TC and KB

[2008] FamCA 811

FAMILY COURT OF AUSTRALIA

TC & KB [2008] FamCA 811

FAMILY LAW – CHILDREN - Best interests – where mother resides in Australia and the father resides overseas

Family Law Act 1975 (Cth)

APPLICANT: Mr TC

RESPONDENT: Ms KB

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 6446 of 1997

DATE DELIVERED: 26 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 and 15 January 2008

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adamson Solicitors

Orders

1. All prior orders with respect to the children, the child I born … November 1991 and the child J, born … November 1993 be discharged.

2. The children live with the father in Tokyo, or elsewhere as he may determine.

3. The father have sole parental responsibility for the children.

4. The father consult with the mother in relation to all important significant decisions in relation to the children’s health, education and general welfare. This is to apply to matters other than ordinary day to day aspects of the care of the children.

5. The child I spend time with the mother, subject to his wishes, for 1 week in the December-January school holidays, or at such other times as may be agreed between the child I and both of his parents.

6. The child J spend time with his mother as follows:

   (a)       For 4 weeks during the northern hemisphere summer holidays, and failing agreement as to the precise dates, for 4 weeks from the third day after the conclusion of the school year.

   (b)       For up to 3 weeks during the Christmas School holidays, and failing agreement as to the precise dates, for 3 weeks from the third day after the conclusion of the school term for up to three weeks however the child J is to return to Japan not less than 2 clear days before his school recommences in the next term.

7. Once the child J attains the age of 16, Order 6 be subject to the child J’s wishes.

8. The father ensure that the following are provided to the mother as soon as practicable after they become available:

   (a)       Copies of school reports

   (b)       Contact telephone numbers and email addresses for the children.

   (c)       Medical information about either of the children should either suffer from a serious medical condition, such information to include contact details for any doctor or hospital.

9. The father use his best endeavours to encourage the child J to communicate with his mother by telephone on a weekly basis and facilitate any phone calls the child I may wish to make to his mother.

10. Each party keep the other informed of any change of their residential address within 48 hours of such change occurring.

11. The father authorize any school either child may attend to communicate directly with the mother about the children’s academic or social progress.

12. The father meet all travel expenses of both children to spend time with the mother in Australia.

13. The father pay directly into such bank account as the mother nominates in writing, $250.00 per week for the duration of the time each boy stays with the mother, so that if both boys are present the father shall deposit $500.00.

14. The father advise the mother in writing via email when either child travels outside Japan, such advice to include dates of travel and contact telephone numbers.

15. The father advise the mother in writing via email of any proposed change to the living arrangements for either child, including their attendance at boarding school.

16. Each of the parents shall do all things necessary to ensure that each of the boys has at all times a valid passport.

I NOTE I will deliver reasons for these orders as soon as my schedule allows.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 6446 of 1997

MR TC

Applicant

And

MS KB

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This case calls for determination competing proposals by the parents in relation to their children, a son I born in November 1991 (aged 16) and a son J born in November 1993 (aged 14).

2. The father TC lives in Japan with his wife and the two subject children. The mother KB lives in Sydney. She has a new partner Mr K who she intends to marry in 2008.

3. On 20 May 1999 orders were made by consent. These were modified on 3 September in that year. Those orders provided for the children to live with the mother in Australia and spend time with the father.

4. On 17 November 2004 Justice Rowlands made interim orders, having heard the parties’ applications for final orders between 11 and 15 October 2004. Those orders provided for the children to live with the father in Japan and spend time in Australia with their mother.

5. The hearing before me was the conclusion to the proceedings which were the subject of the interim orders made 17 November 2004.

6. Special arrangements were made for the hearing which was listed before me as an expedited matter. The father came from Japan, the children were seen by the Family Consultant and the hearing took place on 14 and 15 January this year.  Given that the boys’ schooling needed to be arranged I made orders on 16 January 2008 and reserved my reasons. The orders appear at the commencement of these reasons.

7. Following the orders being made my associate received an email from the mother on 3 February 2008. She advised that the child I had elected not to return to Japan and had elected to attend F High School. The email otherwise contained a “spray of complaint” about the Independent Children's Lawyer, the father and the Court.

The Orders Sought by Each Party

1. The father was the applicant in the proceedings. He moved on the Amended Application for Final Orders filed 8 November 2007. Those orders sought that the children reside with the father in Japan and spend holiday time in Australia with the mother.

2. The father also sought orders for the payment of money by way of maintenance for the children, such money to be paid to the mother during the time that she had the children in her care.

3. There were other orders sought.

4. The mother did not have a minute of order in writing upon which she sought to move. She advised me in open court that she sought orders for both children to live with her; that the children spend half their school holiday periods with their father; that both children attend a boarding school in Australia and the father meet all the expenses associated with that school attendance. She also sought that the father meets all of the medical and dental expenses. She further sought an order that her costs associated with the interim orders made by Rowlands J and the appeal be paid. She sought that the orders made 20 May 1999 be reinstated.

5. The Independent Children's Lawyer filed in Court a minute of order. That minute of order provided that both children should live with their father in Tokyo or wherever else he might reside. There were also orders in relation to the child I spending time with his mother as he should so desire and specific orders for the child J to spend time with his mother during school holiday periods.

6. Orders were sought in respect of the payment of maintenance whilst the children resided with their mother.

Background Facts

1. Both of the parties appeared in person in the hearing before me.

2. The mother was born in August 1959 and the father in September 1963. In 1986 or 1987 the parties commenced cohabitation in Japan.

3. In December 1998 the parties were married in Sydney.

4. The child I was born in November 1991. He is now 16 years of age.

5. The child J was born in November 1993 and is 14 years of age.

6. The parties separated in 1997 and at that time, the father commenced to live full time in Japan.

7. On 20 May 1999, consent orders were made for the children to live with their mother and spend time with their father (approximately 10 days each month save for January and December and 9 days in February). The orders also dealt with provision of financial support for the children. On 3 September 1999 further consent orders were made providing for the children to spend 21 days with their father in Mauritius in January 2000 and 10 days in France during the 2000 Easter school holidays.

8. The parties were divorced in January 2001.

9. Between 11 and 15 October and on 17 November 2004 the matter was heard by Rowlands J. He delivered judgment on 15 March 2005. The orders he made were interim orders and provided for the children to live with their father in Tokyo. The children were to spend time with their mother in Sydney twice each year and on one other occasion the mother was permitted to spend time with the children in Japan.

10. The mother appealed against that decision. On 8 June 2005 judgment was delivered by the Full Court. The decision of Rowlands J was essentially upheld.

11. Since March 2005 the children have been living in Japan with their father and continued to do so until Christmas time 2007.

12. In December 2007, when the children arrived from Japan to spend time with their mother, she was not at the airport to meet them. The children made their own way to her house. The mother complained that the father had changed the flights without informing her.

The Issues

1. During the hearing of the matter the following issues emerged as those required to be determined by me:

   a)The wishes of the children;

   b)The mother’s capacity to control the child I;

   c)The relationship between the parents;

   d)The relationship between the children and each parent.

2. My findings in relation to these issues will be set out in these reasons.

The Evidence

The family report prepared by the Family Consultant, Ms G

1. A family report was prepared and dated 4 January 2008.

2. The mother was interviewed by the Family Consultant. She gave information that she worked as an artist. She was angry about the Court orders made in March 2005 and said that the children should live with her in Australia.

3. The mother complained that she could not reach either of the children by telephone, sometimes for months at a time. School reports were not provided to her. She was not advised by the father when the children travel outside of Japan. She also complained that the father was providing the child J with homeopathic medicine before school to calm him down, and that the boys are not adequately supervised when living with their father. She further said that the father does not provide appropriate moral guidance, nor does he set boundaries for the children.

4. The mother was concerned about the extent of influence that the child I had upon the child J. She said the child I was “defiant”, “rude to adults”, “a smartass”. The mother said that in mid 2007, the child I’s behaviour was “diabolical”. She said that during disagreements he had pushed and shoved her. She said the child I was importing illegal things such as fireworks, knuckle dusters and the like into Australia. In June 2006 he had brought a sharp Japanese throwing star in his luggage. She did accept that all of those items were legal in Japan. The mother said that she and the father had talked about sending the child I to boarding school. She was concerned that it was either boarding school or prison. She said, “Let [the child I] do as he wants he is old enough to decide”.

5. The mother perceived the child J to be the opposite of the child I. She said both boys were very independent.

6. The mother told the Family Consultant that she regarded the communication between she and the father as not good.

7. The mother advised that she had recently commenced a relationship with Mr K. They planned to marry. He has two children from a prior relationship, who are aged 21 and 16 and live with their mother.

8. The Family Consultant spoke to both boys. She said both present as mature adolescents. They appeared to have a close sibling bond and enjoy each other’s company. They both regarded the issue of residency as having been resolved, believing that they will continue to live in Japan with their father. The child I said (albeit jokingly) that he would commit suicide if he was required to return to Australia and live with his mother. The child J said he was unsure how he would react.

9. The child I said that he and his father had spoken about the possibility of him completing his last two years of school at a boarding school in either Canada or the west coast of America. The child J said that he would want to stay in Japan with his father even if his brother went away to boarding school.

10. Both boys spoke about the close relationship that they each experience with their father, contrasting this with the more distant one they each feel they have with their mother. Both boys perceived that their relationship with their mother has always been marked by emotional distance. They talked positively about their life in Japan. Neither of them spoke about activities they did with their mother. They said they usually “just stayed at home”. The child I said that he wanted to spend some of his mid year holidays travelling rather than coming to Australia. He said he would be happy to spend one week each December with his mother. The child J said he wanted to spend time with his mother in Australia for one month during the mid year holidays and all of the December/January holidays. He was keen to catch up with his friends in Australia, although he made it clear he did not wish to live with his mother.

11. Both boys had only recently ascertained their mother had a new partner. They said he was nice.

12. In the section of the report under the heading “Evaluation” the Family Consultant said that the mother’s negative views of the child I are troubling, as is her close identification of particular negative traits of his with her perception of such traits in the father.

13. The Family Consultant assessed that the relationship between the mother and the father was sufficient in terms of their ability to communicate to continue an equal shared parental responsibility order in respect of the children.

14. Ms G, the Family Consultant, recommended that the parents have equal shared parental responsibility for the children and that the children reside with their father in Japan. It was recommended that there be no orders in relation to the child I regarding the time he spends with his mother. She further recommended that the child J’s views regarding the time he wishes to spend with his mother be accepted.

The affidavit material

1. The mother did not seek to rely on any affidavit material at all. The father relied on his affidavit filed 8 November 2007 and an affidavit of Mr H filed the same day.

2. In his affidavit the father set out details of where he lives with the children in Tokyo.

3. The father said that since August 2005, when the boys moved to Japan with him, they have adapted well to their new life, making friends from various countries in the world. They now speak basic Japanese and can read and write Hiragana and Katakana Japanese characters. They are able to use the transit system throughout Tokyo and beyond. The family is a member of an English-language cultural association which is nearby to where they live. It offers sporting facilities, video libraries and an opportunity to interact with a foreign community in Tokyo. They are also members of a Tennis Club.

4. Every second weekend the family drives to the mountains to a place called M where they have a log cabin in the middle of the forest and where the boys can enjoy outdoor activities such as skiing, river rafting and mountain biking. The family takes their two dogs and sometimes the boys bring friends. The boys sometimes say they miss the beaches in Australia.

5. The boys attended a school during the first two years in Japan. The child I had trouble accepting the very strict rules imposed by that school. In the 2006/2007 academic year, the child I was caught cheating on his tests on three different occasions which resulted in the school suggesting in May 2006 that the child I attend a different school, called the S Secondary School. This school has smaller classes and more attention can be given to the child I’s needs. There are a maximum of eight children per class. Teachers are called by their first names and there is a close relationship between the teachers and the students. The boys commenced at the school.

6. The father said that the school has proved beneficial to the boys and both have scored high marks.

7. The children came to Australia during June/ August 2007 for holidays. Both boys reported to their father a problematic relationship with their mother.

8. The affidavit from Mr H is in fact a letter. He is the Principal of the S Secondary School. The report is very supportive of the children continuing school in Japan.

The oral evidence

1. Ms G, the Family Consultant, gave oral evidence. She had seen the children again. She said the relationship between the child I and the mother appeared to have improved markedly over the last week. Both boys reported that the mother’s new partner is good.

2. Ms G formed the opinion that the child I lacks the maturity to make a decision about his future boarding school. She thought the best plan would be if the child I was to return to Japan and complete his time at school and then make a decision about schools when he has completed the course.

3. She said the parents have a major communication problem and the struggle between them as to which country the boys live in is still very much an issue.

4. She reported that the child I had said his last preference would be for him to be at a school in Australia and his first choice would be to go to Hokaido. This is because of its proximity to his father and brother.

5. Ms G was asked questions by the Independent Children's Lawyer.

6. Ms G was asked whether one parent should have the sole responsibility for deciding which school the child I attends. She said yes, especially as he now has a better relationship with his mother. It would not be good to put that at risk.

7. She was asked questions about the relationship between the children and their stepmother. She said the children indicated that they have a good relationship with their stepmother. There does not appear to be any report of conflict in the house. Both boys report feeling listened to by their father. Both felt that their mother often did not listen to them.

8. Ms G was asked about the recent incident where the children had arrived at Sydney Airport and the mother was not there to collect them. She said the father had advised the mother that both boys would be in Australia a week earlier than had been originally anticipated. He said that both boys had spoken to and sent emails to their mother about their arrival.

9. Ms G was cross examined by the mother. It was put to Ms G that the father had “kicked [the child I] out” for a week in December. She said the father had told the child I to stay in a hotel. Ms G said that she had not been told that.

10. It was put that the child I brags about going to nightclubs in Japan since he was 14. Ms G said the father had denied that, but said that he had to be careful about consumption of alcohol as it is possible to buy beer from vending machine in Japan.

11. The mother tendered two photocopied pages from the back of the child I’s book which she took the week prior without his consent. This became exhibit M1. This appears to be a letter to the child I from his girlfriend, together with some note from the child I which sets out the activities in which he has engaged with that girlfriend. The activities include having sex, clubbing, smoking weed, taking pills, stealing, “partying like a rock star”, “fuck like a porn star” and drinking.

12. Ms G was asked whether she thought exhibit M1 illustrated an appropriate lifestyle for an Australian boy. She said, “I would not necessarily assume that he had done all of the things that are set out in the letter.” She said it was not a secret document because he had left it lying around.

1. Ms G was asked about the child I’s troublesome life at the initial school in Japan. She said that in the context of changing countries, it is quite possible that the children had problems or difficulties adapting.

2. The mother put that the child I had not been attending class for five months. The father denied that. Ms G said it was not a matter that was raised with her.

3. Ms G was asked about the prospect of separating the boys. She said in fact, the child J was asked what he would do if the child I had went to boarding school. The child J said he would still want to stay in Japan with his father. She said it is difficult to separate the boys, but they are different ages and have different interests.

The oral evidence of the father

1. The father gave oral evidence and was questioned by the mother. He was asked whether he purchased a packet of sedatives for the child J. He said no, he had bought them for himself. The father said that he had given the child J the medication on one occasion only. The medication was marked as exhibit M2.

2. The father was asked whether he gave the child J painkillers. He was shown a packet of pills. He said no, he had not seen such things.

3. The father said he was aware that the child I had items confiscated in customs on 16 December 2006. On the following trip on 17 July 2007 the mother says she found a throwing star in the children’s baggage. The father was asked whether he had checked the baggage before they had left the country, to which he said no.

4. In relation to the children travelling to Australia, the father said that since August 2005 he puts the children on the express train which takes them directly to the airport. When they return they catch the same train home. If, for some reason, he was out of the country he would propose that his wife would take the children to the train.

5. The father was shown a list of rules for the child I in the child’s writing. The father said he had seen the list. He said the child I wrote them for himself. The father says he reviews this list every few months with the child.

6. The mother put to the husband that she had telephoned him in Tokyo and asked him to pay for damage that had been done to the property as a result of a party conducted on the property by the child I. This occurred in July 2007.

7. Since then there has been a second occasion when the mother was working and the child I invited over a hundred friends to a party at the house. She said the police came at 10.30pm. Some minor damage was done. There was a third party when the mother was at the pictures and 150 friends were in the house. Two weeks later, the child I had a fourth party and caused damage.

8. I asked the mother what the consequence for the child I was of his actions. She said that she had spoken to the father. She said she had a friend give the child I a good talking to. She said she talked to the child I. She said the child I was in complete defiance and acting in secret.

9. The mother asked the father about sex toys that she found in the child I’s possession when he came to Australia at the end of 2007. She asked the father whether the child I had obtained the sex toys from his house. The father denied this. The father was shown a song that the child I had written. He was asked whether he was concerned that the child I was psychologically damaged. He said he didn’t think he was.

10. The mother asked the father about why the child J changed schools when the child I was expelled from their first school in Japan. He said that the child J wanted to change schools at that time.

11. Ms G was recalled for cross examination. She was asked about the song that the child I had written. She was asked whether it could be a cry for help. She thought that it wasn’t necessarily so. She was asked whether she thought there could be a concern for the child I if he was in a country with no family support. She said the ability for parents to resolve conflict between them is the most important matter for children of the child I’s age. She thought that the child I would lose trust in his mother if he came to learn about the way in which she has provided his private documents to this Court.

12. Her attention was taken to an email from the father to the child I. She was asked what her view was of the response by the father. She said, “I thought it was a very measured and calm approach from the father. The father was trying to get [the child I] to think about why his mother would oppose him having a party.” Ms G thought the response was very appropriate.

13. The father was cross examined by the Independent Children's Lawyer. He confirmed that he had been involved in the child I’s schooling before the child I went to Japan. He further confirmed that the child I had difficulties at school in Australia before going to Japan.

14. The father explained that when the child I came into conflict with the Principal of his first school in Japan in March 2006 the Principal wanted to expel him. The father convinced the Principal not to expel the child I but put him on a contract. The contract provided that the child I was to work at home and fulfil weekly and daily requirements of the school in terms of his academic work. He was to be allowed to sit for exams. Between April and June 2006, the child I worked on the contract with the school. In May 2007 the father arranged for the child I to be moved to the new school. He confirmed that between May and June 2007 the mother did not know about the problems of the child I at the first school.

15. The father confirmed that in relation to the children’s new schools, he had made arrangements for their grades to be sent to their mother.

16. In relation to future schooling, the father said he had a long talk with the child I and told him he thought he should go back to the S School. He said that he and the child I had discussed looking at the boarding school in Hokaido as an alternative.

17. He confirmed that in his view, the child J and the child I are close. If the child I was at a boarding school, then the child J may be able to develop his personality.

18. The father said that he and the mother currently communicate by email. He said their capacity to agree about important issues for the children was not good.

The oral evidence of the mother

1. The mother was cross examined by the Independent Children's Lawyer. She accepted that the child I did not wish to live with her. She accepted that he was a difficult child and had been challenging since he was young. There were recent signs that he was changing.

2. She confirmed that she only sees the child I during holiday times and she accepted that what he might tell her about Japan may not be true.

3. The mother complained that while the children were with her, their father sent them hundreds of dollars into their bank accounts.

4. The mother agreed that there was poor communication between she and the father, and that allows the child I, in particular, to manipulate her. The mother said that she can’t talk to the father, but she is able to communicate with his wife.

5. In relation to discipline for the child I, the mother said that the child I will not respond to her but that he does respond to her new partner.

6. The mother confirmed that prior to the child I leaving his Australian High School he had trouble at school. She attributed that to the Court proceedings.

7. The mother’s new partner is Mr K. She told me that he lives with her at the moment while the boys are staying with her. They propose to marry in October 2008. They are proposing to live together shortly. The mother will be working for him full time. She is involved in the arts.

8. The mother confirmed that the children had met Mr K for the first time on their return to Australia at the end of 2007.

9. The mother confirmed that she had received the S School report for the child I and that it appeared to be a good report. She said that until that time she had not been receiving school reports. She spoke to the school and was told the father had told them not to send the reports to her.

Submissions

1. It was submitted on behalf of the Independent Children's Lawyer that an order for equal shared parental responsibility was not workable in the circumstances of this case. It was submitted that a sole parental responsibility order should be made for the children in favour of the father and that he be required by specific orders to consult in relation to certain areas of their welfare.

2. The Independent Children's Lawyer said that the communication between the parties should be by email.

3. In relation to the time the children should spend with their mother, it was submitted that the child I should spend time with his mother subject to his wishes. This should be for a minimum of one week on the December/ January school holidays and at such other times as they may agree with the consensus of the father. In relation to the child J, it was submitted that he should spend four weeks during the northern hemisphere summer holidays with his mother, three weeks during the Christmas school holidays, and such other times as may be arranged. Once the child J turns 16 then he should spend time with his mother on the same basis as was submitted would be appropriate for the child I.

4. There should be provisions to ensure that the mother is provided with information about the children’s progress at school.

5. The mother submitted that the orders proposed by the Independent Children's Lawyer should not be made. She proposed instead that the arrangement which was in place prior to the orders being made by Justice Rowlands should be reinstated. That is, that the children will live with her. However, in relation to the child I, she was seeking an order that he attend at a boarding school.

6. The mother was unable to say why her partner, Mr K, had not participated in these proceedings at all. She said that he could have. Likewise, she said he could have participated in interviews with the Family Consultant.

7. The mother submitted that she would be able to control the children, and in particular, the child I, in the future.

8. The father supported the submissions made by the Independent Children's Lawyer.

Relevant Law

Legal Principles

1. The principles governing this case are set out in the Family Law Act 1975 (Cth).  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA).  In determining what is in the child's best interests, I must consider certain matters under section 60CC.  Those matters are the "primary considerations" and the "additional considerations" set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:

   FAMILY LAW ACT 1975 - SECT 60B

   Objects of Part and principles underlying it

   (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).

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires 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.”

6. Subsection (4) provides as follows: “…The presumption may 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. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility. 

Consideration of Section 60CC

1. In determining what is in the best interests of the children I am required to consider the provisions of sub sections (2) and (3) of section 60CC.

2. I am required to consider the following “Primary Considerations”.

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

   I understand and accept the application of the primary considerations in the determination I am required to make in this case.

3. I am also required to consider the other sub-sections of section 60CC.

Determination of the Identified Issues

The wishes of the children

1. The evidence of the Family Consultant clearly identifies the wishes of the children as wanting to live with their father in Japan. I accept that evidence.

The mother’s capacity to control the child I

1. The evidence discloses that the mother has very little capacity to control the child I. She told me that she was relying on her new partner, a person she did not introduce to the Court, to control him. It appears that she recognises that the child I responds to male authority. I have grave fears for the welfare of the child I should he choose to live with his mother or if the Court was to order that should happen.

The relationship between the parents

1. The relationship between the parents is poor. I detected in the mother a high level of resentment against the father. This could have been fuelled by the interim orders which saw the children move from their mother’s house to live with their father in Japan.

2. She clearly saw the father as not placing sufficient constraints on the child I’s behaviour and freedom. This is in circumstances where she acknowledges that she herself is incapable of effectively doing that.

The relationship between the children and each parent

1. Both boys reported feeling close to their father. They said he appeared to have time to listen to them and they felt heard. Both boys were reticent to live with their mother and this was particularly so for the child I. The boys both felt that their mother did not particularly make time to spend with them whilst they were in Australia to spend time with her.

Section 60CC Considerations

Primary considerations

(a)      the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

1. In this case the orders have worked to enable the children to have a meaningful relationship with each parent even though the children have limited physical contact with their mother. The mother complained that she was unable to exercise telephone time with the children other than through the father’s wife.

2. To the extent that the circumstances allow the Court will endeavour to make orders which allow for a meaningful relationship with each parent.

(b)      the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. In this case the mother alleges that the children are exposed to inappropriate materials and activities whilst in their father’s care. She has tendered a number of sex toys, lubricants and condoms which the child I brought with him from Japan. She says that the child I has been allowed to roam Tokyo unsupervised by the father or another adult. He has had access to clubs, alcohol, drugs and sex. She also told me that the children had participated in a very dangerous game involving trains in Tokyo.

2. In Australia, the child I had abused his mother’s trust by arranging for parties at her home. Some of these caused damage. The police were called. No permission had been given for the parties; in fact, quite the opposite was the case.

Additional considerations

(a)      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

1. This matter has been dealt with above.

(b)      the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

1. This has partly been dealt with above. The boys reported a good relationship with their father’s wife. They also reported that the mother’s partner was “good”.

(c)      the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. This is the subject of some complaint by the mother. She claims that the father has failed to comply with some of the orders of the Court. In particular she complains about the lack of availability of the children for telephone time with her.  She also complained that she had not been kept informed about the children’s school progress.  The father denies these complaints.

2. It is difficult to determine these disputes.  Given the age of the children I suspect that the failure to communicate with their mother by phone may well be connected with the children having other more (and what they perceive to be more exciting) things to occupy their time.

(d)      the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The proposal of the mother would see both boys back in Sydney, although she proposes that both boys attend boarding schools. She does not necessarily propose that both boys attend the same school. She proposes that the child I attend T College, Sydney.

2. The mother’s proposals would see the boys separated from their father except during school holidays. This would be a change for them.

1. The father’s proposal is that the child I attend a school in the northern island of Japan. This would be a boarding school; however, it would be reasonably accessible from Tokyo where the father and the child J would be. This would see the boys living in separate residences for the first time in their lives.

2. If the children live in Japan then the time they spend with their mother will have to be during school holidays.

(e)      the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parents live in different countries. This of itself creates a difficulty and expense when it comes to arranging for the children to spend time with the other parent. The parties have been reasonably able to manage this now over a number of years.

(f)       the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. As stated earlier I have concerns about the mother’s capacity to control the child I. She also seems to give the children the impression that she does not have time to listen to them or spend time with them. This is not the view they hold of their father, notwithstanding that he travels quite significantly in his business.

2. The child I has had a problematic scholastic career. He has been at a number of schools in recent years. He was asked to leave his first school in Japan. There is a proposal for him to attend a boarding school for the last two years of his schooling. His mother proposes he boards at T College, Sydney and his father proposes he boards in Japan.

(g)      the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The children are both male. They are aged 16 and 14. They appear to have enjoyed an affluent lifestyle. Both their parents work. Each has re-partnered.

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

1. This is not applicable.

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

1. Each parent has complaint about the other’s attitude towards the children and in particular, their respective capacities to properly supervise the children. These matters have been canvassed earlier in these reasons.

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

1. The only evidence of violence relates to the mother’s report that the child I has pushed her.

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

1. There is no family violence order.

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

1. These children need final orders to be made.

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

1. The child I is at an age where the court would not in the ordinary course of hearing a children’s case make an order contrary to his wishes. He is a very worldly child with significant confidence. He pushed his mother to the limit by organising parties in her home contrary to her specific instruction that he was not to do so. He appears to not respond to her control methods. She says he is responding to the influence of her new partner. It seems that the child I respects his father and is more prepared to be compliant with his direction. On the other hand if some of the things the child I tells his mother he does in Tokyo are true then it may be that the father allows the boys too much freedom and responsibility which they abuse.

Section 60CC(4) & (4A)

1. The mother has complained that the father has breached orders of the court. These allegations largely relate to the father failing to make sure the children are available top speak to the mother on the phone pursuant to the court orders. She further complains that she has not been furnished with school reports for the boys as is required by the orders.

Section 61DA

1. The submission by the Independent Children's Lawyer is that this is not an appropriate case to make an order for equal shared parental responsibility. The reason is that the parties have failed to be able to establish an appropriate level of communication to be able to manage joint decisions in relation to the children’s futures.  I agree that the evidence on the case leads to the conclusion that it is not workable to make the order for equal shared parental responsibility.   I propose to vest the final determination of important decisions about the boys’ futures with the father. However, he will be required to consult with the mother about certain matters.

Section 65DAA

1. Given the distance between the parties’ residences it is impossible to make orders which provide for substantial and significant time for the children to spend with their mother.  The periods are really limited to school holiday time unless the mother is able to travel to Japan to see the children at other times.

Conclusion

1. In all of the circumstances of the case I agree that in the main the orders submitted by the Independent Children's Lawyer as being in the children’s best interests are in their best interests. I propose to make an order for sole parental responsibility for the father. I propose that he be required to consult about matters relating to specific areas of the children’s lives should he propose to change them.  I propose that the orders for the provision of information about the children’s schooling are to be tightened up.

2. I am most concerned about the child I’s future should he continue to live with his mother. Unless he rapidly matures or responds well to control from the mother’s new partner I fear that he shows all the signs of becoming a child without any self discipline and therefore, becomes vulnerable to the worst excesses of western society.

The mother’s costs application

1. No evidence was provided by the mother to support her application for costs. I therefore see it as not pursued and I dismiss her application for costs.

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  26 September 2008