Teagan and Nagano

[2018] FCCA 1538

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEAGAN & NAGANO [2018] FCCA 1538

Catchwords:
FAMILY LAW – Interim arrangements for care of twins aged 3 years – children born in Australia – father has Australian nationality – mother has (omitted) nationality – mother has unilaterally relocated children from (country omitted) to Australia – mother alleges she left (country omitted) to escape emotionally abusive relationship with father – father alleges mother has embezzled funds from him to relocate – nature of interim hearing – father initially sought orders to prevent children leaving Australia – mother has subsequently left Australia and returned to (country omitted) leaving children in care of biological stranger – mother in process of seeking visa to return to Australia – father seeks orders placing children in his care – children’s current custodian joined as a party – mother and third party seek continuation of existing care arrangements – assessment of risk to children arising in respect of competing application – best interests – ethos of the Family Law Act ­meaningful relationship with parents.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 64B; 65C.

Cases cited:

Goode & Goode (2006) FLC 92-286

Deiter & Deiter [2011] FamCAFC 82

Applicant: MR TEAGAN

Respondent: MS NAGANO

File Number: ADC 1525 of 2018

Judgment of: Judge Brown

Hearing date: 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Adelaide

Delivered on: 13 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Tindall Gask Bentley

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Nguyen Do Lawyers

ORDERS

1. The third party, Ms V deliver the children [X] and [Y] both born 2015 (hereinafter referred to as “the children”) to the father at a place, date and time to be agreed between the parties and failing agreement to be at midday on Saturday 16 June 2018, at Ms V’s home.

UNTIL FURTHER OR OTHER ORDERS:

1. The children live with the father in Adelaide.

2. The children spend time with the mother at times to be agreed between the father and mother and have regular and liberal electronic communication with their mother and failing agreement in respect of such communication by Facetime, Skype or other similar electronic means at 4pm daily (Australian Central Time).

3. The parties, their servants and/or agents are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children [X] and [Y] both born 2015 from the Commonwealth of Australia.

4. The Australian Federal Police give effect to paragraph four (4) hereof by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until this Honourable Court orders it removal NOTING that no order is made restraining the mother herself from leaving the Commonwealth of Australia provided that the children identified in paragraph four (4) hereof do not leave Australia.

5. Further consideration of the matter is adjourned to 24 July 2018 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1525 of 2018

MR TEAGAN

Applicant

And

MS NAGANO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with interim parenting arrangements for twin children, [X] and [Y], born 2015.  The case involves issues of unilateral international relocation; allegations of family violence and drug abuse; and an application for temporary care of the children by a person who is not biologically related to them. 

2. The case is axiomatically complex and has the potential to be the precursor to lengthy proceedings between the principle parties to it, who are [X] and [Y]’s parents – their father Mr Teagan and their mother Ms Nagano.  As their names suggest, the case also involves a significant cross cultural aspect. 

3. [X] and [Y] must be regarded as vulnerable children, given their tender years.  At the present time, they are also outside of the country of their birth and place of longstanding residence, which is (country omitted). 

4. In addition, to add to the complexity at the present time, they are in the care of a third party who was added to the proceedings on 29 May 2018.  She is Ms V, who lives in Suburb A, a suburb of Melbourne. 

5. At the interim stage, proceedings have invariably been issued urgently against a background of crisis and emergency.  In addition, the parties concerned very often have diametrically opposing views in respect of issues central to the case. 

6. In such a context, it is difficult, if not impossible, for the court to gauge accurately what has and is going on for the children, who will be the individuals ultimately most affected by its determination.

7. This level of uncertainty, particularly when it applies to young and vulnerable children, is stressful for all concerned, including the court.  In such circumstances, the best way to characterise the court’s task is one of triage primarily concerned with the assessment of potential risk to children. 

8. In truncated proceedings involving incomplete and untested evidence, the court must attempt to put in place the regime, which it considers will be in the best interest of the children concerned, particularly in regards to ensuring their protection from harm.  Necessarily, given the imprecise nature of the evidence available to the court, this cannot be an exact science.

9. In addition, as with triage, in its medical context, the court may also be called upon to determine what interventions should be engaged for the family concerned, to assist it and the court to resolve the issues arising in the case as appropriately and as quickly as possible.  These interventions may include the appointment of an independent children’s lawyer; or the urgent commissioning of a family report.

10. Given all these factors, it needs to be emphasised to the parties concerned, in any interim proceedings, that the orders of the court, made in such a case, are provisional in nature and, as such, potentially subject to revision, if and when further evidence comes to light.

11. One other potential pitfall arises frequently in interim parenting cases which, for obvious reasons, precipitate an extreme emotional response in the parties concerned.  This tendency may cause the evidence proffered by those parties to lack objectivity. 

12. In addition, under the influence of such heightened emotions, parties are sometimes inclined to make ambit claims and exaggerate allegations of misconduct, against the other parent concerned, in the hope of securing tactical advantage, either then or later on.  In all these circumstances, there is nothing less complex about the task which confronts the court.

Background

1. The father was born in Adelaide on 1959.  He retired from the workforce in 2009 and moved to (country omitted), with his life savings, intending to live there indefinitely.  The mother was born in (country omitted) on 1984.  The parties met, in (country omitted), soon after the father arrived in that country.  They married on 2011 at (country omitted).  [X] and [Y] were both born in (country omitted).

2. The mother’s position is that she was the children’s main provider of care.  She categorises the father as being “hardly involved” in providing any substantive care for the children.  The father does not agree, asserting [X] and [Y]’s care was shared equally between them.

3. In particular, the father asserts that, whilst the mother was in Melbourne for three months in 2017, whilst completing a (omitted) course, he looked after the children alone.  Again, the mother does not agree, asserting that her mother, the children’s maternal grandmother, stepped in to care for them whilst she was overseas.

4. The parties agree that they finally separated in May/June 2017.  It is the father’s case that following separation, he and the mother stayed in the same district and, as a consequence, he saw the children on a daily basis. He refutes any suggestion that he has not played an active role in caring for [X] and [Y].

5. It is common ground, between the parties, that on 5 January 2018, the mother left (country omitted), with [X] and [Y], and came to Melbourne.  She did not have the father’s permission to remove the children from (country omitted).  The father asserts that she left from (country omitted) Airport accompanied by a person, Mr L, whom he believes is her new partner.  He alleges that Mr L has a job in Melbourne. 

6. Mr Teagan has further deposed that he is unaware how Ms Nagano was able to leave (country omitted), with the children concerned.  It was his understanding that his lawyer in (country omitted) had filed a motion, in a (country omitted) court, restraining the children leaving that country.  Certainly, it is his position that he has not signed any travel documents consenting to the children leaving (country omitted). 

7. The mother has many criticisms of the father.  Essentially, she describes him an emotionally controlling and abusive person.  She asserts that she was compelled to come to Australia to “escape his controlling nature and provide a better life for the kids”. 

8. In addition, the mother alleges that the father uses drugs and smokes marijuana.  She further alleges that, when the father has spent time with [X] and [Y], he has taken them to a bar where marijuana is smoked and other illegal activities occur.  At the bar, he has allowed the children to stay up until the early hours of the morning, in what she describes as highly insalubrious surrounds.

9. The mother denies that she is in a relationship with Mr L.  Rather, she asserts that she is in a relationship with a Mr T, who is an Australian citizen.  She asserts that she met him in 2018, which must have been shortly after she arrived in Australia. 

10. The mother asserts that she is planning to marry Mr T and he is in the process of applying for a partner visa, on her behalf.  She apparently most recently entered Australia in 2018, pursuant to a tourist or short entry visa, which has now expired.

11. Mr T has not filed any affidavit material in these proceedings.  I would be naïve, I think, if I was not struck by the comparatively short duration of the relationship between Mr T and the mother.  For obvious reasons, I am also concerned about the mother’s immigration status in Australia.

12. The father denies that he is an emotionally abusive or violent person.  Rather, he categorises the mother as being a dishonest and manipulative person who has made false allegations against him in order to secure advantage over him in these proceedings and justify her unilateral and clandestine removal of the children from (country omitted).

13. It is his case that in 2013, the parties constructed a house in (country omitted), on a block of land owned by the mother.  He provided the necessary funds to construct the house, which was the parties’ family home until 2016, when it was sold.  The father asserts that the mother has misappropriated the sale proceeds and has utilised them to leave (country omitted) and later to fund her and the children’s accommodation in Melbourne.

14. The father previously lived in Adelaide, where he owns a 3 bedroom house.  His parents and siblings also live in Adelaide.  It is his position that he has a significant level of emotional support, in Adelaide, but little such support elsewhere in Australia.  It is also his case that, as result of the mother’s actions, he is effectively impecunious.

15. It is Mr Teagan’s evidence that he was unaware of the children’s precise location, after they left (country omitted), in 2018, other than that they were somewhere in Melbourne.  He attempted to ascertain where the children were in Melbourne, from members of the mother’s family, but they were not helpful. 

16. In this context, the father deposes that the mother sent him a text message begging him to allow the children to remain in her care in Melbourne and threatening him with the police, if he attempted to contact them.  As such, he characterises the mother as not being willing to support his relationship with [X] and [Y].

17. Against this background, in April of 2018, the father returned to Adelaide and commenced these proceedings, on 20 April 2018.  At this stage, he was concerned that the mother’s visa to remain in Australia was likely to be close to expiration and, in these circumstances, he sought orders from the court to prevent the removal of [X] and [Y] from Australia.  He also sought the surrender of the children’s travel documents.

18. The father’s application was made returnable on 28 May 2018.  The mother did not formally respond to the application but was able to instruct a solicitor to arrange representation on her behalf.  On this date, the mother’s barrister, Mr Childs, advised the court the mother had left Australia and returned to (country omitted) to undergo an operation on her thyroid.  In these circumstances, she had left the children in the care of a friend, Ms V, who lives in Suburb A, a suburb of Melbourne.[1]

    [1] Herein after referred to as Ms V.

19. From the father’s perspective, this arrangement was unsatisfactory, as he had no knowledge of Ms V, never having met her.  In these highly controversial and concerning circumstances, which from the father’s perspective, included the absence of the mother from Australia, he sought the delivery of the children to him.

20. I was told by Mr Childs that the mother would make very serious criticisms of the father and allege that he was not a proper custodian for the children.  However, given her absence from Australia, it was difficult for the mother’s solicitor to prepare documents quickly to outline her concerns, particularly given the fact that she had only recently been served with the father’s application.

21. Given the highly unusual circumstances of the case and the fact that I had not received any formal documents from the mother, I elected to proceed cautiously but did not consider the case should be otherwise unduly delayed.  In these circumstances, I made the following orders:

    (1)     The father join the current custodian, Ms V, as a party to the proceedings within 24 hours of today’s date.

    (2)     The mother and Ms V each file and serve a Response and Affidavit in support within 7 days of today’s date.

(3)     During the period of the adjournment the children do spend time with the father on Saturday, 2 June; Sunday 3 June and Monday, 4 June 2018 between 9:00am and 5:00pm on each occasion.

(4)  Handovers do occur between the father and Ms V at Suburb A, Victoria.

1. Both the mother and Ms V have now filed responses to the father’s application.  In addition, Mr Teagan has filed his own urgent interim application.

2. The mother seeks the following orders:

   ·    On a final basis, the children live with her in Victoria and spend time, with their father, as agreed between the parties.

   ·    On an interim basis, until she returns from (country omitted) to Victoria, the children live with Ms V, at her home in Suburb A, or:

   ·    In the alternative the children live with the mother in (country omitted), until she is granted a visa to return to Australia.

3. Ms V seeks the following orders:

   ·    That until the mothers return from (country omitted) to Australia, the children live with her.

4. The father seeks the following orders:

   ·    The children remain on the Airport Watch list and injunctions issued restraining their removal from Australia;

   ·    The mother surrender the children’s travel documents to the Registrar of the court at Melbourne;

   ·    Ms V deliver to the children to him and pending further hearing the children live with him, in Adelaide.

   ·    The mother have video communication, with the children, at 4pm each day.

5. It is the father’s evidence that his time, with the children, over the weekend of 2 to 4 June went extremely well.  In addition, he asserts that Ms V asked him to have the children overnight from Saturday morning until Monday afternoon, which he asserts is consistent with his position that [X] and [Y] are comfortable in his care.

6. He asserts that the children were happy to see him and did not exhibit any distress, whilst in his care.  In addition, he arranged for them to communicate, with their mother, via video call.  Mr Teagan asserts that his only concern, in respect of the children, arose from his inspection of their teeth, which appeared to have been neglected.

7. Mr Teagan has further deposed that he is currently in strained financial circumstances, having only $6,000.00 left of his personal savings.  In these circumstances, he is living with his parents, at their home at Suburb B, a suburb of Adelaide.  It is his case that this residence provides ample and comfortable accommodation for the children, whose safety will be assured, given the proximity of the paternal grandparents.

8. Mr Teagan has deposed that the children were distressed at having to return to the care of Ms V.  For her part, she disputes the father’s assertion that the children easily engaged with their father at the beginning of the time stipulated by the court.  Rather, she asserts that they were crying and screaming at the prospect of spending time with their father.  This is yet another evidentiary issue, which cannot be resolved in the context of these interim proceedings.

9. Ms V also asserts that she has been subject to surveillance by two men, whom she believes are associated with the father.  This has caused her to feel unsafe.  The implication being that the father is, as the mother describes, a controlling and domineering person, with scant insight into the emotional needs of young children to feel secure and safe or respect for others.

10. It is Ms V’s evidence that the children are very comfortable in her care and she is capable of attending to their daily needs.  She proposes to enrol them in childcare shortly, as she is engaged in self-employment.  It is also her evidence that the children’s mother calls them daily.

11. If necessary, Ms V is prepared to take the children to (country omitted), so that they can live with their mother, until her visa application to return to Australia is finalised.  She confirms that the mother had to leave for (country omitted), in order to have an operation on her thyroid.

12. Ms V denies that she works in the (employment omitted) industry.  Rather, it is her case that she and her husband own a Business, in Suburb C.  She denies taking the children there whilst she works.  As indicated above, it is her position that she will arrange appropriate care for the children when she is at work.

13. Ms V is critical of Mr Teagan for purchasing incorrect toothpaste for the children.  It is also her evidence that, when they returned to her care, each child was constipated and she suggests that this was due to the father’s neglect of their diet during the weekend they spent in his care.

14. It is the mother’s case that the children are safe and secure in Ms V’s care whom she asserts she has known since February 2018 – a period of approximately four months.  The mother asserts that the children know Ms V very well and she is more than capable of catering to their daily needs.

15. Counsel for the mother, Mr Childs, informed me that since his client had filed her affidavit, she had undergone her surgery in (country omitted).  In these circumstances, he had been informed by her solicitor that it was likely to take between three and four weeks for her to be granted a further visa to enter Australia.

16. In all these circumstances, it is the position of the mother and Ms V that there is no pressing need to disturb the current arrangements for the care of [X] and [Y], which are comparatively long standing.  In addition, the mother asserts that the father represents a danger to the children both because of his violent disposition and the absence of any deep relationship with them, which she asserts is supported by the evidence of Ms V.

1. On the other hand, it is the father’s position that the mother has behaved in a high handed and unilateral fashion, in respect of the two children, which must cause the court to doubt her credibility.  It is his case that the clear evidence available indicates that the mother has displayed a cavalier and neglectful attitude to the children, exemplified by her decision to leave them in the care of her fairly recently made friend.

2. It is his case that he has a close and loving relationship with both children, with whom he was involved, on a daily basis, in (country omitted), prior to their unilateral and surreptitious removal from there.  In these circumstances, he would characterise the mother’s actions as being calculated to deprive the children of the benefits of having a meaningful level of relationship with him.

3. Accordingly, it is his case that it is preferable that the children be cared for by a parent, rather than a comparative stranger, no matter how well-meaning such a person may be.  It is his position that his evidence, about the children’s level of comfort, whilst in his care, should be preferred to that of Ms V, who is almost certainly aligned with the interests of the mother and so likely to be lacking in objectivity.

4. It is Mr Teagan’s position that he cannot afford to live in Melbourne in order to interact regularly with [X] and [Y].  In addition, he is concerned that the mother’s visa application may possibly be delayed.  In these circumstances, it is his case that the children’s best interests will be served, if they live with him, in Adelaide, where he has support and the children have significant family, pending the final outcome of these proceedings.

5. As I observed, in the opening comments to these reasons for judgment, it is frequently the case that tactical considerations arise, for the parties concerned, in respect of their interim applications to the court.  It seems to be the case that the mother and father are agreed that [X] and [Y] should live in Australia, notwithstanding that (country omitted) is the country of their birth and, up until January 2018, their place of habitual residence. What they disagree about is the location, within Australia, where they should live.  More significantly, they also disagree as to who of them should provide the majority of the children’s care.

6. In these circumstances, for obvious reasons, the outcome of these interim proceedings is likely to be perceived by each of them as having very significant implications, in terms of how the final proceedings turn out.  In these circumstances, no doubt it is the mother’s position that the court should not take any precipitous action, whilst she is outside of Australia, given the likelihood of her return to this country in four weeks’ time and, on her and Ms V’s case, the appropriateness of the current care arrangements.

7. Entwined with this complex dispute, is the fathers assertion that the mother has misappropriated significant funds from him and is to be regarded as a manipulative and dishonest person, who will say and do anything to advance her interests, which are not necessarily congruent with those of [X] and [Y]. 

8. In these circumstances, he points to the surreptitious and unilateral manner of the children’s removal, from (country omitted), which precipitated the current crisis in the first place.  It would appear to be implicit in his case that the mother is only in her position to fund her continued presence in Australia, as a consequence of the monies she has embezzled from him.

9. As this background indicates, this is not a case which presents any easy or obvious answer.  In addition, the various parties concerned disagree on very many issues of substance, which cannot be resolved in the context of the current proceedings.  The issues in dispute include the following:

   ·    The nature of the parties’ relationship with one another, when they were in (country omitted).  Was it a violent and abusive relationship, as the mother asserts or it the mother the unstable and unreliable parent, as the father asserts;

   ·    What is the nature of the children’s relationship with their father?  It is a close and loving one, sustained by frequent interactions prior to the children leaving (country omitted), as the father asserts, or it is a neglectful relationship, as a consequence of the father essentially being disinterested in the children’s care and his alleged preference to smoke marijuana in bars.

10. At the interim stage, the Full Court has pointed out that ordinarily, the court should not be drawn into issues of fact or matters, relating to the merits of each party’s substantive case.[2] Rather, it should look to what is agreed between the parties concerned and any less contentious matters which arise from the evidence.  In this case, the following issues appear largely uncontentious:

    ·    The mother removed the children unilaterally from (country omitted), without the fathers consent;

    ·    The children have known Ms V since February 2018;

    ·    The mother is not in a position to parent the children, for the next 28 days or so, unless the children return to (country omitted);

    ·    (country omitted) is not a signatory to the Hague Convention;

    ·    Although there is a dispute about the quality of the children’s relationship with the father, there can be no doubt that [X] and [Y] know him.

    [2] See Goode & Goode (2006) FLC 92-286 at 80, 901[68].

The legal principle applicable

1. The evidence, so far available to the court in this case, is confusing, contradictory and disturbing.  What evidence there is seems to have been hastily prepared, against a background of extreme urgency.

2. Significantly, at the interim stage, it is not possible for the evidence which is available to be subject to detailed scrutiny, through a process of cross examination.  In addition, the affidavit evidence, which is available is invariably limited given the haste with which it has been prepared. 

3. The most significant piece of evidence currently not available to the court is an expert assessment of the psychological needs of the children, which will involve some form of observation of their respective interactions with each of their parents in order to provide an independent gauge of the quality of the relationship each child has with their parents. 

4. In nearly all cases concerned with children, such a family report is essential before the court makes any long term determination.  At a basic level, the court is in the dark as to the sort of relationship, particularly in terms of its emotional warmth, [X] and [Y] have with each of their parents.

5. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

6. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

7. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

8. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

9. There are two primary considerations, which are as follows:

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

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

10. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

11. The way in which the court determines care arrangements for children is through the making of a parenting order [see section 64B].  Pursuant to section 65C(c) any person who is concerned with the care, welfare or development of a child may apply for a parenting order. 

12. In this case, I accept Ms V is concerned, to some extent, with [Y] and [X]’s care welfare and development.  This is because these children have been entrusted to her care by their mother. 

13. However, her interest must be considered to be only provisional in nature, as it will exist only until such time as she is released from her responsibility, for the care of the children, by either the mother or this court.  Necessarily, she is only seeking a parenting order on a temporary basis.

14. Part VII of the Act is the part of the Act dealing with children. It objects and principles are contained in section 60B(1). They emphasise the responsibilities of parents to their children, particularly in regards to parents being maximally and meaningfully involved in their children’s lives, commensurate with the children concerned being protected from harm.

15. The court is directed to ensure that children receive adequate and proper parenting and to ensure that parents fulfil their duties towards their children. In this context, pursuant to section 60B(2), parents are directed to share duties and responsibilities, in respect of their children and to agree about the future parenting of their children.

16. In this context, I am concerned that the evidence currently available to me indicates some shortcomings in the mother’s attitude towards the parenting of [Y] and [X].  She has not shared responsibilities in respect of the children with Mr Teagan, particularly in her engagement of Ms V.  I appreciate however that it may well be the case that there is a cultural context, which is likely to be applicable to why the mother has made the very significant decisions which she has.

17. However, notwithstanding these issues, which remain unresolved, I am concerned at the unilateral nature of her decision to leave (country omitted), in the first place, with [Y] and [X] and subsequently her decision to leave the children in the care of Ms V, when she left Australia. At first blush, these do not appear to me to be decisions in keeping with the spirit and ethos of the Act, as contained in section 60B.

18. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

19. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

20. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[3] 

    [3]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

21. The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

22. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

23. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

24. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

25. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

26. In the current case, I am satisfied that it would not be appropriate to apply the presumption, arising under section 61DA, to the parenting of [Y] and [X]. In my view, the evidence currently available to the court is so limited and contradictory, that the presumption simply cannot be usefully applied. In addition, there would be an element of absurdity to such an application, in this case, given that the two parents concerned are currently in different countries.

27. In these circumstances, I consider that I must attempt to apply the various provisions, contained in section 60CC of the Act, to the circumstances arising in this case, bearing in mind the limited nature of the evidence before me and the inherent perils arising from any attempt to second guess that evidence and the final outcome of the case.

Discussion

1. As I indicated, at the outset of these reasons for judgement, this task above all entails the assessment of risk.  Essentially, it is the mother’s case that it would be inherently risky for the court to place the children in the care of their father because he is a violent and abusive parent. 

2. On the other hand, it is fathers case that, given the structure of the Act, particularly its principles and objects, the law prioritises parents over other individuals in respect of the making of parenting orders and, in this context, there are significant risks arising for [Y] and [X], if they are cared for by someone other than a parent or failing that a close relative.

3. Given the mother is out of Australia, he submits that he is axiomatically the only such parent available for the children concerned in this case and the placement of the children in his care is not only likely to be safe but also in keeping with the ethos of the Act, which prioritises the benefits of children having a meaningful relationship with parents.

4. The evidence to support the mother’s allegations of family violence is limited.  I accept that it is likely to be difficult for her to obtain any records, from authorities in (country omitted), to support such allegations.  In addition, given the nature of family violence, which invariably happens in private, the provision of independent proof of its existence, is likely to be highly problematic.

5. Regrettably, her claim that she has photographic proof of an injury allegedly received by her, from the father in an assault of September 2013, cannot be substantiated by reason of the intelligibility of her electronically transmitted affidavit.[4]  In addition, I do not necessarily place great store on the content of abusive text messaging passing between the parties concerned, which are now somewhat dated.

   [4] see Annexure N1 to the mothers affidavit filed 7 June 2018

6. In Deiter & Deiter[5] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [5]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

7. One of the more significant allegations made by the mother concerns the father taking the children to a nightclub in (country omitted), where marijuana was consumed.  If this is true, it is a significant allegation.  However, in my view, the likelihood of there being a similar incident, in suburban Adelaide, particularly if the father is living with his parents, is much mitigated.  In addition, the separation of the parents is likely to be a significant protective factor for the mother.

8. In addition, although the mother impliedly asserts the father is a poor role model for the children because of his coercive and controlling attitude toward her, she does not delineate any specific incidents of abuse or neglect between the father and the children.  Rather, she paints a picture of a parent essentially disengaged from past parenting arrangements.  Again, whether this is true or not, is impossible for me to determine, at this stage.

9. Accordingly, although the structure of the Act prioritises child protection concerns above all other considerations, in my view, I am not in a position to ignore the benefits, which are likely to derive for [X] and [Y], of having a meaningful level of relationship with a parent.  Given the mother’s absence from Australia, the only parent currently able to provide such a relationship is Mr Teagan.  In my view, this is a significant factor, which favours his position.

10. The father may be found to be a violent person.  I must be careful not to assume that he is only on the uncorroborated evidence of the mother, who is likely to have her agenda in respect of the case.  In addition, my task in assessing the risks for children is essentially predictive in nature.  As such, although what has happened in the past may be indicative of what will happen in the future, it is not necessarily so.

11. The father may behave in one way in (country omitted) and in another way, in the presence of his parents, in suburban Adelaide.  The attitude of the father in coming to Australia is not consistent with a disinterested parent.  In my view, the placement of the children in the care of their father is not an outcome, which must be viewed as inherently perilous, if he lives in Adelaide with his parents.

12. I am satisfied that the evidence indicates that the children do have a relationship with their father.  Even if the mother’s case is taken at its highest, he is not a total stranger to them.  It is significant that, when it suited her, Ms V was open to the children spending overnight time with their father, notwithstanding the fact that, as a consequence of the mother’s actions alone, he had not seen them for approximately five or six months.

13. In this context, pursuant to section 60CC(3)(b), I am required to consider the nature of the relationship the children have with each of their parents and any other persons.  The children do have a significant level of relationship with their mother, however, at least for the next four weeks, she is unavailable to care for or engage with them, other than through the provision of emotional support via Skype.

14. Ms V has known the children since February.  In her affidavit, she asserts that her relationship with the children is close.  However, in my view, she has not provided any detailed evidence as to why this is so.  It appears to me to be an obvious inference that she became the children’s carer, as a matter of personal expediency, arising for the mother because of her medical needs.  Again, I have been provided with no evidence about the mother’s medical condition, other than she had to have an operation on her thyroid. 

15. In my view, there is much for the court to be concerned about in respect of the mother’s behaviour toward the children – she removed them unilaterally from (country omitted) and took them a significant distance away from their other parent; she co-opted a comparative stranger to care for them; she purports to be engaged to a person whom she has recently met and upon whom her continued presence in Australia may depend. 

1. On the other hand, Mr Teagan has a relationship with [Y] and [X] based on his status as a parent.  In my view, it is also significant that Ms V was open to the children spending overnight time with their father, notwithstanding her assertion that the children were distressed when he reappeared in their lives.  In all the circumstances, it seems probable that the children have a significant level of relationship with him.

2. Underpinning the mother’s case is her assertion that the children’s best interests will be served if they remain in Melbourne, where she has been living for less than six months.  Her preference for Melbourne is based on her relationship with Mr T, whom she hopes to marry.  However, I have no evidence whatsoever from Mr T and so am unable to assess what is his potential influence on care arrangements for the two children concerned.

3. Apart from her relationship with Mr T and her preference to live in Melbourne, which she has previously visited in order to undertake a course in 2017, there is no impediment to the Mother coming to live in Adelaide.  I appreciate that her case has been hastily prepared at some distance.  However, she has provided no evidence regarding her financial position, particularly how she proposes to support herself in Australia.

4. Pursuant to the matters contained in section 60CC(3)(d), I am required to consider the likely effect of any changes in the circumstances of the relevant children concerned, including the likely effect on them on being separated from a parent.  The mother was content to separate the children from their father unilaterally.

5. More recently again, she has elected to separate the children from herself, albeit on a temporary basis.  Although I concede I have not, as yet, been fully appraised of the circumstances, which required the mother to leave Australia.  However, in all the circumstances of the case, I am concerned by the further potential for the children to remain separated from at least one parent for the next 28 days or so.

6. The children are likely to be familiar with life, with their mother, in (country omitted).  However, given both parties now each envisage their future lives in Australia, I do not consider the children’s temporary return to (country omitted) to be a viable outcome.  Both parties having accepted this court’s jurisdiction and given the unilateral behaviour of the mother, in my view, it would not be helpful for the security of the children’s parenting arrangements if they left Australia in the care of Ms V.

7. As previously indicated, given the highly unusual circumstances of this case, which appear to have been largely engineered by the mother’s decisions and conduct, I have some concerns about the attitude she has displayed to the responsibilities of being a parent [see section 60CC(3)(i)]. 

8. Again, I concede that I must be careful not to make premature value judgments in respect of the mother, given her cultural incongruity to the judicial process in this country, particularly as it applies to children.  Rather I must endeavour to assess risk, within the overall parameters provided by the Act, including the benefits for children of parental relationships.

9. At the end of the day, this is a difficult and disturbing case.  Doing the best I can to assess risk and balance the various factors arising under section 60CC, I have come to the conclusion that the best interests of [Y] and [X] will be served if they live with their father in Adelaide until such time as the mother’s situation becomes clearer to the court. 

10. I do not consider that it would represent an unacceptable risk, for [X] and [Y], if they are cared for by their father.  This seems to me to be preferable than that care be provided by a surrogate for their mother, who has her own life to lead and has known the children only since they arrived in Australia at the start of 2018.

11. In these circumstances, I will make the orders largely sought by the father.  I will adjourn the further hearing of the case for approximately five weeks when it is anticipated the mother will have returned to Australia.  It is, of course, open to her to come to Adelaide, given her apparent lack of longstanding ties to Melbourne.   That is a matter for her.

12. I will direct that Ms V deliver [X] and [Y] to their father, at a place, date and time to be agreed between them but failing agreement to be midday this coming Saturday 16 June 2018, at Ms V’s home in Suburb A.

13. Given the apparent acceptance by both parents concerned that the children’s best interests will be served by them remaining in Australia, I will also make the orders sought by the father placing their names on the Airport Watch List and restrain their removal from this country. 

14. Finally, I will make the order for [X] and [Y] to have daily video communication with their mother and for the children to spend time with her as the parties agree.  This latter arrangement being a stop gap measure until it is known when the mother will return to Australia and where she proposes to live.

15. In my view, at this stage, until the mother’s return, it is premature to order a family report or appoint an independent children’s lawyer, notwithstanding the inherent complexity of the matter.

16. For these reasons, the orders of the court will be set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 13 June 2018