Coren & Aslett (No 3)

[2024] FedCFamC1F 735

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Coren & Aslett (No 3) [2024] FedCFamC1F 735

File number(s):

BRC 1530 of 2022

Judgment of:

HOWARD J

Date of judgment:

27 November 2024

Catchwords:

FAMILY LAW – PARENTING – Where the mother is a citizen of Country C – Where the child is an Australian citizen – Where the father is an Australian citizen – Where the mother’s Visa status in Australia is uncertain – Where the mother’s application for a Protection Visa was rejected by the Delegate of the Minister for Home Affairs – Where the mother has filed an appeal against that decision – Where the mother seeks the Court’s permission to relocate the residence of the child to Country C in the event that she is not permitted to remain living in Australia – Where the mother wants to remain living in Australia and wants to increase the child’s time with the father to alternate weekends and half holidays – Where the father seeks an Order which would gradually see his time with the child increase to an equal time Order – Parental responsibility considered – Where an Order for sole parental responsibility in favour of the mother is in the child’s best interests – Where it would not be in the best interests of the child for an equal time Order to be made and nor would it be practical to make such an Order given (amongst other things) the poor level of communication between the parties – Where the Court concluded it will be in the best interests of the child to return to Country C with the mother in the event that the mother is no longer permitted to live in Australia – A consideration of appropriate parenting Orders in the event the mother and child live in Country C – A consideration of the possibility of “mirror Orders” in Country C and the steps that would need to be taken to ensure Orders can be made and enforced in Country C – A discussion relating to the desirability of a Ministerial Intervention (if necessary) to enable the mother to obtain a Visa to remain living in Australia with the child.

Legislation:

Family Law Act 1975 (Cth) ss 4AB(a), 60B, 60CA, 60CC, 60CG

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

Division:

Division 1 First Instance

Number of paragraphs:

69

Date of last submission/s:

4 November 2024

Date of hearing:

25, 28, 29 and 30 October 2024

Place:

Brisbane

Counsel for the Applicant:

Mr Coe

Solicitor for the Applicant:

Mr Duffield, Transition Family Lawyers

Solicitor for the Respondent:

Self-Represented Litigant

Counsel for the Independent Children's Lawyer:

Mr Woods

Solicitor for the Independent Children's Lawyer:

Ms Rayment, ELR Law

Table of Corrections
11 December 2024	In the above table, the Solicitor for the Applicant, “Ms Plint” has been replaced with “Mr Duffield”.

ORDERS

BRC 1530 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS COREN

Applicant

AND:

MR ASLETT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	27 NOVEMBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That by no later than 4.00pm on 4 December 2024, the Independent Children’s Lawyer shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to the Court at …@... and to the parties.

2.That the matter shall be listed for Mention at 10.00am on 11 December 2024 for the hearing of submissions in relation to the wording of the Final Orders and in relation to the possible registering of those Orders in Country C.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOWARD J

BACKGROUND

1. The applicant mother is Ms Coren (“the mother”). The mother was born in 1980 in Country C.

2. The respondent father is Mr Aslett (“the father”). The father was born in 1982 in Australia.

3. The parties met online in 2020. I accept that the parties commenced cohabitation in or about mid-2020. By May 2021 the parties had separated under one roof and the parties remained living under one roof until August 2021.

4. The parties have one child together. The child’s name is X born 2021. The child was born in Australia and is an Australian Citizen. The child is also eligible for Country C citizenship.

5. The parents have been unable to agree on parenting orders.

6. The mother came to Australia in 2019 on a student visa. In December 2023 the mother applied for a Protection Visa. In September 2024, the Delegate of the Minister for Home Affairs rejected the mother’s application for a Protection Visa. The mother has appealed that decision.

7. During the course of the trial both parents amended their position in relation to the parenting orders sought.

8. By the end of the hearing the mother sought orders whereby the child would live primarily with her and initially spend supervised time with the father progressing to unsupervised time, leading up to alternate weekends and half school holidays. The mother also sought an order for sole parental responsibility. These are the orders that would operate in the event that the mother and child are living in Australia.

9. In the event that the mother is required to return to Country C, the Mother sought the permission of the Court to relocate the residence of the child to Country C. The Mother did also seek orders that would permit the father to spend time with the child in Country C. If such a scenario eventuated, the mother also sought orders for electronic communication between the child and the father.

10. This was a welcome change of heart on the part of the mother. The Mother had initially sought an order for supervised time and, at one stage, the mother had even sought an order that the child spend no time with the father.

11. As for the father, he commenced the trial seeking an order that the child would live with him on a primary basis. Eventually, having listened to the evidence of the expert (the Family Report Writer, Ms B) the father amended his position and sought an increase in his time with the child –with his time to be initially supervised at a contact centre twice a week leading up to, eventually, a week about equal time arrangement from September 2026.

12. The final orders sought by the mother are contained in exhibit 12. This is a document entitled ‘Applicant Mother’s Proposed Minute Of Orders Sought’.

13. The final orders sought by the father are contained in Exhibit 3.

    PART VII FAMILY LAW ACT 1975

14. Part VII of the Family Law Act 1975 Cth (“the Act”) deals with children. The objects of Part VII are contained in section 60B. That section states that:

    “(1)The objects of this Part are:

    (a) to ensure that the best interests of children are met, including by ensuring their safety; and

    (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

    Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2023, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

    The Convention is not replicated in the Act. I did not have the benefit of any submissions made during the course of the trial - referrable to the Convention.

15. Some of the highlights from the Convention which the Courts in Australia will now be obligated to give effect to include the following:

    1.By Article 6 of the Convention – parties to the Convention recognize that every child has the inherent right to life.

    2.By Article 6 – the parties to the Convention shall ensure to the maximum extent possible the survival and development of the child.

    3.By Article 7 the child, amongst other things, and, as far as possible, has the right to know and be cared for by his or her parents.

    4.By Article 9 the parties to the Convention – shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

    5.By Article 9 Clause 3, the parties to the Convention – shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

    6.By Article 12 Clause 1 - the parties to the Convention shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    7.By Article 18 Clause 1 the parties to the Convention are required to use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

    8.Article 19 Clause 1 places obligations on the parties to the Convention to take steps to protect children and such parties are required to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

16. There are many other Articles and Clauses within the Convention which are or could become relevant in a parenting case in this jurisdiction. In the context of this case there is no need to consider the Convention in any more detail. The final Orders that will be made by the Court will give effect to the Convention.

    SECTION 60CA OF THE ACT

17. Section 60CA of the Act refers to the paramount consideration. That section states:

    “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

    SECTION 60CC

18. Section 60CC of the Act sets out how the Court is to determine what is in the children’s best interests. Section 60CC relevantly states that:

    “Determining child’s best interests

    (1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:

    (a) consider the matters set out in subsection (2); and

    (b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).

    General considerations

    (2) For the purposes of paragraph (1)(a), the court must consider the following matters:

    (a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

    (i) the child; and

    (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

    (b) any views expressed by the child;

    (c) the developmental, psychological, emotional and cultural needs of the child;

    (d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

    (e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

    (f) anything else that is relevant to the particular circumstances of the child.

    (2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

    (a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

    (b) any family violence order that applies or has applied to the child or a member of the child’s family.”

    SECTION 60CG

19. Section 60CG of the Act states that:

    “(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

    (a) is consistent with any family violence order; and

    (b) does not expose a person to an unacceptable risk of family violence.

    (2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”

20. Many of the sections quoted above are new sections of the Act – having commenced on 6 May 2024. There are other new sections contained within Part VII of the Act which are not relevant to these particular proceedings. Because of the young age of the child involved in this case – the sections relating to the child’s views are not relevant. Nor are those sections relating to Aboriginal or Torres Strait Islander culture.

21. I have considered all of the relevant sections and sub-sections contained within Part VII of the Act. The fact that I may not specifically refer to any particular section does not mean I have not considered that section.

22. I have taken into account the evidence of allegations of family violence. There is a good deal of animosity between the parents. The mother has provided evidence of the father’s attempts to control and coerce. I indicated during the course of the hearing that I was not satisfied that the mother had proved to an appropriate standard that the father had coerced her into working for him – and only for him. I am not satisfied to an appropriate standard that the father exercised control over the mother in respect of financial matters. Allegations of that kind are serious in nature and I am particularly mindful of the standard of proof set out in section 140 of the Evidence Act 1995 (Cth) – and in particular section 140(2)(c).

23. There are, however, other allegations of family violence (including in relation to “control”) which I am satisfied have been proved.

24. Counsel for the mother drew to the Court’s attention four separate instances of the father withholding the child from the mother.

25. The first instance occurred between approximately 6 February 2022 and 15 February 2022.

26. The second instance occurred for one day on 16 February 2023.

27. The third period of withholding occurred from 10 March 2023. The length of time was a few days only.

28. The fourth instance occurred in January 2024. On that occasion the father held the child from 12 January 2024 until 30 January 2024.

29. At the time of the first withholding the child was only one year old. The Father says he was concerned that the mother and child may have been living in the mother’s motor vehicle. The father says he was also concerned because he noticed that the mother had possession of a food bank voucher from a charity. Annexure “[MC]2” of the mother’s trial affidavit contains relevant text messages from that time. In my view the father did not have a sufficient reason to withhold the child. There is no evidence to suggest that the mother was not able to care for the child at that point in time. There is no evidence to suggest that the mother could not afford food. There is no evidence that the mother did not have appropriate accommodation for herself and the child. Even if the mother had accessed a food bank – given the current cost of living in Australia – this is certainly nothing to be ashamed of. It is not to be used as a criticism of the mother. Unfortunately, the conclusion I have reached is that the father has been constantly on the look out for reasons to criticise the mother.

30. Withholding the one year old child from the mother – in circumstances where the mother was one of the child’s primary attachment figures – shows a lack of understanding on the part of the father as to the developmental needs of the child.

31. As to 16 February 2023 (the second instance of withholding) – the father said the child was unwell and he was therefore prevented from returning the child to daycare. Apparently, the daycare facility is unwilling to accept children if they are unwell. This may have been the case and I am not prepared to make a finding against the father in that particular instance.

32. As to the third instance of withholding (10 March 2023) – I am not satisfied that the father has provided any reasonable explanation for such conduct. The mother was forced to file an Application in a Proceeding on 15 March 2023 seeking a recovery order. As to the filing of the recovery order, the mother’s evidence is contained from paragraph 171 of the mother’s trial affidavit filed 8 July 2024. In those paragraphs the mother states:

    “171. I did so because I was concerned about [X] being continually exposed to conflict between me and [Mr Aslett], as well as the lack of stability in the parenting arrangements as [Mr Aslett] decided when and if he would drop off [X].

    172. I believed it harmed both our relationships with [X], these constant breaches of her trust, when I would tell her I will see her in the evening and then [Mr Aslett] did not return her, or when [Mr Aslett] would tell [X] he will see her and did not follow through.

    173. [Mr Aslett’s] views and comments about everything I did for example, [X’s] food, clothes, education, or whether she watched cartoons or not, were negative. I was worried this could be very damaging if [Mr Aslett] kept saying these things in the presence of [X].”

33. I accept this evidence from the mother. The mother’s concerns – as raised in these paragraphs of her Affidavit – are understandable. Indeed in paragraph 175 of her trial affidavit the mother makes the point that the father has also withheld the child on 3 additional occasions during 2022 – namely on 19 May 2022; on 26 May 2022; and on 22 June 2022. These occasions are in addition to the four occasions referred to above.

34. Senior Judicial Registrar Best made an interim Order on 17 March 2023 – requiring that the father’s time with the child be supervised. That Order was in place until May 2023 when the need for supervision was removed.

35. As to the fourth main incident of withholding – January 2024 – I note that the mother delivered the child to daycare on 9 January 2024. The child was supposed to be returned to the mother by 12 January 2024 (or thereabouts). The father withheld the child and maintained that he was justified in doing so because the father noticed an apparent mark or wound on the child. To begin with, in December 2023, the father had complained about what looked to be a bite mark on the child’s arm. There is no indication that the mother caused such harm. In January 2024 the father emailed the mother’s then solicitors stating that when he had collected the child on 9 January 2024 – he had noticed what he described to be an “infected wound […]”. The father stated the wound was circular and had the circumference of a cigarette. The father gave evidence in relation to this. The father gave the strong impression that he was inferring that it was in fact a cigarette burn. He told the Court he had seen many cigarette burns on people at his job in the past. During oral submissions the father sought to deny that he had inferred that the child’s injury was as a result of a cigarette burn.

1. I do note that the father says that he consulted a general practitioner via Zoom and that the general practitioner said that the cause of the red mark on the child’s arm was unclear. That was the upshot of the father’s evidence. My attention has not been drawn to any note or letter from the general practitioner. The father said he applied medication and the mark or injury resolved. The father contacted many government agencies – but he did not seem to ask the mother whether she knew how the injury occurred. There is evidence contained in Exhibit 1 (at or around pages 86 to 111 of the Independent Children’s Lawyer tender bundle) and at also annexure “[MC]23” to the mother’s trial affidavit which is relevant to this issue. That evidence (in Exhibit 1 and in annexure “[MC]23”), relates to a note from the childcare centre dated January 2024. This states that the child was walking on rocks in a garden when she fell and her arm was scratched or marked in some way. It seems to me that the evidence of the childcare centre note is sufficient to show that the child’s injury (the one described by the father as the circumference of a cigarette burn) occurred at the childcare facility. It was nothing more then a childhood mishap.

2. The father was supposed to take the child to a particular medical centre – but he did not. He did a Zoom call with another general practitioner. His conduct in that regard was in breach of an Order made by Senior Judicial Registrar Best.

3. In my view there was no proper justification for the father holding the child over between 12 January 2024 and 30 January 2024.

4. The Family Report Writer, Ms B, was of the opinion that the father’s conduct in withholding the child shows that the father lacked insight.[1] It shows that the father lacked insight into the developmental needs of the child. It showed that the father lacked insight into the harm that can be done to the child by keeping the child away from one of her primary attachment figures.

   [1] Transcript 29 October 2024, page 143, lines 46-47.

5. The father’s lack of insight can also be seen in relation to another aspect of the evidence. After the making of interim Orders of 30 January 2024 by Senior Judicial Registrar Best – the child’s time with the father was to be supervised. The father decided not to take up the opportunity of seeing the child at the contact centre. By the Order itself (30 January 2024) the father could have seen the child once a week supervised at the contact centre.

6. The father was asked during the course of the trial about his reasons why he did not attend at the contact centre. The final hearing in this case commenced on Friday 25 October 2024. The father had not seen the child since 30 January 2024. That is, for a period of nine months the father chose not to see the child at the contact centre. This meant that the father had not seen the child for most of 2024. The father gave the following reasons, -

   1.The father complained that every time Senior Judicial Registrar Best made an Order – the father felt that he had ended up worse off.

   2.Secondly, the father said that the mother had made many accusations against him.

   3.Thirdly, the father said that he was worried about what the contact centre would say about any visits between himself and the child at the contact centre.

   4.Finally, the father said that he has had terrible experiences at contact centres in the past.

7. I came to the conclusion the father’s decision not to spend time with the child at the contact centre during 2024 was not a child focussed decision. The decision had more to do with the father’s own needs, wants and perceptions. Again, this shows a lack of insight on the part of the father. By failing to spend time with the child during 2024 (after 30 January) the father has, once again, failed to appreciate the developmental needs of the child. The father has, in the past, been one of the two significant adults in the child’s life. There is evidence from Ms B (which I accept) to the effect that both parents were, effectively, primary attachment figures for the child.[2] For the father then to deprive the child of time with him during 2024 was a decision that could potentially cause emotional harm to the child.

   [2] Transcript 29 October 2024, page 147, lines 6-7.

8. In relation to the father withholding the child (on the occasions outlined earlier in these Reasons for Judgment) and in relation to the father’s decision not to spend any time with the child at the contact centre during 2024 – each of these decisions by the father shows that the father lacks insight. Each of these decisions by the father shows that the father is not child focussed.

9. In relation to both the withholding of the child and the failure by the father to see the child at the contact centre during 2024 – I accept the evidence of the Family Report Writer to the effect that, because such conduct can be construed as an attempt by the father to control the situation and because such conduct had the potential to cause the child emotional harm and because of the father’s history of criticising the mother – for those reasons that type of conduct by the father can be seen to be a form of family violence.[3] Note section 4AB(a) of the Act. The father’s failure to spend time with the child at the contact centre during 2024 was not, I find, a step taken by the father with the intention of causing harm to the child. This is where the difficulty comes in for the father. The harm to the child was caused by the father’s lack of insight. At the very least I think it is fair to say that the father was reckless in his decision. Reckless in the sense that he failed to adequately take into account the emotional development and the emotional wellbeing of the child – when he decided not to spend time with the child at the contact centre during 2024.

   [3] Transcript 29 October 2024, page 144, lines 39-47; page 145, lines 1-14.

10. The assessment of the evidence above leads me to a discussion of the risk of harm to the child. The father’s conduct can, it has been seen, be characterised as creating a risk of harm to the child – in particular to the emotional wellbeing of the child. I have already noted that this has come about as a result of both the father’s decision to withhold the child (on many occasions) and by the father’s decision not to spend time with the child at the contact centre during 2024. The question for consideration is – what order, if any, can be made in order to diminish the risk of harm to the child? In my view granting the mother liberty to apply for a period of three years is the kind of Order that will reduce or minimise the risk of harm to the child. It was apparent from the father’s evidence in the witness box and from comments and statements he made from the bar table (the father having attended the trial as a Self-Represented Litigant aided by a McKenzie friend for a period of time named Mr D) that the father has a particular view of the administration of justice in Australia so far as it relates to family law. One way to describe the father’s position is that he was keen to put forward a “narrative”. The father went so far as to indicate, during the course of his evidence, that he considered that “the system” was geared against him and, I infer from his evidence that he was of the view that “the system”, as he saw it, was geared against fathers. To be fair to the father, he didn’t take up too much Court time with this particular narrative. Mind you, there were many occasions when the Court had to step in and get the father back on track so far as the actual issues for determination were concerned.

11. The Family Report Writer expressed other opinions which I accept. There are certain other orders that can be made that will further minimise the risk of harm to the child. First and foremost is the proposed order that the father’s time, following the final hearing, will, for an initial period of time be supervised at a contact centre. The Independent Children’s Lawyer seeks such an order. The Independent Children’s Lawyer seeks that the time for supervision be set at three months. That is the opinion of the Family Report Writer.[4] The mother seeks an order that supervised time be extended to six months. The father himself is willing to agree to an order that his time with the child be supervised until the beginning of December 2024. That would equate to approximately one month of supervision.

    [4] Transcript 29 October 2024, page 144, lines 4-6; line 22.

12. The Family Report Writer, Ms B, gave evidence on two separate occasions during the course of the final hearing. Ms B gave evidence on Tuesday 29 October and Wednesday 30 October 2024. Ms B’s family report is dated September 2023. I was impressed with the evidence of Ms B. Ms B was well versed with the facts relating to this family. Ms B took a fair and balanced approach in relation to her evidence. On more than one occasion Ms B made it very clear that the child enjoys her time with both parents and that the child has a good relationship with both the mother and the father.[5] In the circumstances, I consider it appropriate to accept the opinion evidence of Ms B and put in place an Order for supervised time for a period of 3 months following the making of a final Order.

    [5] Transcript 29 October 2024, page 147, lines 1-4.

13. A further proposed order designed to minimise the risk of harm to the child is the Order relating to daytime contact between the father and the child following the end of supervision. Two days per week of daytime contact was the opinion expressed by Ms B during her oral testimony.[6]

    [6] Transcript 29 October 2024, page 145, lines 37-46.

14. Daytime contact limits the child’s exposure to the father for a further period of time. The daytime contact requirement will be in place for a period of three months beyond the end of the supervised contact time.

15. I should point out that the father will be required to actually attend the three months of supervision at the contact centre. The Orders must work in a progressive way. If the father fails to attend at the contact centre in accordance with the Order – then his time will not progress to unsupervised daytime contact.

16. Furthermore, the father will also be required to exercise time for the daytime contact in accordance with the Order. If he fails to follow the Order then his time with the child will not progress from daytime contact to overnight contact.

17. In relation to overnight contact – I accept the evidence of Ms B that the overnight time should commence after the period of daytime contact.[7] It is within the broad range of options open to the Court for the Court to conclude (as I have) that it will be in the best interests of the child if her time with the father progresses after three months of daytime contact to alternate weekend time from Saturday morning until Sunday afternoon. That arrangement should stay in place for a three month period. Following that three month period the child’s time with the father should progress to alternate weekends from after school (or daycare) on Friday until before school (or daycare) on Monday – each alternate weekend.

    [7] Transcript 29 October 2024, page 146, lines 35-38.

18. Limiting the father’s time to alternate weekends will also act as a mechanism to reduce or minimise the risk of harm to the child. The father has, as noted, on occasions, expressed negative views concerning the mother. The minimisation of the child’s exposure to the father will therefore reduce or minimise risk of harm to the child in that regard. The kind of harm that the child could suffer if exposed to criticism of the mother by the father would include the possible risk of emotional harm.

19. By the end of this trial – both parents (along with the Independent Children’s Lawyer) were proposing a similar framework of orders – especially in the event that the child and the mother remain living in Australia. The mother, the father and the Independent Children’s Lawyer proposed a progression of the child’s time with the father from supervised time; to daytime contact; to overnight time. One major difference related to the father’s proposal that the overnight time would progress to equal time by late 2026. Ms B was recalled to give further evidence on Wednesday 30 October 2024. The Court took this approach so that this aspect of the father’s proposal could be specifically put to Ms B for her opinion. Ms B’s view was that this was not an appropriate case for an equal time order. The lack of meaningful communication between the parents was one of the primary reasons. I note Ms B’s evidence during oral testimony concerning this issue. At page 218 of transcript on 30 October 2024 Ms B stated –

    “So the worries that I have – so the – based on the information, I have there’s a number of factors that lean more towards, at this point, that she’s going to be – there will be more benefit for her in a primary base and that before there’s – so what would – we would need to see – what I would suggest there would need to be seen is there a period of being anchored in a primary base and then a period of showing that the parents are able to share information constructively, communicate constructively, that there be no conflict, and that there would be no further changes or disruption or – so if there was – all of those factors in place and there were safeguarding measures in place that supported that then, in the future, potentially in a year two years, let’s say by September next year, she could work towards a shared care because she would be going into that sort of age group that could tolerate more time but, at this point, it’s quite difficult to say because it really depends on her level of vulnerability which is a big concern at this point particularly…[8]

    So the real worry that I would have is, if there is a shared care arrangement, if that continues, particularly where a shared care arrangement is going to really demand the parents to share information, to have a high level of communication and to have low conflict, that would be the real concern because she’s still at such a young age where she’s going to need her parents to have a high level of communicating and particularly about the worries, say, you know, yesterday was presented with information that she had these minor sort of injuries or she had – and then there was this high level of mistrust about – and low communication between the parents about what had happened there.  So my concern is, in a shared care arrangement, that happens again and [X] is then embroiled in this high conflict and low communication about things like that that might present.”[9]

    [8] Transcript 30 October 2024, page 218, lines 3-16.

    [9] Transcript 30 October 2024, page 218, lines 25-35.

20. I accept this evidence from Ms B. I do not consider that this is an appropriate case for an equal time order. For an equal time order to work successfully – the parents would have to be able to communicate in a civil and meaningful way. These parents have not been able to demonstrate an ability to do this in the past. In addition, the father’s lack of insight and lack of child focus are also matters that militate against the making of an equal time order. It will be in the best interests of the child for the father’s time to be limited to alternate weekends. There should also be an order for half school holidays. This seems to me to be within the general scope of the opinions proffered by Ms B. An order for half school holidays is also sought by both of the parents and the Independent Children’s Lawyer.

21. This is a case where the mother, who will be the primary carer, will also have sole parental responsibility. The father’s lack of insight (as outlined earlier); the father’s criticism of the mother; the father’s attempts to control the living arrangements for the child; and the poor level of communication between the parents – all of these findings lead me to conclude that in the best interests of the child, the mother must have sole parental responsibility.

22. The kind of order proposed (the progression as outlined above from supervised time to daytime contact to alternate weekend time) – is an order that will maintain stability for the child. This question of stability for X was highlighted during the evidence of Ms B.[10] I accept that the proposed order (as recommended by Ms B) will ensure stability for the child.[11] Stability for the child is, really, only one aspect of the best interests of the child.

    [10] Transcript 29 October 2024, page 143, lines 6-10.

    [11] Transcript 29 October 2024, page 146, lines 40-42.

23. The discussion to date relates to a set of circumstances where the child, along with the mother and the father are all living in the one city. At the moment that city is Brisbane. Those kinds of orders could equally be applicable to a town in Country C – in the event the mother must leave Australia and the child goes with her and the father also moved to Country C. This leads me to the next discussion.

    WHAT ORDERS WILL BE APPROPRIATE IN THE EVENT THAT THE MOTHER IS REQUIRED TO LEAVE AUSTRALIA?

24. The overwhelming weight of the evidence leads me to conclude, that, in the event that the mother must leave Australia – then the best interests of the child will be served if the child travels with the mother to live in Country C. I am well aware that there is evidence that the child has a good and close relationship with both parents. There is evidence that the child had more than one primary attachment figure – namely the mother and the father. But that evidence from Ms B was only relevant up to and including the time of the family report in late 2023. Ms B, when updated with the facts following the events of 30 January 2024, came to the conclusion that the best interests of the child will be served by living primarily with the mother and spending less time with the father.[12] This is because of the father’s lack of insight and lack of child focus as outlined earlier in these Reasons for Judgment.

    [12] Transcript 29 October 2024, page 147, lines 36-39.

25. When it comes to the question of an international relocation (or indeed any relocation) – such cases are, like all parenting cases, decided in accordance with the provisions of Part VII of the Act. The best interests of the child remain the paramount consideration. When the Court takes into account the father’s conduct in withholding the child (in 2022, 2023 and 2024) combined with the father’s conduct in deciding not to spend time with the child at the contact centre during 2024 – the Court is led to the inevitable conclusion that the father lacks insight and lacks the ability to understand the needs of the child and lacks the ability to understand that his conduct may cause emotional harm to the child. In those circumstances there is really no alternative. The inevitable outcome, in the event that the mother is forced to leave Australia, will be that the child will accompany the mother to live in Country C. This is also the view of the family report writer.

26. I am encouraged by the fact that, in that eventuality, the father has indicated to the Court that he will take steps to move to live either in South America (he suggested Country E) or in North America (he suggested the United States of America). At least he would be in a similar time zone to the child and there would be the possibility of more frequent contact.

27. The orders proposed by the Independent Children’s Lawyer are orders which, it is said, would be applicable if the child is living in Australia or in Country C. They would only be applicable if the child is living in Country C – and the mother and the father are also living in Country C. The father had not given any indication during the course of the trial that he was planning on moving to live in Country C.

28. The mother provided proposed orders in the event that the child is living (with the mother) in Country C. They are contained in Exhibit 12. Draft Order 13 under the heading “IF THE MOTHER IS REQUIRED TO LEAVE AUSTRALIA” of Exhibit 12 suggests that the following final parenting order could be made. The mother’s proposal states: -

    “13. That the child spends time with the Father as follows:

    (a) The child spend time with her father, at all times as agreed between the parents in writing and failing agreement as follows:

    (i) Until the child commenced prep schooling (or equivalent), when the father travels to [Country C], for a period of not not more than 4 consecutive night at a time, over the duration of the time the father is in [Country C]; and

    (ii) Once the child commence school (or equivalent);

    A. For a period of no more than 14 nights, if during the school term; and

    B. If not during the school terms, then for the half of the [Country C] school holidays in even numbered years and the second half in odd numbered years.

    (b) The father will provide the mother with 4 weeks written notice of his intention to travel to [Country C] and will advise the mother where he will be staying with the child.”

1. I have had regard to all of the proposals by the parties and by the Independent Children’s Lawyer. In my view the mother’s proposed order could be in place and will cover the possibility that the father is not living in Country C. In addition, the Independent Children’s Lawyer’s proposed orders (contained in proposed order 5 of Exhibit 11) could be included in the final orders – in the event (not currently articulated by the father) that the father decides to move to live in Country C.

   POSSIBLE ORDERS TO BE MADE IN COUNTRY C

2. Before finalising this matter I would like to hear further from the parties in relation to the possibility of orders being made both in Australia and also in Country C. I will hear further from the parties and each party will be given a chance (along with the Independent Children’s Lawyer) to make a submission.

   CONCLUSION

3. I have had regard to all of the relevant matters contained in Part VII of the Act relating to this case. I have considered the question of family violence and the question of the risk of harm to the child. All relevant provisions of the legislation have been considered by the Court.

4. The parties will be given a further opportunity to make another submission (as noted) relating to the possibility of the making of orders – or the registering of orders – in Country C. I will direct that the Independent Children’s Lawyer forward to the Court a draft order to reflect the Reasons for Judgment.

   MINISTERIAL INTERVENTION

5. This Court respectfully requests that, in the event that it becomes necessary, the Minister for Home Affairs for the Commonwealth of Australia give favourable consideration to intervening and granting to the mother an appropriate visa to permit the mother to remain living in Australia. This seems to me to be in Australia’s national interest because X is an Australian citizen. It is, in my view, in the national interest for Australian children to be able to live in Australia and, in appropriate cases and with the appropriate safeguards in place, for Australian children to be able to live with and spend time with both of their parents. It is also my view that exceptional circumstances exist and the welfare and best interests of this Australian child will be best served if her mother is permitted (if necessary by Ministerial Intervention) to remain living in Australia. I have included this paragraph merely as a request to the Minister. I fully appreciate that Ministers have many matters to consider when deciding whether or not to intervene in any given case.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       27 November 2024