Taybor and Anderson (No 2)

FAMILY COURT OF AUSTRALIA

TAYBOR & ANDERSON (NO. 2)

[2009] FamCA 923

FAMILY LAW – CHILD ABDUCTION - Child taken from Australia - Child brought to Australia - Hague Convention
FAMILY LAW – CHILDREN - Child related proceedings - Best interests - With whom a child lives
FAMILY LAW – CHILD ABUSE - Allegation of sexual abuse - Psychological abuse - supervised contact

Briginshaw (1938) 60 CLR 336
Goode (2006) FLC 93 286
Penfold (1980) FLC 90 008

APPLICANT:

Mr Taybor

RESPONDENT:

Ms Anderson

INDEPENDENT CHILDREN’S LAWYER:

David Duncombe

FILE NUMBER:

PAC

5282

2008

DATE DELIVERED:

4 September 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

31 August 2009 - 3 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR GERSBACH

SOLICITOR FOR THE APPLICANT:

HERMANN & GREEN

COUNSEL FOR THE RESPONDENT:

MR MAURICE

SOLICITOR FOR THE RESPONDENT:

HAMISH CUMMINGS

FAMILY LAWYER

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

MS DRUITT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

DIGNAN & HANRAHAN

DX 5113 CAMPBELLTOWN

Orders

That all prior parenting orders in respect of the child … born … February 2005 be and are hereby discharged.
That the child hereafter be known by the name … Anderson-Taybor.
That the mother and father each do all things and sign all documents necessary to record the child by the name … Anderson-Taybor and to record Mr Taybor, born … 1958, as the child’s father with the NSW Registry of Births Deaths and Marriage.
That the father have sole parental responsibility for the subject child. The father shall consult with the mother as to significant issues relating to the child and keep the mother informed and advised as to the child’s health, education and welfare.
That the child shall live with the father.
That the Mother and her servants and agents be and are hereby restrained from removing or causing or allowing the Child to be removed from the Commonwealth of Australia and from applying for a passport for the Child in any jurisdiction.
That the Marshall and all officers of the Australian Federal Police and Police Forces of the States and Territories are requested and authorised to give effect to these orders.
That the Australian Federal Police place the name of the Child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch until further order of the Court for the purpose of preventing the removal of the Child from Australia in breach of these Orders.
That the Registry Manager of the Parramatta Registry of this Court deliver to the father the following items:
(a) Australian Passport … issued to the child; and
(b) Country B passport … issued to the child.
That the Registry Manager of the Parramatta Registry of this Court deliver to the mother the following items:
(a) Australian Passport …issued to the mother; and
(b) Country B Passport … issued to the mother.
That the mother and father each keep the other informed of their full residential address, current telephone numbers both landline and mobile, and any email address at which they may be contacted.
That each party shall give the other at least seven days notice in advance of any proposed change to their residential address.
That the Mother be and is hereby restrained from:
(a) disclosing or discussing with any journalist or reporter;
(b)encouraging, authorising or allowing any other person to discuss with or disclose to any journalist or reporter; or
(c)in any other way causing or allowing to be published, including publication on the internet or any website:
any information that names or refers to the Child or the Father, except as required by law.
That the mother be and is hereby restrained from making any complaint of sexual abuse regarding the subject child to any person, authority, police service or government agency without:
(a)First notifying the Independent Children’s Lawyer of her intention to do so; and
(b)In the event that no Independent Children’s Lawyer is in place, any such complaint is to be brought to this Court by the mother filing an application for relief and appropriate supporting material.
That the appointment of the Independent Children’s Lawyer be extended for a period of twelve months from this date.
That the child shall spend supervised time with the mother as follows:
(a)From the date of these Orders until the child commences school on two occasions each week for such periods as may be available at the P Contact Centre or any other centre that may appropriately facilitate the child spending supervised time with the mother.
(b)From the time the child commences school until the child attains the age of eight years, as follows:
(i)Each Saturday for such period of time as may be available at the Contact Centre;
(ii)After school each Wednesday, or such other appropriate weekday afternoon, for such period of supervised time as may be available at the Contact Centre.
(c)From the time the child attains the age of eight years until the child attains the age of eleven years, each Saturday for such time as can be made available by the Contact Centre.
(d)That the mother and father equally share and be responsible for all fees, costs and charges of any contact centre.
(e)That in the event of there being no contact centre service available, such time in accordance with these orders is to be supervised by a member of the father’s extended family as nominated by the father. In the event of any difficulty with the identity or appointment of a supervisor in accordance with this order, the matter may be restored to the list upon giving seventy-two hours notice.
That as and from the time the child attains the age of eleven years, the mother shall spend unsupervised time with the child each alternate weekend form after school Friday to before school Monday.
That the Father facilitate the Child speaking with the Mother by telephone on 2 occasions each week, being on days when the Child does not spend time with the Mother, to be effected by the Mother placing a call to the Father on a landline telephone number, if available, and the Father keeping the Mother informed of the telephone numbers on which the Child can be contacted.
That the mother otherwise communicate with the father by email or text message and not by telephone except in the case of an emergency.
That until the child attains the age of eleven years, the mother is restrained from speaking to the child in the language of Country B other than by way of greeting or endearment and shall use English in all conversations. Further the mother is not to whisper to the child so as to avoid being heard by persons supervising.
That the mother and the father each be and are hereby restrained from denigrating the other or any member of the other’s extended family in the presence or hearing of the Child.
That the father be at liberty to suspend the mother’s time with the child either for one period of up to four weeks in each year or for two periods of up to two weeks in each year, upon giving the mother at least twenty-eight days written notice.
That the mother is restrained from attending or communicating by any means with any childcare, preschool or school attended by the child or with parents or carers of any other child attending the same institution, either directly or via another party.
That the mother is to deliver to the father within twenty-eight days from the date of these Orders all photographs and videos removed from the parties’ home in July 2008. The father is to take such copies as he wishes, at his own expense, and return that material to the mother within fourteen days thereafter.
That the mother make available to the father within fourteen days the Medicare card in respect of the child and the child’s bluebook. The mother may make copies of the bluebook before making it available to the father.
That the Independent Children’s Lawyer’s application for costs be and is hereby dismissed.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from this date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282 of 2008

MR TAYBOR

Applicant

And

MS ANDERSON

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the future living arrangements for the parties' only child, a daughter, who is aged four and a half. The child presently lives with her father and sees her mother in a situation of supervision twice weekly. Additionally she speaks with her mother on the telephone. The matter has a complicated background. Its history, to my mind, is something that I ought set out at this point in the judgment so that the factual matrix of the matter can be more clearly understood.

Background

·The father was born in 1958 in Country A in Europe.
·The mother was born in 1974 in Country B in Europe.
·The father came to Australia in 1969 and the mother in about 2003.
·The parties met in early 2004. As I understand the evidence at that time the mother was married to her then husband.
·The parties commenced a relationship shortly after they met of a sexual nature.
·In about mid-2004 the mother informed the father that she was pregnant. At the end of 2004 the mother moved to live with the father in an apartment in Sydney. Another member of the father's family lived with them there for some short time.
·The child was born in February 2005. It is clear on the evidence before me the father went with the mother to the hospital and was actually present when the child was born.
·In early 2006 the mother visited Country B and, as I understand it, again from the material which was not the subject of any challenge, she was funded to do so by the father.
·In 2006 there was another trip to Country B and again in 2007.
·The father took mother and child to Country A to meet members of his extended family and were joined by members of her extended family.
·In early 2008 the father paid for the mother and child to attend the mother's grandmother's funeral in Country B. It appears that for some time after that the relationship between the parties was less than satisfactory.
·In any event, on 17 July 2008 the mother and child left the premises that they had occupied with the father leaving a note stating that they were going to see a friend and would be back in two or three days.
·The next thing that appears to have occurred was that the father received a message on 18 July 2008 from the mother, saying that she was in Country B with the child.
·Between July and November there were a number of occasions upon which the father was able to speak with the child by telephone or by Skype. There was some exchange of emails.
·In the middle of 2008, that is some time in July, the father first instructed those who represented him to make contact with the Australian Central Authority so that proceedings might be commenced under the Hague Convention.
·On 27 July 2008 the father received an email from the mother that she would be coming back to Australia but not before 15 October 2008. That did not occur. Apparently the father was told that there was some prospect if he went to Country B he could see the child.
·In October 2008 the Central Authority was advised that the mother would not permit the father to spend time with the child in Country B and that she would not do so until at least the hearing of the Hague Convention application in Country B.
·On 6 November 2008 orders were made in this Court for the parties to have equal share parental responsibility.
·On 10 November 2008 the Hague Convention matter was heard in Country B, and on 19 November the decision of that court was published. The mother was ordered to return the child within six weeks and if she failed to do so within that period the father would be eligible to return the child at the expense of the mother.
·The mother did not allow the father to see or speak with the child. He was not given any addresses or means of communication or contact with the child and in December he returned to Australia. In December the mother lodged an appeal from the original decision of the Country B court.
·That appeal was heard on 22 January and the father returned to Country B for that hearing.
·In January 2009 the Country B Appeal Court dismissed the mother's appeal. The father thereafter stayed in Country B endeavouring to ensure the child's return to Australia.
·By early March 2009 it appeared that there was no way in which the Country B authorities were either willing to assist or capable of ensuring the recovery of the child from the mother so as to return her to the father for return to Australia pursuant to the orders of the Country B courts.
·The father thereafter removed the child from the mother in circumstances where the mother was at a shopping centre and the father took the child with the assistance of at least one security guard. This was done on 14 March 2009. The father asserts, and I accept, that he had a female person who could speak the language of Country B with him so that the child was able to be spoken to in that language and reassured.
·The father then returned to Australia following a circuitous route which I will not set out in these reasons for judgment.
·On 19 March orders were made in this Court, the mother at that stage being represented by a Legal Aid solicitor on an amicus basis. Thereafter there were a number of other appearances in this Court and the mother was able to see the child in a situation of some supervision initially by agreement between the parties and, secondly, by virtue of orders made in this Court on 2 April 2009.
·On 3 April 2009 the mother attended for the purpose of spending time with the child. She thereafter notified police that the child had been the subject of abuse at the hands of the father. Police became involved and the child was taken to a police station where she was interviewed eventually by members of the Joint Investigation Response Team. The child was subsequently returned to the father by the relevant authorities.
·On 15 April 2009 further interim orders were made in this Court which gave the mother some unsupervised time with the child. Immediately thereafter there was an appeal lodged in respect of that order and the matter was subsequently re-heard by me as an interim matter. Orders were made for the mother to spend supervised time with the child.
·The mother thereafter I am satisfied has on every occasion when time has been available spent time with the child in a supervised situation.
·For a period of time the mother employed the services of Dial-An-Angel for which she paid a commercial rate for a member of that organisation to attend. Indeed an exhibit before me is the file of Dial-An-Angel with the reports prepared by the supervisor who attended on the occasions that the mother saw the child with the assistance of that service.

The Parties’ Applications

The applications of the parties may be summarised as this. The father commenced these proceedings. On 15 April 2009 he filed an amended application. However the time the matter had come to addresses the father produced to me a minute of the order that he sought. That minute was in very similar terms to a minute produced by the Independent Children’s Lawyer who of course addressed first.
The mother's case was set out in a minute of order handed to me earlier in the proceedings.
There is great similarity between the minutes of the father and the Independent Children’s Lawyer. The mother's minute seeks an entirely different set of orders. Whilst the father and the Independent Children’s Lawyer seek orders that would have the child live with the father and spend very limited and supervised time with the mother, the mother for her part seeks that the child live with her and spend alternate weekends with the father.
A significant change in the mother's position is that she no longer seeks that she be permitted to remove the child from Australia so that she and the child can live in Country B. It is clear from her application that what she intends is that the child and she should remain in Australia and that the child should spend, as I say, weekend time with her father.
In the event when I heard submissions from each of the parties they all used the two minutes of the father and the Independent Children’s Lawyer as very much the basis for the submissions and arguments they put to me. I will return to that at a later stage of this document.

The Parties’ Affidavit Material

The parties each filed affidavits in support of their case. In the father's case there were:
·His affidavit of 7 August 2009;
·The affidavit of his brother, who I will refer to as Mr R Taybor, of 6 August 2009;
·The affidavit of Ms P Taybor of 22 July 2009;
·The affidavit of Ms N Taybor of 23 August 2009; and
·The affidavit of Ms G an interpreter who annexed emails and the interpretations or translations of those emails, which document was filed in court.
In the mother’s case, there were:
·The affidavit of herself of 7 August;
·The affidavit of Ms Z of 13 August;
·The affidavit of Mr Y of 13 August; and
·The affidavit of Ms S of 13 August.

The Expert’s Report

There was also before me a lengthy report of Dr Q.

The Oral Evidence

In the hearing before me, oral evidence was given by the father, the mother, Dr Q, and Mr Y. No other deponents were required for cross-examination. Accordingly I am satisfied that their affidavits stand unchallenged. Further there were a number of documents tendered before me that became exhibits in the proceedings.

The Father’s Case

The father's case as I apprehend it is that the mother has a poor relationship with the child and does not appreciate nor understand the responsibilities of parenthood. It is his case that she has sought and the suggestion is made she continues to seek to alienate the child from him. It is his case that she has made allegations concerning him sexually abusing the child in a manner that she knows to be unfounded. He further says that her allegations of sexual abuse predate her return to Australia and in this regard he relies upon articles that have appeared on the internet in which the father is described as a paedophile. His case further is that the mother is indeed still of the mind that given the opportunity she would remove the child from Australia and return with her to Country B.

The Mother’s Case

The mother's case is that the father is not a suitable person to care for the child. She says that prior to her leaving Australia with the child that the father was violent and that she lived in extreme fear of him. She says that in Country B she continued to be in fear of him and it was for this reason, as I understand her evidence, that she chose not to return to Australia at any time and indeed remained in Country B clearly in breach of the orders of the Country B court requiring her to return the child. The mother further says that the father drinks heavily and that he is a poor, indeed dangerous, driver.

There is also some mention that the father has been involved in what can only be described as bribery and misconduct. As I understand it the significance of that in part at least is that the mother seems to assert that the father knowing that he might face some punishment in respect of that, is seeking to have the child live with him in an effort to minimise any sentence that might be imposed upon him or any punishment that may be brought to bear upon him. That then appears to be a brief outline of the material and the case that each party raises.

The Hearing Before Me

This is not a matter that can simply be resolved on the question or a determination of the question of credit and who is to be believed and who is not. However, to my mind it is necessary for me in order to determine some of the issues that require a concluded view to examine briefly the evidence of the parties and make an assessment of each of them.
The father gave quite extensive evidence-in-chief to his counsel in which he dealt with issues for example of his drinking. He denied drinking every day and said that he occasionally has wine with a meal.
So far as the bribery and misconduct investigation was concerned he said that he had given evidence in a closed session, had not been aware that there was any prospect of charges against him being preferred, and that in the time since the investigation was concluded, and a request made to the Director of Public Prosecutions that consideration be given to taking action against him, that he has heard nothing and no charges to his knowledge have been laid against him.
He said that after taking the child in Country B, he had asked the mother to help him comfort the child and there had been some attempt to reassure the child by having her believe that the mother was coming to the airport.
He said that he was never aggressive to the child at any time. I do not accept that this was so because on his own admission there was the episode where the girl having told him to shut up, he grabbed her nose with at least two fingers. However, having said that I am not satisfied that the incident was anywhere near as harmful or severe as the mother would have me believe.
He spoke of his situation for the future. He said that he wishes to return to work and that if he does so that the child will commence school as soon as possible. He was cross-examined at length by counsel for the mother in this regard and it was suggested to him that he had not made particularly careful plans, or any plans at all, regarding what would happen concerning his daughter's schooling. There was to my mind some uncertainty as to when the child would actually start school. The father conceded that it might be for others to make the assessment that she would be ready at the commencement of 2010 (when she would be barely five) or whether there might need to be some postponement.
He agreed that the mother had some good qualities. He spoke of her love and affection for the child. His business venture that he thought he might return to would involve import from Asia. He said he would not need to travel. He was cross-examined at some length concerning the type of business, the amount of mileage he did every year, and the requirement that he might be absent from home from time to time.
There was evidence given that during their relationship, he wanted the mother to come to Queensland. Emails that he sent were in quite a peremptory and very abrupt and authoritarian manner. It seems that there was a suggestion that business might take him to Queensland and it appears that he held the belief that if he were providing accommodation for the mother and child it was certainly a matter for him as to where that were done.
Asked about his driving record he said it was excellent. This is clearly and absolutely fallacious. He has some 42 speeding offences. He has been disqualified on a number of occasions for the accumulation of points and additionally he has two Prescribed Concentration of Alcohol offences, the second of those in 2007. However I accept his evidence that he has not been involved in an accident. I also accept that he drives erratically and fast and sometimes, on at least two occasions, with more than the Prescribed Concentration of Alcohol in his bloodstream.
He was asked further about the misconduct inquiry. He repeated his version of events that he had had a number of interviews and was entirely unaware that there was any suggestion of proceedings being taken against him.
He admitted he did grab the child's nose in the episode to which I have already referred and he did tell her – to use his words he cautioned her not to say to him, "You shut up". He agrees he told the mother to shut up but he cannot remember why. He said, however, that he believed he had acted appropriately.
He spoke of his attempts to see the child in Country B. He said that when he took the child it was he that took her, not the security guard. He said that in future he may share the cost of supervision. He was happy for the child to speak to her mother at any time if she is not causing trouble. To Ms Druitt, the Independent Children’s Lawyer's counsel, he agreed that the mother's relationship with the child would deteriorate if the time mother and child had together, was severely limited.
The father's evidence was that he was concerned that the mother was saying things to the child in the language of Country B that were comments adverse to him and that she was encouraging the child to listen only to her. He says that on occasion he has told the mother to tell the child the truth. He indicated that there was an occasion when he had had a drink before arriving at the contact centre to collect the child. He says that the child tells him that the mother is speaking in the language of Country B. He was concerned because nobody else could understand what was being said.
He said he was always positive to the child about her mother. He proposed that supervision ought continue. He said that he was fearful as to what the mother might say to the child or a teacher at the child's school. Particularly he was concerned that reference would be made to him being a paedophile and this might cause the child social difficulties. He said the mother has the child's Medicare card.
Briefly re-examined he said that he was alone when stopped for the latest Prescribed Concentration of Alcohol, having been at a wedding. The vehicle he was driving was not his.
He again spoke of taking hold of the child's nose with two fingers and the child was not crying. He said the mother had on occasions changed her mobile number.
The mother was then called and examined in-chief briefly by her counsel. She was asked if it was true that the father had little to do with the child in the early days. Her answer was, "We lived in one apartment". She conceded he was present at the birth and that he cut the cord. Members of his family and mutual friends had visited in hospital. The baby had been taken from hospital to see his mother who was herself unwell.
She referred to "the two of us" which I took to mean herself and her daughter not being part of a happy family. According to the mother, he did not say he was happy to be a father. She said she took photos and videos with her, some but not all, and she did not destroy any albums.
She said that the father did not want to be named in the child's birth certificate and that she filled in the forms in that regard. She thought they had been done after hospital. She said that the father wanted the child to have her surname and that he was not interested to be her father.
It was put to her that she had told the press that she could not understand his interest in the child and she denied this. It was put to her that the father had fed the child after about 10 months of age and she said not that she could remember. She said that she had taken almost everything we had when she left, I take this to be referring to photographs and videos, and left some on the computer. She was going to get her father to do them up and put them into a completed product possibly with music.
She said she was not sure how often she had tried to contact the father or attempted to telephone him whilst she was in Country B. She said she meant to go and come back to Australia but she was afraid to return. She had made some contact with the Australian police. She obtained a Country B passport for the child. She did this by showing her Australian passport and a birth certificate. It was put that she applied to obtain such a passport on the basis that the father was unknown. She said she showed them documents.
She said that she and the father had gone to Europe to see both sets of families.
She was taken at length through a number of photographs which in a folder became an exhibit before me. The thrust of those photographs was that the child appeared to be:
a)depicted as a happy child in those photographs and was certainly depicted with members of her extended family and friends that she had known before going to Country B.
It was put to her that she had insisted to the Country B court that the Australian orders were a forgery. She said she did not know and was not sure. She indicated she had wanted to stay for some time in Country B. She did not return after the first decision because she did not agree with the orders and the same thing happened after the appeal.
She agreed that the father offered to pay for accommodation. She had never paid for rent of any property. It was put to her that the father had offered to buy a property somewhere close to where he lived. The mother appeared to make some disparaging comments about persons who might live in that area and indicated, as I understand the material, that she would not live in such an area. Again she said the father had never been asked to put on the child's birth certificate.
She agreed she was told that airfares would be provided for her to return from Country B. She agreed that she knew the father would pay airfares. She insisted that in Country B she was protecting her child by not letting the father see her. Indeed she was in that regard dismissive of an arrangement that was offered, that the Country B Children’s Court might in some way act in a role similar to the Independent Children’s Lawyer to enable the father to see the child. She denied that she was aware of any such offer or arrangement.
She had asked the child where she sleeps. The child said, "With him. He comes to my bed". She said that she knew that something had happened from the way the child was speaking. It was put to her at that stage that she was smiling whilst giving evidence because it was not genuine and she said this was not so. She agreed she had spoken to a journalist in Country B to put her side of the story.
She was asked about placing the child on the table tennis table in the recreation room. It was put that she had placed the child on the table, undressed her and examined her bottom. She indicated that she needed to remove the child's underpants to check if the child required any cream being placed upon her because of redness or rash in her genital and anal area. As I understand it she said that it was required and accordingly she did indeed apply cream to those areas.
She then gave evidence as to what she had said to the child in relation to the child's allegation that the father had done something to her. As I understand it she asked the child either, "Where did your father touch you?" or "Did your father touch you?" She indicated that the child had said that her father had. There is to my mind some discrepancy in the evidence given by the mother in the witness box in this regard, in her affidavit in respect of the matter, and particularly in the statement she gave to police.
It would appear in contrast to what she says in her affidavit at paragraphs 58 and 59. What she said according to her oral evidence was, "Was he touching you?" She says that she took the child’s underpants down then for two reasons: (a) to check about touching; and (b) to check for a rash. The reference to checking for “touching” was clearly in contrast to what she had said earlier about taking the pants down to check to see if the child needed cream applied for a rash. Apparently the child has suffered from rashes in this area for some time.
The mother reported the child as saying, "He puts his finger there" in her oral evidence, whereas her affidavit material would indicate the child as saying, "He put his fingers in my bum".
It was put to the mother that she had come to see the child on that occasion with the specific intention of making a complaint to police to improve her prospects of having the child placed with her. She denied this was so. It was put to the mother that she encouraged the child to tell people that her father had touched her or placed his fingers inappropriately. She denied that that was so.
She said she had never talked to the child in the language of Country B. She said that the child was going through hell. She said she did not tell the child to say things to Dr Q. There were some questions asked about a drawing that the child had done for the Country B psychologist and a drawing the child produced for Dr Q. It was put that she was trying to influence the child and she denied that this was so.
To Ms Druitt she said that she did not tell the child the father would not allow her to spend extra time with her mother. She said that the father was very angry. She said she did not tell her parents of her fears of abuse. She said there was a period when she held doubts about abuse of her daughter. Her fears appeared to be in someway diminishing, but what she then heard from Dr Q raised further concerns.
It was put to her that if he had applied the cream she would have criticised him and if he had not applied cream she would have criticised him. She agreed the child had had a rash since a little baby. She then said she expected he would have applied the cream. As at 3 April she thought the child did have a rash. She was not sure if the child has spoken about the father putting cream on.
She agreed the child was born in Australia. She decided alone to make the move overseas. She said it was not normal for a child to be recovered in the manner that the father took the child from her. She said that she could not bring the child back herself prior to the father taking the child because she had nowhere to go. It was too risky for her to come back. She said she wanted police to investigate after the child had made a disclosure. She did not care what happened as long as an investigation was carried out.
I should add here that the mother at various stages indicated she would like both a physical examination carried out on the child, and a further psychiatric/psychological examination of the child conducted. It was put that the father always wanted his name on the birth certificate and she said that this was not so. She does know that he is concerned to be called Dad. She did concede, to her credit, that what she did damaged the child's relationship with the father. She said that she knows the father will live with his mother.
Dr Q gave evidence in respect of her detailed and lengthy report. To Ms Druitt she said that if she concluded the mother was still saying inappropriate things this would be quite damaging and the time the mother spent with the child would need supervision. If this could not be arranged through a contact centre his family would be appropriate supervisors and indeed may have to be the supervisors. She said she would not trust the mother around the child. She said the mother could present difficulties within a school community.
To Mr Gerbasch she said that flight was a risk. She made comment of the mother smiling while giving evidence. She said that this was not necessarily inappropriate but was shallow. She said the mother is histrionic and this may indeed explain a nervous smile. She, the doctor, she found the mother remarkably self-assured. She said that the father shows proper affect for a person who would be sad and despondent. She said that he is not, however, severely depressed. She said that his state at presentation would detract a little from his capacity. However, he was mainly capable and would improve after litigation.
Asked about the statement of "fingers in bum" - and this is referred to at page 37 of her report – she said that this gave her the impression it was something the child learnt to say and was not a real experience. Nothing in the child’s behaviour in any way confirmed this statement.
She said the father appeared quite child focused. She said that if the mother is convinced of abuse another psychiatric assessment or physical examination would not be of any benefit.
Mr Maurice cross-examined the doctor at some considerable length. His cross-examination was such that in a proper and appropriate manner, he indicated to the doctor that he was challenging her report. The doctor conceded that up until the time the mother took the child she was the primary carer. She said the mother asserted some reasons why the child was not returned to Australia. The doctor said that she had reached the conclusion that there was a risk if the child were to see the mother unsupervised.
Doctor was asked whether she accepted it was possible for the mother to leave the country illegally with passports being held and the child on the airport watch list and she said it was unlikely. She says that the mother shows a strong commitment to being reunited with the child. She said the mother is shallow in her personal life, her actions in isolation are consistent with a devoted mother, but other factors are in play.
She had read various translations attached to the father's affidavit which she later conceded were very poor translations and difficult to read and make any sense of.
The doctor said that the mother has described the father as a paedophile and has made contradictory statements. She reports the mother as saying that his family were nice. She, the doctor, said that the mother felt she had nowhere to go prior to her leaving Australia. There was something said about buying a house near the father's family but the mother was not keen to do this.
The doctor was asked about evidence given by the father which I have not made direct reference to, that he may possibly have fathered another child. The doctor said that this was quite important and significant and she would need to ask why he was not forthcoming to her about that.
I should deal with that evidence now. The father said that he believed he may have fathered a child. The mother of the child was known to him only by her first name. He said he had endeavoured to make some inquiries to locate the child, if not the mother. I found this evidence confusing but do not quite know what to make of it in the overall situation. Certainly it is clear that he made no mention of this to the doctor but he was quite open about it, if confusing, in cross-examination.
The doctor agreed she did not explore his capacity to ensure the child got to and from school, and it was put to her that she would expect a parent to know what will happen once the child starts school. She said that she did not realise there may have to be a nanny involved if the father required assistance. She understood it was primarily to be home-based care and assumed that the father would be the primary carer.
It was put to the doctor that the time spent as the father suggests with the mother, that is short periods supervised, must diminish the relationship with the mother and the doctor agreed that this was so and indeed went on to say that the mother's relationship might come to an end.
She believes that the contact centre visits went well. She believed that the maternal family may be excluded. She said she could not see a remedy at present.

She said that the father's deceit to assure the child in Country B (that the mother was coming to the airport) was not appropriate. She said that the child had spoken of sometimes being locked in a room which she took to be at the mother's instigation. She said that the finding of the Country B expert, in a report that came into existence in Country B, was only different in degree from her own report. She said that she was confident of her observations and diagnosis.
The evidence of the mother then continued and concluded particularly in relation to matters financial. I do not propose to spend a great deal of time with this, but it is significant that the mother had indicated, as I understood it, that there was to be $10,000 available from her father to place in this court as a surety. It is clear that the mother had an account into which various people made what I would only describe as donations sometimes at the instigation of other people. It is further clear that by the time she appeared at this Court on 15 April she had received into her account a sum in Country B currency equivalent to 10,000 Australia dollars; that amount having been received on 2 April 2009.
On the material that has been produced I am not able to anywhere find where that $10,000 was withdrawn from any account of the mother’s. Thus I am not able to see from her documents that $10,000 was drawn from any account of hers to pay into the court as required. The mother's evidence seems now to indicate that it was not her father's money, as was originally asserted, but rather money that came from an account of hers. Unfortunately as I say on inspection of the documents provided I can find an entry for an amount of money approximately equivalent to $10,000 going into her account on 2 April. I can find no withdrawal from that account for a similar amount.
One conclusion, and one that is urged upon me by the father, is that the mother must have other moneys somewhere that she has not revealed. She certainly speaks of another account with the ANZ Bank and clearly that is where the $10,000 was placed when it was returned by the court after orders were made discharging the need for security. She said her father gave her about $1000 when she left Australia. However, at the end of the day her evidence about matters financial leaves me significantly confused.
The last person to give evidence was Mr Y who was cross-examined by Mr Gersbach. Mr Y left me with the impression that for whatever reason he was providing rent free accommodation to the mother for the present and into the foreseeable future. I could detect nothing in his evidence that would indicate to me that there was any improper or other than altruistic motive in him so doing.
I turn then to deal with the issues that I believe must at least be examined if not determined so that the matter can be put into a factual context. First I will deal with the attack on the report of Dr Q. It was put in his submissions by Mr Maurice that I would have real concerns about accepting the doctor's report, her views and her recommendations. In a very carefully argued portion of his submissions he indicated to me that if the methodology employed by the doctor in her report were found to be flawed then her report must fall.
Mr Maurice, as I understand it, identified a number of factors upon which he said the methodology of Doctor’s report could be seen to be flawed. Firstly, he said that the doctor appeared to have a pre-occupation with credibility, that she had decided that the mother was not being truthful and accordingly this had in some way influenced her in reaching the decision and findings that she had made.
An attack was made as to various matters that the doctor had found and particularly that which appeared at in the last paragraph of page 46 of the report was referred to. The doctor there appears to make the findings in this fashion. The doctor commences that paragraph by saying:
The history is of a primary attachment relationship with her mother from birth and in the absence of other factors [the child’s] need would best be served by returning her to the primary care of her mother and having regular contact with the father. However, there are a number of other factors that weigh against this. The child is now settled with her father. There are risks in uprooting her. There does seem some reason to doubt [the mother’s] commitment to remaining in Australia, perhaps she remains a flight risk. There appears to be a determined campaign in [Country B] to vilify the father, allegations of paedophilia, such that the father's view that the mother will stop at nothing may have some basis to it. [The mother’s] history is superficial and contradictory so that it is difficult to have confidence in what she says.
Mr Maurice indicates that this is the doctor concentrating clearly on perceived faults that she has identified in the mother whilst overlooking the father's faults in respect of his drinking and driving. I am not satisfied that this point is made out. The doctor does deal with the father's difficulties, if I can describe them as that, particularly at pages 48 and 51 of the report. There is the last statement on page 48 that there is reason to be concerned about the father’s past adjustment. She goes on to say it seems unlikely that he could accumulate DUI convictions over that period if he were not drink-driving. She further made comment on issues of character as reflected by the misconduct investigation. It seems to me therefore that on that material that it is not open to the mother to suggest that the doctor has focused only on the mother and overlooked the shortcomings of the father.
Mr Maurice says that certainly the doctor did not pay sufficient attention to the apparent lack of precision in the father's plans for the child starting school and that she ignored the inherent difficulty or the inherent lack of precision in that. He asserted that the doctor did not take sufficient account of the father's poor or no explanation for his work proposals.
Doctor had said that the risk of flight was there. It was put to her that this was an unrealistic risk and something that outweighed other matters and indeed was being seen as more important than it was. It was suggested that this was unrealistic because there was no real practical risk of flight and that I could be satisfied, and the doctor ought to have been satisfied, that the mother would not risk again taking the child. Indeed it was put to the doctor that it was difficult to imagine the mother again attempting to remove the child. Doctor did not agree.
I am satisfied that the doctor observed the parties to reach her conclusions. There may be some criticism of the fact that the doctor interviewed the child and the father together. It is clear that in that situation the child was becoming involved and was reacting to various answers given by the father. I am not completely satisfied that this was a situation where what was happening was merely a non‑contentious history being taken. Rather I am satisfied that the doctor did go to some of the areas that were the subject of dispute in this case. However, I am not satisfied that that criticism, which to my mind is effectively the only criticism of any merit in this situation, is such that it means I should disregard that which the doctor observed and the recommendations she makes.
That leads me to then examine what the doctor finds particularly concerning the mother. It could be said that this report focuses to some extent more on the mother than it does on the father. That is true. However, to my mind in the circumstances of this case there is nothing else or no other way in which the matter could have been approached. I am of the view that the doctor's diagnosis to be found at page 49 of the report is accurate. In the second paragraph on that page the doctor says this:
The mother is well able physically and intellectually to provide for the child. However, in terms of her capacity to meet the child's needs psychologically there is considerable cause for concern. She does not show a strong child focus and her capacity for empathetic sensitivity to the child is limited. Her emotions are shallow and shifting and dramatised. Her language is highly impressionistic and her relationships appear shallow.
These are matters that the doctor raises throughout the report and I am satisfied they are appropriate observations of the mother. I return to the report. The doctor says:
On the basis of the clinical interview with [the mother] there is sufficient observable disturbance to suggest a clinically significant personality disorder, Cluster B type, with predominantly histrionic and narcissistic features. Notably the testing that was done in [Country B] also suggested such features although short of clinical disorder.
The doctor then goes on in the next paragraph, which I do not propose to set out, the features of the disorders she has nominated. The doctor has, as an appendix to her report, attached the material extracted from the DMS4 in relation to these disorders. I am satisfied on the observations I have made of the doctor and my own observations of the mother that that which the doctor has observed is soundly factually based.
There has been on my observation of both the doctor's evidence and a reading of the report no bias exhibited by the doctor against the mother, notwithstanding that the mother certainly features large in the report. I am satisfied that the expression of professional opinion by doctor in her report is proper. I accept her diagnosis in respect of the mother.
Other issues that to my mind require determination are the circumstances of the child's birth certificate. Each of the parties asserts something quite different in this regard. The mother says that she wanted the father included, the father says that she would not permit it. On balance I prefer the evidence of the father in this regard. I am satisfied that he wishes to be at least named on the birth certificate as the child's father.
I am not necessarily convinced that there was any insistence on his part or any attempt for that matter to have the child given the surname Taybor. However, I am satisfied that the mother chose to proceed with the registration of the child's name entirely to her own satisfaction.
So far as the circumstances surrounding the mother leaving Australia are concerned she says that she had no option but to leave. She was fearful for herself and her child. As I understand the evidence there is nothing in it to indicate that she had suffered physically at the hands of the father. So far as I can determine her allegation against the father relating to the child are limited to the father taking hold of the child’s nose and telling the child "Don't tell me to shut up".
The mother says blandly this, "I considered I couldn't stay. I went to the airport and caught a flight to [Country B]". I do not accept that it was simply done on the spur of the moment. To obtain a flight of the type she did in my view must have required at least some days pre‑planning. There was the question of payment of fares. There was the deliberate attempt to throw everybody off the scent by telling the father in a note she left that she intended to spend time with a friend. I am satisfied that the mother had for some little time, a period I cannot determine, resolved that she would leave for Country B. Her purpose in so doing I am not satisfied was to escape an abusive and physically harmful atmosphere and situation such as she describes.
I am further left confused as to her intentions in Country B. She seemed to assert at one stage that she planned to return after six months. Indeed a date 15 October was at one stage specified. However, she did not return at the end of six months. She did not return in the face of an order of a Country B court at first instance. She did not return with the child notwithstanding a further decision requiring her return, made by a court of Appellate level. She says that she was frightened. I am not satisfied as to what she may have been frightened of.
I have come to the conclusion that when the mother left Australia she intended to remain in Country B. She got a job. She considered, I am satisfied, that she would remain in Country B. It follows that I am not persuaded that she had any genuine thoughts to return and that any indication of return was a fob off and an attempt to postpone the father taking any action. I am satisfied that once the results of the two court hearings in Country B were made known to her they did nothing more than strengthen her resolve that she would remain in Country B as long as she possibly could, and if possible forever.
The 3 April is the occasion upon which there had been the involvement of police because of the mother's allegation that the child had made a disclosure of sexual abuse against the father. This is a matter that clearly did the mother incredible damage in the proceedings before me and continues to do so. If I am satisfied that the mother made these allegations without a reasonable belief that they might have been true it must follow that she made those allegations in an attempt to regain her child by any means that she considered possible at that time.
She undressed the child. I accept that the child had some opportunity to have some food and drink before that occurred. However, she placed the child on the table and took the child's undergarments off. She asked the child on her own version leading questions and as Ms Druitt sought to demonstrate in her cross-examination the issue of the cream on this child's genital areas is something that the mother seems to absolutely discount. The child does not say when it is alleged the father did these things. The father has said that he placed cream on the child's genital and anal areas. The mother agreed with Ms Druitt that if he had not done so he would be subject to criticism in that regard.
There is also to my mind the allegations, suggestions, undercurrents, that the father had in some way been involved in paedophilia prior to 3 April that causes me to hold the belief at a high level of satisfaction, and certainly sufficiently high to comply with the test in Briginshaw[1], that the mother went to that period of time with the child determined to make an allegation in a last ditch attempt to have the father proven unworthy or unsuitable to care for the child so that the child would be returned to her.
[1] (1938) 60 CLR 336
There is the episode of the mother reporting the child saying her father woke her and saying, "I'm not your father". I can make little sense of that. I do not know what is meant by it. The father of course denies it was ever said and on balance I accept his denial. I do not know whence that comment came.
I am satisfied on the material that I have heard that there has been no violence offered to the mother by the father in the course of the parties' association. I am satisfied that the father did take the child's nose as I have mentioned to the point of boredom. Whilst I think that that was an unwise thing to do to my mind it is not by any means a disqualifying factor.
So far as the father's situation is concerned I am satisfied that he has not necessarily or had not necessarily until it was brought to his attention in the witness box given a great deal of thought to how he would actually manage the day‑to‑day activities of the child once she went from pre‑school to school. I am satisfied, however, that the doctor is correct when she speaks of him having sufficient and appropriate child focus, so that he will make the necessary arrangements when the time comes to ensure that the child does attend school and is properly cared for before, on the way to, on the way home from, and after school, even if he personally is not always available.
This little girl is entitled to the best opportunity she can have. Her start has been a fairly chequered one. The father in my view should be entitled to earn an income and indeed would be criticised if he sought to do otherwise to support himself and his daughter.
The father's driving causes me real concern. I can understand anyone saying, "I've never had an accident", however for someone to describe the father's proven record as excellent indicates to me that he must certainly reappraise his situation in regards to his responsibility to other road users and particularly to passengers in his car when one of those passengers might turn out to be his daughter. However, I do not find that of itself to be a disqualifying factor.
His drinking to some extent goes hand in hand with the driving. I do not accept that he drinks to excess every day. I accept he enjoys a drink. I accept he enjoys wine with his meals. I accept that on the day in question that he attended at the centre with a smell of alcohol on his breath that he had indeed consumed beer. I am satisfied, however, that whilst these matters do not place him in the greatest light either individually or collectively are they such that they indicate that he is not someone who might have the care of this little girl.

The Law to be Applied

I turn then to the matters that I am required to take into account pursuant to the provisions of the Family Law Act. The first of those matters is section 60B(1) which tells me the objects of the Act. The first of those objects are:
(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
In my view those two objects when looked at together clearly create a balancing exercise that is in play. The further objects are:
(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.
The principles underlying the objects (s.60B(2)) are as follows:
(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).
Those are matters for consideration in this present case.
Section 60CA tells me that I must regard the child's welfare as the paramount consideration in making a parenting order.
Section 60CC then tells me how I determine what is in a child's best interests. There are two primary considerations (s.60CC(2)). The first of these is the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect the child from abuse, neglect or family violence.
Whilst not in precisely the same wording the same balancing exercise or balancing test as is created by section 60B(1) is continued in section 60CC(2). Protection of the child, in my view, takes precedence over the benefit of the meaningful relationship. Meaningful has not been specifically defined. Meaningful in one context may not be meaningful in another.

Subsection (3) of section 60CC deals with the additional considerations that I must take into account. Firstly any views expressed by the child (s.60CC(3)(a)). There are none I would take into account in reaching a determination.
The nature of the relationship of the child with both parents (s.60CC(3)(b)) is to be ascertained from the doctor's report. She makes it clear that the parents appear to have a good relationship with the child. She indeed makes the point that were it not for other factors the mother having been the primary attachment figure ought have the child returned to her and have the child thereafter live with her. On the evidence it seems to me that the child's relationship with each of the parents is something that gives the child some joy and some comfort and I am satisfied that the relationship of each of the child's parents is to a greater or lesser extent an appropriate one.
The willingness and ability of each of the child's parents to facilitate an ongoing relationship with the other (s.60CC(3)(c)). The mother I am satisfied – and I will return to this briefly again when I deal with section 60CC(4) – has in my view determinedly set her face against the child and father having a relationship. She has not indicated any willingness to facilitate and encourage, in the words of the section, a relationship between the child and the other parent. Going to Country B in the way she did was of itself bad enough.
However whilst in Country B with the protection of the courts of the country that she had chosen to live in she did not avail herself of an opportunity that those courts, and particularly by that I mean the Country B Children’s Court, would become involved so as to facilitate some contact between the father and the child in Country B. I am satisfied that she will not in the future, despite the protestations that she has made, change that view. With regret I have come to the conclusion that the mother still holds the view that the family consists of herself and her daughter, that the father has no part in it, and that if given the opportunity in the future she would again exclude the father.
The likely effect of any change in the child's circumstances (s.60CC(3)(d)) would mean that in this case the choice is stark. If the child remains with the father and the father is able to put in place the arrangements that he seeks there will effectively be no change. If I order that the child remain with the father but the time with the mother be more extensive than proposed by the father or the Independent Children’s Lawyer that will of course amount to a change. However, the dramatic change would be the return of the child to the mother. If that were to happen I have already expressed my views as to what the mother is likely to do if given the opportunity.
At the present time the child is observed as being comfortable with her father, affectionate and loving towards him. Certainly with the mother she is equally, it would appear, loving and affectionate. However, this is not just simply a matter of love and affection. For the child to go back to the mother it would mean several things. It would mean separating her from the father with whom she has now lived for a period of time and in a situation to which she has clearly made a good adjustment. Going back to the mother would in my view potentially expose her to the matters that I have sought to identify that stem directly from the mother's attitude towards the father.
The effect of that would to my mind be potentially catastrophic. It would be at least confusing for this little girl and if the mother were indeed to be able to exclude the father by any means, and I do not exclude flight from those reasons, then the child, I am satisfied, would be devastated and would find herself in a situation that may well cause her long term difficulties. In addition to not seeing the father I am satisfied that the mother would be determined to keep the child away from members of the father's extended family, notwithstanding her professed affection particularly for the father's brother R, and his mother.
The mother does not seem to think that the child's friendship with other members of her extended family of about her own age, or indeed of aunts and uncles who are quite significantly older than she is, is of particular importance.
Certainly the child has been separated from her maternal parents by the circumstances of the child being returned to Australia. However, and for what it is worth, the child was born in Australia and on at least two occasions, and I think more, the child was able to travel to Country B or to Country A for the express purpose of spending time with the mother's extended family.
I turn then to the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs (s.60CC(3)(f)). Clearly the mother and father each have the capacity to care for this child on a day-to-day basis. Clearly each of them can clothe, house, and feed the child. I am satisfied that both parents can meet the child's intellectual needs. I am satisfied both parents, if the child were living with them, would ensure the child attended school and was encouraged to learn and acquire knowledge to the best of her ability. It would seem we are dealing here with a bright and somewhat precocious child.
My concern is the emotional needs of the child. How the mother could not see that taking the child as she did was to entirely deprive the child of the only father she had ever known I cannot understand. I am satisfied that the relationship of child and father was much closer before the mother took the child than the mother would have me believe. I have already made reference to the photographs and I further indicate that I am satisfied the father did take an active part in the child's life.
Not only did the mother take the child and thereby practically cut the father out of her life, as I have already said and will not repeat, she turned her face resolutely against allowing the father to see the child in Country B.
The father says that the mother can see the child and can communicate with the child. He however puts the caveat on that, that such time and communication be subject to certain stringent conditions because of what the mother might do. Not only might she fly but there is the situation that she, I am satisfied, would endeavour to undermine the child's relationship with the father to the greatest extent possible.
That leads me to the allegations that have been raised throughout this matter of the mother talking to the child in the language of Country B. It does present some difficulties. The child I am satisfied has the language of Country B as a cradle language. The mother, however, I am also satisfied, has used the language of Country B as a means of ensuring that she communicates with the child without the content of that communication being known to other people. I am also satisfied that she has whispered to the child, and whilst I am unable to ascertain what she has whispered, I find the very fact of what she does causes me concern that she still holds the view that she has the right to speak to the child as she chooses, to communicate that which she chooses to the child without restraint and without check.
The maturity, sex and lifestyle of the child including any cultural situations (s.60CC(3)(g)) has not been a major issue before me. This little girl comes of mixed heritage. She is a European Australian. However it seems to me that neither of her parents are asserting that the culture of their background is so overwhelmingly important that it should take precedence over the other. I am satisfied that each of the parents will do the best they can to inform the child of the cultural heritage taken from their side of the family.
The attitude to the child and the responsibilities of parenthood is the next matter to which I turn (s.60CC(3)(i)). Much of what I would say under this section has already been said. To my mind the mother's ability to remove this child from the father indicates to me that she has not considered the responsibilities of parenthood and the obligations imposed upon her to ensure that the child knows the father.
There is no family violence that I have come to the conclusion I need take into account in this matter (s.60CC(3)(j)).
I made earlier reference to s.60CC(4) which deals with the opportunities parties have taken to be involved and to involve the other. I am satisfied that both parties have done their very best to be involved in the child's life, her upbringing, her education and her welfare. I am satisfied that the father in all the circumstances of this case has facilitated the mother being involved in the child's life.
I am equally satisfied that the mother has endeavoured to exclude the father absolutely from the child's life and had it not been for the actions the father took in returning the child to Australia that situation would have continued. I have absolutely no confidence that the mother would have returned to Australia either of her own volition or as a result of any activity taken by any of the authorities charged with enforcing the orders of the Country B courts.
The next of the matters to which I turn is section 61DA. That is the section that tells me that in making a parenting order such as this is I 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. I am told that the presumption does not apply where there are reasonable grounds to believe that there has been family violence. In light of the findings I have made that exclusion does not apply. Subsection 4 indicates the presumption may be rebutted by evidence that satisfies the court it would not be in the interest of the child for the parents to have equal shared parental responsibility.
The evidence that I have endeavoured to review shows a very difficult situation between these parents with the mother's determination, as I have found it to be, that the father should be excluded from the child's life. I further have the evidence of the father's attempts to communicate with the mother in relation to him seeing and speaking to the child. I have the mother's evidence that she and the father are unable to communicate. It seems to me that to require these parties to endeavour to establish the level of communication that would be required to co‑parent this child so far as decisions were concerned would be highly improbable.
However to my mind there are other matters for consideration. If the parties are to be equally responsible there would as a basis need to be some trust, each with the other, that would enable them to involve themselves in discussions and deliberations for their daughter's welfare. This is not a case simply where the father distrusts the mother. The mother says equally she does not trust the father. The making of orders to my mind is not likely to cause the parties' views and opinions of each other to change. It would require compelling and cogent reasons for the presumption to be rebutted. In this case I am satisfied that there is clear evidence to indicate that it would not be in the child's best interests to require these parties to have equal shared parental responsibility.
The next of the sections to which I must go is section 65DAA. That says that if I were to make an order for equal shared parental responsibility I have to consider either equal or significant and substantial time with each parent. Their Honours of the Full Court in Goode[2] made it clear, however, that notwithstanding an order for equal shared parent responsibility is not made there are other means by which the court can reach a determination that it is proper in the circumstances of the case that the parties have equal time, or significant and substantial time. The section needs be examined.
[2] (2006) FLC 93 286
What it says is that the court must consider whether it is in the best interests of the child, and if so, then the court must look to the practicality of the situation. In other words, there is no presumption here for either equal or significant and substantial time but a requirement to consider. “Consider”, in my mind, clearly means consider in the light of the entirety of the evidence in the case that one has heard. It is a situation where consideration must carefully be given, but at the end of the day a determination must be made whether the best thing is for the child to share equal time with parents or live with one and spend significant and substantial time with the other.
It is clear the child will have to live with one parent and if I am of the view that that parent is the father then it would seem to me that I would have to examine very closely the situation of time with the mother.
The mother contends that the father, with the child living with her, would spend alternate weekends with the child, which in the circumstances if the child were with the mother may not be seen as significant and substantial time. It seems to me, however, that at the end of the day I must approach the matter in this fashion.

Discussion

Firstly, I must decide who the child lives with and, secondly, I must determine what time the child is to spend with the other parent.
For the reasons I have endeavoured to give I have come to the conclusion that the factors that I have identified clearly indicate that the child must live with the father for the immediate, medium and long term future. I raised with counsel the issue of whether orders should be made on a final basis or as interim orders. Counsel for the father put to me they should be final, counsel for the mother indicated that there might be some utility in some form of interim orders leading to a change perhaps at an appropriate time.
I have given the matter considerable thought. I have come to the conclusion that I can make orders of a final nature that will provide the best opportunity for both parents to be involved in the child's life. Of course no children's orders are ever set in stone and in the event of significant changes fresh applications can be brought. However, it seems to me that everyone in this case would be well served by having the matter brought to an end so far as can possibly be achieved. I have made mention of the minutes that were produced to me at the commencement of addresses by the Independent Children’s Lawyer and by the counsel for the father. What I propose to do is now deal with those orders as a framework for the orders that I would propose to make to finalise these proceedings.
I will deal basically with the father's set of draft orders. Order 1 for the discharge of existing orders is of course not contentious. Secondly, in that minute he seeks the child be known as Anderson Taybor with Taybor appearing as a surname. The Independent Children’s Lawyer indicates that the name should be a hyphenated name Anderson-Taybor. I have heard very little evidence concerning the matter. It is put to me in submissions that the surname Anderson-Taybor would be a name involving two foreign names and might present something of a difficulty for the child particularly in her earlier years.
However, I have come to the conclusion that in the circumstances of this case and having regard to the relationship that will exist between the parents it is important the child have in her name an acknowledgment of her parentage. Accordingly, I propose to make an order for the hyphenated surname to be used. I do propose to order that the parties do all things and execute documents to have the birth certificate altered so that the father's name appears upon it.
The next order that was sought by the Independent Children’s Lawyer and the father was the revocation of the child's Country B citizenship. I undertook some research into this last night. As with most of my research it was highly unsuccessful. The little I was able to ascertain was that the revocation of citizenship is often considered in international law to be a far more significant step than obtaining citizenship or indeed having citizenship recognised. The mother asserts, and on balance I think I accept, that the child had an entitlement to Country B citizenship from the moment she was born because she had a Country B parent.
I am satisfied what the mother did was register rather than acquire that citizenship. I do not know what is required to revoke the child's Country B citizenship. I do not even know if it can be done and, accordingly, I am not going to make an order on the basis; if it can be done let us do it, if it cannot then there is no harm done. Accordingly, I do not propose to make such an order.
I do propose to order that the child live with the father and I propose to order that the father have sole parental responsibility for the child. However, the father will have the responsibility to keep the mother informed and if possible to consult with her in relation to significant issues.
It is not a case where having had the order for the child to live with him and for sole parent responsibility the father can simply – and I am not suggesting he would do this, but I am making it clear that he shall not and cannot ignore the mother's existence and her involvement in her daughter's life. I propose to make an order that the mother not be permitted to remove the child from Australia. I propose to use and invoke the orders involving the watch list.
So far as the passports are concerned again I have heard no argument about this, but it seems to me with the father having sole responsibility for the child the child's both Australian and Country B passport should be made available to him.
I propose to make an order for the parties to advise each other of changes of residence and telephone numbers. I am uncertain as to what would be the utility of the parties and particularly the mother being required to give the father details of persons who may be living in the same household as her or indeed the reverse in respect of the father. I do not propose to order that be done.
It has been put to me that I should make an order restraining the mother from making further complaints. This causes me some real concern. If I do not make such an order and a further allegation is made then it may well be that further litigation unnecessarily will occur with no check or balance in the early stages.
What I have determined is this. I propose to order that the Independent Children’s Lawyer remain in place for 12 months. Whether of course the Legal Aid Commission of New South Wales will honour that is another matter. However, I propose to make the order. I will order that any allegation, including allegations that the child has made disclosures, are not to be made to any person or authority but must be made in the first instance to the Independent Children’s Lawyer. I propose to further order that if the Independent Children’s Lawyer is not in place then any complaint is to be brought to this Court by the mother filing an application for relief supported by appropriate material.
The next of the matters that both parties, that is the father and Independent Children’s Lawyer, dealt with in their minutes was the supervised or other time the child was to spend with the mother. The father's material seeks that between now and when the child commences school, the situation remain virtually unchanged with use of a contact centre. Thereafter from the commencement of school until the child reaches eight years of age there is to be Saturday and Wednesday time, and upon the child turning the age of eight until 18 each Saturday. Both sets of orders are silent as to what should happen after the age of 11. The age of 11 was of course the age at which doctors said the child would be cognitively capable of alerting if necessary and certainly discouraging the mother from any conduct of an inappropriate nature.

It seems to me that if I were to say that as from the time of the child attaining the age of 11 years there should be such time with the mother as the parties agree would be to encourage more litigation. I have come to the conclusion that in the circumstances of this case, and providing as much certainty in these orders as I can possibly achieve, I would propose to order that from the time the child attains the age of 11 the mother will spend each alternate weekend with the child without supervision from Friday afternoon after school to Monday morning before school. I am of the view that there need be no staging-in period for that provided the mother has in the meantime continued her supervised time.
A further matter that causes me concern is what is to happen if, for example, the contact service or services that may otherwise be available indicate to the parties that there is no longer time available for them, having regard to the services requirement to recognise that other persons have a claim upon the time that the service could otherwise provide for the assistance of these parties. In other words, any contact service may decline to provide further time. In that event, I can see no other alternative than having supervision provided by a person nominated by the father, but I do propose to order that in the event that there are difficulties concerning supervision and/or the identity of a supervisor the matter may be re‑listed before me for further orders to be made. I do propose to order that the mother be restrained from disseminating information that may find its way into the media in any country.
I propose to make an order for the parties where necessary to share the cost of the contact centres. I propose to order that the father allow telephone time. I propose to order that the method of communication except in emergency be by email or SMS.
The question of the language has concerned me. It is obviously an issue for the father, yet the mother of course has the language of Country B as her first language and the child's cradle language is the language of Country B. What I have determined is that I will make an order that the mother is not to speak to the child in the language of Country B other than by way of greeting or endearment. Further, and perhaps more importantly, the mother shall not whisper to the child so as to avoid that which she is saying being overheard by any other person.
I propose to make a mutual non-denigration order.
The father has sought the time be suspended for a period of three weeks and four weeks during a year. I do not propose to allow seven weeks. I will allow one period of four weeks. The mother's time is limited and, from my point of view, the requirement of a suspension of seven weeks is excessive.
I propose to order that the mother not attend or communicate with any school or pre‑school attended by the child. I make this order with some real regret, but it seems to me that there is merit in the argument that if the mother is not excluded things she says and is capable of saying as to her belief as to the father may detrimentally affect the child's position within her own social and school network.
So far as the photographs and videos removed by the mother are concerned I propose to order that she provide them to the father within 14 days, that he copy them and return them to her within 14 days, such copy to be at his expense.
I do not propose nor do I believe I have power to make an order in any way enforcing compliance with the Country B court order for costs.

The Costs of the Independent Children’s Lawyer

The Independent Children’s Lawyer in her minute has sought that the parties each pay the sum of $8189.50 being the Independent Children’s Lawyer's costs of these proceedings.
The father seeks that the costs of the Independent Children’s Lawyer be met entirely by the mother. I have been told by Mr Gersbach that there will be no application for costs of the father as against the mother in respect of these proceedings.
The issue of costs dealt with in section 117 of the Family Law Act. The usual course is that each party bears their own costs. However, if there are circumstances that so justifying it, and the High Court has held in Penfold's[3] case they need not be special or exceptional circumstances, then a court may make an order.
[3] (1980) FLC 90-008
There are matters prescribed in section 117(2)(a) sets out matters that the court must take into account. The first of those is the financial situation of each of the parties (sub.s. (a)). The only information I have concerning the father is that he is not in work, living off his savings, and wishes to return to work as soon as possible. The mother's situation as I understand is she is in receipt of a benefit and from the evidence given by her in the proceedings if she does not have the child live with her she will seek to obtain employment. There is so far as I am aware nothing more specific than that before me.
The mother is in receipt of Legal Aid; the father is not (sub.s. (b)).
The next of the matters that I must consider is the conduct of the parties during the proceedings (sub.s.(c)). Certainly that subsection sets out a number of matters which are not limiting or exclusory, that may be taken into account. The strongest case in respect of conduct may be seen to be the mother taking the child overseas and refusing to return her in the face of orders. It could be said that those actions made these proceedings necessary. That to my mind is not absolutely so. In my view whether the mother was brought back as she was or whether the parties had simply proceeded with a dispute concerning where their child would live there was always going to be a justiciable issue between these parties.
Section 117(D) deals with proceedings being necessitated by the failure of a party to comply with previous orders of the court. Certainly in this present case, the mother's actions in Country B were in complete defiance of orders made in that country.
So far as s.117(2)AE is concerned, neither party has been wholly unsuccessful although it must be clear that the result far more closely approximates the orders contended for by the father and the Independent Children’s Lawyer than those sought by the mother.
So far as subsection (g) is concerned, there are no matters that I believe I need take into account.
I am not disposed to make any order that the mother pay any amount of costs to the Independent Children’s Lawyer. I say that because she is in receipt of legal aid. I am aware that making such an order puts a heavy strain upon the public purse and I am very much of the view that the amount sought by the Independent Children’s Lawyer is in all the circumstances entirely reasonable and something that in other circumstances would be met.
So far as the father is concerned, he does not have the benefit of Legal Aid. He has had the expense of the proceedings overseas. He tells me that he does not propose to seek an order against the mother for his costs. In the circumstances of this case I will dismiss the application of the Independent Children’s Lawyer for either party to pay or contribute to the costs of the Independent Children’s Lawyer.

I certify that the preceding one-hundred-and-sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date:

[2009] FamCA 923

4 September 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Jurisdiction

Remedies

Procedural Fairness