WINDEYER & WINDEYER
[2018] FamCA 153
•15 March 2018
FAMILY COURT OF AUSTRALIA
| WINDEYER & WINDEYER | [2018] FamCA 153 |
| FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks to relocate to Country K with the children, aged 15 and 10 – Where one of the children is diagnosed with an Autism Spectrum Disorder and the impact of relocation would be significant – Where the children would lose the connection with their father and paternal family – Where it is not in the children’s best interests to relocate to Country K. FAMILY LAW – CHILDREN – SPEND TIME WITH – Where the father seeks equal shared time – Where the mother seeks supervised overnight contact – Where the father has a history of mental health issues – Where the benefit to the children in spending equal time with their father is outweighed by the risk of him suffering a relapse – Where orders are made for the father to spend substantial time with the children – Where the father’s partner or a member of the paternal family must be present when the children spend overnight time with the father. FAMILY LAW – EXPERT EVIDENCE – Where the father sought to rely on an affidavit by an expert in relation to Country K’s implementation of the Hague Convention – Where no application was made for a single expert – Where it is found the expert does not have “specialised knowledge” of the field – Where the affidavit is not admitted into evidence. |
| Convention on the Civil Aspects of International Child Abduction 1980 Evidence Act 1995 (Cth) s 79 Family Law Act 1975 (Cth), s 60CC Family Law Rules 2004 (Cth) rr 15.42, 15.52, 15.52(3) |
| Clarke v Ryan (1960) 103 CLR 486 Honeysett v the Queen (2014) 253 CLR 122 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 |
| APPLICANT: | Ms Windeyer |
| RESPONDENT: | Mr Windeyer |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5511 | of | 2016 |
| DATE DELIVERED: | 15 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 26, 27, 28 February 2018 and 1 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Yamamoto Attorneys |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Beswick Lynch Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the parents have equal shared parental responsibility for the children B born … 2002 and C born … 2007 (“the children”).
That children live with the mother.
That, subject to Orders 8 and 9, the children spend time with the father as follows:
a)From the date of these Orders until 13 April 2018:
i)Every Tuesday from after school or 3:20 pm on a non-school day until the conclusion of C’s sports class;
ii)Every Wednesday from after school or 3:20 pm on a non-school day until after dinner at 8.00 pm; and
iii)Every Friday from after school or 3:20 pm on a non-school day until Saturday after dinner at 9.00 pm.
b)During the 2018 Term 1 school holidays:
i)Every Tuesday, Wednesday and Friday from 10.00 am until after dinner at 8:00 pm; and
ii)Every Saturday from 4:00 pm until Sunday after dinner at 8.00 pm.
c)During school Term 2, 2018:
i)Every Tuesday from after school or 3:20 pm on a non-school day until Wednesday before school or 9.00 am on a non-school day;
ii)Every Wednesday from after school or 3:20 pm on a non-school day until after dinner at 8.00 pm; and
iii)Every Friday from after school or 3:20 pm on a non-school day until Saturday after dinner at 9.00 pm.
d)During the Term 2 school holidays in 2018:
i)Every Tuesday, Wednesday and Friday from 10.00 am until after dinner at 8:00 pm; and
ii)Every Saturday from 4:00 pm until Sunday after dinner at 8.00 pm.
e)During school Term 3, 2018:
i)Every Tuesday from after school or 3:20 pm on a non-school day until Wednesday before school or 9.00 am on a non-school day; and
ii)Every alternate Friday from after school or 3:20 pm on a non‑school day until Sunday after dinner at 8.00 pm.
f)During the 2018 Term 3 school holidays:
i)From the first Saturday from 4:00 pm until the following Tuesday after dinner at 9:00 pm; and
ii)From the second Tuesday from 4:00 pm until Friday after dinner at 9:00 pm.
g)From Term 4 2018 and onwards, during the school terms:
i)Each alternate Friday from after school or 3:20 pm on a non‑school day until Monday before school (or 9:00 am on a non‑school day); and
ii)In each other week on Wednesday from after school or 3:20 pm on a non-school day until Thursday before school or 9.00 am on a non-school day.
h)During the 2018, Term 4 school holidays:
i)From after school on the last day of school term until after dinner at 9:00 pm on the second Saturday of the school holidays; and
ii)From 4:00 pm on the fourth Saturday of the school holidays until after dinner at 7:00 pm the fifth Saturday of the school holidays.
i)During the Terms 1, 2 and 3 school holidays in 2019 and thereafter:
i)In even numbered years, from after school on the last day of school term until after dinner at 9:00 pm on the second Saturday of the school holidays; and
ii)In odd numbered years, from 4:00 pm on the second Saturday of the school holidays until after dinner at 9:00 pm of the last Sunday of the school holidays.
j)During the Term 4 school holidays in 2019 and thereafter in each term 4 school holidays:
i)In even numbered years, from after school on the last day of the school term until after dinner at 9.00 pm on the third Saturday of the school holidays; and
ii)In odd numbered years, from 4:00 pm on the third Saturday of the school holidays until after dinner at 9:00 pm of the last Sunday of the school holidays.
Notwithstanding any orders herein, and unless otherwise agreed by the parties in writing, the children spend time with the father from 5.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years, and from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in even numbered years.
Notwithstanding any orders herein, and unless otherwise agreed by the parties in writing, the children spend time with the mother from 5.00 pm Christmas Day until 5.00 pm Boxing day in even numbered years and from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd numbered years.
That, if Mother’s Day falls on a weekend when the children are spending time with the father, then the father’s time shall cease from 5.00 pm on the day before Mother’s Day.
That, if Father’s Day falls on a weekend when the children are in the care of the mother, then the children shall spend time with the father from 7.00 pm on the day before Father’s Day until after dinner at 7.00 pm on Father’s Day.
That all periods of overnight time between the children and the father be conditional upon the father ensuring that at least one of the following persons is present overnight in the father’s home (or any other premises in which the children and the father are staying overnight):
a) The father’s partner, Ms D;
b) The paternal grandmother, Ms E Windeyer;
c) The paternal grandfather, Mr F Windeyer;
d) The paternal uncle, Mr G Windeyer; or
e) Any other adult agreed between the parents in writing.
In the event that the father is unable to comply with Order 8, then time will occur on the same days as provided in Orders 3 – 7 above but will conclude after dinner at 7.00 pm on each day and recommence at 10.00 am the following day, unless otherwise agreed in writing between the parties.
That, unless otherwise agreed between the mother and the father, changeovers shall take place as follows:
a) if changeover is on a school day, the father will collect the children from school at the commencement of his time and/or return the children to school at the conclusion of his time; and
b) if changeover is on a non-school day, the father will collect the children from the mother’s residence at the commencement of his time and return the children to the mother’s residence at the conclusion of such time.
That each parent shall facilitate telephone communication and/or audio visual communication between the children and the other parent as reasonably requested by the children and, during the school holiday period, at least once every six days.
That both parents are restrained from criticising the other party in the presence or hearing of the children.
That the father be restrained from taking or causing or permitting the taking of the children on any vehicles operated by him.
That the mother and father be restrained from relocating or changing the children’s residence to a location further than 30 kilometres from Suburb H High School, Suburb H, New South Wales.
That the mother and father be restrained from taking or causing or permitting the taking of the children (or either of them) to any place outside the Commonwealth of Australia without the prior written consent of the other parent or order of the court.
That each parent is to ensure the other is informed as soon as is reasonably practicable of:
a) any medical problems or illness suffered by the children whilst in his/her care;
b) any medication that has been prescribed to the children;
c) any specialist medical appointments with any doctors, psychiatrist, psychologist or therapist regarding the children;
d) any social, school or religious functions which the children is to attend and which parents are welcome to attend;
e) their residential address and contact number; and
f) any other matter relevant to the welfare of the children.
That each parent shall do all acts and things and sign all necessary documents to obtain and maintain a valid passport for the children and such passport will be kept by the father when not needed for overseas travel or for making necessary arrangements for such travel.
That leave be granted to the Independent Children’s Lawyer (“ICL”) to provide a copy of Dr J’s report in these proceedings to:
a) The father’s partner, Ms D;
b) The paternal grandmother, Ms E Windeyer;
c)The paternal grandfather, Mr F Windeyer; and
d) The paternal uncle, Mr G Windeyer
on the proviso that they are each told by the ICL that the report should not be disseminated to any other person.
That each of the mother and the father pay to the Legal Aid Commission of NSW the sum of $7,771.50 on account of the costs of the Independent Children’s Lawyer, such payment to be made within 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Windeyer & Windeyer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5511 of 2016
| Ms Windeyer |
Applicant
And
| Mr Windeyer |
Respondent
REASONS FOR JUDGMENT
Ms Windeyer (“the mother”) and Mr Windeyer (“the father”) are the parents of B who was born on in 2002 and is now aged 15 and C who was born in 2007 and is now aged 10.
The mother is from Country K, the father Australian. They met and married in Country K when the father was living and working there. The father speaks the language of Country K fluently. The parties resided in Country K with the children and relocated to Australia in December 2008.
In 2007, B was diagnosed with Asperger’s Syndrome. He was, at that time, attending kindergarten. There is a dispute about the reason B left his kindergarten. The mother says that they withdrew him on the advice of the principal that there was a more appropriate kindergarten. The father says that B was asked to leave.
Nothing turns on the dispute except that shortly thereafter, the whole family moved to live in Australia.
From December 2008, the family lived in Australia although the mother and the children travelled frequently to visit the maternal family in Country K.
The mother wrote a letter in September 2009 to her immigration case officer in Australia where she stated, referring to B’s diagnosis:
Sadly, his school told him to move to other school (sic) when they found that out. We were very disappointed with their attitude … We began seriously thinking to move to Australia as soon as possible … Actually now my son B’s getting great support by Australian Government (he couldn’t (sic) any financial support by Country K government because he doesn’t have intellectual delay …
It is agreed that, in Australia, the mother was the children’s primary carer. The father, until at least July 2016, travelled frequently for work, leaving the children in the care of the mother. In 2008 the father was away from home, mostly overseas, for 184 days; in 2009 for 78 days and in 2010 for 134 days. His pattern of absence continued up until July 2016 when the parents separated after a dramatic suicide attempt by the father. The father’s mental health issues will be examined separately in these reasons but the events of July 2016 need to be set out because they are seminal to the situation in which this family now finds itself.
In June 2016, the mother travelled to Country K, leaving the children in the care of the father. On the night of 17 July 2016, when the mother was on the way back to Australia, the father attempted to commit suicide by carbon monoxide poisoning. He had also taken sleeping pills.
The father says that he has no memory of the event and does not concede that he attempted suicide. However, I am satisfied that he did.
The father, in his trial affidavit, deposed:
On 17 July 2016 I had been found by the police unconscious behind my car in the garage of my home with carbon monoxide poisoning. On the same day, I was admitted to the intensive care unit at [L] Hospital and then transferred to intensive care at the [M] Hospital.
Documents produced by L Hospital, which had been downloaded from the father’s computer, include his internet browsing history for July 2016 which includes searches of sites relating to overdose of various prescription drugs, carbon monoxide poisoning, assisted dying, the “Peaceful Pill”, lethal drugs for suicide, “suicide drug of choice”, purchasing carbon monoxide and carbon dioxide and motor vehicle exhaust suicide.
The documents also included a diary kept by the father on his computer from 15 June 2016 until 4 July 2016 and containing statements such as “I am no longer going to burden society or anyone” and “Feel like I am heading for a nervous breakdown. I wonder if I will make it to Saturday night or not?” and “All I can think about is death”.
The event was precipitated by the termination, against his will, of an extramarital affair that the husband had engaged in with a married woman, Ms S, who was the mother of one of C’s close friends and a member of his church congregation. The father drafted a letter to her on 2 July 2016 which stated, inter alia, “My life is over and I will likely be dead in a few hours”.
It is not clear how emergency services were alerted but when they arrived at the home on 17 July 2016, the children were in the home and they were taken to hospital because of concerns that they were affected by carbon monoxide.
The mother found out about the incident when she received a telephone call from police as she was on her way home from the airport on 17 July 2016. The mother also found out, within a few days, not only that the husband had been having an affair with Ms S, but that he had simultaneously maintained a long term relationship with another woman, Ms D, with whom he now lives in a de facto relationship, and that he had affairs or relationships with 11 other women. At least one of those women in Country O was referred to by the father as “My darling wife”. In relation to Ms D, the mother found a letter dated 31 January 2013 addressed to immigration authorities in which the father stated that he was then in a “genuine de-facto relationship” with Ms D that had commenced in 2009 and, he said, “our relationship has continued to strengthen ever since”.
The father’s industry licence was suspended in July 2016.
The father was hospitalised until 29 August 2016, the same day as the mother filed an application to relocate with the children to Country K.
On 30 August 2016, orders were made restraining the father from approaching the children and from, in particular, driving with them. The father was permitted to spend time with the children under supervision approved by the mother.
Thereafter, the father’s time with the children was supervised by his parents, his brother or the mother.
In November 2016 the father’s time with the children was formalised to occur on Wednesday afternoon, Friday afternoon, Saturday evening and Sunday afternoon.
The parties finalised their property settlement by consent orders on 15 March 2017. The mother has received approximately $900,000 by way of property settlement but some of that sum is in superannuation which is not presently available to her.
A single expert, Dr J, who is a child and family psychiatrist, was instructed to prepare a report and an Independent Children’s Lawyer (“ICL”) was appointed for the children.
Dr J’s report was released to the parties on 4 April 2017.
On 17 August 2017, consent orders were made providing for the father to spend time with the children, unsupervised, on Wednesday and Friday from after school or 3.20 pm until 7.00 pm; on Tuesday from after school until the conclusion of C’s sports class; on Saturday from 5.00 pm until 8.00 pm and on Sunday from 2.00 pm until 6.00 pm. The orders provided for time on special occasions and the restriction on the children travelling with the father continued.
The matter was listed for hearing on 26 February 2018.
THE HEARING
The mother relied on two affidavits sworn by herself and on affidavits by her mother and her aunt who both travelled from Country K to be cross-examined.
The father relied on two affidavits by himself and on affidavits by his parents, his brother, his de facto partner Ms D and a psychologist who completed an assessment of him in June 2017.
The primary application of the mother was that she and the children be permitted to relocate to Country K. If relocation were permitted, she proposed that she would bring the children to Australia once each year to spend a week with the father (although in cross-examination she made it clear that she did not envisage unsupervised overnight time) and that he could pay for them to come for a second week and have, it appeared, at least two specified periods of time in Country K and unlimited other time in Country K provided that she agreed. If relocation were permitted, she sought sole parental responsibility.
In the event that the mother would not be permitted to relocate, she sought a regime of time which broadly accorded with the proposal of the ICL, although extending most periods with the father by one or two hours. She did not accept the paternal grandparents as potential supervisors. She sought that she and the children be permitted to travel to Country K for two block periods each year.
The father sought an order for time with the children, unsupervised and graduating to a week about regime. The father also sought to restrain the mother from taking the children to Country K for holidays on the basis that he feared that she would not return.
The ICL did not support the mother’s proposal to relocate and, initially, sought orders that would see the children spending unsupervised overnight and block periods of time with the father. After the cross-examination of Dr J, the ICL’s proposal was amended to seek supervision of overnight time in the father’s care. The ICL tendered an amended minute at the commencement of submissions which is set out below:
1.That the parents have equal shared parental responsibility for the children [B] born … 2002; and [C] born … 2007 (“the children”).
2. That children live with the mother.
3.That, subject to Orders 8 and 9, the children spend time with the father as follows:
3.1. From the date of these Orders until 13 April 2018:
3.1.1. Every Tuesday from after school or 3:20pm on a non-school day until the conclusion of [C’s] sports class;
3.1.2. Every Wednesday from after school or 3:20pm on a non-school day until 7:00pm;
3.1.3. Every Friday from after school or 3:20pm on a non-school day until Saturday 7:00pm.
3.2. During the 2018 Term 1, school holidays:
3.2.1. Every Tuesday, Wednesday and Friday from 12pm until 7:00pm; and
3.2.2. Every Saturday from 5:00pm until Sunday 7.00pm.
3.3. During school term 2018 Term 2:
3.3.1. Every Tuesday from after school or 3:20pm on a non-school day until Wednesday before school or 9am on a non-school day
3.3.2. Every Wednesday from after school or 3:20pm on a non-school day until 7:00pm;
3.3.3. Every Friday from after school or 3:20pm on a non-school day until Saturday 7:00pm.
3.4. During the 2018 Term 2, school holidays:
3.4.1. Every Tuesday, Wednesday and Friday from 12pm until 7:00pm; and
3.4.2. Every Saturday from 5:00pm until Sunday 7.00pm.
3.5. During school term 2018 Term 3:
3.5.1. Every Tuesday from after school or 3:20pm on a non-school day until Wednesday before school or 9am on a non-school day ;
3.5.2. Every alternate Friday from after school or 3:20pm on a non-school day until Sunday 7.00pm.
3.6. During the 2018 Term 3, school holidays:
3.6.1. From the first Saturday from 5:00pm until the following Tuesday 7:00pm; and
3.6.2. From the second Tuesday from 5:00pm until Friday 7:00pm.
3.7. From Term 4, 2018 onwards, during the school terms:
3.7.1. Each alternate Friday from after school or 3:20pm on a non-school day until Monday before school (or 9:00am on a non-school day);
3.7.2. Each other week, Wednesday from after school or 3:20pm on a non-school day until Thursday before school or 9am on a non-school day.
3.8. During the 2018, Term 4 school holidays:
3.8.1. from after school on the last day of school term until 7:00pm on the second Saturday of the school holidays; and
3.8.2. from 7:00pm on the fourth Saturday of the school holidays until 7:00pm the fifth Saturday of the school holidays; and
3.9. During the 2019 Terms 1, 2 and 3 school holidays:
3.9.1. in even numbered years, from after school on the last day of school term until 7:00pm on the second Saturday of the school holidays;
3.9.2. in odd numbered years, from 7:00pm on the second Saturday of the school holidays until 5:00pm of the last Sunday of the school holidays;
3.10. During the 2019, Term 4 school holidays and thereafter each term 4 school holidays:
3.10.1.in even numbered years, from after school on the last day of school term until 5pm on the third Saturday of the school holidays;
3.10.2.in odd numbered years, from 5:00pm on the third Saturday of the school holidays until 5:00pm of the last Sunday of the school holidays;
4. Notwithstanding any orders herein, and unless otherwise agreed by the parties in writing, the children spend time with the father from 5:00pm Christmas Day until 5:00pm Boxing day in odd numbered years and from 5:00pm Christmas Eve until 5:00pm Christmas Day in even years.
5.Notwithstanding any orders herein, and unless otherwise agreed by the parties in writing, the children spend time with the mother from 5:00pm Christmas Day until 5:00pm Boxing day in even numbered years and from 5:00pm Christmas Eve until 5:00pm Christmas Day in odd years.
6.That, if Mother’s Day falls on a weekend when the children are spending time with the father, then the father’s time shall cease from 5pm on the day before Mother’s Day.
7.That, if Father’s Day falls on a weekend when the children are in the care of the mother, then the children shall spend time with the father from 7:00pm on the day before Father’s Day until 7:00pm on Father’s Day.
8.That all periods of overnight time between the children and the father be conditional upon the father ensuring that at least one of the following persons is present overnight in the father’s home (or any other premises in which the children and the father are staying overnight):
8.1. The father’s partner, [Ms D];
8.2. The paternal grandmother, [Ms E Windeyer];
8.3. The paternal grandfather, [Mr F Windeyer];
8.4. The paternal uncle, [Mr G Windeyer], or
8.5. Any other adult agreed between the parents in writing.
9.In the event that the father is unable to comply with Order 8, then time will occur on the same days as provided in Orders 3-7 but will conclude at 7 pm on each day and recommence at 10 am the following day, unless otherwise agreed in writing between the parties.
10.That, unless otherwise agreed between the mother and the father, changeovers shall take place as follows:
10.1. if changeover is on a school day, the father will collect the children from school at the commencement of his time and/or return the children to school at the conclusion of his time; and
10.2. if changeover is on a non-school day, the father will collect the children from the mother’s residence at the commencement of his time and return the children to the mother’s residence at the conclusion of such time.
11.That each parent shall facilitate telephone communication and/or audio visual communication between the children and the other parent as reasonably requested by the children and, during the school holiday period, at least once every six days.
12.That both parents are restrained from criticising the other party in the presence or hearing of the children.
13.That the father be restrained from taking or causing or permitting the taking of the children on any vehicles operated by him.
14.That the mother and father be restrained from relocating or changing the children’s residence to a location further than 30 kilometres from [Suburb H] High School, [Suburb H] New South Wales.
15.That the mother and father be restrained from taking or causing or permitting the taking of the children (or either of them) to any place outside the Commonwealth of Australia without the prior written consent of the other parent or order of the court.
16.That each parent to ensure the other is informed as soon as is reasonably practicable of:
16.1. any medical problems or illness suffered by the children whilst in his/her care;
16.2. any medication that has been prescribed to the children ;
16.3. any specialist medical appointments with any doctors, psychiatrist, psychologist or therapist regarding the children ;
16.4. any social, school or religious functions which the children is to attend and which parents are welcome to attend;
16.5. their residential address and contact number; and
16.6. any other matter relevant to the welfare of the children .
17.That each parent shall do all acts and things and sign all necessary documents to obtain and maintain a valid passport for the children and such passport will be kept by the father when not needed for overseas travel or for making necessary arrangements for such travel.
18.That leave be granted to the Independent Children’s Lawyer to provide a copy of [Dr J’s] report in these proceedings to:
18.1. The father’s partner, [Ms D];
18.2. The paternal grandmother, [Ms E Windeyer];
18.3. The paternal grandfather, [Mr F Windeyer], and
18.4. The paternal uncle, [Mr G Windeyer].
The ICL also sought an order that the parties equally pay her costs of $15,543 and each of the parties agreed.
AFFIDAVIT OF MS P
The father also sought to rely on an affidavit sworn by Ms P on 1 February 2018. Ms P is a lawyer and she purported to give expert evidence of the law in Country K as it is applied to applications made under the Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”). After hearing argument, I refused leave to rely on the affidavit and indicated that I would provide reasons. These are the reasons.
The procedure for adducing expert evidence in Family Law proceedings is stipulated in the Family Law Rules 2004 (Cth).
Rule 15.52 enables the Court to permit a party to rely on evidence of an expert witness in certain circumstances. The rule provides:
Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.
Note 1: A party who files an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1)).
Note 2: The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness's evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness's training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f) whether the expert witness has specialised knowledge, based on the person's training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note: Despite an order under this rule, a party is not entitle to adduce evidence from an expert witness if the expert's report has not been disclosed or a copy has not been given to the other party (see rule 15.58).
The Court may take into account the considerations in rule 15.52(3) when considering whether to permit a party to adduce evidence from an expert witness.
The purpose of Part 15 of the Rules which deals with the admission of expert evidence is expressed in rule 15.42:
Purpose of Part 15.5
The purpose of this Part is:
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a case;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
In the circumstances of this case, it would have been appropriate for the parties to agree to the appointment of a single expert witness for the purpose of adducing the evidence sought to be relied on. The evidence is potentially controversial.
Counsel for the father did not indicate whether an attempt had been made for that to occur.
Ms P’s affidavit was served on the mother and the Independent Children's Lawyer only shortly before it was sought to be tendered in Court. This did not allow for any reasonable attempt on behalf of those parties to respond to the affidavit.
Moreover, I do not consider it is “necessary in the interests of justice” for the father to be enabled to rely on Ms P’s affidavit. This is because I do not consider Ms P to have any specialised knowledge relevant to the issue on which the evidence is to be given. My reasons for this are below.
Specialised knowledge
The Court may consider, when determining whether to admit evidence of a single expert under Rule 15.52(3)(f), whether the person has any specialised knowledge relevant to the issue on which evidence is to be given.
The Dictionary to the Family Law Rules defines “expert” as “an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.”
Pursuant to s 79 of the Evidence Act 1995 (Cth), evidence of an opinion given by a person who has specialised knowledge based on their training, study or experience may be admissible.
In Honeysett v the Queen (2014) 253 CLR 122, the High Court observed that:
23.Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge.
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA said:
[85]In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
The question of whether a witness qualifies as an expert is a question of fact to be determined by the trial judge (Clarke v Ryan (1960) 103 CLR 486, 503 (Menzies J)).
In this case, the asserted field of knowledge is the implementation in Country K of the Hague Convention. The specialised knowledge sought to be relied on is Ms P’s observations of Country K’s implementation of the Hague Convention.
Ms P was born in Country K and practised as a lawyer in Country K for four months in 2012, after which time she has practised as a lawyer and then a barrister in Australia. I do not consider that Ms P’s study, training and experience as a lawyer in Country K over three months is sufficient to render her an expert in Country K’s implementation of the Hague Convention.
Additionally, the source materials upon which Ms P bases her opinions are reports and websites in Country K which, although annexed to her affidavit, have not been translated. She provides only a summary of these sources in her affidavit. Thus the “facts” upon which Ms P relies in giving her evidence are not identifiable.
For the abovementioned reasons, I do not consider that Ms P has specialised knowledge in respect of the issue in question. Leave was not granted for her affidavit to be admitted into evidence.
THE REPORT OF DR J
Dr J, a child and family psychiatrist, prepared a report in this matter on 22 March 2017.
He was cross-examined and did not resile from his recommendations or his observations in his report.
He interviewed the family on 13 and 14 March 2017. In the course of his interviews, Dr J also spoke to B’s school counsellor, the therapist who runs the group therapy which is attended by the father at Q Clinic, the father’s treating psychiatrist and the father’s treating psychologist.
Dr J interviewed each of the children separately and also observed them with their parents.
In relation to B, Dr J noted that B spoke positively about his experience at school.
In relation to the events in July 2016, Dr J recorded:
[B] commenced with a detailed account of “the incident” six months ago, “which started this”. After waking at 9:00am, there had been a knock on the door. The “ambos” arrived and asked if they had called the emergency services. [B] explained that he had found out that his dad had been doing work in the garage. There had been a gas leak before he could fix it or get out. His father had become unconscious. The gas had started near the door. His father had to move obstacles out of the way. Before he could do so, he was unconscious. At the time, his father had been speaking on the phone to his business partners who had contacted the emergency services. The fire brigade had also been called. He explained that there were eight ambos, four vehicles, two cop cars and a fire truck at the scene. The children had waited in the ambulance, hoping that their Dad was OK. They had all been taken to the hospital and needed to wear “oxygen Darth Vader masks”. His father had required an extended admission in different hospitals as the carbon monoxide and dioxide levels had badly affected his brain. Subsequently he had been unable to see them without a supervisor. Although his father’s judgement had been “a bit off”, [B] had not been scared of him. According to his Mum, his Dad’s family had known about his mental issues since he was 11, but had not taken care of him properly. His Mum had explained that his Dad was not always himself. [B] added, “But I think Mum’s judgement is sometimes a bit off”; his Mum was protective of their phones as she thought that he had previously hacked her phone. As his mother was a [Country K] national, she thought that [Country K] was the only possibility. She planned to abandon them and return to [Country K] as soon as [C] was 18. She wanted them to go to [Country K] too, as that was where she grew up. She wanted them to attend the [Country K] school on Saturdays .... He was forced to go if he wanted to attend [martial arts].
Dr J asked B how he would feel about living in Country K and B responded that there was more technology in Country K than Australia and provided some detailed information. Dr J stated, “In [Country K] he had more relatives, more support, and ex-military vehicles could be cheaply purchased. Although he would miss his family from Australia if he returned to [Country K], he missed his [Country K] family while here.”
Dr J recorded that B said he would miss going to the beach and watching sport in Australia. In B’s view, school in Country K would be better. B said there was only one friend in Australia that he would miss and he understood that martial arts and soccer would be available at school in Country K. Dr J noted that B has not attended school in Country K.
B told Dr J that both of his parents were “both as good as each other”. He said that they each sometimes made mistakes. In relation to his father, Dr J recorded that B said “there was nothing he didn’t like about being with his Dad: He loves us. We love him. I guess he’d come to [Country K], too”.
Dr J commented:
The lack of modulation in [B’s] tone of voice and evident lack of theory of mind was indicative of an Autistic Spectrum Disorder. It was evident that he had been influenced in his views by his conversations with his mother regarding the merits of returning to [Country K] and issues with the paternal family. There was a lack of emotional sophistication to his detailed analysis of events.
When asked to comment on any views expressed by the children and the weight which ought to be given to them, Dr J stated:
[B’s] view differed from that of his sister. He spoke of his preference to return to [Country K]. He spoke superficially about his desire to access technology and automobiles which were more available in [Country K]. He prioritized the relationships and activities available in [Country K] failing to value his current life experience. He was unable to consider the challenges associated with such a relocation. He reflected his mother’s view that the maternal extended family had the capacity to provide supervision for their father in a manner unavailable in Australia. [B’s] concrete manner in relating such views was consistent with his underlying developmental disability, Asperger’s disorder. As such, despite his age, limited weight should be given to such views.
In relation to C, Dr J reported that C liked her school, she enjoyed her friends and her teachers, and “basically everything”. He reported:
[C] was asked about her experience living with her mother. She responded, “I like living with Mum. She likes taking us places. If we get a test over 70 per cent she takes us out for dinner and we get to choose what we want to eat. She lets us take out (sic) rabbit inside. She likes cooking for us. She says, sometimes we can try hard if we get 50 per cent or lower.” She also enjoyed when her father would wake her up and take her to band training. When her parents were living together, her mother had done all the cooking and laundry, “what normal mums would do”. Their Dad would help them with all their homework, their English and the Maths, because her Mum wasn’t very good. He would sometimes cook them breakfast. When asked why he no longer lived with them, [C] responded that she did not know the exact reason but knew that he had a mental illness as he had a problem with his brain. She felt very happy when she saw her Dad.
Dr J asked C about the proposed relocation to Country K. He recorded:
[C] understood that her mother wanted them to go to [Country K] because there would be lots of supervisors there. Her extended [Country K] family would be able to come over more. When asked how she felt about this, [C] responded, “I’d like it, but I would like to stay in Australia for four or five years. I want to be with my friends.” She wanted to go to the same high school with her brother at [Suburb H].
When asked how she would feel about living with her father, C responded, “It would be nice. I like Dad. He’s a nice person. I would really like to live with both of them. I couldn’t choose. I prefer to live with both, not just one at a time.”
Dr J reported:
[C] and [B] provided a detailed account of the several occasions that they had climbed onto the roof together. Although [B] had a key to the house, sometimes his Mum accidentally locked the knob preventing access to enter the property. After checking other access points [B] would hold the ladder as [C] climbed on the roof to gain access through the bathroom window. They would carefully access the slipperiness of the roof tiles before climbing. Their mother had told them that they should only do this as “a last resort”. [B] proudly described their technique as “a well-oiled machine”. This was necessary when his mother had been at work or at meetings. He recalled a couple of occasions several years ago when it was necessary for him to help with [C’s] care and lunch.
In relation to his observations of the children with other family members Dr J stated:
On arrival the mother allowed the children to explore the toys. She was not intrusive in her interactions with them. When [C] was drawing her picture, her mother sat separately, preoccupied with her mobile telephone. She readily allowed the children to come in and out of the office as requested by the report writer.
The children smiled and interacted with enthusiasm on their father’s arrival. Numerous relaxed interactions were observed. They were highly engaged as their father chatted about his activities ... They explored the toys with him in an engaged and active manner. [C] asked to play cards with her father. [B] engaged in a detailed discussion with him. There was a shared sense of humour as they explored their experience. [C] did drawings with her father, while [B] shared his observations of the toys in the room.
Later, the children interacted in an engaged manner with their mother as they played with toys in the room.
The children were highly engaged and responsive in their interactions with the paternal grandparents and paternal uncle when observed together. They reported that this was a normal experience for them.
The mother observed the children’s interactions with the paternal grandparents and uncle. Dr J observed:
… [the mother] dismissed this as unnatural and without meaning. She stated that they were acting. This was inconsistent with the children’s subsequent account. She denied that they shared a close relationship between the children and the paternal extended family.
Dr R, the school counsellor at Suburb H High School spoke to Dr J who recorded:
The school counsellor provided information consistent with the documentation perused about [B’s] school record. [B] was progressing well in the mainstream. His Autistic Spectrum Disorder was accommodated in this context. Although [Suburb H] High School provides special classes for children with Autistic Spectrum Disorders this had not been required. [B] had utilized a learning assistance support teacher for one or two hours a week to assist in his approach to assignments and academic tasks due to difficulty initiating tasks/procrastination. He was progressing well academically but continued to demonstrate a social skills deficit with impaired reciprocity in peer relationships. He was over-talkative, did not listen to responses and was often off-topic. Contrary to his own perceptions, he lacked true friendships.
The school had been provided with background information from both parents regarding the current proceedings. There had been a period during Term 3 in 2016 of reduced school attendance, with an 80 per cent attendance record. This was no longer a concern. There had been minor incidents relating to his well-being during 2016. He was making adequate progress within the school environment. Both parents had been attentive to his needs. There was no evidence of neglect. A recent standardised rating of his Autistic symptomatology identified that the school and father more readily identified this than the mother. Both parents were currently engaged in a review with the school of [B’s] special needs.
In relation to the father’s mental health, Dr J spoke to Dr T, the father’s treating psychiatrist. Dr J recorded:
[The father] had been diagnosed with a Major Depressive Disorder and treated with anti-depressant medication. He had been maintained on [named drug] with good effect. There had been no evidence of persistent depressive symptoms and suicidal ideation. He continued to lack insight into his condition and refused to acknowledge his depressive symptoms and suicidal ideation leading up to the attempted gassing. Dr T had referred [the father] for psychological intervention. She regarded him to have Narcissistic Personality traits with persistent denial of his serious mental illness. No recent symptoms of dissociation had been identified. She had declined to provide [the father] with a letter to support his application to resume his regulated activity. She did not identify him to be currently at risk. She emphasised the necessity of maintenance of his current anti‑depressant treatment.
The father’s psychologist also spoke to Dr J who noted that the father had attended specific intervention focused on relapse prevention which had been effective. The psychologist stated that there had been no intervention to address the father’s personality vulnerabilities or relationship dynamics.
In relation to the risks posed by both of the parents to the children, Dr J stated:
The father had experienced an unusual, relapsing dissociative condition, which had been previously labelled as a Dissociative Identity Disorder or fugue state. In response to stress, he had recurrently dissociated and experienced overwhelming, transient symptoms of Depression, which culminated in repeated suicide attempts. This had been diagnosed as a Major Depressive Disorder. In August 2016 he had gassed himself in the garage, resulting in carbon monoxide poisoning. This had required emergency hyperbaric oxygen treatment at the [M Hospital] and an extended period of medical and psychiatric hospitalisation. The children had been in his care at the time. His failure to provide adequate supervision and protection for the children resulted in their exposure to toxic fumes. It was evident that during such states, he lacked the capacity to provide adequate care for the children. More generally he had prioritised his own personal needs including having one of his many mistresses to stay in the family home with the children in his wife’s absence. This failed to consider the children’s psychological needs. His Narcissistic Personality traits / Self Disorder was identified to interfere with his capacity to prioritise the children’s emotional needs.
Dr J further stated:
The father’s presentation was a complex one. His personality vulnerabilities dated back to childhood. His low self-esteem had evolved in response to his older brother’s disabilities and success, compounded by his exposure to bullying and sexual abuse perpetrated by an older peer. This had not been disclosed to his parents who had been preoccupied with their other responsibilities.
The father was identified to have a Personality Disorder with prominent narcissism and psychopathy. His fragile sense of self was indicative of a Self Disorder. This was evident in his pursuit of recognition in his consulting, martial arts and volunteer activities... His need for acknowledgment had driven multiple concurrent affairs. He had repeatedly lied and misrepresented his activities.
When faced with overwhelming challenges the father had experienced transient dissociation, overwhelming depressed mood, feelings of helplessness and hopelessness and repeated suicidal behaviour. His most recent suicide attempt had placed the children at risk. It was likely that the threat of discovery and damage to his reputation was the precipitant for his periodic decompensation. He had subsequently experienced a transient period of confusion, irritability and aggression related to the carbon monoxide poisoning.
The father had recently engaged in psychiatric and psychological intervention which had effectively managed his depressive symptomatology with a specific focus on relapse prevention. It was uncertain as to whether such intervention would effectively prevent a recurrence of such dramatic behaviour. Given the infrequent and unpredictable nature of the father’s reactions it is not possible to provide a reliable assessment of future risk.
In his recommendations Dr J stated, “The father should maintain psychiatric treatment, including anti-depressant medication as prescribed. This however will not address his underlying personality vulnerabilities.”
In relation to the mother Dr J stated:
The mother, on occasion, had struggled to attend to the children’s needs while they were in her care. On several recent occasions, the children had climbed onto the roof to gain access to the house when they had been locked out. [C] had been at potential risk by climbing onto the roof while her brother held the ladder. This was suggestive of a lack of adequate supervision as alleged by the father.
Dr J further stated:
[The mother] had the capacity to parent the children and support their relationship with their father, despite the recent revelations. The mother demonstrated a cultural response to the experience of shame. Her saving of face was viewed as a normal cultural reaction. Her difficulty in adjusting to the family’s stressful circumstances was identified to be within the normal range. She was not identified to have current symptoms of mental illness. She exhibited restraint in her expression of her emotional experience.
[The mother] had experienced reactive symptoms of anxiety and panic in response to her stressful circumstances. This was consistent with an Adjustment Disorder with Anxiety. She had benefitted from counselling and did not require further psychiatric intervention for this condition.
In relation to C’s expressed views, Dr J stated:
[C] … expressed the clear wish to reside with both parents and was unwilling to choose between her parents. It was her clear wish to remain in Australia to maintain her current school placement, friendships and social activities. She spoke positively about her connection with her paternal extended family and particularly enjoyed her relationship with her paternal cousins. She was also motivated to maintain a link with her [Country K] family and identity with a desire to reside there in the future. Given the maturity associated with her consideration of these matters, considerable weight should be given to [C’s] views.
In relation to the nature of the relationship between the children and members of their family, Dr J stated:
A close and loving relationship was observed between the children and each of their parents. They spoke in a positive and enthusiastic manner about their connection with both their paternal extended family in Australia and maternal extended family in [Country K]. It was evident that the mother had protected the children from exposure to potentially damaging details of the father’s nefarious activities. She had informed them in a balanced and age appropriate manner about his mental illness. This protected their important connection with their father. The children identified that they had been well cared for by both parents. Their mother had been primarily responsible for their day-to-day care. Their father had been more engaged in their educational and sporting activities. There had been some curtailment of such activities as a consequence of his current lack of availability. Both children had been left in the care of the other parent during their father’s regular business trips and mother’s regular visits to [Country K]. During these periods, the children’s needs had been appropriately attended to.
In relation to the likely effect of the separation of the children from either of their parents or other relevant family, Dr J stated:
The children would experience an enduring sense of loss and damage to their self-esteem and evolving identity should they experience a prolonged separation from either parent. They had, however, been regularly exposed of periods of up to a month of separation from either parent and had adapted to this experience.
In relation to the capacity of each parent to provide for the children’s needs, Dr J noted that it had been the mother who had primarily attended to the children’s needs.
In relation to the father, Dr J stated:
He had actively supported the children’s educational and extra-curricular activities, especially their shared experience of martial arts. He had been generally attentive to the children’s emotional and intellectual needs. He asserted that he had primarily been responsible for supporting the children with their homework. The children had benefited from his engagement in such activities. He however was preoccupied with his business and personal activities, with a focus on personal gratification. When it was put to him that it was inappropriate for his mistress to sleep over to assist him in caring for the children in the mother’s absence, he acknowledged that he had prioritised his own needs over those of the children. Most importantly, during periods of dissociation and Depression, precipitated by stress, his capacity to consider the children’s needs was markedly impaired, as was the case during his recent suicide attempt. His failure to consider the children’s safety and basic needs had placed them at risk.
In relation to the attitude to the children and the responsibilities of parenting, Dr J stated that the mother had prioritised the children’s needs and had adopted a responsible approach to parenting. In relation to the father however, Dr J stated:
The father’s approach to the responsibilities of parenthood had been inconsistent. There are periods where he had appropriately attended to the responsibilities of parenthood. On other occasions, he had prioritised his own personal needs while the children were in their mother’s care. During regular absences, purportedly for business and social activities, he had conducted multiple, simultaneous extra-marital affairs. He had acknowledged that his moral reasoning had been impaired and that he had failed to consider his family’s needs. He lacked the capacity to attend to the responsibilities of parenthood during his brief episodes of dissociation and acute suicidality.
Dr J said that the children have a loving connection and identification with both of their parents and will continue to benefit from a meaningful relationship with both of them.
Dr J noted that despite the mistrust which had developed in the context of the father’s deceptive conduct and mental illness and the threat which was posed to the children by his suicide attempt, the mother had demonstrated a capacity to maintain communication and support his contact with the children. Although the mother had spoken to the children about the benefits, as she perceived them, of returning to Country K, she had not alienated the children from their father and had protected them from details of his pathological behaviour which would have been detrimental to their welfare.
In relation to B’s special needs, Dr J commented:
[B] fulfilled the DSM 5 criteria for an Autistic Spectrum Disorder without accompanying intellectual impairment. This was of mild severity. The early diagnosis of Asperger’s Disorder had facilitated appropriate intervention for his special needs. His parents and school had worked together to provide a suitable environment to manage his underlying disability. He had thrived in this context.
Dr J further noted:
[B’s] special needs have been well attended to in his current school placement. My discussion with his school counsellor highlighted the benefits of maintaining this specific school placement for him. He had been thriving in this environment. It was evident that both [B] and his mother underestimated the predictable disruption to his developmental progress should the family relocate to [Country K].
Dr J expanded upon this view in his oral evidence.
Dr J made recommendations in his report in the following terms:
1. The maintenance of joint parental responsibility.
2. The mother maintain primary residence.
3. The children to continue to maintain regular contact with their father, initially in a day-only setting. It would be beneficial for the children for him to remain engaged in their academic and extracurricular activities. This could proceed to regular overnight contact with the undertaking that he does not introduce them to transient female partners. I did not identify a need for long term supervision. Should there be further decompensation in the father’s mental state, supervision may again be required. Given the unpredictable nature of the father’s symptomatology and his inability to place the children’s needs ahead of his own, his application for week-about shared care was viewed as inappropriate.
4. The children will benefit from remaining in their current school placement and the maintenance of their regular extra-curricular activities. This was in line with [C’s] wishes. Although [B] considered the relocation to [Country K] to be best, he lacked the capacity to consider adequately the challenges of the change in educational environment.
5. The children will benefit from regular visits to [Country K] with their mother to maintain contact with their maternal extended family. Regular contact with the paternal extended family in Sydney should be maintained. …
ISSUES
From the narrative set out above, and the report of Dr J, it emerges that consideration needs to be given to a number of broad issues.
Paramount in the mind of Dr J was the effect on B of a change in his “scaffolding of care” between the arrangements currently in place in Australia and the arrangements that might be put in place in Country K, and B’s ability to cope with the relocation. This is not to ignore the effect on C of the proposed relocation, but to acknowledge that Dr J gave evidence, and the parties concurred, that C is a robust and resilient child who would adapt to life in Country K.
A secondary consideration is the practical reality of the mother’s proposals for their life in Country K.
The issue of the father’s mental health needs to be examined in the light of his proposals for equal shared care and the proposal of the ICL and of the mother that his overnight time with the children be supervised.
Specific consideration needs to be given to the issue of overseas travel.
Once those issues are understood, the competing proposals can be considered in the framework of s 60CC of the Family Law Act 1975 (Cth).
B
B was diagnosed with Asperger’s Syndrome in Country K when he was five years old. The events following the diagnosis, as variously deposed to by the parents and set out in the mother’s letter of September 2009, suggest that the parents were not satisfied with the resources available for B in Country K.
Dr J, in his oral evidence, said that B’s diagnosis could now be categorised under the general heading of an Autism Spectrum Disorder (“ASD”).
He said that the information which had been provided to him indicated that B’s needs were currently well supported. B is progressing well in the main stream of his current school which is a school that also has special classes for children with ASD. Although B is not in those classes, the fact that they exist demonstrates that the general school population is familiar with children with ASD and how they might behave and the experience and knowledge of the teachers who specialise in the ASD classes is available to the body of teachers.
Significantly, Dr J said that B is in a general class at his current school and not a “special” class, and so he is probably relatively unremarkable to the school population.
Dr J said that even though B has a disability, his disability is significantly less than a number of the children at the school and “he will be more within the bell shaped curve”. Whereas, according to Dr J, in a normal school environment, or in a Country K school such as the V School, B will be an “outlier”.
Dr J said that at B’s current school he is being provided with a learning assistance support teacher and even though he has problems with social interactions, being over talkative and off topic and difficulties in understanding friendships, he was still coping in that environment.
Dr J expressed the concern that children like B may be identified as having bad behaviour and that would be an inappropriate way to manage B’s disability. He expressed the view that it would be unlikely that a school in Country K could provide the same degree of support as the support currently offered by his present school. Dr J said that the environment of the present school is likely to enhance B’s self-esteem and allow him to reach his full potential.
Dr J said that he was highly impressed with the quality of care provided by B’s school, which he said was far superior to other schools he had dealt with in Sydney in his clinical practice and was, in his view, “world class”.
The mother’s aunt, who works in a care organisation and has nursing qualifications, deposed that the three doctors who originally diagnosed B’s condition were still practising in the area where the mother proposes to live and that a hospital located in the prefecture specialised in treating autism.
Dr J, in cross-examination, said that he was unaware of the specific resources that would be available to B in Country K. However, he said, the diagnosis of ASD is typically made by a paediatrician (such as those who diagnosed B) and that the paediatrician may continue to monitor medication although that would typically be taken over by a child and adolescent psychiatrist.
Dr J said that the specific interventions provided for B are not focused on the issue of diagnosis, which is a different skill set from the provision of ongoing therapy and support. Dr J said that the potential benefits of continuity of care for B, that is, being treated again by those who originally diagnosed him, are lost because B is now at a different stage of his development.
Dr J was not able to say whether the doctors to whom the mother’s aunt referred would provide ongoing therapy. He said that it is most common for ongoing therapy for children with ASD to be provided by clinical psychologists and occupational therapists and that B has not required medical intervention to date. It is unlikely, according to Dr J, that B will require medical intervention and he has not, so far, required a psychiatrist.
Dr J referred to the type of intervention currently being provided for B as “scaffolding” to support his experience at school, his social interactions and the exploration of his experience within his family life. He said that the issue of the continuity of B’s care occurs in the maintenance of therapeutic intervention with a particular therapist. He opined that if there were a different therapist who had a different skill set in a different country, that would be sufficient to make it a different experience for B. Dr J said that the therapy that B currently receives in Australia is not interchangeable with therapy in Country K, even if that therapy were provided on a similar model.
Dr J said that for B the proposed change of school would have its particular difficulties.
Firstly, there is no evidence that the school which the mother proposes, the V School, has any particular expertise in dealing with children with ASD or that any other children at the school have ASD. In those circumstances B would not blend in to the school population in the way that he currently does.
Dr J said that B continues to experience significant areas of vulnerability as he approaches adolescence which is a particularly difficult time, bringing problems of fitting in and of social interaction. To place B in an area of change where all aspects of his life would be different would be difficult for him. To relocate would be challenging for B because he would be moving into an international school with a curriculum which is different to that to which he is accustomed (the mother gave evidence that the V School uses a Canadian curriculum). B would experience changes in his educational structure, his social networks and his extra‑curricular activities and would experience a major cultural shift.
Dr J said that even for highly functioning children, changes of schools internationally are challenging and that he has had experience in his clinical practice recently with students changing from schools internationally to schools in Australia who have experienced difficulty, although they were not children who suffered disability, as B does.
Dr J stressed that the major change for B was that he would lose the current supportive scaffolding which has been constructed around him.
When asked how B might be affected if exposed to the sorts of changes which he had outlined, Dr J said that children such as B are particularly vulnerable to anxiety and depression in adolescent years. This is exacerbated if there is a family history, as there is for B, of depression. Dr J predicted that B may become anxious and depressed and experience difficulty attending school. He may experience difficulty in social interactions and could feel alienated or isolated and become more withdrawn. Dr J said that B would be less likely to achieve educational goals to his capacity.
Dr J said that B has received a lot of support to adjust to his current context. He knows what to expect in relation to his teachers, and his school’s social environment. But expectations of what is appropriate or acceptable behaviour will be different in different environments. Dr J said that there are different social expectations in Country K society from those in Australian society and that whilst B has, in part, experienced those expectations with his mother and extended maternal family on his regular visits to Country K, he has not lived with them. B will be entering into a school and social environment which has expectations to which he is not accustomed and which would be different from his current school.
Dr J considered B’s difficulty in making friendships to be significant in terms of moving to a new school, particularly a school which is an international school and where children may come and go as their parents relocate. He said this would raise further stressors for a child such as B and would set him up for particular challenges. He considered that possibly the groups would be less cliquey because they would not be as stable as the more traditional school environment but that this may be more challenging for B because he may form a connection with a child who would not stay at the school.
THE MOTHER’S PROPOSALS IN COUNTRY K
The mother deposed that she proposed to move to Region W. This is next to Region X where the mother’s parents and her aunt live, and where the family lived before they moved to Australia. The distance between the place where the mother proposes to live and the place where her parents and her aunt live is about 40 minutes by train or 90 minutes by car.
The mother proposed that she would enrol the children in the V School and rent premises nearby.
In relation to schooling, the mother’s proposals were uncertain. It transpired in cross-examination that she had made enquiries of the school for the first time on the day before the hearing when she submitted an enquiry using the school’s website. She had not received any information other than an acknowledgement of her enquiry. Thus, her knowledge of the school was limited to what she read on its website.
She was unable to say whether there might be places available for the children, given that the school year in Country K starts in April. She did not know anything about the curriculum other than that the school followed the Canadian curriculum, and she was unable to say how the Australian and Canadian curricula compared.
She did not know whether there were any students at the school with ASD or whether the school provided any special support to children with ASD.
In cross-examination she said that if the children could not attend V School then there was another international school nearby which they could attend. That school was never named and no information at all was provided about it.
Other than the evidence of her aunt, which has been set out earlier in these reasons, the mother had no specific understanding of the services which could be available for B in Country K.
The maternal grandmother and the mother’s aunt expressed their willingness to assist the mother with the care of the children but each of them referred to being able to travel to assist her, which might not be realistic and practicable given the distances involved.
There is no doubt that the mother would be closer to and more involved with her extended family if she were able to move to Country K and that she would benefit from that interaction.
There is also no doubt that there are benefits to B and C of closer and more frequent interaction with their extended maternal family.
The mother has qualifications as a professional in Country K. I accept that she would be able to find employment although there was no evidence about what she would earn, where she would be able to work or how long it might take to find a job. However, she has a significant amount of money invested from her property settlement and would be able to fund her expenses.
Nonetheless, I consider that the benefits to the mother if she and the children were permitted to relocate to Country K would be outweighed by the impact that such a relocation would have on the children, particularly B. The children would be unable to maintain a meaningful relationship with their father and B would lose the “scaffolding” that he currently has available to him and which is critical for his development.
THE FATHER’S MENTAL HEALTH AND SUPERVISION
Dr J, in his report, has set out his assessment of the father’s mental health.
The father’s mental health is particularly relevant to the issues of equal shared care as sought by the father, and supervision as sought by the ICL and the mother.
Dr J said that supervision would impose a significant burden on the father and that it was difficult to know how it could practicably be organised. He said that the only reason for the father to require supervision is if there was a significant deterioration in his mental state and that in those circumstances he should not be seeing the children at all.
It was put to Dr J that the father has not been accurate in his self‑reporting and he agreed.
When asked who would monitor the father’s mental state so that any significant deterioration was detected, Dr J said that the situation was difficult and entirely unpredictable. Firstly, he said that the father, having had experiences of suicidal ideation, is vulnerable to further experiences and those are likely to occur at times of major stress as they have in the past. Dr J said that if the father’s health deteriorated, the children are of an age when they would be able to identify and report same. Dr J placed particular emphasis on the support provided by members of the paternal family and expressed some confidence that the paternal family would monitor the father and be able to identify any risk which he posed.
Dr J said that ideally the father should engage in long term, weekly psychotherapy with an individual therapist who was experienced in his particular condition and had given an undertaking to notify appropriate persons, whether that be the mother or some other agency. However, he acknowledged that such intervention would be expensive and difficult to sustain if the father was not motivated. Dr J said that the benefits to be accrued by court ordered therapy are problematic.
Dr J said that the risk of the father again attempting suicide was significant if stressors such as those which he had experienced in the past occurred again. He said that it was not possible to exclude the risk of either the father having further dissociative episodes or further suicide attempts.
Dr J said that there were benefits for the children in a more normalised regime where they spend overnight time with their father and are able to spend holiday time with him.
Dr J acknowledged that if the children are to spend overnight time with the father the mother may become more anxious although she may adapt over time.
It appears from all of the material available that the father first had an episode of concern when he was in Year 6 when, according to his mother, he suffered difficulties with sight which were thought by doctors to be associated with “some sort of hysteria or mental problem”. That information did not come from the father but was related by his mother in cross-examination.
The next episode of which the Court is aware occurred in 1998 (according to the father) when he took an overdose of paracetamol following his then girlfriend terminating a pregnancy without telling him. He was hospitalised overnight and saw a psychiatrist for 10 weeks.
In 2005, the father took an overdose of paracetamol which he deposed was accidental. He consulted a doctor and was hospitalised but released. The father deposed that this was not a suicide attempt. Dr U, a psychiatrist whom the father consulted in 2008, reported that the father, in relation to this incident said he felt he was “in a programme … actions going on without my brain thinking about them.”
In 2008 the husband suffered a mental health incident in Country K. His evidence in relation to that episode is minimal. The mother deposed that he disappeared from their home and that she received a phone call from an unidentified woman at about 11.00 pm suggesting that she check where he was. The mother phoned and had a conversation with the father. He was crying, about nine kilometres from home and saying that he wanted to “go home towards the moon”. The mother telephoned the police and the father was eventually found at about midnight. The mother deposed that when she collected the father from the police, he did not know who she was. The father saw a psychiatrist in Country K who spoke English. On the advice of the psychiatrist, he took a holiday for two months in Australia, leaving the mother and the two children in Country K.
While in Australia, the father consulted Dr U, a consultant psychiatrist, who diagnosed a “fugue state during an episode of dissociation”. Dr U commented that “… it would appear the episode that has led to our seeing him is at least the third period of odd behaviour, occurring while in an altered state of awareness.”
In 2012 the father applied to join the public service but was rejected. He appealed that rejection. Annexed to the father’s affidavit were medical reports prepared in relation to his appeal. A report of Dr N, a consultant psychiatrist, dated 27 February 2012 refers to the incident in 1998 and states “[The father] denied any history of mental illness prior to 1998 and he has not had any psychiatric problems since”. Dr N stated that the father displayed characteristics of Narcissistic personality traits but that the 1998 incident was isolated. Clearly, Dr N was not told by the father of the incidents in 2005 and 2008 and was not provided with a copy of Dr U’s report.
The Government Authority suspended the father’s industry license after the suicide attempt in July 2016. In order to regain the licence, the father consulted “Y Group” who prepared a report dated 4 April 2017. The father referred to the report as a discharge report. That does not appear to be accurate as the report is specifically prepared in response to a letter from the Authority. It is not clear who was the author of the report or what qualifications that person had, although it is noted that the letter was “electronically authorised” and signed by Dr T, a consultant psychiatrist. The diagnosis was "Major Depressive Disorder”. The report noted that the father had had a similar episode (suicide attempt) in his early 20’s and a dissociative episode in 2008 although the father said he did not remember any details of that event. The author did not appear to be aware of the episode in 2005.
Dr T, the father’s treating psychiatrist, told Dr J in March 2017 that she had declined to provide the father with a letter supporting his application to resume his regulated activity. That fact does not appear to have been communicated to the author of the report of “Y Group”. (If Dr T is the author of the report, she appears to have changed her mind about the father’s fitness between March and April 2017.)
I am unable to find that the father’s parents or his brother or his partner would monitor his wellness as Dr J expects.
The father, in cross-examination, said that he had told his partner, Ms D, everything about the suicide attempt in 2016 because she needed to know “who he was” and that he had been open and frank with her about the episode. He said that he was self-monitoring his mood and kept a chart in which he tracked major stressors. He also said that he had asked Ms D and his parents to also monitor the stressors and let him know if they appeared elevated.
Ms D, in cross-examination, said that she had not been aware that the father had been in a relationship with Ms S for some years (while simultaneously being in a relationship with Ms D and married to the mother). She said that she believed that she was the only extra-marital partner of the father. Ms D said that she had asked the father if he had tried to kill himself in July 2016 and he had said “no”. She said that she did not think that he would have tried to kill himself although she acknowledged that the father’s brother had told her that he did. However, she did not believe the husband’s brother.
Ms D did not know whether the father had been diagnosed with any mental illness and did not know the name of his psychiatrist. She had never attended any appointments with the father.
Ms D said that she had concerns about the father at Christmas in 2017 when, in a text message to her in Country O where she was visiting family, he appeared to be stressed. She telephoned his parents and they said he was fine and that she should not worry.
Ms D said she was conscious of the need to monitor sleeplessness and appetite but she was unaware of any other stressors which might be relevant.
She said that if she were concerned she would contact the father’s parents but not his brother.
Although Ms D had been seeing the husband at least weekly in the weeks leading up to the suicide attempt, and she said he does not try to hide anything from her, she clearly did not discern that there was any cause for concern at that time.
I am not confident that Ms D would recognise the signs of the deterioration in the father’s mental health or that, if she did, she would be able to cause any appropriate intervention.
The father’s mother in cross-examination said that she was not aware of the nature of the father’s illness and the father had not told her of any diagnosis.
She said she understood that the July 2016 event was an attempted suicide but she was not aware of any earlier suicide attempt. She said the incident in 1998 was not a suicide attempt because the father called his brother for help. She did not appear to be aware of the incidents in 2005 and 2008.
She saw the father two days before the July 2016 event and said he “looked a bit down, that’s all” but she did not say anything to him about it because she was not sufficiently concerned. Specifically she did not notice that he had lost weight and he did not say he had difficulty sleeping or was feeling sad. The suicide attempt came as a surprise to her.
The father’s mother did not think that anything similar could happen again and that there was no risk of another similar episode.
She said that the father had not talked to her about triggers or stressors or the things that might cause another episode and he had not asked her to monitor his mental health. The father had not talked to her about the events which precipitated the incident in July 2016.
She said that she might recognise the signs if his mental health were to deteriorate and she would call Beyond Blue or get in touch with her own general practitioner.
The paternal grandfather said that he did not know what happened in July 2016 or why it happened. When asked if he was aware that the father had attempted to take his own life he replied that he had spoken to the father but the father had not confirmed that he tried to suicide. He said that, as far as he was aware, it was not a suicide attempt.
The paternal grandfather had seen the father frequently in the days leading up to the event and had seen him two days before but had no concerns for the father’s mental health. Having regard to the contents of the diary the father was keeping and the fact that he had composed a suicide letter on 2 July 2016, either the father is very good at concealing his symptoms or the grandfather is unobservant.
The paternal grandfather was unaware of the overdose in 1998. He was aware that the father had overdosed on paracetamol, however he believed that had occurred in 2004 or 2005.
The paternal grandfather denied that he had been told by the father what significant stressors or indicators he should be aware of or that the father had asked him to keep a look out for those factors. He said that he did not know what signs to look for which might point to declining mental health.
He said that since the July 2016 incident, he had no concerns for the father’s mental health but that he would speak to the father if he observed withdrawal, tiredness or disinterest.
Asked if he would tell the mother if he observed concerning signs he said that he did not think he would do so.
The father’s brother had no doubt that the events of July 2016 were a suicide attempt and was aware of the past history. He had provided support for the mother in the weeks after the event.
The father’s brother said that the father was clearly depressed in the period leading up to the suicide attempt but he did not suggest that he had intervened. In cross‑examination he said that if the father had exhibited symptoms before the suicide attempt, they were not apparent to him.
The father’s brother did not know if the father was currently taking medication. He was not aware of any mental health diagnosis.
He did not suggest that he would share any concerns about the father’s mental health with the mother and said he did not think that the mother would want to hear from him.
He is not in close contact with the father. They message each other about once a week and meet face to face on family occasions.
The father’s brother said that he has told his parents that the events of July 2016 were a suicide attempt but he is aware that they have a different view.
Having regard to the evidence of Ms D and the husband’s parents and brother, I do not accept that any of them is monitoring the father’s mental health in the sense that Dr J envisaged in coming to the view that their vigilance would be an effective safeguard for the children spending unsupervised time with their father.
I accept the submission on behalf of the ICL that if the children are to spend overnight time in the father’s home, then another adult needs to be present so that, if anything should occur, that person will be available to care for and comfort the children.
The events that have, in the past, precipitated a deterioration in the father’s mental health include relationship breakdown, relationship stress and sleeplessness. That list is not exhaustive. There is no evidence about the events leading up to the episode in 2008.
If such events were to occur in the future, it is reasonable to predict that the father’s mental health will deteriorate. The most obvious risk is that, if his relationship with Ms D breaks down, the father’s mental health will suffer. Given the father’s history of extraneous relationships, that risk must exist.
The orders will provide that the children will have overnight time with the father provided that Ms D is residing at the same address. It is not intended that she must be present as a supervisor but, rather, that she be living in the same home. If she needs to be away from home, then either of the paternal grandparents or the father’s brother can be at the home overnight for the overnight time to occur.
I consider that the presence of another adult in the father’s home overnight will mitigate, to some extent, any effect on the children of the father suffering a further deterioration of his mental health whilst they are in the home.
I also consider that the father’s proposal for equal shared time would not be appropriate as the children, particularly B, require consistency in their care arrangements. Further, I accept the evidence of Dr J that the impact on the children of the father having a relapse in the future would be far greater if they were living with the father in a shared care arrangement.
INTERNATIONAL TRAVEL
Dr J recommended that the mother and the children be allowed to visit Country K regularly in order to maintain their connections with the maternal family and Country K culture.
The father opposed any travel to Country K on the basis that the mother might retain the children in Country K and that he would be unable to secure their return.
There was no evidence before me in relation to that issue other than the father’s expressed concerns.
It is accepted that Country K is a signatory to the Hague Convention. There is no evidence before me of the manner in which Courts in Country K had interpreted and applied the Convention. For the reasons stated earlier, I do not accept the evidence of Ms P which was sought to be adduced by the father.
On behalf of the mother it was submitted that she could, had she been so minded, have taken the children to Country K while the father was in hospital in July 2016 but, instead, she voluntarily surrendered their passports to her solicitor, consented to an order that they be placed on the watch list and immediately filed an Application seeking permission to relocate.
It was the father’s case that the mother had a long standing wish to live in Country K and no real ties to Australia.
The ICL proposed that any future international travel by either parent be the subject of a further application.
Although the Court would always be reluctant to impose on parties the requirement of further applications, there is merit in the proposal of the ICL.
The mother has no ties in Australia. She is homesick. She has substantial liquid assets which could easily be moved to Country K. She would be supported by her family in Country K. She does not offer a bond against her return.
The attitude of the father, and of the Court, might be quite different if, at the time the mother proposed to travel, she had invested in a home or other property in Australia or if she offered to lodge an appropriate bond, but that is not the situation at present.
I am reluctantly persuaded that the proposal of the ICL is appropriate.
CONSIDERATION
There is no dispute that the children would benefit from the maintenance of a meaningful relationship with both of their parents. The need to protect the children from exposure to the consequences of their father’s mental health is to be given priority.
The children’s views are clear. C does not want to live in Country K. Although the mother deposed that C told her on a number of occasions that she looks forward to living in Country K and being with her maternal family, when speaking to Dr J, C expressed that she would “like” to live in Country K but that she wants to stay in Australia “for four or five years” to be close to her friends and to attend high school with B. I accept the evidence of Dr J that her views are mature and should be given considerable weight.
B’s views are less clearly expressed. B told Dr J that he wanted to move to Country K but that was in the context that B believed that his father would move to Country K.
On 8 June 2017, B’s therapist sent an email to the father in which she said, inter alia:
[B] is still battling with the uncertainty of his future. He sees the possibility of his travelling to [Country K] as something looming over him, is quite worried about it, and because of his profile and the lack of information he is subjected to, he tends to look at it from many different angles, trying to make sense of things.
In more recent time, B has told his father that he will not go to Country K unless his father also moves. The father deposed that on 30 January 2018, B said to him, “One thing is clear, if you’re not going to [Country K], I am not going, even if [C] and Mum go”.
B’s view, as expressed to his father on that occasion is not inconsistent with his statements to Dr J.
There is no evidence in the mother’s case that B has expressed a strong wish to her to live in Country K.
I am satisfied that neither child wants to relocate in the absence of their father.
Having regard to their ages, and taking into account B’s particular circumstances, I am satisfied that significant weight should be given to their views. I accept Dr J’s opinion that limited weight should be given to B’s preference to return to Country K as reported by him during the interviews.
The children have a warm and loving relationship with each of their parents and with their extended families.
At least since the latter part of 2016, after the father’s release from hospital, he has been diligent in his attention to the children. Before that time, he is subject to proper criticism in the mother’s case for absenting himself for significant periods of time so as to engage in business and personal activities that have detracted from his ability to spend time with, and attend to, the children.
The likely effect of the separation of the children from their father has been addressed by Dr J. The considerations are different for each child. Dr J said that C, who is a robust and resilient child, would manage. The father agreed.
However, in relation to C, Dr J said that her connection with her father is significant and that to maintain that connection is an important fundamental value base for her evolving self-esteem, her identity, and the manner in which she approaches relationships in future.
In relation to B, Dr J said he was also benefitting from the environment provided by both of his parents but there was a particular concern in relation to B because of his ASD. Dr J said that children like B are better able to maintain connections through the use of technology but the problem for B, in not having regular face to face time with his father, would be losing the experiential nature of an individual, one on one, connection with a person when he already has difficulties in that area. Dr J said that the experience of a day to day, face to face connection for B would not be replaceable by having regular connection with his father by Skype and it would be likely that his learning how to relate, face to face, to other people, would be affected.
The children would also experience separation from their paternal family in Australia of whom their cousins are particularly important. They are accustomed to having regular time with their grandparents and Dr J observed a warm and loving relationship between them.
On behalf of the mother it was submitted that the children are already separated from their extended maternal family in Country K, but that is a situation that is normal for them. C would have no memory of living in proximity to her maternal family and B would have very little, having left Country K when he was about six years old.
If the children remain living in Australia in the area of B’s school, there is no significant practical difficulty or expense in maintaining their contact with each of their parents.
However, if the children relocate to Country K, the situation is different.
The father gave evidence that he would not relocate to Country K if the children were to live there. He said that he had experienced life in Country K having lived there for ten years until 2008. His experience was that he was racially discriminated against in Country K. If he were to live and work in Country K, he would be involved in a work culture which is inimical to his mental health. Since July 2016, he has restructured his business so that other employees are responsible for the operations of the business and his management duties can be performed in 12 to 14 hours each week. If he were to live and work in Country K, his Country K clients would demand his attention for many hours each day. He gave evidence of a very heavy drinking and socialising culture which is an integral part of doing business in Country K and, said that on his estimate, he would have to work four or five hours a day more than he does in Australia.
The mother proposes that she, or a family member, will accompany the children to Australia for one period each year of about one week. She will bear the costs of their travel and rent a serviced apartment where they will live while they are in Australia. Otherwise, it is her proposal that the children can travel to Australia on one other occasion each year at the father’s expense, presumably the father will also pay for the children to be accompanied and the costs of accommodation for the accompanying person. In addition, on her proposal, the father will travel to Country K, again at his own expense, on two occasions each year during holidays to spend time with the children. Although the mother deposed that the father could stay with her relatives in Country K, only the wife’s mother gave that evidence and it can readily be imagined that this might not be the most comfortable arrangement for the father in the circumstances. Any travel to Country K will involve significant costs to the father for air fares and accommodation. There is no evidence of those anticipated costs.
The mother also said that the father could see the children on any additional occasion when he was in Country K on business but this would be in consultation with her and subject to her agreement.
The father said that he may travel to Country K once or twice each year for business and it may be that his visits to the children could be combined with those trips, which would ameliorate the costs somewhat. However, on any view of the evidence, the costs of the father’s spending time with the children if they live in Country K is significant and unknown.
The capacity of each of the parents to provide for the needs of B is in issue.
Dr J expressed the view that the father was more alert and aware to the issues relating to B than was the mother. He said that the mother spoke more superficially with regard to her perception of the children than the father did although that may be partly a cultural issue and he was conscious that the mother had not been interviewed in her first language. Dr J said that the father had a more sophisticated understanding of B’s difficulties.
Dr J said that it was difficult to say how the mother would be affected if her application to relocate were unsuccessful. He said that the present time, that is, in the course of the court processes and the hearing, is probably the most stressful for the mother with its challenges of having a hope and an expectation. If those hopes and expectations are thwarted, it is possible that she may become depressed and overwhelmed. She is likely to go through a process of grieving and then adapt to her current circumstances. Dr J said that there have been periods where the mother has been able to cope with significant adversity and she has not decompensated into a major depressive disorder and that it is unlikely that she would do so. He said that in his view it is possible that she would experience an adjustment disorder but that it is more likely that she would adapt once she understood the nature of her circumstances.
The father raised a number of criticisms of the mother’s capacity to parent the children. She has not had a fully operating refrigerator since December 2017 because she is still deciding whether to fix it or get a new one, presumably dependent on the outcome of these proceedings. Only one shelf of the freezer appears to work regularly although the mother said that if the “fridge was switched off and on it sometimes worked for a while”. Probably as a consequence of the broken fridge, in January 2018, the mother gave the children bread rolls for breakfast which were mouldy.
The father gave a number of examples where the mother seemed to have difficulties either delivering the children or collecting them from him.
More significant, however, is the record of B’s school attendance.
Dr J noted that the school counsellor reported a problem with B’s school attendance in Term 3 of 2016 where he had an 80 per cent attendance record.
That problem continued in 2017 where the school noted 85 partial absences. Some of those are accounted for but far too many are explained as “Mum didn’t wake up”; “sister took too long”; “sister slept in”; “left late”; “no reason”; “woke up late”; “traffic”; “Mum took a wrong turn”; or “no reason”. It is important for every child that they attend school on time so that they maximise their educational opportunities. It is even more important for B because of his need for routine and stability. B’s attendance record is unacceptable and it is the mother who has the responsibility for making sure he gets to school.
The father gave evidence that the mother had similar difficulties getting B to Kindergarten when they lived in Country K. It cannot be assumed that, if the mother lived in Country K with the children, their attendance record would be any better.
Earlier in these reasons, the children’s statements to Dr J about being locked out of the house and C climbing on to the roof to gain entry have been set out. The mother did not appear to be at all concerned about those events. She gave no explanation why the children were at home and she was not on those occasions. She attempted to suggest that the father should be blamed although it was not clear how that could be.
I accept that the mother has not had the assistance from the father that was appropriate, either before separation or after, but her attention to the physical care of the children has been lacking and, particularly in relation to their being locked out of the house, has put them in physical danger.
The children are of Country K heritage and it is important that their Country K culture and language be maintained. Obviously, this could be easily achieved if they lived in Country K. They are also of Australian heritage and the evidence was less clear that their Australian culture would be maintained in Country K.
There was no evidence at all in the mother’s case to address this issue.
In Australia, the children attend Country K school each weekend and B learns martial arts. The maternal grandmother, in cross‑examination, said that the children’s Country K is good.
The maintenance of the children’s English language skills, if they live in Country K, is problematic. The V School conducts classes in English but there is no certainty that the children will attend there. There is no evidence of the language in which classes are conducted in the alternative school which the mother proposes.
The mother chose to give her evidence in Country K through an interpreter as she was entitled to do and no inference can be drawn from that choice. However, the consequence is that, since the mother spoke not one word in English throughout the whole of the hearing, it is impossible to gauge how fluent her English is and to what extent she would be able to help the children maintain their skills in English.
The mother has been committed to the care of the children but has allowed her interests to take priority over theirs.
The father has preferred his business activities and personal gratification over his responsibilities to his children.
CONCLUSION
I accept the evidence of Dr J about the effect on B of a change in his schooling and the removal of his “scaffolding” of support and I consider this to be the most important consideration in this decision.
I find that the children do not want to relocate to Country K although B’s view might be different if his father were to accompany them. Since this is not going to happen, neither child wants to relocate. I give secondary weight to this factor.
Those two factors outweigh the benefit to the mother of relocation.
The children will remain in Australia.
I have also considered the father’s application for equal shared time and, for the reasons set out above, do not deem that proposal to be appropriate or in the children’s best interests.
I find that the children should spend overnight time with the father and that this should occur in the presence of the father’s partner or a member of the paternal family, having regard to the father’s history of mental health concerns and risk of relapse.
The orders will be made in the framework proposed by the ICL with the extended periods for which the mother contends.
I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 March 2018.
Associate:
Date: 15 March 2018
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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