hereof for the provision of the Australian passport and any other travel documents and that all or any passports relating to [the child] will be retained by the Respondent’s Solicitor and will be provided solely for the purposes of [the child’s] traveling to Australia
AND IT IS FURTHER ORDERED
(a)That the terms of this Order be stayed pending compliance therewith
(b)That the Order be vacated upon proper assurance that the Australian Court Order has been obtained and on the issuance of the passport at which point the Respondent will travel to Australia within seven days and
(c)That any alteration to the arrangements regarding access are to be dealt with in correspondence between the parties
And the Court doth make no Order as to costs. [My emphasis]

The father’s solicitors in Ireland wrote to the Australian Attorney-General’s Department from whom they sought advice about this Court’s requirements “for the registration of overseas child orders, or the making of mirror orders.” According to the father, he understood the Family Court “would not make orders from another jurisdiction unless they were by consent and, even if they were by consent, they would only do so once the period of appeal had lapsed.” Tendered in the father’s case was correspondence from the Attorney-General’s Department.[5] This letter set out the requirements for registration of an overseas child order and how to obtain ‘mirror orders”. Because Ireland is not a prescribed overseas jurisdiction, the father’s lawyers were correctly advised, in relation to registration, it would be necessary to rely upon the fact the Irish orders had been made for the purposes of the Abduction Convention. A reg 23(1)(a)(ii) Certificate of Enforceability was provided and the father’s lawyers were informed that once the mother’s appeal had been heard the Australian Central Authority could, if requested, apply to register the orders. A copy of reg 23 was also provided. From these, it was apparent application for registration of an overseas child order, could be made by someone other than the Australian Central Authority, for example, the father. In relation to “mirror orders”, the father was advised to obtain legal advice in Australia, to make private application to this court and that such orders would need to be made by consent. As will be apparent from the orders made by this court on 24 December 2009, the qualification about consent was incorrect. Irrespective of which approach was adopted, the father was correctly advised that the Court would only made orders if satisfied these were in the child’s best interests. Other than this approach, until shortly before the child left Ireland, neither party took steps to obtain “mirror orders” or to register the overseas orders. As will be discussed later, when mirror orders issued they were ignored by the father.
[5] Exhibit ‘V’
The father remained in Ireland and continued to spend time with the child for three hours every day, other than two days when he went to Dublin to arrange the child’s Australian passport.
On 22 July 2009, the mother applied for and obtained an ex parte Safety Order, which is the equivalent to a NSW Apprehended Domestic Violence Order, against the father. Although in his affidavit the father said he understood a Safety Order to be similar to an Apprehended Domestic Violence Order, during cross-examination he took issue with this proposition. This was another example of the unsatisfactory nature of the father’s testimony. Even when shown a copy of the Safety Order, which is headed “Domestic Violence Act 1996,” he refused to agree with the proposition about the nature of the order.
On 20 August 2009, the mother lodged an appeal against the Abduction Convention return order.
The mother’s Safety Order application and father’s Barring Order applications were heard simultaneously on 28 September 2009. The mother relied on an incident, which took place on 7 July 2009 as the basis of her Safety Order application. The father relied on an incident that took place on 15 July 2009 as the basis of his Barring Order application. These are described at pars 89-91 and are discussed later. Following defended hearings during which witnesses were cross-examined, the father’s application was dismissed and the mother’s application granted. The terms of the Safety Order ordered that the father:
… shall not use or threaten to use violence against, molest or put in fear [the mother] and/or dependant persons, and shall not watch or be near the place where [the mother] and/or dependant persons resides. The order will remain in force for five years from that date, which is the maximum period provided for in the Domestic Violence Act.
The Safety Order contained a warning, the effect of which was that a respondent who contravened an order might be arrested without warrant and on conviction fined a maximum of €1904.61 and/or sentenced to a maximum of 12 months imprisonment.
Two days later the father made an application for a Protection Order against the mother. His application was dismissed on 30 September 2009.
The father appealed against the Safety Order made for the mother’s protection. His appeal was listed on 15 April 2010. The appeal has been adjourned with leave to relist on two days notice. According to the father, it is his intention to relist the appeal after completion of these proceedings. To prosecute the appeal he would need to attend personally.
The effect of the 21 July 2009 orders was that the child would spend time with the father three hours every day. In his affidavit, he sets out the dates upon which the mother did not make the child available. The mother did not take issue with his evidence in relation to the occasions on which contact did not take place from about September 2009 to December 2009. During this period, the father missed out on 12 days in October and 12 days in November 2009. There were eight missed days in December. The mother explained why these visits did not occur. She said that after the weather turned cold the child more frequently suffered from cold and general childhood illness. Because the child is lactose intolerant if she consumes food or drink which contains lactose she reacts with diarrhoea and stomach cramps. During this period, she had diarrhoea on occasion. Because the father refused to speak to the mother, she was unable to ascertain whether he maintained the child’s strict lactose free diet.
On 4 September 2009, the father’s solicitors wrote to the mother’s solicitors and reported that on 1 September 2009 he observed “a very noticeable bruise and bump below [the child’s] left knee”. An explanation was sought for the bruise and an observation made that the father was “concerned about the number of such injuries”. That is, bruises, bumps and cuts. The father should have raised this matter with the mother. His failure to do so is indicative of their tense relationship and inability to discuss important or trivial matters in relation to the child.
The mother raised these issues with the child’s Paediatrician. He admitted the child as an inpatient at the County Hospital from 17 September 2009 to 18 September 2009 “for investigation of bruises on her shins and forearms”. In his report, which is dated 30 September 2009, the Paediatrician wrote: “… I felt these bruises were normal for someone of [the child’s] age and developmental stage. I did not feel they were consistent with non accidental injury”.
Because of the ongoing legal proceedings the Paediatrician felt it prudent to perform a skeletal survey, full blood count, coagulation profile and ophthalmology review. The results from each of these procedures were normal. According to him, a lesion above the child’s left eye was likely to be an epidermoid lesion. In relation to the lesion, he recommended no intervention unless it increased in size or became very red and swollen. It was his plan to review the child in about six months. That the child was required to undergo significant medical tests is testimony to how poor the parties’ communication was and of the types of problems which their inability to discuss matters have and unless the situation improves, would in the future cause.
The 21 July 2009 orders required the mother personally hand the child to the father and restrained her from having family members in the vicinity. For both parties these were stressful times. The mother began to suffer migraines, which resulted in a number of occasions when she was unable to drive. Because of the restraints contained in the 21 July 2009 orders, she was unable to delegate handover to family members. Thus, on those occasions, the child missed seeing the father.
The mother did not have a motor vehicle and relied upon the family loaning her a car to take the child to changeover. There were occasions when she was unable to borrow a car and thus could not deliver the child to the Garda Station. In her affidavit, the mother identified occasions when the weather made it too dangerous to drive. Whenever the mother was unable to take the child to the Garda Station either she or her solicitor advised the father or his solicitor of the situation.
Thus, although the father missed a significant number of visits, the significance of these must be evaluated in the context of the mother being ordered to provide access seven days a week for five months upon conditions, which, at times, could not reasonably be filled.
The Supreme Court heard the mother’s appeal on 20 October 2009. Judgment was reserved until 19 November 2009.
On 19 November 2009, the mother’s appeal was dismissed. Paragraph 7 of the orders dated 21 July 2009 was amended as set out below and in all other respects the orders of 17 and 21 July 2009 were affirmed. The Court indicated the child would be ordered to return to Australia on 27 December 2009. The matter was then adjourned until 26 November 2009 for consideration of outstanding matters, including the question of costs.
The matter was again before the Supreme Court on 26 November 2009. The Court reserved its decision overnight and on 27 November 2009 made the orders set out below:
The Motion on behalf of the Respondent pursuant to Notice of Appeal dated the 20^th day of August 2009 as amended by Notice of Appeal dated the 30^th day of September 2009 by way of appeal from the Judgment of the High Court (Mr Justice MacMenamin) given on the 17^th day of July and the Orders made on the 17^th and 21^st day of July 2009 respectively ordering inter alia that the minor named in the title hereof be returned to the jurisdiction of the Courts of Australia and for an Order setting aside the said Judgment and Orders on the grounds and as set forth in the said amended Notice of Appeal coming on for hearing before this Court on the 20^th day of October 2009
Whereupon and on reading the said amended Notice of Appeal the said Orders of the High Court the documents therein referred to the Judgment of the High Court and the written submissions on behalf of the respective parties and on hearing Counsel for the Respondent and Counsel for the Applicant
IT WAS ORDERED that the case should stand for judgment
And the same being listed for judgment on the 19^th day of November 2009 and being called on accordingly in the presence of Counsel for the Respondent and Counsel for the Applicant
IT WAS ORDERED AND ADJUDGED that this appeal be dismissed
And IT WAS ORDERED that paragraph 7 of the Order dated 21^st day of July 2009 be amended as hereinafter set forth and as so amended that the said Orders of the 17^th and 21^st days of July 2009 be affirmed
And the Court indicating that it would propose to fix the 27^th day of December 2009 as the date on which the minor shall be returned to the jurisdiction of the Courts in Australia
IT WAS ORDERED that the Respondent do forthwith lodge her passport and that or those of the said minor with the solicitor for the Applicant and that the said passports be held in the joint custody of the Solicitors for the parties pending the return of the minor to Australia or until further Order – the Court noting the agreement of the Applicant’s solicitor to accommodate the Respondent regarding any travel arrangements by her on the 27^th day of December 2009 or other date
And the matter having been adjourned to the 26^th day of November 2009 and coming on for further consideration on that date
And on hearing Counsel for the Applicant and Counsel for the Respondent
And the Court being informed that the passports of the minor had been delivered to the Applicant’s Solicitor and that the passport of the Respondent would be handed over forthwith
And the matter having been adjourned to this day for further consideration of outstanding matters including the question of costs
And on hearing said respective Counsel
IT IS ORDERED as follows:
1.that paragraph 7 of the Order dated the 21^st day of July 2009 be amended by substitution therefor of the following paragraph:-
‘7.Subject to any right of the parties to make an ex-parte application neither party shall make application to the Australian Family Court without notice to the other save for the purpose of putting in place a mirror Order or such other Order equivalent to the Order of this Court as is permissible within the jurisdiction of Australian Courts’
2.that on the 27^th day of December 2009 the minor be returned to Australia in the de facto custody of the Applicant
3.that on arrival in Australia the minor do remain in the actual care and control of the Applicant for a period of ten days without prejudice to the right of the either party to apply either prior to or on arrival in Australia to vary this Order
4.that the Respondent be entitled to such access to the minor as she seeks during that ten day period
5.that on the expiration of the said ten day period the minor be returned to the care and control of the Respondent subject to the terms of the Order dated the 21^st day of July 2009 or such other Order as may be made by the Court in Australia
6.that the Applicant’s solicitor be at liberty to transmit a copy of this Order to the Central Authority in Australia
And the High Court having made no Order as to the costs of the proceedings in the High Court the Court doth affirm said Order and doth make no Order as to the costs of this appeal. [My emphasis]
Thus, the Supreme Court ordered the child return to Australia on 27 December 2009. In so doing the Supreme Court discharged the order of 21 July 2009 made in the High Court, which made the child’s return conditional upon the father fulfilling the conditions set out prior to her return. The Supreme Court, did not, as the father claimed, discharge the obligations imposed upon him by the High Court. In relation to the child’s arrangements, the combined effect of the orders of 21 July 2009 and 27 November 2009 was that the child would return to Australia with the father. She would, upon arrival, remain in his care for 10 days, during which the mother would spend time with her “as she seeks” and at the end of which the child would return to the mother. In relation to the conditions imposed upon the father, as the bolded words above emphasise, subject to the variations set out, the Supreme Court specifically affirmed the earlier orders. In Ireland and Australia, the father had legal representation. I do not accept he believed he had been relieved of his obligations to provide the mother in Australia with accommodation, car and financial support as set out in the orders made on 21 July 2009.
By this time, the mother had delivered the child’s Irish passport to the father’s solicitor and was required to deliver hers forthwith. The father, who had obtained an Australian passport for the child, thus had possession (through his solicitor) and control of the child’s two passports.
On 27 November 2009, the mother delivered her passport to the father’s solicitors. Because the mother’s passport did not contain a current Australian visa, the Court ordered the father take the child back to Australia.
There followed an exchange of correspondence between the parties’ solicitors in relation to the handover arrangements for the child. It was the mother’s proposal she deliver the child to the father at the airport. The father proposed that the mother hand over the child at the Garda Station to him at 10.00 am. The mother agreed to this.
On 14 December 2009, the mother’s solicitors informed the father’s solicitors of her proposals for contact with the child during the 10 day period she was to be with the father. That is, in accordance with Order 3 made on 27 November 2009 in the Supreme Court. She proposed contact, commencing from 29 December 2009 until 5 January 2010 consistent, in terms of frequency, with the pattern of daily visits which the child had with the father in the preceding five months. The mother sought contact with the child as follows:
·on 29 December 2009 from 1.00 pm to 6.00 pm at T Police Station;
·from 30 December 2009 to 3 January 2010 from 10.00 am to 3.00 pm daily;
·from 10.00 am to 4.00 pm on 4 January 2010.
Although the mother’s solicitor’s letter dated 14 December 2009 referred to November 2009, it was clear her proposal related to December 2009. The penultimate paragraph of this letter was as follows:
As you are aware the 10 day order expires on 5 January 2009 [sic], at which date your client is to return [the child] to the care of my client. It is proposed that [the child] be delivered to [T] Police Station along with the keys to the property at [P] at 12.00 noon on that date.
The father’s solicitors responded to this letter on 15 December 2009. Having said he considered the mother to be a serious flight risk, because, inter alia, he did not have the address where she would be staying in Australia and he had concerns with her retaining her passport, the father said:
Despite these difficulties he wishes to arrange and values meaningful access between his daughter and your client and he proposes access at the family home in [P] in the company of his mother beginning on 30 December 2009.
The mother was anxious about the situation that might develop if she spent time in the father’s home, particularly if the father or his father were also present. Although the father said he continued to negotiate arrangements for the mother to see the child in Australia, he made no different or suitable offer. As will be subsequently shown, even when the mother accepted all of his conditions the father refused contact between her and the child.
In the final paragraph of the mother’s solicitors’ letter, it was noted she sought occupation of the P home once the child returned to her, in other words at the end of the father’s 10 day period. Nowhere in this correspondence did the father’s solicitor suggest the Supreme Court had discharged the obligations imposed upon him by the High Court. I infer this was because the order had not been discharged. I infer they informed the father that the effect of the orders was that his obligations had not been discharged. Before me, counsel for the father conceded the conditions imposed by the High Court had not been discharged by the Supreme Court; with the relevant variation being they applied but were no longer conditions precedent for the return order. It is noteworthy that only after the father had the child in his possession in Australia did he assert to the mother he was not obliged to fulfil the conditions imposed by the High Court. This was an argument of convenience used by the father to justify his deliberate failure to abide by the obligations imposed upon him by the courts in Ireland. Although I do no accept the father’s evidence he informed the courts in Ireland he could not comply with these orders, even if he did he was nonetheless obligated to do so.
While still in Ireland, both parties retained lawyers in Australia. The mother retained Barkus Doolan Kelly who, on 22 December 2009, wrote to the father and reiterated her request for contact with the child in Australia. So that it is clear, the orders made by the Supreme Court entitled the mother to nominate the periods during which she would spend time with the child and did not require the father’s consent. In essence, he was required to make the child available to the mother as sought by her. These solicitors correctly re-calculated the 10 day period from when the child arrived in Australia, rather than from when the mother delivered her in Ireland. Thus, the effect of the orders was corrected to state, in Australia, the child would be with the father from 29 December 2009 until 8 January 2010.

I agree with the father if the child lives in Ireland, the extent to which he can influence her development and maintain a meaningful relationship with her is less than if she lives in Australia. Thus, the fact that Australia is the only country where the parties and child can live is an important advantage of this aspect of the father’s proposals.
If the child resides in Australia, whether primarily in the mother’s care as she proposes, or with more time in the father’s care as he proposes, even something in between, serious issues arise about how these arrangements would impact upon her relationships with her parents. Central to this matter is the nature of the parties’ relationship and the extent to which the parties, individually and collectively are able to meet the child’s emotional and psychological needs. The parties’ relationship is very difficult and almost certainly will not improve. I have accepted there have been incidents of family violence by the father towards the mother and that the mother is genuinely afraid of him. Before the parties separated, they agreed the mother was not coping emotionally. Her mood was depressed and each of them wondered whether she had post-natal depression. Although the mother did not have post-natal depression her symptoms of anxiety, distress and low mood were real. These troubled not only her, but also the father. In Australia, the mother was quite isolated and she lacked family and personal supportive relationships, which might have assisted her in her difficult situation. Members of the father’s family, who knew of her distress and isolation, gave her no practical support. If ever they were likely to provide support for her, it was before the parties left for Ireland. Thus, although the paternal grandmother and the father’s sister say they would like to renew their relationship with the mother and provide her with a degree of support, I do not accept this is likely.
Even with therapy and medication the mother continues to struggle emotionally. I have recounted evidence of her ongoing anxiety, which I accept is real and not feigned. If the evidence established there was a reasonable likelihood of improvement in the parties’ relationship as a consequence of which the mother’s anxiety and fear in her dealings with the father might dissipate, it might be possible to conclude her anxiety and fear would pass. Counsel for the father pointed to the recently introduced communication book and the parties’ agreement this was a slight improvement in their ability to deal with each other, as a basis to be optimistic improvement to the parties’ relationship was likely. The few matters counsel was able to point to provide insufficient foundation for optimism.
It was the family consultant’s evidence, which the Court accepted, that the mother may feel far more secure emotionally if she was removed by a significant distance from the father. It is only in the context of the parties’ relationship that the mother’s emotional wellbeing has been compromised. Prior to then, she was a happy well functioning person. The situation now is that for her to regain and maintain emotional good health, she will need to return to her family in Ireland. Even if the father also moves to Ireland, the mother needs to have her family’s support. There her ongoing struggles with her fear and anxiety will dissipate. While for a time she is likely to need ongoing therapy, because she would feel safe and supported in Ireland, her need for therapy and medication is likely to pass. On the other hand, if the mother remains in Australia she will continue to struggle emotionally. This is because of the effect of ongoing stress and anxiety engendered through her dealings with the father, which therapy and medication have been unable to alleviate. While, to date, she has been able to care for the child, the cumulative effect of this poses a real risk to her capacity to “be consistently available to the child on an emotional level”. I am strongly satisfied that in order to enable her to continue to meet the child’s psychological and emotional needs, the mother needs to live near her family, which means Ireland.
It is thus necessary to consider whether the father in the short or long term would be able to meet the child’s psychological and emotional needs, which would include the loss to the child of the mother being consistently available on an emotional level. I made findings which were critical about the father’s lack of regard for the child’s emotional needs, when he failed to make the child available to the mother for contact and then refused to return her on 8 January 2010. In so doing, the father demonstrated a serious lack of regard for the child’s emotional needs. His refusal to allow the child to have her attachment and comfort items is also illustrative of the point. Following these events and before the father was interviewed by the family consultant, he completed two parenting programs, one of which targeted separated, blended and single families. Even equipped with the information he received from these programs, when the family consultant interviewed him the father showed little understanding of attachment issues and had “very little empathy” for the child’s need for security and emotional comfort whilst very young. Even after he received the family report, the father’s views about these matters were unaltered. The father’s evidence and indeed, the orders sought by him, demonstrated that he fails to fully appreciate, or is unable to respond to, the child’s emotional and psychological needs at a level and with a consistency required by her. Even with the ongoing support he receives from Mr F, I am not satisfied the father has the capacity to meet the child’s emotional and psychological needs in a consistent or ongoing fashion.
Even without this qualification to the father’s parenting capacity, because the child is so reliant upon the mother for her psychological and emotional needs, it would be deeply troubling to this child to deprive her of the opportunity to have the mother continue to provide these. My point being, even if I was satisfied that in the long term the father might be able to meet the child’s psychological and emotional needs, this would still come at a real cost to the child. I outlined earlier the particular importance for this child, because she has been through emotionally disturbing incidents, that the Court avoids steps, which would compromise her primary attachment figure’s ability to meet her long-term emotional and psychological needs. These are important advantages, which weigh heavily in favour of the mother’s relocation application.
I have explained my satisfaction that even if the child and father live in different countries they will continue to enjoy a meaningful relationship. The child will still have a meaningful relationship with him. The family consultant explained how children the same age as the child are able to draw on internalised images of their parents and communicate meaningfully with distant parents. I accepted her evidence this is reliant upon the support the mother would give the child’s relationship with the father and the being confident she would comply with orders. As to these matters I am strongly satisfied she will both encourage the child’s relationship with the father and comply with orders. In reaching this view, I have not lost sight of the mother’s non compliance with orders in Ireland or the criticisms she made of the father’s parenting capacity and behaviour. At this stage, the father’s support for the child’s relationship with the mother is less certain. Provided the father was able to spend time with the child annually until 2014 for periods of some weeks, ideally his long school holidays and then during the school holidays as the mother proposes, he will have a significant role in the child’s life and a strong relationship with her. It will not have quite the same intensity as would exist if they lived in the same country. On this scenario, I am strongly persuaded she will know him as her father. Thus, although aspects of the child’s relationship with the father are compromised if she lives in Ireland without him, the importance to her of ensuring her emotional and psychological needs are met long term, requires the former gives way to the later.
Matters of culture and religion loomed large. I resolved in the father’s favour that he and the child are Aboriginal. The effect of the 2006 amendments introduced a specific right of the child to explore the full extent of her Aboriginal culture, to have the support, opportunity and encouragement necessary to do so and, inter alia, to develop a positive appreciation of that culture. This is more extensive than merely being provided with information and knowledge and encompasses “an active experience of the lifestyle, culture and traditions” of Aboriginal people. In this way the child is imbued with a sense of being Aboriginal, of kinship bonds and community. I accept the observations made by Soo See Yeo that Aboriginal relationships are more extensive than blood or marital ties. It follows that although the father’s parents, W and D do not identify as Aboriginal, through the child’s relationship with the father she would be able to establish her “Aboriginal sense of self” and kinship ties characteristic of Aboriginal life. Merely because during the short period the parties lived together the father did not spend time with Aboriginal people or obviously engage with their culture, this is not indicative of the extent to which he identifies as Aboriginal. Nor does it indicate he would not support and encourage the child to explore the full extent her Aboriginal heritage.
The father’s personal circumstances imposed many barriers for him to participate in Aboriginal life. I have accepted his evidence about his journey of personal discovery and his involvement with his indigenous heritage. As a new husband and father it was reasonable for him to be less active in Land Council activities and for him to focus on work and family life. Such steps as the father has taken since then in relation to the child and her Aboriginal heritage have been age appropriate, for example securing a place at Aboriginal Day Care and taking her to an Aboriginal medical centre. Notwithstanding my concerns about how it was to be implemented the father’s idea that the child attends NAIDOC day celebrations is another good example. An opportunity, which is available to the child in Australia, but not in Ireland, is that she could attend a school, which promoted Aboriginal learning and where other Aboriginal children attend. With the father’s active support this would provide a setting in which the child would develop a strong and active knowledge and connection to her Aboriginal heritage. These are advantages of Australia, which weigh strongly in favour of the father’s approach against relocation and in favour of orders, which would increase the child’s time with him.
If the child lives in Ireland or has considerably less time with the father than is sought by him, it will be more difficult for her to participate in Aboriginal lifestyle, culture and customs and enjoy this aspect of her heritage. While I am satisfied the mother will provide the child with information and knowledge about her heritage, this falls short of providing the child with the opportunity to explore to the full extent this aspect of her life. The father spoke eloquently about how, commencing in his late teens, he developed “a strong sense of my Aboriginal identity and an intimate knowledge of our protocols, respect, and history.” In addition to academic study he has “developed my cultural understanding of my own identity and world view by actively identifying with and engaging in the Aboriginal community.” He has helped other Aboriginal people “along their own journey of self discovery and personal awareness.” Thus, I accept that beyond his family, the father is engaged in Aboriginal life and is part of an Aboriginal community to whom he is able to connect the child. The father’s ties to his Aboriginal culture and community are strong and, while the child is in his care, he will include her in this life. The strength of the father’s Aboriginal identity shows that even if the child’s involvement in her Aboriginal heritage does not immediately commence or occur with the intensity the father seeks, it is possible to dovetail her rights to enjoy her Aboriginal heritage with other important aspects of her welfare.
If, for example, the child lived in Ireland and, from 2014 returned to Australia annually, from when she is about six, while she is in Australia the father would immerse her in a real way in his Aboriginal life. Because the child would have a consistent period during which this aspect of her life had particular focus, the impact upon her appreciation of her Aboriginal heritage and participation in kinship, culture and traditions would be significant. She would during these periods, provided they occurred sufficiently often, this would reinforce her exploration and positive appreciation of that culture and her sense of Aboriginal identity should be strong. The family consultant was alive to this issue and was confident the child would achieve a positive appreciation of her Aboriginal culture and Aboriginal identity even if she lived in Ireland until 2014 and only then commenced annual trips to Australia at the frequency and for the duration proposed by the mother.
I also agree with the family consultant the mother will support the child’s appreciation of Aboriginal culture. This matter required careful consideration, particularly in light of the mother’s limited understanding of Aboriginal history and the unfortunate remarks made to her by the father’s relatives recounted in her affidavit. Also, the view she expressed to the family consultant that the father, in effect, was opportunistic in how he claimed he was Aboriginal but, other than in the work place, did not involve himself in kinship or community life. The mother’s inclusion of the statements made to her by members of the father’s family about this issue was intended to convey, inter alia, her dismay at what was said. These are not reflective of her attitudes. Because her time in Australia has been limited and, during her life with the father he did not expose her to Aboriginal culture, heritage and community, she has virtually no understanding of his culture, including relevantly, the history of dispossession of Aboriginal people. Because the father does not speak to the mother he will not share his knowledge of Aboriginal culture with her. Thus, such knowledge the mother acquires will be through literature and not first hand.
Nonetheless, I assess as genuine the mother’s willingness to accept the Court’s decision about whether the child is Aboriginal. Her acceptance will be reinforced by the father taking active steps to encourage the child’s appreciation of Aboriginal culture. These steps will not be undermined by the mother and, as the child matures, I am satisfied she will have the mother’s warm support as she develops her appreciation of Aboriginal culture and her sense of identity as an Aboriginal person.
The mother’s application that the child is raised Roman Catholic does not conflict with the father’s ambition for the child to enjoy and participate in Aboriginal life. Nor does it conflict with the mother’s desire for the child to share and enjoy her Irish heritage. I have already found that the father was initially willing for the child to be raised Roman Catholic and, by being raised Roman Catholic, this would not see her excluded by her father or paternal relatives. This is an important component of the mother’s identity and is an aspect of life which it is important to the mother she and the child share. Whether the child lived in Ireland or Australia, because of the depth of the maternal family’s identification as Roman Catholics, unless the child is also Roman Catholic, she will be excluded from an important part of their lives. If the child resides in Australia the regular reminders she does not share this aspect of life with her maternal family will not be as frequent as would occur if she lived in Ireland. Nonetheless, she would witness her mother’s involvement in religious practice and come to understand this is a point of difference between them. This point of difference would be strongly reinforced whenever the child visited Ireland with the mother. The father has the capacity and ability to engage with the child in relation to matters of religion and expose her to other faiths and philosophies without creating confusion for the child. He is willing and would, from time to time, take the child to mass. Irrespective of whether the child resides in Australia or Ireland, I am satisfied it is in her best interest she shares her mother’s faith. If the mother resides in Ireland, I agree with the family consultant, by being Roman Catholic because of the mother’s family connection with Catholicism the argument in favour of the child being raised Catholic is even stronger.
Issues of family violence and risk have been discussed at length. The paternal grandfather presents an unacceptable risk of sexual abuse. Separation of the child from him is in her interests. Notwithstanding the steps which the father and his immediate family have taken to protect the younger family members from the paternal grandfather with the vigour which the risk he presents requires. The evidence did not reveal any reason associated with the child’s welfare for the father to include the paternal grandfather in his time with the child. His inclusion of his father in the child’s life demonstrates the father’s lack of appreciation of the risk his father poses to her. Even with a restraint in place, if the child is in the father’s care for prolonged periods or at a frequency insufficient to maintain his relationship with his father, the risk he will become complacent and disregard the restraint is real. While the child is little, the risk the father will become complacent and include his father in his visits with the child is reduced, if the time she spends with him is short and does not conflict with his apparent desire to spend time with his father. When she is older, as I have said, she is more able to self protect and report, thus overnight time becomes appropriate. If the child lives in Ireland this comes at some cost to her relationship with her paternal grandmother and other paternal relatives. In the long term, these relationships can be replenished during the child’s annual visits to Australia. Thus, although they will be less strong than if the child lives in Australia the child will still have nice relationships with them.
In a similar vein, there are risks to the child of exposure to family violence in the father’s care, which are not present in the mother’s care. Although this risk is small, it should not be ignored. It is particularly relevant to changeover arrangements and provides a strong foundation for orders, which restrain the father from using alcohol whilst the child is in his care.
In the mother’s primary care in Ireland the child will be part of a family setting with healthy role models. There is no need for injunctions and other precautions to ensure her safety. In short, if the child resides in Ireland, she will live in an environment where her immediate family can fully engage with her and with whom she will have happy relationships without risk. As must be clear, the entirety of the child’s environment in Ireland compared to the circumstances, which would prevail in Australia, is one in which she will fare best.
The effect of these findings is that I am strongly satisfied it is in the child’s best interests she resides primarily with the mother in Ireland. It is essential if this child’s emotional and psychological needs are to continue to be met that she lives primarily with the mother and that the mother’s living circumstances do not undermine her emotional wellbeing. The evidence clearly established the mother’s emotional wellbeing has deteriorated and, even with therapy and medication, if she remains in Australia the cumulative effect of stress and anxiety will increasingly compromise her capacity to adequately meet this important aspect of the child’s needs. The mother’s anxiety and stress in dealing with the father are highly unlikely to dissipate. The mother requires close family support in order to cope with the parties’ poor relationship. Visits by her to Ireland and by them in Australia have not prevented the mother from becoming as stressed and anxious as the evidence demonstrates she has suffered from at least mid 2008. By returning to Ireland, not only is the mother relieved from needing to frequently deal with the father, with the anxiety and stress this causes, but she also has the level of emotional and practical support from her family, which is so beneficial to her and thus the child. If perchance he also moves to Ireland she will have her family’s support which is of benefit in helping her cope with her dealings with the father.

I have not been persuaded the father has the level of understanding of the child’s emotional needs or the capacity to provide for the child’s emotional and psychological needs such that it would be appropriate, to design orders underpinned by an expectation he would, in the long term, do so. Not only in the short term would this inevitably cause the child real distress because of increasing separation from her primary attachment figure and the person upon whom she is reliant for her emotional and psychological needs, but there would be added complication caused by the father’s inability to meet these needs to the extent the child requires.
Because the child will live primarily with the mother she is the party who will have sole parental responsibility. It is likely the mother will wish to return with the child to Ireland promptly. It is appropriate, nonetheless, that the father has a little time with the child before she departs. Thus, the mother must give the father 14 days notice of her departure date. To enable the mother’s departure, hers and the child’s passports shall be returned and these orders will discharge all orders, which restrain the child’s departure from Australia. Notwithstanding the parties’ mistrust about each other in terms of the risk they may remove the child from Australia it is my assessment the risk is theoretical and not real. There is no longer proper basis to continue the injunctions made at the commencement of these proceedings. In addition, it will be unnecessary to make orders, which enable the mother to raise the child as a Catholic or enrol her in the nominated Catholic school in Ireland.
I have found it is unlikely the father will move to Ireland and the first suite of orders will address where the child resides in Ireland and he resides in Australia. Until January 2014 the father shall spend time with the child in Ireland. The general structure of orders proposed by the mother is age appropriate and takes into account that although the child will regularly talk to the father by Skype, it is likely there will be long periods during which they are not together. The child is more likely to enjoy and thus benefit from daytime visits with her father if these coalesce with the general rhythm of her life. Although the father wants overnight time with the child sooner, this is not the better approach. Overnight time before then is likely to see the child struggle to cope and cause her stress. This would not be conducive to successful periods with the father. Because the child will not yet be at school, the father will be able to nominate the periods he will visit the child in Ireland. These will probably coincide with his school holidays but he will be free to nominate when they occur. By giving the mother no less than 28 days written notice of his intention to spend time with the child, she will be able to make whatever arrangements are necessary to prepare the child and facilitate her visits time with him.
From 2014, the child will commence spending time overnight with the father. This will occur incrementally, with the increments designed to ensure this transition takes place smoothly and does not cause the child stress through premature prolonged separation from the mother. Provision will be made for two block periods annually, one during the father’s January school holidays in Ireland and the second during the child’s June school holidays in Australia. It is my expectation the father would spend the majority of his January school holidays from this time annually in Ireland. Although the Irish Christmas school holidays are short, the father will be able to become involved in the child’s school life. For example, he will take the child to and from school and can meet her friends and teachers. In effect, this affords him the opportunity of hands on parenting in an area of his particular expertise. The child’s annual visits to Australia from 2014 may not always fully coincide with term breaks in Australia. However, to date the father has been able to avail himself of his employer’s flexible work conditions and he should be able to ensure he is not required to work during these periods. Initially, and until the child commences primary school, during these annual June trips to Australia, the child’s time with the father will be suspended briefly so that she can spend time with the mother. The point is not to unduly stress the child by prolonged separation from the mother and for the child to be confident although she is spending time away from the mother she has not been abandoned. By the time the child commences primary school she will be sufficiently mature that she no longer needs this reinforcement.
The father will be responsible for his travel costs to Ireland and the mother responsible for her and the child’s travel costs to Australia. Although it was suggested the father would contribute to the child’s travel costs to Australia and the mother to his costs to Ireland, it is easy to anticipate disagreements about costs and reimbursement. The orders I will make reduce the prospect of disputation. In relation to the costs which will be incurred in implementation of these orders, the are within the parties’ reach
The father’s December/January school holidays are long enough for him to manage four to five weeks with the child in Ireland. Her June holidays will enable her to spend about four weeks annually in Australia. This provides the child and father with intense periods of contact approximately every six months. This will be supplemented from when the child leaves Australia by twice weekly Skype contact. The point of this contact is to reinforce the child’s relationship with the father and to give them the opportunity for ongoing involvement in each other’s lives. The point being they can share with each other events as they occur.
The orders will limit the father to spending time with the child in Ireland or Australia. This is necessary to ensure the child’s ability to spend time with the mother with the frequency provided in the orders. Also, while the parties’ relationship is so poor and distrustful this approach avoids further damage to the parental relationship. Ideally there will come a time, perhaps when the child is in secondary school, that this limitation will be unnecessary. It would be lovely for the child with the father travelling to Ireland annually; they could spend some time travelling in other parts of Europe. Unfortunately, it is too far in the future for the Court to assess whether that would be appropriate. I will not order the child’s passport to be held by a Court. The child’s passports shall be in the mother’s possession, it being my view there is no unacceptable risk she might disappear with the child.
Provision is made for the child to share special occasions with the father. If the father’s visits to Ireland coincide with Christmas, his or the child’s birthday, Father’s Day or NAIDOC week, the child will spend time with him consistent with the general structure of the orders which relate to that period. Thus, if the child is not yet spending overnight time with the father she will have a portion of that day with him. The only variation to this relates to Christmas and Boxing Day which will alternate annually.
Once the child starts to visit Australia provision needs to be made for her to return to Ireland a couple of days before classes resume. This is to enable the child to deal with jet lag and the rigors of travel before she needs to cope with classes.
The orders make provision for the child to spend time with the father in Ireland on the basis he too lives in Ireland. While ultimately, this is a matter for Irish law, the parties invited the Court to address this scenario. While I consider this an unlikely scenario, it is appropriate to address this possibility. Again, the structure of the orders is in two parts, namely pre 2014 and thereafter. I have already explained my rationale for not ordering overnight time with the father prior to 2014. The orders provide for regular day periods, including on special occasions. Overnights will commence in 2014, at a time I am satisfied the child will have the maturity to not be stressed at separation from the mother for these periods. For one term the father will have the child for two consecutive nights each alternate weekend. After one term of this arrangement, the child should be comfortable enough to extend the weekend until Monday morning. This also has the obvious advantage of the child moving between the parents without them needing to come in contact. More frequent time during term would require a greater degree of communication and cooperation than the parties could achieve. Special occasions are provided for but not quite as extensively in other scenarios. This is because the regularity of alternate weekends and some special occasion celebrations will ensure, even if the child does not see the father on the day, she will be able to share this event not long afterwards. More frequent variations for special occasions are likely to make the child’s arrangements too chaotic. Thereafter, school holidays will be divided equally between the parties and alternate in one-week blocks. Amongst other reasons, because I do not know when the father, if he does, might move to Ireland, it is difficult to determine when the child would be comfortable for even longer periods with him. Doing the best I can, at least by the time the child is in secondary school, an uninterrupted equal share of the school holidays is appropriate.
Whether the father resides in Ireland or Australia, from 2014 the child will spend time with him in Australia during the Irish June school holidays at his election. In those instances, I agree with the father’s approach that during the child’s stay with him in Australia, it is appropriate for her to spend time with the mother with the frequency set out in the orders.
The parties differed in their approach to where changeover should take place. Until the mother and child leave Australia the existing arrangement will continue. This has the benefit of familiarity. The mother proposed changeover in Ireland at a police station. The father proposed the Library. Changeover at a police station minimises the risk of unpleasantness and arguments in the child’s presence. History has shown difficulties arose when the parties attempted a supervised visit in a park. This resulted in an incident as a consequence of which the mother obtained a safety order. The existence of the safety order also reduces the risk of aggressive behaviour at changeover by the father. Eventually the child will realise how poor her parents’ relationship is, which point will only be reinforced by changeover at a police station. In my view police station changeovers are rarely appropriate. Not only is the setting generally not conducive for this, it is not uncommon for events which the child may find troubling to occur in this setting. Thus, on balance, the more normal setting of the Library will be ordered. Once the child is at school, as far as possible, this is where changeover will occur. Contact changeover centres are reasonably available in Australia and, provided there is a centre in reasonable proximity to the father, this is where changeover will occur. Obviously, this addresses the problem of the parties coming into contact with each other and there is no risk of difficulties at changeover. If the contact centre is unavailable, for the same reasons the Irish Library is ordered, T library will be the alternate venue. This regime addresses, inter alia, s 60CG considerations.
There are then a suite of specific orders and injunctions designed to ensure the parties share information about the child and restrain behaviour, which the child would find troubling or which would place her at risk. These orders are self-explanatory.
For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding five hundred and seventy-three (573) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 December 2010.

Associate:

Date: 8 December 2010