VANDERBERG & VANDERBERG
[2013] FamCA 134
•6 March 2013
FAMILY COURT OF AUSTRALIA
| VANDERBERG & VANDERBERG | [2013] FamCA 134 |
| FAMILY LAW – CHILDREN – Best interests of the child – Parental responsibility – With whom a child lives – Where there is a history of the child living primarily in Papua New Guinea and primarily with the father following separation – Where the father facilitates time and communication between the child and the mother – Child to live with the father – Child to spend time with and communicate with the mother –Sole parental responsibility to the father with the father to inform the mother and have regard to her views FAMILY LAW – SPOUSE MAINTENANCE – Mother seeks closed period of spouse maintenance – Application dismissed FAMILY LAW – PROPERTY – Property Settlement – Where the parties' relationship subsisted entirely in Papua New Guinea – Where substantial real property and business interests of the father are in Papua New Guinea – Where the father objects to litigating the property settlement in Australia on the grounds of forum non conveniens – Whether father discharges his onus to establish a clear case for a stay of Australian proceedings |
| Family Law Act 1975 (Cth) | |
| Aldridge & Keaton (2009) FLC 93-421. Chen & Tan [2012] FamCA 225, British South Africa Co v Companhia de Mozambique [1893] AC 602 Henry v Henry (1996) 185 CLR 571 Kemeny v Kemeny (1998) FLC 92-806 Marvel & Marvel (2010) 43 Fam LR 348 Navarro v Jurado (2010) 44 Fam LR 310 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 | |
| APPLICANT: | Ms Vanderberg |
| RESPONDENT: | Mr Vanderberg |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 248 | of | 2011 |
| DATE DELIVERED: | 6 March 2013 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 15, 16 & 17 January 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Applicant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Burridge |
| SOLICITOR FOR THE RESPONDENT: | Preston Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
PARENTING ORDERS
All previous Parenting Orders and previous Parenting Injunctions in relation to R Vanderberg, born June 2006 (“the child”) be and are hereby discharged.
The order requiring the father to pay a bond of $10,000 made in the Federal Magistrates Court on 13 May 2011 is discharged and the father is released from his undertaking given to the Federal Magistrates Court in May 2011.
The child live with the father.
The father has sole parental responsibility for the major long term issues for the child including but not limited to:-
a.her education (both current and future);
b.her religious and cultural upbringing;
c.her health;
d.issuing of her passport;
e.changes to her living arrangements from Papua New Guinea to Australia. Any decision to move the child’s primary residence to any country (other than Papua New Guinea or Australia) would need to be a joint decision of both parents.
Notwithstanding the order for sole parental responsibility:-
a.The father will be responsible for the daily care, welfare and development of the child when she is living with him; and
b.The mother will be responsible for the daily care, welfare and development of the child when the child is spending time with her.
In the exercise of his parental responsibility pursuant to these orders, the father shall, prior to making the sole ultimate decision about any major issue:-
a.Advise the mother in writing of the decision being considered and its particulars;
b.Seek a written response from the mother in relation there to, permitting of sufficient time to allow the mother to properly consider, and if she desires, to seek advice about the proposed decision;
c.Consider by reference to the best interests of the child, any such response by the mother, prior to making any such decision;
d.Advise the mother in writing as soon as reasonably practicable of his ultimate decision; and
e.If there is an emergency situation that does not permit the father to advise the mother, the father will make a decision that is in the child’s best interest to address that emergency and will in no more than 24 hours notify the mother of the emergency the advice provided to him by any medical practitioner and the decision made by the father.
The father will send to the mother updates by email as to the child’s well being and activities every third Sunday of each month when she is not spending time with the mother.
The mother shall spend time with the child at all times as agreed between the parties in writing but failing agreement as follows:-
a.Two weekends in every school term from after school on Friday until 6.00pm Sunday and only if the Friday or Monday is a public holiday or student free day then the time will be extended to include the public holiday or student free day;
b.If the child is not spending time with the mother on the mother’s day weekend then she shall spend time with the mother each year from Friday after school until Sunday at 6.00pm of that weekend.
c.The mother’s time pursuant to order 8(a) and (b) will be spent in the Lae region of Papua New Guinea, with the father to provide reasonable ground transportation for the mother and the mother to be otherwise responsible for her costs in relation to flights, accommodation and other expenses for such trips, including visas;
d.The mother is to notify the father one month in advance of the dates she proposes to travel to spend time with the child pursuant to order 8(a) & (b);
e.For the whole of the end of term 1 and term 3 school holiday periods;
f.One half of each of the end of term 2 and 4 school holiday periods with the mother to have the first half in odd numbered years and the second half in even numbered years;
g.For the purposes of Order 8(e) and (f) the father is to be responsible for the costs of travel for the child from Papua New Guinea to Cairns and return;
h.The father shall arrange the child’s travel pursuant to order (e), from Papua New Guinea to Australia, to occur the day after the last day of each school term and for her return at 12 noon on the Saturday before the commencement of school;
i.The father shall arrange the child’s travel pursuant to order (f) from Papua New Guinea to Australia. If the child is not already in Australia this is to occur the day after the last day of each school term in odd numbered years and on the middle day of each of the school holiday periods in even numbered years. If her return is to be at the end of the holiday period then the return will be at 12 noon on the Saturday before the commencement of school.
j.If the mother is in the area where the child is living the mother will spend time with the child on her birthday if on a school day from after school until 6.00pm and if on a weekend from 9.00am until 5.00pm
k.The mother is at liberty to telephone or communicate with the child via Skype on each Tuesday, Thursday and Sunday between 5.00 and 7.00pm;
The child is at liberty to contact either parent by telephone or Skype at all reasonable times and the parent with whom she is spending time shall facilitate the child making such contact.
The parent with whom the child is spending time with on her birthday, the other parent’s birthday or Christmas Day shall encourage and facilitate the child contacting the other parent by telephone or Skype on such day/s.
The father shall provide the mother details of the child's flight arrivals for each holiday period at least twenty eight (28) days prior to any travel.
These Orders provide authority for the child's school to provide information to the mother regarding the child's progress at school and for the mother to obtain at her expense copies of the child's school reports and school photographs.
Neither party shall denigrate the other parent or other family members in the presence or hearing of the child and shall remove the child from any other person who may denigrate the other parent or other family members.
The father will retain the child’s passport.
As to the child’s passport, the father shall have sole parental responsibility to apply for a passport for the child and without obtaining the consent of Ms Vanderberg (“the mother”). In the event that a passport and/or visa issuing authority requires the consent of both the father and mother (notwithstanding the clear terms of this order), both parties will do all acts and things and sign all such documents as may be required to ensure that the child’s passport and or visa is renewed and in the event either party refuses or neglects to sign any such document in compliance with the provisions of this Order within fourteen (14) days of a written request to do so, the Registrar of the Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all Deeds and/or instruments in the name of that party and do all acts and things to give the validity and operation to the Deeds and/or instruments.
On the proviso that the mother files an Undertaking to return the child to the Commonwealth of Australia (such undertaking to be filed with the Family Court of Australia Cairns Registry) the father will release the child’s passport to the mother to allow her to travel overseas with the child during an agreed school holiday period providing the mother returns the passport to the father or the child at changeover of the child to the father or the father’s representative.
Notwithstanding these orders, the parties are at liberty to travel outside the Commonwealth of Australia and outside Papua New Guinea with the child for a holiday once every two years provided that and unless otherwise agreed between the parties:-
a.The holiday does not include more that two (2) school term days over and above the school holiday period when the child is spending time with the travelling parent.
b.The party proposing the holiday notifies the other party as soon as possible in writing of their intended travel plans and at least sixty (60) days prior to any proposed travel and provides to the other party the following:-
i.A copy of the proposed travel itinerary including proposed destination and length of holiday;
ii.A copy of the return tickets or E-tickets for the child and that parent; and
iii.Details of the proposed accommodation, emergency contact numbers and where the child will be residing during their holiday.
The parties shall communicate by way of text message except in the case of an emergency and then they will communicate by way of telephone.
Neither party is to request the child to deliver any messages or to tell the child to tell the other parent anything in relation to the child's welfare, care and development that should be communicated directly between the parents.
Both parties are to notify the other of any change of residential address, postal address, email address or telephone number within forty eight (48) hours of such change.
Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY AND SPOUSE MAINTENANCE ORDERS
The mother’s application for spouse maintenance is dismissed.
The mother’s application for property orders under s 79 of the Family Law Act 1975 is stayed; subject to:-
a.The parties, or either of them, have leave to file an application in a case (in respect of the stay) on or before 1 August 2013 together with an affidavit or affidavits of an expert or experts in Papua New Guinea law (as to the jurisdiction of the Papua New Guinea courts in family property proceedings and/or enforcement of foreign judgments in that jurisdiction).
b.In the absence of such an application in a case and affidavit/s being filed pursuant to this order, the stay will become permanent as and from 2 August 2013.
GENERALLY
All other extant applications for orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Following the expiration of the appeal period, the appointment of the Independent Children’s Lawyer is discharged.
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanderberg & Vanderberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: CSC 248 of 2011
| Ms Vanderberg |
Applicant
And
| Mr Vanderberg |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
R (“the child”) has lived primarily in Lae in Papua New Guinea for most of her life. Her parents separated in August 2009, when the mother moved to live in Cairns in Queensland.
Over a period of almost two years, the child lived primarily with the father in Papua New Guinea and spent regular time with the mother in Cairns.
This arrangement came to a conclusion in May 2011 when the child was having a periodic visit with the mother in Cairns. The mother commenced proceedings in the Federal Magistrates Court, initially ex parte, to prevent the child’s return to Papua New Guinea with the father. Those proceedings have led to the hearing of parenting issues in this Court.
At the final hearing:-
·The mother sought orders that the child live with her and that the parents have equal shared parental responsibility.
·The father’s position changed during the trial but eventually he sought sole parental responsibility subject to keeping the mother informed of any significant exercise of that power and to take her views into account. He sought orders that the child live with him. In addition the father sought an order that he have sole permission to apply for the issue of a passport for the child.
·The Independent Children's Lawyer sought orders as set out in Exhibit ICL3, that is that the child live with the father; the father have sole parental responsibility provided he kept the mother informed and sought and considered her views; that the child spend time with the mother (mainly school holidays if distance remains an impediment), with the father meeting significant air transport costs; that there be Skype communication; the provision of school reports and orders in respect of non denigration and overseas travel.
The father generally adopted the orders sought by the Independent Children’s Lawyer subject to some changes. The father was prepared to meet air transport costs for the child to travel to Cairns during school holidays, but said he could not meet the costs including the costs of airfares if the mother chose to fly to Papua New Guinea for two weekends in each term. He submitted that he does not have the capacity to meet the costs of travel set out in proposed order and submitted that if the mother travels to Papua New Guinea, he will provide transportation but the mother would be responsible for her accommodation and airfares.
The father opposed order 6(g), of Exhibit ICL3, in terms of the timing of the return of the child. The Independent Children’s Lawyer suggested that the return of the child be on the Sunday at the commencement of school. This lead to an agreement between the parties and the Independent Children's Lawyer that the ending of term be at the 12 noon on the Saturday before the commencement of school term. In the circumstances of my decision, set out below, I have adopted that approach.
ISSUES
A primary issue, in terms of parenting, was whether the child continued to live with the father in Lae in Papua New Guinea and visit the mother on regular occasions or whether the child should live with the mother in Cairns and visit the father on regular occasions.
Another issue was the question of parental responsibility, that is solely with the father (subject to the father genuinely informing and consulting with the mother) or equal shared parental responsibility.
One of the parental responsibility orders sought by the father was permission to change the child’s surname. As that issue was not raised or argued during the hearing, I have not made that order as part of the determination of parental responsibility.
Another of the parental responsibility orders sought by the father was a general authority for him to be the sole determiner of any change in the child’s primary place of residence. The father gave evidence that he may eventually return to live and work in Australia. In that context and in the light of the outcome of these proceedings, the parental responsibility to enable the father to move the child’s place of primary residence to Australia was not contentious. However, a move to another county would need to be a joint parental decision. I have made an order accordingly.
The mother sought orders for spousal maintenance and property settlement. The father submitted that the Court ought not to exercise jurisdiction to deal with the question of property and spousal maintenance.
The father had consented to the Court exercising jurisdiction in relation to the parenting proceeding, (in the circumstances of this case the father had little choice as the mother had sought proceedings restraining the removal of the child from Australia at a time the father had brought the child from Papua New Guinea to Cairns to spend time with the mother). The father has at all relevant times objected to the Federal Magistrates Court and then the Family Court exercising jurisdiction in relation to property and maintenance.
BACKGROUND
The father and mother commenced a relationship in February 2001 and married in February 2002 in Southeast Asian Country B. Soon after marriage the parties commenced living together in Lae in Papua New Guinea where the father operates a trade business.
At the date of hearing the father was aged 42 and the mother aged 31.
The mother fell pregnant with the child in 2006. Arrangements were made for the mother to temporally live in Cairns from May 2006 until December 2006. The child was born Cairns in June 2006. Over this period of time the father lived in Papua New Guinea in July 2006 and travelled back to Cairns each fortnight.
When the parties and the child returned to Papua New Guinea in December 2006, they employed a local Papua New Guinean, Ms F, to provide full time care and supervision of the child. Ms F has undertaken this role since that time and continues to be the child’s nanny.
The mother and father separated in August 2009. There was an issue as to the circumstances of the separation, however, I find that the mother chose to move to Australia and left the child in the primary care of the father and with the day to day care of the child being undertaken by Ms F.
Between August 2009 and May 2011 the father travelled to Cairns on many occasions to enable the child to spend time with the mother. These visits were at least; one week in September 2009, six weeks in December 2009, two weeks in April 2010, two weeks in July 2010, one week in October 2010, some time over Christmas 2010 (up to three weeks) and one week in April 2011.
In early May 2011, whilst the child and father were in Australia the mother made an ex parte application in the Federal Magistrates Court restraining the father from removing the child from Australia.
The mother asserted or implied in her material, that the child was primarily living with her and the father was endeavouring to remove the child from her care to Papua New Guinea.
The matter came back before the Federal Magistrates Court on 13 May 2011 after the father had filed a response and affidavit and orders were made to enable the father to return to Papua New Guinea with the child upon him paying the bond.
Further orders were made by a Magistrate on 17 June 2011 and the child spent time with the mother in June 2011.
The Independent Children's Lawyer correctly identified, in her case outline, that:-
The mother alleges she continued to try and speak with the father about arrangements for the child to spend time with her and he would say later we will talk. The mother alleges the father said to her summons me to Court. The mother then made her application.
The father alleges he attempted to arrange mediation through the Family Relationships Centre and the mother would not engage.
The proceedings commenced when the mother filed an Initiating Application on 6 May 2011 in which she sought by way of an ex-parte hearing Orders preventing the father from removing the child from Australia. A Pace Alert was Ordered and the child was placed on the Airport Watch List. The father was served with a copy of the Orders on 7 May, 2011; he alleges he was in taxi on his way to the airport with the child. The father filed a response on 11 May, 2011 which was heard on 13 May, 2011 by Federal Magistrate Willis.
Until the Orders of Federal Magistrate Willis of 13 May, 2011 the mother alleges each time the child spent time with the mother in Australia the father had been present except for a few hours when the mother alleges the father would constantly phone.
On 17 June, 2011 Her Honour made Orders that the father bring the child to Cairns every 2 months for a 2 week period to spend time with her mother and for 3 weeks in the Christmas holiday period in 2011.
The child returned to Lae with the father on 25 June, 2011 after the hearing of 17 June, 2012. The father returned to Cairns with the child so she could spend time with her mother on 28 August, 2011 until 14 September, 2011.
The father and the child did not travel to Australia again until December, 2011. Pursuant to the Orders of 17 June, 2011 the child was to spend 3 weeks with her mother. The child should also have spent time with the mother in October/November 2011 in Australia but her passport had expired and there were difficulties between the parties in arranging renewal of the passport [and visa].
The child returned to Lae with the father on 18 January, 2012 to enable her to commence Prep school. The father and child returned to Australia on 27 January, 2012 to enable the father to attend at the Directions hearing of this matter.
In the second half of 2011 the father wrote to the mother seeking her permission for the child’s Australian passport to be renewed and to then facilitate a new Papua New Guinean visa.
The mother would not accommodate this request unless the child came to Australia. The impact of this approach would have been that the child resided in Australia pending the new passport and visa and that was dependant upon the mother’s co-operation. I find that the mother manipulated this particular dispute in an endeavour to bring about a change in residence of the child by subterfuge. If successful, in the short to medium term the mother would have rendered the interim orders of the Federal Magistrate moot. Understandably, the father objected to the mother’s approach and a planned visit of the child was lost until common sense prevailed and child’s passport arrangements were regularised.
In November 2011 the mother sought orders in the Federal Magistrates Court that the bond be released to her, that the child be enrolled in schools in Cairns and that the mother be permitted to travel to Country B with the child. That application was dismissed by the Federal Magistrate.
The father applied for a divorce order in April 2012 and the marriage between the parties was dissolved by an order of the Family Court in May 2012.
The father has now re-partnered and lives in Lae with Ms E. Ms F remains a part of the household and continues to care for the child and now cares for L (born September 2012 and who is a child of the father and Ms E).
The mother has re-partnered, and now lives with Mr M.
In September 2012 when the child was spending time with the mother she failed to facilitate changeover at twelve noon and it was necessary for an intervention via solicitors to have the child returned to the father later that day. Notwithstanding that arrangement the child spent time with the mother in September/October and on Christmas Day 2012.
The child has spent time with the mother in Cairns from 29 December through the time of the hearing in January 2013.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE WITNESSES
Ms C
Ms C is a psychologist who provided two reports, as a single expert. Those reports are contained in her affidavits filed 11 January 2013 and 24 April 2012.
Ms C was cross-examined by the Independent Children’s Lawyer and counsel for the father and the mother. Her evidence was given at the commencement of the hearing and leave was given to the parties to request her to be available for further cross-examination after completion of the evidence of the mother, her partner, the father and his witnesses.
Ms C’s qualifications were not put in issue, and I accept them.
In her first report Ms C said:-[1]
147.It is recommended that [the child] reside with Father and spend time with their Mother during all (or three-quarters) of the short school breaks and half of the six week summer school break.
148.It is recommended that [the child] communicate with her Mother three evenings a week, Sunday Tuesday and Thursday, via Skype and that the Father assist [the child] to operate the Skype.
149.It is recommended that the parents restrict their communications to one contact a week via e-mail, only if necessary and that the parents do not talk to [the child] about the other parent or ask [the child] questions about the other parent.
150.It is also strongly recommended that the Family be supported, perhaps by a s 65L Family Consultant during the first year of Order.
151.It is recommended that both parents participate in the Focus on Kids program.
152.It is recommended that the Mother continue to receive counseling specifically regarding developing and maintaining relationships.
[1] Paragraphs 147 to 152 of report of Ms C dated 23 April 2011
That report was prepared after interviews in February/March 2012.
An updated report was obtained for the final hearing and interviews were conducted with Ms F in October 2012 and the father in October 2012. Further interviews took place in December 2012 and there was a final interview with the mother and her new partner, Mr M in December 2012 and a visit to the mother’s home in Cairns Suburb A in early January 2013. A short interview took place on 8 January 2013 between the mother and her psychologist.
In her second report Ms C was more guarded in her recommendations, she said:-[2]
96.This Family Consultant is unable to make a recommendation for residency for the child, from the information at hand, as the child presents to have enough attachment to both parents and neither parent seems significantly more able than the other. Both parents have their individual skill set. The Mother does seem to rely on others, especially [Mr M], to assist her to parent the child, but that is not necessarily a negative aspect as the child has been able to develop a close relationship with [Mr M] and he appears to be a willing and able parent-figure to the child. The Mother does seem to be more of an authoritarian parent while the father and [Mr M] seem to have a similar style of negotiated parenting. [Ms E] and The child have a relationship based on availability, e.g. the child and [Ms E] play together at times. The child remains attached to [Ms F] but not in as much of a manner as she was previously. Nevertheless, [Ms F] remains an important individual to the child.
97.Both parents are in relatively new relationships, each with their own need for adjustment: the Mother has lived mostly on her own for the past few years and is now sharing an apartment with her partner; the Father has the adjustment of having an infant in the household.
98.Both parents have acceptable living arrangements: Mother in an apartment with play facilities for the child nearby; Father in the compound which the child has always lived in along with other people, the compound having a playground and other outdoor play equipment with security personnel nearby.
99.The Father seems willing to share the child with [Mr M] and is even relieved that [Mr M] is a presence in the child’s life as the Father believes she will be ‘safer’ with [Mr M] in relationship with the Mother.
100.On the other hand, the Mother’s tearful statement that she did not want the child to be with another “wife” could indicate that the Mother may see [Ms E’s] attentions towards the child as being problematic.
101.Both parents have expressed appropriate views on the child’s health and wellbeing. Both parents want the child to have extra-curricula activities and both parents are aware of the child’s schooling needs. The Father believes that [School D] in Lae will continue to serve the child well and is of as high a standard as Australian school. The Mother believes the school in Lae not to be appropriate and has yet to make a decision of whether the child would attend [School G] or [School H] in Cairns, both of which are suitable Catholic schools.
[2] Paragraphs 96, 97, 98, 99, 100 & 101 of Ms C dated 11 January 2013
In her oral evidence Ms C was more direct in expressing her concerns about a change in the child’s residence from the father to the mother. She said the child was psychologically robust and had managed the short breaks with the mother but was concerned about longer breaks. Her evidence was that the child may not cope with such a change.
In particular Ms C was troubled by the different parenting styles; the mother was authoritarian, and wanted the child to do it her way; whilst the father was authoritative in that he tended to negotiate with the child and when he made a decision he would provide reasons to the child. In many ways the father’s approach was similar to the approach adopted by the mother’s present partner, Mr M.
The single expert was concerned about the interaction between the mother and the child in terms of her emotional availability and authoritarian nature but that this concern had been reduced with the influence of Mr M.
Ms C said that she would not recommend a change of residence.
The evidence of Ms C was frank, cogent and consistent with her report. I generally accept her evidence and her assessment of the dynamics of this family.
The mother
The mother relied upon a series of affidavits sworn by her on 9 November 2012, 3 August 2012, 16 January 2012, 22 November 2011, 7 June 2011 and 11 May 2011. In addition she relied upon her financial statement of 16 January 2012.
The mother is employed in the hospitality field and in addition has a business in that field. She sought leave to give evidence orally at the commencement of the hearing and she was permitted to do so. The mother outlined a series of complaints in relation to the father which she said came from the child, which were, in many ways, a reiteration of what she had set out in her affidavits.
I am troubled by the frankness and reliability of the mother’s evidence. She had complained that she was unable to contact the child in December 2012 and when questioned in cross-examination, said she left messages expiring her $160 credit in the telephone calls. Yet she made no mention of that in her affidavit material.
The mother asserts that she had doubts about the paternity of L. She had no facts upon which to base that suspicion. The mother’s answer was unconvincing and consistent of her approach of disliking and distrusting the father.
The mother raised issues about the child’s safety in Papua New Guinea. Despite this concern she left the child in the father’s care for almost two years and it was only in the light of these court proceedings that she raised her concerns about the child’s safety. Neither this Court nor any parent can absolutely guarantee safety, the mother and father jointly decided to have a child while living in Lae, the mother left the child in the care of the father in Papua New Guinea for almost two years. Her complaint about safety was, in those circumstances, hollow.
The mother conceded that in May 2011 she misrepresented to the Federal Magistrates Court the status of the residence of the child in her application.
The mother was cross-examined in relation to why the child was not returned to the father at 12.00 noon in September 2012. She gave a variety of unconvincing answers. She said she was sick, the child was sick, the child needed to see a doctor and yet gave no plausible explanation as to why it took four hours for the child to be returned. Her evidence in this area was a sense of reconstruction or fabrication.
The mother takes medicine for anxiety. She was not frank in disclosing this medicine and the need for this medicine in her affidavit. The mother gave evidence about consulting a psychologist (called J) and said she had only seen her once but had told the single expert in her second report that she had seen this person on regular occasions.
The mother asserted that the father was psychologically violent to her but not physically violent to her. When pressed on what this meant she said the father said something the mother disagreed with, she regards that as psychological violence.
The mother expresses anger in a strong way and an example of this can been seen at paragraph 217 of her affidavit of November 2012.
In her affidavit of November 2012 the mother said that she would propose going back to Papua New Guinea. However, in later times she said she would not go back there and would take these proceedings if necessary, to the High Court of Australia. She offered no satisfactory explanation as to this change of view in a short period of time between November and December 2012.
The mother says that Mr M asked her to marry him on the day she saw the single expert. She has made no plans for a date for the wedding. I am troubled by the veracity of this evidence.
The mother’s evidence in relation to the renewal of the child’s passport in late 2011 is troubling in that she was determined that the child would come back to Australia and be left without a passport irrespective of the orders of the Federal Magistrate. Her explanation in relation to this issue was implausible.
Generally the mother’s evidence was at times implausible, unreliable and at times fabricated; such as the complaints allegedly made by the child every night of the week including complaints since the child has been in the father/mothers care since 29 December 2012. Another is the allegation that Ms E spanked the child in relation to a donut and yet there is no sign of any difficulties between the child and Ms E in the single expert’s report.
The mother has said to the child that she was concerned she is growing up ‘with another wife’ and tells her that almost every day in answer to a question. It is troubling as to whether this is the mother endeavouring to enmesh the child in her perception of the proceedings.
The mother said that the father told her to go to Court in May 2011. That evidence is a reconstruction of events. In May 2011 the father had travelled from Papua New Guinea to visit the mother with the child. The father had arranged for mediation through Relationships Australia so that sensible and stable arrangements could be put in place. Prior to that time the parties had managed their communication and time in a sensible and effective way (although the father did seem somewhat over protective of the child and reluctant to allow the mother and child to have significant time to themselves).
The mother informed the father that the child should remain with her. The father reacted by saying that he did not agree to that and the mother treated that as an invitation for her to go to court and make the ex parte application.
The mother endeavoured to blame the father for that result when it was in fact her statement that she would retain the child after the child had been living primarily in the father’s care since separation almost two years before that date. The mother’s evidence in relation to this incident was troubling.
The mother also lacked some insight into her approach with the father. She is dogmatic and determined. In her August 2012 affidavit, at paragraph 14, she sought to have the father dealt with for failure to bring the child to Australia in late 2011. This arose out of the circumstances where the mother did not facilitate the issue of a new passport for the child.
The mother sought orders that the father be fined and that if he did not pay the fine he would be sent to jail. She had little insight into the impact of such a step in relation to the child’s close relationship with the father.
The mother had given evidence about discussions she had with the child about growing up with another mother. Her evidence seemed to change from the first day of the hearing to the second day of the hearing that that conversation took place as she was taking the child to see the single expert.
The mother asserted that Ms E had grabbed the child by the ear and spanked the child. This was not set out in her affidavits and was denied by Ms E. I am satisfied that the mother’s evidence in this regard is unreliable and I prefer the evidence of Ms E in that respect.
The mother was ordered to complete a “Focus on Kids” program. It took her almost one year to start the program. She attended at the program in late December 2012. She has undertaken four visits and has six more to complete the course.
The cross-examination raised significant concerns about the veracity of the mother’s evidence initially when she obtained the order restraining the father from leaving and taking the child to Papua New Guinea in May/June 2011.
Generally where the evidence of the mother is inconsistent with that of the father the expert or other witnesses I prefer the evidence of the other witnesses and not that of the mother unless it is supported by objective material.
Mr M
Mr M is the mother’s partner and gave evidence in accordance with his affidavit sworn 7 November 2012. He gave evidence clearly and supportive of the mother. His evidence was not impeached in cross-examination.
He is a positive influence in terms of the relationship between the mother and the father. He has a good relationship with the father and part of his evidence was about seeing the father and his family in a shopping centre in Cairns and taking the child to see them.
The assessment of him by Ms C is reflected in the evidence that he gave. I am satisfied he will encourage the relationship between the child and both parents and will be a calming influence in the life of the child when with the mother. I accept Mr M is a good influence on the mother.
The father
The father gave evidence in accordance with his affidavits filed 8 November 2012, 3 August 2012, his financial statement of 8 June 2012 and his questionnaire dated 21 May 2012. Those affidavits and documents were read into evidence together with the annexures that were tendered into evidence.
He was careful and thoughtful in his evidence and was an impressive witness.
There was an issue as to Skype communication. The father said that in August of 2012 there were serious telecommunication problems in Lae in Papua New Guinea but no problems in November/December. He denied that the mother had left messages for him.
In terms of the evidence, the content of evidence between the mother and father with regard to the assertion by the mother that the father was not allowing communications in November/December, I prefer the evidence of the father.
Ms E
The father’s fiancée, Ms E, gave evidence in accordance with her affidavit filed 3 August 2012. She gave further evidence in chief that her son L was born in late September 2012 and that L is a child of the father. She said that the father is recorded as the father on L’s birth certificate. I accept the evidence of Ms E and the father that L is a child of their relationship.
Ms E has a child of a previous relationship who is cared for by her mother in Country B. Ms E was hoping that that child can move into her care once she has discussions with her mother (who has been the primary carer of the child) and the child’s father, who, on the evidence of Ms E, has had no involvement with the child.
In cross-examination the mother asserted to Ms E that she spanked the child. Ms E was clearly shaken and upset by the assertion and denied it absolutely. I accept her evidence.
Ms E is strongly supportive of the father but acknowledges the role of the mother in the child’s life. I generally accept her evidence.
Ms F
Ms F is a nanny who had been employed by the parties in January 2007 to care for the child.
She swore three affidavits which were relied upon by the father namely 10 June 2011, 3 August 2012 and 8 November 2012.
Ms F lives at the home of the father and has been the primary attachment figure for the child. She deposed in her first affidavit of her care and the father’s care of the child prior to June 2011.
In her affidavit of 2 August 2012 she provided evidence that she continued to care for the child.
Ms F has been living in Cairns with the father and Ms E since September 2012. She continues to care for the child and cares for the father’s second child L as a nanny. She intends to continue to work for the father for the foreseeable future.
She was upset that the mother suggested to her that her job was at risk and I am satisfied she has a close and loving relationship with the child. They sleep in the same room. Her descriptions of the care of the child seem accurate.
She was cross-examined by the mother in relation to an allegation that the father had put the child outside as a small baby and that Ms F had refused to assist the mother. Ms F asserted, and I accept, that no such event occurred, and I accept that the mother threatened her on at least one, possibly two occasions saying, in late 2012, that she would be an enemy of Ms F.
The mother cross-examined Ms F in relation to some minor lapses in her evidence. Ms F impressed as frank and straight forward. She carefully answered the questions to the best of her ability. She is closely identified with the father and his present family and I am satisfied that Ms F’s evidence is accurate but needs to be seen on that subjective basis. Her evidence was clear, frank and was not impeached.
Ms K
Ms K is a family consultant who prepared an initial report in the Federal Magistrates Court on 8 June 2011.[3] The report was a limited assessment to enable the Federal Magistrate to make interim orders at the very early stages of these proceedings.
[3] Exhibit ICL2
She recalled that the mother had a support person with the child for at least part of the time she spent at the interview but could not recall the exact circumstances.
Ms K’s evidence was consistent with the observations of the single expert, Ms C, and I accept her evidence (as it may be having regard to the subsequent analysis by the single expert) as being accurate and reliable. There was no issue taken as to the qualifications of Ms K.
FINDINGS
Counsel for the father submitted I ought to make a number of findings. Having regard to his submissions and my assessment of the evidence, I make the following findings:-
§The mother left Papua New Guinea in August 2009 of her own accord to pursue a better life in Australia.
§There was no agreement between the father and the mother that the father and/or the child would relocate to Cairns.
§The separation was not encouraged or provoked by the father.
§The father has from August 2009 to date facilitated the child spending time with the mother in Cairns.
§The mother filed an application in the Federal Magistrates Court in May 2011 based upon implied misrepresentation that the child was living with her and the mother was aware that the father had taken steps to try to find a mediated agreement.
§This Court rejects the evidence of the mother that the father provoked her to take those ex parte proceedings in the Federal Magistrates Court.
§The mother’s assertion that the father was in breach of the order relating to the passport of the child or bringing the child to Australia in late 2011 was not established and the father was not in breach of that order.
§The father and the child have a strong secure attachment.
§The mother and the child have a strong and secure attachment but not to the extent of that between the child and the father.
§The child has a relationship with the father’s broader family, Ms F, Ms E and has a developing relationship with her sibling, L.
§The father and Ms E are the biological parents of L.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The child has a meaningful relationship with both of her parents. She was primarily attached to Ms F, however in recent times, in accordance with her normal growth, development and maturity, the child has developed broader relationships including that with the mother and her sibling L.
It is not in issue that the child ought to have a meaningful relationship with both parents. The real issue is how that should occur and in what circumstances bearing in mind the geographic distance and the history of the parties and the child.
Section 60CC(2)(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 not a case where there is any need to protect the child from physical or psychological harm or being exposed or subjected to neglect or family violence.
The mother raised issues about Ms E being violent to the child. I do not believe the mother. There is no evidence showing any difficulties between the child and Ms E. Nothing in the report of Ms C gives rise to concerns in that regard.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The chid has not expressed any view as to whether she wants to live with one parent or the other. She is attached to Ms F and has a close relationship with both of her parents.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The primary attachment for the child was with Ms F. She was the carer of the child from soon after her birth and has continued in that role. The evidence of the single expert is that this was positive and enabled the close relationship and loving relationship that the child has with her parents.
There was some suggestion that the father had become enmeshed in his relationship with the child although this must be seen in context at the time these criticisms were made. In any event any such enmeshing seems to have reduced as is clear from the single expert’s second report.
The father has a caring parental style and there is no meaningful criticism of him in relation to that style. The child is developing a relationship with her brother L and for this relationship to develop properly and effectively it would be better for the child to be living with L according to the single expert. I accept her evidence in that regard.
The child has a close relationship with the mother although her authoritarian parenting style is somewhat troubling. This has been ameliorated by the involvement of Mr M in recent times including the mother focusing more on the needs of the child rather than the perceptions of the child, according to the single expert.
The mother was critical of the child’s relationship with Ms E although no such criticism was made by the single expert. I prefer the evidence of the single expert and I am satisfied the child has a good relationship with her and a very close relationship with the father.
I accept the evidence of Ms F that the child is close to her and I am satisfied that a relationship is important to the child. Ms F is a significant and stable part of the child’s life and has been since January 2007.
The Independent Children's Lawyer submitted and I agree that:-
Current evidence from the updated family report filed on 11 July, 2013 is that [the child] has an attachment with both her parents but may be more attached to her father having spent time alone with him for 3 months whilst her nanny [Ms F] remained in Cairns with [Ms E].[4]
The report writer also notes at paragraph 96 of her updated report “The Mother does rely on others, especially [Mr M], to assist her to parent [the child], but that is not necessarily a negative aspect as [the child] has been able to develop a close relationship with [Mr M] and he appears to be a willing and able parent-figure for the child.”
With regard to The child’s relationship with the father’s partner [Ms E] the report notes “[Ms E] and the child have a relationship based on availability, e.g. [the child] and [Ms E] play together at times. “she also notes “[the child] remains attached to [Ms F] but not in as much of a manner as she was previously. Nevertheless, [Ms F] remains an important individual to [the child]”. [5]
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child
[4] Family Report filed 11 January, 2013 at paragraph 93.
[5] Family Report filed 11 January, 2013 paragraph 96
Since separation the father has demonstrated persistence in promoting and enabling the relationship between the child and the mother. This has been despite some difficult behaviour by the mother including the ex parte application to the Court where she was less than frank in terms of her evidence, bringing the child back late to the father and not assisting with the passport applications. Yet the father arranges and funds for the child to spend time with the mother. I am satisfied this is likely to continue if the child was primarily in the father’s care.
As to the mother she has poor regard and little respect for the father. She has been abusive and/or demeaning of him in communication and the evidence of Ms C, the single expert, was that the mother had little positive things to say about the father. Ms C gave evidence that it would be of concern if the mother was the primary carer of the child having regard to her negative view of the father.
The mother has had the opportunity to change her views and attitudes but has not done so in a meaningful way. The single expert’s evidence was that the father seemed to have more confidence with the mother now that Mr M is involved and that the father had completed the focus on children’s programs.
The Independent Children's Lawyer submitted that:-
The s65L Family Consultant noted in her memorandum that the father found it difficult to nominate a time for [the child] to communicate with her mother via Skype as he didn’t know his schedule. When the father suggested he would have [Ms F] make the arrangements [Ms N] suggested the father should actively support and encourage her Skype communication with her mother.[6] Order 15 of the Orders of Federal Magistrate Willis of 13 May, 2011 provide for the father to ensure the child speaks with the mother by Skype or telephone.
The mother continues to complain the father does not facilitate her spending time with [the child] either in person or by Skype. She alleges he does not provide her notice when he is travelling to Cairns or times when [the child] will spend time with her. She alleges the inappropriate postings on [the child’s] Skype account were as a result of not being able to communicate with [the child] for a period of 6 weeks. Yet others reported there are nearly daily contact between [the child] and her mother.[7]
[6] Family Consultant Memorandum 17 January, 2012.
[7] Family Report filed 11 January, 2013 paragraph 74.
I accept and adopt that submission. The father is more likely to facilitate communication between the child and the mother, than would the mother with the child, if she were to live primarily with the mother.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The evidence of Ms C was that the change of primary residence would have an adverse impact on the child in terms of her relationship with the father, L and Ms F. The child was significantly attached to Ms F in the child’s earlier years and that attachment has provided a sound foundation for the child to form and maintain relationships with the father, the mother and other members of her family.
The child is happy at School D and is performing quite well.[8]
[8] Exhibit F1 school report 2012 and Exhibit ICL1 statement from school teacher & principal
The evidence of the single expert, which I except, is that there is a risk that the child would not cope if she were removed from the care of the father to the mother. Whilst the child is emotionally robust, I am concerned about any move having regard to the settled nature of the child’s arrangements at the present time and the fact that she is thriving in the current environment.
Added to that concern is the mother’s apparent indifference to the child’s relationship with L. The mother is not convinced that L is the child’s sibling. The mother has little if anything positive to say about the father and during the course of the proceedings took numerous opportunities to be critical of the father. The mother has in email and other communications been abusive and demeaning of the father.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Whether the child lives in Papua New Guinea or Australia, there will be difficulties with the cost of travel and communication with the other parent.
The father has the present financial and personal capacity to ensure that the time and communication will continue irrespective of whether the child lives in one country or the other.
I am not convinced that the mother will or has the personal capacity to overcome the geographic distance and the relationship between the child and her family (father, brother, Ms F and Ms E) in Papua New Guinea could be damaged in those circumstances.
The only effective time can be during school holidays or if the non resident parent travels.
Section 60CC(3)((f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parents were engaged in conflict over parenting, which the child became aware of although this has diminished in recent times. The child provided an insight as to the impact of this on her when she described the ‘army’ game referred to in paragraphs 96 and 97 of the single expert’s first report. The child is still aware of the conflict between the parents.
The evidence from the report indicates that the father is managing to better protect the child from this conflict although the mother, in her evidence, appears not to do so. She was cross-examined in relation to the child’s alleged criticism of Ms E and from her evidence it appears the mother offered no reassurance to the child about that person and her relationship with her.
The single expert gave evidence that the child seemed to show some silent resistance to the mother’s style and it was her view that the mother and child were likely to clash in the medium term future as a result of the nature of the child and the mother’s authoritarian parenting style.
Both parties have the financial capacity to care for the child although the father has a better capacity than the mother to financially provide for her needs.
Ms C reports at paragraph 92, of her second report, that both parties have a different style of parenting with the mother being authoritarian and the father authoritative with Mr M sharing the same style of parenting as the father
On balance, having regard to the evidence, I find that the father is better able to provide for the physical and emotional needs of the child than the mother.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child attains the age of 7 in June 2013. She is less reliant on Ms F. She has live primarily in Papua New Guinea for the whole of her life. She is settled in that community with the father (aged 42), Ms E (aged 23), Ms F and L aged about 4 months at the date of hearing.
The mother is 31 years of age and Mr M is 42 years.
Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother was cross-examined by the Independent Children’s Lawyer as to the impact of the change in residency proposed upon the child. The mother obfuscated in terms of that evidence and eventually indicated that the impact would not be of great consequence. This is despite the evidence of Ms C. I am not convinced that the mother is attuned to the needs of the child.
When the mother moved to Australia in August 2009 she asserts that the father promised he would bring the child to live with her two months later. She did not pursue that claim for just under two years, which undermines the veracity of that assertion.
The child remained in Papua New Guinea and spent regular time with the mother in Cairns up to May 2011.
From a time soon after her birth, Ms F was, and at some levels continues to be, the child’s primary carer. The child was raised by Ms F and both parties allege the other had very little to do with the child when she was younger. Except for a period of 3 months, whilst Ms F was in Australia with the father’s new partner, Ms E, after the birth of L, the father had not parented the child alone.
The mother has recently had the assistance of her partner Mr M when spending time with the child.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
There is some evidence that the child may have seen the mother’s inappropriate Skype postings. There are the allegations about Ms E, about which I have dealt with earlier.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There have not been nor are there presently any family violence orders.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The mother is unlikely to accept this result,[9] she is determined that the child should live with her. She made it clear in evidence that she would continue this litigation, to the High Court if necessary.
[9] Family Report filed 11 January, 2013 at paragraph 74.
If these orders I intend to make survive any such appeal processes, it is less likely for there to be proceedings as the father has in the past and is likely in the future to promote the child’s relationship with her mother. As I have said elsewhere the mother is less likely to do so.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
The evidence of the single expert was that if the child moved from the father’s house there would be a sense of loss of the father, Ms F, her school and her school friends and a loss of security and a sense of place.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The child has been in the care of the father since August 2009 and there is no evidence the mother had any input into this decision in relation to her parenting since that move but it is clear that the father has, at some levels kept the mother appraised of the events in the child’s life.
The mother has taken every opportunity provided to spend time with the child. The mother alleges the father does not provide sufficient notice as to when he is travelling to Australia with the child. Further she complains that there was a period of some 6 weeks when she was unable to have electronic or telephonic contact with the child, and suggests that the father sabotaged or inhibited that communication, including turning up the volume of the television in the background. I do not accept that evidence of the mother.
I am satisfied the father does give the mother reasonable notice of trips, does facilitate communication and I am not satisfied that he endeavours to disrupt the child’s communication with her mother.
The parties, particularly the father, have provided financially for the child. The father has facilitated and funded the child’s travel to and from Cairns, including before the commencement of the court proceedings.
PARENTAL RESPONSIBLIITY
Under the Family Law Act 1975 (Cth) (“the Act”), when making parenting orders 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. In this regard, “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents has in relation to children.”
Equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility it is not about residence, although a determination that there is to be equal shared parental responsibility imposes obligations on first instant judicial officers to consider in terms of time.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the parent’s family or engaged in family violence or that it is not in the best interests of the child.
Section 60CC sets out the factors to which I must have regard in determining what is in the child’s best interests, I must have regard to the factors set out in s 60CC of the Act and in these proceeding I have had regard to them.
In Aldridge & Keaton,[10] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Act does not (at 83,825):-
…direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.
[10] Aldridge & Keaton (2009) FLC 93-421.
In Marvel & Marvel[11] the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) set out the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility. The Full Court stated:-[12]
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
[11] Marvel & Marvel (2010) 43 Fam LR 348.
[12] Ibid at [103].
In this case parental responsibility has been, to all intents and purposes undertaken by the father.
Ms C notes in her report 10 January 2013:-
88.Both parents present as untrusting of the other parent as they did in April 2012. Communication continues to be problematic for the parents with the Father providing examples of inappropriate written correspondence by the Mother.
89.Likewise their ability to share the care and responsibility of [the child] with maturity and dignity is still yet to be developed, with the Father stating his proposal is to have sole parental responsibility, and with the Mother not being able to verbalise any positive statement about the Father.
The parties have had difficulties communicating over the years and this was the subject of some concern and criticism by Ms C. However, in recent times their communications have improved. Though the mother’s poor view of the father was continued in her reporting to Ms C in her most recent report.
The parents managed to arrange times and changeover dates over the 2012/2013 Christmas/New Year period and each of them asked for orders for equal shared parental responsibility.
I was initially somewhat concerned by some evidence by the mother as to the treatment of a hernia diagnosed shortly after the child was born. I was less concerned after hearing evidence from the father. The father’s evidence, which I accept, was that the child was born with a small hernia in her stomach and the medical advice was that it was nothing to worry about but should be looked at before the child entered teens to see whether there needed to be more treatment done, primarily for cosmetic purposes.
The mother’s evidence was that since 29 December 2012 she noticed that that hernia was somewhat bigger. She said it was sometimes red and the child played with it. She said she did not take the child to the doctor as the child would not enter the doctor’s surgery with her and was reluctant to see a doctor.
She said she tried to go into the doctor’s surgery with the assistance of Mr M and the child would not go in there. Mr M said no such event occurred (which added to my concern about the reliability of the mother’s evidence).
The mother had taken the child to a doctor earlier in 2012 and did not inform the father.
There are many aspects of this which cause concern, firstly that the mother was unreliable in her evidence. The mother was unable to take the child to see the doctor and that reflects on the mother’s ability to manage the child over extended periods. As to parental responsibility the mother had not told the father about her concerns in relation to the hernia. Further, the mother had arranged for the child to see a doctor earlier in 2012 and had not informed the father.
The evidence of the father, which I accept, is that the child has been in robust good health and has only needed limited medical attention over the years, and that he had informed the mother about those events.
The mother complained that the father did not facilitate dental appointments she had made at a dental clinic. The mother had her teeth worked on by dental students at that clinic and wanted the child to have treatment likewise. The father’s evidence, which I prefer, is that he said he would arrange the dental work for the child if necessary. He had not done so yet and his explanation was that at the school there were two sessions a year where the children’s dental health was confirmed.
The evidence of the father, which I accept, is that he generally keeps the mother informed as to significant aspects in relation to the child’s life including medical issues. Despite the assertions of the mother I am satisfied that he makes the child available to telephone and Skype communication.
The father had hoped that the events over the Christmas/New Year period reflected a change in the mother’s approach to negotiating with him and particularly with the influence of Mr M.
It is clear from the report of Ms C that Mr M was a significant factor in the mother’s improvement. Mr M’s evidence is that he is committed to the mother and wishes to marry her and have a life with her. The mother’s evidence in relation to this relationship was at times ambivalent and there is some doubt as to her long term commitment to that relationship.
There has been significant difficult correspondence, emails and texts between the parties, the majority from the mother which is indicative of poor communication. The communication between the parties is poor and whilst the father is endeavouring to improve that communication I am not convinced that the mother is willing to step away from her authoritarian style. Her evidence was that if the father disagrees with her she regards that as emotional violence.
The mother has shown an inability to negotiate. This commenced with her failure to negotiate in May 2011 and going to court rather than attending mediation. The parties’ communication has improved but is way off being in a position where they can seriously work together.
The mother’s cross-examination of Ms E showed the anger and anxiety between the two for which the father has, to date, been able to shield the child.
The parents live in different countries and their communication has at times been difficult for technical reasons in addition to their personal communication difficulties.
The father has shown an ability to keep the mother informed and to work with her, this is likely to continue into the future. The father will be required to provide the mother with the opportunity for input and to have given consideration to that input if offered. It would seem to me that if I adopted the position of the mother (and the position of the father for the best part of the hearing) it would inevitably lead to litigation.
It is not in the best interest of the child to make an order for equal shared parental responsibility in these circumstances. The Independent Children's Lawyer was rightly worried and I accept her counsel’s submissions.
If the father is given sole parental responsibility I am confident he will consult and have regard to the views of the mother. As such I will make such an order here.
LIVE WITH
The relationship between a decision as to parental responsibility and residence is symbiotic. The decision may be set out in a particular order in reasons but must be considered independently and as one. I have done so in this case.
The position of the father was that he and his family would remain living in Lae in Papua New Guinea and he had no plans to move to Cairns irrespective of the outcome of these proceedings. There was some evidence of plans by the father to move to Melbourne at some time in the medium to the long-term.
Generally the Independent Children’s Lawyer submits that the child has lived all of her life in Papua New Guinea and is a bright little girl although she is having some difficulties at school due to the time away from school.[13] The time away from school generally reflects the time the child has been spending with the mother in Cairns.
[13] Exhibits F1 and ICL1.
The child has lived primarily with the father since separation and, to his credit, he has facilitated regular time between the child and the mother in Cairns.
There was a question about the father being emotional when he saw Ms K in June 2011 which caused concerns as set out by Ms K in her report. At this time the father had just returned to Australia and was upset and tired (I accept his evidence in that regard).
Notwithstanding this the father arranged to see Mr O (a psychologist) on two occasions and his approach has modified since that time, as can be seen by the assessment of him by the single expert which has improved from the first report to the second report.
In her November 2012 affidavit the mother said that she had contemplated moving to Papua New Guinea if her application was unsuccessful. However, she had a change of heart in relation to that subsequent to the filing of her affidavit. Her view is now that the child must live with her in Australia and that irrespective of these proceedings she will pursue proceedings through all appeal mechanisms and if necessary to the High Court of Australia to ensure that the child lives with her in Australia.
The mother has no plans or desire to live with the child in Papua New Guinea. In many ways this is consistent with the mother’s evidence that one of the primary reasons for moving to Australia in August 2009 was her desire for a better lifestyle within Australia. Therefore the only options reasonably available to the Court in relation to where the child lives is that the child continued to live in Papua New Guinea with her father, step mother, brother and Ms F or live with the mother and Mr M in Cairns in Australia.
The mother complained that she is concerned about the security in Papua New Guinea. As I said earlier, it is not possible for this Court to guarantee the security or well being of any child. However, the mother was content to move back to Papua New Guinea shortly after her birth and to live there until mid 2011. The father has shown a protective approach in respect of the child. I do not dismiss the mother’s concerns as they are clearly real, however, they are not at a level where I am satisfied that there is an unacceptable risk to the child.
The relationship between the father’s partner and the child is developing as is the relationship between the child and L. Ms F is likely to remain a member of the father’s household for the foreseeable future.
The preceding examination of the issues in this case and the evidence has been considered in the context of the primary and additional considerations required under the Act.
There is a benefit in the child having a meaningful relationship with both parents and their broader families.
The child is not at an unacceptable risk of abuse in the care of either parent.
Having regard to all of the relevant factors, it is clear that the child is thriving in the primary care of the father. There is a risk ant the child would not cope if that were changed, despite her robust nature.
The continuing care arrangements proposed by the father much better meet the needs of the child and are in her best interests as opposed to the arrangements proposed by the mother which are less optimal.
As such I will order that the child continue to live primarily with the father in Papua New Guinea.
TIME & COMMUNICATION
The father and the Independent Children's Lawyer have submitted that, if the child was living with the father in Papua New Guinea, the mother could come and visit the child up to twice per term and spend a weekend with the child (including long weekends) from after school Friday to commencement of school Monday or the longer period if this is a long weekend. That would be at the mother’s expense. The father would provide transportation for the mother (and Mr M in those circumstances). The mother said she would not take up that offer. Notwithstanding the mother’s reluctance in that respect I intend to make an order in that respect and it is up to her if she is willing or able to see the child on those additional times. It is up to her to take that time if she chooses to do so.
The parties are generally in agreement as to what time the child spends with each parent during school holiday periods and that is reflected in the order proposed by the Independent Children's Lawyer subject to variation about return times and the father’s reluctance to fund costs of the broader travel by the mother.
There was an issue about the cost of the airfares to and from Cairns and Papua New Guinea. The cost is about $1,500 each way. The father has been paying all of these costs in recent times including between fifteen and twenty trips in the 2012 calendar year.
As the mother is in a relationship with Mr M who has the capacity to earn about $50,000 per year and the mother earns about $900 per week, it is the father’s view that she should contribute something towards those costs.
The father’s evidence was that he could manage the cost, although he had the additional expenses with his fiancé and their young child L. Having regard to his concessions and his agreement with the majority of the orders proposed by the Independent Children's Lawyer I have made an order that he meet the cost of school holiday travel.
In the circumstances of the broader request for him to fund the mother’s travel to Papua New Guinea I have had regard to his financial circumstances and I have determined that the child will live with the father; the father should meet the school holiday trips from Papua New Guinea to Cairns and back.
In Exhibit ICL3 the Independent Children's Lawyer submitted that the mother’s time, outside school holiday periods could be spent in Lae with the father to be responsible for all costs in relation to the mother’s flights and one half of accommodation costs. The father argued that this would impose a significant burden upon him having regard to his financial circumstances. The evidence of the father was that the cost of the four trips per year (which he is consenting to paying) is somewhere between $18,000 and $21,000 per year. On the Independent Children’s Lawyer’s case this will add another $15,000 to $16,000 in airfares and costs. The father has a good income but not sufficient to meet the costs of those trips. I accept the father’s submissions and I will not make that order.
In the geographic and other circumstances of these parties, the time arrangements as set out above are the most feasible that can be put in place at this time and meets the best interests of the child.
In terms of Skype communication I accept the evidence of the father that he has Skype available between 5.00pm and 7.00pm three nights per week and it is readily available for the child to ring the mother. I will put in place two orders, one enabling the mother to telephone the child on a regular basis and another that the child can telephone the mother at any time she chooses.
The parties each seek permission for overseas travel. The father for the obvious reason that he lives overseas and his present partner was born and raised in Country B. She has a child from another relationship in Country B.
The mother wishes, at some time, to travel with the child to visit her family in Country B. Each parent generally accepted the proposal of the Independent Children's Lawyer in Exhibit ICL3 and I will make those orders.
PASSPORT
The child’s passport expired at the end of 2011. Orders had been previously made that year to enable the child to travel to Papua New Guinea to enable the child to spend time with the mother.
The evidence of the mother was that she did not consent to the issue of the passport in Papua New Guinea and wanted the passport issued in Australia irrespective of it meaning that the child would remain in Australia in contradiction of the orders made earlier this year by the Federal Magistrate.
As I have said earlier, the mother was not an impressive witness and was using this device to bring about the result that she wanted, that is that the child would reside with her in Cairns. Her explanations in relation to this event were unsatisfactory. I do not believe her excuses. It was a device designed to give effect to the outcome which she determined. The mother when cross-examined in relation to this issue was unrepentant and saw no problem with her behaviour in that regard.
The child’s passport was issued in 2011 and will expire in 2016. Having regard to the determinations made elsewhere in this judgment I see no reason why the father should not be responsible for the re-issue of the child’s passport.
The father has acted appropriately in relation to bringing the child to Australia, even when court orders were made, and to ensure that the child had appropriate passports and visas. I am satisfied that the father should be responsible for the issue and re-issue of passports for this child. In coming to this conclusion I have had regard to the evidence and the findings and discussions elsewhere in these reasons.
PROPERTY AND MAINTENANCE PROCEEDINGS UNDER PART VIII OF THE ACT
The mother seeks both property orders and spouse maintenance orders. The spouse maintenance orders are for a closed period. In her further amended application filed 10 May 2012 the mother sought the following spousal maintenance order:-
That the father … pays the spouse maintenance for [the mother] from August 12 2009 until the divorce if final.
It is not an issue that the parties marriage was dissolved by an order of the Family Court made … May 2012 which presumably became a decree absolute on … June 2012.
The father’s submissions contended that the Court had no jurisdiction to make property and maintenance orders or alternatively that the Court had jurisdiction and ought not to exercise that jurisdiction.
The father submitted to the jurisdiction of this Court in terms of parenting proceedings but objected to jurisdiction or the exercise of jurisdiction in terms of the property and maintenance proceedings.
Is this court able to litigate one cause of action and be a clearly inappropriate forum for another?
I accept that this Court is able to exercise jurisdiction in respect of one cause of action and be a clearly inappropriate forum in respect of another cause of action. In coming to this conclusion I have had regard to the comments made by O’Ryan and Thackray JJ in Navarro and Jurado [2010] Fam CAFC 210.
O’Ryan J said of this legal issue:-
150.There have been a number of decisions of the Family Court which have applied Henry including Kahdemollah & Kahdemollah (2000) FLC 93-050; Steen & Black (2000) FLC 93-005; Park & Byon [2003] FamCA 121 (28 February 2003) and Sankil & Sankil (2007) FLC 93-351. In Kemeny v Kemeny (1998) FLC 92-806, the Full Court (Finn, Kay and Maxwell JJ) held that although the Family Court may be a clearly inappropriate forum to litigate one matrimonial cause (for example, as in that case, where property orders had been made by an overseas court) it may nonetheless properly exercise its jurisdiction with respect to others (such as parenting matters, or with respect to property located in Australia).
Thackray J said:-
81. I accept that this Court has, on occasion, accepted that Australia may be a clearly inappropriate forum in which to litigate one “cause of action”, whilst at the same time being prepared to hear other matrimonial disputes between the same parties. Kemeny v Kemeny (1998) FLC 92-806 is a good illustration of where that is an appropriate outcome
Jurisdiction
The father submitted that this Court has no jurisdiction to hear the spouse maintenance claim or the property claim. I do not accept that submission.
Section 31 and s 30(1) of the Act confers jurisdiction on the Family Court with respect to matters arising under the Act in respect of which matrimonial causes are instituted.
In s 4 of the Act a ‘Matrimonial Cause’ is defined to include proceedings with respect to maintenance of one of the parties to a marriage and/or property proceedings between such parties.
Section 31(2) empowers the Family Court, in some circumstances to exercise its jurisdiction to persons or things outside of Australia and the Territories.
Section 39(4) of the Act provides that proceedings may be instituted if a party to the marriage or to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia at the relevant date (as defined in s 39(4A) of the Act).
At the date of commencement of these proceedings, the father was an Australian citizen and the mother lived permanently in Australia.
The Court has jurisdiction in these matrimonial causes.
The applicable test
The question is whether the Court ought to exercise that jurisdiction, having regard to the clearly inappropriate forum test, which principles are well settled. The principles were established in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. The test was discussed in the context of family law litigation in Henry v Henry (1996) 185 CLR 571.
These principles and explanation was well set out by the Full Court in Navarro and Jurado (ibid). In determining each of the stay applications I have had regard to the discussions as to principle in Navarro. The onus is on the father to establish the basis for the stay or stays. In my considerations I have had regard to the comments of Deane J in Oceanic SunLine Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-8, where he said:
Th[e] power [to stay proceedings on forum grounds] is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.
O’Ryan j observed in Navarro and Jurado (ibid):-
136. In Henry, Dawson, Gaudron, McHugh and Gummow JJ identified at 592-93 a non-exhaustive list of factors which should properly be taken into account in determining whether the local court is clearly inappropriate where in a dispute arising from a matrimonial relationship there are lis alibi pendens:
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction for the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine the question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved. (footnotes omitted).
137.In summary, in circumstances where there are lis alibi pendens in a dispute arising from a matrimonial controversy, the majority in Henry identified a non-exhaustive list of factors which should ‘properly’ be taken into account in determining whether the Australian court is clearly inappropriate, namely:
·the jurisdiction of the foreign court;
·whether its judgment can be enforced in Australia;
·the stage the separate proceedings have reached;
·the costs incurred;
·the relative connections each party has with the foreign and forum courts;
·the ability of each of the parties to participate in the proceedings in the foreign and forum courts on an equal footing.
Having regard to the different nature and arguments as to the two Part VIII causes of action, in particular whether the court should, or more appropriately should not, exercise its jurisdiction, I intend to deal with them separately.
Spouse Maintenance
In terms of the spouse maintenance application the father provided written submissions and the mother did not do so. She was unrepresented and that outcome was not unexpected.
It is not clear what jurisdiction the Courts in Papua New Guinea have in relation to spouse maintenance. Section 110 of the Act makes provision for the enforcement of overseas maintenance orders. Division 2 of the Family Law Regulations 1984 provides a list of reciprocating jurisdictions, of which Papua New Guinea is one. As such I take it that a spousal maintenance order made by this Court is enforceable in Papua New Guinea and vice versa. Any such judgment is enforceable.
The mother commenced proceedings in Australia and no proceedings have been commenced in Papua New Guinea.
The proceedings for maintenance have been heard in Australia and are of limited scope. Each of the parties filed financial statements and submissions were made, at least on the part of the father. I take it that the mother continues to press for an order.
Proceedings for spouse maintenance in Papua New Guinea would involve significant further cost and in the context of the application may render any outcome in Papua New Guinea nugatory.
The father has participated in these maintenance proceedings but the mother would find it costly and difficult to fund such proceeding in Papua New Guinea.
Having regard to these factors I propose to determine the maintenance proceedings in this Court.
In her financial statement filed 16 January 2012 (which the mother relied upon of which she was not cross-examined) the mother asserted she had an income of $972.50 per week and expenditure of $337 per week.
Of that income the mother disclosed income of wages of $263.50 and that she had a hospitality company but provided no details of income from that hospitality company. She disclosed that she disclosed benefits from her business of some $409 per week. Therefore her income for the purpose of these proceedings totals some $672.50 per week.
At that time the mother disclosed that there was no-one living in her household. Since that time she has commenced living with Mr M. The evidence is that Mr M earns about $50,000 per year and that he and the mother share expenses including food and rent.
The mother did not provide detailed evidence of her weekly expenditure, nor did she provide evidence of any borrowings to enable her to live over the closed period.
The father relied upon his financial statement filed 8 June 2012 which he discloses an income of about $2,811 per week which is about $1,538 in salary and wages and about $1,273 in benefits from employment.
Included in his household is his employee, Ms F who earns $100 per week. The father is in a domestic relationship with Ms E, and he is responsible for her support and that of L. The evidence of the father and Ms E is that she and their child live with the father and are dependent upon him. There is no evidence of any income of Ms E.
The father has had the primary responsibility for the support of the child since separation including a significant number of flights from Papua New Guinea to Australia which have invariably been at the expense of the father.
The father’s evidence, from his financial statement, was that he expended almost all of his income on living expenses. This appears not to have taken into account the additional costs of the care of L or Ms E.
The father provided financial support to the mother between August 2009 and May 2011 and has provided indirect support through the provision of travel for the child from Papua New Guinea to Cairns.
The mother’s application is somewhat unusual in that she claims spousal maintenance at an undefined level for the period prior to separation (when there is uncontested evidence that the father did provide some levels of support for her) and for the period from after separation to the commencement of proceedings. For the period after commencement of proceedings in May 2011 for a period of approximately thirteen months the mother seeks spousal maintenance. It is clear that the mother was earning an income as set out below and has not incurred significant debt.
The matters to be so taken into account are set out in the following paragraphs.
The ages of the parties are set out earlier. Each of the parties is in good health and have the physical and mental capacity for maintaining their respective paid employment.
The income, property and financial resources of each of the parties are set out in their respective financial statements, to which I have had regard. The parties have the physical and mental capacity of each of them for appropriate gainful employment.
As a consequence of the parenting orders, the father will have the primary responsibility for the care and control of the child. In addition the father has the responsibility to support himself, Ms E and L. He applies his income for that purpose and to meet the costs of travel to and from Cairns with the child.
Neither the father nor the mother are eligible for or are in receipt of a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or from Papua New Guinea. Similarly neither party has an entitlement to any superannuation fund or scheme. Each of the parties enjoys reasonable standards of living given their respective circumstances.
Having regard to the limited nature of the application the question of whether the extent to which the payment of maintenance to the mother would increase her earning capacity or enable her to undertake training or to establish herself in a business, was not argued. The mother has set up another business.
There is no credible evidence that there was any significant contribution of the mother to the income, earning capacity, property and financial resources of the father.
The period of the marriage has not affected the earning capacity of the mother and the need to protect the mother’s wish to continue as a parent. The mother has not been a primary carer for the child.
No property order has been made in either Australia or Papua New Guinea. At present the father has far greater access to property than does the mother. The mother does not pay any child support.
I am not satisfied that the mother is unable to financially support herself or over the relevant period was unable to financially support herself. On that aspect alone the mother’s application in respect of spousal maintenance should fail.
Counsel for the father submitted:-
Second, the mother provides no apparent evidentiary basis for backdating [spousal maintenance]. More significantly, the mother fails to establish a need for maintenance, and accordingly, any prima facie case for relief.
I accept and adopt that submission.
There is no evidence that the father has excess capacity to meet any spousal maintenance order, particularly having regard to his duty to care for the child, his son L and Ms E.
As such the mother’s spousal maintenance application is dismissed and I will order accordingly.
Property
For the purpose of the property proceedings under Part VIII of the Act counsel for the father submits that I ought to make a number of findings. In addition there are some facts and findings from the parenting and maintenance proceedings which are relevant. Having regard to the evidence in these proceedings I find:-
a)The parties resided in Papua New Guinea for the overwhelming period of time of their co-habitation, the only exceptions being a very short period of time when the parties married and 6 or 7 months around the time the child was born. The father has continued to reside in Papua New Guinea since separation.
b)Any property order invariably will involve property in Papua New Guinea being transferred to the mother, sold or liquidated to pay the mother or payment by the father with the source of such payment being from property in Papua New Guinea.
c)The father is employed by P Ltd. By reason of a trust he has an equitable interest in that company, which in turn operates a trade business. There seems to be an issue as to the extent of that equitable interest.
d)The father and Mr Q (a Papua New Guinea National) are the directors of P Ltd.
e)Mr S and Mr T, who are Papua New Guinea nationals, are the two shareholders in that company. Mr S holds his shares as trustee for Mr Q and Mr T holds his shares as trustee for the father.
f)Any order for liquidation of the company and/or the trust would need to involve Mr Q, and this court would be required to provide him with procedural fairness. If he joined the proceedings there would be significant cost to him. If he chose to ignore the proceedings or frustrate any outcome, there is doubt about whether any order of this Court or any enforcement procedure would be effective against a foreign national and a foreign county.
g)Any liquidation of the company and/or the trust would be under the laws of Papua New Guinea and consequently there would need to be expert evidence on a hearing as to many aspects of Papua New Guinea domestic law.
h)The valuation of property would need to be done in Papua New Guinea and single experts appointed in Papua New Guinea (possibly absent any effective supervision powers by this Court) and at great cost to bring the expert/s to Australia to give evidence. Alternatively, experts would be appointed in Australia and sent to Papua New Guinea to conduct valuation/s, with the consequent cost attaching to that or those valuations.
i)Virtually all witnesses, apart from the mother, will need to travel from Papua New Guinea for the hearing, with the consequent need for travel, accommodation and other expenses.
j)The property proceedings have commenced in Australia but much of the preparation needs to be done, including valuation, discovery and perhaps interrogatories and joining other parties.
k)No proceedings have commenced in Papua New Guinea.
l)The parties have been married since 2002, the child was born in 2006 and the parties separated in 2009, a marriage of about seven years. The post separation period is just about 3½ years. The parties’ marriage was dissolved by order made in May 2012. There is one child of the marriage who lives primarily with the father in Papua New Guinea.
m)The father’s evidence is that the company has assets of $296,963 and liabilities of $437,542 at a conversion rate of 0.483. The father’s evidence is that the company is involved in a taxation dispute with the Papua New Guinea Internal Revenue Commission. He says that the directors are negotiating with the Internal Revenue Commission with respect to tax arrears of K750,000 ($347,220) .
n)The mother seeks varied orders with respect to the business including:-
i)The Court order that she receive 49% of the Papua New Guinea entity. This amounts to 98% of the father’s interest in the entity.
ii)The mother receives 51% of the Papua New Guinea entity. This would mean taking part of the equity of Mr Q.
iii)The mother be appointed to “execute” and sell the company if certain payments are not paid to her.
iv)Thus, she seeks orders both in rem and in personam which;
·will directly affect the title and rights of this foreign company;
·directly affect the obligations, rights and/or entitlements of other persons whom the mother has not joined to these proceedings.
o)The mother’s case is that but for her Australian NAB bank account, her business in Cairns and some personal chattels of hers, the vast bulk of property is located in Papua New Guinea.
p)In terms of the Papua New Guinea property there are very few connecting factors with Australia
It was submitted to me:-
a)That pursuant to the Foreign Judgements Act 1991 (Cth), Australia may recognise and enforce Papua New Guinea “money judgements” of the Supreme and National Courts of Papua New Guinea. I accept that submission.
b)The Papua New Guinea Reciprocal Enforcement of Judgments Act 1976 excludes “matrimonial matters” from the list of in personam judgements which its courts may, in their discretion, enforce. Unlike the schedule to the Australia Regulations, the Papua New Guinea Act does not contain a list of countries and courts where reciprocity applies. Like the Australian Act, the Papua New Guinea Act seems to apply to money judgments – however, the mother here, seeks much more than a money judgment and in any event, the Papua New Guinea Act excludes “matrimonial matters.”
c)Section 5 the Papua New Guinea Act is important. The Papua New Guinea Courts will not recognise judgments of an Australian Court as the original court where
i)The judgment is an excluded in personam judgment – excluded in personam judgments include matrimonial matters
ii)The ‘defendant’ did not submit to the jurisdiction of the original court. [14]
iii)it concerns immovable property outside of the country of that original Court.
d)The father submits that I should find on these submissions relating to the law of Papua New Guinea. I am satisfied that the statements of those laws may be accurate but in the absence of expert evidence as to their meaning in Papua New Guinea domestic law, I am not able to make the findings sought.
e)Having regard to the above circumstances, the costs of conducting the proceedings in Australia will be significantly greater than the costs of conducting the proceedings in Papua New Guinea. That cost will fall to the father who has the present cost of caring and providing for himself, his family (including the child) and the cost of the child’s travel to and from Australia about four times per year.
f)There would be a financial and geographic burden on the mother litigating in Papua New Guinea. Although at one stage the mother said she was prepared to travel to Lae, she has now changed her mind in that respect. The mother could use visits to Papua New Guinea not only for the purpose of a legal proceeding but at the same time spend time with the child.
g)The father will meet the mother’s transportation costs in Papua New Guinea.
h)If the third party nationals who hold legal title to the business are joined, it would not be surprising if they sought for the parties to meet their costs in travelling to this country.
[14]I have found that the father has not consented to jurisdiction in terms of property.
The jurisdiction of the foreign court;
I take judicial notice that the domestic law and courts in Papua New Guinea are able to deal with issues following a breakdown of a marriage. Despite a direction neither party has filed expert evidence as to the nature, extent and availably of the law and courts in Papua New Guinea.
Enforceability of orders made by a Court in Australia
However, Counsel for the father submitted that:-
As a general proposition, the Mozambique rule (British South Africa Co v Companhai de Mozambique (l893) AC 602) provides that a court will not exercisejurisdictionover title to or possession of land situated abroad. The House of Lords further held that the rule denying jurisdiction to the English Courts to adjudicate upon title or the right to possession of foreign land was not merely a technical rule of procedure, but was a substantive rule and therefore was to be followed.
If part of the property involved in Papua New Guinea is real property it was submitted that this rule applies. What is clear is that a Court exercising jurisdiction under the Act in family law generally exercises jurisdiction in personam and as such would not offend the Mozambique Rule for the exercise of jurisdiction with respect to foreign land. Accordingly, an order for one party to transfer title to real property situated in a foreign jurisdiction is an order in personam.
As the Counsel went on the refer me to the decision of JR Loughnan JR (as he then was in Myall & Myall [2007] FamCA , where he discussed the efficacy of making an order in rem; saying:-
I cannot make an effective order in rem in relation to the land in Zimbabwe. That is the point of the Mozambique Rule. I cannot make an order which I have any confidence would be acted on by the authorities in Zimbabwe. I could make an order in personam in relation to the land but there are special problems here because these are undefended proceedings, the respondent is not within the jurisdiction and he has not submitted to the jurisdiction. Thus there is no evidence before me that an order of this Court will be effective in determining the controversy. There is no suggestion that an Australian decree would be effective or even indicative or persuasive. The problem of an order in personam of course, is enforcement. Such an order is unlikely to be effective where the other party is beyond the reach of the coercive powers of the Court in relation to contempt or contravention.
The question raised in Myall is the question of the efficacy of such an order.
Whether its judgment can be enforced in Australia;
In the circumstances of this dispute it is unlikely that there will be a need for property orders to be enforced in Australia. If there was such an order or orders (including for costs) and such orders were unenforceable in Australia, that would not in any way prejudice the mother, quite the contrary.
The stage the separate proceedings have reached;
Property proceedings in Australia have commenced, they are at an early stage. No proceedings have commenced, at this time, in Papua New Guinea.
The costs incurred;
The mother has not incurred any legal costs as she is self represented. She has incurred no valuation or single expert charges, of which I have been made aware.
The father has incurred costs but that has been primarily in respect of the parenting proceedings and his stay application. The father’s counsel submitted that:-
The property aspect of these proceedings has not advanced very far; indeed, the main focus of the dispute has been the child with the mother belatedly pleading property orders in her Further Amended Initiating Application filed 10 May 2012. The mother has not joined the foreign Company/foreign national directors or the trustee shareholders; valuers have not been appointed.
I accept that submission.
The relative connections each party has with the foreign and forum courts;
The father has lived, worked and built an interest in a business in Papua New Guinea since at least 2002 and has little commercial connection with Australia. He has family in Melbourne and he is an Australian citizen. The father was engaged in proceedings in the Australian family law system when he brought the child from Lae to Cairns for a scheduled visit between the child and her mother.
The mother lived in Papua New Guinea from 2002 until 2009. She was born in Country B. The mother has lived in Cairns since 2009 and is now in a relationship with an Australian man.
This marriage has little connection with Australia; the parties married in Country B and lived their life together in Papua New Guinea. Certainly, the father is an Australian living in Papua New Guinea, but that is where he earns his salary, where he and the child live and where the parties lived when together. The mother moved to Australia upon separation.
The relief sought by the mother in Australia is with respect to property in Papua New Guinea.
The ability of each of the parties to participate in the proceedings in the foreign and forum courts on an equal footing.
The mother has a good income and is in a relationship with Mr M. She has limited financial resources, although these are improved as a consequence of her present relationship. Papua New Guinea is not unknown to the mother; she resided there for seven years. Language was not raised by her as a barrier. Clearly it would be more difficult for her to conduct proceedings in Papua New Guinea but I am satisfied the mother will be able to navigate her way around the Papua New Guinea legal system just as she has done in Australia.
The father has significant resources in Papua New Guinea. The father is able to participate in proceedings in Australia, but at great cost. Witnesses from Papua New Guinea may be difficult to engage and force to attend in Australia. Subpoena may be ineffective. All this would impact on the father’s ability to participate on an equal footing.
Generally
Counsel for the father took me to the decision of Kent J in Chen & Tan [2012 FamCA 225, where His Honour summarised the competing positions:-
The essence of the father’s case is that as both parties are Taiwanese nationals (the father having dual Taiwanese-Australian citizenship) who have conducted the entirety of their relationship in Taiwan, these proceedings should be permanently stayed and any issues arising should be determined by the Courts in Taiwan. The essence of the mother’s case in answer to the current application is that the vast majority of the father’s considerable financial wealth resides in Australia and that there are substantial connecting factors with Australia.
In that proceeding property was about $3.491 million in Australia and about $122,000 in Taiwan. Unsurprisingly, the father did not get his stay of the mother’s Australian s 79 proceedings.
In the factual circumstances of these parties the bulk of the property is in Papua New Guinea.
I have examined the matters in evidence and had regard to the submissions (both written and oral) of the parties and conclude that the proceedings should be stayed as this Australian court is clearly inappropriate for these property
I am troubled by the lack of evidence from and submission by the mother in relation to the law in Papua New Guinea. I am conscious that the mother is self represented. I endeavoured to explain the process to her, as best I could. The question of the scope of family law jurisdiction in Papua New Guinea, at his time, remains unclear.
In fairness to the mother I will stay the proceedings for six months and permit the parties to apply in that period of time. If no application is made within the six months the order for stay will become permanent.
I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 March 2013.
Associate:
Date: 6 March 2013.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Stay of Proceedings
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Procedural Fairness
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