Terzum and Minas

FAMILY COURT OF AUSTRALIA

TERZUM & MINAS

[2010] FamCA 634

FAMILY LAW – CHILDREN – Final parenting orders – Allegations of extreme on-going domestic violence – Where the mother is traumatised by her relationship with the father – Where there is a strong conflict in the evidence of the parties – Where there is a striking level of consistency in the observations of the experts – Where credibility of the parties’ evidence is a central issue – Where the mother’s account of events has greater corroboration – Where there are sources of evidence to support a finding that the Mother’s allegations are largely credible – Consideration of section 60CC factors – Where the children have been traumatised by the high level of domestic violence – Application of the rule in Browne v Dunn

FAMILY LAW – CHILDREN – International relocation – Where the children were ordered by the High Court of Ireland to return to Australia pursuant to terms of the Hague Convention – Application of the mother to relocate with the children to Ireland – Relocation permitted

APPLICANT:

Mr Terzum

RESPONDENT:

Ms Minas

INDEPENDENT CHILDREN’S LAWYER:

Mr Emerson, Solicitor

FILE NUMBER:

BRC

6470

2008

DATE DELIVERED:

23 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

28 June – 30 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge of Counsel appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT:	Burchill & Horsey, Solicitor
COUNSEL FOR THE RESPONDENT:	Mr McGregor of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT:

Schultz Toomey O’Brien

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lyons of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER

Emerson Family Law

Orders

IT IS ORDERED THAT:

The Mother have sole parental responsibility for the children, H born … April 2001 and R born … February 2004.
The children live with the Mother.
The Father communicate with the children by written correspondence only, including email with the Mother to maintain an email address for the children (and inform the Father forthwith of any interruption to that service).
For the purpose of Order (3) hereof the Mother keep the Father informed of the current postal address and email addresses to which he may communicate with the children.
The Mother inform the Father as soon as practicable of any medical emergency involving the children.
The Independent Children’s Lawyer be discharged.
All pending applications be otherwise dismissed.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC6470 of 2008

MR TERZUM

Applicant

And

MS MINAS

Respondent

REASONS FOR JUDGMENT

I am asked to make a determination about the future care arrangements for the parties’ two children, T born in April 2001 and R born in February 2004.

Timeline

The Applicant Father was born in Africa in 1982. In certain documents his birth date is given as 1984 but the Father’s evidence is 1982 is the correct date of his year of birth. He came to Australia in August 1995 and initially resided with his biological mother.
The Mother was born in Australia in June 1984. She holds dual Australian and Irish citizenship.
The parties attended the same school in Brisbane. They met in 1997. They began dating in July 1999 and commenced cohabitation in October 2000 (all of the dates in this section of the determination are obtained from a case outline document filed on 20 May 2010).
In October 2003 the parties departed Australia to live in Ireland for a year in the maternal grandmother’s home in Ireland. The Mother was pregnant with her second child at the time of this departure.
R was born in Ireland in February 2004.
In April 2004 the Father took T to Africa for a period of about ten weeks.
In November 2004 the parties and the two children returned to live in Brisbane.
In November 2006 the Mother was advised that her grandmother in Ireland was terminally ill. On the 17 December 2006 she and the two children flew to Ireland to visit her.
On 31 December 2006 the Mother informed the Father she would not be returning to Australia.
In April 2007 the Father last spoke to the two children on the telephone. On the 16 July 2008 he filed his application for final orders in this Court. On the 29 July 2007 an application was filed in the High Court of Ireland pursuant to the terms of the Hague Convention for the return of the children to this jurisdiction.
In January 2009 the Mother and the children returned to Australia upon Order of the Irish Court. Arrangements were made for the Father to see the children at a Contact Centre. The first visit was on the 5 April 2009. There was a subsequent visit a fortnight later. A visit scheduled for the 3 May 2009 did not go ahead. A fourth visit a fortnight later occurred. A further scheduled period at the Contact Centre for the 31 May did not go ahead. At that time further visitation at the Contact Centre was terminated. Since that time the Father has not seen the boys apart from two brief periods for the purposes of preparation of the two Family Reports.

Orders Sought By The Applicant Father

The orders sought by the Father in summary form are as follows:
·If the Mother remains in Australia, equal shared care, joint parental responsibility.
·In the event the Mother is in Australia if the Court is not minded to order equal shared care, alternate weekend time and time in the off week.
·If the Mother relocates to Ireland, children spend time with the Father in Australia during school holiday periods and also have communication by telephone.
The orders sought by the Father are to be found in a separate document filed on his behalf on 7 May 2010. One of the orders sought was that immediately following the determination by this Court the children spend one month with their father with no interaction with their mother or members of her family during that period. The theory behind this was to allow the Father in an uninterrupted fashion to re-establish a relationship with his two sons.
Having heard the cross examination of Ms B and Ms W Counsel for the Father in the course of final submissions did not press for any order in such terms.

Orders Sought By The Respondent Mother

The orders sought by the Mother in summary form are as follows:
·In the event the Mother is permitted to return with the children to Ireland:
oher sole parental responsibility for the children;
othe children to live with the Mother;
othe Father to communicate with the children by written correspondence only but to include email.
She seeks orders in similar terms in the event the Mother is ordered to remain in Australia with the children.
The parties’ respective accounts of the dynamics of their relationship and events subsequent to separation are diametrically opposed.
For the Father it was contended that it was only after the Mother elected to remain in Ireland that she commenced to make the allegations of drug use, domestic violence and controlling behaviour which she has particularised in great detail.
For her part the Mother is adamant that her account of the Father’s behaviour is accurate and both she and the children are fearful of him.
The children expressed a wish not to see their father at the time of the preparation of the two Family Reports by Ms B in September 2009 and June 2010.
The parties differ as to why this is the case.
The Father contends that the Mother has alienated the children from him. The Mother says it is a reaction to the Father’s behaviour during the period of the relationship.

Evidence In Applicant Father’s Case

The Father relied on three affidavits filed 6 November 2008, 9 June 2009 and 21 May 2010. In addition affidavits of four witnesses were relied on. The witnesses were:
·    Ms M – the Father’s partner;
·    Mr O – friend of the Father from school days;
·    Ms N – partner of Mr O;
·    Mr S – sports instructor who has mentored the Father.
The only witnesses required for cross examination were Mr O and the Father’s partner, Ms M.
I propose to summarise the evidence of the Father’s witnesses before considering the evidence of the Father as found in his affidavit material and oral evidence.

Ms M’s Evidence

Ms M’s evidence is that she has known the Father since 2007 and has resided in a relationship with him since October 2008. She is a sales assistant and and shop assistant for a major department store. …. In her affidavit filed 12 May 2010 she deposes as follows:
“6.I am of [Asian] origin but was raised mainly in Australia. My mother and brother reside in Brisbane in the suburb of […] whilst the rest of my family continue to live in [Asia].
8.A particular initial point of interest in [the father] by children is his unusual appearance – his dark complexion and curly African hair […]. Children find this interesting and funny and like to touch him. [The father] always reacts with good humour and usually on occasions laughter.
9.I know him to be an instructor in [sport] and to have many children as his students. I have never heard anything but praise for him as a teacher and I have no doubt that he would not be retained in that capacity if he were anything but reasonable.
11.[The father’s] personality is extremely gentle. He is a non-confrontational person. His normal reaction to disputes is to walk away. Of course he and I like all relationships occasionally have disputes over trivial household matters such as housekeeping but in general we have a strong and normal relationship.
12.On rare occasions he and I have raised our voices against each other in the course of such disputes but never in a manner outside of any normal relationship.
14.Moreover we have a teetotal household and therefore alcohol certainly never becomes an issue when we discuss any issues that may arise between us. Like many Asians I have a complete intolerance for alcohol and cannot even have one alcoholic drink without flushing and becoming ill.
15.[The father], like many [Africans], shares the same alcohol intolerance. Not only does he never drink to excess; he is physically incapable of doing so.
16.Nor have I ever known [the father] to use recreational drugs at any time.
20.I admit there was one occasion when police were called to our residence. On a date I cannot now remember but probably some time in 2009 [the father] was extremely upset about the dispute over his children. At this time I myself had a temporary dispute with my own family and was upset.
31.[The father] also did mention that [the mother] has alleged that the family dogs were violent and menacing. I have also overheard [the father] and our friend [Mr O] discussing such allegations. By the time [the father] and I began living together there was only one of the two dogs remaining but I knew the dog very well and he was a gentle and completely unthreatening house pet. Unfortunately he eventually ran away.
32.I intend to remain with [the father] and in due course to marry him. We both intend to have children of our own. I feel totally comfortable with the prospect of [the father] being the father of my children. I think he would be a very good father, the best father I can imagine.
33.I have never met [the father’s] children by [the mother] and therefore have no independent relationship with them myself. I expect that if as a result of this proceeding he and I do commence having contact with them it might be some time before they and I can establish warm family times with me as their step-mother. However, I will be committed to establishing a relationship with them and support [the father] completely.”
There is evidence in this matter which would indicate that the father has in the past consumed alcohol on a reasonably regular basis and has done so from an early age.
Exhibit 3 is the Queensland Police service subpoenaed file which would indicate that on two occasions on the 18 July 2008 and 22 June 2009 respectively, they were called to the Father’s household in relation to domestic violence type incidents where there had been raised voices. The Police were satisfied there was no physical violence involved. This witness informed the Police that the Father becomes aggressive when he has been drinking. It gives quite a different picture to the contents of paragraph 15 of this witness’ affidavit. It is recorded in the Police records after the second visit:
“They argue when he drinks which is infrequently.”

Mr O’s Evidence

Mr O is a sales manager. He resides with his partner, Ms N, another of the Father’s witnesses, but one who was not required for cross examination. In the view of the observations made by Ms N in her affidavit it was somewhat puzzling that one witness was required for cross examination whilst the other was not.
Mr O has known the parties from when they were in the same grade 9 class at school in 1998. His evidence is that they have kept in contact on a regular basis since leaving school.
At paragraph 6 of his affidavit he deposes:
“6.. . . I have continuously seen both [the father] and [the mother] and once the children were born all four members of the family, save for the period they lived in Ireland, until [the mother] departed for what she described as a brief visit to her sick grandmother in Ireland some three years ago.
8.There were two periods of time when [the father], [the mother] and I, along with my partner [Ms N] and also the children were extremely close and this was when we lived under the one roof for a period of four to six months in 2004 and then when we lived across the road from each for approximately one year in 2005 until [the mother’s] departure in 2006 for Ireland.
9.This means all up that I probably had a year and a half when we were in extremely close proximity to each and had quite intertwined lives. And that at all other times we all remained extremely close friends and we saw each other with great frequency.
20.Throughout the time that I lived with [the father] and [the mother] I recall that they both would equally attend to the children’s needs. I recall that [the father] was the only person that had a driver’s licence for all of this period and therefore they would all wake up in the morning together and get ready together in the view they were leaving the house together in [the father’s] car. They would wake up and have breakfast together and both parents would attend to getting breakfast on different days. They would both participate in getting the children ready to be delivered to day care (that is getting them dressed, getting lunches and the usual morning tasks) and then they would leave the house at the same time in his car.
23.I recall that [the mother] was less interested then [the father] in ensuring the children’s health. I recall this because I specifically remember that she would smoke and drink throughout her pregnancy with [R]. She would also smoke when she was breastfeeding. I recall there was some arguments, normal arguments not of any violent or angry nature, between the parties regarding her smoking and drinking during pregnancy and breastfeeding.
27.During the time that [the mother’s] mother lived with them, I frequently witnessed episodes of disharmony with verbal arguments among [the mother’s] mother, [H] and his girlfriend and [the mother] and [the father]. On such occasions I observed that [the father’s] response was to leave the house and escape the tension.
28.Once [the mother’s] mother left [the father] and [mother’s] house and went to Ireland, [the mother], [H] and I discussed several times the disharmony that existed in their house during the time of [the mother’s] mother’s extended stay with them. [The mother] volunteered that such domestic harmony had variably been instigated and fuelled by her mother.
30.I recall observing on numerous occasions [the father’s] discipline of the children. I recall that the usual punishment for the children was that they were sent to their room if they were naughty. There was the odd occasion were (sic) the children would get a little smack on the bottom however this was never excessive and wasn’t very often. Both [the mother] and [the father] used this as a form of discipline.
31.On several occasions [the mother] and I reminisced about our adolescent years and [the mother] frequently mentioned that both she and [the father] were calmer and happier since the children’s births.”
He deposes he has never seen any signs that the father had physically or mentally abused the mother or the children in any way or that the children were in any way uncomfortable with their father. He further says the parties shared the housekeeping duties.
He says that he had ample opportunity to be familiar with the Father’s possessions and he deposes to the fact that he is confident there was never a gun in the house.
At paragraph 38 he deposes:
“38.I can say categorically that it is not possible that [the father] had a gun in his house.”
I find that in this respect the witness has somewhat over extended himself. It is difficult to prove a negative such as his denial of the Mother’s allegations that the Father had a gun. There was evidence at times the gun was kept in a safe to which Mr O did not have access. I find the Father would have had little difficulty in concealing a gun from persons in the house or neighbours visiting if he was so minded.
Mr O’s evidence was that alcohol was consumed on social occasions on a regular basis. Apart from one report in the records of the Royal Brisbane Hospital there is little evidence to suggest the Father had a problem with alcohol in the sense of excessive consumption. The evidence concerning the consumption of alcohol is relevant principally as a credibility issue. Having regard to the statements in the Police records, the hospital file and Mr O’s evidence, I find the Father and his partner have tended to minimise the consumption of alcohol in their household.
In relation to paragraph 8 of Mr O’s affidavit, it is simply not possible that he lived under the one roof with the parties for four to six months in 2004. The parties were in Ireland up until November of 2004. The evidence would indicate it was after the return of the parties from Ireland in late 2004 that they rented the home at P, and it was then that they shared the accommodation.
His evidence that the Mother smoke and drank throughout the pregnancy with R and also smoked when she was breastfeeding. The child was born in February 2004. It is likely then that conception was in late May of 2003. The evidence of the Mother and the Father is she did not become aware that she was pregnant until she was at 20 or 22 weeks.
If she was not aware she was pregnant I find it highly unlikely that Mr O was so aware. The parties left for Ireland in October 2003. There could only have been a small window of opportunity, at best a few weeks, when he could have observed the Mother during her second pregnancy. At this time it was before the visit to Ireland and they were not members of the same household. There is no direct evidence of how far they lived apart or how many times he visited the household during that period.

There is no evidence as to how long R was breastfed, but clearly R would have been close to nine months old at the time of the parties return to Australia in November of 2004. It may be that when they were living in the household the Mother was continuing to breastfeed and was smoking but the evidence on this aspect is unclear.

Ms N’s Evidence

Ms N deposes in paragraphs 13 and 14 of her evidence:
“13.On two or more occasions [the mother] discussed her relationship with [the father] with me on an intimate level. During these conversations she mentioned that her relationship with [the father] was not always ideally happy but also at such times stated categorically that she firmly intended that she would remain with [the father] at least until the children were grown. Never in those conversations did she say or suggest in any way that [the father] was abusive to her. Never in those conversations did she suggest that [the father] was anything other than a great father. Indeed that is one reason why she suggested she would stay until the children were all grown up.
14.At no time during the period that [Mr O] and I lived with [the mother], [the father] and the children in their house or at all did I see signs that [the father] had physically or mentally abused [the mother] or the children in any way.”
The evidence of Ms N was not challenged as she was not required for cross examination. There is evidence from the Mother that she was in fear of revealing the abuse she sustained in case the Father heard about it and sought retribution as he had threatened her in the past.

Mr S’s Evidence

Mr S is a sports instructor who has mentored the Father over the years. He first met the Father in 1996. He is a character witness only but in that capacity he speaks highly of the Father’s ability to interact with people. At paragraphs 8, 9 and 10 he says:
“8.During the years I have known [the father] I have always perceived him to be a gentlemen. I took him on as an assistant instructor at the Academy in or about 1996 and for a period of some 14 years (less one year when he was overseas) I have observed his interaction with his students.
9.He has a strong empathy with people; he is able to motivate others; he has always effectively communicated the philosophy and ethics of my [sports] program. He is likeable, gentle, sympathetic, empathetic and confident.
10.At no time did I ever detect any indication of aggressiveness in [the father]
…”
The Father’s evidence is that he is highly skilled at this sport.

Applicant Father’s Evidence

Applicant Father’s Affidavit Filed 6 November 2008

In this affidavit the paragraph numbering is out of sequence and extremely confusing.
On pages 3 and 4 of the affidavit the Father makes observations about the year 2000 when cohabitation commenced:
“15.At this time I admit that I only occasionally smoking (sic) marihuana, though not to any great extent. I admit that there was a period that I continued to smoke marihuana when our youngest child was born but then I ceased smoking marihuana in entirety and I have now not smoked at all for a number of years.
17.However I did not ever often drink and in fact I have never used alcohol to excess. I would occasionally have a beer with friends but the Australian drinking culture is alien to me and I have never participated in it to the extent of having a drink every day, or indeed, any more than once in a fortnight.
18.I say that [the mother] and I had a relatively strong relationship at this time (the year 2000). We had occasional disagreements but nothing more than the usual couple. Our disagreements were over trivial household matters, but [the mother] also took issue with the difficulty I was experiencing at the time retaining a job for longer than a few months at a time.
19.Mission Australia, an Australian government agency, counselled me that my employment issues could be resolved if I were to obtain further training and they placed me in an IT course. I then obtained a job [in the building industry] and I left the IT course to take up that employment. I continued working [in the building industry] until [the mother] and I went to Ireland in 2003.”
The Father details in this affidavit how he was subjected to racial abuse in Ireland on his first visit there in 2004. He says this experience has led to him being unwilling to ever travel to Ireland again.
He denies ever being physically violent to the Mother or the children at any time.
Immediately prior to the Mother’s departure to Ireland with the children in December 2006 the maternal grandmother had forwarded cash (by Western Union) to the Father and to the Mother for the Father’s use. Her evidence was this money was demanded by the Father before he would give his permission for the Mother to visit her dying grandmother.
The Father’s version is set out at page 8 of his affidavit:
“36.In the meantime as a consolation of my inability to travel with the children, especially considering it was over the Christmas period, [the mother’s] mother gave us an early Christmas present of being a present of cash to upgrade our car.
37. Prior to her departure we made payments of all our expenses for the three and a half week period that she would be gone as the mother had access to the Internet to make such payments from our joint money but I had not yet mastered Internet banking.”
At paragraph 42 when discussing the time when the Mother announced she would not be returning the children the Father deposes to the telephone communication he had with the children:
“42.Since the scheduled 8 January 2007 return date, I initially made several telephone contacts to [the mother] in Ireland and had pleaded for her and the children to return to Australia. [The mother] did not respond to those pleas and did not engage with me on the topic of the return of the children. During this period, I did telephone every day and I did beg [the mother] to come home with the children. I persistently spoke of the effect on the children and I urged on [the mother] the effect her actions on the children, on herself, on me and on us as a family. I did incidentally and among many other things – but never include threats – speak of the effect on me in terms of losing the only family I have even (sic) genuinely have. It was a distressing time to me.”
On page 10 in the second paragraph the Father deposes to his financial situation when the Mother did not return.
“In 2006, [the mother] and I had taken out a $40,000 loan in both names for the purchase of a car and home furniture; which she has now left me totally responsible. I have asked her to take some responsibility for this loan however to date she has refused. I have also have (sic) a $1,000 Australian in telephone expense incurred in an attempt to make contact with my children.”
On page 11 in the final paragraph under the heading “The Mother’s Allegations About Me” the Father says:
“In the Irish proceedings the Mother makes a lot of allegations about me which I say are simply not true. The Mother has fabricated these allegations in an attempt to remain in Ireland under the Hague Convention’s “grave risk” test. However in brief to address each of these issues in anticipation that the Mother will raise them in any case:
a.I have never used heroin. I have never told the Mother that I was taking heroin;
b.I did live in two shelters after being removed from my mother’s care when I was of young age;
c.I was never possessive or controlling during our relationship;
d.I am not a violent person and have not acted with violence or threats towards [the mother] ever;
e.I have never carried a gun;
f.I have never habitually carried a knife;
g.I did not keep a gun in the house when we were living at [G] or any other time;
h.I have never owned a gun.”

Father’s Affidavit Filed 9 June 2009

This affidavit summarises his time spent with his children since their return to Australia. Consent orders had been made on 23 March 2009 for the Father to spend time with his children at a Contact Centre for two hours a fortnight. The first visit was on the 5 April 2009. It was agreed that the first visit would be for a period of one hour.
The Father’s account of the visit is in the following terms:
“When the children first arrived they appeared to be a little bit nervous on the new environment; however, after a few minutes they totally relaxed and we talked and played together, we played board games and played on the swings outside. They appeared to have a lot of fun and said they did not want to leave at the end of the hour. However during the visit the children referred to me as “[my first name, L]”. The children have never called me by my first name before. The children also asked to play pool and when we did they told me that their “Daddy” had taught them to play pool. I did not question the children about this as I did not want to upset them or make their visit uncomfortable.”
The visit a fortnight later only lasted for some five minutes.
For the third visit the Father says (paragraph 9) that he was ten minutes or so late. The letter from his solicitors annexed to this affidavit being a letter dated

28 May 2009 indicates he was fifteen minutes late. The difference is not great if this version is accepted.
However exhibit 15 being the Contact Centre’s records would indicate that the Father had phoned at 8.40 am on that date to say he was going to be a little bit late. When asked how long he thought about ten past nine for contact at

9.15 am. At 9.15 am the Mother arrived with the children. At 9.15 am the Contact Centre staff rang the Father who stated he was on his way and would be about ten or fifteen minutes away.
At 9.35 am the Mother asked the boys if they wanted to wait and they both said, “no”. The Mother left the premises with the boys at 9.36 am. The Father did not attend until 9.40 am. Suffice it to say he says he saw the Mother departing with the children as he arrived.
Given the Contact Centre’s records his statement is likely to be accurate.
The third visit was scheduled for the 17 May 2009. At paragraph 10 he describes the visit in the following terms:
“10.The children and I played together on the swings and watched a movie. At this visit the children started asking me about their toys in Australia and they said they remembered the friends, dogs (including the dogs’ names) and the family car. The children asked when they could come and see their dogs and the car.”
The fifth visit occurred on the 31 May 2009. The children refused to stay at the Centre and said they wanted to go to Ireland. The staff member from the Contact Centre indicated there was little point in the Centre being involved in supervising further visits in view of the children’s attitude.

Father’s Trial Affidavit Filed 25 May 2010

At paragraph 47 of this affidavit the Father says that he went to Africa for approximately three months. The father says originally it was planned for one month but as he and T were having such a good time they stayed longer. He offers to show a copy of his passport which demonstrates same. No passport was ever produced. I am unable to make any finding other than to observe that the length of stay was not raised as an issue. In one of her affidavits I recall the Mother says it was for ten weeks.
As at late 2006 R was at a day care centre and both parents were working. The Father annexes day centre records noting many positive comments about the child’s behaviour. T was attending a Catholic school. The Father annexes the report cards from this school. He summarises the position at paragraph 87:
“87.Reports regarding both the boys demonstrate that they were nothing but well adjusted and happy children whilst they lived in Australia before the Mother removed them to Ireland. Both were settled in their school or day care regimes.”
At paragraph 89 he makes reference to annexure 5 which is the intake form for the child care centre which the Mother completed. The Father notes question 13 on the form:
“Do I have any worries or fears?”
and the Mother has written “no”.
In paragraphs 203 to 212 the Father details his account of a meeting with the children supervised by Ms B the Family Consultant who was conducting interviews for the preparation of the Family Report. For reasons he sets out in his material the Father missed the first two scheduled appointments. He expresses the view that the missed visits impacted adversely on Ms B’s assessment of him. Ms B denies this was the case and I accept her assurance in that regard.
At paragraph 207 the Father says of the period of about ten minutes he spent with the children:
“207.During my appointment with the children on this occasion I spent about ten minutes with them. The children I could see were a little nervous, especially [T]. [R] was a lot more comfortable and was having a laugh and some fun. Both of them said to me, “When are you coming to the Contact Centre?” I explained to them that it wasn’t happening at the moment. They said that they wanted to go back to the Contact Centre and asked me to bring them some toys.”
At paragraph 220 the Father records he is currently not working but restarting an import/export business. When cross examined about this enterprise the Father was able to offer very little information indeed as to any arrangements that he had put in place to secure a regular income.
In the latter part of the affidavit the Father responds to the numerous particular allegations the Mother has made against him, in each instance denying he engaged in any such conduct. He refers to an affidavit where the Mother describes herself as having become, “blank and numb with mental and physical pain”. The Father denies that the Mother has ever exhibited signs of blankness or numbness.
I have to record from my observation of the Mother during the course of the hearing that she did appear to display a distracted, numb, blank look, throughout the three day hearing.
At paragraph 295 the Father makes reference to the fact that the maternal grandmother paid for the fares for T and himself to travel to Africa. The Mother says that it was a pre-condition to spending a year in Ireland that this be so. The Father denies that this was the case.

Evidence In The Respondent Mother’s Case

Witnesses

The Mother relied on three affidavits filed 30 October 2008, 11 June 2009 and 11 May 2010 (the trial affidavit). In addition she called evidence from the following witnesses:
·    The maternal grandmother – her mother.
·    Ms TO – a friend from school days.
·    Mr A – her current partner.
·    Ms Y – a family friend.
·    Mr BR – a clinical psychologist practising in Ireland who prepared a five page report annexed to his affidavit of the 13 May 2010. Mr BR was not required for cross examination.
As with the Father’s case I propose to consider the evidence of the Mother’s witnesses and make brief comment thereon before examining the Mother’s affidavit and oral evidence.

The Maternal Grandmother

The Mother was born in Australia. It would seem that the maternal grandmother remained in Australia from 1984 until 2001. In her affidavit she makes serious allegations about the Father’s behaviour.
The Father and his witnesses Mr O and Ms N say that during her pregnancies the Mother continued to consume alcohol and smoke cigarettes. The Mother denies this was the case and in this regard her evidence is corroborated by her mother. At paragraph 8 of her affidavit the maternal grandmother, concerning the period 2000 to 2001; deposes:
“8.During this period I observed [the father] to be very controlling such that [the father] restricted what [the mother] was able to do without first receiving his permission. An example of this is [the father] would not allow [the mother] to see certain people if he did not want her to. [The mother] had a group of friends, who she had been friends with for a number of years. [The father] did not like them so he did not allow [the mother] to see them.”
Between July 2001 and September of that year the Father was facing drug charges. The maternal grandmother paid his legal fees. In September 2001 when T was only six months old the maternal grandmother returned to Ireland for a period before returning to Australia in June of the following year. At that time she lived with the parties until September 2002 when she once again returned to Ireland.
Her evidence is that during that period her daughter was working but T was placed in day care even though the Father stayed at home.
At paragraph 16 of her affidavit she deposes to the Father showing her his gun in July 2002. She says that in 2006 she was once again living with the family in January of that year. At that time the Father told her he no longer had the gun. She knew where the keys to the safe were and prior to being told this by the Father she had opened the safe and saw the gun was still there.
She corroborates her daughter’s evidence as to the Father’s aggressive, controlling and abusive behaviour. She said she observed this behaviour both whilst staying with the family in Australia and also while the parties lived in her home in Ireland in the period of late 2003 until November 2004.
At paragraph 34 she deposes that in the period of late 2005 early 2006 whilst she was living with the parties Mr O only visited on about three occasions.
I accept that it is possible that Mr O visited the home on occasions when she was not present.
At paragraph 59 she says she had to send the Father money before he would allow the Mother and the children to travel to Ireland in December 2006. I have previously quoted the Father’s account of this.
Exhibits 16 and 17 are the Western Union documents of September 2007 detailing the moneys forwarded for air fares and for the cash payment.
The Father’s evidence was that the Mother and himself had borrowed $40,000 in either 2005 or 2006 for a car and furniture and yet his evidence is that the maternal grandmother had forwarded this cash as a Christmas gift to allow him to upgrade the car.
At paragraph 235 of his trial affidavit the Father deposed:
“235.Her mother had been in the habit of supplying alcohol and marihuana to [the mother] from an early age and it was only through [the mother] that I became acquainted with it. Up until the time [the mother] and I began dating and became a couple [the mother] had been in therapy as a result of her alcohol abuse problems and to address anger management issues.”
Given the level of conflict in the evidence on factual issues I fully expected that these allegations would be challenged. The Mother accepted that her mother allowed her brother and herself to drink alcohol and consume marihuana in her home. Her attitude appears to be a very tolerant one towards her children but in her oral evidence her reasoning was that if she did not allow that to happen they would be consuming alcohol and other drugs in a less safe environment.
When the maternal grandmother first gave her evidence, she was not accepting of the fact that she knew the mother smoked marihuana. The situation developed where she was drawing a distinction between knowing that her daughter was smoking marihuana and actually observing it. She said she knew her daughter was smoking cannabis with her brother in the brother’s bedroom with the door closed.
I am extremely sceptical of the Father’s assertion that it was only through the mother that he became acquainted with marihuana. The Royal Brisbane Hospital records would indicate that the Father as at 17 March 1999 had said that he had been consuming cannabis every three weeks. The parties only started dating as at July 1999 according to the case outline document.

Ms TO’s Evidence

This witness had given birth a few days prior to the hearing. On the day she gave her evidence she had been discharged from the hospital but she said she had been ordered to rest. I have no reason to doubt she had been so advised by her doctor. As she was unable to attend Court to give evidence I ruled that her evidence could be given by way of telephone link up.
She was in the same class at school with the parties. She knows the children and says she has been a close friend of the Mother’s since they first met. She also says she has been in regular contact with her and the Mother’s family over the years. She talks to the Mother nearly every day and sees her and her family about three to four times a week.
She corroborates the Mother’s account of witnessing acts of violence.
At paragraph 8 she says that on an occasion in June 2003 she witnessed the Father had, “both his hands around [the mother’s] neck”. The father had pinned her up against the wall and her feet were no longer touching the ground.
At paragraph 11 she deposes to witnessing severe bruising on the Mother’s body following the return from Ireland in November 2004.
She says (paragraph 13) that the Father on one occasion showed her his hand gun and informed her it was loaded.

Mr A’s Evidence

Mr A is the Mother’s partner. They have been in a relationship since April 2007. He says he has a strong bond with both children.
He recalls (paragraph 18) that in June 2007 R told him that his father had a gun.
At paragraph 43 of his affidavit he recounts that after the second visit at the Contact Centre, T appeared upset and began to cry and said, “why did he lie [Mr A], why did he lie?” “I remember what he did, he hit me with the belt now, [L] lied and everyone will think I am a liar”.

Ms Y’s Evidence

This witness also met the parties at school. She has been in regular contact with the Mother since 1997.
At paragraph 11 of her affidavit she deposes to the fact that on an occasion in 2003 she attended the parties’ home for a barbeque and she witnessed the Father grab the Mother, hold her down and threaten her. He made demeaning comments about the Mother and said that he would, “kill her”.
This witness deposes to overhearing the Father when at school saying he had guns and numchucks in his backpack.
There is an interesting conflict in the evidence in that she says she stayed with the parties for a month whilst they were in Ireland in 2004. At paragraph 245 of his affidavit the Father says that he did not drive a motor vehicle in Ireland and thereby challenges Ms Y’s account of an incident involving the children when he was said to be driving them. He obtained his first motor vehicle licence in Brisbane in or about 2006. I propose to make observations on this aspect later in these reasons.
I have no record that this witness was required for cross examination. Clearly the witness’ affidavit was relied on in the Mother’s case outline. I have treated the witness’ evidence on the basis that she was not required for cross examination.
There was no request at the time of closing of the Mother’s case that she be made available for cross examination.

Mr BR’s Evidence

Mr BR’s report involves his assessment of the Mother commencing with the first consultation in February 2007.
The Father made his application to the High Court of Ireland in July 2007.
It may be that there were solicitors letters forwarded to the Mother foreshadowing the institution of such proceedings. The evidence is silent on this aspect.
The Father’s case is that the Mother fabricated the allegations after she became aware of the institution of the legal proceedings for the return of the children.
The evidence would indicate that up until about April of 2007 the Father was still seeking to persuade the Mother to return to Australia with the children. In any event I am faced with the fact that at a date in February 2007 she was referred to Mr BR by a solicitor. It may well be that the solicitor anticipated an application under the Hague Convention.
I propose to consider Mr BR’s report in the context of the other expert reports.

Mother’s Affidavit

The first affidavit of the Mother was annexed to an affidavit of her solicitor filed on 30 October 2008. This is the affidavit sworn on the 10 October 2007 and relied on in the Irish High Court proceedings. In that document the Mother says that in her youth she faced many personal problems and felt lost in herself. At paragraph 10 she describes being born into a family where she was exposed to both domestic violence and alcoholism and was subjected to sexual abuse in her early years. She adds:
“I grew to become very self conscious and suffered depression from an early age. I say that by the age of 12, I myself turned to alcohol. I say that I lost my best friend at age 14 to suicide and then became uncontrollable and dependent on alcohol, as I was unable to deal with the problems I had faced. I say that when I started to date the Applicant I was in a dependent and vulnerable situation and grieving the loss of my best friend. I say that the Applicant was a popular peer and when he showed a liking in me I was overwhelmed, as no one had ever shown such an interest in me. I say that as a result of this attention, I became dependent on him and wanted to help him.”
At paragraph 13 the Mother describes her relationship with the Father in the following terms:
“I say that my relationship with the Applicant was unhealthy. I say that it was psychologically harmful and very stressful on me. I say and recognise now, that all of these factors should have prevented me from continuing my relationship with the Applicant, but I say that I found I needed the Applicant’s constant attention and yearned to be needed, since I had never known that feeling in my younger life. I say that I was often lacking positive guidance and influence in my teenage life and was on occasions left to make my own decisions based on my own judgment at my own discretion.”
At paragraph 17 and in other passages in her affidavit she deposes to the Father often taking heroin, smoking marihuana and using other drugs throughout the relationship.
She gives details of the Father engaging in controlling behaviour such as refusing to allow her to have a key to the family home and keeping her bank card with him at all times and changing the pin number of it regularly.
In paragraph 19 she deposes to the Father addressing her in particularly derogatory terms and encouraging the boys to repeat what he was saying.
At paragraph 28 the Mother says that after the birth of T she went back to school when he was three months old and attended school three days a week in order to finish her leaving certificate. She said she completed her leaving certificate in December of that year and went on to study at college in February 2002. She finished college studies in June 2002 and started an office administration traineeship in July 2002 at a services centre. After completing the traineeship in 2003 she became the office manager of that centre. She maintained this position until the family departed for Ireland in October 2003.
At paragraph 44 of her first affidavit she deposes:
“I say and believe that the Applicant behaved this way regularly in day to day life so as to get his own way. Although I say, he would also do it to get more outrageous things. The most prominent occasions were, as follows, in 2002 when he wanted a Holden VK Commodore motor car – the amount for this car was $1,800. I say that he demanded that he wanted this car, he had no licence or learner driver’s licence and was unemployed. I say that he would yell at this deponent, push me around and verbally insult me for weeks about everything and anything. I say that made me feel so guilty that he didn’t have a car that I finally gave in when I couldn’t stand his continual foul behaviour and eventually convinced my mother to buy the car for the Applicant. Further I say and believe that in 2005 the Applicant sold the car my mother had bought for him the Holden VK Commodore as he wanted to take out a personal loan from the bank to purchase a new sport or luxury car. I say that I did not want to take out a personal loan, as the repayments on the loan would put a major restriction on our financial situation but I say that the Applicant behaved the same way as usual and made me feel so guilty making me feel as though I had to take out the loan or he would never be happy. I say that the Applicant came home in January 2005 with a Volvo S80 T6 motor car that he paid approximately $25,000 for. I say that I did not take any part in choosing the car. I say that making the Applicant as happy as possible, agreeing with all of his demands and ensuring I made his life as easy as possible was the only way I would be able to maintain some sense of happiness for the children and I.”
In paragraphs 48 and 49 of her affidavit she deposes to the fact that the Father was unemployed from the time of their arrival back in Australia in November 2005 until February 2005.
In paragraph 53 she gives an account of attending a parent/teacher interview in 2005 with T’s pre-school centre teacher. The Father she says stayed in the car and began to beep the horn repeatedly after about ten minutes. She was told to take the boys out of the car and take them back in with her. He then drove off.
She gives her account of the terms and conditions imposed upon her prior to being allowed to leave for Ireland in late 2006. She says that the Father allowed her to go for three and a half weeks but this permission was only given after a demand was made for payment of $2,000.
She says at paragraph 61 that once she arrived in Ireland away from the Father’s influence the children’s behaviour changed significantly for the better.
On the 25 January 2007 the Father informed her that he was behind in his rent and she forwarded him $500 to assist with the payment of his rent. A short time thereafter he was evicted from the premises occupied in Brisbane.

Mother’s Affidavit Filed 11 June 2009

In her second affidavit the Mother details her version of the Contact Centre visits which occurred in April and May of 2009.

Mother’s Trial Affidavit Filed 11 May 2010

This affidavit is largely a repeat of most of the allegations contained in the original affidavit.

Expert Reports

I intend to consider the evidence of the various experts on a chronological basis.
Mr BR is a clinical psychologist who has prepared a report dated 5 October 2007. He notes that the Mother first presented in February 2007. His comments on the motivation for the Mother to make the move she did to leave the relationship at the time that she did are to be found in the penultimate paragraph on page 2:
“She volunteered that on her holiday she had come to enjoy not “being tortured every evening after work” and not “being bullied every day” by [the father].”
Under the subheading “Treatment” at the final paragraph of page 3 he notes:
“To date she has attended for appointments on eleven occasions. For the majority of her attendances she has been slow to engage in the therapeutic process. Early disclosures of the alleged abuses in her relationship were related in a matter of fact fashion. When it was expressed to her that she appeared to have been the victim of a seriously abusive situation she gave the impression that she didn’t really perceive what had happened to her and her sons as being a serious matter as was being suggested. Such minimisation of the impact of abuse is not only extremely common in victims of abuse, but is also often diagnostic.”
At page 4 of the report Mr BR notes:
“Such stoic resignation in the face of an unavoidable stressor has been well documented in the psychological literature and is referred to as “learned helplessness” (Seligman 1975). Her learned helplessness most likely developed very early in her life against the background of a chaotic, unpredictable and allegedly abusive upbringing. Indeed the impression very much came across that there was little in the way of stability or appropriate guidance available to her in her upbringing. Similarly there appears to have been nothing in her childhood that would have given her the impression that it was her right to leave an abusive relationship. Indeed, on the contrary, her childhood experiences would have normalised abusive behaviour to the extent that she would not have perceived it as unusual.”
In the penultimate paragraph of the report under the heading “Summary and conclusions” Mr BR notes:
“Her clinical presentation is entirely consistent with someone who has been abused in the way she has described. The manner in which she presented her account of her experiences in her relationship with [the father], the type of incidents related, the manner in which these incidents are said to have taken place and her reactions to them strongly suggest that her account is highly credible.”

Witnesses Relied On By The Independent Children’s Lawyer

The Independent Children’s Lawyer relied on a report from Dr G and called evidence from the Family Consultant Ms B and a clinical psychologist Ms W who had been providing therapy to the two boys throughout the first half of this year.

Report Of Dr G

Dr G is a psychiatrist in private practice in Brisbane. Her report is dated the 14 April 2009. The report was based on a one hour interview with each of the parties on the 7 April 2009. The Father gave his date of birth to Dr G as the 19 June 1984.
At page 2 of her report under the heading “Mother’s account” Dr G notes:
“She said that she is very frightened of him and as she was talking about him became agitated and tremulous. She said that talking of him made it worse but quickly got control of herself and said that she fears that he would hurt the children and also fears that he will kill her.”
The Mother told Dr G how she had ceased smoking and drinking when she found out she was pregnant with T at nine weeks.
Interestingly in relation to the second child Dr G records:
“[R’s] pregnancy was not planned. She found out when she was 22 weeks that she was pregnant. They had planned to move to Ireland a couple of weeks afterwards.”
[Underlining added]
The parties left Australia in about October 2003. R was born in February 2004.
If the Mother’s account to Dr G is correct she only knew she was pregnant a few weeks before they undertook the travel.
The Father in his affidavit evidence says the Mother was at 20 weeks of her pregnancy when he found out.
Both Mr O and Ms N were critical of the Mother for smoking and drinking during her pregnancies.
There is no evidence that there was any relationship between these witnesses and the Mother at the time of the first pregnancy.
It appears that at best there was only a brief window of opportunity for them to observe the Mother after it became known she was pregnant with her second child.
The Mother’s evidence of course is that she did not smoke or drink during either pregnancy.
At page 5 of the report Dr G gives the following description of the Mother:
“At interview she was pleasant, co-operative, appeared to be of superior intelligence, was well groomed, told a clear sequential history, was occasionally agitated. Her speech was normal in content and rate; there was no disorder of thought, mood or perception. She does get symptoms of post-traumatic stress disorder. She also has a significant history of alcoholism as a teenager and of sexual abuse as a child. The sexual abuse could have caused post-traumatic stress disorder but her symptoms relate to her allegations of physical and emotional abuse by [the father]. Whether or not she has a diagnosis depends upon the Court’s finding about whether she sustained a significant trauma in her relationship with [the father].”
When interviewing the Father Dr G records (page 5):
“He said that [the mother] changed when she went to Ireland. He said that he had actually sent her overseas and suggested she take the children with her and never thought that she would withhold them. It came as a shock when she did not return.”
The use of the choice of words by the Father is interesting when he informs

Dr G:
“He had actually sent her overseas and suggested she take the children with her - - -”
The Mother was wanting to visit her dying grandmother. The Mother makes it clear that she begged and pleaded with the Father to be allowed to travel. In a normal relationship one would expect a partner not to require the permission of the other partner to visit a dying relative whether overseas or not.
I find the choice of words by the Father to be, to a degree, indicative of a controlling attitude towards the Mother.
Dr G records the Father giving the following history:
“They met in high school in year 8 and commenced their relationship in 1998, cohabitating in 1999. They lived together briefly for some time before she got pregnant. The pregnancy was not planned. He said the families sat down and talked. He was ambivalent, was 18 at the time. As regards to the second pregnancy he said he found out after six months. She had stated that some women only have periods once a year and he doesn’t believe that she knew she was pregnant.”
It seems likely that the Father in giving this timeline to Dr G was taking his date of birth as 1982 if he was 18 at the time she was pregnant. The Mother was 16 years of age at the time of T’s birth. If Dr G adverted to this inconsistency in the dates she does not comment on it.
In the final paragraph on page 5 the Father reports that his father was a doctor in the Red Cross. He was later to tell Ms B in the preparation of the first Family Report that his father was a soldier.
When this was raised with the Father in the course of his evidence, he seemed to be of the view that the answers were reconcilable. I beg to differ.
In relation to his drug use at page 6 of the report, Dr G records the Father saying that:
“From year 10 onwards he smoked cannabis. He was somewhat cagey about the amounts but tended to minimise it. He said that he smoked until [T] was born and [the mother] did too. He specifically denied amphetamine or heroin.”
In the final paragraph on page 6 the Father informs Dr G:
“He left school half way through year 11. He was expelled because he was a trouble maker and caused fights. He said he used to help other students obtain cannabis and on one occasion got a replica gun for a girl. He said that he had arranged the transaction out of his school uniform and outside the school but she took it to a school camp and he was expelled because of that. - - -
His mother was claiming his Centrelink money and that is why he tried to sell the gun. He said he was not charged but did have a charge of possession whilst he was a juvenile. He denied any adult criminal history. However he said he was intercepted by the police carrying numchuks (sic) which he had used in a martial arts class.”
On the final page of her report Dr G describes the Father in the following terms:
“At interview he was pleasant, co-operative, very relaxed, neatly dressed with dreadlocks. He gives a history of significant childhood trauma with some features of oppositional defiant disorder and depression when he came to Australia. At present he does not exhibit psychiatric abnormality.”
In the final paragraph of her report under the heading “Opinion” Dr G notes:
“In my view the interests of the children would be best served by the parents living geographically close, both undergoing parenting programs, both undergoing random urine testing for drugs and also undergoing counselling for separated parents.”
Dr G was not required for cross examination.
In view of the history of events that have occurred and the nature of the allegations I am not prepared to accept Dr G’s opinion that the parents should live geographically close. I am prepared to find that the Mother is traumatised by contact with the Father and this condition is likely to exacerbate if she was aware the Father lived in close proximity. Counsel for the Father submitted that the Mother had not put forward a case based on the principle enunciated in the decision of R & C [1993] FamCA 62. Whilst I accept that the case was not presented in this fashion it is apparent from the reports of Ms W and Ms B that living in close proximity to each other would from the Mother’s perspective not be beneficial to her emotional wellbeing. She has kept her address and employment details secret. She has gone to great lengths to not reveal the school attended by the children. She gives accounts of being afraid of encountering the Father if she travels to other suburbs.

Reports of Ms B

Ms B prepared three reports, an assessment report in January 2009 shortly after the Mother’s return from Ireland. Her second report is dated 5 October 2009 and the third is dated 7 June 2010.

Assessment Report

When she interviewed T then seven years of age (page 2 of the report) T informed her that he could remember his father yelling angry words at him and hitting him with a belt on his bottom. He stated he used to, “get very scared”. He reported that his mother, “cries a lot because she is sad and scared of [L]”.
On page 3 of the report when describing her interview with the Father she notes that he was concerned that the Mother had unduly influenced the children in what she had been telling the boys.
At page 6 of this initial assessment Ms B noted:
“If safety issues can be addressed, it would be my opinion that it will be in [the children’s] best interests to be afforded the opportunity to be reacquainted with their father and enjoy a safe and secure relationship with him.”

Family Report Dated 5 October 2009

In the many years I have been adjudicating in children’s matters I have rarely seen a Family Consultant write a report in such strong terms as to be found in this report. At page 10 of the report she notes of the Mother:
“At the initial intake and assessment interview in January [the mother’s] presentation was disorganised, her recall of alleged violent incidents was scattered and confusing. Her affect when discussing her relationship with [the father] displayed a high level of arousal and hyper vigilance, which is not uncommon among individuals who are recalling traumatic and/or life threatening events.”
At paragraph 15 when recounting events of her older child being physically punished by his father the report writer records:
“[The mother] sobbed while she recounted these alleged events and it was apparent that these memories are still very painful and traumatic for her.”
At paragraph 27 she records the Father’s position that the Mother is unduly influencing the children. She quotes him as saying:
“[The mother] is brainwashing the boys - - - it is quite obvious, the whole Court knows what she is doing. The Judge talked to her for half an hour. Even the Contact Centre said that’s what she is doing - - - I had hoped that she would stop this – but this is just foolish.”
The father repeated the denials he had made to Ms B in January and to Dr G in April that there had ever been any incident of violence towards the Mother or the children during the course of the relationship other than isolated instances initiated by the Mother.
Ms B noted the manner in which T was able to corroborate his mother’s version. At paragraph 32 she notes:
“32.He ([T]) reported that he was very scared of his father and in the interview in August spoke of his father pointing a gun at his mother. [T] stated that his father often did this “but it wasn’t a real gun - - - it was one that you put medicine in - - - he did it to scare Mum”.”
The report writer continued:
“I initially thought that [T] might have been describing a syringe (due to the reference to the medicine), however when I questioned [the mother] about [T’s] comments she stated that the gun [T] referred to was indeed a real gun.
34.[The mother] further stated that the medicine (which was what [the father] allegedly called it) were the bullets that [the father] would put in the gun. [The mother] recounted that “the medicine was kept in a box on top of a cupboard” and that when [the father] was angry with her and wanted to teach her a lesson he would ask [T] to go get “Mum’s medicine”. [The mother] stated that she was deeply shocked and dismayed that [T] had clear memories of this.”
At paragraph 36 when interviewing R (in the absence of his father) the report writer notes:
“36.In August, [R] reported that his father had promised to bring him some of his toys, “but he didn’t bring them, [L] lied, he is a liar”. [R] was asked, “who says [L] is a liar”? He immediately replied without hesitation, “I do”.
I note that R was aged five at the time in August when this interaction took place.
At paragraphs 37 to 41 Ms B describes the interaction of the children with their father in the observation room at the counselling section of the Court. She describes (at paragraphs 38 and 39) the scene as follows:
“38.[R] was excited about going into the observation room as he liked the toys in there. When the door opened and [the children] saw their father, they stopped abruptly and I had to gently encourage them to enter into the room. They both immediately huddled together on a chair closest to me.
39.[T] kept looking at me and he had a look of fear on his face. He did not initiate any conversation with [the father] but did answer any questions directed at him from his father, mainly with one word answers. [R] was a little more chatty and asked for his Spiderman toys to be returned to him.”
At paragraph 43 under the heading “Evaluation” the report writer notes:
“43.[The mother] has described in great detail some of the violence and abuse [the father] has allegedly perpetrated against her and also [T]. If her allegations are true, her accounts indicate that her relationship with [the father] would have been a frightening, unnerving, unpredictable and psychologically cruel experience. Trauma specialist, Judith Herman describes the circumstance of women who are trying to survive a physically and psychologically abusive relationship as like being trapped in a prison with no bars.”
At paragraph 45 the report writer notes:
“45.[The mother’s] allegations of abuse and violence, her deep fears for hers and her children’s safety while in a relationship with [the father] are consistent with experiences described by many women who have escaped violent relationships. It is my opinion that [the mother’s] affect during the three occasions that I interviewed her are consistent with an individual who has experienced traumatic events.”
At paragraph 56 she hypothesises:
“56.[The father’s] assertions could be correct, and one possible scenario is that [the mother] has indeed presented an elaborate story that falsely accuses [the father] of serious domestic violence in order to justify her fleeing to Ireland and prohibiting the children from developing an ongoing relationship with their father.”
I note that for the Court to accept this scenario put forward by the Father, a finding would have to be made that the Mother was a consummate script writer to create the consistent scenes, rich in detail, which she has. I only have to reflect on the scene where the bullets for the gun are referred to as “medicine”.
To accept the Father’s version that the Mother has systematically alienated the children from their Father would involve the Court finding she is also a consummate actress who is able to sob at will as well as cry in front of her children. Her acting is so convincing she has been able to dupe Mr BR, a clinical psychologist, and Ms B, an experienced social worker, into believing that her affect is one consistent with ongoing serious domestic violence.
If the Mother’s allegations are false, then the children likewise have to have been coached into reporting the matters that they do or they have been consistently exposed to adult talk which they have adopted. As I was reading the report at paragraph 36 when R was asked:
“Who says [L] is a liar?” The child replied, “I do”.
I speculated it might be expected that a five year old would slip up at that point and say, “Mummy said”, or words to that effect.
I accept there are some passages of evidence of the children sounding a false note during the interview experiences which could be indicative of coaching to which I will make reference in due course but I do not find them to be compelling examples.
Finally, at paragraphs 59 and 62 Ms B notes:
“59.Based on the information available to me and the observations I have made, it is my opinion that [the mother’s] and [T’s] accounts and affect during the assessment sessions strongly suggest that they have experienced and endured significant trauma and abuse. They have both consistently named [the father] as the perpetrator of the abuse they have experienced.
62.If the Mother’s assertions are true, I do not believe that there is any benefit for [the children] in seeing their father in the immediate future. If the Court finds that [the mother] and the children did experience and were exposed to violence, it would be my opinion that to encourage the children to spend more time with their father will be placing them at risk of further serious psychological and emotional harm. It is my opinion that [T] in particular requires the therapeutic assistance of a child psychologist who is experienced in dealing with children who have experienced persistent and pervasive abuse and trauma.”
Acting on this advice the Mother arranged through her general practitioner for a referral of her sons to a clinical psychologist, Ms W.

Ms W – Report Dated 4 May 2010

Ms W is a clinical psychologist practising in Brisbane. Annexed to her affidavit filed 25 May 2010 is her curriculum vitae and her report. She was awarded a Masters Qualifying Thesis at the University of Queensland, the equivalent of First Class Honours in 1971. Her curriculum vitae would indicate she is a highly qualified practitioner with extensive experience in her chosen field.
The children had been referred to Ms W by their general practitioner under a mental health care plan for therapy for mood and behaviour problems. Thereafter a report was commissioned by the Independent Children’s Lawyer. Up until 30 April 2010 she had seen the children on a total of nine occasions. There is a slight suggestion in some of her observations of the boys that they might have been coached or been influenced by views expressed in their mother’s household. In the final paragraph at page 5 of her report she notes:
“I asked [R] what had happened when he last saw his father. [R] started to respond and [T] stopped him saying, “don’t tell her anything or we will have to see him and stay in Australia”. He told [R] he should not have played with [the father]. [T] was adamant about not wanting to see his father. I had the impression [R] was less so, but was influenced by [T].”
In the second paragraph on page 6 she notes:
“[T] saw me taking notes and said to [R], “don’t say anything, she is writing it down and she’ll tell the Judge”. He then refused to talk about this any further. He later said that [R] was being naughty, “because he is angry”.
Balanced against this view I note in the penultimate paragraph on page 6 the report writer records:
“[T] then initiated the conversation where he indicated that he thought he was seeing me because he was bad or because he has a bad dad. He said his father is “bad” and “he hits me”. He said that [the father] had said [T] lied about [the father] hitting him. He said I didn’t lie. He said he is “scared of [the father]”.”
These statements by T are corroborative of statements to the Mother’s partner Mr A as set out in his affidavit and also recorded in Ms B’s report.
I accept there is some suggestion that the children know far more about the litigation process then they should but in the circumstances it would be difficult to maintain an environment where they would be completely unaware of events going on around them.
Under the heading “Opinion” at page 7 when reporting on her observations of T Ms W notes:
“His behaviour is consistent with that of a stressed, troubled child. His therapist in Ireland was treating him for post-traumatic stress disorder. In my opinion he needs continued extensive therapy to deal with his fears and his anger.”
On page 8 she notes:
“[T] has shown some improvement in mood and behaviour over the therapy sessions. However, it is evident throughout the play therapy sessions that the behaviour of both boys is not that of normal happy children. Their behaviour is consistent with that of stressed, angry, troubled children who do not have the language capacity to verbalise their feelings.”
Ms W in making her observations is critical of the unacceptable pressure the Court ordered process has placed on the children.
On the final page of her report she comments:
“While it is desirable for children to have access to their father, in my opinion forcing the children to spend time with their father while they are so vulnerable is counter productive and emotionally harmful to them.”

Report Of Ms B Dated 7 June 2010

Ms B carried out further interviews on 6 May this year. The boys observed their father waiting in the reception area. Ms B details her observations of the children and her discussions with them at that time.
Whilst she interviewed the Father’s partner at this time (paragraph 24) she did not interview Mr A. Whilst it would have been preferable had she done so, I am satisfied that nothing of any significance turns on this omission.
There is no mention by the boys or anyone else of Mr A’s involvement in the children’s lives other than as a positive influence. The only possible point of contention is there is some evidence that the boys refer to him as “Daddy” or “my father”.
This is often a tell tale signal that children have been alienated from their biological parent and encouraged to place the step-parent in this role. None of the experts has speculated on that situation in the present case.
I formed a positive view of Mr A. I have no reason to doubt the evidence of the Mother that they share a positive relationship together.
At paragraph 32 of her report Ms B observes:
“32.My opinions and comments in regard to [the mother’s] allegations of domestic violence and abuse allegedly perpetrated by [the father] have not changed and thus I respectfully recommend that the evaluation part of my previous report is re-read.”
At paragraphs 35 and 36 she notes:
“35.The hope and expected outcomes from those parental disputes that come through the Court system is dominated by a philosophy that encourages co-operative solutions where parents are encouraged to put their conflicts behind them and arrive at a co-operative arrangement that ensures that children are offered the opportunity to have a relationship with both parents. However, where domestic violence is alleged, and the safety of the primary carer and indeed the children may be under threat such co-operative and conciliatory arrangements may not be suitable/and or possible.
36.What can compounds (sic) this dilemma, is when there is little evidence to support a parent’s allegations of domestic violence, or where they are accused of using their allegations of domestic violence to unduly influence the children and turn them against the other parent, together with the alleged perpetrator denying or minimising the violence and abuse that has been alleged. These issues are not to be ignored, though recent research suggests that denial and minimisation of abuse by actual perpetrators are significantly more common than false or exaggerated allegations of spousal abuse by alleged victims.”
At paragraphs 39 and 40 she notes:
“39.Crucial to [the children’s] emotional and psychological healing will be the assurance that they will remain in the care of their mother and not be exposed to triggers that potentially perpetuate their trauma and/or re-traumatise them. It is, thus, my opinion that spending time with their father (even supervised) currently places the children at risk of continued psychological and emotional trauma, and therefore it is not in [T’s] or [R’s] best interests to spend any time with [the father] in the near future.
40.If the Court accepts my view, it is my opinion that positive consideration be given to [the mother] and the children relocating to Ireland where they will have the support of [the mother’s] mother and extended family. It is my opinion that relocation to Ireland will in the minds of the children move them to a place that they are familiar with, that in their minds will be physically and physiologically far enough away from the person who they perceive as a threat to their and their mother’s safety. It is my view that living with their mother in Ireland will often [the children] the best opportunity to recover and heal from the trauma that they have experienced.”
In her recommendations Ms B makes comments in line with the passages of her report previously quoted.

Assessment of Expert Reports

A Judge is not bound to accept expert evidence adduced in a case but he/she needs to deliver adequate reasons for rejecting such evidence. I exclude the situation where two experts with similar qualifications make conflicting recommendations.
In the matter of Newlands v Newlands [2007] 37 FamLR 103 the Full Court was dealing with an appeal against property and parenting orders. The Full Court said at paragraphs 98 to 100:
“98.The weight and importance to be attached to the evidence of a Family Consultant is subject to well established authority. Whilst ultimately the decision of what is in the best interests of a particular child is that of the trial Judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a Family Consultant require careful examination by the trial Judge (see N v N [2004] FamCA 706 and L v L [2002] FamCA 537.
99.In this case the trial Judge made orders in different terms to those recommended by the Family Consultant in circumstances where an existing arrangement which appeared to be working well for the children had been in place for approximately 16 months at the date of the hearing. The trial Judge failed to analyse the Family Consultant’s evidence and recommendations and give reasons why she proposed to reject her recommendations.
100.We are satisfied the trial Judge’s failure to examine and give reasons for her rejection of the Family Consultant’s evidence, constitutes an error.”
In N v N MLF 1615 of 2002 the Full Court (Kay, Warnick and O’Ryan JJ), the headnote reads: “Need for trial Judge to give adequate reasons when departing from established contact regime and recommendations of Court expert”.
There is a striking level of consistency in the observations made in the reports of Mr BR, Ms B and Ms W.
As previously quoted in Mr BR’s report under the subheading “Treatment” he observed such minimisation of the impact of abuse is not only extremely common in victims of abuse, but is also often diagnostic.
Later at page 4 he observed:
“Such stoic resignation in the face of an unavoidable stressor has been well documented in the psychological literature and is referred to as learned helplessness.”
In his report he opines that given the Mother’s abusive relationships in childhood this would have normalised abusive behaviour to the extent she would not have perceived it as unusual.
I note that the period of the second trip to Ireland was the first time she had been with both children away from the influence of the Father for any length of time.
On the first occasion the Father was with T for a period of time in Africa but the Mother had just given birth to the younger child.
On this occasion she had both children in her care. If the premise is made that the Mother’s account of the violence in the relationship is reasonably accurate it would not be surprising when the children were free from the stress and anxiety inherent in such a household they would display changed behaviour in a positive sense, once they were interacting with relatives and friends of their age in the new environment.
As previously quoted, at paragraph 45 of the first Family Report, Ms B notes:
“45.[The mother’s] allegations of abuse and violence, her deep fears for hers and her children’s safety while in a relationship with [the father] are consistent with experiences described by many women who have escaped violent relationships. It is my opinion that [the mother’s] affect during the three occasions that I interviewed her are consistent with an individual who has experienced traumatic events.”

Conflicting Evidence Of Employment Of The Children’s Paternal Grandfather

I have previously made reference to the inconsistency where the Father told

Dr G that his father had been a doctor in the Red Cross but told Ms B some months later that he was a soldier.
It is only a small point but in the whole context, a critical one. The employment of one’s father is something that one has a sense of belief in even if the father had died prior to the birth of the son.

Summary On Findings On The Evidence

The evidence to support a finding that the Mother’s allegations are largely credible is to be found in a number of sources:
·My finding that the Mother proved a more credible, more reliable historian then the Father on issues such as heroin use, alcohol consumption and possession of a hand gun.
·The fact that a considerable number of the Mother’s allegations are corroborated by three separate witnesses – the maternal grandmother, Ms TO and Ms Y. To accept the Father’s account of events I would have to disbelieve the evidence of these three witnesses. I am not prepared to do so. I have no reason to doubt their testimony.
·The fact that the Mother’s account of events is supported by the observations made by the three experts, Mr B, Ms B and Ms W.
In commenting on the Mother’s witnesses I observe that I was particularly impressed with the maternal grandmother. She has been very generous to the parties. At one point in time the Father was expected to send money to Africa for his adopted family. When he was unable to do so the maternal grandmother made payments on four or five occasions amounting on my recollection to about Euro 1,000. This is not the conduct of a bitter, dishonest woman.
In addition, the maternal grandmother made the following additional payments for the benefit of the parties:
·Paid the Father’s legal fees on criminal charges in 2001.
·Advanced about $1,800 to allow the Father to purchase a motor vehicle in 2002.
·Paid for the air fares for the parties to travel to Ireland in 2003.
·Paid for the Father’s air fares in the amount of Euro 900 to travel from Ireland to Africa with his son and in addition provided Euro 500 in spending money in 2004.
·In 2006 provided $2,000 to the Father to satisfy his demand for such payment in return for granting permission for the Mother to travel to Ireland.
·In addition, I note that in early 2007 the Mother forwarded an additional $500 to assist the Father with rental payments.
I had a transcript made of the maternal grandmother’s evidence.
In perusing that transcript I have noted that she was seemingly caught up in making concessions against her daughter’s interests that from a very young age she was not only smoking cannabis but was doing so with the knowledge and/or approval of her mother.
I thought her answers were initially qualified but when she appreciated that her daughter had made the concession, she gave a frank account of the situation.
Her general demeanour was that of an honest witness doing her level best to give accurate answers. When she was asked what did the gun look like she said (transcript page 7):
“- - - It was black. It was like one of those guns that you have to put the bullet thing underneath the handle. It was just like a gun.
Are you suggesting that there was a cartridge that was inserted in the gun; is that what you’re saying? --- Yes. Yes. Yes.
A magazine?---Okay.”
In the course of cross examination by Counsel for the Father (transcript page 15) it was put to her that she had fabricated evidence to support her daughter’s position in Court:
“- - - You have fabricated that so that you can support your daughter’s position in Court, haven’t you?---Oh, my God, no.
No?---No way.”
In giving this evidence I found the maternal grandmother to be particularly forceful and convincing.
It may be that the Father has a capacity to parent but on almost every level the evidence would indicate he has behaved irresponsibly. But one example is that after the Mother paid all of the upcoming accounts for the household prior to leaving for Ireland in December 2006 by the end of January in a phone call on the 25 January 2007 to the Mother he was requesting her to forward him $500 to cover rental payments. The Father was either working at that time in which case one would ask why he couldn’t be responsible for paying the rent himself or if he was unemployed why he had not made adequate provision out of benefits received to pay the rent. The Mother (exhibit 16) produced evidence from Western Union that on 30 January 2007 she forwarded Euro 314.4 to the Father to cover the rental payment. Notwithstanding the receipt of this payment within a short period of time the Father was evicted from the former matrimonial home.
There is evidence from the Mother and maternal grandmother that the Father would on most occasions not act in an abusive manner, particularly towards the children when others were present. This could explain why Mr O and Ms N did not witness controlling, abusive behaviour in the household.
The Mother’s fear of being found out complaining would equally explain her failure to disclose details of the abuse when having an “intimate” conversation with Ms N as detailed in her affidavit.

Consideration Of Factors Pursuant To Section 60CC

This section requires a Court to have regard to the primary considerations as set out in subparagraph (2) of the section together with the additional considerations as set out in subparagraph (3). The primary considerations are:
“How a court determines what is in the child’s best interests
Determining the child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
a.the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b.the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…”
This is a case that falls fairly and squarely to be determined under the terms of subparagraph (2)(b). It is a matter where the experts in Australia, being a psychologist and a social worker have strongly suggested that the Mother has been the victim of ongoing high level domestic violence as claimed by her. The children in turn have been traumatised by this conduct with the younger child likely to be traumatised more in an indirect sense by being influenced by his older brother’s behaviour.
I have made the necessary findings that on balance I prefer the account given by the Mother to that given by the Father. The Father’s presentation whilst giving his evidence was of a glib, superior individual who was both cool and unemotional.
I have no doubt that the Father loves his sons and would yearn for a relationship with them. The issue for the Court is how this could be managed whilst ensuring the children are protected as detailed in the report and evidence of Ms W.
In considering the section 60CC factors I do not have to dwell at any length on allegations made by the Father against the Mother of high level alcohol use, earlier drug use and such like. The Father’s proposals are for shared care. A reasonable inference can be drawn from this fact that he has no concerns but that the children would be well cared for in the Mother’s environment. The Mother makes the telling point that between April 2007 and April 2009 no cards, phone calls, gifts or birthday greetings were forwarded to the children.
The Mother makes reference to the Father’s criminal history as revealed in the Police records (exhibits 2 and 3).
There is a great deal of evidence from the Mother which in almost every sense reveals a picture of a controlling, demanding individual who had little empathy with his partner. There is evidence of the Mother and Ms TO that the Father would leave the home and not come back for days with no explanation given where he had been. This type of behaviour to my mind paints a consistent pattern of behaviour by the Father that he could do as he wished without regard to the feelings of his partner. The only puzzling aspect to the average person would be why the Mother would stay in such an abusive relationship for so long. The answer to that is to be found in the experts’ reports where they have commented on her abusive childhood.
Despite her abusive childhood, I accept that at the time of pregnancy of her first child she managed to turn her life around. She has undertaken further study and she has held down consistent employment.
Her clinical presentation is observed to be consistent with that of a victim of abuse. I am confident that the experts would have taken into account the childhood abuse sustained and have been able to differentiate between the two passages of the Mother’s life.

Consideration Of Case Law Principles

I have had regard to recent Full Court determinations on international relocations including McCall v Clark 41 FamLR 483 where the Full Court (Bryant CJ, Faulks DCJ and Boland J) reviewed the approach for consideration of parenting orders involving international relocation issues.
The important distinction in that case is that the Federal Magistrate at the primary hearing had found the presumption of equal shared parental responsibility applied.
It is a truism that all cases have to be determined on their individual facts. Other cases to which I have had reference include, McCall & Clark [2009] FamCAFC 92, Starr & Duggan [2009] FamCAFC 115 and Amador & Amador [2009] FamCAFC 196.
In the present matter the evidence would indicate there is no meaningful relationship between the Father and his children at this time. The observations of Ms B in her reports are but one instance of this fact. The observations of Ms W is another compelling example.
The opinions of the experts indicate for the children to have any sort of relationship with their father would require lengthy and intensive counselling with no prospect that the process would be successful. Ms W was unable to accurately forecast how long this would need to be undertaken.
The choice is stark. Either the children live with their mother in Ireland with little communication with their father or the Mother resides in Australia with the children, again with minimal communication with their father.
On the present state of the evidence, particularly the opinions of the experts, I could not even contemplate a reintroduction of supervised time.
One telling aspect in arriving at my determination is the lack of any contrition on the part of the Father and the lack of any sense of taking responsibility for his conduct. As noted previously, I have little confidence in accepting his account of events or any assurances he might give. I note the assurances he gave the High Court in Ireland that he would pay $150 a week to the Mother, but since her return in January 2009 has made not one such payment.
I find the Mother is not opposed in principle to the benefit of children having a relationship with each of their parents but her concerns for the safety of her children overrides her ability to foster a relationship with the Father for the foreseeable future.

Final Submissions

In the course of final submissions Counsel for the Mother contended his client’s evidence should be accepted, whilst Counsel for the Father submitted for reasons he advanced that his client’s testimony should be accepted.
The Independent Children’s Lawyer was critical of the testimony of the Mother and maternal grandmother but also critical of the Father as a witness. She cast doubt on the veracity of the Mother’s allegations by asking the rhetorical question why the Mother would allow the Father to take T to Africa for three months if she believed he could be at risk. I note the Father’s relatives in Africa had arranged for a nanny for T and the Mother did telephone every day to speak to her son.
I am inclined to accept the Mother’s evidence that the trip to Ireland was to put the Father in a new drug free environment. It was the Father’s demand, which she accepted, that he was to be funded to travel to Africa as a condition of the sojourn in Ireland.
I have perused exhibit 20 which is an article on “Age Determination in Refugee Children”. Whilst I found the article interesting I did not find it of any great relevance in this case. It is quite clear to my mind that the more obvious explanation for the change in birth dates accords with the explanation given by the Mother. What is puzzling is the extent to which the Father vacillates in various situations in giving a different year of birth.
The Father has failed to support the Mother in any financial way since her return with the children to Australia despite assurances given to the High Court in Ireland.

Application Of The Rule IN Browne v Dunn

In the course of cross examination of the Father, Counsel for the Mother was putting each and every allegation made by the Mother to the witness to which he invariably replied, “not true”.
I raised with Counsel that I was not greatly assisted by a slavish adherence to the rule in Browne v Dunn.
Having regard to the contents of the respective affidavits I was prepared to proceed on the basis it was not necessary to put specific allegations to a witness and no adverse inference would be drawn for a failure by Counsel so to do.
I did not intend to any way limit cross examination at large which may assist the Court in making a determination on the issue of credibility.
I had in mind the determination of the Full Court in the matter of LC v TC [1998] FamCA 47. The Full Court (Fogarty, Baker and Kay JJ) held:
“The rule in Browne v Dunn provides that unless notice has already clearly been given of a cross examiner’s intention to rely upon such matters it is necessary to put to an opponent’s witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of the witness’ evidence. It does not apply where the witness is on notice, that the witness’ version of events is in contest, that notice may come from the pleadings or the other side’s evidence or opening. Here, both parties filed extensive affidavits in the course of the proceedings, each knew what the other’s case was, and what allegations of fact were being made in support of them. Neither party was caught by surprise and in any event the Husband, pursuant to procedural orders of the trial judge, could have filed affidavit material in response to that of the Wife had he chosen so to do. In the circumstances of this case no error can be perceived in his Honour’s approach.
In the course of his final address, Counsel for the Mother suggested the Court would not be able to make findings of credibility because of the manner in which the case was conducted.
I am not accepting of a submission in these terms. I am able to, and am indeed required to look at the totality of the evidence, including the consistency of a witness’ account when measured against documentary evidence, expert reports and the evidence of corroborating witnesses. It is that approach which I have taken in making the findings that I have referred to previously in these reasons.

Form Of Orders

The issues remaining to be canvassed based on the findings made are what orders should be made in relation to:
·Parental responsibility.
·What time if any, the Father should spend with the children and in what circumstances.
·Whether the Mother should be permitted to relocate to Ireland as requested by her.
·Availability of passports.

Parental Responsibility

The Father has witnessed a change in the Mother over the past three years from being a compliant, even subservient partner, to a woman who is both hostile towards him and genuinely afraid of him.
I accept the observations made on the evidence by Counsel for the Independent Children’s Lawyer that the Mother has not supplied the Father (even through his solicitors) with photos or school reports. There is no evidence she has encouraged the children to write to the Father or communicate with him.
Given the reports of Ms B and Ms W, the Mother’s failure to engage in such conduct could hardly be seen as a criticism of her.
I accept the submission made by Counsel for the Independent Children’s Lawyer that the Father tended to blame the Mother solely for the situation as it has arisen. There was never any sense that he should accept some responsibility for the children’s attitude towards him. The Father revealed little insight into the behaviour of the children and the role he has played in this development.
It is inconceivable the children are somehow faking the observations made by Ms W or that the children could be rehearsed to behave in the manner reported by Ms B when reintroduced to their father in her presence.
As Ms B noted it is not uncommon for there to be a momentary flicker of recognition of memorable times at the moment of reintroduction or for a child’s anxiety to abate over a period of time, and to warm to the parent who has been absent from their lives. Neither observation was made in the instant case.
Counsel for the Independent Children’s Lawyer recommended an order for sole parental responsibility to the Mother. This was the order as sought by the Mother’s Counsel.
Section 61DA is in the following terms:
““61DAPresumption of equal shared parental responsibility          when making parenting orders
61DA. (1)      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.
(2)      The presumption does not apply if there are reasonable   grounds to believe that a parent of the child (or a person   who lives with a parent of the child) has engaged in:
(a)      abuse of the child or another child who, at the time,   was a member of the parent’s family (or that other   person’s family); or
(b)      family violence.
(3)      - - -
(4)      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.”
Having regard to the findings I have made I am satisfied that the presumption imposed by the legislation is rebutted on the facts of the present case.
Whether the Mother was to remain in Australia or Ireland I can see little room for the parties being able to communicate in a manner which would be of benefit to the children.
I note that the recommendation for sole parental responsibility is in accordance with the recommendation made by the Family Consultant in her reports (refer 64 of the first report and paragraph 43 of the second report).

Mother’s Application To Relocate To Ireland

In paragraph 44 of her recommendations in her final report, Ms B recommends:
“44.It is also recommended that the Court consider [the mother] being permitted to relocate to Ireland indefinitely.”
Counsel for the Independent Children’s Lawyer conceded that relocation might be in the best interests of the children.
The benefits to the Mother in relocating are that she would have the support of extended family, she would have greater stability in her life largely as a result of peace of mind arising from the considerable distance between the Father and herself and the children.
To require the Mother to stay in Australia is to make an order against her expressed wishes and risks leaving her exposed to an ongoing fear that she may encounter the Father or he may manage to track her whereabouts.
The evidence of the maternal grandmother as I understood it is that whilst she has stayed to support her daughter, she at some point, will need to return to Ireland. The position of Mr A is likewise that he would wish to return to Ireland but has stayed since the first half of 2009 to support his partner.

I make a finding that to induce the behaviour observed in the Mother, the level of trauma to which she has been exposed has been at the higher end of the scale.
I do not doubt her evidence that on one occasion she had a gun held to her head for an extended period of time. She experienced a sexual assault with the hand gun. She has suffered ongoing threats of the most serious kind. The best outcome for the children is to provide respite to their mother and in my view, the only acceptable way of achieving this is to accede to her application to relocate to Ireland.
This Court has provisions for orders in foreign jurisdictions being registered with this Court and enforced.
There is no evidence before the Court as to whether the Irish Courts have a similar system.
Once the Mother arrives in Ireland with the children effectively the jurisdiction of this Court will be concluded. If the Father wishes to pursue visitation rights to the children in Ireland it is a matter for him. The Father says he has been exposed to racial vilification in Ireland and has no wish to go there.
The fact that he has experienced racial vilification in one area of the country at one point in time does not necessarily lead to a conclusion that such vilification (if it did occur) would occur again. Having regard to my observations of all of the evidence I would be somewhat mistrusting of any claims made by the Father.
I see no benefit to the children in having Skype or telephone communication with their father so long as they remain in the traumatised condition they are in as recorded by Ms W.
To my mind, there should be some form of communication. The Mother has given an assurance that she will permit email and postal communication between the children and their father.
I expect that the Mother will be as good as her word.
The orders will issue in terms of the orders at page 3.

I certify that the preceding three hundred and forty (340) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 23 July 2010

[2010] FamCA 634

23 July 2010

Key Legal Topics

Areas of Law

Family Law