Woyinka and Saha

FAMILY COURT OF AUSTRALIA

WOYINKA & SAHA

[2016] FamCA 483

FAMILY LAW – CHILDREN – Final parenting orders – Relocation – where the mother proposes to relocate with a five year old child to Brazil – where the mother suffers from anxiety and is medicated for depression – where the mother’s mental health has been impacted by her social isolation and financial difficulties in Australia – where the mother does not speak English as a first language – where the child has ongoing medical problems which have previously been diagnosed and treated in Brazil – where relocation is supported by the family consultant and the Independent Children’s Lawyer – final orders made permitting the mother to relocate with the child to Brazil and spend time with the father in Brazil and Melbourne.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
AMS v AIF (1999) 199 CLR 160
Goode and Goode (2006) FLC 93-286
Taylor v Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

Malcolm & Monroe and Anor (2011) FLC 93-460

APPLICANT:

Mr Woyinka

RESPONDENT:

Ms Saha

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

2034

2014

DATE DELIVERED:

14 January 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

21 – 25 & 28 – 29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Goldthorp

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

IT IS ORDERED THAT

The Mother have sole parental responsibility for the child B born … 2010 (“the child”).
The interim parenting orders made by consent on 19 March 2014 in the Federal Circuit Court be discharged including but not limited to paragraph 3 of those Orders with respect to the child’s passports.
Paragraphs 3, 4, 5 and 7 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged.
The solicitors for the Mother are to return the child’s passports to the Mother.
The Mother keep the Father advised in writing, by email, of decisions she makes for the child regarding long term issues such as enrolment at school, religious instruction and medical treatment.
The child live with the Mother.
The Mother be permitted to relocate the child’s residence to Brazil.
Paragraphs 1, 2 and 6 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged on the child’s departure for Brazil SAVE that those paragraphs of the orders remain in full force and effect until the child’s departure for Brazil.
Upon the child’s relocation to Brazil the child spend time and communicate with the Father as follows:
(a)By Skype at times and days to be agreed and failing agreement:
(i)each Monday, Wednesday and Saturday between 8.30 am and 9.00 am City C time or at a time convenient to both parties and the child;
(ii)on special occasions such as the child’s birthday, the Father’s birthday and Christmas Day at times convenient to the parties and the child;
(b)Provided that the father fund a return airfare for the child, each alternate year in Melbourne for a period of no less than 30 days as follows:
(i)for no less than four hours each day on days to be agreed and failing agreement each alternate day;
(ii)as otherwise agreed in writing between the parties;
(c)In Brazil, upon the father giving the Mother no less than 30 days notice of his intention to travel to Brazil, as follows:
If the Father visits the child in Brazil during the child’s school holidays:
(i)for no less than four hours each alternate day for up to fifteen occasions while the Father is in Brazil;
(ii)as otherwise agreed in writing between the parties;
If the Father visits the child in Brazil during the child’s school term:
(iii)on each weekend day for a period of four hours and Tuesday and Thursday for two hours after school;
(d)As otherwise agreed between the parties in writing.
The Mother be permitted to be in attendance for the first week of time spent between the child and the Father both in Brazil and in Australia on each visit unless the Mother deems her attendance not to be necessary.
The Father be permitted to send to the child cards, gifts and letters at any time, and the Mother to ensure the child receives the same, and encourage the child to respond to the Father and acknowledge receipt of the cards, gifts and letters.
Forthwith upon her arrival in Brazil, the Mother provide the name and contact details of all treating specialists of the child to the Father and provide a full authority to the medical specialist to provide to the Father any information he may request about the child from time to time.
The Mother provide an authority to the child’s medical practitioners in Australia and Brazil for them to communicate directly with the Father and to authorize him to attend medical appointments if practicable.
The Mother provide an authority to the child’s school in Brazil to provide the Father, at the Father’s expense if any, with copies of school reports, school photos and notices.
The Mother shall keep the Father informed as to her residential address in Brazil and email address and advise the Father of any change to the same within 24 hours of such change.
All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.
The Independent Children’s Lawyer be discharged on 14 March 2016.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of 30 days from the date of these orders, or otherwise upon the conclusion of any appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC2034/2014

Mr Woyinka

Applicant

And

Ms Saha

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This proceeding concerns competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The child of the marriage is B aged five. He has a number of medical issues which cause him difficulty in swallowing food. He has been diagnosed with oesophagitis, gastritis and duodenitis. He cannot eat solid food and is due to begin school in 2016.
An Independent Children’s Lawyer was appointed to independently represent the interests of the child.
The father was born in Country D but is an Australian citizen. The mother is a Brazilian citizen having been born in Brazil. The father’s mother and sister live in Brazil and the parties met whilst the father was on holiday there.
The parties were married in Australia in 2007 and separated on

14 October 2012 when the child was aged 31 months. The child has always been in the care of the mother and after separation did not see the father for a period of approximately two years. The mother spent about one year with the child in Brazil from December 2012 until December 2013.
The mother returned voluntarily to Melbourne in December 2013. The father’s evidence was that this occurred after he sought assistance through “the Attorney General’s Office”.
No evidence was produced to indicate that any proceedings had been instituted under the 1980 Hague Convention on the Civil Aspects of Child Abduction (“Hague Convention”).
A central issue in the proceedings concerns the mother’s application to relocate with the child to Brazil. The mother seeks to relocate for the following reasons:
·She is isolated without family support because her parents live in Brazil;
·She cannot work in Australia because of her limited English and need for childcare;
·She has employment opportunities in Brazil and family assistance with childcare;
·She is financially disadvantaged in Australia and has difficulties funding the child’s medical expenses which would be met by medical insurance paid by her family in Brazil;
·She feels unsafe living in the environment of the Housing Commission;
·She proposes that the child commence school in Brazil where the school times for the first year would more easily accommodate the child’s specialist medical appointments;
·The child’s medical condition was first diagnosed by specialists in Brazil and she can communicate more easily with the specialists in her first language;
·She has accommodation in Brazil with her family; and
·She is able to more easily access counselling services in Brazil where she will not suffer the language barrier which has been a difficulty in Australia.
The mother took the child to Brazil in December 2012 to stay with the maternal grandparents after sending an email to the father on 6 November 2012. The mother and child were evicted from the former matrimonial home three weeks earlier. The mother tendered a certified translated copy of the email sent by her to the father (Exhibit A). The father concedes that he received the email. The email reads as follows:
…
I’m in tears as I write this e-mail because of the situation I’m in at the moment.
I have to leave this house on Monday and [the child] and I don’t have where to go. We might have to go a shelter, which is the only option left.
You know that [the child] is a child that doesn’t eat; he needs special care and me by his side all the time.
You are his father and this will never change but I can’t leave him with you because it is difficult to look after him with all the small details of the special care that he needs.
What happened to us is not fair on him because we have nowhere to go now and if you love him, you will think about what’s best for him at the moment.
Everything could have been different if it was dealt in an amicable manner but you chose this path.
I have to go to Brazil now because I can’t stay here under these conditions.
The government assists me with $2000 per month and the cheapest house I could find costs $1200. In addition, the neighbours are terrible and I don’t feel safe with [the child].
I need you to sign a paper so [the child] can go with me and I can come back when I’m more stable. It will be better for [the child] and you will be able to contact him whenever you wish. Please think on what’s better for him and forget what happened between us.
It’s not fair on him not having a place to live, particularly because he needs special care.
It’s your responsibility as a father to think about the situation and do what’s best for him.
I don’t want to take legal action that’s why I’m asking you in a friendly manner.
…
The father opposes the mother’s relocation with the child. His original proposal in his Case Outline filed 18 September 2015 was that the child live with him. This proposal changed during the trial. The father ultimately proposes that the child live with each parent in a week about arrangement. Until pressed again at the conclusion of the trial, the father refused to proffer any alternative proposals in the event that the child was permitted to relocate with the mother to Brazil.
It appeared to be the father’s case that the mother has failed to facilitate his relationship with the child. The father relies upon allegations that the mother has engaged in family violence towards him by damaging property during the marriage and assaulting him in the street during an incident which precipitated the parties’ final separation in 2012. It was difficult to ascertain the relevance of this issue. The father is critical of the mother’s care of the child but he does not assert that the child is at risk in the mother’s care under his proposals. He proposes that the parents have equal shared parental responsibility for the child.
At the commencement of the trial, the Independent Children’s Lawyer’s position in the Case Outline filed 18 September 2015 was for the child to continue to live with the mother in Melbourne and to spend time with the father. Counsel for the Independent Children’s Lawyer pointed to the comments of the family consultant that this was a finely balanced case and much would depend upon the evidence.
At the conclusion of the trial, the mother’s proposal to relocate with the child to Brazil was supported by the Independent Children’s Lawyer who submitted written proposals which included arrangements for the child to spend time with the father. The Independent Children’s Lawyer also supported the mother’s proposal that she have sole parental responsibility for the child. Counsel for the Independent Children’s Lawyer submitted that this was in the best interests of the child.

Issues

The issues for determination in the trial were agreed between the parties and the Independent Children’s Lawyer as follows:
·Parental responsibility for the child;
·The child’s residence;
·The mother’s proposal to relocate to Brazil with the child; and
·The time the father spends with the child.
During the father’s cross-examination by counsel for the Independent Children’s Lawyer, he made a concession regarding his application for the child to live with him. Instead he proposed a shared care arrangement whereby the child would live with each of the parties on a week about basis. He referred to this as “a 50/50” proposal.
The mother conceded during her cross-examination by the Independent Children’s Lawyer that she would be amenable to orders that the father spend up to two hours unsupervised with the child.
The parties make competing allegations of family violence against each other and seek a finding from the Court that the other party has committed family violence against them. The mother in particular alleges that the father has a propensity towards violence due to his significant consumption of alcohol, which the father denies.
The father’s allegations are that the mother has been violent towards him in the past but not towards the child, pointing to an injury the mother allegedly caused him. The mother concedes that the father injured his shoulder but submits that this was as a result of him falling down whilst she was defending herself.
Counsel for the Independent Children’s Lawyer expresses concern about the lack of evidence regarding medical treatment for the child in both Australia and in Brazil. However both the father and the Independent Children’s Lawyer insisted that the trial proceed without further medical evidence.
Ultimately after hearing evidence from occupational therapist Ms E, there was no dispute that the mother had accessed appropriate medical treatment for the child in Australia since her return in 2013.

The evidence

The documents relied upon by each party in accordance with the Outlines of Cases filed are listed in Annexure A. The mother and father, Ms E, occupational therapist, Dr F, psychologist, and Mr G, the family consultant, were all cross-examined.
There was little independent evidence adduced in support of either party and each party relied on their own evidence. The annexures to the mother’s affidavit relating to the child’s medical treatment in Brazil and Australia are not challenged by the father. Accordingly the evidence before the Court is limited but both parties were assisted by lawyers in the preparation leading up to the trial. Both parties were self-represented at trial and each required an interpreter.
Because at the commencement of the trial each party sought a finding that the other party had engaged in family violence, I ordered that the rules of evidence in the Evidence Act 1995 (Cth) (“the Evidence Act”), which ordinarily do not apply in child-related proceedings,[1] applied in the trial. Each party denied having any criminal history or having been charged with any criminal offence and no police records were produced. There was no evidence of the complaints which were the basis for mutual intervention orders being made at the time the parties separated. At the time of the trial there were no intervention orders or undertakings in place.
[1] Family Law Act 1975 (Cth) s 69ZT(1).
The Exhibits tendered by the parties and the Independent Children’s Lawyer are included in Annexure A.

Standard and onus of proof

When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[2]
[2] Evidence Act 1995 (Cth), s 140.
Regarding the relocation application neither the applicant nor the respondent bears the onus of proof.
In Malcolm & Monroe and Anor (2011) FLC 93-460 the majority held that just as it was not incumbent on the applicant to establish compelling reasons justifying a proposed move, neither was there an onus on the person left behind to demonstrate why the other parent should not move.

Background

The applicant father is aged 54 and the respondent mother is aged 39.

Both parents rely on government benefits but the father also gave evidence that he conducted a business.
Proceedings commenced in March 2014 when the father filed an Initiating Application for parenting orders in the Federal Circuit Court. The mother in her Response to Initiating Application made an application to relocate with the child to Brazil. On the first return date of the application on 19 March 2014, consent orders were made that the Brazilian and Australian passports of the child be held by the mother’s solicitors. An order was also made by consent for the parties to apply to a contact centre for the father to spend supervised time with the child.
On 1 December 2014 an Independent Children’s Lawyer was appointed to represent the best interests of the child. A Family Report prepared by Mr G was released by order on 23 January 2015.
On 13 February 2015 procedural orders were made and a trial date fixed.
On 15 September 2015 leave was granted for the late filing of the mother’s affidavit and consequently the parties’ case outlines because of difficulties encountered by the mother in having an interpreter attend her solicitor’s office. The parties urged that the trial date in the following week be retained, and counsel for the Independent Children’s Lawyer insisted that the trial should proceed because it would be in the child’s best interests. The father was adamant that he wished the trial to proceed despite the late service of the mother’s material. Both parties were represented by lawyers until the trial.
The mother’s trial affidavit filed late provided evidence as to the care and treatment of the child, which the father maintained he had only seen for the first time. He previously relied on what he believed was the mother’s failure to access appropriate care for the child while in Melbourne to ground his application for a change of residence. The father ultimately conceded that the mother had accessed appropriate medical and treatment services for the child since her return to Australia, based on the evidence of Ms E.
During the trial, the father conceded that he had spoken to a treating doctor in Brazil by telephone about the child’s treatment when the mother was there with the child in 2013. He accepted the mother’s evidence in Annexures C and D of her affidavit filed 17 March 2014 regarding the discharge summary from a hospital in Brazil. Annexure C comprises various letters from Dr H, Suburb I Medical Centre, all dated February 2014. Annexure D comprises translated copies of various letters from health/medical professionals in Brazil.

Exhibit ICL4 tendered by counsel for the Independent Children’s Lawyer was an unsigned letter dictated and sighted by Dr J, paediatrician, dated 9 October 2012. This letter does not have an addressee but appears to be a letter addressed to another professional or general practitioner. There was no objection to this letter being adduced into evidence on the basis that both parties agreed that there had been investigations undertaken regarding the child’s difficulties swallowing food. The letter refers to the child presenting with his parents having been referred at the age of two and a half years. The contents of the letter are not in dispute.
In summary Dr J noted that the child was not currently taking any solids and that he was having vegetables and fruit mixed with Sustagen offered to him in a bottle by way of four meals per day. She noted that he was unable to take solids well from the age of four months. It is recorded that at eight months the child’s solid intake was poor and he was crying, gagging and at times can lick solid food but struggles with the texture. It is noted that the child had his adenoids removed the previous year in Brazil while on a family holiday. Dr J recorded that the child is reasonably appropriate with his play and more comfortable with Portuguese which is the language spoken at home but even in Portuguese she thought that his expressive language was “behind”. The doctor recommended investigations given his very restricted diet and referral to a speech therapist at Suburb K Hospital. She also recorded that the child was quite anxious with his eating which could play a large role in him not taking to more lumpy foods. She proposed to review the child in January 2013 and to contact the family with the results of his blood tests.
On 28 September 2015, at the conclusion of the trial, interim consent orders were made which provided for the child to spend time and communicate with the father each Wednesday from 2.00 pm to 4.00 pm for four weeks and then each Wednesday from 2.00 pm until 5.00 pm for a period of four weeks. Thereafter the child is to spend time with the father each Wednesday from 2.00 pm until 6.00 pm. Orders were also made for the father to communicate with the child by telephone and/or Skype each Sunday and failing agreement to spend time with the child from 2.00 pm until 6.00 pm on Christmas Day. Paragraphs 2 and 3 of orders made 19 March 2014 were to remain in full force and effect. These orders provided that the child live with the mother.

The evidence of the father

The father deposes that in December 2012, the mother relocated to Brazil with the child without his consent or knowledge and that he sought assistance from the Attorney General’s Office “in making the mother and the child return to Australia”. The father deposes that the mother eventually agreed to return to Australia in December 2013 but that she refused to provide him with her address and the only means of communication was through Skype. He deposes to repeatedly trying to persuade the mother to allow him to spend time with the child but that she refused. He deposes to becoming frustrated with the mother’s behaviour and sending her “an angry message threatening her with legal proceedings”. He deposes to the mother applying for an intervention order against him and that he “agreed without admission to accept an undertaking not to contact the mother except through a lawyer, the undertaking has already expired. I still do not know where the mother resides or where the child attends kindergarten”.
In his affidavit filed 27 April 205 he deposes to having supervised contact with the child from 1 November 2014 but complains of the mother “delaying the commencement of contact time”. He deposes to this contact concluding on

7 February 2015 because additional time could not be provided by the L Contact Centre. He refers to correspondence between his lawyers and the mother’s lawyers about arrangements for further supervised contact which did not occur. He deposes “Once again the mother refused to allow the agency to supervise time between the child and myself”.
In the same affidavit, the father asserts that the mother made “limited contact” with health professionals in Brazil and that the child had “limited treatment”. At paragraph 15 of his affidavit he deposes:
The mother advised the Family Consultant that her return to Australia has removed such health services being offered to the child and as a result he has regressed. I say that there are better health services offered in Australia than in Brazil and that the child’s medical needs are not being met because the mother will not engage with health services in Australia. [The mother] has never shown any interest in taking the child for treatment and I do not think that her attitude will change whether she remains living in Australia or returns to Brazil.
The father goes on to state that he has consulted the child’s treating practitioner Dr M who has provided him with a referral to a paediatrician at the Suburb K Hospital. He deposes to having private health insurance to ensure that all of the child’s medical needs are provided for and to having offered the mother the use of the health cover for the child’s medical expenses, “but she has not taken me up on this offer”. He deposes to having made arrangements for the child’s special needs with the kindergarten where “the director has advised that a parent can stay with the child at school until he has integrated into the class environment. If the child were to attend this kindergarten he would attend on a Wednesday and Friday thus this would not interfere with his treatment regime at Suburb K Hospital which would occur on a Tuesday”
The father deposes to having lived in the same house in Suburb N for the past five years which is a four-bedroom home and to having a motor vehicle to transport the child to and from the mother’s home.
In the same affidavit the father complains that when the mother returned to Brazil with the child she interrupted his communication with the child when he would Skype the child several times a week. He deposes to being convinced that if the mother is permitted to relocate with the child to Brazil that she will not facilitate or encourage contact with him and he will lose contact with the child completely. He deposes that the mother does not want him to be a part of the child’s life and that she “will never have the finances to be able to afford travel to and from Australia. The mother has very little work history and has no savings. The mother’s family are not affluent and it would be unlikely that they would have the finances to lend money to the mother to facilitate transport to and from Australia”.
There was no issue between the parties that the mother was evicted from the rental property which was the former matrimonial home where she was residing with the child after separation. The father had been excluded from that rental property under the intervention order. In an earlier affidavit filed

13 June 2014, the father refers to the mother’s eviction. At paragraph 9 he deposes that the mother was evicted because she did not pay the rent and damaged the house by making holes in the walls. “The house was rented in my name and thus I was responsible to repair the house and pay for the unpaid rent and the damage caused to the walls. All up I had to pay about $9,800 in repairs and rental payments. Prior to moving out the mother took all our furniture and personal belongings and sold them.”
In that affidavit the father deposes at paragraph 10 that:
After the mother was evicted she lived with friends for about six weeks before returning to live Brazil.[sic] the tickets had already been purchased and paid for as [the mother] had intended to go to Brazil for a holiday in April 2013.
In response to the mother’s assertions that he had not provided any financial support, the father deposed that “I would not provide any financial support for the mother until the mother returned. I did not send money but on three occasions I sent large boxes of the special milk my son needs, toys and clothing.” He denied ever abusing the mother on Skype stating that he was only interested in speaking to his son.
The father also asserts that the location where the mother proposes to live in Brazil is a large city which is extremely dangerous because of “poverty and drugs”. He deposes that there is no financial support such as Centrelink and the mother would be forced to rely on the financial support of her parents. He deposes to the mother having been” robbed at gunpoint on three occasions in her suburb in Brazil”.
The father was cross-examined about recent events where he had contacted the mother and spent time with the child. The father’s account of these events was confusing. He gave evidence that the last time he saw the child was two weeks ago at the R Hospital, when one of the child’s treating doctors called him to give him the results of an endoscopy performed on the child. His evidence was that he accidentally discovered that the child was booked in for surgery two months earlier when he used his Medicare card endorsed with the child’s name. Albeit the child had not seen the father in approximately six months, he reported that the child hugged him and sat on his lap.
The father gave evidence that he also spent time with the child at the mother’s home following the hospital visit. He deposed that it was a cold, rainy day and that the child asked him to come home with them, and the mother refused to let him pay for a taxi but asked him to drive them home. With the mother’s consent he stated that he spent approximately two hours at her home “in the Housing Commission”, playing with toy cars and computer games with the child. He stated that he eventually left because he thought he was “interfering”, even though the child was asking him to stay. After that occasion, the father deposes that he saw the child twice at Suburb O Shopping Centre, the first time approximately two days afterwards, when he contacted the mother via text message. He gave evidence that he spent approximately two hours with the child on that occasion and bought him toys and groceries, and that the mother was present for the duration of the visit. He described that time as a “normal and peaceful time”. He stated that the last time he saw the child was approximately ten days before the first day of the trial but that the mother by text message refused to let him spend any more time with the child.
The mother put to the father that he attended her home uninvited but he denied this. The father was challenged by the mother to produce the text messages between the parties which the father claimed established that he had asked for permission to visit the child at the mother’s home. He failed without explanation, to produce them during the trial.
When asked about the supervised time he spent with the child the father described the first session as “strange” but stated that his interaction with the child was excellent in subsequent sessions. The final session took place on 7 February 2015.
He was nonresponsive when asked to describe the mother’s relationship with the child but eventually conceded that the child’s primary attachment figure is the mother. At this point the father changed his proposal that the child live with him to a proposal of a shared care arrangement on a week about basis. He agreed that there should be a continuity of care for the child and acknowledged Dr F’s observation that the parties have very poor communication. When asked what he could do to improve this relationship he said that the parties should be “genuine” to each other and not be “violent or alcoholic”.
When questioned about the child’s relationship with the mother, he responded that it was “possible” that the child would be deeply attached to her.

When asked whether he would describe that relationship in positive terms, he responded that “she’s the mother”. When asked whether there was anything positive he could say about the mother’s parenting, his response was “I don’t have anything against it”. When pressed, he reluctantly conceded that the mother was “good at his feeding”.
He gave vague responses when asked about how he would cater to the child’s special needs. The interpreted answer was that “it [was] hard to think about that because he wants to help [the child] totally”. When he was asked about the child’s current medical conditions, the father’s evidence was that he does not eat solid foods, he is skinny and needs special care in feeding, and that he takes milk and requires vitamins. He stated that in the last medical report, the doctor found a hernia in the child’s oesophagus and reported that he had too much acid in his stomach.
The father was ambiguous when asked about his current employment, stating that he has always been self-employed and listing his previous work experience. He conceded that he is currently not working and has been in receipt of the Disability Support Pension since 2009 for knee and shoulder injuries. He stated that the shoulder injury was sustained during a physical altercation with the mother in 2012 and that he must make a decision about surgery in the future. The father gave evidence that he takes “Voltaren” for pain relief every four hours if the pain becomes intense. He denied taking medication with alcohol.
The father also testified that he receives rent assistance. He stated that he sells imported goods at low cost to dispense with stock which he has warehoused from the time before he met the mother.
The father deposed that during the relationship the child was included in his private health insurance together with the mother, but that this was suspended upon separation. The father claims that he reactivated the insurance for the child in the past month but deposed that he had not yet had an opportunity to inform the mother of this. He confirmed in evidence that he would be content to continue to pay for this insurance and that he would provide the mother with a card so that she could claim insurance for the child’s treatment. The father also undertook to pay out-of-pocket medical expenses and claimed that it was within his means to pay.
As to the equal shared care proposal, the father claimed that he knew the child’s wishes and that the child wanted to have “more male influence” in his life.

He deposed that when the parties were together, he gave the child milk, changed his nappies, bathed him occasionally and walked him in the pram to a cafe. The father deposed to taking the child to doctors when the child began developing food refusal issues at eight months of age.
The father gave evidence that his family live in P Town, Brazil, and that the mother’s family live in Q Town, Brazil. These cities are approximately 500 kilometres apart, and are connected by bus or by plane. He gave evidence that he worked on farms when he lived in Brazil, but that he moved to Australia because it was safer and there were better opportunities for his health. However, he denied that he would return to Brazil to live if the mother were permitted to relocate to Brazil.
He deposed that he has aunts and uncles and friends in Melbourne who could assist in the care of the child, and that the child was already enrolled for primary school in Suburb N.
He deposed that while the parties were together the child was undertaking speech pathology, occupational therapy, and child psychology, but remained concerned that since separation the mother had not been engaging appropriately with services. When his attention was drawn to Annexure LS5 of the mother’s affidavit filed 17 September 2015 annexing several letters from doctors at the R Hospital, his response was that the mother started accessing those services very late last year. He conceded that the mother’s engagement with Ms E was a positive sign.
While the father appropriately conceded that the good psychological health of the primary caregiver, in this case the mother, was important for the health of the child, he maintained that he was against the relocation to Brazil because it was not in the best interests of the child. He did not accept that the mother was isolated in Melbourne and proposed that she might improve her English by taking a course and allowing him to care for the child.
The father conceded that he and the mother went to Brazil with the child twice during the relationship. He stated that the first time was in 2010, when he agreed because the mother’s doctor advised him to allow her to go to Brazil and he wanted to meet the mother’s family. He deposed that for the second trip, he agreed at the last minute because he considered it would be an opportunity for the mother and child to meet his family.
The father was not opposed to the mother being permitted to travel to Brazil with the child every year or every two years for a holiday, .limited to a maximum of one or two months during school holidays. He deposed that he would have no problem with this arrangement if he could travel with the child to visit his own family in Brazil. From this I infer that he contemplates travelling to Brazil regularly in the future.
The father completely denied the mother’s allegations of family violence and denied that he had any criminal record either in Australia or in Brazil. When questioned about an incident where police were called in around July 2008, the father denied even being present at the house and denied being drunk. He gave evidence that he had arrived home from a friend’s place and discovered that the mother had destroyed the house, and then she had called the police and made accusations against him. The father conceded that he received an Application for an Intervention Order for which he attended at Suburb K Magistrates’ Court, but denied that an interim order was made against him. He denied that there were any further proceedings regarding the Intervention Order.
The father gave evidence about another argument several months before the incident which led to separation, where he claims that the mother wanted to go to Brazil with the child and that she “went crazy” when he told her he had spoken to police regarding a document he refused to authorise for the child’s travel. He deposed that he went to Suburb N Police Station following the incident to complain about the mother’s conduct but did not make a formal report.
The father’s evidence about the night of 14 October 2012, which precipitated the final separation, was that a verbal and physical altercation occurred between the parties. The father stated that the child was inside the house and the mother was looking after him until she followed the father out into the street and the door slammed with the child remaining in the house. He deposed that his shoulder was dislocated when the mother attacked him while he was outside calling the police and they fell on the nature strip together. He denied the mother’s claim that he was carrying a pair of scissors and denied any knowledge of the police taking photos of marks on the mother’s neck which she claimed were caused by the scissors. The father stated that the police photographed cuts on his face and that he was screaming because of his dislocated shoulder. He conceded that there were mutual intervention orders made. A copy of the Intervention Order[3] (tendered by counsel for the Independent Children’s Lawyer) revealed that a 12 month order was made in favour of the father at Suburb K Magistrates’ Court on 15 October 2012 on the application of a police member. The order records that it was consented to by the mother without admissions.
[3] Exhibit ICL2.
The father denied that it was usual for the parties to fight but that the mother would start to yell and swear when things did not go according to her plans. He deposed that he was happy because he had a son and he was always helping out at home.

There was no dispute that the mother and child were evicted from the former matrimonial home as a result of an application to the Victorian Civil and Administrative Tribunal (“VCAT”) made after the father was excluded from the address by way of intervention orders. When cross-examined about the VCAT order which terminated the lease agreement over the former matrimonial home and resulted in the eviction, the father said that he wanted only to remove his name from the contract. He stated that because he had already paid two months’ rent in advance, the mother would not be evicted.

He stated that the real estate agent inspected the property and saw that there were “various problems with the house and walls.” He gave evidence that the real estate agent became “worried” because the father was responsible for the rent but he was no longer living at the property. He stated that he asked the real estate agent not to remove the mother and the child from the house until he could find other accommodation for them, but by that stage an “IVO had been in place and communication was difficult”, although he “never stopped buying things for the child.” In cross-examination he denied that he had cancelled two months of rental payments. The father ultimately conceded that the mother did not have the capacity to pay the rent. He could provide no explanation for what appeared to be his application to terminate the tenancy agreement early. He claimed that the real estate agent was responsible for the application.
The mother challenged the father with VCAT documents ordering her eviction. These documents made no mention of repairs to the house.[4] He was challenged about the absence of that information but insisted that he paid the real estate agent for repairs. When the father was asked why he did not offer to help the child when the mother was evicted his interpreted answer was that “[he] could ask the same question of [her]”.
[4] Annexure LS1 to the mother’s affidavit dated 17 September 2015.
The mother called for the receipts for the repairs to the former matrimonial home, and these were not produced during the trial. When challenged about his failure to assist the mother and child with accommodation after the eviction, the father said that he had “always worried for both of them” and never stopped buying medication and milk for the child, which he gave to the mother when they met in public. The father rejected the proposition that he had never assisted the mother and child financially before they left for Brazil. He claimed that he gave the child “medication, special soup, special milk, and vitamins.” The mother challenged this on the basis that the child could not take soup at the time. The father said he had bought the soup as a supplement. He conceded that he had not given the mother money to assist her with the child’s expenses.
After the mother and child were evicted the father returned to live in the former matrimonial home. The father deposed to spending time with the child in the Suburb N area in public places after the eviction. He stated that the mother stole and sold the household furniture. The mother’s account of this was that she gave the furniture away because it was virtually worthless.
The father stated that in the time between the eviction and the mother and child leaving for Brazil, they met approximately two to three times a week. He claimed that he could have taken the child to his friend’s house where he was staying at the time. He claimed that he was involved in the care of the child during the marriage. He claimed that the mother only asked for help when she was in Brazil.
The father stated that the email sent by the mother asking for his help was sent after she arrived in Brazil. He refused to admit or deny that the mother told him she was having difficulty finding permanent accommodation. He admitted sending the mother a Skype message on her return to Australia wherein he told her that she was living ‘like a fugitive’ and that the police were looking for her. He however denied any knowledge of when she returned to Australia. He also denied that he knew where the mother and the child were living in Australia until six months before the trial.
When challenged, the father denied harassing the mother’s friends and making threats against the mother personally. He also denied that he told the mother’s friends that she was “crazy” and that she would “lose everything.” This was an allegation in the mother’s affidavit filed 17 September 2015, and she also deposed to having to leave a friend’s house because the husband would harass those friends for helping her. No cross-examination was directed to this issue.
The father conceded that he gave an undertaking on 25 February 2014 in response to the mother’s Application and Summons for an Intervention Order, but said that this was because he had to attend Suburb S Magistrates’ Court three times for a contested mention.
The father gave evidence about undertaking a Parenting after Separation Course with Lifeworks, which he described as “very good and very positive”, because he had been stressed. He stated that the program made him feel “more calm about interacting with his family” after separation.
In response to the mother’s questioning, the father said that he went to the R Hospital after the last court hearing day of 29 May 2015 to find out whether the child was being treated for anything and coincidentally discovered that the child had an appointment for surgery.
When questioned about a Medicare rebate paid into the father’s account but not repaid to the mother who paid $280 for the child to see a gastric specialist in Melbourne, the father said that he only realised approximately two months after the fact and wanted to repay it but had no way to do so. When challenged by the mother that they had met in person only two weeks ago, he claimed that he was not expecting that encounter but maintained he could repay the money.
When cross-examined about the child’s daily routine when the parties lived together, the father said that he fed the child when the mother could not and that he took the child for walks to the beach and had coffee with him when the mother was on the computer. He claimed that the mother was on the computer “22 hours a day”. Sometimes the child would wake in the middle of the night so the father gave him milk and changed his nappy. He deposed to preparing milk for the child in the blender and that he would fall asleep in the car on the way home from the walks. The father said the child also watched television but could not specify any program other than “ABC Children”.
The father was cross-examined about his “50/50” proposal for the child.

The father maintained that this was a “healthy” solution to the child’s care needs. He stated that the child would “have a lot of love” and that the mother had to support his position. He accused the mother of manipulating the child when he called the father “[father’s first name]” rather than “Dad”. When challenged about the child’s schooling, medication, and clothes, he maintained that he had given the mother clothes, food, and shoes. He denied that he brought only toys for the child and maintained that he had also brought milk, which the child needed more urgently. The father and mother disagreed that the quantity of milk that the father bought was sufficient for the child’s needs. The father said that the mother “could have told him as much”. When the mother suggested to the father that he was requested to bring fewer toys and more milk and clothes, in response he stated that this was not a court order.
He was ultimately asked whether he considered himself to be a good father. His interpreted answer was: “what is it to be a good father? I just found out everything about [the child] last Friday”. The mother pointed to his communication with the Brazilian doctor who diagnosed the child, and he conceded this point but said that he only had verbal information about the diagnosis. He maintained that the child could have been diagnosed in Australia, to which the mother stated she had been called a hypochondriac for taking the child to so many doctors in Australia, and that Dr J had not made a diagnosis after seeing the child. The father accused the mother of leaving for Brazil before a scheduled second medical appointment.
The father could not say anything positive about the mother’s return to Australia. When the mother emphasised that she had returned voluntarily, he said that if she had come back a day later she would have been out of time, and that she had no choice but to return. He denied any knowledge of her return date or accommodation arrangements, despite the mother’s contention that the Brazilian and Australian authorities passed that information to him, and that she had also messaged him to tell him that she had nowhere to stay.
The father then conceded this and said he tried to contact her via Skype. The mother stated that this Skype message was the one in which the father threatened her with police intervention and called her a fugitive. He denied that the message was a threat and maintained he was “desperate” to try to help.
The mother accused the father of lying about the reasons for his eligibility for the Disability Support pension. The father denied that he was untruthful.
The father stated that he intended to change his employment situation in the future but stated he would “let [the mother] know” when he eventually found work. He contended that he had always worked at his business, but that this was not enough to cover his expenses. He then stated that the last time he worked was in 2009, when he sold goods from a warehouse where he had stock since 2004. He said that the last of these were sold in 2012. He gave evidence that he has been looking for a job but would like to build his own business again. He asked the mother in return why she was not looking for a job, and disagreed with her assertions that her employment prospects were better in Brazil. He also denied her assertion that in Brazil she has a family, a profession, and financial support, whereas in Australia she has nothing. She cited as an example the fact that her parents had arrived from Brazil to care for the child for the duration of this trial, because childcare was extremely expensive and the father had not agreed to assist her with fees.
The mother cross-examined the father about the child starting school in 2016. In response to the mother’s contention that it would be more convenient for the child in Brazil given that the first year of school in Brazil requires only morning attendance, the father responded that it would be better for the child to remain in Australia and for the mother to ask the teacher or the principal of the school for help. He maintained that in Australia there is “the best assistance in the world” and that in Brazil the mother’s family is “always fighting.”
The mother put to the father that when he recently came to her home uninvited he told her he had a “plan B” if he did not “win” in Court. The father denied ever saying this and asserted that it was a friendly encounter and that he only played with the child.

The Evidence of the Mother

The mother confirmed that she met the father through a colleague while in Brazil. She stated that she knew he lived in Australia and regarded Australia as home. She denied any knowledge that he was an Australian citizen. She acknowledged that the parties’ understanding during their marriage was that they would make their married life in Australia, and that any children would be raised here.
The mother gave evidence that she attended some English classes between 2008 and 2010 but had difficulties with attendance at her first school because of what she alleged were the father’s drinking problems. She referred to being unable to sleep at night. She stated that she attended English school throughout her pregnancy but she only learned basic sentences. She stated that she was motivated to gain a better comprehension of English because she would have difficulties speaking to the child’s teachers. She gave evidence of a preference for communication via email because her reading and writing skills are better than her spoken English. She also confirmed that she had no need for an interpreter in communicating with Ms E after a couple of sessions because the conversation was basic and teaching behaviours could be modelled rather than explained. She had not undertaken English language courses recently because she was only in a position to study when the child was at kindergarten and the free courses available were not appropriate for her. She expressed interest in taking further courses at the CC Community Centre. She gave evidence that she uses “Google Translate” for her communications with the child’s kindergarten teachers. The father put to the mother that a “50/50” arrangement could provide her the opportunity to take English lessons. The mother’s response was that the father was not capable of caring appropriately for the child.
The mother confirmed that her life has been improved since she purchased a car a month ago with money sent to her by her parents. However she stated that she feels very isolated regardless of the Brazilian community organisations in Melbourne. She stated that she keeps in touch with “friends of friends” she met in Melbourne. She confirmed that she worked for a while when she first came to Australia and would consider doing some more work, but she preferred to take a course to qualify to work.
The mother deposes that:
A few days before I was evicted from our rental property our son and I became very sick with a virus and our son was hospitalised for 4 nights. When he was discharged I had no home to go to. I had to rely on a friend for housing I was able to stay there for one month. I have no one else to turn to and that is when I decided to go to Brazil.[5]
[5] Mother’s affidavit filed 17 March 2014 at [31].
The mother stated that in Brazil she studied at university and worked in a bank. She now receives a payment from Centrelink of $800 fortnightly inclusive of rent assistance. She pays $500 per month in rent to the Housing Commission. The mother gave evidence that she has no savings and had not received any child support since separation. She stated that if the separation had been more amicable and she had received more assistance from the father, she would have considered remaining in Australia. She stated that she wanted the father to assist her financially to access medical care for the child.
The mother stated that the child had health issues at separation which had begun when he was eight months of age. She deposes to travelling to Brazil with the child for each year of the relationship for up to six months without objection from the father. After separation she considered staying in Australia but changed her mind because she now lives alone in a strange country where she does not speak the language and where she has difficulty accessing appropriate healthcare for the child. She confirmed writing and sending the email to the father regarding her difficult circumstances before she left for Brazil with the child.
The father conceded the translation as faithful to the original email except for an insignificant matter, but challenged the mother on the absence of any reference to his alleged alcohol abuse. The mother conceded that she made no reference to this. The translated email was admitted into evidence. (Exhibit A)
The father challenged the mother about her approach to his role in the child’s life. The mother responded that he would always “be a father,” but that the child called his maternal grandfather “father” because of the time they spent together in Brazil. She stated that she had explained to the child several times about the identity of the father, both in Brazil and in Australia, but that the child had refused to call him his father. She explained that during the relationship, she had encouraged the father to take the child out but that he would only go to a café for coffee and eventually the child resisted going out with him. She referred to this as a point of tension in the relationship because she thought the father was disinterested in parenting. She however did not have any concerns about the father’s ability to care for the child for a few hours during the day, with the exception of mealtimes.
The mother stated that she returned to Australia of her own volition after a cooling-off period, so the parties could then consider how to parent the child after separation. She acknowledged that the child’s relationship with his father was important because “everyone wants to know who their father is”. When prompted, she clarified that it was important to also know him as a person.

She proposed to utilise Skype and regular visits in Brazil and Australia so that the child could spend time with the father, and I note she deposes in her affidavit filed 17 September 2015 that she has “always encouraged the husband to speak with [the child] by Skype”. She was receptive to the idea of returning the child to Australia to spend time with the father provided that the father funded those visits. She proposed visiting Australia for a month so that the child could spend time with the father in the afternoons at a public place or at the child’s Australian home with the mother in attendance, because she was worried about the father denigrating her to the child. She explained that the reason she limited the child’s time alone with the father to daytime during the relationship was because the father only drank in the evenings.
The mother was cross-examined about the child’s lifestyle and eating habits. She gave evidence that the child has started taking chunky mashed foods but that this requires a lot of patience in assisting him, which she claims is beyond the capacity of the father. The mother fears that there would be a deterioration in the child’s eating habits if he were in the care of the father for any lengthy period of time, especially given that during the relationship the father had failed to help with childcare. She denied that the father was ever involved in the child’s care with the exception of taking him for walks to a café. The mother’s evidence was that when she had asked the father to help with the care of the child, he had told her that “he did not know how”. She claimed that the father was now insisting that the child live in Australia because of his pride.
The mother claimed that the father’s equal time proposal was not genuine because although he loves the child, he does not have the capacity to care appropriately for him. She confirmed that she consulted an occupational therapist and a dietician to teach the child how to eat. She described the father as having little knowledge of the child’s medical issues, except for occasionally attending medical appointments.
The mother was cross-examined about medical files and records from T Care, a health service engaged with the child during the marriage. These records were subpoenaed by the father but not tendered in evidence. She was questioned about an appointment on 25 February 2011 where at 10 months the child was recorded to be refusing solids. Records of the first visit indicated that both parents were present. The mother’s evidence was that the father interpreted for her. Questioned about the recording of cancelled appointments the mother responded that she did not know about them and the father made all of the arrangements because she could not communicate in English. She was also cross-examined about one home visit where she allegedly was away for a hairdressing appointment when a professional visited. She stated that she had left for a different appointment with the child and could not recall whether she had left the professionals a note about feeling depressed, stating that she probably would not have left a note because of her limited English, and that she would have stayed at home if she had known about the appointment. The mother provided a number of explanations for her absence when home visits were made. She recalled that on one occasion she had gone to the supermarket and the health care workers were leaving as she returned home.

The mother agreed that the father attended all of the appointments for the child during the marriage but she did not accept that he was genuinely interested in the child’s health, because he did not ask questions at these appointments.

She stated that she depended on the father to interpret the information.

When asked directly, the mother could not say anything positive about the father’s parenting abilities. The father accused the mother of cancelling the child’s medical appointments, which she denied. She claimed that she attended all of the child’s medical appointments and that because of her limited English she could not cancel appointments.
The mother confirmed that at the time of the T Care appointments she was suffering from depression, and that she had been prescribed anti-depressant medication since 2008. She confirmed that she was diagnosed with anxiety in her teenage years and that it was exacerbated when she came to Australia.
She stated that she had been consulting a psychologist in Brazil since 2005 but had not consulted a psychologist in Australia because of her difficulty communicating in English. She gave evidence of having difficulties locating any Portuguese-speaking psychologists and that when she did find one or two they were not accessible because of long waiting lists. She gave evidence that she remained on a waiting list for a female psychologist but that she was concerned about the limited Medicare subsidisation and prohibitive cost of private sessions.
The mother confirmed that through Suburb K Hospital the child had been provided with occupational therapy, dietetics advice and speech pathology.

She stated that the child was referred by a general practitioner to Dr J but that she only saw the child for one appointment and no definitive diagnosis was made. She was shown a letter drafted by Dr J dated 9 October 2012 (Exhibit ICL4) which she had not seen before. She claimed that professionals at Suburb K Hospital regarded the child’s health problems as psychological. The letter suggested that there were plans to review the initial investigations. She conceded that she left Australia for Brazil before the second appointment with Dr J. In response to cross-examination from the father, the mother denied that she was unhappy with the integrated service provided through the Suburb K Hospital.
The mother described accessing medical care for the child while she was in Brazil. She stated that the child had a fever when they arrived in Brazil and that he was tested for acid reflux and hearing problems. She described taking the child to hospital in December 2012 when he vomited blood, which had never occurred previously. She explained that she was told at the hospital that the child had a problem with his stomach. She stated that after an endoscopy the child was diagnosed with gastritis, oesophagitis and duodenitis, which was later confirmed by doctors in Australia. A private doctor at U Hospital in City C also performed tests on the child and recommended three different types of medication for three months. The mother stated that the maternal grandmother registered the child for private health insurance and that she was able to access a psychologist, a speech pathologist and an occupational therapist through this scheme. The mother deposed in her affidavit filed 17 September 2015 that private health insurance is much cheaper in Brazil than Australia, and that her parents can afford Brazilian insurance but not Australian insurance. She did not adduce any independent evidence about this. Subsequently in Australia the child’s tonsils were removed and grommets inserted in his ears.
The mother confirmed that she had two sessions with a psychologist before she returned to Australia. She admitted failing to bring the child’s medical reports to Australia because of time constraints.
After hearing all the evidence the father ultimately conceded that the child had received treatment in Brazil but he claimed that he only learned the details of this medical treatment when he was served with the mother’s trial affidavit.
However, during the mother’s cross-examination the father volunteered the information that he rang the doctor at U Hospital while the child was in Brazil and he was told that the child had not been admitted to hospital. He stated that he received an email from the doctor. The mother responded that she had tried to inform the father but was accused by the father’s family of lying. She referred to her affidavit and the Annexures to demonstrate that the child had indeed been admitted to hospital, but not the U Hospital. When the father put to the mother that he had tried to contact her in Brazil to find out what medical treatment the child was receiving, she denied that he had done so.
The mother was cross-examined about her follow-up for the child’s medical care. She responded that she had a friend who is a nurse at a large hospital in Melbourne where a Dr H saw both the mother and the child. The father ultimately conceded that he had no issue with the child’s medical treatment in Australia since the child’s return from Brazil.
Although there was no affidavit from Dr H, the letters which formed part of the mother’s annexures to her affidavit were admitted into evidence by consent given that the issue of the child’s medical care was now no longer in issue.
The mother suggested that the child spend two hours a day with the father during his visits to Australia should she be permitted to relocate with the child to Brazil. When asked about the L report from the contact Centre where the child had spent time with the father, the mother stated that the child did not speak about the experience, except to say that he wanted a lot of toys.
The mother was cross-examined about the interviews with Mr G in January 2015. In his report, Mr G observed the child to playfully interact with his father who was seated a distance away from the mother. When asked about this observation of the child with the father, the mother replied that it was because the father promised him toys. The mother accepted that the interactions were positive but continued to express concerns about the father’s capacity to care for the child. She conceded that the father’s love and care were beneficial for the child, but expressed the view that being physically separated from the father would not have a significant effect on the child because the maternal grandparents would provide him with support. She expressed the view that the father did not form a “normal father-child bond” with the child at an early age.
The mother contradicted the father’s account of the three recent occasions when he had seen the child. Although she did not recall exact dates, she denied that the father drove her and the child home after meeting him by chance at an appointment at the R Hospital. She alleged that the father had visited her home without notice and uninvited on another day. The mother also denied giving the father her phone number and claimed that he overheard it when she provided it at the counter when she attended for her appointment with the child’s gastroenterologist. She gave evidence that he was standing next to her. The mother also denied providing her address to the father and denied receiving a message that he was coming to her home.
On the occasion he attended uninvited the mother stated that when she opened the door the child was excited to see him. She conceded that she permitted the father to come inside to see the child and to play with the new toys that the father had brought. She stated that the father asked her whether she was going to Brazil, and told her he had a “plan B”, but did not explain what he meant by this. She gave evidence that the father asked about her witnesses and told her he had 100 witnesses and would produce five of them. When she asked him to leave, the mother claimed that the father said goodbye to the child and promised him that they could soon play together at the father’s house where he would live. The father denied that he made any comment about a “plan B” and claimed that he did not pay any attention to the mother. He put to the mother that instead she had asked him about his witnesses. This was denied by the mother.
The mother described another occasion when she and the child met the father at Suburb O shopping centre in order to exchange a bicycle which the father had purchased for the child. The parties’ accounts differed as to what supplies the father purchased for the child. The mother seemed to accept that the father did buy some milk, clothes and toys for the child on this occasion. However, the father also claimed that he brought potatoes and meat the second time he visited the mother’s house. He put to the mother that he had also brought pastry, chicken breast, beef, potatoes and sweet potatoes. The mother did not accept this.
She stated that the father had sent her a text message inviting her to a café to spend time with the child when she reminded him about a promise he had made to take the child to the zoo. The father put to the mother that he had planned to take the child to the zoo subject to the weather, but that on the agreed Saturday he had intended to take the child to an indoor location instead because the weather was not good. The mother did not agree with this account. The dates around this exchange were confusing but seemed to refer to sometime in August. The mother was cross-examined about her text message reply “around 2.30 pm” to a text message from the father asking her if he could see the child. The mother noted that the message made no mention of the father coming to her house, and made the same observation about the previous text message which asked the mother to “let [him] speak to [the child]”.
Regarding the cessation of the supervised contact visits, the mother agreed that the father’s solicitors proposed private supervision after the L Centre visits ended. The mother recalled a private agency called “V” and stated that she was supportive of supervised visits. She gave evidence that she was told by her solicitors and staff from L Centre that the father could not afford the costs of the supervised visits. The father maintained that this was a lie.
The mother agreed to cooperate in facilitating the child spending private supervised time with the father if she was unsuccessful in her application to relocate to Brazil. She also proposed two unsupervised hours because this would allow her to give the child a bottle or food after the visit.
The mother denied having a criminal record in either Australia or Brazil or ever having been charged with any offences. She confirmed that an intervention order was made against the father on 15 October 2012 for 12 months without admission of the allegations, and that she did not complain of breaches.
Cross-examined about the maternal grandparents’ visits to Australia, the mother stated that the maternal grandmother visited when the child was born and on a second occasion. She stated that the maternal grandfather visited when the child was eight months old. The mother also confirmed that both maternal grandparents were in Australia to care for the child during the trial. She confirmed that when the maternal grandparents are in Brazil, she and the child communicate with them via Skype daily.
The mother was cross-examined about the father’s physical and emotional violence. She claimed that the father had a drinking problem but provided no explanation when she was challenged about her failure to adduce evidence from any witnesses to corroborate her allegations. The mother confirmed that her experience was that the father consumed alcohol every night but not during the day and that he was only violent when he was drinking.
The mother was specifically cross-examined about the incident at separation in October 2012. She maintained that the father had scissors in his hand which cut her on the neck. Her version of events was that the argument started inside when the child was present but she went outside and was followed by the father when the door closed and locked whilst the child was inside the house.

She alleged that the father walked away to call the police and she ran after him because he had the key. She alleged that he unlocked the door and then chased after her with a pair of “blunt-tipped scissors meant for children,” and she scratched his face in self-defence. Her evidence was that the father tripped over and injured his shoulder and that he was affected by alcohol at the time.
Her evidence was that the police arrived before the ambulance, and took photos of her injuries whilst the father was outside. She agreed it was the father who called the police. When the ambulance arrived the paramedics attended to her with some ointment and disinfectant. She explained that she did not call the police because she saw the father making a call and knew the police would arrive. The mother believed the father had planned the incident because every time the parties argued, the father told her he would “put her in gaol,” and that if she accidentally broke a glass he would “take a photo.”
The police applied for mutual intervention orders and the parties attended court the next day, where the Magistrate permitted the mother to have the use of the family car because she had permanent care of the child. She reported that when she left for Brazil, she left the car with the friend with whom she was staying and the friend’s husband called the father to pick it up. The father denied that he had received any phone call and put to the mother that the car was left 200 metres from the house. He stated that he called the friend’s husband because he was worried about finding the car there.
The mother stated that she left her friend’s house to return to Brazil because she could no longer impose on that family, and that although they had helped her to look for a house, it was too expensive. She became aware of the Housing Commission when she stayed in a shelter for a month following her return to Australia. She also lived in a transitional house in Suburb W for three months and lived temporarily in a property in Suburb W close to a hospital due to the child’s medical problems.
The mother categorically denied causing damage to the former matrimonial home and emphasised that the father had failed to produce any receipts for any alleged damage.
The mother was cross-examined about the father’s consumption of alcohol. She was accused of being particularly negative about the father’s habits because her religion forbids alcohol, and the father claimed that he only drinks one or two beers “whenever possible” during dinner. The mother stated that she did not object to the father drinking socially but claimed he would drink one to two beers at dinner, seven to eight afterwards and often a shot of whiskey as well. Later during the mother’s cross-examination the father denied having any alcohol at home between 2008 and 2012, then claimed he only consumed alcohol on Saturdays. The mother at that point maintained her claim that the father would drink 12 cans of beer a day.
The father accused the mother of being abusive and violent, which the mother denied. He claimed that she was motivated by her desire to return to Brazil.
The father conceded that he has not paid any child support and expressed a desire to do so when he was “ready”. He referred to his support of the child in purchasing milk, clothing, toys and medication. The mother claimed that the father’s purchase of milk was not sufficient. She also maintained that the father’s purchase of toys did not assist her in the care of the child.
In cross-examination the mother conceded that she had not undertaken a post-parenting separation course. There was no evidence that this had been a requirement for the mother. However I have gleaned from this that the father may have been referring to the recommendations of the family consultant.
The mother agreed in cross-examination that the child had missed two supervised contact visits at L Centre. She stated that one visit was cancelled because the child was sick and the second visit did not proceed because she was confused about the timing after the original visit was rearranged. The mother took responsibility for this second cancellation and blamed her limited English for the miscommunication.
The mother was also asked about her emergency contact registered with the L contact centre, who was a woman named Ms X. The father put to the mother that Ms X had denied that she and the mother were friends. The father claimed that the mother was still in association with Ms X and that the mother told him Ms X hit the child when she was babysitting. The father was critical of the mother’s association with Ms X. This cross-examination of the mother was confusing and not based on any evidence from the father.
The mother stated that Ms X introduced her to her solicitor and assisted her to complete forms and affidavits for these proceedings. She denied that Ms X had hit the child or that she ever told the father about such an incident.
The father proposed to the mother for the first time in the proceedings that the mother had told him that before the parties met, that she and her friend had taken a cat and put it in the microwave. He also claimed that in 2010 when the mother was pregnant, she attempted to drown the neighbour’s puppy by putting it in a kennel, turning it upside down and filling it with water. The mother reacted with shock and denied the claims, stating that she would be unable to look after a child or animals if she were that mentally unwell.
The father continued to pursue his proposal of “50/50” care of the child in cross-examination of the mother. Significantly, he maintained that the parties should have equal shared parental responsibility and that if the mother agreed to this, he would do “everything he can” to cooperate. He proposed communication by way of text messages and phone calls but stated that it would always be “risky because the mother would lie” about him. He also proposed email communication, which the mother preferred over the other means of communication.
The father put to the mother that he was capable of caring for the child with the support of specialists where necessary. In response to this proposition the mother said that having regard to the child’s special needs around eating that she would be fearful of regression if the father were given that responsibility. The father put to the mother in cross-examination that during the relationship she went to the hairdresser or the gym and left the child with him. The mother responded that she went three times overall and left the child in childminding when she went to the gym. The father also referred to his cooking abilities in cross-examination, claiming that he had “run a restaurant for ten years” before he met the mother. She responded that she was aware the father’s ex-wife had a restaurant.
The father had no proposal should the mother be permitted to relocate with the child to Brazil, because he claimed that his relationship with the child would “already be damaged”. The father put to the mother that the region of Brazil where the mother proposed to return is the most dangerous region in Brazil, and suggested that the mother had told him she had been robbed there several times. He suggested to the mother that her family was in conflict and that although he “did not like that the mother was living in a housing commission with the child,” it is safer than in Brazil. The mother denied all of these criticisms put by the father, and maintained that the maternal grandparents had the financial and psychological means to assist in the care of the child.

The Evidence of Dr F, Psychologist

Dr F is a clinical and forensic psychologist. He assessed both parents and prepared a psychological evaluation dated 14 July 2015 (Annexure B to his Affidavit filed 11 September 2015). He was cross-examined in the trial.

However the financial circumstances of the mother are not likely to be improved in Australia. Her prospects of employment in Brazil are, on balance, better and the supportive family environment for the care of the child should relieve her security concerns about raising the child in the environment of the Housing Commission home in Melbourne. This will benefit the child. I am satisfied that whilst the child’s right to maintain direct contact with the father will be substantially affected, the advantages of the other considerations outweigh this consideration to shift the balance to relocation being in the overall best interests of the child. Communication by telephone and or Skype remains relevant and will allow for regular contact between the child and the father. Spending time in Australia and Brazil each alternate year for regular dedicated holiday time with the father will assist in reinforcing the relationship. These arrangements will of course be subject to the progress the child makes with his medical condition. I am satisfied that the mother has demonstrated responsibility in her parenting obligations such that she will cooperate in facilitating the arrangements for the child to spend time with the father. I am satisfied on the evidence that she acknowledges the importance of the relationship, notwithstanding the negative relationship she has had with the father post separation. There is also the prospect of that relationship improving if the mother’s circumstances are improved on relocation. Those prospects are reasonable having regard to the evidence of Dr F.
I am satisfied under s 60CC(3)(f) that the mother has demonstrated a good capacity to provide for the needs of the child including his emotional and intellectual needs. The father has had limited opportunity to demonstrate his capacity since separation. However on all the evidence, I am not satisfied that he has the capacity to provide for the needs of the child in any overnight or shared care living arrangement. I accept the evidence of the mother that his approach to the care of the child has not been child focused and this has been demonstrated in his failure to financially support the child.
The maturity, lifestyle and culture of the child and that of the child’s mother and in particular the child’s medical condition are significant additional considerations under s 60CC(3)(g). The child is about to begin his school life and the evidence is that there is some uncertainty as to whether he can begin school in Australia without assistance for his special needs. The family support which the mother has in Brazil will assist her in obtaining employment in circumstances where language is not a barrier. The mother will still have the burden of attending to the child’s special dietary needs but she has established relationships with the professionals in Brazil with whom she can communicate more easily. The mother’s prospects of obtaining treatment for the child and support for herself are more favourable where she has no communication barriers. This is an additional consideration upon which I have placed significant weight.
I have previously outlined my findings regarding family violence and cannot place any significant weight on this issue in determining the outcome of these proceedings. The fact that mutual intervention orders were made in circumstances where neither party accepted the allegations in the complaint, merely underlines the difficult history of the separation.
I am satisfied that the father has not provided any financial support to the mother for the care of the child or the mother since separation. I accept that the father is in receipt of government benefits for a disability but I do not accept that he has made any real attempt to provide any financial support to the child since separation. I reject the father’s evidence that he proposed to pay for the child’s medical expenses by way of private health insurance as the details were never provided to the mother and there was no satisfactory explanation for this omission.
Under s 60CC(3)(i) I am satisfied that the mother has displayed a responsible attitude to the child and to the responsibilities of parenthood having financially supported the child since separation and returned voluntarily to Australia with him to participate in these proceedings. The travel for the child and the mother was funded by her, in circumstances where she has returned to Melbourne without accommodation because of her compromised financial circumstances. She has assumed a considerable burden in returning to Australia homeless and navigating the welfare system to obtain Housing Commission accommodation. She has had no support from the father.

The Presumption of Equal Shared Parental Responsibility

The mother proposes that she have sole parental responsibility for the child and the father proposes that the parties have equal shared parental responsibility. As previously outlined the presumption of equal shared parental responsibility is the starting point in making a parenting order.
In cross-examination of the mother, the father submitted that the attitude of the mother was such that equal shared parental responsibility was impossible. He blamed the mother for an attitude of non-cooperation and negativity. He conceded that equal shared parental responsibility was unlikely to be successful having regard to the history of the marriage and post-separation relationship.
Dr F’s evidence in cross-examination about his observations of the parties’ relationship was that it is unlikely that they will cooperate effectively in the future particularly because of the father’s extremely negative attitude towards the mother and her negative attitude towards the father.
During the interviews with the parents, the family consultant attempted to explore the issues in dispute with the parties and noted that regretfully this session was not successful. His opinion was that the joint session conducted with the parents “confirmed that their relationship is currently quite distant and toxic, with little capacity for constructive dialogue between them.” In cross-examination the family consultant restated this view and confirmed that equal shared parental responsibility had no likelihood of success and would not be in the best interests of the child because of the conflict between the parents.
The effect of his evidence was that when he wrote his report he had hoped that the parents might have responded to the criticisms made and “put down arms” for the benefit of the child, in the event that the child was to continue to live in Australia. When cross-examined by the Independent Children’s Lawyer however, he pointed to a degree of pessimism about the parents cooperating and conceded that equal shared parental responsibility would be impractical given the extent of the disagreement between the parties and their lack of capacity to put differences aside.
I am satisfied that all attempts to settle the issue of relocation between the parents have been futile.
The family consultant noted that the child would need to be a part of a therapeutic programme to address his developmental issues. This would require a level of cooperation between the parents which is clearly missing. As the Independent Children’s Lawyer submitted, the parents have no trust in each other, no shared goals for the parenting of the child and disparate views about how his treatment can be managed. The parents could not agree on anything including what occurred in the last three weeks before the trial in terms of the contact between the child and the father.
Having applied all of the primary and additional considerations under s 60CC of the Act to my findings on the evidence, I am satisfied that the presumption of equal shared parental responsibility has been rebutted by evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. The foundation for this is the evidence in support of my findings as to the best interests of the child previously outlined. The father conceded that there was no likelihood of resolving the conflict which continues to infect the relationship between the parties.
As I do not propose to make an order providing for equal shared parental responsibility, my powers to make parenting orders are not affected by the application of s 65 DAA of the Act and I am “at large” to make such parenting order as I think appropriate. (s 65D : Goode and Goode (2006) FLC 93-286, at 80,899 see par 15 of Sawant & Karanth [2014] FamCAFC 235.)

Conclusion

Having weighed the competing proposals of the parties, I am satisfied that it is in the best interests of the child to relocate to Brazil.
The father’s proposals that the parents have equal shared parental responsibility and care of the child and that the child live with him on a week about arrangement are unrealistic.
The opinion of the family consultant was that in this case a shared care arrangement is untenable and not in the best interests of the child. His evidence was that the mother is the primary attachment figure for the child. The father did not appear to accept the reality of this situation. He continually focused blame upon the mother for removing the child from his life. An example of the father’s lack of insight into the practical difficulties with his proposal was his response to the mother’s questions in cross-examination. The mother asked the father how the child might react to the father’s proposal that the child live with him when he has not been with the child since he was two and a half years of age. The father answered “He would be super happy. It would be like he’s on holidays.” In addition to this is the reality of the situation in that the father has not had any long term engagement with the child’s treating professionals or in the therapy in which the mother has been instructed to encourage the child to take lumpy or solid food. The child has only recently progressed to the stage of being able to consume a pouch of yoghurt at kindergarten on the evidence of Ms E. Whilst he has made good progress it has been slow and supported by the occupational therapist attending for mealtimes to observe the child and provide the mother with suggestions which she has adopted with some success, on the evidence of Ms E. The mother’s concern about the child regressing with a great change of routine if he were to live with the father, at a time when he is about to commence primary school, is legitimate in these circumstances where improvement has been slow and the father has not been involved in the child’s treatment.
On all of the evidence I am satisfied that it is in the best interests of the child to relocate to Brazil with the mother and for the father to spend time with him in accordance with the mother’s proposals. I am satisfied that in all the circumstances this is the “least worst option” in the words of the family consultant.
I am satisfied that for the child, the father’s proposal that the child remain in Australia, is the least advantageous proposal.
I am satisfied that the presumption of equal shared parental responsibility for the child has been rebutted on all the evidence which satisfies me that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. It is in the best interests of the child for the mother to have sole parental responsibility.
I have considered the objects and principles under s 60B of the Act and in particular the object of ensuring that the child has the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. I have also taken into account the principles underlying the objects and in particular the child’s right to know and be cared for by both parents and spend time and communicate with them on a regular basis. I am satisfied that arrangements for spending time and communicating with the father will satisfy these objects and principles, consistent with the best interests of the child. One of the principles underlying the objects is that parents should agree about the future parenting of their children. Regrettably, this is not possible in this case where the parents are intractably opposed regarding the relocation.
The father in his evidence and in discussions with the family consultant acknowledged that he had made several trips to Brazil where he stayed with the mother and child and her family. The paternal grandmother and other extended family also reside in Brazil where the father on his own evidence has lived and worked. The father does not propose to relocate to Brazil and prefers to remain in Australia where he has lived for some 20 years. In the alternative, he has proposed funding a return airfare for the child to travel to Australia annually for holidays so that he may spend time with him.
Both parents suffer from financial disadvantage but the father is optimistic about his employment prospects in Australia. The mother is optimistic about her employment prospects in Brazil. Hopefully the child will benefit from an improvement in the financial circumstances of both parents in the future, although historically the financial benefits for the child in Australia have been limited because of the father’s dependence upon a disability pension and the mother’s impediments to employment outlined earlier, which include homelessness.
On all the evidence I am satisfied that travelling on an annual basis to Australia from Brazil would be onerous for the child having regard to his age but in particular his special dietary needs and medical issues. The father has family in Brazil and has travelled with the mother and the child in the past to visit the maternal family. He has the capacity to fund a return annual airfare for the child to Australia. On his own evidence it would appear that he has the capacity to fund his own travel to Brazil each alternate year. He did not refer to any other obligations or reasons why he could not travel to Brazil to visit the child each alternate year.
I reject the father’s proposal that he raised in the alternative, at the conclusion of the trial, that he spend time with the child at the home of the paternal grandparents in Brazil. This is not realistic, practical or appropriate. The father’s proposal does not take account of the fact that the mother is the primary attachment figure for the child. The father spending overnight time with the child has not been tested. The proposal also completely overlooks the medical issues and special needs of the child. This is an example of the father’s lack of child focus. There was no evidence about the paternal grandmother or her capacity to accommodate the father and child in Brazil.
The Independent Children’s Lawyer proposed at the conclusion of the trial an order that the mother be restrained from changing the child’s name, but no submissions were made by any party on this matter. There is no evidentiary foundation to make such an order and I decline to do so.
Counsel for the Independent Children’s Lawyer proposed a number of orders which would impose mandatory requirements on the mother to obtain medical reports from the R Hospital and to liaise with the child’s treating medical practitioner to determine his physical and psychological readiness to spend increased time with the father. Having regard to my finding that the mother has acted responsibly in relation to the child’s medical and emotional needs, I consider it unnecessary and inappropriate to impose any further obligations upon the mother. She has been diligent in pursuing medical treatment for the child and accepting the advice of Ms E. The mother cannot be criticised in her care of the child in very difficult circumstances.
There is no evidence of any need to make the order sought by the Independent Children’s Lawyer that the mother engage with medical specialists for the child. I do however make an order that the mother give authority for the father to have direct access to medical information about the child through the treating specialist, given the historical difficulties between the parties in communicating information about the child’s medical treatment and needs.
I will also make orders for the spend time arrangements for the child with the father in Australia, but I consider that requiring visits to Australia every year would be too onerous for the child given his medical and dietary needs. The parties may choose to vary these orders in the future according to the child’s needs, but for the foreseeable future I propose to make orders providing for travel to Australia each alternate year.
I propose to make orders regarding the time to be spent by the child with the father in Brazil to accommodate visits of about one month which appeared to be what was envisaged by the father in the alternative.
The mother will need time to make arrangements for the relocation. There were no submissions specifically addressing the mechanics of the relocation, other than a reference to the school year in Brazil beginning in February 2016. I consider that it is in the best interests of the child for him to spend time with the father before the relocation in accordance with the interim orders made by consent of the parties.
I propose to make orders for the child’s passports held by the mother’s solicitors to be returned to the mother to give effect to the orders. It is also necessary in my view for the Independent Children’s Lawyer to remain engaged for a period of two months to assist the parties pending the relocation.
The father has lived in Australia for 20 years and is in receipt of a disability support pension. From this I infer that he would have difficulties financially supporting himself in Brazil. There was no clear evidence about whether the father had considered relocating to Brazil. He gave evidence that his mother lived in Brazil and that he had lived in Brazil and worked there. He has also travelled and stayed there for holidays with the mother and child in the past. The father also referred incidentally to Brazil being a dangerous place to live. There was insufficient evidence to make any finding about this.

I certify that the preceding three hundred and thirty two (332) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered 14 January 2016.

Associate:

Date: 14 January 2016

Annexure A

The applicant father relied upon the following documents:
·    Father’s Amended Initiating Application filed on 27 April 2015;
·    Affidavit of the father filed 27 April 2015;
·    Affidavit of the father filed 13 June 2014;
·    Family Report dated 15 January 2015; and
·    Affidavit of the father filed 28 August 2015.
The respondent mother relied upon the following documents:
·    Mother’s Amended Response to Final Orders filed on 1 December 2014;
·    Notice of Risk of Family Abuse filed by the mother on 19 March 2014;
·    Affidavit of the mother filed 17 March 2014;
·    Family Report dated 15 January 2015; and
·    Affidavit of the mother filed 17 September 2015.
·    Exhibit A: E-mail sent by the mother to the father on 6 November 2012, Portuguese version and English translation
The Independent Children’s Lawyer relied upon the following documents:
·    Psychological evaluation by Dr F dated 14 July 2015 and filed 11 September 2015; and
·    Family Report of Mr G dated 15 January 2015.
·    Exhibit ICL1: Children’s Contact Service L Report dated 11 February 2015;
·    Exhibit ICL2: Intervention Order by the police against the mother made at Suburb K Magistrates’ Court dated 15 October 2012 for 12 months;
·    Exhibit ICL3: Certificate of Completion of Lifeworks’ presented to the father dated 19 July – 2 August 2014;
·    Exhibit ICL4: letter from Dr J dated 9 October 2012 regarding the child; and

· Exhibit ICL 5: Intervention Order by the police against the father made at Suburb K Magistrates’ Court dated 15 October 2012 for 12 months.

[2016] FamCA 483

14 January 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies