T v S - [2015] WASCA 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: T -v- S [2015] WASCA 225

CORAM: NEWNES JA
MURPHY JA
MITCHELL J

HEARD: 2 NOVEMBER 2015

DELIVERED : 16 NOVEMBER 2015

FILE NO/S: CACV 103 of 2015

BETWEEN: T
Appellant
AND
S
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :DUNCANSON J
Citation  :[2015] FCWA 50
File No  :PTW 4345 of 2014

Catchwords:

Family law - Parenting order - Whether trial judge failed to take into account a relevant consideration or took into account an irrelevant consideration - Where parenting orders required child's removal to country where court's orders could not be enforced - Whether trial judge required to take further steps to ascertain child's view

Legislation:

Family Court Act 1997 (WA), s 66, s 66A, s 66C, s 66E, s 66F, s 70A, s 89(1)
Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G M G McIntyre SC
Respondent: Mr C A Fogliani

Solicitors:

Appellant: Bannerman Solicitors
Respondent: W G McNally Jones Staff Lawyers

Case(s) referred to in judgment(s):

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Harrison and Woollard (1995) 126 FLR 159
House v The King (1936) 55 CLR 499
J v J [2011] WASCA 126
Johnson and Page [2007] FamCA 1235; [2007] FLC 93-344
LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
M v M (1988) 166 CLR 69
Mallett v Mallett (1984) 156 CLR 605
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
RCB v The Honourable Justice Forrest [2012] HCA 47; (2012) 247 CLR 304
S and T [2015] FCWA 50
W v W [2005] FamCA 892; (2005) 34 Fam LR 129

NEWNES JA: I agree with Mitchell J.
MURPHY JA: I agree with Mitchell J.
MITCHELL J:

Summary

In April 2008 the parties had a child, to whom I shall refer as J, in Indonesia. The parties had been in a relationship since 2006 and for most of their relationship lived in Jakarta. The parties' relationship ended in January 2008, shortly prior to J's birth. The respondent continued to live in Indonesia, and entered into relationships with two different men with whom she had children born in February 2012 and June 2014.
The appellant had very little contact with J after his birth until July 2014. The appellant's mother (paternal grandmother) spent a considerable amount of time visiting the respondent and J in Indonesia, and on occasion brought J for visits to Australia.
On 1 July 2014, a few days after the birth of the respondent's third child, the paternal grandmother brought J to Perth for about 12 days. On 12 July 2014, the appellant emailed the respondent informing her that he would not be returning J to Indonesia.
The parties then made competing applications for parenting orders under the Family Court Act 1997 (WA) (Act). On 22 September 2014, the Family Court of Western Australia made interim orders providing for J to reside in Perth with the appellant and restraining the respondent from removing J from Australia.
The trial judge heard the applications for parenting orders in April and June 2015. On 3 July 2015, she made orders discharging previous parenting orders and providing for J to live with the respondent, who was to have sole parental responsibility for the child. The respondent was given liberty to remove J from Australia. The orders made provision for the appellant to spend time with J in Indonesia and, for 3 weeks during the December/January school holidays, in Australia.
The appellant appeals against those parenting orders on a number of grounds. The operation of the orders has been stayed pending the outcome of the appeal.

In essence, the appellant contends that the trial judge gave insufficient weight to her conclusion that the court's orders would not be enforceable in Indonesia, and the resulting prospect that J would be denied a meaningful relationship with his paternal family if the respondent did not voluntarily comply with the orders. The appellant also alleges that the trial judge erred by failing to consider evidence of family violence, and by failing to take steps to ascertain J's views about his living arrangements.
I am not satisfied that any of the appellant's grounds are made out. The trial judge did give proper consideration to the enforceability of her orders in Indonesia and concluded that, on balance, J's best interests would be served by an order that he live with the respondent. The limited and qualified evidence of family violence to which the trial judge failed to refer was not capable of affecting her ultimate decision, so that the failure to refer to that evidence was not a material error. The trial judge took steps to ascertain J's views and, in all the circumstances, no further steps were warranted.
My more detailed reasons for concluding that the appeal must be dismissed follow.

Statutory provisions

The court's power to make a parenting order is conferred by s 89(1) of the Act. In proceedings for a parenting order,[1] the court may 'make such parenting order as it thinks proper'. A parenting order may deal with matters which include the person or persons with whom a child is to live, the time a child is to spend with another person or other persons and the allocation of parental responsibility for a child.[2] 'Parental responsibility' in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[3]
[1] Which relevantly may be commenced by either or both of a child's parents under s 88(a) of the Act.
[2] Section 84(1) and s 84(2)(a) - (c) of the Act.
[3] Section 68 of the Act.
Section 89(1) expressly subjects the power it confers to s 70A and s 89AB of the Act. Section 89AB requires the court to have regard to the terms of the most recent parenting plan, and is not presently relevant. Section 70A(1) provides that:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.[4] 'Abuse' includes an assault of the child or causing the child to suffer serious psychological harm by being subjected or exposed to family violence.[5] 'Family violence' means:[6]
violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
[4] Section 89(2)(b) of the Act.
[5] Section 5(1) of the Act (definition of 'abuse').
[6] Section 9A of the Act.
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[7]
[7] Section 70A(4) of the Act.
The court's power to make a parenting order is also governed by the paramountcy principle. Section 66A of the Act requires that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Subject to a presently immaterial exception, s 66C of the Act requires the court to consider certain 'primary considerations' and 'additional considerations' in determining what is in the child's best interests. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 66C(3) identifies a range of additional considerations which the court must consider in determining what is in the child's best interests. These include the background (including lifestyle, culture and traditions) of the child and of either of the child's parents and:
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views[.]
Section 66D and s 66E contain the following provisions as to how a court may inform itself of the views expressed by the child:
66D. How views of child are expressed - FLA s. 60CD
(1)A court required under section 66C(3)(a) to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child is to inform itself of the views expressed by a child in accordance with this section.
(2)The court may inform itself of views expressed by a child -
(a)by having regard to anything contained in a report given to the court under section 73(2); or
(b)by making an order under section 164 for the child's interests in the proceedings to be independently represented by a lawyer; or
(c)subject to the rules, by such other means as the court thinks appropriate.
66E. Children not required to express views - FLA s. 60CE
Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.
In considering the court's power to make a parenting order, it is also necessary to have regard to the objects of Pt 5 of the Act, expressed in s 66 of the Act in the following terms:
(1)The objects of this Part are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) -
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Trial judge's reasons

Primary facts

After noting the basic facts concerning J's birth, the trial judge found the following facts. (References to square brackets are to paragraphs of the trial judge's reasons.)
After the parties commenced their relationship, they lived together in Canberra for a few months, after which time they returned to Jakarta [19]. The appellant spent time in Canberra, to work on his thesis, but in December 2007 returned to Jakarta to support the respondent who was pregnant [20]. After the parties separated in January 2008, the appellant remained in Indonesia [21]. The appellant was present for J's birth and remained in Jakarta for approximately one month after he was born.
In May 2008, J received Australian Citizenship by descent [23].
The appellant then returned to Canberra to continue his studies. The appellant agreed to pay child support. He asked the paternal grandmother to manage the relationship with the respondent regarding J on his behalf [22], [24].
In 2009, the appellant visited J on his first birthday. J did not spend time with the appellant again for over two years, until J travelled to Australia for 10 days with the paternal grandmother. In 2012, J spent time with the appellant in Perth over the Christmas period. J travelled to Perth with the paternal grandmother and spent time with the appellant for approximately three weeks in June/July 2013 and for one month in December 2013. J had spent relatively little time with the appellant until July 2014 [26].
In all, J has spent a considerable period of time with the paternal grandmother in both Indonesia and in Perth [28]. In May 2010 the paternal grandparents rented a house for the respondent and J in Bali, and in June 2010 J started attending a local school in Bali [31] ‑ [32].
The respondent met M in October 2010, and they married in April 2011. In February 2012 their son, JM, was born [15] ‑ [16], [34]. The family moved to England for 6 months from June 2012, without informing the appellant or the paternal grandparents [37].
The respondent, J and JM returned to Bali in December 2012. Although some arrangements for their return to England were made with the appellant's agreement, the arrangements did not transpire when the respondent asked for a divorce from M in March 2013 [41] ‑ [42].
The respondent commenced a relationship with T in July 2013. In June 2014 their daughter, JT, was born in Bali [18], [43].
On 1 July 2014, a few days after JT was born, the paternal grandmother brought J to Perth for 12 days. On 12 July 2014 the appellant sent an email to the mother informing her he would not return J to Bali [45].
On 23 July 2014, J started school at Perth. On 4 August 2014, the respondent filed an initiating application in the Family Court of Western Australia. She sought a recovery order that J be delivered to her in Indonesia at the appellant's cost. At this time the appellant moved from the Eastern States to Perth. He commenced work as a tutor, but was also continuing with his thesis [46] ‑ [48]. The appellant and J have been living with the paternal grandparents, with the paternal grandmother attending to J's practical needs [228].

Primary considerations

After referring to the evidence given by various witnesses and the relevant law, the trial judge turned to consider the primary considerations identified by s 66C of the Act. She concluded that it was to J's benefit to have a meaningful relationship with both his parents [138].
The trial judge was satisfied that J was exposed to family violence while the respondent and M were together. She found that their relationship was a conflictual one and it is more likely than not that, at times during their relationship, J was aware of that conflict [143]. However, the trial judge did not think that J was likely to be exposed to further family violence, as M lived in England and had not contacted the respondent for about 2 years [149].
The trial judge said that it had not been established that J was neglected by the respondent at any time [167].
The trial judge referred to incidents described by the appellant and the paternal grandmother of self‑harm by J. The trial judge concluded that:
Unfortunately, I think the paternal grandmother read more into this than was necessary. In my view it is equally possible that on the occasion described above, [J] had a very enjoyable time playing at the hotel in the company of the grandmother. He may have been tired, and probably did not want his enjoyable time to end and to go home with the [respondent]. I think it likely that is an explanation for his behaviour and that hitting himself was the means of a four year old expressing his opposition [171].
After referring to the appellant's evidence on this issue, the trial judge concluded that there was not a need to protect J from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either the respondent or the appellant [174].

Additional considerations

The trial judge then went on to consider the various additional considerations identified in s 66C(3) of the Act.
In the course of doing so, she said that J was too young to express any meaningful view [175].
The trial judge noted the following in relation to the appellant's and paternal grandmother's concerns about returning J to Indonesia.
The [appellant] is able to afford to travel to Indonesia to spend time with [J]. Historically the paternal grandmother travelled to Indonesia extensively to spend time with [J] and could accompany the [appellant]. The [appellant] can afford to bring [J] to Perth to spend time with him. Both of these options are part of the [respondent's] proposal.
The [appellant] said 'I retained him here hoping she would come here to have a relationship with him'.
He was asked what he meant by this and said he did not envisage the [respondent] living here. He could not explain how that relationship would be maintained.
The [appellant] said he thought the [respondent's] living arrangements were opaque. She would not disclose her address and simply gave him a hotel address. The [appellant] said if [J] returned to Indonesia, he would be unable to enforce any orders made in this Court to spend time with him and the time ordered would not take place.
The orders of this Court are not enforceable in Indonesia. The [appellant] does not trust the [respondent] and believes she will not comply with the orders. The paternal grandmother fears she may never see [J] again. It was put to the [appellant] by Queens Counsel for the [respondent] that he fears the [respondent] might do to him what he did to her.
The [respondent] has never refused a request by the [appellant] to spend time with [J] either in Indonesia or in Perth. The [appellant] was pressed on this point. He said the [respondent] was unpredictable and capricious, but he could not identify an occasion where a request by him to spend time with [J] had been refused.
The paternal grandmother was also pressed on this point. She said the [respondent] imposed conditions, but ultimately, did not refuse to allow [J] to travel to Perth.
The [respondent] has good reasons to remain in contact with the [appellant] and to comply with the orders. Those reasons include the following:
• She is aware the orders are enforceable in Australia and, if the [appellant] again retained [J] in his care, she could apply to enforce those orders.
• It is likely she recognises the benefits to [J] of spending time with [the appellant] in Australia, including his experiences here and what the paternal family have to offer.
• The [respondent] requires financial support for [J]. The way she will continue to receive that is to remain in contact with the [appellant] and comply with orders [210] ‑ [217].
The trial judge later summarised her findings in relation to the additional considerations in the following terms:
• J is too young to express any meaningful view;
• J has a close relationship with the [appellant] and a close and loving relationship with the paternal grandmother. He has a loving relationship with the [respondent]. He is unable to enjoy a relationship with his maternal grandmother, his half‑siblings and [the respondent's] partner and, upon the proposal of the [appellant], is unlikely to do so in the future.
• The [appellant] did not take the opportunity to participate in making decisions about major long term issues, spend time or communicate with J for many years. The paternal grandmother undertook this responsibility. The [respondent] has been unable to do any of these things since J was retained in the care of the [appellant].
• There is little evidence about the effect upon J of his removal from the care of the [respondent]. His return to her care in Bali is likely to be a significant change in his circumstances, to which he would have to adjust. A significant change would be a separation from the [appellant] and also from the paternal grandmother, who is closely involved in his care. A positive change would be the reestablishment of a close relationship with the [respondent] and a relationship with half-siblings.
• There are practical difficulties and expense involved in J spending time with and communicating with a parent. That practical difficulty and expense is greater for the [respondent] if J lives in Perth, than for the [appellant] if J lives in Bali.
• Both parties have the capacity to provide for the needs of J, including his emotional and intellectual needs. At times in the past both parties have not provided for his emotional needs.
• J is a Muslim and of Indonesian culture and origin. His background cultural requirements are not adequately met at this time.
• Both parties are responsible parents. At times the [respondent's] attitude towards the responsibility of parenthood has been compromised and the [appellant] has not fulfilled his responsibilities of parenthood.
• There has been family violence involving the [respondent], although that is not currently an issue.
• There is no family violence order in place.
• It would be preferable to make final orders such that J does not continue to be the subject of litigation between the parties.
• Any orders made in Australia are not enforceable in Indonesia. It is likely the [respondent] will comply with orders as she has good reasons to do so [257].

Parental responsibility

The trial judge considered that other evidence rebutted the presumption that it was in J's best interests for the appellant and respondent to have shared parental responsibility [245]. She concluded that the parent with whom J lives should have sole parental responsibility for him [246].
The trial judge said that she had balanced the relevant factors set out above at [16] - [18]. She recognised the importance of the benefit to J of having a meaningful relationship with both of his parents [258]. The trial judge considered the competing proposals in the following terms:
If, upon the [appellant's] proposal, [J] lives in Australia and never returns to Indonesia, his relationship with the [respondent] is unlikely to be a meaningful one. The [respondent] would only be able to visit [J] when her circumstances permitted her to do so. Although the [appellant] proposes to meet the costs of her travel, that may not be sufficient to cover the cost of flights and accommodation for regular or frequent visits. The [respondent] has the added difficulty of having two young children in Indonesia who are dependent upon her for their care and who she could not leave, either frequently or for extended periods of time.
If I ordered that [J] live with the [appellant] and spend time with the [respondent] in Indonesia and in Perth, the reality is that time could only take place during Australian school holidays when the [appellant] takes him to Indonesia or the [respondent] travels to Perth.
On the other hand if [J] lives with the [respondent], he is more likely to be able to maintain a meaningful relationship with both of his parents. The [respondent] proposes to send [J] to Perth to spend time with the [appellant] and the paternal grandparents on two occasions each year. There is nothing preventing the [appellant] from spending time with [J] in Indonesia both during school holidays and at such other times as the parties may agree [258] ‑ [260].
The trial judge then recognised that the benefit to J of having a meaningful relationship with both of his parents must be weighed along with all of the other relevant factors [261].
The trial judge adverted to a number of matters including the importance of restoring J's disrupted emotional and psychological attachment to the respondent, his more distant relationship with the appellant and that Indonesia was the country of J's birth and residence to which he should be returned to enjoy his culture and religion [262] ‑ [270]. She noted that there was far less practical difficulty and expense involved with the appellant travelling to Indonesia to spend time with J than the respondent travelling to Perth [262]. The trial judge also noted:
Any orders I make are not enforceable in Indonesia. The [appellant] does not trust the [respondent] that she will comply with the orders. There are strong reasons for the [respondent] to comply with orders.
[J] has much to gain by maintaining his close relationship with the [appellant] and his extended family. The [respondent] is clearly aware of the benefits to him of a relationship with his extended family, particularly the financial benefits and practical support he has received [267] ‑ [268].
The trial judge's conclusion was expressed in the following terms:
My determination as to the best interests of [J] follows upon my findings as to the primary and additional considerations. When I balance those findings, I conclude it would be in the best interests of [J] to live with the [respondent] in Indonesia and spend time with the [appellant] in both Indonesia and in Perth [271].

Grounds of appeal

The appellant relies on the following grounds of appeal (omitting particulars):
1.The learned trial Judge erred in law by failing to take into account considerations relevant to the obligation of the court, pursuant to section 66A of the [Act], to have regard to the best interests of the child when it failed to consider matters relevant to the benefit to the child of having a meaningful relationship with both of the child's parents, as prescribed by section 66C(2)(a) of the [Act].
…
2.The learned trial Judge erred in law by taking into account considerations irrelevant to the obligation of the court, pursuant to section 66A of the [Act], to have regard to the best interests of the child when it considered matters irrelevant to the benefit to the child of having a meaningful relationship with both of the child's parents, as prescribed by section 66C(2)(a) of the [Act].
…
3.The learned trial Judge erred in law by failing to take into account considerations relevant to whether the order of the Family Court of Western Australia that the Respondent have liberty to remove the child of the parties from the Commonwealth of Australia to Indonesia permitted a breach of fundamental principles of Australian law relating to the protection of human rights and fundamental freedoms.
…
4.The learned trial Judge erred in law and fact in concluding that there was no need to protect the child from physical harm or being exposed to violence in the care of the mother when the Court failed to consider, or take into account, the evidence that the child was pushed by the mother causing him to fall and injure the top of his head.
5.The learned trial Judge erred in law by misdirecting herself that it was open for her to make a decision as to the parenting order to make, pursuant to section 66A of the [Act], without considering any views expressed by the child, when the court was required to consider any views expressed by the child by section 66C(3)(a) of that Act.
6.The learned trial Judge erred in law and fact in concluding, when there was no evidentiary basis to do so, that the child was too young to express any meaningful view relevant to the best interests of the child.

Principles governing appellate review

The principles to be applied on an appeal from a parenting order to this court were explained by Buss JA, with whom other members of the court agreed, in J v J.[8] As he noted, this court may exercise its appellate powers under s 211(3) of the Act only if the family law judge made a material error. The appeal is not an appeal de novo. Where, as here, the decree involves the exercise of a judicial discretion then the principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply.[9]
[8] J v J [2011] WASCA 126 [48] ‑ [53].
[9] House v The King (1936) 55 CLR 499, 504 - 505.
As Buss JA also recognised, if the decree involves the exercise of a judicial discretion, and the complaint on appeal is that no weight, or insufficient weight, was given to relevant considerations, the appellate court should not interfere unless the failure to give adequate weight to relevant considerations 'really amounts to a failure to exercise the discretion actually entrusted to the court'.[10]
[10] See also Mallett v Mallett (1984) 156 CLR 605, 614 ‑ 615, 622 ‑ 623, 634 ‑ 635, 649 ‑ 650.

Ground 1: mandatory relevant considerations

Ground 1 asserts that the trial judge failed to take certain matters into account which were relevant to J having a meaningful relationship with both his parents.
It is clear that the trial judge recognised that:[11]
Of importance is the benefit to [J] of having a meaningful relationship with both of his parents [258].
[11] See also S and T [2015] FCWA 50 [138] where the same conclusion is reached.
The trial judge also took into account her conclusion that the court's parenting orders would not be enforceable in Indonesia.[12]
[12] See S and T [213] ‑ [217], [243] ‑ [244], [257], [267].
This court has not been taken to any actual evidence that parenting orders of the Family Court of Western Australia cannot be enforced by any means under domestic Indonesian law. However, the trial judge proceeded on the basis that the court's orders would be unenforceable in Indonesia. Neither the grounds of appeal nor the notice of contention challenge that conclusion. I will, therefore, proceed to deal with this appeal on that basis.
The appellant's written submissions contend that the trial judge gave no weight to the lack of capacity to enforce orders in Indonesia. I do not accept that submission. The trial judge referred to the issue on a number of occasions. She balanced that consideration against a wide range of other matters relevant to the determination of J's best interests, in light of the incentive which the respondent had to comply with the orders even if they could not be enforced in Indonesia.
The appellant's evidence and submissions pointed to the prospect that the respondent may choose to ignore the court's orders and, if she did so, the prospect that J may be denied any meaningful relationship with his father and paternal relations. However, there were three further matters that the trial judge considered relevant to J maintaining a meaningful relationship with both parents.
First, the trial judge found that the respondent had never refused a request for the appellant to spend time with J in either Bali or Perth.[13] When pressed on this point at trial the appellant said the respondent was unpredictable and capricious, but accepted that he could not identify an occasion when the respondent had refused a request by him to spend time with J. Similarly the parental grandmother acknowledged that while the respondent imposed conditions, she had not refused to allow J to travel to Perth.
[13] S and T [215] ‑ [216].
Second, the trial judge found that the respondent has good reasons to remain in contact with the appellant and comply with the orders.[14] These reasons included the respondent's appreciation that the orders would be enforceable in Australia, that J would benefit from contact with his paternal family and that breach of the orders would imperil the financial support she receives from the appellant.
[14] S and T [217].
Third, the trial judge found that, mostly by reason of cost, it was highly unlikely that J's mother, maternal grandmother and half-siblings would come to Perth to see him.[15] She found that if J lives in Australia and never returns to Indonesia, his relationship with the respondent is unlikely to be a meaningful one.[16] Of course, if J is not to be sent anywhere that the court's orders could not be enforced it would, on the trial judge's findings, be necessary for the parenting orders to preclude J from travelling to Indonesia for the foreseeable future.
[15] S and T [226].
[16] S and T [258].
The above factual findings were not challenged on appeal.
The result of these factual findings was a requirement for the trial judge to undertake a balancing exercise. If the orders required J to remain in Australia then it was unlikely that he would have any meaningful relationship with the respondent or his maternal relatives. If parenting orders allowed J to travel to Indonesia, then there was a prospect that J might be denied a meaningful relationship with the appellant and his paternal relatives. However, that prospect would only eventuate if the respondent failed to comply with the parenting orders which provided for continued contact. The respondent had good reason to comply with those orders.
Other factors were also relevant to the determination of J's best interests. For example, the trial judge accepted that the respondent was J's primary care‑giver for all of his life prior to their forced separation in July 2014.[17] By contrast, the appellant had demonstrated a poor attitude to the responsibilities of parenthood in the past, abdicating them to his mother.[18] The appellant had barely provided for J's needs on any level until July 2014.[19] The appellant did not acknowledge the importance of J's relationships with his half‑siblings and maternal family.[20] Further, J's Indonesian lifestyle, culture and traditions had not been adequately maintained in Australia.[21]
[17] S and T [135].
[18] S and T [237].
[19] S and T [222].
[20] S and T [226].
[21] S and T [235].
In the end, senior counsel for the appellant accepted that his submissions boil down to a contention that the trial judge gave insufficient weight to the consideration that the court's orders would not be enforceable in Indonesia when determining where J's best interests lay.[22] This weighting error, if established, would not demonstrate that the trial judge's discretion to make a parenting order miscarried. Further, I am far from satisfied that the trial judge attached insufficient weight to the consideration that that orders would not be enforceable in Indonesia. It was a factor which she could take into account with a variety of other factors, but there were powerful considerations in favour of returning J to Indonesia.
[22] ts 17 ‑ 18, 22.
The appellant also contended that the trial judge failed to take account of the fact that, on return to Indonesia, J would be denied 'any enforceable right to a meaningful relationship' with the appellant. There are two answers to this particular.
First, as I have noted, the trial judge did take account of the fact that the orders she made would be unenforceable in Indonesia.[23]
[23] S and T [214], [267].
Secondly, the report of Professor Lindsey, who gave evidence about Indonesian law, does not address the question of whether Indonesian law provides a means of ensuring contact between J and the appellant. Rather his report addresses the question of whether the appellant would 'win custody' of J under Indonesian family law. Professor Lindsey incidentally refers to an Indonesian statutory provision which provides that a child born outside a valid marriage only has 'a civil legal relationship' with the mother and her family.[24] He indicates that the effect of this provision is that a child born outside a valid marriage may only seek maintenance and inherit from his or her mother.
[24] Paragraphs 32 ‑ 33 of Professor Lindsey's report.
Professor Lindsey's report does not address what provision for contact between J and the appellant, falling short of custody, might be made under domestic Indonesian law. I am not prepared to draw an inference from the report in relation to that matter, which Professor Lindsay was not asked to address and does not expressly address.
Appealable error has not been demonstrated on this ground.

Ground 2: prohibited considerations

Ground 2 asserts that the trial judge took into account an irrelevant consideration, being the likelihood of the respondent voluntarily complying with the orders in Indonesia. In oral submissions senior counsel for the appellant explained that this ground employed 'irrelevant considerations' in the administrative law sense of a consideration to which the decision-maker was prohibited from having regard.[25]
[25] ts 25.
It is established that grounds of administrative law review such as taking irrelevant considerations into account, or failing to take relevant considerations into account, are based on a construction of legislation as either prohibiting or requiring that regard be had to those matters.[26] Senior counsel for the appellant could not point to any provision of the Act which prohibited the court when making a parenting order from having regard to the likelihood that a party will comply with the court's orders without formal enforcement action. Nor can I see such a limitation in the provisions of the Act.
[26] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40; A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] - [90].
There will be many circumstances which the preparedness of a party to comply with the court's orders will be logically relevant to ascertaining the best interests of a child. For example, the parenting orders which a court makes may be influenced by a conclusion that a party to proceedings (whether inside or outside Australia) is unlikely to comply with orders requiring that a child be made available for contact with another parent. That the respondent was considered likely to comply with the court's orders made less likely the prospect that J's proposed residence in Indonesia would deprive him of meaningful contact with the appellant and his paternal relatives. It was appropriate for the court to have regard to that evidence, while bearing in mind the fact that, on the trial judge's findings, the orders could not be enforced in Indonesia.
The language of the relevant provisions of the Act is broad. Section 89(1) of the Act empowers the court to make 'such parenting order as it thinks proper'. Section 66A requires the court to 'regard the best interests of the child as the paramount consideration'. Section 66C(2)(a) requires that, in determining what is in the child's best interests, the court must consider (as a primary consideration) the benefit to the child of having a meaningful relationship with both of the child's parents. Nothing in the language of these provisions suggests a limitation of the matters a court may consider in regard to the practical effect of parenting orders.
In my view there is no basis for contending that the Act precluded the trial judge from having regard to the likelihood that the respondent would comply with the parenting orders, even though she concluded that they could not be enforced in Indonesia, in deciding what was in J's best interests.

Ground 3: Child Abduction Convention

Ground 3 alleges that the trial judge failed to take into account 'considerations relevant to whether' the parenting orders 'permitted a breach of fundamental principles of Australian law relating to the protection of human rights and fundamental freedoms'.
As I understood the appellant's submissions, they involved the following steps:
1.Regulation 16(3)(d) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (Regulations) provides that a court may refuse to make an order returning a child retained in Australia where the return of the child would not be permitted by the fundamental principles of Australia relating to human rights and fundamental freedoms.
2.Equality before the law is a fundamental principle of Australia relating to human rights and fundamental freedoms.
3.Indonesian family law would discriminate against the appellant in any application for parental rights in relation to J on grounds of gender and religion.
4.While the trial judge adverted to these matters, she did not pay 'due regard to the fact that the father would have no equality of rights as against the mother'. The trial judge erred by failing to consider that this discrimination existed in Indonesia but would not exist if J remained subject to the jurisdiction of Australian courts.
The appellant's argument fails at the first step in relying upon reg 16(3)(d) of the Regulations, which had no relevant application to the proceedings below and raises matters which the trial judge was not obliged to consider in making a parenting order.
The Regulations are made to implement the Convention on the civil aspects of international child abduction (Hague Convention), which has an object of securing the prompt return of children wrongfully removed to or retained in any Contracting State.[27]
[27] Article 1 of the Hague Convention, set out in Schedule 1 to the Regulations.
The Regulations are made under s 111B of the Family Law Act 1975 (Cth) (FLA). Regulation 14(1) provides for a responsible Central Authority to apply to a court having relevant jurisdiction[28] for a return order where a child is removed from a convention country to, or retained in, Australia. Regulation 16(1) obliges the court to make a return order on an application made within one year after the child's removal or retention if satisfied that the child's removal or retention was wrongful.[29] One of the requirements for the wrongful removal or retention is that the child habitually resided in a convention country immediately prior to removal to, or retention in, Australia.[30]
[28] The Family Court of Western Australia is given jurisdiction under s 39(5)(b) read with s 41(3) of the FLA.
[29] The circumstances when removal or retention is wrongful are prescribed by reg 16(1A) of the Regulations.
[30] Regulation 16(1A)(b) of the Regulations.

The obligation for a court to make a return order is qualified by a number of exceptions provided for in reg 16(3) of the Regulations. One of those exceptions is that the relevant court may refuse to make a return order under reg 16(1) if a person opposing return establishes that:
(d)[T]he return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Regulation 16(5) provides that the court is not precluded from making a return order for the child only because a matter mentioned in reg 16(3) is established by a person opposing return.
By these means reg 16(3)(d) qualifies what would otherwise be the obligation of the court to make a return order providing for the return of a wrongfully removed or wrongfully retained child to a convention country.
Indonesia is not a convention country for the purposes of the Regulations. If it were, then it might have been that the appellant's retention of J in Australia was a wrongful retention of the child in Australia. If so, a responsible Central Authority might have made an application under pt 3 of the Regulations. If wrongful retention were established then the court may have been obliged to make a return order unless one of the exceptions in reg 16(3) applied. If the appellant had opposed removal on the ground specified in reg 16(3)(d), then the court dealing with the application may have been required to consider that issue.
However, no application under reg 14 was made in the present case and, since Indonesia is not a convention country, no entitlement to make such an application arose.
In a case to which reg 16 of the Regulations applies, the court is not engaged in a determination of any issue concerning the care or custody of the child. Rather, the court exercising jurisdiction under the Regulations is required, subject to the exceptions in reg 16(3), to secure the expeditious return of children to the country of their habitual residence,[31] where issues of care and custody will be determined.[32] Proceedings under the Regulations are not governed by the paramountcy principle,[33] although the welfare of the child is a relevant consideration.[34]
[31] There does not appear to be any room for doubt in the present case that J's habitual residence prior to July 2014: see LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582.
[32] RCB v The Honourable Justice Forrest [2012] HCA 47; (2012) 247 CLR 304 [2], [22]; De L v Director‑General, NSW Department of Community Services (1996) 187 CLR 640, 648 ‑ 649.
[33] De L (658).
[34] De L (661).
By contrast, in the present case the trial judge was concerned with determining J's best interests. She was not required to consider the issue raised by reg 16(3)(d) in order to decide whether she was obliged to return J to Indonesia. The trial judge was under no obligation to order return at all. She was required to determine questions of parental responsibility and J's residence in the exercise of a judicial discretion to make a parenting order guided by the trial judge's assessment of J's best interests as the paramount consideration.
In these circumstances it cannot be concluded that the trial judge was under any obligation to consider the matter referred to in reg 16(3)(d) of the Regulations. As counsel for the respondent accepted in oral submissions, any conclusion about fundamental rights and freedoms must operate subject to the paramountcy principle.[35]
[35] ts 33.
The required focus in the present case was on J's best interests, not discrimination against the appellant. The trial judge saw J's interests as potentially adversely affected by the circumstance that the court's orders were not enforceable in Indonesia. In the end, as senior counsel for the appellant accepted, the argument about fundamental rights and international law invited the court on an excursion that doesn't actually lead anywhere.[36]
[36] ts 32 ‑ 33.
The appellant's submissions on this ground also criticised the emphasised parts of the following passage of the trial judge's reasons:
Queens Counsel for the [respondent] said the position under Indonesian law, as set out in an opinion provided by Professor Lindsay, Professor of Asian Law at the Melbourne Law School, is only that a contact order cannot be made in favour of the [appellant] in respect of a child like [J]. In relation to the [appellant]'s human rights argument, the human rights of the [respondent] must also be considered. Queens Counsel for the [respondent] submitted that, in the past, the [respondent] had never denied a request from the [appellant] or the paternal grandmother to bring [J] to Australia, and that the [appellant] could not now rely on his breach of the [respondent's] trust as a reason to disallow [J's] return to Indonesia [244]. (emphasis added)
In this passage the trial judge was, in my view, doing no more than recording submissions which counsel for the respondent had advanced. In the previous paragraph she had summarised submissions advanced by counsel for the appellant. The trial judge's reasons for making the parenting orders follow those summaries of counsel's submissions, and do not adopt or turn on the passages emphasised in the above quotation.

Ground 4: failure to consider evidence

As noted above, the trial judge concluded that there had been family violence involving the respondent during her relationship with M.[37] However, she concluded that violence was not currently an issue.[38] The trial judge considered that there was no need to protect J from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence in the care of either the respondent or the appellant.[39]
[37] S and T [143].
[38] S and T [47] ‑ [148], [240], [257].
[39] S and T [174].
The appellant submits that the trial judge erred by failing to refer to evidence which the appellant had given in a supplementary affidavit he swore on 3 September 2014. In that affidavit, the appellant related a conversation he had with J after putting him to bed at around 8.30 pm on 1 September 2014. The evidence was as follows:
On the night of 1 September 2014 at around 8.30 pm, after I had put [J] to bed and turned off the light, the following occurred:
a)I noticed that the sound of [J's] breathing had changed and I asked him if anything was wrong;
b)[J] replied that he was 'having a little cry';
c)Surprised, I asked him why he was crying and he replied, 'It's a secret', and that he could not tell me;
d)I said to [J] that he could tell me his secrets because I am his Father and my job is to help him and keep him safe;
e)[J] answered, 'I have lots of secrets that you don't know about';
f)I asked [J] to give me an example of one of his secrets. [J] said, 'Like mummy hurting me';
g)I asked him, 'How did mummy hurt you?';
h)At this point [J] sounded anxious and said words to the effect of, 'Nothing happened, it's just an imagination';
i)In reply I said words to the effect of, 'OK, I understand. Nothing happened';
j)[J] then said, 'Mummy pushed me and I fell and had a crack in my head' at which time he pointed to the top of his head;
k)I replied that this must have hurt;
l)I asked if there was any blood;
m)He said, 'Yes, it was coming down the front of my head';
n)I then asked [J] when the fall had happened;
o)He again became anxious and said, 'It wasn't real!';
p)I again asked [J] where the fall had happened. This time he replied that it had happened in the Naughty Room;
q)I asked [J] what the 'Naughty Room' was;
r)He said, 'It's a room that's dark and has nothing in it. Mama puts me there when I've been naughty for half an hour. Sometimes she looks as [sic] her phone and says "I think you need to stay longer"';
s)After a silence, [J] said, 'Mama just doesn't care about me';
t)I asked [J] if the fall he was talking about was the one I had heard of in which he hit his head the day before a planned trip to Ubud;
u)[J] answered 'No'. He said, 'It happened at night, when [T] was asleep'; and
v)[J] concluded the conversation by saying, 'I have lots of secrets. I have nine or ten secrets. But I'll only tell you one, that's enough'.
The respondent was cross‑examined about this incident, but denied that it had occurred and said that J had made it up.[40]
[40] Trial ts 98 ‑ 100.
It is common ground that the trial judge did not refer to this evidence in her reasons. However, I am not satisfied that the failure to do so constituted a material error which vitiated the exercise of the trial judge's discretion. There was no direct evidence of an assault and J's own account was qualified by statements that 'it's just an imagination' and 'it wasn't real'. J gave little detail of the incident. The highest the evidence went was to suggest that, on one occasion, J fell after the respondent pushed him and cut his head. There was no indication of the respondent being angry or repeating the conduct on any other occasion. The circumstances and nature of the push were not explained.
Section 66G(1)(b) of the Act provides:
In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order
…
(b)does not expose a person to an unacceptable risk of family violence.
It is clear that the resolution of an allegation of even serious abuse by a parent is subservient and ancillary to the court's determination of what is in the best interests of the child.[41] Determining whether a risk is 'unacceptable' involves an assessment of the magnitude of the risk and balancing the risk of detriment to the child against the benefits of parental access and care.[42] The incident suggested by the appellant's supplementary affidavit was not one of sexual or other serious abuse which had the potential to have a decisive impact on the case. The incident described as a push is not of such a magnitude as to be capable, considered in light of the benefits to J of living with the respondent, of affecting the conclusion that there was no unacceptable risk of family violence in this case.
[41] M v M (1988) 166 CLR 69, 76; see also W v W [2005] FamCA 892; (2005) 34 Fam LR 129 [93] ‑ [111]; Johnson and Page [2007] FamCA 1235; [2007] FLC 93-344 [62] ‑ [71].
[42] M v M (77 ‑ 78).
Nor did any failure to consider this evidence lead the trial judge to apply the presumption in favour of shared parental responsibility provided for by s 70A(1) of the Act. The trial judge found that presumption to be rebutted on other grounds.
Given all of the other evidence to which the trial judge referred, the evidence suggesting a push was not capable of altering the trial judge's ultimate conclusion as to the appropriate parenting orders in this case. Any error involved in not referring to this evidence does not constitute any material error which would justify revisiting the decision on the principles identified in House.

Grounds 5 and 6 and notice of contention: views expressed by the child

The appellant's fifth ground of appeal asserts that the trial judge erred in making parenting orders without considering any views expressed by the child. The sixth ground asserts that the trial judge acted without evidence in concluding that J was too young to express any meaningful view.
In this case the trial judge did take steps to obtain J's views by ordering a family report under s 73(2) of the Act. The report was to deal with J's feelings or views about the current parenting arrangements and about any proposed changes to those arrangements.[43]
[43] Order 6(f) of the orders made on 22 September 2014.
The respondent says that there was an evidentiary basis for the trial judge's conclusion that J was too young to express any meaningful view. I accept that submission. In the family consultant's report, it was stated:
[J] was not interviewed as he refused to participate. He was then invited to be interviewed with his father present, and again said 'no'. This is not surprising given his young age. [J] is 6 years and 7 months of age, and developmentally children of this age are socially impatient and are beginning to have difficulties relating to adults. Children can be verbally aggressive and self‑centred. Typically a child of this age relies on his immediate perceptions and his direct experiences rather than logical/concrete operational type thinking. Children of this age may view the world from their own point of view as compared with an older child's more logical viewpoint [27].
Later in the report, the family consultant noted:
The Family Consultant is unable to expand upon this term given [J's] views were not gathered as he refused to be interviewed. It is considered by the writer inappropriate for a six year old to be expected to express their views in a formal interview setting. Additionally, the Family Consultant is uncertain if the child's views should be given significant weight, given his young age [83].
In her oral evidence, the family consultant expanded on this evidence in the following manner:[44]
I wondered whether you had considered using alternative ways of doing it, which would be really not to ask him but to sort of, in a sense, rather gently tell him that, 'This is what we're going to do today, and it's very important because'?‑‑‑I didn't feel that was appropriate in September, I think it was, when I saw them. He was a six year old boy. He didn't want to engage with me. I respected that. We normally don't interview children until they're around that 10 years of age mark here at the Family Court. And I would - I was uncertain what value any evidence the child may give me might have been for the court given his young age.
Well, I follow that. But - yes. So essentially your decision was that, based on his age, based on his reaction, you felt it would not be right to press this any other way?‑‑‑Yes.
[44] Trial ts 51.
The appellant's submissions refer to a review of psychological literature undertaken by Baker J in Harrison and Woollard,[45] and to his Honour's conclusion that the research gave rise to a rebuttable presumption that children of the age of seven are capable of making a reasoned decision, ie, a decision in which reason is employed.[46] However, none of that literature from the field of psychology was placed before the trial judge in this case. The other members of the court in Harrison did not adopt the approach of determining the issue by reference to literature which had not been the subject of submissions at trial.[47] The literature review was undertaken 20 years ago. In my view, a court should approach the assessment of non-legal literature in the field of psychology with considerable caution, in the absence of evidence of what literature is relevant and without the assistance of an expert witness. There was no error in the trial judge acting on the evidence which was before the court rather than that which had been referred to in Harrison.
[45] Harrison and Woollard (1995) 126 FLR 159, 193 ‑ 198.
[46] Harrison (198).
[47] Harrison (168 ‑ 169).
By her notice of contention, the respondent contends that, in any event, J expressed no views which were available to be taken into account. The appellant accepts that no views were expressed. His argument therefore depends on the proposition that, in the circumstances of this case, it was incumbent on the trial judge to take further steps to solicit a view from J which would then be taken into account. The appellant submits that the trial judge could have sought to elicit J's views by appointing an independent children's lawyer under s 164 of the Act, allowing an application for J to give evidence[48] or conducting an interview in court or chambers.
[48] Under s 214A of the Act and r 15.02 of the Family Law Rules 2004 (Cth) (adopted by r 12(1) of the Family Court Rules 1998 (WA)).
J made it clear that, even in the less formal setting of an assessment by a family consultant, he did not want to express a view. Section 66E of the Act expressly provides that nothing in pt 5 of that Act permits the court or any person to require a child to express his or her views in relation to any matter. There had been no application by any party under r 15.02 to adduce evidence from J about these matters.
I do not accept that, in these circumstances, it was incumbent on the trial judge to take further steps to elicit J's views about proposed parenting arrangements. The trial judge found that J was too young to express any meaningful view, and I have identified the evidentiary basis for that conclusion. J had made it clear that he did not want to express a view to the family consultant. There was no reason to think that J would have wanted to express a view in the more formal setting of the court or the trial judge's chambers. There was also no reason to think that an independent children's lawyer would be more successful than the family consultant in engaging J in discussion about his views. To have pursued the matter further would have risked trespassing upon the requirement of s 66E of the Act, through repeated questions creating in J an impression that he was required to provide answers.
I shall assume in the appellant's favour (without deciding) that the Act may implicitly require the court to take steps to ascertain a child's views in some circumstances. On that assumption, ground 5 must still fail. The trial judge did take steps to ascertain J's views and, in the circumstances of this case, no further steps were warranted.
I am not satisfied that either ground 5 or ground 6 have been made out, and would uphold the notice of contention.

Orders

For the reasons explained above the appeal should be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: T -v- S [2015] WASCA 225 (S)

CORAM: NEWNES JA
MURPHY JA
MITCHELL J

HEARD: ON THE PAPERS

DELIVERED : 2 FEBRUARY 2016