Sora and Mikan and Anor

[2013] FamCA 138

FAMILY COURT OF AUSTRALIA

SORA & MIKAN AND ANOR [2013] FamCA 138

FAMILY LAW – CHILDREN – with whom a child should live – best interests of the child – where the mother seeks orders permitting the child to return with the mother to Japan to live with the child’s sister and the maternal family – where the father seeks orders that the child remain living in Australia with the father, the child’s half-brother and the paternal family.
FAMILY LAW – CHILDREN – potential relocation to a country which is not a signatory to the Hague Convention – the effect of Japanese law.
FAMILY LAW – CHILDREN – danger to a child from earthquake, tsunami and radiation in Japan – the concept of acceptable risk.

Family Law Act 1975 (Cth)
The Hague Convention on the Civil Aspects of International Child Abduction

Cowley v Mendoza (2010) 43 Fam LR 436
Taylor v Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

APPLICANT: Ms Sora

1st RESPONDENT: Mr Mikan

2nd RESPONDENT: Ms Morgan

INDEPENDENT CHILDREN’S LAWYER: Kelly Stanford

FILE NUMBER: SYC 4856 of 2011

DATE DELIVERED: 6 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 20–23, 26 and 28 November 2012;
and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: Yamamoto Attorneys

COUNSEL FOR THE 1ST RESPONDENT: Mr Kasep

SOLICITOR FOR THE 1ST RESPONDENT: Craddock Murray Neumann

COUNSEL FOR THE 2ND RESPONDENT: Mr Kasep

SOLICITOR FOR THE 2ND RESPONDENT: Craddock Murray Neumann

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Neville

INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors & Conveyancers

Orders

1. All previous parenting orders in relation to the child, B Mikan, born on … June 2009 (“the child”) be discharged.

2. Ms Sora (“the mother”) shall have sole parental responsibility for the child.

3. The child shall live with the mother and the mother is permitted to forthwith remove the child permanently from the Commonwealth of Australia (“Australia”) and to change the child’s ordinary place of residence from Australia to Japan.

4. The child’s name shall be immediately removed from any Airport Watch List and/or PACE Alert system in Australia and shall not be placed on any Airport Watch List and/or PACE Alert system in Australia unless at the request of the mother.

5. The father is restrained by injunction from removing the child from Japan.

6. The child shall spend time with Mr Mikan (“the father”) and Ms Morgan (“the paternal grandmother”) at other times in accordance with the Orders set out hereunder:

   (a)in Australia, for a period of one week on two occasions each year on dates and at locations to be agreed in writing between the mother and the father (“the parents”)

   (b)in Japan, for a period of one week on two occasions each year on dates and at locations to be agreed in writing between the parties and

   (c)at other times in Australia or Japan as may be agreed in writing between the mother and the father or between the mother and the paternal grandmother.

7. With respect to Order 6(a) above, the mother shall pay for all costs associated with return economy class flights and accommodation for the mother, the child and the child’s sister, M Sora (“M”), on one of the occasions that they visit Australia each year, and the father shall pay such costs on the other occasion that the child, the mother and the child’s sister M visit Australia each year upon being provided with a proposed itinerary from the mother.

8. With respect to Order 6(b) above, the father shall pay for all costs associated with his travel and any other person’s travel to and from Japan, including accommodation costs for himself and any other person whilst they are in Japan.

9. With respect to Order 6(c) above, if additional times are agreed to in writing between the mother and the father or between the mother and the paternal grandmother, any costs associated with additional time that the child spends with the father are to be paid by the father.

10. The mother will advise the father in writing at the commencement of each academic year of the dates of the child’s school holidays.

11. The mother will advise the father in writing at least 30 days prior to the commencement of each calendar year of the dates of all national and local (to the place of residence of the mother) public holidays in Japan.

1. The child shall have liberal telephone and audio visual contact with each of his father, paternal grandmother and half-brother, O Mikan (“O”), and the mother shall make the child available to enjoy such communication as agreed between the parents and, failing agreement, on no less than three occasions each week for a period of not less than 15 minutes on each occasion. It is further ordered that the mother shall ensure privacy for the child during such communications.

2. The mother and father shall each maintain a mobile telephone number and an email address or other electronic communication address for the purpose of giving effect to these Orders and shall notify the other parent in the event of any change to such number or addresses.

3. The father and paternal grandmother shall be at liberty to mail items to the child at any time and the mother shall ensure that any mail items received for the child from the father and paternal grandmother are passed on to the child.

4. The mother shall use her best endeavours to ensure that the child learns the English language and is able to continue to communicate in English.

5. The mother shall reasonably keep the father informed of the child’s state of health, his social and educational progress and his progress in life, including progress with any sporting and extra-curricular activities, such reports to be made no less frequently than once every six months.

6. In the event that the child is seriously ill or has any accident or trauma whilst in the care of either parent, that parent will forthwith notify the other parent and will provide the other parent with full details of the illness, accident or trauma, the medical treatment provided and the name(s) of the doctor(s) providing that treatment.

7. The mother shall retain possession of the child’s original health book (“the Boshitecho”) and provide the Boshitecho to the father at the commencement of the child’s periods of residence with the father; the father shall return the Boshitecho to the mother at the conclusion of the child’s periods of residence with the father.

8. The mother and the father shall, while the child is in their care, keep the other parent notified of a mobile telephone number, landline and email address where he or she may be contacted in the event of an emergency involving the child.

9. The mother and the father shall notify the other parent by email not less than seven days prior to changing their home address, email address, electronic or other communication address, mobile telephone number or landline telephone number.

10. The mother shall nominate whether the child will in the future apply to obtain or renew any Australian or Japanese or New Zealand passport.

11. The mother and the father shall do all acts and things necessary and attend all government offices and provide all such documentation as may be required by the relevant departments of the governments of Australia, New Zealand and/or Japan (“the countries”) within three days of being requested to do so either by the mother or by an authorised officer of the countries for the purpose of renewing and/or applying for passports for the child which passports shall be delivered to the mother or such person as she directs.

12. Any passport issued to the child shall be held by the mother at all times.

13. The parents shall use their best endeavours and do all acts and things necessary to procure the making of orders by consent which mirror the Orders herein in a relevant Court in Japan such that the effect of the Orders herein are given effect within the Japanese family law system.

14. It is noted that the mother has the sole parental responsibility under Japanese law to apply for and/or cause the adoption of the child to another person in Japan without the consent or knowledge of the father. In the event that the mother proposes for the child to be adopted by any other person or otherwise proposes for the child to permanently leave the mother’s care, the mother shall immediately notify the father in writing of any such proposal.

15. Any application for an order as to costs is to be filed within 21 days of the date of this Order.

16. The father is at liberty to attend upon the Sydney Registry of this Court to collect his mobile telephone that was handed up to the Court during the hearing on 23 November 2012 but which did not ultimately become evidence in the proceedings.

1. Pursuant to ss 65DA(2) and 65B of the Family Law Act 1975 (Cth) 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 to adjust and comply with an Order are set out in the fact sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4856 of 2011

Ms Sora

Applicant

And

Mr Mikan

1^st Respondent

And

Ms Morgan

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are parenting proceedings involving the mother, the father and the paternal grandmother of B Sora Mikan

   
   

   (“the child”).

2. The child was born in Japan in June 2009. At the time of the final hearing, he was three years and five months old.

3. The child was last brought from Japan to Australia by his father in October 2011 without the knowledge or consent of the mother. At the time of the child’s departure with the father, the child was in the sole care of his mother under the law of Japan. Since October 2011, the child has largely resided at the home of his paternal grandmother and her partner in Sydney suburb G

   
   

   (“the Sydney residence”).

4. The Applicant in these proceedings, Ms Sora, is the child’s mother (“the mother”). She is a Japanese citizen who ordinarily lives in Japan on her parent’s farm.

5. The First Respondent in these proceedings, Mr Mikan, is the child’s father (“the father”). He is a New Zealand citizen who has a right of residence in Australia. The father lived in Japan for a period of almost 18 years on a long-term residence visa however he presently lives in Australia at the Sydney residence. The father’s current partner and fiancée, Ms D, also presently lives at the Sydney residence.

6. The Second Respondent, Ms Morgan, is the child’s paternal grandmother (“the paternal grandmother”). She is a New Zealand citizen who ordinarily lives in Australia at the Sydney residence. The paternal grandmother’s partner, Mr C, also lives at the Sydney residence.

7. The mother proposes, inter alia, that the Court makes an order granting her sole parental responsibility for the child. She also seeks an order permitting her to return to Japan to live permanently there with the child.

8. The father and the paternal grandmother propose, inter alia, that the Court makes an order granting the father sole parental responsibility for the child. They also seek an order restraining the mother from removing or attempting to remove the child from Australia.

9. The mother and father have each presented the Court with proposals whereby the child, if in their care, could maintain regular contact with his other parent and with his extended family in the country where he does not live.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. In 1950, the paternal grandmother was born in New Zealand. She is currently 62 years old.

3. In 1975, the father was born in New Zealand. He is currently

   
   

   37 years old.

4. In 1981, the mother was born in Japan. She is currently 31 years old.

5. In 1995, the father moved to Japan.

6. In late 2006 or early 2007, the father married Ms A in Japan.

7. The mother asserts that in April 2007 she and the father first met in Yokohama, Japan. The father asserts that he first met the mother in Tokyo in about 2008.

8. In July 2007, the father and Ms A had a son together, O Mikan (“O”). O is currently five years old.

9. In early 2009, the father and Ms A divorced. The father obtained consent orders in Japan for O to live in his care. The father asserts that these orders are “the Japanese equivalent of a ‘sole custody and sole guardianship’ order”.

10. In May 2009, the mother and father commenced cohabitation in an apartment leased in the father’s name in Japan.

11. In June 2009, the child was born. Shortly after the child’s birth, the paternal grandmother visited Japan and stayed with the mother and the father.

12. In 2010, the father met his now fiancée, Ms D, while they were working for the same company in Japan.

13. In September 2010, the mother and father separated. The child remained in the care of the mother in Yokohama and the father moved with O to the Greater Tokyo area.

14. The Court notes that there is disagreement between the mother and father as to when their relationship finally ended and at what times, if any, there was ever a prospect of reconciliation. It appears that shortly after they separated the mother and father resumed a sexual relationship. The mother asserts that between September 2010 and 11 March 2011, she had sexual intercourse with the father “not less than 30 times”. During cross-examination, the mother told the Court that she believed that she was in a “serious relationship” with the father from the beginning of December 2010 until 11 March 2011. The father denies that this is the case, although he admits that the parties had sexual intercourse on one occasion after separation.

15. In January 2011, the mother had a miscarriage at nine weeks into a pregnancy. She maintains that the child she miscarried was a child of the father.

16. In around March 2011, the mother became pregnant with the child’s sister, M Sora (“M”). Whilst the father initially denied paternity of M, the mother always maintained that M was the father’s child.

17. On 11 March 2011, a major earthquake and tsunami hit Japan. Following this natural disaster, the father decided to relocate O to Australia to live with the paternal grandmother.

18. On 27 May 2011, the father with the mother’s consent brought the child to Australia to live with the paternal grandmother. On the mother’s evidence, which the Court accepts, the mother and father had agreed to resume their relationship and had planned to move to Australia to start a new life together.

19. On 1 June 2011, the mother came to Australia. The father returned to Japan a few days later. The father had at the time secured employment in Japan until 2012 and, on the mother’s evidence, the plan was that he would live in Japan until the following year, after which time he would move permanently to Australia. Whilst in Australia the mother lived at the paternal grandmother’s home in Sydney. The arrangement was that she would live there until the father’s employment was transferred to Australia.

1. On 24 June 2011, the mother signed a New South Wales (NSW) Statutory Declaration form containing a declaration that she passed legal guardianship of the child to the paternal grandmother. The mother asserts that she was instructed by the father to sign a declaration to this effect.

2. On 27 June 2011, the mother returned to Japan to sort out her affairs and to see a doctor about her pregnancy. The child was left with the paternal grandmother on the basis that the mother would return to Australia within one month.

3. Upon returning to Japan, the mother visited the father’s home and found the clothes of another woman there. Until that time, the mother says that she believed her relationship with the father would resume and that things had been working out well for them in Australia. The mother confronted the father and was told that the relationship between them had ended the prior year. Following this, it was the mother’s plan to return to Australia, take the child into her care and then return to Japan. The father asked the mother to leave the child with the paternal grandmother and to return to Japan to live near her parents.

4. On 6 July 2011, the mother telephoned the paternal grandmother and informed her that the father had had an affair and that she wanted the child to be returned to her care. The paternal grandmother told the mother that she wanted to take the child to New Zealand to live with her there.

5. Due to health problems the mother was unable to return to Australia immediately.

6. On 20 July 2011, the mother asserts that the father said to her the following:

   My girlfriend and I are going to get married next year and we are going to look after [the child B] either in Australia or New Zealand.

7. On 8 August 2011, the mother returned to Australia and immediately sought legal advice.

8. On 9 August 2011, the mother asserts that the visited the Sydney residence where the child had been living with the paternal grandmother. On the mother’s evidence, when she explained to the paternal grandmother that she had come to collect the child, she was told to leave the premises.

9. On 11 August 2011, the mother commenced proceedings in this Court.

10. On 26 August 2011, interim orders were made permitting the mother to return to Japan with the child for the period commencing 27 August 2011 and ending 11 September 2011.

11. The mother travelled to Japan with the child and they initially resided in Tokyo.

12. From 2 to 4 September 2011, the child resided with the father the Greater Tokyo area.

13. On 4 September 2011, the father returned the child to the mother in Tokyo. In her affidavit filed on 25 November 2011, the mother asserts and the Court accepts that a conversation to the following effect then took place:

    The father said:      Let’s reconcile again and discontinue the legal proceedings in Australia.

    The mother said:     Reconciliation is good to me. But how do we discontinue the proceedings in Australia? What should I do?

    The father said:      Don’t do anything. We are both here, what can they do about it over there? Ignore them. You don’t respond to your Australian lawyer’s contacts. I will ignore my lawyers as well.

    The mother’s evidence is that she and the father had a “friendly relationship” at this time and discussed “amicably” how the father would spend time with the child and the baby that she was then carrying.

14. On 11 September 2011, the child remained in Tokyo in the care of the mother, who did not return the child to Australia as she was required to by Court orders.

15. In late September 2011, the paternal grandmother travelled to Japan with O.

16. At around this time, the child again went to stay with the father. The mother’s evidence, which the Court accepts, is that the father agreed to return the child to her on 9 October 2011.

17. On 3 October 2011, the mother asserts and the Court accepts that she met with the father and that he said to her the following:

    Can I reconcile with you? I am going to finish the relationship with [Ms D]. . . I think that’s the best solution for us and our kids.

18. Soon after this, the mother asserts and the Court accepts that the father persuaded her to provide him with copies of all communications that she received from her Legal Aid lawyers in Australia.

19. On 5 October 2011, a New Zealand Emergency Travel Document for the child was issued.

20. On 6 October 2011, without the consent of or prior warning to the mother, the father returned with the child to Australia. Although presented with oral evidence from the father and the paternal grandmother with respect to who accompanied the child on the flight back to Australia which was contradictory, the Court finds that the father flew on the same flight as the child. The paternal grandmother and O returned to Australia on the same day but on a different flight. The child has remained in Australia since this date.

1. On 7 October 2011, the father attended this Court and sought parenting orders before the Justice Loughnan. Orders were made for the child to live with the father and the paternal grandmother.

2. On 25 November 2011, the mother filed an Application in a Case seeking to have the Orders of 7 October 2011 discharged and for the child to be returned to Japan.

3. On 2 December 2011, the mother returned to Japan.

4. On 15 December 2011, the mother gave birth to the child M. From the outset, the father denied that M was his daughter. He continued to deny this until September 2012 when parentage testing confirmed that he is M’s father and that M is therefore the child’s sister.

5. On 17 February 2012, the mother returned to Australia.

6. On 20 February 2012, the matter came on in the duty list before

   
   

   Justice Loughnan. Interim orders were made for the child to spend contact time with the mother in Australia and for the appointment of an Independent Children’s Lawyer (“ICL”). The parties also attended a Child Dispute Conference before a Court-appointed Family Consultant (“the Family Consultant”).

7. On 20 June 2012, the mother filed an Application in a Case seeking that she be permitted to spend longer periods of time with the child.

8. On 31 July 2012, interim parenting Orders were made by the Court. Those Orders set out, inter alia, the times at which the mother was to spend time with the child while the mother was in Sydney, namely, each alternate weekday for a period of a few hours and on alternate Saturdays and Sundays for a period of a few hours on each day.

9. On the evening of 4 August 2012, an incident occurred at the Sydney residence. The mother, father, paternal grandmother and Mr C were each cross-examined on their version of events of this evening. It appears to be conceded that on the afternoon of 4 August 2012 the mother spent time with the child at the Sydney residence. The father, the paternal grandmother, the child and O were present. After watching a film with the child, the mother stayed longer than originally planned. Mr C returned home at around 8.00 pm and a frustrated exchange between himself and the father ensued. Mr C then asked everyone present to leave the house. The father called the police, however by the time they attended the situation had somewhat calmed down. Thereafter, the mother and father left the house with the child and O. They spent the night in a motel.

10. On 14 August 2012, the mother filed a Notice of Abuse, Family Violence or Risk of Family Violence in the proceedings.

11. During the period from March 2012 to November 2012, there is evidence before the Court of correspondence that was exchanged between the parties’ solicitors with respect to, inter alia, the mother’s requests to spend time with the child additional to or in variation of the interim orders. The Court notes that much of this correspondence indicates a great measure of unwillingness and inflexibility on the part of the father and paternal grandmother to accommodate what it views as the mother’s reasonable proposals to spend more time with the child.

The Orders Sought

1. The ICL proposes orders to the following effect:

   1.All previous parenting orders in relation to the child shall be discharged.

   2.The mother shall have sole parental responsibility for the child.

   3.The child shall live with the mother.

   4.The mother shall be permitted to forthwith remove the child permanently from the Commonwealth of Australia.

   5.The child shall spend time with the father and the paternal grandmother as follows:

   a.In Australia for a period of one week on two occasions each year on dates and at locations to be agreed in writing between the parents; and

   b.In Japan for a period of one week on two occasions each year on dates and at locations to be agreed in writing between the parties; and

   c.At other times as may be agreed in writing between the mother and father or between the mother and paternal grandmother.

   6.The mother shall meet the costs of the child’s travel to Australia as set out in order 5(a).

   7.The mother shall advise the father in writing at the commencement of each academic year of the dates of the child’s school holidays.

   8.The father shall be restrained by injunction from removing the child from Japan.

9.The child shall have liberal telephone and other audio visual contact communication with each of his father, his paternal grandmother and his half sibling, [O], and the mother shall make the child available to enjoy such communication as agreed between the parents and, failing agreement, on no less than two occasions each week for a period of not less than 15 minutes on each occasion.

10.The mother shall do all things necessary to ensure that the child learns the English language and is able to continue to speak English.

11.In the event that the child has any accident or other trauma whilst in the care of either parent, either parent shall forthwith notify the other parent and will provide the other parent with full details of the accident or trauma, the medical treatment provided and the names of the doctors providing that treatment.

12.The mother and father shall each maintain an email address or other electronic communication address for the purpose of giving effect to these orders.

13.Each of the parents shall do all things possible and all things necessary to give effect to the provisions of these orders within the Japanese family law system.

14.The child’s name shall be removed from the PACE alert system in operation at all points of arrival and departure from the Commonwealth of Australia.

15.Pursuant to ss 65DA(2) and 65B 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 to adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

1. The mother adopts the orders proposed by the ICL, save for orders which vary and/or add to those proposed by the ICL to the following effect:

   (a)The mother shall meet the costs for only one of the flights as set out in the proposed order 5(a) [of the ICL’s proposed orders]; and

   (b)The first and second respondents shall reimburse the mother for the costs of the DNA testing, the costs of the expert and her other costs of and incidental to these proceedings as agreed or taxed.

1. The father proposes orders to the following effect:

   1.The child shall live with the father.

   2.The father shall have sole parental responsibility for the child and in the exercise of that responsibility, the father shall:

   a.Consult with the mother by telephone and/or in writing or email about major long term issues in relation to the child, including but not limited to issues of education and health;

   b.Provide to the mother all necessary information about major long term issues in relation to the child, including but not limited to issues of education and health to enable her to form a view as to these issues;

   c.The mother shall then set out his (sic) views to the Father by telephone and/or in writing or email;

   d.Take into account the mother’s view about major long term issues in relation to the child, including but not limited to issues of education and health, except in the case of an emergency when if it would be impractical to do so;

   e.Provide to the mother email copies of the child’s school reports, awards, sports certificates and school photographs within 14 days of receiving same.

   3.The mother shall be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders their removal.

   4.That on each occasion that the mother spends time with the child in Sydney, she shall bring with her [M] and that [M] shall spend time with the child at all times the mother is spending time with the child pursuant to these orders and, further, that the father shall do all acts and things to facilitate the child spending time with [M].

   5.That whilst the mother is present in Sydney she shall spend time with the child as follows:

   On week days until the child commences school:

   a.On the day of the mother’s arrival in Sydney for a period of five hours (if time permits) at an agreed place which is familiar to the child, and the mother shall provide the child with a meal if this time coincides with meal time;

   b.on the first full day after the mother has arrived in Sydney, at an agreed place which is familiar to the child, from 9.30am to 2.30pm and the mother shall provide the child with lunch;

   c.on the second day, at an agreed place which is familiar to the child, from 2.30pm to 7.30pm and the mother shall provide the child with dinner; and

   d.on the third and following days, at an agreed place from 9.30am until 5.30pm and the mother shall provide the child with meals and snacks.

   On weekends until the child commences school:

   e.on the first full day after the mother has arrived in Sydney, at an agreed place which is familiar to the child, for a period of 5 hours from 9.30am and the mother shall provide the child with lunch; and

   f.on each subsequent weekend day, at an agreed place which is familiar to the child from 9.30am to 5.30pm and the mother shall provide the child with meals and snacks.

   General:

   g.such further times as may be available to the mother and subject to the length of her period of stay in Sydney;

   h.all other times as may be agreed by the parties; and

   i.that upon the mother establishing a place of accommodation during her time in Sydney (“the accommodation”) pursuant to these Orders, and subject to the paternal grandmother having an opportunity to attend at the mother’s accommodation to assure herself that such accommodation is suitable for the child spending overnight time at the accommodation, the child shall spend such overnight time with the mother and [M] as the parties may agree in writing such time being in addition to the times referred to in this Order.

   When the child commences school and during school terms:

   j.in kindergarten: on the first full day after the mother has arrived in Sydney and every second day thereafter at an agreed place which is familiar to the child and after school for a period of 4 hours and the mother shall provide the child with dinner;

   k.in kindergarten: other than as provided above, on each Friday and Sunday from 9.30am to 5.30pm;

   l.in years 1 and 2: on the first full day after the mother has arrived in Sydney and every second day thereafter at an agreed place and after school for a period of 4 hours and the mother shall provide the child with dinner and assist him with his homework, if possible;

   m.in years 3 to 6: on the first full day after the mother has arrived in Sydney and every second day thereafter for a period of 5 hours from after school and the mother shall provide the child with dinner and assist him with his homework, if possible;

   n.on weekends: from 9.30am until 5.30pm each day and in the event the child is enrolled in extra-curricular sport, at the location where the sport is played and elsewhere thereafter for the balance of the time;

   o.in years 7 and thereafter as agreed by the parties and as per the wishes of the child;

   p.such further times as may be available to the mother and subject to the length of her period of stay in Sydney; and

   q.all other times as may be agreed by the parties.

   School holidays

   r.at all such times as may be agreed by the parties and in default of agreement, as follows:

   i.      from 9.30am until 5.30pm every second day in each holiday period between the end of Terms 1 and 3;

   ii.     over the December/January school holiday period, as provided in the above Order for the 1st, 3rd and 5th weeks of the mother's time in Sydney, thence in the 2nd and 4th weeks of the mother's time in Sydney from 9.30am to 5.30pm each day.

   6.That in order to facilitate Order 5 herein, the following shall apply:

   a.the mother shall provide the father with no less than 14 days written notice (by email) of her intention to travel to Sydney to spend time with the child and shall provide a copy of her airline ticket and the address of her accommodation for the duration of her stay in Sydney;

   b.the mother shall collect the child from the father’s residence or the residence of the father’s nominee at the time specified and shall leave that residence immediately after collecting the child;

   c.the mother shall return the child to the father’s residence or the residence of the father’s nominee at the time specified and shall leave that residence immediately after returning the child;

   d.in the event the child’s time commences from after school, the mother shall collect the child from his school and return the child to the father’s residence or the residence of the father’s nominee at the time specified and shall leave that residence immediately after returning the child;

   e.the mother shall advise the father in English in writing of the location at which she shall be spending time with the child when the location is not referred to herein and agreement is not required as to the location;

   f.in the event the child is unwell and unable to spend time with the mother as provided herein, the Father or his nominee shall advise the mother in English in writing of the nature of the illness and shall arrange an alternate time at which the child shall spend time with the mother;

   g.the father shall use his best endeavours to either provide or arrange private transport for the child, the mother and [M] from and to her accommodation whilst she is in Sydney and spending time with the child on weekends and if the mother so requires;

   h.the father shall provide all authorities necessary and as may be required by the child's school to enable the mother to collect the child from his school as provided herein;

   i.the mother shall, upon her obtaining accommodation, immediately provide in writing and by email the address/s of such accommodation to the father and further, the mother shall not whilst the child is spending time with her in such accommodation permit or reside with any other person who is not known to the child in that accommodation; and

   j.it is noted that the mother is at liberty for her parents to accompany her at any time whilst she is in Sydney pursuant to these Orders and that the above Order shall not apply to the mother’s parents.

   7.That the mother shall be and is hereby restrained from removing the child from:

   a.the care of the father or the paternal grandmother; and

   b.the child's pre-school or school, other than with the written by authority in writing from the father.

   8.That whilst the mother resides in Japan, that she shall spend time with the child as follows:

   a.taking into account the time differences, telephone communication with the child by the mother telephoning the child at the child's residence on Tuesdays, Fridays and Sundays between 5.15pm and 5.45pm Sydney time, and at all other times as the parties shall agree in writing;

   b.written and/or electronic communication by email, Skype and/or webcam, or such other electronic face to face system ("Skype"), the Skype taking place by the Mother commencing the communication between from 5.15pm and 5.45m on Mondays and Thursdays, and at all other times as the parties shall agree in writing;

   c.in the event the child is unable to utilise the telephone due to lapses of attention due to his age, then the telephone communication provisions herein shall be undertaken by Skype;

   d.it is noted that the father shall at all times encourage the child during this telephone and/or other communication or at any other time the child may require, include in such communication with the child, [M], and the child’s maternal grandparents; and

   e.for the purposes of implementation of this order, the mother and the father shall each:

   i.      ensure that the child is present at his home to participate in such communication;

   ii.     ensure that they each have a land telephone line available and operational for the purposes of such communication and that they keep each other informed of the number at all times;

   iii.     ensure that a computer webcam and/or Skype and/or speaker facilities are available and operational; and

   iv.     assist the child in participating in such communication if required.

   f.It is noted the mother is at liberty to mail items to the child at any time and it is ordered that the father shall pass on to the child all mail received for the child from the mother and that the father shall cause any third parties to pass to the child all mail received for the child from the mother.

   9.The father shall use his best endeavours to ensure the following in relation to the child:

   a.That the child learns the Japanese language and is able to speak Japanese;

   b.That the child continues to learn about his Japanese culture including festivals, food, sports, martial arts and the like;

   c.That the child create and/or write cards, letters, photographs  and other written communication to the mother, [M] and his maternal grandparents, and the father shall cause same to be emailed and/or mailed to the addressees with the appropriate airmail postage to Japan;

   d.That the child has ready access to photographs of his mother, [M] and his maternal grandparents and that same may be displayed in the child’s room and/or about the house at all times.

   10.That the mother and father shall each maintain and keep maintained at all times an email address and/or other electronic communication address for the purpose of these orders.

   11.That the mother shall forthwith deliver up to the father the child’s original ‘Boshitecho’ (being the Japanese equivalent of the NSW Health Blue Book child immunisation record booklet).

   12.The father shall retain in his possession for safekeeping all and any of the child’s passports, other than for the purpose of the child’s travel pursuant to these Orders.

   13.That the mother and the father shall each do all acts and things, sign all such documents as may be necessary, attend at all Government offices, provide all such necessary documents and on the father's part, pay all such necessary fees as may be required by the New Zealand Department of Internal Affairs, Passports Office (‘New Zealand’) within 21 days of being requested to do so by the father or an authorised officer of New Zealand for the purpose of renewing and/or applying for a passport for the child.

   14.That in the event the mother fails, refuses or neglects to comply with Order 13 herein within the time specified, then the father shall make all such applications for the child’s passports with New Zealand as he is so advised to make by New Zealand notwithstanding the consent of the Mother has not been obtained and the New Zealand Department of Internal Affairs, Passports Office are requested to give effect to this Order and to take all necessary steps to cause the issue of a passport for the child as soon as possible.

   15.It is noted that the mother has the sole parental authority under Japanese domestic law to apply for a passport and/or other travel document for the child from the relevant department of the Government of Japan without the consent or knowledge of the father.

   16.It is ordered that the mother shall inform the father in writing and by email immediately upon her application for any passport or travel document for the child from the relevant department of the Government of Japan (“Japanese passport”) and that she shall, immediately upon her coming into possession of the Japanese passport provide a copy of the Japanese passport and all successive Japanese passports that she may apply for, for the child, to the father.

   17.Notify the other parent as soon as possible of any serious illness or injury suffered by the child whilst in their respective care.

   18.Each party will notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the child whilst in the care of that party.

   19.That each party shall, whilst so ever the child is in their care notify the other parent and keep the other parent notified of a mobile telephone number, landline and email address where he/she may be contacted in the event of an emergency involving the child.

   20.That each party shall notify the other by email transmission not less than 7 days before changing that party’s home address, email address, mobile and landline telephone number and further the mother shall also notify the father as provided herein in relation to the home and email addresses and mobile and landline telephone numbers of her parents in order to facilitate Orders 8 and 9 herein.

   21.It is noted that for the purpose of these Orders, where the word ‘father’ appears in the following Orders, it shall mean and include the paternal grandmother in the event the child is in her care at the time that the Orders apply:

   a.Orders 2d; 4; 6 to 9 inclusive; 10 and 11; 15 to 19 inclusive.

   22.That in the event these Orders are made by the Court the father shall within 30 days of his receipt of the sealed Orders from the Court, obtain at his expense a NAATI translation of the Orders from the English language to the Japanese language and supply same to the mother by electronic transmission.

   23.That the Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Act to execute any document and/or instrument necessary to give effect to the foregoing orders in the event of any of the parties failing, refusing or neglecting to execute such document within 7 days of being requested to do so by any of the other parties or by the other parties’ legal representatives and the cost of procuring due execution of the document/s and/or instrument/s shall be borne on a solicitor/own client basis by the party in default and the party not in default shall be at liberty without further order of the Court to deduct from any moneys payable to the party in default pursuant to these orders such costs as have been incurred by the party not in default pursuant to this order.

   24.That the Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to the above order upon being satisfied by Affidavit that refusal, neglect or default as the case may be has occurred.

   25.That pursuant to S.65DA(2) and s.62B, 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.

1. In the event that the Court makes orders for the child to live with the mother in Japan, the father proposes alternate orders to the following effect (noting firstly that Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)):

   1.It is noted that Japan is not a signatory to, nor a party to, nor has any current or future proposals to become a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

   2.That in the event that the child is to reside in Japan with the mother then such orders requiring that the child shall reside in Japan be stayed pending:

   a.the making and/or registration by the relevant Family Court in Japan of Orders in identical terms to Orders of this Honourable Court ("the Japanese Orders"); and

   b.written confirmation by the relevant Family Court in Japan of the manner, method and personnel available to enforce the Japanese Orders in Japan.

   3.That the parties shall do all acts and things, sign all documents and provide all writings and consents as may be required to cause Order 2 to be effected and to cause the issue of all and any documents by the relevant Family Court of Japan as are required by Order 2.

   4.That upon the parties' compliance with Order 3 and the consequent issue of a sealed copy of the Japanese Orders and any further documents as are required pursuant to Order 2, that the parties do all acts and things necessary to lodge same with this Honourable Court and for the purpose of lifting the stay of orders as provided for by Order 2.

   5.That the child shall live with the father as provided in Order 8 herein and with the mother as provided in Order 9 herein.

   6.That the mother shall have sole parental responsibility for the child and in the exercise of that responsibility, the mother shall:

   a.consult with the father by telephone and/or in writing or email about major long term issues in relation to the child, including but not limited to issues of education and health;

   b.provide to the father all necessary information about major long term issues in relation to the child, including but not limited to issues of education and health to enable him to form a view as to these issues;

   c.the father shall then set out his views to the mother by telephone and/or in writing or email;

   d.take into account the father’s view about major long term issues in relation to the child, including but not limited to issues of education and health, except in the case of an emergency when if it would be impractical to do so; and

   e.provide to the father by email and/or airmail, copies of the child’s school reports, awards, sports certificates and school photographs within 14 days of receiving same.

   7.That upon the operation of Order 4, the child shall be removed from the Airport Watch List.

   8.That the child shall live with the father as follows:

   a.In Japan and until the child commences school at the age of
   7 years:

   i.      In Tokyo or such other place as may be nominated by the father at accommodation arranged by the Father for the duration of his stay in Japan for each trip.

   ii.     A minimum of 4 times per year as nominated by the father and for such additional times in each year as agreed by the parties in writing.

   b.In Japan and after the child commences school:

   i.      In Tokyo or such other place as may be nominated by the father at accommodation arranged by the father for the duration of his stay in Japan for each trip.

   ii.     A minimum of 4 times per year as nominated by the father and for such additional times in each year as agreed by the parties in writing and the father shall endeavour as far as possible to have these times coincide with the child's school holidays and/or public holiday periods in Japan.

   iii.     Such further or other periods as the child may wish once he attains the age of 10 years.

   c.In Sydney and until the child commences school in Japan at the age of 7 years:

   i.      At the father's place of residence or such other place as he may nominate.

   ii.     A minimum of 6 times per year as nominated by the father and for such additional times in each year as agreed by the parties in writing.

   d.In Sydney and after the child commences school in Japan:

   i.      At the father's place of residence or such other place as he may nominate.

   ii.     A minimum of 6 times per year as nominated by the father and for such additional times in each year as agreed by the parties in writing and the father shall endeavour as far as possible to have these times coincide with the child's school holidays and/or public holiday periods in Japan.

   iii.     Such further or other periods as the child may wish once he attains the age of 10 years.

   e.Upon the child attaining the age of 12 years he shall fly as an unaccompanied minor to Sydney or as otherwise agreed between the parties for the periods referred to in Order 8(d) herein.

   f.All other times as may be agreed by the parties.

   g.That in order to facilitate this Order the following shall apply:

   i.      The father shall provide the mother with no less than
   14 days written notice (by email) of his intention to travel to Japan and shall provide a copy of all airline tickets, his itinerary, a telephone contact number and the address of his accommodation for the duration of his stay in Japan.

   ii.     The mother shall deliver the child to the father at the airport at which he arrives at the commencement of his stay in Japan and the father shall deliver the child to the mother at the airport from which he departs at the conclusion of his stay in Japan.

   iii.     Up until the time that the child shall travel to Sydney as an unaccompanied minor, the mother shall deliver the child to the father at Sydney International Airport at the commencement of the child's periods of residence in Sydney and the father shall deliver the child to the mother at that airport at the conclusion of the child's periods of residence in Sydney.

   iv.     The mother shall provide to the father no less than
   30 days prior to the commencement of the child's school year and every year after he commences at school, a complete schedule of all of his school holidays for that year.

   v.     The mother shall provide to the father no less than
   30 days prior to the commencement of each calendar year a schedule of all National and local public holidays in Japan (local to the place of residence of the mother) for that year.

   vi.     The mother shall have telephone communication with the child whilst the child is living with the father no less than every third evening by the father facilitating the child to telephone and/or Skype the mother at the mother's place of residence or as otherwise agreed between 7.00pm and 7.30pm in the evenings at the time local to the place where the child is living.

vii.    The mother shall pay for all travel to facilitate the child living with the Father in Sydney and the child's travel to and from his place of residence in Japan to enable the child to live with the father in Japan.

viii.   The father shall pay for all travel from Sydney to Japan and accommodation in Japan to facilitate the child living with him in Japan.

9.That the child shall live with the mother in Japan at all other times.

10.That the child shall have telephone and/or electronic communication with the father as follows:

a.Telephone communication with the child by the father telephoning the child at the child's residence on Tuesdays, Fridays and Sundays between 5.15pm and 5.45pm Japan time, and at all other times as the parties shall agree in writing.

b.Written and/or electronic communication by email, Skype and/or webcam, or such other electronic face to face system, the Skype taking place by the father commencing the communication between 5.15pm and 5.45pm Japan time on Mondays and Thursdays, and at all other times as the parties shall agree in writing.

c.In the event the child is unable to utilise the telephone due to lapses of attention due to his age, then the telephone communication provisions herein shall be undertaken by Skype or other electronic face to face system.

d.It is noted that the mother shall at all times encourage the child during this telephone and/or other communication or at any other time the child may require, include in such communication with the child, [O] and the child's paternal grandparents.

e.For the purposes of implementation of this order, the mother and father shall:

i.      ensure that the child is present at his home to participate in such communication;

ii.     ensure that they each have a land telephone line and/or mobile telephone available and operational for the purposes of such communication and that they keep each other informed of the number at all times;

iii.     ensure that a computer webcam and/or Skype and/or speaker facilities are available and operational;

iv.     assist the child in participating in such communication if required.

f.It is noted that the father is at liberty to mail items to the child at any time and it is ordered that the mother shall pass on to the child all mail received for the child from the father, his paternal grandparents and [O] and that the mother shall cause any third parties to pass to the child all mail received for the child from the father, his paternal grandparents and [O].

11.The mother shall use her best endeavours to ensure the following in relation to the child:

a.That the child learns the English language in a structured course available commercially and is able to speak English.

b.That the child [M] learns the English language in a structured course available commercially and is able to speak English with the child.

c.That the child continues to learn about New Zealand and Maori culture including festivals, food, sports, and the like.

d.That the child creates and/or writes cards, letters, photographs and other written communication to the father, [O] and his paternal grandparents, and the mother shall cause same to be emailed and/or mailed to the addressees with the appropriate airmail postage to Australia;

e.That the child has ready access to photographs of his father, [O] and his paternal grandparents and that same be displayed in the child’s room and/or about the house at all times.

12.That the mother and father shall each maintain and keep maintained at all times an email address and/or other electronic communication address for the purpose of these Orders.

13.That the mother shall provide to the father the child’s original Boshitecho at the commencement of the child's periods of residence with the father and the father shall return the Boshitecho to the mother at the conclusion of the child's periods of residence with the father.

14.The father shall retain in his possession for safekeeping all and any of the child’s New Zealand passports, other than for the purpose of the child’s travel pursuant to these Orders.

15.The mother shall retain in her possession for safekeeping all and any of the child’s Japanese passports, other than for the purpose of the child’s travel pursuant to these Orders.

16.That the mother and the father shall each do all acts and things, sign all such documents as may be necessary, attend at all Government offices, provide all such necessary documents as they are required to do including if necessary the provision by the mother to the father of a passport photograph for the child complying with the required photograph specifications and on the father's part, pay all such necessary fees as may be required by the New Zealand Department of Internal Affairs, Passports Office (‘New Zealand’) within 21 days of being requested to do so by the father or an authorised officer of New Zealand for the purpose of renewing and/or applying for a passport for the child.

17.That in the event the mother fails, refuses or neglects to comply with Order 16 herein within the time specified, the father shall make all such applications for the child’s passports with New Zealand as he is so advised to make by New Zealand notwithstanding that the consent of the mother has not been obtained and the New Zealand Department of Internal Affairs, Passports Office are requested to give effect to this Order and to take all necessary steps to cause the issue of a passport for the child as soon as possible.

18.It is noted that the mother has the sole parental authority under Japanese domestic law to apply for a passport and/or other travel document for the child from the relevant department of the Government of Japan without the consent or knowledge of the father.

19.It is ordered that the mother shall inform the father in writing and by email immediately upon her application for any passport or travel document for the child from the relevant department of the Government of Japan (“Japanese passport”) and that she shall, immediately upon her coming into possession of the Japanese passport provide a copy of the Japanese passport and all successive Japanese passports for the child that she may apply for to the father.

20.The father shall provide to the mother immediately upon his coming into possession of a New Zealand passport for the child a copy of the New Zealand passport and all successive New Zealand passports for the child that he may apply for to the mother.

21.It is noted that the mother has the sole parental authority under Japanese domestic law to apply for and/or cause the adoption of the child to another person in Japan without the consent or knowledge of the father.

22.It is ordered that the mother shall be and is hereby restrained from consenting to, causing or arranging for the child to be adopted by any other person or permanently leaving the mother's care for any reason and, in the event that it is proposed that the child shall be adopted by any other person or permanently leave the mother's care for any reason, the mother shall immediately notify the father in writing of any such proposal.

23.The parties shall notify the other parent as soon as possible of any serious illness or injury suffered by the child whilst in their respective care.

24.Each party will notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the child whilst in the care of that party.

25.Each party shall, whilst so ever the child is in their care notify the other parent and keep the other parent notified of a mobile telephone number, landline and email address where he/she may be contacted in the event of an emergency involving the child.

26.Each party shall notify the other by email transmission not less than 7 days before changing their home address, email address, electronic and other communications addresses, mobile and landline telephone numbers and further the parties shall also notify each other as provided herein in relation to the home and email addresses and mobile and landline telephone numbers of each parties' parents in order to facilitate telephone and/or electronic communication herein.

27.It is noted that for the purpose of these Orders, where the word ‘father’ appears in the following Orders, same shall mean and include the paternal grandmother:

a.Orders 5, 8, 10, 12, 23 to 26 inclusive.

28.That the Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Act to execute any document and/or instrument necessary to give effect to the foregoing orders in the event of any of the parties failing, refusing or neglecting to execute such document within 7 days of being requested to do so by any of the other parties or by the other parties’ legal representatives and the cost of procuring due execution of the document/s and/or instrument/s shall be borne on a solicitor/own client basis by the party in default and the party not in default shall be at liberty without further order of the Court to deduct from any moneys payable to the party in default pursuant to these orders such costs as have been incurred by the party not in default pursuant to this order.

29.That the Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to the above order upon being satisfied by Affidavit that refusal, neglect or default as the case may be has occurred.

30.That pursuant to s.65DA(2) and s.62B, 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.

The Evidence

Exhibits

1. The following documents were tendered during the hearing and became exhibits.

2. Exhibit 1 (tendered by the father and paternal grandmother) was a NSW Statutory Declaration form dated 24 June 2011 and signed by the mother. It contained the following declaration:

   Due to the unstable situation in Japan, I will pass legal guardianship to [Ms Morgan] ([the child’s] Grandmother) until conditions in the region have stabilised.

   [The child] will be permanently residing in Australia with [Ms Morgan].

3. The mother was questioned on Exhibit 1 during cross-examination and could recall making the declaration. When asked what the first paragraph meant, she deposed that at the time of signing the declaration she did not understand what it meant in English. According to the mother, the father asked her to write the declaration and explained to her that, unless she did so while the child was in Australia, the paternal grandmother “would not be able to take him to hospital or in any other emergencies”. The mother deposed that the father gave her a sample declaration, which she copied.

4. When questioned on what the second paragraph in Exhibit 1 meant, the mother deposed that when she wrote the declaration she had no idea what terms such as “legal guardianship” or “permanently” meant. Her evidence was that she copied the sample. When asked why she would make a statutory declaration if she did not understand its contents, the mother deposed that the father and paternal grandmother were the only people that she could trust, so she “had no choice but to trust them.”

5. Exhibit 2 (tendered by the father and paternal grandmother) was a letter dated

   
   

   2 April 2012 from the mother’s solicitors to the father’s solicitors. The letter states that the mother needed to return to Japan on 28 April 2012 at the latest to look after M whom she was breastfeeding.

6. Exhibit 3 (tendered by the mother) is the mother’s Short Minute of Proposed Orders for time to be spent with the child by the father and paternal grandmother.

7. Exhibit 4 (tendered by the mother) is a selection of correspondence sent between the mother’s solicitors and the father’s solicitors between 20 March 2012 and 18 November 2012. The correspondence relates to the parties making arrangements, through their respective solicitors, for the mother to spend time with the child while the mother was in Australia.

8. Exhibit 5 (tendered by the ICL) is the Curriculum Vitae of

   
   

   Professor J, a Japanese law expert who provided an expert report in these proceedings and who was called by the ICL to give oral evidence.

9. Exhibit 6 (tendered by the ICL) is a bundle of event/incident reports produced under subpoena from the NSW Police Force’s Computer Operational Policing System (“the COPS Reports”).

10. Exhibit 7 (tendered by the ICL) is a New Zealand Emergency Travel Document for the child which was issued on 5 October 2011. It was on this document that the child travelled to Australia on 6 October 2011.

1. The child is young and lacking in maturity.

2. The child is male but will have available to him a male role model in the form of his maternal grandfather. He will also to a less proximate degree be able to have the influence of the father in that role.

1. The major cultural influences in the child’s life seem to be from Australian and Japanese culture. He also has an ancestral background, through the paternal grandmother, of Maori heritage and culture. This, however, appears to be limited at this time in its expression. It is not considered likely that this will continue as a strong element in the child’s life, but there is some possibility that it will not fade completely with continuing contact with the father and paternal grandmother. The maternal grandmother and the father will be able to provide for the child some, if limited, experience of Australian culture as well.

(h)If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

1. The child is not an Aboriginal or a Torres Strait Islander child.

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

1. It is the Court’s view that the father has failed to properly demonstrate an understanding of the responsibilities of parenthood by virtue of the way in which the child was removed from Japan without the knowledge or consent of the mother. The father has also provided for a significant part of the care of the child to be undertaken by persons other than himself, namely the paternal grandmother and child care workers.

2. The father denied parenthood of the child M from the time that the mother was pregnant with her up until after her birth. A paternity test was procured and it is only since the results of this were made available that the father accepted M’s paternity. There is no evidence before the Court of any desire on the father’s part to play an active and continuing role in that child’s life. There has been no demonstration so far as to the responsibilities of parenthood with respect to M by the father.

3. The mother has purposefully fulfilled her responsibilities to the child. She has cared for him and nurtured him. She has pursued, in a lawful way, the steps necessary to procure the return of the child to her and has proposed, to her future cost, to provide contact between the child and his father. She has proposed ways in which a safe relationship between the father and the child might be facilitated. She raised those funds necessary to enable her to be with the child and to participate in his life following his abduction. The mother is to be commended on her persistence and her prioritising of the needs of the child.

1. The father has asserted that the mother has been irresponsible in her breastfeeding of the child. The mother denies this. The Court is not satisfied that the conduct complained of took place and even if it did, it is not in the Court’s view a matter which would be determinative of parenting arrangements.

2. There is no doubt that the mother sought time alone with the child whilst she was in Australia and that she did this without the consent of others. In the circumstances of the child’s removal from the mother, however, the actions of the mother in seeking to maximise her time with the child and afford to the child the benefit of her company is understandable.

(j)Any family violence involving the child or a member of the child’s family

1. The father has in his evidence made allegations that the mother has in the past inappropriately physically disciplined the child. The Court does not find that this is so.

2. As noted above, there is evidence before the Court that the father was involved in an argument with Mr C at the Sydney residence on 4 August 2011. The Court is unable to come to an absolute conclusion in relation to the events surrounding that incident, suffice to say that there was an admitted argument and that it was at the least a robust disagreement.

3. It is noted that Mr C had been drinking prior to the incident and that is a problem. He was then unable to contain his angst in circumstances where the child and O were present and that he required the mother, the father and children to be removed from the premises.

(k)Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

1. There is no relevant order on the evidence before the Court.

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

1. There is always a hope that the parties to proceedings such as this will develop a new sense of parental responsibility, put aside their conflict and parent their child co-operatively. Sometimes, there is real substance to that hope. On other occasions it is but forlorn hope.

2. The child in this case is young; his needs will change and his independence will develop with time. It is hoped that the parties can see that, when that occurs, there is a need to actively co-operate in the appropriate organisation of the child’s life to enable him to develop to his maximum potential with the positive and beneficial assistance of each of them.

3. In this case there is no great cause to believe that such a hope might become a reality, except perhaps that when the parties leave this field of battle and consider the costs of the proceedings to each of them in time, money and emotion, together with the fact that there is no victory for them and only the prospect of loss for the child, that they will not come again to the field. They are referred in the event of further disagreement between them to a consideration of the use of the extensive mediation schemes operating in Japan for assistance.

(m)Any other fact or circumstance that the court thinks is relevant

1. The father expressed some concern that the child, if living in Japan, would be exposed to the possibility of radiation resulting from damage caused in the 2011 earthquake and tsunami. All of those dangers have existed in Japan and, although no scientific evidence was presented to the Court, it is reasonable to assume that those risks will be part of the Japanese living experience. Each country has risks. In Australia, there are risks from venomous spiders, sharks, bushfires, floods and other natural or man-made dangers. In the Court’s view it is not a matter of placing a child in a position where the risks of the ordinary exigencies of life are non-existent. The Court cannot on the evidence find that the risks of living in Japan for these reasons are unacceptable for the child.

2. For the time being, it seems to the Court that, given the geographical distance between the parties, their lack of confidence in each other and the inability at this time for there to be co-operative parenting between them, the needs of the child will be best served by a sole parenting order. The Court on the basis of all the evidence concludes that it is in the interests of this child that that order place the child in the care of the mother.

3. This will afford the mother the position that she holds in any event under Japanese law. It will give her, as the person primarily in charge of decision making for the child, the opportunity to make decisions quickly and without attendant conflict.

4. That is not to say that the mother cannot consult with the father in relation to major decisions in the child’s life and she is encouraged to do so. The Court proposes that, as a function of her role in exercising sole parental responsibility, she will be obliged to reasonably keep the father up to date with the child’s progress educationally, socially, in health and in sport.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

2. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child.

2. The presumption does not apply where there has been family violence. In this case, there has been some violence as has been set out earlier. The extent of it is however unable to be determined.

3. Notwithstanding that there may have been some family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests. In this case, there is reason for the presumption not to apply. There has been significant conflict between the parents and poor communication. There has been a measure of inability or unwillingness on the part of the parties to co-operate in parenting. They do not easily work together and they will be significantly geographically distant from each other with the child living with the mother.

5. In the circumstances it is not in the best interests of the child for there to be other than an order for the mother to have sole parental responsibility and the Court proposes to so order.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.

2. It is not proposed to make such an order.

The Orders to be made

1. There has in this case been an incident of child abduction from Japan. That country is not yet a party to the Hague Convention. Hopefully that will change.

2. The needs of the child in this case are for security and certainty. The mother will be able to afford the child more comfort if she herself is content that problems of the past in relation to the removal of the child will not be revisited. It is for this reason that the Court proposes that the parties use their best endeavours to seek similar orders in Japan to the Orders herein.

3. It is argued by the father that on the evidence of Professor J the Court should come to the conclusion that orders for contact are unenforceable in Japan. On a consideration of the evidence, the Court would have come to the same conclusion as to the outcome of this case irrespective of that if it were a fact. In any event, the Court is not satisfied that the assertion goes as far as is alleged.

4. This Court like any Court finds from time to time that contact orders are ineffective by reason of the recalcitrant nature of a party or by the attitude of a child. There is no evidence that a Court in Japan lacks the capacity to discipline a party who does not comply with a Court order. It may be that, as in Australia, a Court in Japan would find itself stuck in a dilemma as to the effect on the child as to the rigours of enforcement being directed to a parent.

5. In any event, the Court has been impressed by the mother and her family and believes that they will abide by the orders made in this Court and not bring dishonour upon themselves by refusing to do what they have promised they will do. The suggestion that they will is but a theoretical possibility and is not in the Court’s view a determinative matter in this case.

6. The father and the paternal grandmother submitted to the Court a set of highly prescriptive alternative orders (in Annexure B to their written submissions) which do not provide for the flexibility of arrangements necessary in the parenting of a child with developing and changing needs. It is the Court’s view that such prescription does not serve the best interests of the child and, as indicated above, the Court has faith in the mother’s ability to care for the child and her willingness to support the child’s relationship with his father, the paternal grandmother, the child O, Ms D and Mr C.

7. With respect to the orders that the father seeks for a stay of the Orders herein (pending registration of the Orders in Japan, written notice from the Court in Japan confirming such registration and lodgement of the Japanese orders with this Court), the Court is of the view that this may not be possible and, further, that implementation of the Orders herein is required forthwith in the interests of this child. The Court therefore declines to make the orders for a stay sought by the father. It does however make an Order that the mother and father are to use their best endeavours to have mirror orders made by a relevant Court in Japan.

8. With the aim of fostering involvement of the parties in a form of information sharing and perhaps co-operative parenting arrangement, the Court proposes to impose obligations on the mother to keep the father informed of those matters set out in the orders. This is so the father might keep abreast of his son’s progress in life, be able to congratulate the child on his successes, support the child in his failures and generally contribute to the child’s attainment of his maximum potential.

9. The Court finds that the orders it proposes serve the best interests of the child the subject of these proceedings.

Costs

1. The Court notes that the mother proposes that orders be made for the respondents to pay her costs of and incidental to these proceedings, including the costs for the DNA paternity testing in relation to the child M.

2. The Court has decided not to make the orders proposed by the mother at this time; however, should there be any application for an order for costs, then any applicant party must file and serve within 21 days of the making of the Orders herein any such application that they wish to make. Any application is to be accompanied by affidavit material setting forth the evidence-in-chief on which the applicant wishes to rely, together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response and any affidavit material setting forth any evidence-in-chief on which they wish to rely. Any applicant will have a further seven days within which to file any submission or evidence in reply.

I certify that the preceding two-hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 6 March 2013.

Associate: 

Date:  6 March 2013