Tompkins and Tompkins (NO. 2)

[2016] FamCA 843

FAMILY COURT OF AUSTRALIA

TOMPKINS & TOMPKINS (NO. 2) [2016] FamCA 843

FAMILY LAW – CHILDREN – Interim – Where the father applies for the child to be returned to Australia – Where the mother seeks an order that the current ex parte order restricting her freedom of movement be discharged and the father’s application be dismissed – Where the child has been residing in Zimbabwe for 22 months with his maternal grandparents and maternal aunt – Where there is a history of family violence – Where the Australian Central Authority requested the Zimbabwean Central Authority to apply for a return order under the Hague Child Abduction Convention in August 2015 – Where a recommendation and draft order has been signed by the Zimbabwean Central Authority on 27.9.16 for the child to reside in Zimbabwe with the maternal grandparents– Where the determinative factors are the benefit for the child to have a meaningful relationship with his parents and the risks involved for moving the child from a stable environment – Where the father’s interim application is dismissed and the child is not required to be returned to Australia – Where the order restricting the mother’s movement is discharged.  

Child Abduction Act [Zimbabwe]
Family Law Act 1975 (Cth)

Sampson & Hartnett (No 10) (2007) FLC 93-350
Zanda & Zanda (2014) FLC 93-607

APPLICANT: Mr Tompkins

RESPONDENT: Ms Tompkins

FILE NUMBER: SYC 5275 of 2016

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rachel Stubbs & Associates

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. The orders made on 22 August 2016 are discharged.

2. The father’s application for interim orders filed 18 August 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tompkins & Tompkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5275 of 2016

Mr Tompkins

Applicant

And

Ms Tompkins

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 22 August 2016 on an ex parte basis, I made an order restraining the mother from leaving Australia and other consequential orders. The father seeks that that order be confirmed and that a further order be made that the mother do all acts and things necessary to have the child D born in 2007 (“the child”) returned to the Commonwealth of Australia. 

2. The mother asks that the current ex parte order restricting her freedom of movement be discharged and that the father’s application be otherwise dismissed. 

3. Both parties were invited to consider a more expansive interim hearing in which I would allow cross examination of the parties but both parties declined that invitation and asked that the matter be dealt with on the papers.

4. Since December 2014, the child has lived in Zimbabwe with his maternal grandparents and maternal aunt.

5. The mother says that the child is well cared for in Zimbabwe where he is attending school. The father has concerns about the safety of the child living in Zimbabwe due to his views about the country’s unstable economic and political conditions. He says that the child has a right to know him and spend time with him on a regular basis which he says cannot occur if the child remains in Zimbabwe.

6. The mother has left the child to be cared for by her parents and sister in Zimbabwe for 18 out of the last 22 months. For those 18 months the mother has been working in Western Australia.

BACKGROUND

1. The father was born in 1974 in England and is currently 42 years old.

2. The mother was born in 1980 in Zimbabwe and is currently 36 years old.

3. The parties met in 1999 and commenced cohabitation in 2000. They married in 2003 in a cultural ceremony and then in a registry office in Zimbabwe. In 2004 the parties married again in a registry office in England.

4. The parties’ child, D, is currently eight years old. The child is a New Zealand citizen and an Australian resident.

5. The parties separated in about July 2014.

6. In August 2014 the mother says that she discussed obtaining a job in Country X with the father.

7. What happened between August and December 2014 is set out in more detail below.

8. The mother left Australia with the child and arrived in the United Kingdom on 1 December 2014. At this stage the mother’s understanding was that the father was jobless and homeless in Australia. She asked his family to help him. The mother then left with the child and flew to Zimbabwe on 5 December 2014. The mother says that she wished to be with her family as she was traumatised from the events of the preceding months. The father says the mother initially advised him that they would be away for six weeks, returning in January 2015 but later advised that they would be away for three months returning in March 2015. The father requested an itinerary and contact details from the mother but received no response. He also attempted to contact the mother’s sister and maternal grandparents but received no reply.

9. In January 2015 the mother found out that her employment opportunity in Country X was delayed.

10. The mother returned to Australia on 20 February 2015 leaving the child in Zimbabwe. She commenced employment in Western Australia.

11. In March 2015, when so far as the father knew at that time neither the mother nor the child had not returned to Australia, the father contacted the mother’s employer and was advised by the Human Resources Department that she had not returned to work. The husband then contacted his Federal Minister for advice who referred him to the Australian Attorney-General’s Department.

12. In July 2015 the father contacted the Australian Attorney-General’s Department to check the mother and child’s movement record. In an email he was advised that the mother had returned to Australia on 20 February 2015 without the child.

13. On 3 August 2015 the father initiated proceedings under the Hague Convention for the return of the child to Australia.

14. On 7 July 2016 the mother commenced parenting proceedings in the High Court of Zimbabwe.

FAMILY VIOLENCE

1. The father did not fully set out in the evidence that he provided to support his application for ex parte orders the extent of the history of family violence in his relationship with the mother.

2. The mother asserts that during the parties’ marriage she experienced family violence at the hands of the father. She says that the violence was mainly associated with the father’s abuse of alcohol and was also associated with his diagnosed mental status of depression and anxiety. She observed that the father would not always take his medication and that would result in mood swings and violent and aggressive behaviour towards her. She asserts that the father unilaterally ceased to take his anti-depression medication around May 2014. Some indication of the father’s level of drinking is contained in the certificate that the mother has adduced in evidence which indicated that the father was apprehended by police on 27 July 2013 and provided a breath alcohol reading of .252 (high range being .150).

3. The father lost his job in December 2013.

4. On 6 August 2014 the father was admitted to Y Hospital. The mother says that that was as a result of the father binge drinking alcohol. The hospital records were not available for this hearing.

5. On 18 August 2014 the father was admitted for rehabilitation at Z Rehabilitation Services in Manly. He attended a residential unit for eight weeks. The mother took the child to see the father there on weekends.

6. The father intended to go into an additional rehabilitation service in November 2014 but the records from that service showed that the father did not properly participate in that program.

7. There was an incident at the home of the mother on 16 November 2014 when the father became violent. The mother says he picked up a glass and threw it on the ground and when the mother locked him out of the house the father hit the front door and hit it with such force that he broke the lock and the door frame and after he entered the home punched a fist-sized hole through the plaster. The child was in the home at the time. A neighbour called the police; the police attended and arrested the father and charged him with two counts of intentionally or recklessly destroying or damaging property. An interim ADVO was made in favour of the mother. The ADVO did not include the child as a protected person. After his release, the father returned to the mother’s home, the father was charged with breaching a ADVO.

8. According to the mother, on or about 17 November 2014 the mother received a telephone call from the father in which he said he had a knife and he was going to kill himself. The mother rushed home from work and with the support of a friend, was able to have the father admitted to a psychiatric unit in Y Hospital for attempted suicide. The father stayed in hospital for about two weeks. The mother asserts that during that period she had a conversation with the father where he agreed that she could go to the United Kingdom so that she could give the father’s family information about his current difficulties and inform them that they needed to help him.

9. On 2 December 2014 the father pleaded guilty to the charges that had been laid against him. At the same time a final ADVO was issued for the protection of the mother.

HAGUE CONVENTION PROCEEDINGS

1. As indicated, on 3 August 2015 the father initiating proceedings under the Hague Convention for the return of the child to his habitual residence of Australia.

2. On 19 September 2016 the mother filed as annexures to her affidavit, copies of documents she had received from Zimbabwe. The first is a letter from the Ministry of Public Service, Labour and Social Welfare in Zimbabwe dated 19 July 2016 (but forwarded on 25 July 2016) which enclosed a child welfare officer’s assessment report dated 21 July 2016.

3. Secondly, the mother provides an email that she received from a law officer of the Ministry of Justice, Legal and Parliamentary Affairs on 16 September 2016. The function of the Central Authority under the Child Abduction Act in Zimbabwe is discharged by the Secretary of the Department for which the law officer works. The email indicates that the law officer, based upon the documentary evidence submitted by the mother’s family and the social worker’s assessment and report (dated 21 July 2016), “established that it was in [the child’s] best interest to remain in Zimbabwe under the care of his maternal grandparents as returning him to Australia will be against his will and could further traumatise him”. A recommendation has been made to the Permanent Secretary for Justice as the Zimbabwean Central Authority to issue an administrative order that the child be retained in the care of his maternal grandparents who are domiciled in Zimbabwe. The law officer records that the Permanent Secretary has approved the recommendation and that the Zimbabwean Central Authority is now in the process of preparing the order that will be sent to the Australian Central Authority through the Ministry of Foreign Affairs and the concerned Embassies.

4. After the conclusion of the hearing, the parties by consent reopened the case and tendered a draft order that had been signed by the Zimbabwean Central Authority on 27 September 2016 which was in the following terms:

   ADMINISTRATIVE ORDER

   HELD AT HARARE CASE NO.      AO 01/16

   In the matter between:

   [MR TOMPKINS]     Applicant

   AND

   [MS TOMPKINS]      Respondent

   DRAFT ORDER

   WHEREUPON after reading documents filed of record;

   IT IS ORDERED THAT:

   1.[The child D], a minor, be retained in the care of his maternal grandparents, [Mr A] and [Mrs A].

   2.[Mr A] and [Mrs A] are domiciled at number … S Street, Harare, Zimbabwe.

   3.It is in the best interests of the child to remain in Zimbabwe under the care of his maternal grandparents as returning him to Australia will be against his will and could further traumatize him.

   Date:  27-09-16

   By the Zimbabwean

   Central Authority

   (signed)

   PERMANENT SECRETARY FOR JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

   (CENTRAL AUTHORITY)

5. I note that this is a draft order and it is unclear to me as to what (if anything) further needs to happen in Zimbabwe for it to become a final order. It is an order signed by the Zimbabwean Central Authority who may have administrative responsibility for making orders in Zimbabwe. The proceedings are described to be a matter between the two parents in circumstances where the father has played no active part in the process. It does not appear, as is the case in this country, that the Zimbabwean Central Authority becomes the applicant.

6. Although I wasn’t taken to it during submissions the Zimbabwean Child Abduction Act has certain familiar provisions.

   35.1.It specifies that the function of the Zimbabwean Central Authority under the Convention is to be discharged in Zimbabwe by the Secretary of the Ministry of Justice, Legal and Parliamentary Affairs.

   35.2.Section 6 of the Zimbabwean Child Abduction Act indicates that the court with jurisdiction to entertain applications under the Convention shall be the High Court.

   35.3.A declaratory order that the removal of the child was wrongful within the meaning of Article 3 of the Hague Convention can be made by the High Court of Zimbabwe pursuant to Article 15 of the Convention.

   35.4.Section 11 of the Zimbabwean Child Abduction Act provides that no decision on the merits of rights of custody is to be made under the Zimbabwean Childrens’ Protection and Adoption Act, the Guardianship of Minors Act or the Matrimonial Causes Act until there has been a determination that the child is not to be returned under the Convention.

   35.5.The Child Abduction Act seemingly adopts Articles 11 of the Hague Convention which require that applications be dealt with expeditiously (six weeks from the date of commencement of proceedings).

   35.6.The grounds for refusal are those set out in Articles 12 and 13 of the Convention.

   35.7.The Secretary may request the Director of Social Welfare to provide a report in writing.

7. There is no indication that the Zimbabwean Central Authority has made any application to the High Court and so I am unsure as to what the status is of the draft order signed by the Secretary for the Minister of Justice Legal and Parliamentary Affairs. I have no expert evidence that would allow me to understand exactly what processes have been followed in Zimbabwe in response to the Australian Central Authority’s request that an application for a return order be made but on the face of the material I have the Zimbabwean Central Authority did not apply to the High Court of Zimbabwe for a return order.

8. Based upon the papers I have, it seems that in this case the operation of the Hague Convention in Zimbabwe:

   37.1.So far it has been an administrative rather than judicial process;

   37.2.The Central Authority made no application for a return order to the High Court of Zimbabwe but the Central Authority has made a decision as to the outcome;

   37.3.It takes into account the best interests of the child (and the Central Authority reaches a conclusion about best interests), including an expression of a child’s views which are merely an expression of a preference or ordinary wishes;

   37.4.Has taken place without hearing from the father directly;

   37.5.Seemingly as part of the process, an administrative order will be made for the child to remain in the care of the maternal grandparents;

   37.6.It seems the determination has been made on the basis of an assessment of grave risk of return of the child to the father in Australia whereas in fact the provisions of the Convention require a consideration of grave risk of return of the child to Australia. (It is not controversial that if the child was returned to Australia, the child would live with his mother in Western Australia);

   37.7.There does seem to have been difficulties in the Australian Central Authority receiving responses from the Zimbabwean Central Authority (it was on the basis of those apparent difficulties in obtaining a response from the Zimbabwean Central Authority that I made the initial ex parte orders restraining the mother from leaving the country);

   37.8.The father also complains about the time the decision making process has taken in Zimbabwe.

9. Counsel for the mother submits that it is inappropriate to deal with an application under Part VII Family Law Act 1975 (Cth) (“the Act”) in circumstances where a determination under the Hague proceedings initiated by the father has or has almost been completed in Zimbabwe and the father has been or is likely to be unsuccessful in obtaining a return order under the Convention. The submission is that it would offend comity between two countries which have both adopted the Abduction Convention, notwithstanding the apparent differences in the way the Convention is applied in each country. I do not place any weight on that submission because of my disquiet about how the provisions of the Zimbabwean Child Abduction Act has been applied in this case.

10. The circumstances of this case are somewhat unusual. The bare facts are that the child left Australia with his mother (with the expressed or tacit approval of the father) to be absent from Australia for a limited period. The mother then, having been away for a couple of months, came back to Australia leaving the child with her parents in Zimbabwe. In the last 22 months she has only been back in Zimbabwe for four of those months. For at least 18 out of the last 22 months each parent has resided in Australia and the child has not. The father has not agreed to that arrangement.

11. In those circumstances I am asked, on an interim basis, to exercise powers under Part VIII of the Act to order the mother to return the child to Australia. Counsel for the mother indicated that her instructions were that if an order was made that she repatriate the child to Australia then, notwithstanding that an order might have been made under the Hague Convention in Zimbabwe, she would have the capacity of arranging with her parents and sister for the child to come to Australia.

12. In my view, notwithstanding the order that has been made or is about to be made in Zimbabwe under the Hague Convention, it is appropriate to embark upon a hearing of the husband’s interim application under Part VII of the Act.

13. The father is seeking an order that the mother return the child to Australia and that until she does so she be restrained from leaving Australia.

14. Dealing first with the order sought by the father restricting the mother’s movement, that order is sought under s 114(3) of the Act which is a section that allows the court to grant an injunction which appears to the court to be just and convenient when exercising jurisdiction under the Act. The paramountcy principle does not apply to that section, however, what is in the child’s best interests is pivotal in determining whether or not an order is made against the mother under that section. Relevant to an order restricting a parent’s movement are the Full Court’s statements in Sampson & Hartnett (No 10) (2007) FLC 93-350 and Zanda & Zanda (2014) FLC 93-607. In the latter case the Full Court at 79,529-79,530 said:

    132.We must also observe that in his consideration of the authorities, his Honour did not refer to the principal authority on this issue, Sampson & Hartnett (No 10) (2007) FLC 93-350 in which the Full Court said that the power to make an injunction that directly affects a parent and the parent’s right of movement is not found in s 68B but rather in s 114(3).

    133.There, the court was asked to consider the constitutionality of an order that directly affected a parent’s right of movement.  In the course of considering that question, the majority, Bryant CJ and Warnick J said, after setting out the terms of s 64B:

    35.In our view, notwithstanding the breadth of the language in the section, particularly the terms of para (i), an order requiring a parent to live in a particular place is not a parenting order as there defined.

    36. As their Honours in H v E (supra) pointed out in the passage earlier quoted (at p 85,887):

    … the power to place a restraint upon movement of the child appears to be found in the court's power to make a parenting order under s 65D or grant an injunction under s 68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975.

    …

    38. We agree that s 68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent.

    134.Turning then to s 114(3) and after setting out its terms the majority said:

    58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:

    (i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

    (ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent's choosing.

    59.The prospect of ordering a parent to relocate and in effect "parent" in a situation not of that parent's choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.

    135.Thus, the source of power to make the injunction restraining the father from leaving Australia was s 114(3) not s 68B as his Honour seemed to find.

1. Here the order sought is to restrict the mother from moving from the place where she currently is residing rather than for an order requiring her to move somewhere else. I accept however that the order the husband seeks to restrain the mother from moving from Australia, if made, should be an order that is no more than is necessary to secure the best interests of the child. If no order for return of the child is made there would be no basis upon which to further continue the ex parte injunction that was made restraining the mother from leaving Australia. If a return order is made, counsel for the mother says that would be implemented in a short period of time. The order restraining the mother from leaving Australia would then no longer be necessary once the child had returned to Australia as its purpose is nakedly to coerce the mother into compliance with the order of the court that she return the child by keeping her in Australia, potentially until she does so.

2. The central question then becomes whether or not an order should be made that the mother return the child to Australia. That order may well be a parenting order (see s 64B(2)(i) of the Act), but if it is not then it is an order made under s 68B of the Act. In the first case best interests considerations are paramount; in the second case, they are pivotal.

3. In determining what is in the child’s best interests, I take into account the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act.

4. In respect of the benefit to the child of having a meaningful relationship with both of the child’s parents, the current arrangements for the child mean that that is not happening in respect of the father and is happening in less than an optimal manner in respect of the mother. As indicated the mother has been with the child only four out of the last 22 months, although she says she is in daily electronic communication.

5. Counsel for the mother submitted that one had to understand what a meaningful relationship might mean for this particular child rather than to elevate that concept to a notion of what might be a meaningful relationship with both parents in all family law matters. I accept that the test of meaningful relationship has to be specific to a specific child in a specific case. Counsel for the mother suggests that without evidence of what those relationships with this child are like, it would not be appropriate at an interim stage to make any finding as to the benefit this child might obtain from having a meaningful relationship with either of the child’s parents. It is difficult for me to accept that submission. Section 60B of the Act sets out that one of the objects of Part VII is to ensure that a child has the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child with the underlying principle associated with that object being the child’s right to know and be cared for by both his parents.

6. The father points to the difficulty he has had in attempting to communicate with the mother about the child. The father has sent emails both to the mother and to her sister. He has received a number of emails back from the mother’s sister which were quite short. It is probable if the child stays in Zimbabwe there is a risk that he will have little or no relationship with his father.

7. There is no certainty as to where the mother might live in the future. There is some suggestion that the job in Country X may be available in 2018 but that is highly speculative. At the present time it is likely that she would remain in Australia and work in Australia and visit Zimbabwe. She has never worked in Zimbabwe, she has not lived and has spent little time there since 1999. Her qualifications are not in Zimbabwe, they are from the United Kingdom.

8. In relation to the second primary consideration, the evidence suggests that there is a need to protect a child from being exposed to violence and abuse. I have extensive evidence as to the father’s addiction to alcohol and associated violence and on one occasion suicidal ideation for which he was hospitalised. The relationship between the parents was conflictual (and on the papers that I have, the father was the primary cause of that conflict). The child was exposed to that conflict. That conflict however is not something that would continue if the child was returned to Australia. The parties live in different parts of the country. The mother has recently obtained in the State in which she lives an apprehended violence order for her protection. No doubt any parenting order that was made in the father’s favour should the child return to Australia would need to take into account the history of the father’s behaviour; his current mental status and stability and whether or not any order for supervision was appropriate in the short or medium term.

9. There is little information about the child’s views. The child is currently almost aged nine. The social worker’s report annexed to the mother’s affidavit records that when the child was asked whether or not he wanted to go back to stay in Australia he clearly indicated that he did not want to relocate back to Australia and said that he only wished to visit his mother. The social worker records that the child seemed to be enjoying his stay in Zimbabwe with his maternal relatives. He recorded that they treat him well and support him in everything such that he feels loved and appreciated. The social worker records the child still has vivid memories of the abusive environment he witnessed during his stay in Australia under the care of his estranged parents. The social worker reported the child as being currently cheerful, friendly and welcoming. He was assessed as being clever and portraying logical thinking appropriate for his age. He had an extraverted personality. There is no indication in the written report as to the social worker’s assessment as to the child’s maturity or level of understanding.

10. It does not seem a matter in dispute that up until February 2015 the mother was the person with whom the child had a primary attachment and who had been the child’s primary carer. The mother worked as a health professional and arranged her working hours around the child’s needs, although the child was placed in child care on the days the mother worked. The mother reports that following the separation, the father saw the child on one or two nights a fortnight and would speak to the child on the phone whenever possible. The mother has some complaints about the types of activities the father exposed the child to during the period of time when the child was with him after the separation. The father asserts he had some difficulties making arrangements to see the child prior to the mother leaving Australia and the mother contends that the father was irregular as to when he would see the child and could not be trusted to turn up when he said he would. That report by the mother of inconsistency by the father accords with the difficulties which the father was obviously experiencing in 2014. There is little doubt that the father’s mental status and difficulty with alcohol would have affected his relationship with his son.

11. The child currently clearly has a relationship with the maternal grandparents and the maternal aunt. The maternal grandfather is 59 years of age and is employed as an accountant in a government department. The maternal grandmother is a 55 year old self employed woman who owns two businesses, one in Zimbabwe and another one in South Africa and is described in the social worker’s report as a “lucrative entrepreneur”. The child lives in a home with his maternal grandparents and maternal aunt in Harare. 

12. An important consideration in this case is the likely effect of any changes in the child’s circumstances since separation from his maternal grandparents and his maternal aunt with whom he has been living. I have no expert evidence to assist me in gauging the potential effect of moving the child to Australia apart from what is in the social worker’s report of 21 July 2016. The social worker reports that the child has adapted to the Zimbabwean environment and there has not been any critical testing of the description of the child’s current environment in the context of this interim hearing and I will accept the description of the child’s current situation as it is presented. The child attends Roman Catholic Church with the maternal grandparents and aunt. They also go on social outings as a family. The child has overcome his developmental milestones normally from early stages of his childhood development up to date. His physical development is appropriate for his age. The social worker opines that the child is recuperating from the result of trauma experienced arising from conflicts that existed between his parents in Australia. The child does not suffer from any chronic condition or life-threatening diseases; has never been hospitalised and is covered by the maternal grandparents’ medical insurance. The child is currently in grade 3 at C Primary School. His performance is above average and is said to have improved greatly from the time that he started attending school there. He is reported as being well behaved and obedient. The school is said to have a large population of biracial children and that the child has adapted well to the school environment. In relation to the child’s culture, the social worker records that the child is a “coloured male”. Photographs provided in evidence by the father would confirm that that is so. The grandparents noted that he was sensitive to discipline in the grandparents’ household and was well behaved. He was not finicky and ate the food given to him.

13. The social worker assessed the maternal grandparents and aunt’s home as being a safe environment for the child. The family has a driver who takes the child to and from school each day. He goes from school to the grandmother’s work place at the end of the day or alternatively he is minded by his maternal aunt. The child lives in a house that is very spacious and well furnished; has his own bedroom and his own personal belongings. The home has spacious and secure grounds in which the child can play. The home is described to be located in an area of Zimbabwe where crime and delinquency levels are reported to be low.

14. Counsel for the mother submits that it would be an enormous change for this child without any testing of the evidence, to move him from his current settled and stable situation. I accept the submission that I have no way of knowing what the effect of that change would be upon the child except to know that he would be living with his mother who up until two years ago was his primary attachment figure and that there would be some greater opportunity for him to spend some time and have some communication with his father.

15. The father’s lawyer conceded that an order requiring the mother to return the child to Australia would create a huge change in the child’s lifestyle given that the child has been settled in his current lifestyle for 22 months. The father concedes that the child has got used to a certain routine in the home of the maternal grandparents.

16. The mother has led no evidence as to the nature of her accommodation in Australia but I infer given that as she has lived in the same town for 18 months, that accommodation is relatively stable. I was invited to look at her financial statement and I am satisfied that the mother has a good income.

17. The practical difficulties and expense of the child spending time with each of his parents is exacerbated by the fact that they are in Australia and the child is living in Zimbabwe.

18. I have little information on an interim basis to make any judgment as to the capacity of either parent to provide for the needs of the child, including emotional and intellectual needs, but I take into account the historical role the mother played as the child’s primary care giver on the one hand and the apprehension the child has expressed to the social worker in Zimbabwe about the level of conflict that existed between his parents on the other.

19. I have already discussed the history of family violence leading to the separation.

20. Counsel for the mother argues that it is not in the child’s best interests to make an order that is simply in aid of the ability of this court to ultimately exercise jurisdiction in making final parenting orders in respect of the child and that the disruption to the child’s current settled circumstance is too great an unknown factor to justify the making of the orders on an interim basis, on the papers as sought by the father.

21. I have no evidence as to what remedies the father may still have in Zimbabwe in terms of being able to make some an arrangement for the child to spend time with him either in Zimbabwe or abroad. If it turns out the father does not have any remedies in Zimbabwe, then it may be that this court would exercise jurisdiction to entertain the final parenting proceedings, notwithstanding the fact that the child is in Zimbabwe if both parents remain in Australia.

22. The child has been in Zimbabwe since December 2014. The father knew the child was travelling to the United Kingdom and knew that the child had gone to Zimbabwe. He knew that the mother intended to leave Australia when there was a job offer for her to work in her profession in Country X and the father seemed to be prepared to allow the mother to do that provided agreement could be reached about the time and circumstances in which the child would be with him. I accept that the mother found out in January 2015 that the job offer for her to work in Country X had been delayed. I also accept that at the end of 2014 and early 2015 the father’s health was in flux and the family was in crisis. At the time that the mother came back to Australia to work in February 2015, the father was not in Australia. He didn’t get back to Australia until 30 April 2015 and he left for the United Kingdom later that year. The mother asserts that the father travelled to South Africa in 2015 but did not attempt to go to Zimbabwe. After he went to South Africa he went to the United Kingdom.

Conclusion

1. I generally accept that the mother was confronted with a genuinely difficult situation arising from the father’s violent behaviour towards the end of 2014 and her decision to leave the child with her parents in Zimbabwe following that time needs to be seen in light of the turmoil and upheaval that was happening in the parental relationship at that time.

2. The determinative factors in this case are on the one hand the benefit for the child having a meaningful relationship with each of his parents which is just not happening at the moment and the risks involved for the child of moving him from what is, I accept, currently a stable situation in the home of his maternal grandparents and maternal aunt, a situation that has existed for 22 months.

3. On an interim basis it is in the child’s best interests to leave the child where he is and not to make an order requiring the mother to return him to Australia.

4. The father will need to seek his own remedies in Zimbabwe in the first instance. If the father discovers that he has no effective remedies in Zimbabwe then it may well be the case, particularly if both parents still reside in Australia, that this court may consider hearing a parenting application between the two parents. At the time of this hearing the mother has indicated that she has the capacity to bring the child to Australia. I am cognisant of the fact that that might not remain the case if the mother leaves Australia or the maternal grandparents and/or the maternal aunt become parties to the proceedings.

5. Accordingly I dismiss the interim orders that the father has sought and discharge the current ex parte interim orders which restrain the mother’s movement.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 September 2016.

Associate: 

Date: 30 September 2016