Wood & Lanai
[2023] FedCFamC1F 738
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wood & Lanai [2023] FedCFamC1F 738
File number(s): BRC 17929 of 2020 Judgment of: JARRETT J Date of judgment: 31 August 2023 Catchwords: FAMILY LAW – PARENTING – Where respondent unilaterally relocated to Country B and subsequently child was ordered to return to Australia – Where respondent intends to relocate to Country B with child – Where primary attachment is to respondent – Whether either party will facilitate a relationship with the other parent – Order for child to live with respondent – Order permitting respondent to relocate to Country B Legislation: Family Law Act 1975 (Cth) ss 4AB(2)(e), 60CA, 60CC, 61DA, 61DA(1), 61DA(2)(b), 61C
Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980
Division: Division 1 First Instance Number of paragraphs: 88 Date of hearing: 23, 26 June 2023 Place: Brisbane Counsel for the Applicant: Ms Frizelle Solicitors for the Applicant: MCG Legal Solicitors for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitors for the Independent Children’s Lawyer: Barbara Fox Solicitor ORDERS
BRC 17929 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WOOD
Applicant
AND: MS LANAI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Commencing at 4.00pm on 31 August, 2021 X born, 2018 live with the respondent.
3.The respondent be permitted to remove X from the Commonwealth of Australia to Country B.
4.Pending order 3, X spend time with the applicant each alternate weekend from after school Friday until before school Monday.
5.Upon the implementation of order 3, X shall spend time with the applicant at all times as agreed between the parties in writing but failing agreement:
(a)for the first half of the December 2023/January 2024 school holidays with such time to take place in Country B;
(b)thereafter:
(i)the second half of the July/August school holidays and the second half of the December/January school holidays in even numbered years; and
(ii)the first half of the July/August school holidays and the first half of the December/January school holidays in odd numbered years;
with such time to take place in Australia at the election of the applicant with the applicant to collect and return X to the respondent and pay all costs associated with X’s travel to and from Australia; and
(c)if the applicant travels to Country B outside the periods described in order 5(a) or (b), overnight during the time the applicant is in Country B provided he gives the respondent 14 days’ notice of his intention to travel and such time does not exceed five consecutive nights.
6.In addition to order 5, if X is present in Australia and not otherwise in the applicant’s care, she shall spend time with the applicant:
(a)on her birthday at such times as can be agreed between the parties, but failing agreement then from 12:00pm to 7:00pm;
(b)on the applicant’s birthday from 4:00pm to 6:30pm if the birthday falls on a school day and X is at school in Australia, otherwise from 12.00pm to 7.00pm; and
(c)on Father’s Day from 4:00pm on the day to prior to Father’s Day until 7:00pm on Father’s Day.
7.If X is not present in Australia and not otherwise in the applicant’s care on her birthday, Father’s Day or the applicant’s birthday, X shall have Facetime or video contact via Messenger with the applicant in accordance with order 8 hereof.
8.Each parent shall be at liberty to communicate with X via the Messenger account or the mobile telephone number of X’s phone, any day between 8am and 8pm, the time being based on X’s location while X is not in the care of the other parent.
9.Both parents shall ensure that X's phone is maintained, in good repair, charged and available to her when she is in their care.
10.X shall be at liberty to contact either parent at any time via the Messenger account.
11.While X is residing in Australia, changeovers for the purposes of these orders shall take place at such venue as can be agreed between the parties, but failing agreement:
(a)during school terms, by the applicant collecting X from school at the commencement of time and delivering her to school at the conclusion of time; and
(b)in the event that X is not attending school, at Town C Train Station.
12.Upon the implementation of order 3, changeovers shall take place at such venue as can be agreed between the parties, but failing agreement at the international terminal of Country B airport at which X or the applicant is arriving or departing as the case may be.
13.X may travel as an unaccompanied minor from the point in time that the policy of the airline with which she is travelling permits same.
14.The respondent shall provide by way of email to the applicant each month the following:
(a)progress reports in relation to X’s schooling;
(b)details of any medical issues for X;
(c)copies of school photographs and awards; and
(d)photographs of X attending social events and extra-curricular activities and any awards X receives.
15.If X requires any emergency medical treatment, the party in whose care X then is shall advise the other parent as soon as reasonably practicable by text message or email:
(a)details of the medical emergency; and
(b)details of the name and contact number for the hospital, medical practitioners or other health care professional/s upon whom X is attending.
16.These orders are sufficient authority for either party to contact X’s medical practitioners or hospital that X has been admitted to and discuss X’s prognosis and other details relating to X’s admission.
17.Each party shall keep the other party apprised of their current residential address, telephone contact details and email addresses and advise the other party of any change to any of those details within 48 hours of such change.
18.The applicant shall provide forthwith upon the making of these orders X’s passport to the respondent.
19.The parties shall do all acts necessary for X’s name to be removed from the Airport Watch List.
20.Otherwise all outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for parenting orders in respect of X, presently 5 years of age. The applicant is her father, Mr Wood. The respondent is her mother, Ms Lanai.
Presently X lives with the applicant in Town C. She spends time with the respondent from 9:30am Saturday until 4:30pm Sunday in one week and from 4:30pm Saturday until 4:30pm Sunday in the alternate week. These arrangements have been prescribed by an interim parenting order made on 2 March, 2023.
The applicant, by his amended application filed 27 February, 2023 seeks that he have sole parental responsibility for decisions about major long-term issues for X. He seeks that she live with him and spend time with the respondent for half of all school holidays if the respondent resides in Country B and if she resides in Australia, on a graduating basis to each alternate weekend from after school Friday until before school Monday. He pressed for orders to be made in accordance with his amended application at the trial of this application.
In her response, the respondent initially sought orders that were difficult to understand. They were clarified by her amended case outline filed on 17 June, 2023. She seeks sole parental responsibility for decisions about the major long-term issues for X and that X live with her in Country B. She proposed that until she returns to Country B, X should spend time with the applicant from midday Saturday until 4:30pm Sunday each alternate weekend. After she returns to Country B, she proposes that X spend time with the applicant for half of the July and Christmas school holiday periods, with one of those to be in Country B and one to be in Australia. She asks for an order that the applicant meet the majority of the costs associated with travel to make these orders work. She seeks other orders dealing with particular issues I will address later in these reasons.
In her response, the respondent also sought orders for property adjustment, spousal maintenance and child support. The property adjustment application was settled by consent orders made on 4 April, 2023 (and amended on 1 June, 2023). However, those orders did not deal with the spouse maintenance application or the child support application. In her case outline filed for the trial, the respondent persisted with her application for a periodic spousal maintenance order and an order for child support.
I have the benefit of an independent children’s lawyer in these proceedings. The independent children’s lawyer set out three alternative positions in her case outline of 1 June, 2023. Her primary position was that X should return to Country B to live with the respondent, that the respondent have sole parental responsibility for decisions about the major long-term issues for X and that X spend time with the applicant for all of the Autumn school holidays, half of the Summer school holidays and any overnight time he spends in Country B, provided that he gives 14 days’ notice of his intention to visit there. These were the orders ultimately pressed by the independent children’s lawyer at the final hearing.
The first alternative proposed by independent children’s lawyer, if the court was to decide that it is in X’s best interests to remain in Australia and the respondent remains in Australia, was that the parties have equal shared parental responsibility and X live with both parties on a week-about basis.
The second alternative proposed by the independent children’s lawyer, if the court decides that it is in X’s best interests to remain in Australia and the respondent returns to Country B, was for the applicant to have sole parental responsibility, for X to live with him and to spend time with the respondent in the Winter and Spring school holidays, the first half of the Summer school holidays, plus any overnight time that she is in Australia provided she gives 14 days’ notice.
The difficulties with these alternatives is that it is not the court’s task to decide whether X should live in Australia or Country B, but rather whether her best interests demand that she should live with the applicant as he proposes or with the respondent as she proposes.
In any event, for the reasons set out below, I have determined it is in X’s best interests to live with the respondent and that the respondent be at liberty to relocate with X to Country B.
BACKGROUND
The parties commenced a relationship in 2005 while both were working overseas. The applicant was born in Australia and has lived here his whole life. The respondent was born in Country B and moved to Australia when she commenced a relationship with the applicant. She received Australian citizenship in 2016.
The parties moved in together in Region D in 2006. They married in 2010. X is the only child of the relationship. She was born in 2018 and was 5 years old at the time of the hearing before me.
During the parties’ relationship, the applicant worked full-time as a tradesperson and the respondent operated a business. Both cared for X after her birth, but I am satisfied that the lion’s share of that care fell to the respondent. The applicant was working full-time (although had about two months off work following her birth) and so that no doubt, compromised his ability to directly care for her.
In March, 2020 the parties separated under one roof. The applicant deposed that after separation the respondent made it difficult for X to see him, though just how this occurred while separated under one roof was not clear. He gives no evidence about it. The applicant left the home in October, 2020. Despite the evidence in his trial affidavit to the contrary that asserted that he spent no time with X following separation until perhaps sometime in early 2021, X spent time with him at least on 11 October, 2020, 19 October, 2020 and 2 November, 2020. Although the applicant corrected his affidavit evidence when he commenced his case, no explanation was given by him about why the error appeared in his evidence. This was no typographical error in his written testimony.
In late 2020, the respondent unilaterally relocated with X to Country B. X was around two years of age at the time. There was some dispute about when the applicant became aware the respondent was moving to Country B with X. He deposes that he only became aware of the move in early 2021 when he saw some photographs on social media of X with members of her extended maternal family who lived in Country B. However, to the family report writer Ms E, who interviewed the applicant on 23 September, 2022 and authored a s 62G report dated 23 October, 2022, he seemed to suggest that he had been aware of the respondent’s intention to return to Country B before she left. The applicant told Ms E that the respondent had told him she wanted to move back to Country B, that he told her he did not agree and that she started “rattling off flight dates and times”. The applicant also told Ms E that he wanted to file an application to put an urgent hold on X’s passport, but it was delayed.
The applicant commenced these proceedings on 17 December, 2020. In late 2021, proceedings were commenced in Country B by the Public Prosecutor of the Country B court, acting in the name of the Central Authority pursuant to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October, 1980. The following month, the Country B court ordered the respondent to return X’s residence to Australia. The respondent appealed the order of the Country B court in early 2022.
Despite an order for X’s return to Country B in late 2021 and despite the respondent’s failure to return her to Australia in accordance with that order, it was not until March, 2022 that the applicant went to Country B. He stayed there between March, 2022 and April, 2022. Immediately upon his arrival, the respondent agreed with him for X to spend time with him.
Between then and April, 2022 X spent time with both the applicant and the respondent. On the applicant’s evidence, during this time the respondent demonstrated significant ambivalence towards X by presenting her to him on an occasion with most of her belongings and telling him to take her. I am hesitant to accept the applicant’s evidence about this at face value, however, because his evidence is demonstrably wrong in several respects. For example, he swears that in April, 2022 his Country B solicitor threatened the respondent “with police detainment for the non-representation of a child as I had not seen her since [5 days prior] and she was in breach of Orders.” It was accepted by counsel for the applicant (eventually) that there were no such orders and the respondent was not in breach of any orders. The evidence about the arrangements for X during this time is confused and confusing and it is not necessary to make findings about what exactly occurred.
In April, 2022 while the applicant was spending time with X in Country B, he removed her from Country B with urgent travel documents obtained from the Australian Embassy. X was four years of age at this time and until that point had lived all of her life in the care of her mother. This was done prior to the delivery of judgment in the respondent’s appeal and without the respondent’s knowledge, though pursuant to the order of late 2021. It was not clear on the evidence whether the order of late 2021 was stayed pending appeal, but in any event an appeal had been heard and was reserved for judgment when the applicant chose to remove X from Country B and the respondent’s care.
The respondent’s appeal was dismissed in mid-2022.
Since April, 2022, X has been living with the applicant in Queensland. She lives with him and his present partner, Ms F. It is the respondent’s case however, that the applicant and Ms F were in a relationship before she and the applicant separated, at least physically and the email and text correspondence between the parties shows that the respondent was perhaps hopeful of reconciling her relationship with the applicant. Those hopes evaporated when physical separation occurred apparently. Whatever is the case, that the applicant took up with Ms F when he did seems to have deeply affected the respondent. The emails and other communications annexed to his trial affidavit demonstrate that the respondent was and probably remains extremely bitter about what she considers to be the applicant’s infidelity during their relationship. The applicant does not deny, on oath, that infidelity, nor indeed swear to when his relationship with Ms F commenced.
The applicant and Ms F have one child together, G, who is presently one year of age.
The applicant gave evidence that upon his return to Australia with X, she had telephone contact with the respondent three times per week. Orders were made by consent on 3 June, 2022 that X have some Facetime communication with the respondent and that she spend time with the respondent from 9:00am to 4:00pm each day that the respondent was in Australia, provided she gave 14 days’ notice of her attendance in Australia. Facetime communication occurred between April and July, 2022 but the applicant swears that from 9 July to 4 August, 2022 the respondent did not make any attempts to communicate by Facetime. After X spent time with her in September, 2022 the respondent made no further attempts to communicate or spend time with her until December, 2022. When commencing his evidence, the applicant was invited by his counsel to amend this evidence, but he declined to do so. I am not sure what to make of that.
The applicant swears that he has taken X to see a psychologist to assist her with what he perceived to be issues that she was exhibiting as a result of being taken to Country B and then returned to Australia. She has been regularly attending upon a psychologist ever since. However, there is no suggestion in the applicant’s evidence that he talked to the respondent about this decision to have X consult a psychologist or counsellor and whether she agreed with it.
Although the respondent has returned to Australia, it is not clear when that occurred. Orders were made by consent on 2 March, 2023 for X to spend time with the respondent from 9:30am Saturday to 4:30pm Sunday in one week and from 4:30pm Saturday to 4:30pm Sunday in the alternate week. The applicant did not give evidence about whether this time was happening in accordance with the orders. The respondent’s evidence was difficult to interpret, but seemed to say that time was happening in accordance with the orders, though she deposed that X requested spending more time with her which was refused by the applicant.
THE ISSUES
This was not a matter where a variety of significant factual claims were in serious dispute. However, the facts and the arguments raised by the parties as revealed in their affidavits, outlines of case and submissions raised several issues as follows:
(1)whether there is a need to protect X from being subjected to neglect or family violence in the applicant’s care;
(2)the benefit to X of a meaningful relationship with both of her parents;
(3)any views expressed by X and whether they should be given any weight;
(4)whether each parent has the capacity to facilitate a meaningful relationship with the other parent;
(5)the nature of X’s relationship with each of her parents and her half-brother in her father’s household;.
(6)the practical difficulty of X spending time with each of her parents under the competing proposals; and
(7)the importance of X’s cultural background and where that will be best facilitated.
CONSIDERATION
No party argued that X would not benefit from a meaningful relationship with both of her parents. It is plain that they each have much to offer her. Each have different cultural origins and exposure to all that each of her parents has to offer X will be to her benefit.
It was not part of the applicant’s case that there was a need to protect X from harm by reason of being exposed to abuse, neglect or family violence in the respondent’s care.
Conversely, the respondent argued that there was a need to protect X from harm by reason of being exposed to neglect and family violence in the applicant’s care. She did not cross-examine the applicant about these claims in any detail. Certainly, by the time of submissions, this argument was functionally abandoned. The independent children’s lawyer also did not take up these allegations. I will deal with them briefly.
As to family violence, the respondent asserted that Ms F had been violent towards X. However, her evidence was devoid of any particularisation so as to enable a finding to be made about it. She claimed that X was scared of the applicant’s partner. In an email to X’s school, the respondent claimed that X had told her the applicant’s partner “squeezed her arm really hard and broke her arm”. There was no evidence to suggest this event occurred and certainly no evidence that X had a broken arm. What the evidence does demonstrate is a willingness on the part of the respondent to accept uncritically and act upon whatever X says to her. What X said to her was clearly an exaggeration – her arm was not broken. But there is no evidence that the respondent analysed what X said and responded in any type of measured and appropriate way.
As to the question of neglect, the respondent alleged that the applicant was neglecting X. In support of this she swore that X had a persistent cough, is regularly sick, has poor hygiene, lacks appropriate sleep, has been inappropriately dressed for the weather and that she once found a tick behind X’s ear. The applicant accepted that X had a persistent cough but that he had sought appropriate attention for it. I accept his evidence about that. He also accepted that she was found with a tick behind her ear and that was dealt with. I do not consider the presence of a tick behind X’s ear on one occasion evidence of neglect in the applicant’s care.
The evidence demonstrated that in May, 2023 X presented with a rash in her genital area, but there is no evidence that this is anything more than a usual ailment that children sometimes experience. The evidence shows that the applicant sought appropriate advice and treatment for the rash.
I find that there is no need to protect X from harm by being subjected to, or exposed to, abuse, neglect or family violence in the applicant’s care.
The respondent’s evidence was that X repeatedly tells her that she wants to live with her forever and not to return to live with the applicant. I accept that X has probably said these things to the respondent. However, I give this evidence little weight. X is of a very young age and her age militates against giving her views weight in these proceedings. X was not formally interviewed by Ms E.
Ms E is a psychologist and was commissioned by the independent children’s lawyer to prepare a “family report” in this application. Interviews for the report were conducted in September, 2022. Although neither party nor the independent children’s lawyer suggested that much of anything either party said to Ms E was particularly relevant, it is worth noting that much of what the applicant said about the parties’ relationship, its progress, their marriage, the reasons for its failure and the violence between them was remarkably consistent.
Ms E conducted observations of X and the respondent together. It was the first time they had been in each other’s physical presence since X had returned to Australia with the applicant. Ms E observed X to exhibit signs of a close relationship or attachment with the respondent. She displayed signs of a secure attachment to the respondent.
She also observed that the respondent was unsure about rebuilding a relationship with X and then returning to Country B. She told Ms E (after the observation session had ended) that she was worried about confusing X and rebuilding a relationship with her and then this not continuing, making X upset. The respondent told Ms E that she was seriously thinking of walking away and if X has to remain in Australia with the applicant, she felt that it would be better for X if she ceased contact. Ms E thought that the respondent’s approach was “understandable given the emotional rollercoaster that [Ms Lanai] has experienced through leaving Australia, returning to [Country B], the Hague proceedings and that decision and now limited contact and the current proceedings”.
Ms E further observed:
4.4The observations I made of [Ms Lanai] and [X] demonstrated a four year old girl who clearly misses her mother significantly. [X] spoke of not seeing her maternal grandparents anymore and missing everyone in [Country B]. I observed [X] to initially appear baffled when she first saw [Ms Lanai], having not seen her since April 2022 and to appear confused as she transitioned from [Ms Lanai] to [Mr Wood] and then back to [Ms Lanai] to spend time together.
Ms E thought that prior to X’s removal from Country B the respondent was her primary attachment figure. The facts upon which Ms E based this opinion were not challenged and I accept her evidence about that.
I accept that the applicant and X also have a close relationship, notwithstanding that Ms E did not record any observations of the interaction between the applicant and X. Nor did she record any observations of X with the applicant’s partner. Her failure to do that was not explained.
Ms E was cross-examined about the importance of X’s relationship with her half-brother G. I accept that the siblings have a good relationship, though G is only one year of age. I accept that an order for X to return to Country B would damage that relationship.
I also accept that the respondent is not supportive of that relationship. Her evidence in cross‑examination was that the relationship “could be” important. It is unfortunate that the respondent does not acknowledge what is a valuable relationship for X and one that she will not be able to source elsewhere.
However, the nature and importance of that relationship cannot be compared to X’s relationship with the respondent. Ms E gave evidence that children whose primary attachment is significantly disrupted can have ongoing issues in their own ability to form relationships, both with adults and their peers, can develop mental health issues, lose cognitive ability and lack trust in other people. Ms E compared the separation from a primary attachment to a loss felt from death. None of this evidence was challenged and I accept it.
While X’s relationship with the applicant is also very significant, Ms E drew a distinction between it and the relationship X has with the respondent as a primary attachment figure. While X would have missed her father, the respondent was her secure attachment in Ms E’s view and the consequences of a disruption to that relationship would be more significant than a disruption of her relationship with her father. Nonetheless, Ms E considered that she currently had a close relationship with both of her parents.
Having regard to Ms E’s evidence, the respondent’s proposal will carry more benefit to X than that of the applicant. It has the advantage of restoring X to the care of the person who has been her primary attachment figure. That might go some way towards avoiding the detriments identified by Ms E of disrupting further that relationship. It carries the disadvantage, however, of a disruption to X’s relationship with the applicant. On the evidence however, that relationship is not as psychologically important to her as her relationship with the respondent. The applicant’s proposal carries the benefit of maintaining in its present form X’s relationship with him, but at the cost of her relationship with her primary attachment figure.
The applicant is critical of the respondent’s failure to spend time with X after she returned to Australia with him. He points to her ambivalence about her relationship with X and then sets out at length the telephone and other communications between the respondent and X that he says demonstrates an inappropriate attitude towards X’s relationship with the respondent.
On their face, the applicant’s submissions about these matters have some superficial attraction. The conversations recorded by the applicant between X and the respondent are, at times, concerning in their content. But they need to be seen in context. In that regard, it needs to be recognised that the respondent is from Country B and there maybe cultural influences at work about which there has been no exploration in the evidence before me.
In any event, Ms E provides the context for the respondent’s attitude. She records:
8.5My assessment of [Ms Lanai] during the observation period is that she appeared very apprehensive to play and engage with [X]. It is my opinion that [Ms Lanai] likely did this as she does not want to get close to [X] again and then have the court make a decision that [X] must remain in Australia and not be able to return to [Country B] with her. [Ms Lanai’s] behaviours and the observations I made appeared to reflect [Ms Lanai] trying to protect herself from further disappointment and emotional hurt at not being able to be [X's] primary parent. [Ms Lanai] did not appear to be able to consider any other option than the court making an order that it was best for [X] to return to [Country B]. I am extremely concerned about [Ms Lanai’s] emotional wellbeing and on the relationship between [Ms Lanai] and [X]. If the court is concerned about mental health concerns the court may wish to order a psychiatric assessment to ensure there is no risk to the child from any parental behaviours. I understand that [Ms Lanai] may feel as though there are limited options for her now following the recent Hague proceedings and how the outcome of this court may impact on her time with [X] in the future.
There is thus, an explanation for what at first blush might appear to be a reluctance or disinterest on the respondent’s part to engage with X.
However, leaving that to one side, the respondent has not been able to participate in decision‑making for X because the applicant has not given her that opportunity. He has caused X to be immunised (against an agreement the parties had when together not to do so) and did not involve the applicant in decisions about kindergarten or schooling for her.
That is not to say that if X lived with the respondent (in Australia or Country B) she would afford the applicant those opportunities. Such is the strength of feeling on the respondent’s part towards the applicant that I consider that she would probably not engage with him about decision making for X.
The more difficult and troubling question is whether either parent has the capacity or willingness to facilitate a relationship between X and the other parent.
The respondent has certainly demonstrated remarkable animosity towards the applicant. Following separation, she sent him several explosive emails suggesting she would not facilitate time between him and X. She suggested to him that he should “consider the option of not being part of [X’s] life anymore”.
She also relocated with X to Country B. I am not persuaded that her return to Country B was not expected by the applicant, although I accept that she lied to him about her intention to return to Australia in their communication in early 2021. Nonetheless, I am satisfied that the applicant knew that the respondent was likely to return to Country B with X permanently at some point. His evidence is that she had told him on several occasions that she wanted to return to Country B, both before and after X’s birth. He acknowledged to Ms E that the respondent had no family or other ties to Australia and she had mentioned her desire to return to Country B more than once. Nor did I find his evidence that he did not know how to locate the respondent in Country B persuasive.
Against this evidence that tends to suggest that the respondent will not foster, encourage or facilitate a relationship between X and the applicant, is the evidence that almost immediately upon the applicant’s arrival in Country B, the respondent made arrangements for X to spend significant time with him. In that respect her actions speak louder than her words and she has demonstrated that she will act appropriately when necessary.
The applicant, for his part, was not a great deal better. He unilaterally removed X from Country B without the respondent’s knowledge and without an opportunity for X to say goodbye to the respondent. While her return to Australia was ordered by a Country B court, that order was subject to appeal at the time. His explanation for the actions he took at that time were self-serving and unconvincing. His actions are just as worthy of criticism as the respondent’s in removing X to Country B in the first place. Neither parent had a focus upon X’s best interests, only their own.
Following his return to Australia with X, the applicant did not make a significant effort to involve the respondent in X’s life. One would have thought he would realise the importance of doing so, having just abruptly removed her from her primary carer and uprooted her life by moving countries. This importance was lost on the applicant and the next time X saw the respondent was at family report interviews in September, 2022. She spent more than five months without seeing the respondent, the person whom she was used to having care for her.
No doubt there are concerns for both parents facilitating a relationship between X and the other parent. From the respondent’s perspective, there seems to be a great deal of residual anger towards the applicant following the breakdown of their relationship. From the applicant’s perspective, he has no doubt been frustrated by the respondent’s communication with him and relocation. Neither of those explanations are excuses for the appalling behaviour of these parents to not support a relationship which is unequivocally in the best interests of their child.
A small comfort, however, is that orders were made by consent on 2 March, 2023 for X to spend time with the respondent. On the evidence, it seemed that time is occurring largely without issue and had been for over three months prior to the hearing. Certainly no party contended that time had not been occurring in accordance with the orders, nor brought an application for contravention.
I consider the risk of X’s relationship with her non-residential parent being undermined to be greater if she was in the respondent’s care than the applicant’s care. This risk is not insignificant, but it is not unacceptable. The risk may be ameliorated, in part by the conduct of the parties and in part by the making of final orders which offer a secure and stable time arrangement for X to see both of her parents.
The applicant is not a citizen of Country B. He does not have a right to reside there. There was no suggestion that he would reside anywhere other than Australia.
The respondent is a dual citizen of both Australia and Country B. She is able to live and work in Australia and her evidence was that since returning to Australia in October, 2022 she was able to obtain employment earning approximately $900 per week. Her current salary is approximately $2,000 per fortnight, as well as receiving Centrelink benefits of approximately $1,074 per fortnight (although later in cross-examination her evidence about this was inconsistent). Despite this, her expressed desire was to return to Country B. When questioned in cross-examination about whether she would remain in Australia, she became distressed. She does not have support networks here. In Country B, she has access to her culture and support from her family.
The respondent, though currently resident in Australia, expresses an immediate desire to return to Country B. I am satisfied and I find that she will return to Country B irrespective of where X lives. I am satisfied, having regard to her comments to Ms E and her evidence before me that the respondent is likely to return to live in Country B even if that means leaving X in Australia with the respondent. Further, I consider it likely that the respondent will not then pursue a relationship with X. That will not be in X’s best interests.
The fact that the applicant and respondent will live in different countries creates immense practical difficulty for X seeing both her parents regularly without inconvenience and expense, irrespective of the country in which she lives.
The impact of the practical difficulty in combination with schooling requirements is that X will only spend school holiday time with her non-resident parent in addition to any time that the non-resident parent chooses to spend in the other country during X’s school term.
This was an area that was not thoroughly explored in the evidence. I was given evidence by Ms E about the importance in Country B of the maternal family in raising children and in general of exposure to Country B culture. These statements were based on Ms E’s “understanding”. It was not clear what expertise Ms E had to speak to the content of Country B cultural traditions or their relative importance or the basis of the understanding that she expressed. I did not find this evidence helpful.
The evidence of the respondent also did not provide, with any great clarity, information about Country B culture and how it might be relevant to the determinations I need to make in this application. Had the respondent had the benefit of legal representation she may have addressed this issue by way of evidence. It was not explored by the independent children’s lawyer.
Nonetheless, the applicant agreed that X deserved to learn and know about her Country B culture. He was of the view that the respondent’s fluency in both Country B language and Country H language would help X engage in her culture.
The applicant’s evidence was that he had been taking X to Country B cultural activity classes weekly, which was agreed to be an important part of Country B culture. There was some criticism of the applicant for failing to take X to classes on a couple of occasions, but it transpired in further cross-examination that there were in fact no classes on those days.
I accept that the applicant has done what he can to assist X to engage in her Country B culture. However, it is apparent that she will have a better opportunity to learn and engage in that culture from the respondent, who speaks Country H language and Country B language (amongst other languages) and who herself engages in those cultural practices. She will also clearly have a greater capacity to learn her culture if she returns to Country B. This is a matter I take into account.
Finally, whilst there was a temporary protection order made in 2011 in favour of the applicant against the respondent, family violence did not feature as significant in either party’s case. Ms E records in her report what each party told her about violence between them but neither swore to any particulars of it. When cross-examined about the episode that led to the temporary protection order, the applicant candidly said that he was not afraid of nor did he feel threatened by the respondent and the order was obtained by police at their behest.
CONCLUSIONS
When making parenting orders, there is a presumption that an order for equal shared parental responsibility is in the best interests of X – s 61DA(1) of the Act. The presumption is displaced if there are reasonable grounds to believe that a parent has engaged in family violence – s 61DA(2)(b).
Here, the presumption is displaced. The respondent admitted to smashing plates in front of the applicant when she was angry. Although the applicant did not feel endangered by this incident, it still constitutes family violence – s 4AB(2)(e). In addition, the applicant admits to threatening himself with a knife during arguments with the respondent. This too is family violence for the purposes of the Act.
These parties have demonstrated great difficulty in communicating. The applicant has annexed several hostile messages sent to him from the respondent. The applicant, too, admits to vaccinating X without notice although he knew expressly that the respondent would be opposed to it. He has also made other unilateral decisions for X concerning matters of importance, for instance enrolling her in a school without consultation with or notification to the respondent.
Given that whatever the outcome for X’s living arrangements in this case her parents will live in different countries and given the nature of the parties’ communications and conduct since their separation, I do not consider that it is in X’s best interests for there to be an order for equal shared parental responsibility. I will return to the question of parental responsibility after I express my conclusion about X’s living arrangements.
As to the parent with whom X should live, I consider this is a finely balanced case. There will be advantages and disadvantages for X in either household, particularly in terms of her access to the parent with whom she does not reside. If she returns to Country B, she will have a stronger connection with her primary attachment figure. She will have a greater opportunity to avoid the long-term effects of a disruption to her primary attachment identified by Ms E. She will have a greater chance to enjoy her Country B culture, but she is at risk of the respondent undermining her relationship with the applicant. Conversely, in Australia she has a greater opportunity to enjoy her relationship with the applicant who will not, I am satisfied, go out of his way to promote her relationship with the respondent with all that potentially entails for her. In either scenario, she will be deprived of the opportunity for regular and frequent time with members of her extended family – her half-brother and others in Australia and her extended maternal family in Country B.
I have concluded that X’s welfare demands that she should live with the respondent in Country B. In coming to that conclusion, I have afforded significant weight to the harms that may accrue to X from the loss of her primary attachment figure. I consider that the risk of these harms eventuating outweighs the risk that her relationship with the applicant may not be promoted.
There is no evidence before me about what if any recognition will be afforded to orders made by this court in Country B. No submissions were made about this aspect of the matter before, rather, it seemed to be assumed that if X lived in Country B there should be orders for time between her and the applicant. The question of enforceability of the orders was not addressed.
Be that as it may and out of deference to the way in which the parties conducted the case, I have fashioned orders for X to spend time with the applicant largely in accordance with those suggested by the independent children’s lawyer. The orders provide for X to spend school holiday time with the applicant. This school holiday time should total to half of her school holidays. I was not furnished with evidence about Country B school holiday dates but the orders reflect, I think, the evidence such as it is about school holidays. I have also made an order for X to spend time with the applicant should he travel to Country B but I have limited that to five consecutive nights at a time so as to avoid a situation where he travels there on a long-term basis and insists upon X living with him on an extended basis.
I do not intend to make an order for parental responsibility. I accept that an order for parental responsibility whilst X is present in Australia might have some work to do, but once she has gone to Country B, it is difficult to see the utility for such an order given the lack of evidence about the recognition that might be given to it in that country. In the absence of an order, the position established by s 61C of the Act applies, at least in Australia, such that both of X’s parents can make decisions for her across the gamut of issues covered by the phrase parental responsibility. Moreover, they will be able to do that severally. That is important, I think, because when X return to Australia to spend time with the applicant it is important that someone here have the ability to make decisions for her at short notice, especially if the respondent remains in Country B. Faced with an emergent situation, it would not be in X’s interests for the applicant to be paralysed from action because he has no parental responsibility for her. Nor do I think that this will create any unintended difficulty for X or the respondent because there will be in place an order for X to live with the respondent that will be enforceable in Australia.
Finally, I consider it appropriate to make an order for the applicant to bear the costs of X’s travel to and from Australia for the purposes of spending time with him. The applicant is in a stronger financial position than the respondent and is likely to be for some time. The respondent’s employment status upon her return to Country B is unknown, although she thought it likely she would obtain employment within about 6 months when she finished her current study.
I have made orders based loosely upon the orders sought by the respondent. I prefer the orders suggested by her for the school holiday time between X and the applicant with the modifications that are apparent from the orders. Given the travel that may well be involved for X, two episodes of holiday time with the applicant during which she might travel to Australia is not likely to be too disruptive. The applicant will have the option of visiting Country B during the other holiday periods and spending overnight time with her in accordance with the orders.
I have also included the orders promoted by the respondent in relation to X’s birthday, Father’s Day and the applicant’s birthday, but not Christmas. As to Christmas, I consider it likely to be too disruptive for X if she is spending time with one of her parents during the half of the school holidays in which Christmas Day falls to then have to spend Christmas Eve and part of Christmas Day with the other parent. That has a very real potential to be unnecessarily restrictive, burdensome and inconvenient. X will spend the Christmas period in one year with one parent and with the other parent in the alternate year. That way she will get to experience, amongst other things, the whole of the Christmas period in one culture or the other and get to enjoy those in her respective households, including G’s company which, no doubt, will be important.
I have made an order for X to travel as an unaccompanied minor from the point when airline policy permits it. There is no reason for that not to occur and if the respondent chooses to accompany X to and from Australia at her own cost, that will be a matter for her.
The respondent seeks an order that she be permitted to change X’s surname. I decline to make that order. X should be known by her present surname. Given the distance that will exist between X and the applicant and given the respondent’s attitude towards X’s relationship with the applicant that I have referred to earlier in these reasons, it will be important for X to remain connected to the applicant in a tangible way. Retaining her present surname will go some way towards that goal.
In her case outline document the respondent seeks orders for spousal maintenance and child support. No submissions were advanced in support of these orders and very little evidence about the parties’ financial circumstances was put before me and even then, it was not led for the purposes of addressing child support or spousal maintenance issues. These claims were effectively abandoned by the respondent. I will dismiss those claims.
Finally, the respondent sought a protection order preventing her and X from abuse and an order restricting the applicant from approaching the respondent’s residence closer than 1 kilometre. No basis for either of these orders is made out on the evidence. I decline to make them.
I make the orders set out at the commencement of these reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 31 August 2023
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