Sora and Mikan and Anor

[2012] FamCA 259

FAMILY COURT OF AUSTRALIA

SORA & MIKAN AND ANOR [2012] FamCA 259

FAMILY LAW – CHILDREN – Family report ordered – Paternity testing ordered

Family Law Act 1975 (Cth)

APPLICANT: Ms Sora

FIRST RESPONDENT FATHER: Mr Mikan

SECOND RESPONDENT PATERNAL GRANDMOTHER: Ms Morgan

FILE NUMBER: SYC 4856 of 2011

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: Yamamoto Attorneys

COUNSEL FOR THE RESPONDENT: Mr Casep

SOLICITOR FOR THE RESPONDENTS: Craddock Murray Neumann

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Neville
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Stanfords Solicitors & Conveyances

Orders

1. That there be a Family Report and that in addition to any matters that the Family Consultant considers would be relevant, the Court highlighted the following s60CC factors:

b)the nature of the relationship between each parent and the child;

the nature of the relationship between the paternal grandmother and the child and between the child’s brother and the child;

g)the background of the child and in particular the issues as to the management of lifestyle, cultural and traditional aspects of that background into the future;

i)the attitude to the child and responsibilities of parenthood demonstrated by the parents; and

(j)any family violence involving the child or any of the child’s family.

1. That as soon as practicable the parties facilitate paternity testing of the youngest child of the mother in accordance with the Family Law Regulations.

1. The Court noted that it is contended on behalf of the mother that that will be practicable through a Japanese Agency affiliated with an approved testing agency under the regulations.

1. That in the first instance the testing be paid for as to one half by the mother and as to one half by the father and paternal grandmother.

1. The Court further noted that there may be an issue in relation to the effect of Japanese law on the right and enforceability of time between a non-residence parent and a child in Japan.

1. That within 21 days from today’s date the solicitor for the father put the relevant contentions in relation to that law to the solicitor for the mother in the event that within a further 21 days there is no agreement in relation to that effect the parties join in instructing an expert agreed by them and in the event that there is no agreement, nominated by the Independent Children’s Lawyer to give evidence in relation to that matter.

1. Leave is granted to the parties and to the Independent Children’s Lawyer to restore the proceedings to the list generally on giving 14 days notice to the Court and to each other.

1. The Court further noted that otherwise the existing Orders continue to apply.

1. That the question of the costs of the proceedings today be reserved.

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: SYC 4856 of 2011

Ms Sora

Applicant

And

Mr Mikan and Ms Morgan

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings.  The matter was listed today to consider an interim application filed by the mother on 25 November last year.  The orders that she seeks are set out again, or set out in a case outline document that was submitted today.  She seeks that orders made on 7 October 2011 be discharged;  that she have – pending further orders – sole parental responsibility for the parties’ child, B;  that pending further, the child live with her;  that she be permitted to remove the child from the Commonwealth of Australia to Japan;  and orders to facilitate that including a removal of an airport watch-list order;  that the father have supervised time with the child in Japan and that the child’s passport be returned to the mother immediately. The mother undertakes to return to the Court for the further management of the proceedings. 

2. The father opposes those orders and seeks a continuation of the arrangement which has the child living with the paternal grandmother. The paternal grandmother joins in that application. The child is represented and the Independent Child Representative similarly seeks that the current arrangements continue. 

3. These are proceedings which demonstrate the remarkable circumstances that can arise in the modern world.  The father is a New Zealand born man who worked in Japan for about 18 years.  The mother was born in Japan and lived there all her life.

4. They lived together for a period in Japan and B is a result of their relationship.  They cooperated in the child coming to Australia after the earthquake and tsunami in March 2011.  That left the child living predominantly with the paternal grandmother who is also a New Zealand citizen but happens to live in Australia. For a long period that fact alone was the only connection between this child and Australia.  There is now a dispute between the parties along the lines that I have outlined.  There have been a number of interlocutory applications and some ex parte proceedings in this Court. 

5. The matter is now fixed to commence the first date of a less adversarial trial on 22 June 2012 in relation to the final or substantive parenting proceedings.  The mother is the applicant and the respondents are the father and the paternal grandmother.  The subject child is two years and nine months of age.  The father has an older child, O, who is four years and seven months of age. It is the unchallenged evidence of the father that that child lives with him pursuant to an order made in Japan. He married the mother of that child in 2006 or 2007 and they were divorced in 2009. 

6. The mother has relatively recently given birth to another child.  She contends, and the father disputes, that he is the father of that child. 

7. The existing orders were made in contested proceedings before me on 7 October 2011 and provided for the child, B to continue to live with the father in Sydney and/or with the paternal grandmother in Sydney.  On 21 February 2012 orders were made by consent, providing for periods for the mother to spend with the child while she was in Sydney, and for periods the child would spend with the mother in Japan.

8. In fact some of the interim orders may have lapsed. For example, the order for parental responsibility made on 7 October may well have expired.

9. The parties are present and they are all represented.  The paternal grandmother and the father are effectively in the same interest and they are represented by the same solicitor and counsel.  The child is represented.  The matter was conducted today on the papers, as is the normal course. 

10. Unfortunately, because the matter has been on foot for a period and because there have been several interlocutory events, there is now a disturbing amount of affidavit material, and as was eloquently confirmed in submissions before lunch, apart from the facts that I’ve outlined, little is agreed between the parents.  The father would have it that late in 2010, the subject child was surrendered to him by the mother on the basis that she was having some difficulty caring for and supporting the child.  He would have it that there has been no relationship, sexual or domestic, between himself and the mother since about that time and that he or his mother have been the substantial caregivers of the child since about that time. He would have it that the mother’s conduct in the past has been somewhat irresponsible, sexually inappropriate, and in terms of her caring for the child, there have been some real difficulties for her in managing her temper and physical abuse.

11. The mother’s case and evidence is entirely inconsistent with that.  At no time did she abandon the child. Not only was there a relationship between her and the father after late 2010, but their sexual relationship continued and the result is the child she gave birth to recently. It is the mother’s evidence that shortly before the tsunami and earthquake, the father and mother travelled as a couple to New Zealand and stayed together. It is her case that, although the father now says that he is in a new relationship, that he held out to her at various times that they would be reconciled. The mother contends that her consent for the child to come to Australia was significantly influenced by the father’s promise that their relationship would be restored. The mother contends that her failure to comply with directions to return to Australia under orders made by consent in August of last year was conspired at by the father giving her to believe that the matter was resolved and that she was authorised to retain the child in Japan and not to return to Australia. The mother says that she intended no disrespect when she didn’t return to Australia late last year.  The fact that the mother failed to return was relevant in the making of orders in favour of the father.

12. The mother contends that she is the primary caregiver of the child.  She expresses concerns about the father’s capacity to care for the child and notes that he has not had the opportunity of undertaking the care of the child. The mother says that there is adequate support for her and the child and, indeed, the new baby, with her parents on a rural property in Japan. I gather that there would be a dispute between the father and the mother about the adequacy of the physical circumstances there. There is a reciprocal complaint by the mother in relation to the physical circumstances of the household of the paternal grandmother in Australia.

13. I am to make orders in the best interests of a child.  How one does that is referred to in the legislation.  I have been referred today to a well-known authority from the Full Court in relation to the task of making interim orders in parenting cases, whereby the Full Court reminded decision-makers at first instance that there is a legislative scheme which requires decision-making to follow a certain pattern. The simple rubric of leaving in place a settled arrangement of itself is not adequate to discharge of the Court’s obligations in relation to parenting orders. Nevertheless it is acknowledged that in hearings conducted on the papers it is often not possible for findings of fact to be made in relation to contested issues.  Although not the sole inquiry to be made, it may be the outcome of an interim hearing that the Court would leave in place a well-settled arrangement until a final hearing. It causes significant problems where there is a substantial degree of factual dispute. It is likely to be harmful to a child to be separated from important figures in the child’s life. That harm is likely to be greater the younger the child is. Unfortunately whatever I order, the child will be separated from one or more important figure in his life. 

14. The parties intend to live a long way apart.  There are a number of other parties in the child’s life;  significantly, in no particular order, the child’s brother, O, his parents, his grandparents, and in particular, because of the amount of time spent with her, his paternal grandmother, the father’s fiancée, the boy’s baby sister. There is reference, although not much detail, about the relationships to great-grandparents of the child, both on the father’s side and on the mother’s side. 

15. I am not sure that one could say that what has happened is a well-settled arrangement.  It does not matter really whether it is possible to make that finding or not but on the mother’s case there was a level of trickery about the circumstances under which the child came to be in Australia.

16. There have been, I think, two sets of competing ex parte proceedings where one party sought to agitate the court. On at least one of those occasions the other party was in the jurisdiction but not involved for some reason. Therefore it cannot be said that it is common ground that the current arrangement was put in place with the acquiescence or consent of both parents.  It is not without controversy as to whether the child is well settled.

17. On the father’s side, the evidence is that the child is doing well and seems happy and settled and forming links with the father’s fiancée.  On the mother’s side, the child is acting out and difficult.  Sadly, it is common ground that there is a level of estrangement between the child and the mother.  The legislation sets out a menu of things that the Court would take into account in deciding what is in the best interest of a child.  That analysis is made very difficult by the fact that it is not possible to plug necessary facts into that analysis.

18. The primary considerations in section 60CC are the benefit of a child having a meaningful relationship with both parents and a need to protect a child from physical or psychological harm, being subjected to or exposed to abuse, neglect or family violence.  A meaningful relationship is one that is important and valuable to the child.  I do not think it is a controversial thing to say that the child has a meaningful relationship with both parents.  This provision does not make any reference to adults other than parents.

19. There is a catch-all provision in relation to the additional considerations under which that provision could be taken into account in respect of grandparents.  The physical circumstances mean that it is difficult for the child to have a meaningful relationship with both parents when they choose to live in different continents.  A child of this age does not have much of a capacity to deal with long gaps of time.  I do not have power to order that the parties live on the same continent. 

20. In relation to physical or psychological harm, each of the parents alleges that the other has been abusive, violent and to some extent neglected the child in one way or another.  Again, it is not possible to make a finding of fact as to whether one of those allegations is more true than the other. 

21. As to the additional considerations -  the child is too young to express a relevant view. 

22. I do not have evidence that would enable an unambiguous finding in relation to the nature of the relationship of the child with each parent or the nature of the relationship of the child with grandparents and other relatives and particularly his brother. There is an available inference that comes from propinquity. The child has largely lived with his paternal grandmother and his brother and more recently his father. There is likely to be a good relationship between the siblings.

23. Each of the parents proposes into the future for time to be spent by the other parent with the child. Albeit for different reasons, they seem to each propose that that time be supervised.  It may be that that is largely to do with what I might call the forum dispute or the risk of unauthorised travel. I could be less oblique about that.  It might be that they are each afraid the child would be kidnapped by the other parent. That might be the reason for supervision.  They may have other reasons for supervision. 

24. Nextly, and this was a subject of submissions before lunch, the likely affect of changes in the child’s circumstances, including separation from either parent, from another child, or another person including a grandparent or a relative with whom he/she has been living.  It is the fact that the child has been spending more time with the paternal grandmother, with his brother and with the father, than the child has been able to spend with his mother over the last six months or so. 

25. Nextly and relevantly and obviously, there is the practical difficulty and expense of the child spending time with and communicating with a parent – and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents.  There is evidence about the difficulties that the parents have encountered in trying to manage Skype communication between the mother and a two year old.  This is a very significant issue in the case – and a very significant issue for his Honour’s consideration of the final orders. There is the fact of hours of air travel and thousands of dollars in airfares between Australia and Japan. The mother has a very young baby and she does not have a base in Australia. She does not have family support in Australia apart from that associated with the father.

26. Nextly, there is the capacity of the parents and of others, including grandparents to provide for the child including his emotional and intellectual needs.  It was said without complaint in submission on her behalf that there is no criticism by the mother of the paternal grandmother.  I thought there was some but perhaps I have mistaken that.  Certainly there is no significant criticism of the paternal grandmother’s care of the child.  There is certainly quite trenchant and strident criticism by each of the parents about the capacity of the other to care for the child. Nevertheless at various times they have left the child in the care of the other parent.

27. It sometimes happens in the heat of litigation that concerns about capacity are exaggerated and it may be that that has happened here but I cannot make a finding about it.  As yet there is no expert evidence about this issue. I am not able to make a finding about it.  I have not been told the child has come to the attention of the authorities.  No material has been put to me from a compellable notifier, a child care worker, or a general practitioner, a nurse. It may be that that suggests that the child has not come to attention in the care of the paternal grandmother and to the extent that he has been here, the father. That is a good thing but I cannot say more than that. 

28. As to the characteristics of the child and his parents. We have a father and paternal grandmother of Maori descent, a Japanese mother, and a household in Sydney. There are all sorts of issues. There are two siblings who will be affected by the cultural issues.

29. As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents - the affidavits are full of significant criticism – one parent against the other in relation to the way in which they have discharged their responsibilities. The father suggests that if not immoral, the mother has made inappropriate lifestyle choices. The mother says that all of that was at the father’s own insistence and in fact it was him that prosecuted an inappropriate lifestyle and continued to propose that until quite recently. The mother is very critical of the father’s failure to foster and promote a proper relationship between her and the child. There is a whole lot of material about the name by which the child is encouraged to refer to the mother and the attitude that has greeted applications for increased time from the mother and fairly unhelpful and not very responsible attitude to those responsibilities from the father.

30. As to family violence, there are mutual allegations made by the parents against each other and against others.  I do not know of any family violence order that applies to the child or a parent.  3(l) is not a relevant consideration in these circumstances.  I do not think there is any other matter that is relevant. 

31. It is a case that resonates with the counsel of the Full Court in Goode v Goode.  The factual dispute is so great as to be alarming. It might be that some of the extent of the difference in evidence is just a reflection of the parties coming from different language groups. That is a possibility.  But there are some things, like the paternity of the new baby, where the evidence, as I read it, is fairly clear.  On the father’s case there was not a sexual relationship between him and the mother at the relevant time and therefore she could not be his child.  On the mother’s case there was and this is his child.  That issue is one capable of objective determination.

1. I have been invited to make orders for paternity testing.  There is an issue about the paternity testing in line with the Family Law Regulations.  It is said that there is an organisation in Japan that has a connection with one of the authorised testers. That might mean there is an organisation or an arm of an organisation in Japan that could do the collection at that end in relation to the baby and then the testing could be done by the overarching body. I have indicated that I will make an order for testing in accordance with the regulations. 

2. If the parties reach an agreement that that can be done through this Japanese collection agency or the Japanese arm of the Australian approved agency, well and good. I think that it will be of assistance to have something settled.  If the father is the father of the new baby, it has an impact on his credit and that will be helpful in a forensic sense. As I read the documents, he does not allow for it to be a possibility that he is the father of the baby. That might help the Court to make findings about the other factual disputes.  Until then, I am left with the reality that the child has been with the paternal grandmother for a substantial period.  He was back in Japan with his mother from August, until a date in about October last year and otherwise he has been here. 

3. He hasn’t come to the attention of the authorities.  If I order that he goes back to live in Japan and then, on the final hearing, the order is that he lives predominantly here, then there will have been an additional significant move, an additional significant separation from important figures.

4. That is a matter that I’m required to take into account under the additional factors.  Although not of particular relevance to the welfare of the child, for better or worse, the proceedings and the child are in Australia. If the object of the proceedings is out of the jurisdiction - and although there are negotiations underway, Japan is not currently– a signatory to the Hague Convention on the Civil Aspects of International Child Abduction – there is a concern, about a Court making orders when it does not have any power to realistically enforce them. Usually, this problem is resolved in the context of a forum dispute, but I have not been told that there is such a dispute.  As I say, I don’t think that’s a significant issue.

5. On balance I propose to make orders as are sought on behalf of the father and on behalf of the child. It is appropriate in the circumstances the child remain living within Australia. 

6. There will be stages now in the proceedings.  I will make an order today for a family report.  That might assist the parties to reach an agreement.  If not, the matter comes before the trial judge on 22 June 2012 and it might be that something comes out of that occasion other than the bare planning for the final stage of the trial which helps the parties to resolve the matter.

7. It may be that there is another interlocutory issue before his Honour but for the time being, for the reasons that I have given, it seems to me that the child should remain with the paternal grandmother and the father.  The remaining matters are the family report, the paternity testing that I have referred to and an issue raised by Ms Picker late in the piece on behalf of the mother. That issue was raised by her in reply, so I have not heard from the other parties about it.  And that was in the event that the child remains here, whether there is a need for the mother’s time to continue to be supervised, whether that time can be extended to some extent and whether there can be some relaxation or promotion of the extent and quality of the interaction of the mother and the child through a technological means.

8. Because I have only heard from one party and not the others, I don’t think it’s appropriate for me to just launch into a change in the arrangements that exist under the current orders.  I will say, however, in circumstances where there is in place a watch-list order and a passport is retained, I would have thought the need to protect the child from being kidnapped would not be a justification for supervision.  There is no application for it but in my view, unless the parties agree, overnight time probably isn’t a sensible thing for the child.  Minds differ about that but the child’s parenting has not been ideal, it is euphemistic to say, over the last year and a half. Young children need a bed to sleep in and the routine and safety and security of a home. If it was a contested issue, unless there is some other factor that comes into it, I would not encourage the parties to explore overnight time at this stage, particularly given the evidence about the difficulties that have occurred for whatever reason in the mother’s relationship with the boy.  It is always going to be hard to promote a sensible relationship between a young baby and a young child by electronic means.

9. The trial judge will be asked to make a decision about the extent to which each of the parents has promoted the relationship between the child and the other parent.  The consequence of the orders that I will make, leaving in place the current orders, is that all of that obligation falls on the father and on his mother.  So whether they think it’s in the best interests of the child or whether just to help their case, they should do everything they can possibly do to make sure that this young child has a proper relationship with his mother. For example they should not allow the father’s fiancée to be called B’s mother.  That’s a fairly destructive and unhelpful thing to do. 

10. They must ensure that they never refer in a derogatory manner to the mother in the presence or hearing of the child.  This little boy has got enough problems in life without having so awful a thing as hearing derogatory remarks about his biological mother, particularly by somebody he respects.  So he should get on with being a two-year old child and he should find, in each household, only references favourable to the other parent. 

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 March 2012.

Associate: 

Date:  19 April 2012