Vannak & Dara (No 2)
[2024] FedCFamC2F 1762
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vannak & Dara (No 2) [2024] FedCFamC2F 1762
File number: MLC 6592 of 2022 Judgment of: JUDGE BROWN Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered Legislation: Evidence Act1995 (Cth) ss 69, 140
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 61DA, 64B 65DAA, 68LA, 102NA
Family Law Amendment Act 2023 (Cth)
Cases cited: B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bright v Bright (1995) FLC 92-570
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Fox v Percy (2003) 214 CLR 118
Gin & Hing [2010] FamCA 617
Goode & Goode [2006] FamCA 1346
In The Marriageof Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Johnson and Page (2007) FLC 93-344
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Marvel & Marvel (No 2) [2010] FamCAFC 101
Moose & Moose (2008) FLC 93-375
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
Vannak & Dara [2022] FedCFamC2F 1585
Division: Division 2 Family Law Number of paragraphs: 427 Date of last submissions: 1 October 2024 Date of hearing: 12, 13 & 14 February 2024, 13 & 14 May 2024, 24 September 2024 & 1 October 2024 Place: Adelaide Counsel for the Applicant: Mr Britton (12, 13 & 14 February 2024, 13 & 14 May 2024), self-represented litigant (24 September 2024, 1 October 2024) Solicitor for the Applicant: Daniel John Lawyers (12, 13 & 14 February 2024, 13 & 14 May 2024), self-represented litigant (24 September 2024, 1 October 2024) Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Dixon Gallasch Pty Ltd Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Lee Kelly Legal ORDERS
MLC 6592 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VANNAK
Applicant
AND: MS DARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Respondent Ms Dara (“the mother”) have sole parental responsibility in relation to decisions concerning the long-term care, welfare and development of the child X born in 2020 (“the child”).
3.The child live with the mother.
4.The Applicant Mr Vannak (“the father”) is at liberty to communicate with the child by way of letters, cards and/or gifts, with the father to forward all said letters, cards and/or gifts to the PO Box address provided to him by the mother.
5.To facilitate compliance with Order 4 herein, within seven (7) days the mother do provide the father with the details of a PO Box in her name.
6.The mother is at liberty to review the appropriateness of the content of any letters, cards and/or gifts forwarded by the father to the child prior to passing on any of these items to the child.
7.Pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained, and injunctions are hereby granted restraining him from:
(a)abusing, rebuking, assaulting or harassing the mother at any time or instructing any other person to do so on his behalf;
(b)using or threatening to use violence against the mother and/or instructing any other person to do so on his behalf;
(c)telephoning, texting, emailing, messaging the mother (including via social networking websites or other form of electronic messaging), save and except in compliance with parenting arrangements pursuant to these Orders;
(d)posting photos and/or videos of the mother on the internet (including on any social media sites or any electronic messaging platform);
(e)damaging, attempting to damage or threatening to damage any property owned (whether solely or jointly with another), via, or in the possession or control of, the mother or in any way instructing any other person to do so on his behalf; and
(f)entering or attempting to enter any property or place where he knows or believes the mother to be attending at any given time.
8.The father is restrained, and injunctions are hereby granted restraining him from:
(a)attending and/or removing the child from any childcare centre and/or pre-school or kindergarten or school that the child attends; and
(b)placing or causing to be placed in travel alerts on the Australia Federal Police’s Airport Watch List against the child’s name.
9.The parties each keep the other informed of their current email address and mobile telephone number and advise any change to same within seven (7) days of such change taking place.
10.The mother shall provide a copy of this Order to the child’s school/s, medical and/or allied health providers.
11.Within seven (7) days of the making of these Orders the Court requests that the Australian Federal Police remove the name of the child from the Airport Watch List at all points of international arrivals and departures in Australia and shall not be reinstated thereon save and except by further order of this Court.
12.Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the Australian Passport Office of the Department of Foreign Affairs and Trade issue a passport in the name of the said child upon the filing of the appropriately completed application form exhibiting the permission of the mother NOTING all costs associated are to be paid solely by the mother.
13.The requirement for the permission and/or consent of the father to the issue of the said passport be dispensed with.
14.The child’s passport be retained by the mother.
15.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to final parenting proceedings. The parties to the proceedings are Mr Vannak (“the father”) and Ms Dara (“the mother”). They are the parents of X born in 2020. X was born in Australia, but each of her parents were born overseas. Her mother in Country B; her father in Country C.
As will be explored in further detail, as the judgment proceeds, the cultural backgrounds of the parties are widely divergent and the relationship between them was comparatively brief. It is also apparent that currently there is no effective co-parenting relationship between them and the prospect of their parenting relationship being improved, to any significant degree, in the foreseeable future, is negligible.
For obvious reasons, this is a far from optimal situation in which to parent a pre-school aged child. In addition, it has been the case that until earlier this year the parties lived in separate states – Ms Dara and X in Adelaide; whilst Mr Vannak lived in either Melbourne or rural Victoria. Axiomatically, a problematic situation not assisted by the fact that neither party appears to be well-resourced financially.
In this context, various interim consent orders were made for the father to interact with X, in both Melbourne and Adelaide, on an approximately monthly basis, have proved difficult and expensive to implement, leading to more rather than less conflict between the parties. This in turn has led to multiple contravention applications instigated by the father.
In addition, it is the mother’s case that her relationship with the father, both before and after separation, has been marked by an extreme level of coercive and controlling behaviour, most recently characterised by the father (and a relative associated with him) sending vile, demeaning and abusive text messages to her, members of her family, her friends and professional associates.
It is Ms Dara’s contention that Mr Vannak has significant substance abuse problems (illicit drugs and alcohol) and anger management issues, which need urgent and professional assistance and, if untreated, are likely to pose a significant risk to both X’s emotional functioning and her physical safety. Essentially, it is her case that Mr Vannak lacks insight into the consequences of his behaviour, both for her, and more significantly, for X.
Mr Vannak is not in a position to refute the evidence of the text messages which he sent, which are contained in copious pages printed from the electronic record and exhibited in court.[1] Nor can he contest the fact that he has used illicit drugs in the past given he has provided a positive hair follicle test as recently as October 2023.[2]
[1] See Exhibit A & G.
[2] See Annexure B to the affidavit of Lee-Anne Kelly filed 10 November 2023.
However, it is his position that he has been abstinent from illicit drugs since the October test and has recently made the commitment to relocate to live in Suburb D, in suburban Adelaide, to be able to pursue a relationship with X, whom he loves. He has repeatedly indicated, in court, that he will do whatever it takes to ensure he has a relationship with X, and she is his number one priority in life.
In reply, Ms Dara has indicated that she has done her best to support the father having a relationship with X but has reached the conclusion that he is incapable of behaving consistently in a non-abusive way towards her or of rectifying other aspects of his anti-social behaviour, which she would characterise as long-standing and as having had a significant detrimental effect on Mr Vannak’s previous partners and his children from earlier relationships.
Essentially, she is sick and tired of being abused and threatened by Mr Vannak and being subject to his expectation that he can come and go, in X’s life, as he pleases and she, in effect, must fit in with him, because he is X’s father.
It is her position that, from her experience of him, Mr Vannak is capable of only engaging in infrequent and flamboyant gestures of paternal devotion to X but is otherwise largely incapable of making any long-term commitment to parenting her effectively, including in respect of reliably paying child support to her for the child.
As such, it is her contention that Mr Vannak has no insight into what is required to parent a child responsibly, including being capable of engaging with a child on an emotional and intellectual level congruent with the development of the child concerned. Rather he wishes to spend time with X largely to satisfy his own emotional needs. This view is supported by the opinions of a number of experts who have been involved in the proceedings to date.
For his part, Mr Vannak asserts that he has only sent derogatory text messages as a response to his frustration that the mother is not properly supportive of his relationship with X, and she (Ms Dara) has not abided by orders for him to have regular FaceTime/video contact with X, which has led to him successfully bringing contravention proceedings against her. He also points to reams of other anodyne text messages which he has sent to Ms Dara.
Mr Vannak would characterise himself as a loving parent, who is in turn loved by X, who knows him well and is always happy to engage with him. Essentially, it is his position that if Ms Dara would only do what is expected of her, in terms of supporting his relationship with X, there would be no problems between the two.
It is his case that he has amply demonstrated his love and commitment for X by pursing these proceedings; buying her expensive gifts from time to time; driving from Victoria to Adelaide to spend time with her; and most significantly recently moving to live in Adelaide.
Given the intractability of the dispute between the parties and the serious issues of family violence, which the case raises, at an earlier stage of the proceedings (12 July 2023), it was ordered that X be represented in the matter independently of her parents. The Independent Children’s Lawyer (“ICL”) for X is Lee Kelly, an experienced family lawyer based in Adelaide.
At this same stage (28 July 2023), an order was made pursuant to the provisions of section 102NA of the Family Law Act 1975 (Cth)[3] the effect of which was to restrain Mr Vannak from being able to personally cross-examine Ms Dara in these proceedings (and indeed Ms Dara from being able to do so in respect of Mr Vannak).
[3] Hereinafter referred to as “the Act”.
In order to ameliorate the possibly harsh consequence of the application of the section and prevent any possible miscarriages of justice, which may conceivably arise if evidence is not properly tested, the Commonwealth Government has instigated a scheme known as the Commonwealth Family Violence and Cross-Examination of Parties Scheme, which funds legal representation of any party subject to a ban on cross-examination.
Mr Vannak availed himself of this scheme, but he became dissatisfied with the representation provided to him and has more recently represented himself. In addition, throughout the proceedings to date, as well as representing himself from time to time, Mr Vannak has had five firms of solicitors acting for him at different stages of the case. In my assessment, this has made a systematic approach to the resolution of the problems, which this case throws up, extraordinarily difficult.
Ms Kelly is to be regarded as a party of equal importance to the parents in the case. She instructed a barrister, Ms Horvat to appear on her behalf at the final hearing, which took place over three distinct tranches in February of 2024; May of 2024; and most recently September of 2024.
This latest hearing was largely consumed with the hearing of evidence from the court appointed expert, Ms E, who prepared a Family Report for the court in November of 2023. It also centred on trying to tease out how feasible were Mr Vannak proposals to spend time with X, in the context of his recent move to Adelaide. In Mr Vannak’s opinion, his move close to where X lives has largely removed any impediments to him being able to spend time regularly with his daughter.
Ms Dara and the ICL do not agree. From their perspective many questions remain about both Mr Vannak’s use of illicit drugs and alcohol and his overall state of mental health. In addition, they are concerned that Mr Vannak has not adequately considered how he will be able to support himself financially in South Australia and balance his working hours with his aspiration to spend regular time with X. Mr Vannak works in hospitality, who has frequently worked long hours on weekends.
Other issues raised centred on what were said to a further round of abusive text messages sent by Mr Vannak to his former solicitor and barrister, which from the ICL’s perspective demonstrated that Mr Vannak had learnt nothing from the previous hearings. In addition, Mr Vannak had apparently threatened to make complaints about Ms Kelly herself.
Mr Vannak does not speak English as his first language. As a result, his electronic correspondence is inarticulate and rambling in nature – though there can be no doubting much of its content, which is scurrilous and threatening and intended by him to be interpreted as such by its reader. It is wearisome in its volume, prolixity and frequency, with texts sent every few minutes or so, when Mr Vannak is engaged in sending his electronic correspondence.
Although I have not been the direct subject of these texts other than on no more than a couple of brief occasions – the judge can suck my cock – I will send judges family to hell in Australia – it is difficult to gauge their impact on the other professional people involved in the case. To me, Mr Vannak comes across as a somewhat pathetic person and his threats grandiose and impotent.
He threatens to expose professional wrongdoing – the most significant of which is his allegation that Ms Dara’s parents, who are health care professionals in Country B, are guilty of serious criminal conduct. Ms Dara herself seemed to be fed up with the volume and repetitious nature of the correspondence. It is undoubtedly the actions of a bully but a powerless one.[4]
[4] See Annexure MSD 2 to the affidavit of Ms Dara filed 21 February 2023.
However, at the present time, Mr Vannak seems incapable of understanding that it is not behaviour helpful to his case and must stop. In this context, in the absence of more cogent examples of physical violence, including against X herself, a central question for the court is whether this behaviour can justify a possible cessation in the relationship between X and her father, given expert evidence which indicates some positive aspects in the relationship between father and child.
Pursuant to the provision of section 68LA of the Act, both Ms Kelly and Ms Horvat are under statutory duty to examine all relevant evidence and then advocate to the court the outcome which they believe will best serve the interests of the child, whom they represent.
Necessarily, this must be an objective task. It is likely to be the case that Mr Vannak has not assisted his case by making complaints against the ICL. In this context, in discharging my obligations, I must be careful not to lose my own objectivity because of these unfortunate aspects of Mr Vannak’s behaviour.
In my view, Ms Kelly has discharged her responsibilities in the case assiduously. She has obtained an independent expert report, from a pharmacologist, Dr F regarding what two positive hair follicle test indicates about Mr Vannak’s past level of use of illicit drugs and its likely pharmacological effects on him.
More significantly, Ms Kelly has obtained information from Victoria Police, regarding Mr Vannak’s prior criminal conduct; the Department of Fairness, Families and Housing (“DFFH”), which is the Victorian Government instrumentality providing child protection in that state; and from the court itself, regarding Mr Vannak’s previous involvement with three of his previous partners, with whom he has children, in proceedings under the Act.
In the jargon, Mr Vannak has a large documentary footprint with each of these organisations. It is Ms Horvat’s submission that Mr Vannak has not been candid about this record and, in fact, has gone to some lengths to conceal the existence of one of his children – G born in 2011 from the ICL.
It was between the second and third portions of the trial that Mr Vannak moved from Victoria to live in suburban Adelaide at Suburb D. He signed a lease on an apartment for 12 months in early 2024. The conclusion of the May portion of the hearing also coincided with Mr Vannak losing confidence in his legal representatives.
Without legal representation it was not possible for him liaise with those representing Ms Dara regarding spending time with X. In addition, the absence of a negative hair follicle test was also a significant impediment in this regard.
These issues led to Mr Vannak again becoming frustrated and launching a further barrage of angry, threatening and disgruntled text messages to his former solicitor and the ICL. Again, these have been exhibited in the proceedings before the court.
Ms E is not the only expert in psychology and child/parent relationships, who has provided expert reports to the court. Firstly, at an earlier stage, a Child Impact Report was prepared by Ms R, who is a Child Court Expert. Secondly. a report was prepared by Ms J of her having supervised a visit between Mr Vannak and X in the contentious circumstances of Mr Vannak’s positive drug screen test and prior to his relocation to Adelaide, in the context of his fervent desire to spend X’s fourth birthday with her (in 2024).
In Mr Vannak’s assessment, the visit overseen by Ms J was highly successful. Ms J was not so sanguine, being concerned that the time between parent and child was a highly charged and excitable time for X, leading Ms J to have concerns about Mr Vannak and his parenting style, which, in her opinion, exhibited an inability to see the world through X’s eyes and in a fashion congruent with her emotional and cognitive development.
Ms E had a similar opinion. In general terms she considered that Mr Vannak was focussed more on what he considered to be best for him, in having a relationship with X, rather than on what was best for X, in having some form of relationship with him.
Ms E considered it imperative that Mr Vannak reflect on his past behaviour and accept responsibility for his past failings by committing himself to avoiding repeating them in his future parenting of X. In this context, she provided what she considered to be a checklist of matters, to which Mr Vannak needed to apply himself, in order to achieve a more child focussed response to X. These matters included the following:
·Mr Vannak undertake a comprehensive drug/alcohol and mental health assessment;
·Mr Vannak address, in a proactive way, his pattern of coercive control and violent behaviour in his intimate relationship and his other maladaptive behaviours;
·He complete a parenting course and refrain from drug use and commit to regular drug screen tests to establish his abstinence; and
·Mr Vannak consider that impact of his harassing and degrading behaviour on Ms Dara, which was counter-productive to his professed desire to have a more amicable co-parenting relationship with her.[5]
[5] See Family Report dated 24 November 2023 at [65] – [68].
In the evaluation section of her Family Report, Ms E wrote as follows:
[Mr Vannak] does not appear to have done any meaningful work to address and resolve the maladaptive behaviours, which he has consistently repeated over his past relationships including, numerous IO's, abuse, control, and serious assaults. It is reasonable when reviewing all collateral information that there is a significant risk to [X]'s health, safety, and wellbeing in the care of [Mr Vannak] if the above identified issues are not addressed.[6]
[6] See Family Report dated 24 November 2023 at [58].
It is the position of the ICL, at the end of the evidence in the case, that Ms E’s conclusion remains current and the evidence currently available indicates that Mr Vannak has failed to respond in any meaningful way to Ms E’s recommendations notwithstanding the fact that he has had access to them for almost a year and despite his repeated assertion that he will do whatever is necessary to ensure that he maintains a relationship with X. Essentially, it is the ICL’s submission that Mr Vannak continues to display a fundamental lack of insight into the proper responsibilities of being a parent.
The mother adopts a similar position which is largely informed by her concerns about what she regards as Mr Vannak’s likely latent drug addiction and his lack of insight and inability to control and manage his angry responses to any degree of frustration, mostly recently displayed by his complaints about the various lawyers involved in the case.
In these circumstances, she notes the inherent potential of small children to present management problems, which are frustrating to even the most equanimous of parents. She asserts that there is a significant and real level of risk that Mr Vannak, if he is frustrated by some aspect of X’s behaviour, that he will lash out at her, in some unpredictable way and cause her either emotional or physical harm. Obviously, this level of risk is heightened by drug and/or alcohol use.
Although, it was the ICL’s position, at the commencement of the hearing, that some form of on-going relationship, involving direct physical interaction between Mr Vannak and X, was feasible, particularly if Mr Vannak provided incontestable evidence of consistent abstinence from illicit drug use, in the circumstances which currently prevail, her position has changed, and it is now her submission and that any such outcome would be contrary to X’s best interests.
Essentially, the ICL submits that over the period of approximately eight months and three discrete tranches of court hearing, Mr Vannak must be regarded as having been more than amply informed of what he needs to do to have a more substantial relationship with X, which is to acknowledge his issues and do something proactive about them.
However, he has not done the things required the most significant of which is to seek professional assistance for substance abuse and mental health support. In place of these proactive steps, he has terminated his legal support and reverted to his past pattern of behaviour of making ill-advised and largely impotent threats against those who are involved with him, whom he perceives have let him down.
The formal orders now sought by the ICL include the following:
·The mother have sole parental responsibility for X and the child live with her;
·The child spend no time and not communicate with the father by any means, including electronic ones;
·A wide range of protective injunctions be made in respect of the mother and X;
·The only mechanism through which X would have any degree of contact with her father would be through cards, letters and presents sent by him to the child subject to the mother’s vetting of them.
Ms Dara, through her counsel Mr McQuade, falls in line with these recommendations and seeks orders in similar terms. Essentially, in the absence of any subsequent proceedings between the parties, arising in the light of a significant change of circumstances, such an outcome is calculated to result in the permanent cessation of any level of relationship between X and her father, let alone a meaningful one.
The dilemma which this case throws up can be easily stated and arises from the observations of each of the experts, who have been engaged by the court up until this stage, of Mr Vannak interacting with X. In the Child Impact Report, Ms R reported:
[X] entered the room and ran over to [Mr Vannak] who picked her up and held her tightly. [Mr Vannak] had brought gifts and [X] delighted in putting on new sneakers. [Mr Vannak] informed [X] of his plans as the parents had arranged for [X] to spend that night with [Mr Vannak]. He spoke to her about [sports] and what they would do together that afternoon. [Mr Vannak] sat in close proximity, and followed her lead, although at times he made his own suggestions or redirected her playing side by side. He praised her drawing and she responded positively when he made suggestions to put the lids on the textas. [Mr Vannak] was gregarious and loud during the interaction, [X] appeared comfortable and responded in delight and laughter to his behaviour which to her was most likely his normal demeanour.[7]
[7] Child Impact Report dated 6 February 2023 at [15].
Ms J, whilst unimpressed with some aspects of Mr Vannak’s interaction with X, on the occasion of her fourth birthday, reported that X had a good time with her father on the night on which she (Ms J) provided supervision. Certainly, she did not report that X exhibited any emotional distress in her father presence or was unfamiliar with him.
Ms E reported as follows:
During the observation they were talking and together. [Mr Vannak] and [X] were energetic and loud. They were both laughing, smiling, singing and exchanged a couple of kisses. [X] was giggling and appeared happy to see [Mr Vannak] ….
[Mr Vannak]'s temperament was calm, cooperative, kind and used positive re-enforcement. [Mr Vannak] was able to talk through things with [X] and in return [X] was outgoing, friendly, happy, cute, cheeky and at times was bossy. The family consultant reflected that it appears that she had [Mr Vannak] 'wrapped around her little finger'. However, [Mr Vannak] did manage her behaviour when she threw a block, by stating positively not to throw the block. It was apparent that [Mr Vannak] loves his daughter and holds her in great affection and during the observation the family consultant did not identify any safety concerns.[8]
[8] Family Report dated 24 November 2023 at [48] – [49].
Ms E opined that the parties brought different attributes and aspects of personality to the parenting of X. Ms Dara was quieter but shared an obvious familiarity, love and affection with X, which did not contain the same energy level exhibited in the child’s interaction with her father. As a result of her observations, Ms E considered that the parties had vastly different parenting styles. Ms Dara’s being structured; whilst Mr Vannak’s was one orientated towards providing a fun-based relaxed care environment.
In this context, Ms E noted that his cultural orientation and his mode of earning his livelihood may also have been influential factors so far as the development of his attitude to parenting were concerned. Clearly, this must be a factor in the case and X must be regarded as the product (and inheritor) of both her paternal and maternal cultural background.
In addition, it is likely to be the case that there are benefits of both styles of parent/child interactions, which, to some extent could be considered as being complementary in nature. Given X is a child of mixed cultural inheritance (Country C/Country B) it must be considered a very significant step to deprive her of a role model arising from one half of such inheritance.
Although each of the experts has had cause to question Mr Vannak’s level of insight into how a child should be parented, according to the standards of contemporary Australia, none of them question his love for X nor challenge the fact that she is familiar with her father and knows that Mr Vannak is a person significant to her. Indeed, Ms E went as far as to say that X had him wrapped around her little finger.
The question for the court, in the idiosyncratic circumstances of the case, is whether the concerns raised in the matter are of sufficient moment to justify the possible permanent severance of a physical relationship between father and child and how, on balance, such an outcome could be justified as being in X’s best interests or whether the court should persist with some measures directed toward maintaining some level of relationship between X and her father safely, in tandem with some other intervention designed to provide support to Mr Vannak and some level of reassurance to Ms Dara.
If the court elects to pursue the second option it is likely to involve a protracted process of professionally supervised time, in tandem with a raft of orders directed toward ensuring that there is cogent evidence that Mr Vannak is drug free and has access to the necessary professional advice required to support him in what has the potential to be a frustrating process for him. It is my formal finding that Mr Vannak does not respond well to frustration.
In these circumstances, the difficulty of the court adopting this second option is firstly none of the parties currently advocate it and none of the necessary interventions have been put in place; and secondly there must be real concerns that Mr Vannak himself is capable of committing to it, given how he has responded as the evidence in the case has unfolded since the trial began in February of this year.
In addition, as will be detailed in due course, the evidence currently available indicates that the manner in which Mr Vannak has elected to support himself financially is not likely to be conducive to the implementation of this second option.
Mr Vannak’s current position is that he does not require support for substance abuse; does not have any anger management issues or require psychological support; and is a competent and insightful parent. In these circumstances, it seems to me that there is a very real risk that if the court does make orders for a period of supervised time in conjunction with other orders, it will not achieve anything positive and it will result only in the prolongation of the litigation and further trauma for Ms Dara and possibly also for X. The sad fact may well be that there is no satisfactory outcome in this difficult case available at this stage.
In formal terms, Mr Vannak’s case remains that articulated by his former solicitor, which is that he and Ms Dara should be conferred with equal shared parental responsibility for X and once he had relocated to live in Adelaide, the child should spend gradually increasing time with him, commencing with alternate weekends from 5.00 pm on Friday until 5.00 pm the following Sunday and overnight on each Wednesday, until after a period of eighteen months had elapsed, the child would live with each of her parents on a week about basis.[9]
[9] See Further Amended Initiating Application of Mr Vannak filed 9 February 2024.
In the absence of legal representation, when the evidence in the case concluded, much of it not helpful to him, it was difficult for Mr Vannak to articulate a comprehensive set of orders in opposition to those proposed by the ICL and Ms Dara, which reflected, perhaps more realistically, how the case had unfolded, from his perspective. Regrettably, it is my perception that Mr Vannak is not able to provide a detailed plan as to how he can pursue his relationship with X and there is no obvious person available to help him in this regard.
Clearly, however, it is Mr Vannak’s position that the outcome proposed by the mother and the ICL cannot be justified given the evidence of connection and love between him and X, particularly in the evidence provided by Ms E. It is also his case that he has demonstrated his commitment to X by moving to live in Adelaide and has done his best to answer the criticisms made against him by providing a negative hair follicle test, which he did in August 2024.
It is also his case that he has done some parenting courses[10] and there is no compelling indication that his mental health is in any way impaired. In this context, he has recently presented a report from a general medical practitioner, whom he has consulted on 11 September 2024, which reports that the doctor concerned had observed no concerns regarding Mr Vannak’s mental health and he appeared to be compos mentis.[11]
[10] See Exhibit C – Triple P Online & Exhibit L – Supporting Children after Separation.
[11] See Exhibit R.
From the ICL’s perspective, these efforts are obviously inadequate and demonstrate a fundamental lack of insight into the issues and evidence raised in the case to date, particularly how Mr Vannak can engage with issues relating to his past conduct, both in terms of his drug/alcohol use and what Ms E characterised as his maladaptive behaviours. The ICL would characterise these responses as too little too late. She does not regard the parenting course undertaken, which consisted of a number of internet sessions, which provided generic information, as being sufficient.
As is evident from this brief introductory summary, at least in the formal terms of their respective applications, the positions of the parties are literally poles apart. In this context, I raised with Ms Horvat the prosect of their being some middle course adopted which balanced the child safety concerns raised by the ICL and the mother with the benefits X was likely to derive from having a consistent and meaningful level of relationship with her father, given the evidence of love and connection between the two.
However, from my perspective, if consideration is to be given to some interim triage approach to the difficulties thrown up by the case – say a regime of professionally supervised time at a Children’s Contact Service (“CCS”) in conjunction with a further system of drug screen tests – many uncertainties arise.
Firstly, there is a lack of certainty about how such an outcome would interact with how Mr Vannak will earn his living in the future and how it could be coordinated with X’s routine as a pre-primary school child, who is likely to require predictability in her arrangements.
In his most recent round of evidence, Mr Vannak deposed that he had obtained a job, as a hospitality worker at K Venue, in Town L, in rural South Australia, over 250 kilometres away from Adelaide. He anticipated he would be working on both days of the weekend. Clearly, such a work roster would be difficult to accommodate with X’s commitments, as a pre-school child.
Secondly, none of the parties, including Mr Vannak, advocates for a such a regime, which would require some degree of long-term commitment on Mr Vannak’s part, during which he would be expected to demonstrate adherence to rigorous conditions, which he is likely to regard as oppressive and given the nature of the evidence currently provided by him, unnecessarily restrictive. As such, his capacity to adhere to them, over a lengthy period of time, must be open to question.
Thirdly, as these are child related proceedings, I have to consider the impact of a further prolongation of the case on X. The case has already been on foot for well over two years. I must consider what will be achieved by any further deferral of a final outcome in the case. Cliché, though it is, not every case arising for adjudication under the Family Law Act is capable of a happy ending for all of the parties concerned in it.
It may not be in X’s best interests for the case to continue further, in circumstances, in which it is uncertain that Mr Vannak will ever be able to commit to a raft of orders, which are not congruent with the ones sought by him, but which are found to be necessary to secure X’s safety, even if I do determine that it is in X’s best interest to have some form of relationship with her father.
Fourthly and most significantly, any process of parenting involving the intervention of a CCS is likely to be provisional in nature. As such it is not directed to providing a long-term solution to the problems which this case throws up. The chief of these difficulties being what has been described as Mr Vannak’s long-standing maladaptive behaviours which have led to his relationship with Ms Dara being volatile and, from her perspective, threatening and controlling.
How these competing considerations are to be balanced is at the heart of this difficult and challenging case. In short, the case throws up many dilemmas and no obvious outcome which is congruent with the service of X’s best interests. In blunt terms, the best outcome would be for Mr Vannak to take on board the concerns raised by the ICL and Ms Dara and offer some more substantial mechanisms to address them. The court must examine the evidence to ascertain whether he will do so or, more significantly, is capable of so doing.
BACKGROUND
Mr Vannak was born in Country C, in 1978. He is a hospitality worker by occupation. He migrated to Australia in 2005. He has permanent residency in this country and has deposed that he is now an Australian citizen. For most of his time in Australia, he has lived in Melbourne and rural Victoria, where he has worked in hospitality venues.
Shortly prior to the commencement of the trial of this matter, he was living in Town M, in rural Victoria, and working at DD Venue. He deposed that he had signed a 12-month employment contract with the venue in 2024, which he intended to keep. In this context, he indicated that he would relocate to Adelaide early next year.
More recently again, he indicated that he had been offered a job in Queensland managing staff at a number of hospitality venues in that state. Mr Vannak has also run his own business, in partnership with Ms Dara, which was placed into administration. The circumstances surroundings its insolvency is a matter which remains controversial between the parties.
Both Ms Dara and the ICL are concerned at the lack of clarity provided by Mr Vannak throughout the proceedings to date about his employment proposals and what are their implications for his relationship with X.
It is also Ms Dara’s contention that, although Mr Vannak has deposed that he has never had any difficulty in obtaining positions, and is to be regarded at the top of his profession, this has not equated with any apparent capacity to provide regular and significant child support for X.
The most recent child support assessment provided to me is based on an estimated child support income for Mr Vannak of $24,924.00, which resulted in a monthly rate of child support of $41.08.[12] From Ms Dara’s perspective, for axiomatic reasons, this falls far short of supplying any of X’s needs, which falls on her shoulders.
[12] See Exhibit N.
However, more significant, in the overall context of the case, is the fact that working in the hospitality industry cannot be regarded as a family-friendly occupation. It is also apparent that, in his search for employment, Mr Vannak has chosen to work in rural areas.
Necessarily, particularly if he is engaged as a senior employee, Mr Vannak must work long hours, largely in evenings and on weekends, when venues are at their busiest. Given her age, X has her own schedule. Soon she will attend primary school. Her bedtimes will be fixed. It is not reasonable for either Ms Dara or X to be expected to drop everything to fit in with Mr Vannak’s work roster, particularly if it is weighted towards weekends.
Although Mr Vannak moving closer to where X lives has made some of these issues less problematic. The issue of how time between him and X can be accommodated, given the uncertainty of his future employment regimes, is a significant issue in the case. The ICL and mother point to the obvious fact that the implications of the father working at Town L, is not something that has been tested in practice.
In this context, it is the mother’s case that Mr Vannak has always prioritised his work over spending time with X and there is no indication that Mr Vannak is committed to making any change in this regard. It is her submission that Mr Vannak’s move to Suburb D is recent in nature and it remains uncertain how he will balance work and family commitments in future.
Mr Vannak has four other children, besides X, from three previous relationships. The nature of his relationship with these children and each of their respective mothers, is a matter of evidentiary controversy in these proceedings.
It is the position of the mother that each of these relationships was marked by a significant level of coercive and controlling behaviour by Mr Vannak of his partner and this has been a pattern of behaviour replicated in the relationship between her and the father, both before and after the parties separated.
It is her case that the evidence indicates that Mr Vannak has not addressed his maladaptive behaviours in regard to how he engages with intimate partners, including her and, as such he represents a risk to X. As such, she asserts that Mr Vannak has no capacity to deal with frustration or control his anger and this represents a danger to X, particularly if he continues to abuse illicit drugs and alcohol.
Ms Dara was born in Country B in 1996. She moved to Melbourne, in 2014, in order to study. It was her aspiration to be able to utilise this qualification to gain entry into a course in health care at an Australian university.
Ms Dara’s parents, who are each health care workers and both aged in their mid-fifties, live and work in City N. Ms Dara was initially granted an international student visa but is now an Australian citizen. Her Australian citizenship was granted in 2024. X holds both an Australian and Country B passport.
Besides her parents, the mother has other family who live in Country B. Her older brother and younger sister live in Country B, as does her elderly grandmother, who is in failing health. It is the effect of Ms Dara’s evidence that her parents are not eligible for permanent residency in Australia and her grandmother is too infirm to travel. In these circumstances she would like to be able to travel with X to Country B in order to see her parents and other members of her family, particularly her ailing grandmother.
The Australian Government, due to the political situation in Country B and political tensions between Country B and other countries advises its citizens not to travel to Country B. The Department of Foreign Affairs and Trade advises that Australian citizens may be the subject of adverse interest to the Country B Authorities. The security situation in Country B is also described as being volatile.
Mr Vannak vehemently opposes X travelling to Country B. His opposition is based primarily on his assertion that, if the child leaves Australia, Ms Dara will not return her to this country, and he (and indeed the Australian Government) will be powerless to secure her repatriation. He further asserts that Ms Dara’s parents are wealthy and influential people in Country B and, as such, would be able to support their daughter and granddaughter comfortably in that country.
As will be indicated in due course, although the issue of overseas travel remains a matter of contention between the parties, it has largely been overtaken by other events in the case. The ICL supports the mother’s proposals in this regard. If the other orders proposed by the ICL are made, it would seem difficult to justify the child not being able to travel to Country B on the basis that this might undermine her relationship with her father.
The parties met in early 2015 when Ms Dara was working at a hospitality business owned by Mr Vannak in Suburb O, a suburb of Melbourne. They began to live together in mid-2015 and married in 2017 with wedding ceremonies in both Australia and Country B.
Ms Dara was nineteen years of age, when she met Mr Vannak, who was in his late thirties. She speaks excellent English but was a long way from familial support at the time. Her evidence is that she had support from family friends, who lived in Melbourne at the time.
The parties finally separated, under the one roof of their former family home, in February of 2021. It is the mother’s case that they separated because of the father’s violent behaviour towards her, which included spitting on her; slapping her face; throwing items of crockery and her mobile phone; and making derogatory comments and threats. She also alleges that he was financially controlling.
It is Mr Vannak’s case that whilst the parties were separated under the one roof, he was extensively involved with caring for X, whilst also supporting the family through his work. He portrays the mother as an emotionally reactive person, who had manipulated him to obtain permanent residency in Australia. It being the case that he had sponsored her spousal visa application.
In early 2021, Ms Dara was offered a place, in a health care course in Adelaide, as a fee-paying international student. As a result, she and X moved from Melbourne to Adelaide to live, in early 2022, with the father’s agreement.
Mr Vannak remained living in Victoria. Ms Dara’s fees are approximately AUD$80,000.00 per annum. It is her evidence that her parents largely pay these fees and assist her with some living expenses. Ms Dara leased premises for herself and X in Suburb P at rent of $900.00 per fortnight.
In this early period, the parties agreed for the father to spend time with X, on an ad hoc basis. In March 2022, Mr Vannak travelled to Adelaide for a night; whilst in April, Ms Dara and X travelled to Melbourne for three days. It is Ms Dara’s evidence that she was present during these visits to provide reassurance to X.
It proved to be extremely difficult for the parties to parent X effectively over the considerable distance between Melbourne and Adelaide. These difficulties have been exacerbated by the parties’ conflicted relationship and Ms Dara’s desire to take X to City N to spend time with her maternal grandparents, which Mr Vannak has vigorously opposed. Clearly, X’s tender years and emotional dependence on her mother have also been factors adding to the extraordinary difficulties in the case.
It is the mother’s case that during the parties’ relationship, Mr Vannak drank heavily and was using illicit drugs regularly. She has reason to believe that Mr Vannak has continued to use illicit drugs in the period after the parties separated. Ms Dara alleges that Mr Vannak has frequently sent her and members of family in Country B highly offensive and threatening text messages – she believes when he is intoxicated or disinhibited.
For his part, Mr Vannak alleges that Ms Dara is not willing to support his relationship with X, particularly in regard to facilitating video calls between the two, which have previously been ordered by the court.
Ms Dara asserts that she is not prepared to do so if such communication is used as a means to harass and intimidate her. It is also her current position that Mr Vannak represents a significant risk to X’s emotional well-being because he lacks parentally insight.
Mr Vannak commenced these proceedings on 20 June of 2022, in the Melbourne Registry of the court. His initial focus was on preventing X being removed from Australia. In this context, he deposed that X and Ms Dara had spent approximately three months in Country B from July of 2021, when he had only agreed to a two-week period.
The mother responded to this application at the end of July, preparing her own responding documents. Her position was that her return to Australia had been delayed by the Covid-19 emergency and she had no intention of doing anything to jeopardise the completion of her studies in Australia. In addition, it is her case that by applying for Australian citizenship, she has demonstrated her commitment to living permanently in this country.
As the rules required, each party filed a Notice of Child Abuse, Family Violence or Risk. Neither made any allegations in respect of family violence issues; mental health concerns; or other risks of child abuse.
Mr Vannak provided his application to the Australian Federal Police, shortly after it had been made. This resulted in X’s name being placed on the Airport Watch List, which prevented her from leaving Australia. Ms Dara again travelled to Melbourne, with X, to enable the child to spend a further block of three days, with her father, in early July.
On 2 August 2022, Mr Vannak filed an amended application in which he set out his extensive long-term proposals. On a final basis he sought that the child live with him and the mother spend time with X for one week per month. This was posited on the basis that he would remain living in Victoria and the mother would remain in South Australia, whilst she completed her studies. At the time, he was working at Q Venue.
Ms Dara responded to this application on 26 August 2022 and on 8 September 2022. By this time, she had secured legal representation. It is her case that she asked to file an amended Notice of Child Abuse, Family Violence or Risk but was refused legal aid funding for this. At this stage, it was her position, on both an interim and final basis, that she should have sole parental responsibility for X and the child should live with her.
Subject to the satisfaction of a supervised hair follicle test, she proposed that the child spend time with her father on the first weekend of each month, from 11.00 am on Saturday until 5.00 pm the following Sunday, with the time to occur in Adelaide. As will be expanded upon, in due course, in the past, she has, ostensibly at least, been supportive of X spending regular time with her father and engaging with him via electronic means.
In support of her application, she filed an extensive affidavit on 8 September 2022, which had been professionally prepared. Her evidence, at this stage, can be summarised as follows:
·She was X’s primary carer and had been since her birth;
·She and X had moved to Adelaide with Mr Vannak’s agreement;
·She had travelled back to Melbourne on three occasions and Mr Vannak had only travelled to Adelaide once;
·It was only on the weekend of Father’s Day that the father had spent time with X without her mother being present and she (X) had not coped well with this;
·Mr Vannak had sent threatening messages to her parents in Country B indicating that he would kill everyone and take my daughter. He used offensive language in respect of Ms Dara;
·Mr Vannak had previously assaulted her and abused her, which included slapping her on the face, causing bruising; throwing her mobile phone; throwing and breaking crockery; and on one occasion threatening her with a weapon; and
·He had serious substance abuse issue.
In support of her evidence, Ms Dara supplied screen shots of the text messages which had been sent both to her and her parents and a person, whom she had employed to provide child care for X. In my assessment, the messages are disjointed, rambling and written by a person who does not have any great proficiency with the English language. Their intent, however, is readily apparent. It is to threaten and demean the recipients of the various messages.
At this stage, Ms Dara clearly raised issues regarding Mr Vannak’s mental health. She also alleged that he had been financially controlling of her during their relationship. The picture she presented of the father was of an extremely emotionally reactive person, who lashed out on anyone he could think of associated with the mother. This included not only her parents but a nanny.
In these controversial circumstances, the case came before the court on 14 September 2022 when Judge Kelly made orders for the father to have FaceTime with X three times per week for up to fifteen minutes. In addition, the parties agreed that X would spend time with her father for two overnight periods, from Monday until the following Wednesday, firstly in Adelaide and then in Melbourne, in October and November.
I dealt with the mother’s application to travel to Country B, with X, in late 2022 and declined her application.[13] At this stage, I was influenced by the fact that the Australian Government advised its citizens not to travel to Country B. I was also concerned that there was a lack of opacity about the mother’s financial situation. I noted at the time that it was an interim or provisional decision, which was capable of being changed, if and when, further evidence came to light.[14]
[13] See Vannak & Dara [2022] FedCFamC2F 1585.
[14] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
However, at this stage, the parties were also able to agree on a further regime of time for X to engage with her father, for two further blocks of time, which were scheduled to alternate between Adelaide and Melbourne, with the child to be exchanged at the airport. I was concerned that this was not likely to be a lasting solution to the issue of how X could maintain relations with her father.
My impression is that the mother wished to have at least some form of functional relationship with Mr Vannak and at least attempt to deescalate the tensions between them. However, the problems created by their dysfunctional relationship and the distance between Adelaide and Melbourne remained unresolved.
On 3 November 2022 an order was also made for the preparation of a Child Impact Report. As indicated above, this report was prepared by Child Court Expert Ms R and was released to the parties on 15 February 2023. At this stage, Ms R was readily able to identify the dilemmas which this case throws up and continues to do so. Under the heading Child Impact Analysis, she opined as follows:[15]
·As X had lived with both of her parents until the age of two years, she had a close bond with each of them and clearly loves them both, identifying each as a source of comfort and security;
·This observation was confirmed by Ms R’s observations of X’s interactions with each of her parents, which were mutually affectionate in the case of father and child, with Mr Vannak being described as gregarious and loud in his interaction with X; whilst X was described as being calm, comfortable and relaxed with Ms Dara;
·X appeared to be meeting her development milestones but needed the security of a primary carer. In this context, the focus of her spending time with others important to her should be on frequency of time rather than duration;
·This was difficult given the distance between the parties’ two homes currently. As a consequence, X would benefit from video calls being maintained.
[15] Child Impact Report dated 6 February 2023 at [28].
However, although both parties acknowledged that X needed a relationship with both of her parents to thrive, this was likely to be difficult to achieve given the current state of their co-parenting relationship could only be characterised as being non-existent.
Significantly, Ms R assessed Ms Dara as having the greater level of insight into X’s needs. She described the mother as being reflective. Ms R said of Mr Vannak he had limited insight into X’s needs being more focussed on his conflict with Ms Dara.
These are themes which have been reflected in the two further expert reports, which have been prepared for the court. In addition, each of these experts has noted the different manner in which Mr Vannak interacts with X, when compared to her mother.
Ms R further noted that the previously agreed arrangement for X to spend time with her father in Melbourne in the previous month of January 2023 had not occurred due to financial constraint on Ms Dara. It was also apparent to her that the video calls had also broken down, although the parties disagreed as to why this was so.
The parenting arrangements for [X] are a complex matter given the parents reside in separate states and neither is able or willing to move. There are multiple factors to consider such as the age of the child, appropriateness to travel independently and the parents' ability to accompany her to commute should that be the arrangement. … It is the CCE's opinion that it would be more beneficial for [X] and meet her needs as a young child that time spending occur more frequently in Adelaide, allowing her to attend childcare and in the future school without disruption.
[X] is a young child who at this time would benefit from short periods of time with her father combined with the frequency of video calls to maintain her connection and relationship…. [T]hese are an important medium by which [Mr Vannak] can maintain a connection.[16]
[16] Child Impact Report dated 6 February 2023 at [33] – [34].
Ms R also noted the various risk factors, which Ms Dara had identified in the case, which related to Mr Vannak’s mental health, drug and alcohol use and his engagement with previous partners and children to Ms Dara and X. In this context, she made a number of recommendations to address these risk factors, which can be summarised as follow:
·Information be obtained from child protection authorities in Victoria relating to Mr Vannak’s other children;
·Mr Vannak complete a hair follicle test and carbohydrate deficiency test;
·Information be obtained about Mr Vannak’s previous criminal record;
·If credence was given to Ms Dara’s allegations of family violence, consideration be given to Mr Vannak attending an anger management course; and
·The parties complete an appropriate parenting course.
The opportunity to reconnect with her parents and other relatives, in the country where she was born and grew up, is also likely to benefit Ms Dara personally and this may have a flow on effect on her capacity to parent X. On the other hand, I acknowledge that X is not yet five, so is unlikely to have any great comprehension of the implications of the trip in purely cultural terms.
Ms Dara is a native Country B language speaker. As such, she is unlikely to have a high profile in Country B or automatically be perceived as a tourist from the West. She is also likely to be aware of political nuances within Country B society and is unlikely to draw attention to herself, which may put her and X at risk from the Country B authorities.
More significantly, she is an intelligent person, who is unlikely to take any step which would have the consequence of putting X at risk of coming to harm. City N has been subject to political unrest, but these incidents have been limited in nature.
As Ms Dara has deposed, the areas within Country B, which she proposes visiting are many hundreds of kilometres away from the front line of hostilities. Department of Foreign Affairs and Trade (“DFAT”) specifically warns Australians from attempting to cross into Country B and obviously Ms Dara has no intention of doing so.
Sadly, the risk of terrorist attack is one which is prevalent in most of the world, including in Country B. DFAT, in its travel advisory on Country B, alludes to this risk, referencing recent events, in City N, in 2024, which resulted in significant loss of life. As such, exposure to this kind of risk can never be entirely negated, other than preventing all forms of overseas travel, which in my view, has the potential to be disproportionate to the level of risk entailed.
Ms Dara has access to current information, from her parents, about what is the state of life, for ordinary Country B people, at the present time. Although I accept that the security situation may deteriorate rapidly, they are unlikely to countenance their daughter and grandchild travelling to their home in Country B if there is any heightened level of risk.
In all these circumstances, in my view, the greatest level of risk, for X’s safety and wellbeing, given her current Australian citizenship, which she shares with her mother, is if Ms Dara’s undertaking to return to this country is not a genuine one. I would be naïve if I considered that I had any infallible capacity to tell if a witness was or was not telling the truth about any particular issue, whilst under oath.
On any view, the financial commitment which Ms Dara and her parents have made towards Ms Dara’s health care training is an extremely large one and, on the evidence provided to me, I have grave concerns that it can be sustained in the long term. Ms Dara deposed that her parents are paid in Country B currency and although well paid by Country B standards, given they are professionals, are not significantly wealthy in their own right. The implication of this evidence being that Ms Dara is not in a position to enjoy a luxurious lifestyle, if she returns to live in Country B or motivated to remain there for financial reasons.
During the course of these proceedings, Ms Dara has become an Australian citizen. That, of itself, demonstrates a commitment to she and X remaining in Australia, although I appreciate that citizenship does not depend on remaining permanently in the country and there are many potential benefits, for a person living in Country B, who has access to a passport from the West.
In her oral evidence, Ms Dara indicated that she was happy in Australia, which she described as her dream country. She speaks to X, in both Country B language and English and the child is bi-lingual. X speaks with her maternal grandparents, who are each in their mid-fifties, regularly by telephone. Ms Dara wishes to consolidate this degree of relationship through a direct physical interaction. As indicated above, I accept that relationships with grandparents are usually beneficial for children and have long-term implications.
The evidence indicates X is well-settled in Adelaide. She attends extracurricular classes and is in childcare, when her mother is either working or at classes. Ms Dara herself has formed a relationship with a person, with whom she may share accommodation in the future, when she is more financially secure. I accept that Ms Dara has made a significant commitment to living in Australia, where she lived since 2014.
In addition, I accept that she is a parent who is naturally inclined to want to provide the best for X. As such, it seems to me to be unlikely that, notwithstanding the affection she is likely to hold for the country where she was born, she would uproot her child from the country, where she was born. However, I appreciate that this is not a finding which is capable of scientific elucidation. Rather, I am required to assess the risk that Ms Dara would do so. I assess the risk of this as slight.
However, in my view, the greatest guarantee the Ms Dara will return X to Australia, at the end of any period of travel to Country B, is the fact that she has not as yet completed her training in Australia. It would seem improbable that she would abandon the course and the prospect of having a qualification from a Western university, mid-way through.
In purely prospective financial terms, the degree, when completed, is likely to be of significant value to Ms Dara and enable her to practice in much of the English-speaking world. The same cannot be said of a Country B health care degree, even if there was evidence to indicate that she could transfer to a course in Country B. The risk of Ms Dara not coming back to Adelaide to finish her course again seems to me to be a slight one.
Mr Vannak has vociferously asserted that Ms Dara will remove X from Australia. In my view, he has not equally strongly articulated why he believes this would be so. On the most recent occasion Ms Dara and X travelled to Country B, they returned to Australia, albeit their return was delayed when entry requirement to this country were tightened during the Covid emergency.
In all these circumstances, I do not doubt the bona fides of Ms Dara’s wish to take X to Country B. It seems more likely than not that Ms Dara will honour her indication that she regards herself and X as permanent residents of Australia and will return here. In addition, although the security situation in Country B is not ideal, the risk of X coming to direct harm seems an acceptable one, given Ms Dara’s level of familiarity with the Country B cultural milieu and the fact that conflict is many hundreds of kilometres away from City N.
Of equal significance to these considerations is the fact that, at present, Mr Vannak is not spending time with X and so any period of travel will not result in any diminution of his level of relationship with her at this stage. In these circumstances, I propose to make the orders in respect of X being issued with an Australian passport, as proposed by the mother and the ICL.
CONCLUSIONS
I have found this to be a difficult and perplexing case. I do not doubt Mr Vannak’s love for X. However, his conduct both before and during the course of these proceedings has demonstrated a significant lack of insight. I share the concerns of both the mother and the ICL that, until such time as Mr Vannak has addressed his behaviour, the unpredictable and volatile aspects of his personality pose an unacceptable level of risk, both to X and Ms Dara, who has been the child’s primary provider of care for the entirety of her life to date.
I do not accept that there is any compelling evidence that Ms Dara has consciously acted in a way directed towards severing the relationship between father and child. The fact that this relationship is in a parlous state is attributable solely to Mr Vannak protracted campaign of coercive and controlling behaviour, which has been directed towards Ms Dara and from which she is entitled to have the protection of the court.
It is of great significance that this course of conduct, on Mr Vannak’s part, does not occur in a vacuum. There is cogent evidence that he has behaved in an extremely violent and controlling way to a number of his former partners. The expert evidence available in this case indicates that it is imperative, in order to ensure that X is safe in any relationship with her father, that Mr Vannak provides evidence that he is actively treating his drug dependency and other aspects of his personality.
He has not provided this evidence. In these circumstances, I have reached the conclusion that, notwithstanding the risk that these reasons for judgment will represent unfinished business, it will serve X’s best interest if I make the final orders proposed by the ICL and supported by the mother. I appreciate that if and when Mr Vannak takes the steps recommended by Ms E, this may mean he will re-apply to the court. Until then, Ms Dara is entitled to parent X securely and peacefully.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and twenty-seven (427) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 11 December 2024
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