Petrov & Rudetsky [2017] FamCA 947 (23 November 2017)

Last Updated: 14 December 2017

FAMILY COURT OF AUSTRALIA

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Lethlean
SOLICITOR FOR THE APPLICANT:	Elisa Rothschild  Lawyer

ORDERS

(1) All previous parenting orders in relation to B born … 2010 (“the child”) be discharged.

(2) The mother have sole parental responsibility for the child.

(3) The child live with the mother.

(4) The mother be permitted to relocate to Country W with the child.

(5) Pending the child’s relocation to Country W he spend time and communicate with the father as follows:

1. each Monday and Thursday afternoon from after school until 6:30 pm; and
2. each Saturday, for four hours between 9.00 am and 1.00 pm.

(6) Upon the child relocating to Country W he spend time and communicate with the father as follows:

1. in Australia on one occasion during the two year period commencing on the date of the child’s departure from Australia and every two year period thereafter:
   1. on dates and at times to be agreed by the father and the mother but not including overnight time unless by agreement or order of the Court;
   2. the father to be responsible for the child’s return air travel to Australia with:
      1. the mother to provide the father with a travel itinerary for the agreed dates of travel not less than 90 days prior to the child’s proposed date of departure for Australia setting out details and the cost of the child’s return air travel; and
      2. the father to pay the cost of the child’s return air travel to the mother not less than 60 days prior to the child’s proposed date of departure for Australia;
   3. in the event that the father does not pay to the mother the cost of the child’s return air travel pursuant to paragraph 6(a)(ii) hereof the mother be permitted to cancel the tickets for the child’s return air travel and the father’s time pursuant to paragraph 6(a) herein be suspended on that occasion unless otherwise agreed in writing by the mother; and
   4. the mother to travel to Australia with the child at her expense for the purposes of the child spending time with the father in Australia pursuant to paragraph 6(a) herein.
2. in Country W on up to three occasions per year during the child’s school holidays:
   1. the child to spend time with the father between the hours of 10.00 am and 5.00 pm on at least four days per week on such days as may be agreed by the father and the mother;
   2. such time to be supervised by a member of the father or mother’s family in Country W; and
   3. the father to provide the mother with a minimum of 28 days’ notice of any impending travel to Country W, the address at which he will be staying with the child and a telephone contact number on which the mother can contact the child when he is in the father’s care.

100. Skype communication twice a week for approximately half an hour, telephone communication at all reasonable times and email communication.

(7) That for the purposes of the child’s time with the father pursuant to these orders he be and is hereby restrained from:

1. bringing the child into contact with the paternal grandmother, Ms Rudetsky; and
2. driving a motor vehicle when the child is in his care.

(8) The mother record the father’s name on all school records where the child is enrolled at school and provide the father with copies of all school reports and school photographs obtained from the school at her expense.

(9) The mother keep the father informed of any medical emergency or illness suffered by the child and provide the father with details of the child’s medical practitioners.

(10) Pending the child’s departure for Country W, the father and the mother be and are hereby restrained by themselves their servants and/or agents from removing the child B born … 2010 from the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place and retain the name of the child B born … 2010 on the Airport Watch List at all points of arrival and departure in the Commonwealth of Australia.

(11) Not less than 72 hours prior to her proposed departure for Country W with the child, the mother forward copies of the travel itinerary for herself and the child to the Independent Children’s Lawyer and upon receipt of same the Independent Children’s Lawyer forthwith forward a copy of the said itinerary to the Australian Federal Police AND IT IS REQUESTED THAT, upon notification in writing by the Independent Children’s Lawyer advising of the travel arrangements together with a copy of the itinerary for the child’s travel to Country W, the Australian Federal Police remove the name of the child B born … 2010 from the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia, the child’s name to be removed as and from 12.00 am on the date of travel.

(12) As soon as practicable, the Court forward a sealed copy of this order to the Australian Federal Police.

(13) The Independent Children’s Lawyer be forthwith discharged upon the child’s departure from the Commonwealth of Australia.

(14) That all extant applications be dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

(15) 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 thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FILE NUMBER: MLC 7150 of 2015

Applicant

And

Respondent

And

REASONS FOR JUDGMENT

1. The father was born in Country C in Europe immigrating to Australia with his family when he was six years of age. He has otherwise lived in Australia and is an Australian citizen. The mother in this case was also born in Country C, immigrating to Country W with her family when she was 13 years old. Prior to her move to Australia in 2009, she had otherwise lived in Country W. The child B was born in Australia in 2010 (“the child”), is currently seven years of age and has always lived in Australia, except when he, the father and the mother spent three months in Country W in 2011. The mother now wishes to return to Country W with the child. The father opposes the mother’s application.
2. The issues I must determine in this case are:
   1. Whether the mother should be permitted to relocate to Country W with the child and whether it would be in the child’s best interests to do so, having regard in particular to him being able to maintain a meaningful relationship with the father;
   2. The impact upon the mother of not being permitted to relocate to Country W with the child and how that might impact upon her parenting capacity; and
   100. The impact of the father’s intellectual disability upon his parenting capacity and what time the child should spend with him, be that in Australia or Country W.
3. The choices in this case, as in many relocation cases, are stark, made even more so by the parties’ limited financial resources and how that impacts upon their welfare and that of the child, their respective proposals and ultimately the outcome of this case.

BACKGROUND

4. The father was born in 1983 and he is 34 years of age. He receives disability benefits and he says he receives income from part time employment as a driver. It is the mother’s case that the father earns more than he discloses. I will refer to this issue in more detail later in these reasons.
5. The mother was born in 1984 and is 33 years of age. After completing her secondary education, the mother studied to work in the service industry. Prior to moving to Australia, she was employed in retail. The mother has been the child’s primary carer since his birth and has not been otherwise engaged in employment. Although the mother’s case is that she holds fears for her mental wellbeing if she is not permitted to relocate to Country W with the child, she is physically in good health.
6. It is common ground that when the father was 11 months old he had pneumonia and was in a coma for 10 days, as a result of which he says he “developed learning difficulties”. In late December 2016, the father was assessed by Dr D, a neuropsychologist, who diagnosed him as having a mild intellectual disability. The father’s intellectual disability has been a significant issue in this case. However, it is important to emphasise that it is only one of the issues in the case and it is not the fact that the father has an intellectual disability that will determine the matter, but rather the effect that disability has had and is likely to have in the future on his parenting capacity which is the focus of the Court’s decision.
7. The father has been receiving support from E Care since 2014. On 21 October 2014, his allocated case worker applied to the Victorian Civil and Administrative Tribunal (“VCAT”) for a guardianship order appointing the State Trustee as administrator of his financial affairs. On 7 December 2015 that order was extended with the father’s consent, albeit he says he has “since become more independent in paying some of my own bills…” and that he intends to contact VCAT with a view to discharging the order.
8. In late 2016 Dr D prepared a further report in which he advised that in his opinion, the father lacked legal capacity as a result of which the Public Advocate was appointed on 31 March 2017 as the father’s case guardian to conduct the case on the father’s behalf.
9. Both the father and the mother were psychiatrically assessed by Dr F for the purposes of these proceedings. The father was diagnosed with a mild intellectual disability, mild social anxiety disorder and obsessive-compulsive personality traits. Dr F diagnosed the mother with social anxiety disorder and obsessive-compulsive personality traits.
10. The father and mother met and commenced a relationship in Country W in or about 2008. The father was visiting his father who lives in Country W. In or about 2009, the mother travelled to Australia and spent approximately six months in Australia with the father. The father and mother kept in touch on a regular basis after her return to Country W and in November 2009, after a further visit by the father to Country W, the mother moved to Australia. The parties were married in Melbourne in 2009.
11. When the child was approximately seven months of age, the father, mother and the child travelled to Country W to visit the mother’s family. They were in Country W for approximately three months spending time with the maternal grandmother, the maternal grandfather and the paternal grandfather. The father alleged that the mother does not have a good relationship with her family, in particular the maternal grandmother and that during their stay, they had had to leave the maternal grandmother’s home after about a month because of the maternal grandmother and the mother’s arguments. This is denied by the mother and it was her evidence that they were based at her mother’s home but stayed with other family members so that they would get to spend time with all of them. Having heard the maternal grandmother give her evidence and having observed the mother during that evidence, I accept the mother’s evidence that she has a good relationship with her mother and her family generally.
12. The mother says that when she and the father returned to Australia from Country W on this occasion, she noticed a change in the paternal grandmother. She deposed as follows:

She had lost a lot of weight, was not eating properly, and barely slept. She had changed her clothing style, her behaviour became erratic, and she was often argumentative with others, including myself.

13. The mother further deposed that when the child was approximately 16 months old, she and the father moved in with the paternal grandmother, as the paternal grandmother wanted to rent out the unit in which the father and mother had been living. She said that at that time, she and the father were told by the paternal grandmother’s husband that large sums of money were missing from his family’s bank accounts and that the paternal grandmother and her niece had been using methamphetamines. The mother deposed that “…[o]ne night I woke up and needed a drink of water. As I was going downstairs, I heard a noise. I stopped, turned, and saw [Ms Rudetsky] smoking ICE.” She also said that on many other occasions she had seen the paternal grandmother go into the toilet with a bag, she would then hear a lighter being ignited, and noticed that her mood changed and that when she came out her pupils were dilated.
14. The mother also deposed that after the paternal grandmother’s husband obtained an intervention order against the paternal grandmother and she was arrested for breaching that order, she asked the father and the mother to give false evidence on her behalf at the hearing of those charges. She said that when they refused she “heard her [the paternal grandmother] yelling at [the father]”. The mother further deposes that the paternal grandmother said that

…as soon as she came home, she was going to throw away all our belongings. True to her word, at the end of the day we returned to [Ms Rusedsky’s] house, but [the husband] was unable to open the door. [Ms Rusedsky’s] had changed the locks and had knowingly rendered us homeless.

15. The mother also said that the father had told her

…he was incredibly angry and upset about his mother’s actions and swore that he wouldn’t even attend her funeral when she died. He said he wanted nothing to do with her, and he was very sorry our son didn’t have any grandparents to support his upbringing.

Although the father admitted that he was upset with his mother at the time, he denied he had made the statements attributed to him by the mother. During cross-examination, he also denied or at the very least minimised his mother’s behaviour and what had occurred at this time.

16. In his affidavit, the father denied the paternal grandmother’s drug use and it was his evidence that he and the mother decided to leave his mother’s home before his mother returned to the property and that they took most of their belongings with them.
17. The mother tendered a report sent by the father’s social worker Ms G to VCAT in support of the application for the appointment of someone to manage the father’s financial affairs. In that letter Ms G reported as follows:

In the last 2 years, [Mr Rudetsky], [Ms Petrov] and [the child] have experienced homelessness, financial difficulties and have witnessed violence and police involvement as a result of drug use by his mother and extended family members, resulting in increased stress.

18. In his affidavit, the father did say that at the time they became homeless he felt torn between the mother and his mother. This is consistent with what he is reported to have told Ms G about his relationship with his mother. Ms G stated that “while he does not always agree with his mother, he does not want to argue with her as he is afraid she will not help him in the future”. It may also explain his reluctance to give evidence that was in any way critical of his mother. In her report Ms G also noted her concerns about the paternal grandmother having had access to the information provided to her by the father. Given my findings about the paternal grandmother’s texts to the mother, which I will refer to later in these reasons, I share her concerns. On that basis, I do not propose to refer in any further detail to the contents of the letter in these reasons suffice to say that in my view, what the father was reported to have told Ms G is consistent with the allegations made by the mother about the paternal grandmother’s drug use, her having locked the father and mother out of her home and her behaviour generally.
19. The mother says that after they were made homeless by the paternal grandmother, the father’s mental health deteriorated, he became increasingly impatient and short tempered and that the child was exposed to their conflict. She says that when she told the father she wanted to separate, he threatened to kill himself if she moved away. The mother says that although she stayed because she felt responsible for the father, their relationship continued to deteriorate until August 2014 when they separated on a final basis.
20. Although the mother says that she supported the child spending time with the father, she also says that she had concerns about the father’s parenting capacity and wanted that time to be supervised. The mother says that the father refused to spend time with the child at H Contact Centre, as she proposed, and says the father threatened to make her life hell if she insisted upon him doing so as a result of which she then agreed to supervise the child’s time with the father. The mother’s evidence is that rather than use this time to develop his relationship with the child, the father used the time to question her about her personal life and often started arguments with her about their relationship, struggling to come to terms with the fact that the relationship was over. My observations of the father’s evidence is that even now he has not totally accepted, however unrealistic that might be, that his relationship with the mother is over and I am satisfied that, at the very least, he has an unrealistic expectation of how their relationship might work in the future.
21. When the mother raised the possibility of relocating to Country W with the child the father (who says she was threatening to do so irrespective of his wishes) instructed his lawyers to issue an application seeking to place the child’s name on the Airport Watch List. That application was filed in the Federal Circuit Court of Australia on 29 July 2015 and an order to that effect was made on 11 August 2015. That order remains in force and the mother has not visited her family in Country W since 2011.
22. Thereafter the mother filed a Response to the father’s application on 10 August 2015 in which she sought orders permitting her to relocate to Country W and on 5 November 2015 the matter was transferred to this Court.
23. The child’s time with the father continued to be supervised by the mother until interim orders were made by consent on 23 August 2016. These orders remain in force. The orders essentially provide that the child spend time with the father each Monday and Thursday afternoon from after school until 6.30 pm and each Saturday, for four hours between 9.00 am and 1.00 pm.
24. The matter was first listed for final hearing in February 2017 but adjourned to July 2017, as the parties had not completed the psychiatric assessments pursuant to the orders made 23 August 2016.

MATERIAL RELIED UPON

25. In her Outline of Case document, the mother sought to rely upon a lengthy list of affidavits previously filed by or on her behalf and various subpoenas that have been issued in the proceedings. At the final hearing counsel for the mother sought and was permitted to rely upon:
    • her Affidavit filed 26 May 2017 (“the mother’s Trial Affidavit”);
    • her Affidavit filed 20 June 2017 (“the mother’s Reply Affidavit”);
    • her Financial Statement filed 24 May 2017;
    • Affidavit of Mr J Petrov filed 27 March 2017;
    • Affidavit of Ms K Petrov filed 27 March 2017;
    • Affidavit of Ms L filed 19 May 2017;
    • Affidavit of Dr M filed 29 March 2017;
26. The father relied upon the following material:
    • his Affidavit filed 9 June 2017 (“the father’s Trial Affidavit”)
    • his Financial Statement filed 9 June 2017
    • Notice of Risk filed on 14 June 2017;
    • Affidavit of Ms Rudetsky filed 9 June 2017;
    • Amended Application in a Case filed 29 March 2017;
27. The Independent Children’s Lawyer relied upon the following material:
    • Department of Health and Human Services 67Z Report dated 19 June 2017;
    • Affidavit of Dr D filed 21 December 2016;
    • Affidavit of Dr F filed 13 July 2017; and
    • Family Report of Ms N dated 10 July 2017;
28. The father, the mother and the Independent Children’s Lawyer filed and relied upon outlines of their respective cases.
29. The standard of proof the Court must apply in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that in applying that standard, the Court must take into account the nature of the cause of action, the subject matter of the proceeding and the gravity of the matters alleged.
30. In this case, there are serious allegations made by both parties. I am also mindful of the serious nature of the subject matter of the proceedings and how significant the outcome of the proceedings will be to the parties and the child.

EVIDENCE

The mother’s evidence

31. The mother’s fragility was plain to see. The mother gave her evidence through the prism of her desire to relocate to Country W with the child or perhaps even more significantly, her fear of orders being made requiring her to remain in Australia and how she would cope if that were to happen. Ms N said of the mother that “…her longing for her family, and in particular her mother’s support, is overwhelming”. That is exactly how she presented in the witness box. At times, the mother appeared to be almost in pain when she was asked questions about or confronted with the possibility of having to remain in Australia.
32. Both Dr F and Ms N described the mother’s response to their questions as being “over inclusive” and Ms N said that she tended to repeat herself in order to make her point. Their descriptions of the mother accord with my observations of her evidence.
33. That being said, I am satisfied that she was doing her best to give truthful evidence. I am supported in that view by the evidence of the maternal grandmother Ms K Petrov, who I found to be a forthcoming and convincing witness and in particular with regard to her evidence about the father. She was quite frank about what the mother had told her about the history of her relationship with the father, but also described the father as a “normal person”, which was consistent with the mother’s evidence that she had not told her parents that the father has an intellectual disability.
34. The maternal grandmother also said that it was her understanding from what the mother had told her, that the father loves the child and is a good father. This is consistent with the evidence of Ms N as to the mother’s understanding of the importance of the child’s relationship with the father. The maternal grandmother’s evidence was also consistent with the mother’s evidence that she has always had a good relationship with the father and that she had maintained regular contact with him until approximately 12 months ago, notwithstanding the breakdown in her daughter’s relationship with him. This evidence was not the subject of any real challenge by the father.

The father’s evidence

35. On the other hand, I have significant reservations about the father’s evidence. To some extent, as it was with the mother, the father’s evidence was shaped by his desire to have the child remain in Australia. I am also satisfied that the father’s intellectual disability may have impacted, at least to some degree, upon his capacity to give evidence and almost certainly upon his level of insight. However, there were also a number of matters in relation to which I have formed the view that the father may have been less than frank or at the very least, somewhat evasive. These include, but are not limited to, his evidence in relation to his working arrangements and income, his evidence about his driving record, his evidence about having the child stay overnight with him and as previously referred to, his evidence about the paternal grandmother, her actions and attitude to both he and the mother.

Father’s Income

36. The father’s evidence about his work was directly contradicted by the paternal grandmother. Whereas the father said it was a couple of years since he had taken a booking, the paternal grandmother said that it was two to three weeks since his last the last time he worked. The evidence about the father driving clients of the business either owned or managed by the paternal grandmother on those days he was not otherwise working was, in my view, also far from transparent.
37. Having heard the evidence of the father and the paternal grandmother, I am satisfied on the balance of probabilities that the father’s evidence about his income was not truthful. I am also satisfied that whether he has arranged his work and/or income to ensure that his income does not reduce his disability benefits or to minimise his child support obligations, he is either not receiving income to which he would be otherwise entitled and/or there are arrangements in place for him to be remunerated in other ways. This is consistent with the mother’s evidence as to the financial arrangements between the father and his mother when she first arrived in Australia and the father and his mother’s evidence about his trip to Asia in 2016. Whatever the reason for these arrangements, one of the significant effects for the purposes of the decision the Court must make (whether or not that is intentional) is that the mother receives only minimal child support.

Father’s Driving Record

38. In her affidavit filed 20 June 2017 the mother deposed as follows:

On many occasions when we were together in the car, I had witnessed [the husband] answering phone calls or sending messages on Facebook while he was driving. When I protested this behaviour and told him to pay attention to his driving, [the husband] would yell at me “Don’t teach me how to drive”. [The child] would also tell his father to drive slower and to hold the steering wheel with both hands. [the husband] often received infringements for speeding, and I know that when he had exhausted all of his demerit points, he would nominate his mother as the driver and use her demerit points.

39. Counsel for the father submitted that the Court could have little confidence in the mother’s allegations as to the father’s driving in circumstances where she had:
    1. failed, in her evidence, to provide any particulars of the alleged incidents; and
    2. made no reference in the various text messages in evidence before me to concerns about the father’s driving.
40. Although the mother did not provide particulars of those occasions when she says she was in the car and the father was speeding, or refer to her concerns about the father’s driving in the text messages annexed to her affidavit, this does not necessarily lead me to conclude that firstly, she was not concerned about his driving or that these concerns were not valid. I also accept the mother’s evidence that she was not as concerned about the father’s driving when she was present in the car because she could tell him not to use his phone or send messages and to slow down. This is significant in circumstances where the bulk of the text messages annexed to the mother’s affidavits, and referred to by counsel, were sent prior to the orders made in August 2016, when the child started spending time with the father without the mother being present and when the order was made prohibiting him from driving with the child. In these circumstances, the fact that there is no reference in the text messages to the father’s driving is of limited assistance and does not lead to the conclusion that because there is no complaint, the mother was not concerned or, more importantly, that there were no problems with the father’s driving.
41. It was also submitted by counsel for the father that if the father had been picked up by police for speeding when the mother was in the car, it would not have been possible for him to have nominated the paternal grandmother as the driver. Whilst that submission might have some force if that was what the mother had said, that was not her evidence. It was her evidence that the father often received infringements and that he would nominate the paternal grandmother when he had exhausted his demerit points. The mother did not say that those infringements occurred when she was in the car with the father.
42. I found the father’s evidence in relation to this issue evasive and unconvincing, in particular, rather than denying that he had received infringements for speeding, he kept referring to the fact that there were no infringements recorded on the Roads Corporation Certificate. The mother was cross-examined about this issue at some length. However, the substance of her evidence remained unchanged.
43. Whilst I accept that the father’s Roads Corporation Certificate in evidence before me does not show the father as having had any demerit points, I am not satisfied on the balance of probabilities, particularly in circumstances where the father is driving a car which is not registered in his name, that he has not, as the mother asserts, received infringements for speeding.

Overnight Time

44. The father’s evidence with respect to the child having spent overnight time with him was also vague and unconvincing. In his trial affidavit the father states that the two most recent occasions of overnight stays were in December 2015 and January 2016. When it was put to the father by the Independent Children’s Lawyer that the mother had concerns about the child spending overnight time with him, the father stated that the mother did not need to be worried, as the child has spent “a lot of occasions overnight with me.” He gave the example of the child staying overnight from New Year’s Eve to New Year’s Day with him. When the father was questioned further as to when the child’s other overnight stays with him had occurred, he said they had occurred last year. He could not recall the dates but stated the child has been staying with him, “not once, not twice, many occasions.” In re-examination the father was asked to clarify which New Year’s Eve the child spent overnight time with him and he could not remember if it was a year or two years ago.
45. The mother, on the other hand, deposed that the child has only spent one overnight with the father on New Year’s Eve in 2015. She said that she only allowed the child to stay overnight on the condition that the father and child would stay “quietly safe” at the father’s house, but had been told the next day that the father had taken the child to a friend’s New Year’s Eve party leaving him in the house without supervision. The mother’s evidence about this issue was, in contrast to the father’s evidence, clear and unequivocal and I prefer her evidence.

The evidence of the father and mother generally

46. In all of the circumstances and having regard to my reservations about the father’s evidence, when there is a dispute between the evidence of the father and the mother, I prefer the mother’s evidence.

The paternal grandmother’s evidence

47. The father relied upon the affidavit sworn by his mother and filed on 9 June 2017 in support of his application that the order which precludes him bringing the child into contact with his mother should be discharged. The paternal grandmother’s evidence with respect to the text messages the mother says she sent her following separation was of particular significance to that issue, but also in relation to the credit of the paternal grandmother generally and the father’s insight given what he says about the paternal grandmother and the orders he seeks with respect to the child having contact with her. The paternal grandmother was not a good witness and at the conclusion of her evidence I was left with little confidence in the veracity of that evidence.
48. The mother annexed to her affidavit a translation of some text messages she said she had received from the paternal grandmother. There were two messages which in my view were of particular concern. The first of those messages which appears to have been sent at 14.39 on 5 June 2014 read as follows:

I never addressed you with the familiar form of “ty”.

And if you continue to do what you are doing, then drug addicts will burn your ugly face with acid when you least expect it. I know where you live. That will be the cheapest way of teaching you a lesson. I will also have a talk with your dad as soon as I can get his phone number. I don’t think he’ll be very pleased with your tricks.

49. The second of those messages, which appears to have also been sent on the same day, read as follows:

I’ll come there and then there’ll be fun and games.

You’ll start to die and you won’t know the cause.

You will rot alive, you bitch, for what you’ve done to my son. I curse your bones.

50. The paternal grandmother, in reply to the mother’s allegation that she had sent these abusive messages after the father told her that the mother intended to leave him, deposed as follows:

In relation to paragraph 72, I agree that I sent a Facebook message to [Ms Petrov’s] family begging [Ms Petrov] to leave [the husband] ‘quietly’ and that I only have one son. However, I deny that I threatened to send people to ‘throw acid’ on [Ms Petrov]. I also deny that I sent the text messages annexed to [Ms Petrov’s] affidavit at “IP-03” I recall that whilst I was in Country X, my husband [Mr O] used my phone on a number of occasions and I recall that he sent [Ms Petrov] a text message about money from my phone on one occasion but not threatening or abusive messages.

51. However during cross-examination when the paternal grandmother was asked about these text messages, she said as follows:

I saw it later [the text messages] because like maybe two days later my phone was because when I was working in Country X…this phone was a working phone we had to little bit business going from this phone. I had a few girls there and I was upset my son called me…calling me few days in a row saying how upset he is, what she doing to him, how she is killing him, she’s blackmailing him…

52. When counsel for the mother challenged the paternal grandmother in relation to her evidence that she did not know who sent the text messages, she responded as follows:

I believe, a few girls at work, Country C speaking who knows I very upset and I asked girls who did it, girls who did it and there was quiet….It was three girls Country C speaking in the office with me and my husband who also speak and I believe, I have some concern that it probably was him but no one said to me yes.

The paternal grandmother was also questioned as to why, after having become aware of those messages which it was suggested, correctly in my view, could be interpreted as threatening, she had not contacted the mother to explain what had happened or to reassure her she was not in danger. The paternal grandmother responded that the mother “is not the girl that is scared of anything”, that she “let her know” and that she rang her son and told him about the messages, but he was unable to speak to the mother himself as she was throwing him out of the house. When counsel for the mother put to the paternal grandmother that the text messages should be adopted as her voice because she allowed them to happen, the paternal grandmother still did not accept any responsibility for those messages or the impact they may have had upon the mother.

53. There is no mention in the paternal grandmother’s affidavit that three Country C speaking girls at the paternal grandmother’s workplace may have sent the text messages. Although the paternal grandmother said that she had told her son, there was also nothing in his affidavit about what the paternal grandmother said she had told him, nor did he make any reference to it during cross-examination. Nor did the paternal grandmother provide a reasonable explanation as to why, if she was aware that these messages had been sent from her phone, she had not contacted the mother to reassure her that either she had not sent them or that she had no intention of harming the mother. In all of the circumstances, I am satisfied on the balance of probabilities that these text messages were sent to the mother by the paternal grandmother.
54. The paternal grandmother’s evidence in relation to the father’s employment and his income was also, in my view, at best confusing and at worst an attempt to mislead the Court. Although she said she did not own the business or the car the father drives, she repeatedly referred to it in terms which suggested ownership. When this was put to her she suggested that was because she was the practice manager. When the paternal grandmother was asked questions about the father’s income, she firstly said she did not know because she was not in charge of the payroll but thereafter when it was put to her that in those circumstances she would know, she volunteered that he earned between $100-$150 a week. Significantly the father’s evidence suggested that his mother both employed him and owned the car.
55. In all of the circumstances, I am satisfied that where there is a dispute between the evidence of the paternal grandmother and the mother, I should prefer the mother’s evidence.

LEGAL PRINCIPLES

56. Although the focus of this case has been the question of whether the mother is permitted to relocate to Country W with the child, that does not alter the fact that this is a parenting case like any other and the Court must weigh up the parties’ proposals and make the orders it determines to be in the child’s best interests. The child’s interests are the paramount, albeit not the only, consideration (U v U [2002] HCA 36; (2002) 211 CLR 238).
57. As in any parenting case the child’s best interests are to be determined by reference to the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). Not all of those considerations will be relevant in each case. However, to the extent that they are relevant in each case, they are, as Murphy J stated at paragraph 35 in Harridge & Harridge [2010] FamCA 445 the “…signposts and touchstones within which the broad enquiry as to the best interests must be conducted”. In conducting that broad enquiry, the Court must give greater weight to the need to protect the child from physical or psychological harm and from abuse, neglect or family violence.

PROPOSALS

58. The Independent Children’s Lawyer provided a list of proposed orders in their Outline of Case filed on 27 July 2017 and in an Aide Memoire provided during the course of the proceedings, which articulated in greater detail the orders that were sought should the mother be permitted to relocate with the child to Country W.
59. The Independent Children’s Lawyer sought orders that in the event that the mother is permitted to relocate to Country W, the father spend time and communicate with the child as follows:
    1. up to three times per year during the child’s school holidays in Country W with the father to be responsible for the costs of his flights to and from Country W;
    2. the father’s time with the child in Country W to be between the hours of 10.00 am and 5.00 pm on days as agreed being at least four days per week;
    100. once every two years in Australia with the mother to pay for her own flights to Australia to accompany the child and the father to pay the costs of the child’s airfare;
    4. Skype or Facetime once per week at 12.00 noon Country Wi time each Sunday; and
    5. as otherwise agreed.

In the event that the mother was not permitted to relocate to Country W with the child, the Independent Children’s Lawyer proposed the following orders for the father to spend time with the child:

1. each Tuesday and Thursday from after school until 7.00 pm;
2. on weekends:
   1. each Saturday from 10.00 am until 3.30 pm for a period of three months. Prior to this time commencing, the father attend upon Dr P or such other provider or psychologist as Dr P may recommend with that counselling to remain confidential; and
   2. thereafter subject to a positive parenting assessment, each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday;

60. It is the mother’s case that the Airport Watch List should be discharged, she have sole parental responsibility and that she should be permitted to relocate to Country W with the child. The mother proposes that the father can come to Country W at any time subject to him giving her appropriate notice and she did not seek to limit the number of times he could come to Country W to spend time with the child. The mother agreed with the orders proposed by the Independent Children’s Lawyer that the father spend time with the child in Country W between the hours of 10.00 am and 5.00 pm for at least four days a week. However, she seeks that the father’s time with the child in Country W be supervised by a family member. The mother otherwise proposed the father communicate with the child through Skype twice a week for approximately half an hour, telephone communication at all reasonable times and email communication.
61. The father’s case is that the mother should remain living in Australia with the child. Counsel for the father indicated that the father’s overall position was in those circumstances as proposed by the Independent Children’s Lawyer at the beginning of these proceedings as articulated above.
62. In the event that the mother is permitted to relocate to Country W with the child, it is the father’s case that the child spend time with him as follows:
    1. up to three times per year during the child’s school holidays in Country W with his preference being that this time include overnight time at the home of a family member familiar to the child with that family member to be in substantial attendance;
    2. once every two years in Australia, with the mother to pay for her own and the child’s return flights to Country W;
    100. electronic communication at least twice a week.

PARENTING CAPACITY

Mother’s parenting capacity

63. Albeit, it is the father’s case that the mother does not do all that she should to promote his relationship with the child, there is no dispute that the mother not only has the capacity to care for the child, but that he is both loved and well cared for by the mother. This is notwithstanding what she says about the lack of physical, financial and emotional support available to her in Australia and the stress and distress she reports experiencing living in Australia without that support. It is common ground that the child should continue living with the mother, whether he relocates to Country W or remains in Australia.
64. Although the father asserted that the mother had excluded him from participating in the child’s life, for example in relation to the child’s education and his counselling, that is not supported by the evidence. The father collects the child from school and has access to the child’s teachers at that time. The mother also gave evidence that the school counsellor had the father’s contact details and would send her and the father emails in relation to the child’s counselling. The father conceded in cross-examination that he had spoken to the school counsellor earlier this year or last year and that they discussed the child’s bed wetting, the parents’ relationship with the child, how the child is with the father and what they like to do together. I am satisfied that the mother has acted as a responsible parent should in this regard.

Father’s parenting capacity

65. The father’s parenting capacity is less clear. In his neuropsychological assessment dated 14 December 2016, Dr D reports that the father was diagnosed with an intellectual disability when he was 13 years of age and attended a special school. The father’s premorbid functioning was assessed using the Advanced Clinical Solutions Test of Premorbid Functioning. Dr D said in summary as follows:

[Mr Rudetsky] has a Mild Intellectual Disability (Intellectual Developmental Disorder). He presented with some areas of relative strength with respect to verbal and non-verbal capabilities, conversely he has areas of weakness with regard to attention, working memory and speed of information processing. [Mr Rudetsky] also presents with global deficits across other domains of cognition. He has marked difficulties with memory. In particular his initial acquisition of material across both visual and verbal modalities is below normative age based expectations. He is able to hold some information across time, although this continues to be below age-based expectations. His verbal learning was also markedly below expectation. He was able to retain a small amount of information, although was not practically assisted with the provision of any prompts. [Mr Rudetsky] demonstrated difficulties with higher-level functioning. He was not able to prospectively plan his approach to some problem-solving activities. He was also noted to require a greater amount of time to complete tasks. He had difficulty conceptualising the basis of some assessment tasks. He demonstrated a reduction in mental flexibility. He also demonstrated marked difficulty dividing his attention. [Mr Rudetsky] has reduced insight into his cognitive difficulties. He does not appear to be aware of the nature and extent of his impairments, and potential limitation they have on his functioning.

66. With respect to the father’s parenting capacity, Dr D said as follows:

[Mr Rudetsky’s] level of cognitive function would not be expected to preclude him from participating in parenting activities, however equally he will require support and some monitoring. His performance on cognitive tasks indicate that his deficits in abstract thinking, memory and executive functioning will mean he has a somewhat concrete approach to problems and solutions. He may also have difficulties effectively communicating particularly as his child grows up. He may have some difficulty regulating his emotions. His level of intellectual functioning suggests there may be some reduction in his ability to assess and understand risks and demonstrate appropriate judgement, especially with novel and changing situations such as responding to unexpected dangers. Consequently it is recommended he will require some support with complex day-to-day decisions. It is unclear the extent of support he currently receives with activities of daily of living. It is noted he has an administration order in place which presumably assists with banking and financial management.

[Mr Rudetsky] will require some assessment to ensure that he can act appropriately in terms of supervising a child, and is aware of his son’s care requirements. He will require information to be presented in a way that it can be understood and referred to if required (simplified language, easy to read notes). He will benefit from the use of routines and a systematic approach to activities such that they become quite familiar. He will also benefit from simplification of activities to manageable steps, and the practical demonstration of activities rather than only describing them. It will be important for him to demonstrate an understanding of important instructions, rather than just rely on him saying he has understood. If extended independent access to his child is considered, he should functionally be assed [sic] with his son to ensure he meets [the child’s] needs. It will be important to provide interventions in a positive way, so that [Mr Rudetsky] sees them as optimising his parenting and time with his son…

67. Dr F, who psychiatrically assessed both the father and the mother, reported that the father, when asked why he had been ordered to undertake a psychiatric assessment, said as follows:

I am a perfectly normal person, I believe I have no psychological problems, I don’t consider myself stupid, I am a normal man, I am a [health worker] and I have a knowledge of anatomy, I agree that I have dyslexia with reading and writing problems and short-term memory loss.

68. Dr F then said in his conclusion of the father’s assessment as follows:

During the interview [Mr Rudetsky] was keen to underline the fact that in his opinion he is not disabled, asserting that “a person with disability does not know anatomy, I drive, I look after myself and I support my child.” He was irritated by the fact that he was having to undertake so many assessments compared to the psychiatric assessment asked of his ex-wife. He was keen also to underline how much he cares for his son and also how keen he is for his son to remain in Australia, “I never had a father figure, I want the child to have one”. [Mr Rudetsky] denies being abusive and feels that when he has been angry it has been understandable, given the provocation of his former wife. He has been particularly distressed by the inability to drive with his son, given that for several years his wife would frequently request that he drive her to various meetings and appointments. When asked about his reluctance to accept parental support, his reply was “I don’t need it, I don’t need someone to tell me what to do with my son”.

[Mr Rudetsky’s] difficulties primarily related to his intellectual disability which has been formally assessed elsewhere. His psychiatric issues are not major, however, even during the interview it became apparent that he can become stubborn and oppositional and certainly is reluctant to accept that his intellectual disability imposes significant limits on his life. [Mr Rudetsky’s] determination to minimise the extent of his difficulties and his refusal to accept appropriate support has the potential to limit his development as a person and as a parent. In my opinion, he would benefit from an opportunity to work with a clinical psychologist to learn some anxiety and emotional management strategies and to accept parenting advice.

69. The father also told the family consultant Ms N that “I have a disability. I have dyslexia but I can read and write quite well. I live independently, I drive a car, I cook for myself and [the child].” Although the father confirmed with Ms N that an order had been made appointing an administrator to manage his financial affairs, he also said he did not agree with the decision to appoint an administrator and that it had been required not because of any intellectual disability, but because of the emotional distress he was experiencing at the time of separation. In cross-examination the father also attempted to minimise the significance of his intellectual disability, referring to it as dyslexia. Somewhat surprisingly, given that in 1997 the father’s verbal, performance and Full Scale IQ scores had been formally assessed as falling into the intellectually disabled range and it had been recommended that he attend a special school, the paternal grandmother also referred to the father as having had some developmental delays and dyslexia, but “nothing intellectual major things happened”. It was her evidence that he had only recently been diagnosed as being intellectually disabled.
70. Neither Dr D nor Dr F were required for cross-examination and I accept their unchallenged evidence.
71. The mother expressed a wide range of concerns about the father’s parenting capacity and both the child’s physical and emotional safety and wellbeing. The mother’s concerns include the following:
    1. that the father does not take adequate steps to ensure the child’s safety for example, the mother says that the child complains about the father crossing the road with him when the pedestrian lights are red and that before the orders were made in August 2016 and she was present during the child’s time with the father, he would often forget to put the child’s seat belt on. The mother also deposes that the father does not provide the proper child restraint when travelling with him by taxi or Uber;
    2. that the father does not adequately supervise the child and is easily distracted leaving the child unattended;
    100. that the father has limited patience with the child and both hits him and calls him names such as “stupid” and “idiot”, describing him in his presence as “disobedient”, a “bad boy” and a “naughty boy”;
    4. that the father says negative things about the mother in the child’s presence involving him in the conflict;
    5. that the father has difficulty managing the child and when he cannot cope will ask to return him early to the mother;
    6. that the father changes and cancels arrangements for spending time with the child at the last moment, leaving it for the mother to rearrange her commitments in order to either collect the child or to make other arrangements at short notice for the child’s care with no appreciation of the impact upon the child and his level of anxiety; and
    7. that the father tries to force the child to do things he is not comfortable doing and go places he does not want to go, becoming angry when the child is reluctant to do so.
72. Whilst the father denied most of the mother’s allegations, I am satisfied that there is some foundation to her complaints about the father’s parenting capacity. It is certainly clear from the messages passing between the father and the mother that there is some substance to her complaints about the father changing arrangements at the last minute and being unable to spend time with the child when he would otherwise be doing so. The mother also annexed to her affidavit a message in which the father tells the mother to come and collect the child because he is not listening to him.
73. Of perhaps even greater significance is that although the mother conceded that there were occasions when the child’s time with the father went well, there was also evidence from Dr Q (the child’s psychologist) in relation to what the child had told her about the father both hitting and kicking him and calling him stupid. This was referred to by Dr Q in her email to the mother’s solicitor dated 21 July 2017, which is in evidence before me.
74. I am satisfied that the father’s parenting capacity is limited and given his intellectual disability and lack of insight, both in relation to that disability generally and what that means in terms of his capacity to care for the child, I am left with little confidence that there is likely to be any significant improvement, at least in the foreseeable future. Although the father now says he is prepared to have his parenting capacity assessed, in accordance with the orders the Independent Children’s Lawyer seeks, in any event, even on his own case assuming he is found to have the necessary capacity, the child would be spending time with him one night per week and each alternate weekend for one night and block periods of four days during school holidays. This on any view would leave the mother with primary responsibility for the child on an ongoing basis.

FAMILY VIOLENCE AND INTERVENTION ORDER PROCEEDINGS

75. Following separation, the father and mother both sought and obtained intervention orders against each other. The father deposes that on 29 September 2015, the mother applied for and was granted an interim intervention order against him naming both herself and the child as affected family members. In that application the mother alleged as follows:

THE RESPONDENT IS MY HUSBAND AND WE HAVE BEEN SEPARATED FOR 1 YEAR. WE HAVE ONE CHILD TOGETHER. YESTERDAY BEING THE 28/9/15 MY SON AND I WERE GOING TO THE MELBOURNE SHOW AND THE RESP WANTED TO ATTEND. I THOUGHT IT WOULD BE GOOD FOR MY SON FOR US TO GO TOGETHER. WHEN I WAS PURCHASING THE TICKETS THE RESP WASN’T HAPPY WITH THE ARRANGEMENTS THAT I HAD MADE AND STARTED SHOUTING AT ME. I FELT THREATENED AND WAS WORRIED ABOUT MY SON WHO WAS PRESENT DURING THE RESP SCREAMING AT ME. I ASKED THE RESP TO STOP AND DECIDED I DIDN’T WANT TO GO TO THE SHOW ANYMORE. HOWEVER THE RESP MANIPULATED ME AND WE ENDED UP GOING. ON 25/9 WE HAD DROPPED OUR SON OFF TO KINDER AND THE RESP STARTED ABUSING ME ON THE WAY BACK. HE WAS CALLING ME NAMES SUCH AS PROSTITUTE, IDIOT AND THAT I WAS STUPID. I WAS SO SCARED THAT HE WAS GOING TO ATTACK ME PHYSICALLY. HE WAS MAKING THREATS SUCH AS HE WOULD TAKE ME TO COURT AND THAT HE WOULD TAKE MY CHILD. WHEN I TOLD HIM TO CALM DOWN HE SAID THAT HE DIDN’T GIVE A SHIT. WHEN THE RESP COMES TO THE HOUSE TO SEE MY SON, HE ASKS QUESTION AND LOOKS IN THE ROOMS AND LOOKS AT MY BILLS. HE ALSO ASKS MY SON LOTS OF QUESTIONS SUCH AS WHO IS AT THE HOUSE. I HAVE STOPPED HIM COMING TO MY HOUSE BECAUSE OF THIS BEHAVIOUR. THE RESP IS CAUSING ME HUGE EMOTIONAL STRESS. I AM CONCERNED ABOUT HIS BEHAVIOUR IN FRONT OF MY SON. I AM UNDER STRESS ALL THE TIME BECAUSE OF THE PRESSURE HE PUTS ON ME. IF I DON’T ANSWER HIS CALL BECAUSE IM DOING SOMETHING LIKE IM IN THE SHOWER, HE WILL MESSAGE AND BECOME ABUSIVE. HIS MOTHER HAS MESSAGED ME WHEN WE SEPARATED AND THREATENED ME. THE RESP WANTS TO CONTROL ME AND MY HEALTH AND WELL-BEING IS DAMAGED.

76. This mother’s application was fixed for hearing on 20 October 2015. On 16 October 2015 the father also applied for an intervention order against the mother. He alleged as follows:

THE RESPONDENT IS MY WIFE. I HAVE KNOWN HER FOR 6 YEARS. WE HAVE A 5YEAROLD SON TOGETHER. WE HAVE BEEN SEPARATED FOR 1 YEAR. ON 25/9/15 THE RESP AND I DROPPED OUR SON OFF AT KINDER AND HAD A DISAGREEMENT ON THE WAY HOME. THE RESP WAS YELLING AT ME CALLING ME NAMES AND CALLING ME A PROSTITUTE BECAUSE I HAVE STARTED DATING. I PULLED THE CAR OVER AND ASKED HER TO GET OUT. SHE REFUSED AND I HAD TO DRIVE HER HOME. I DO NOT WANT TO KEEP BEING YELLED AT AND ABUSED BY THE RESP. I WENT TO THE POLICE STATION IN [SUBURB R] BUT WAS AFRAID THAT IF I SOUGHT AN IVO THE RESPONDENT WOULD GET ANGRY AND RETALIATE BY KEEPING MY SON FROM ME. PRIOR TO THIS INCIDENT THERE HAVE BEEN A NUMBER OF OCCASIONS WHERE THE RESP HAS VERBALLY AND PHYSICALLY ASSAULTED ME. DURING OUR RELATIONSHIP SHE HAS BROBEN [sic] MY OPTICAL GLASSES, PUSHED ME, CALLED ME NAMES, TAKEN AWAY MY CAR KEYS. SINCE WE HAVE BEEN SEPARATED THE RESP’S BEHAVIOUR TOWARDS ME HAS ESCALATED. I HAVE AN INTELLECTUAL DISABILITY AND THE RESP HAS CALLED ME AN IDIOT, A RETARD, AN EMBARRASSMENT TO OUR SON AND A WORTHLESS FATHER. THIS ABUSE HAS OCCURRED IN FRONT OF OUR SON. THE RESP THREATENS TO TAKE OUR SON TO [COUNTRY W]. PROMTING [sic] ME TO SEEK AN AIRPORT WATCH ORDER THROUGH THE FAMILY COURT. AS A RESULT OF THIS THE RESP HAS THREATENED TO PUNISH ME. IN AUGUST THE RESP BIT ME ON AN OCCASION WHEN I WENT TO TAKE A TOY TO OUR SON. I WENT TO REPORT THE MATTER TO POLICE BUT WAS HESITANT TO BECAUSE OF HER THREATS TO KEEP MY SON FROM ME. THE RESP HAS NOW SOUGHT AN ORDER AGAINST ME AND AN INTERIM ORDER HAS BEEN MADE. I SEEK AN ORDER TO PREVENT THE RESP FROM SUBJECTING ME AND MY SON TO ONGOING DOMESTIC VIOLENCE. I DO NOT WANT TO BE ABUSED BY HER ANYMORE.

77. On 20 October 2015 an interim order was made in favour of the father and the child that the mother not commit family violence.
78. Both applications were listed for mention on 11 December 2015 and on that date, they each consented without admission to orders in favour of the father that the mother not commit family violence and in favour of the mother naming the child as an affected family member, that the father not commit family violence and that he not damage any of their property. Those orders were to remain in force until 11 December 2016. The order in favour of the father has now expired.
79. The mother deposes that on 17 August 2016 after the father continued to threaten and abuse her verbally, she applied to vary the intervention order. The grounds for the application to vary were as follows:

THE RESPONDENT HAS BEEN BREACHING THE ORDER BY INSULTING AND THREATENING ME IN FRONT OF THE CHILD. HE TOUCHED ME WITHOUT MY CONSENT AND REFUSED TO LEAVE MY HOME. HE HAS BEEN SENDING ME INSULTING MESSAGES BY PHONE. HE HAS YELLED AT ME, HAS PUT ME DOWN AND HAS BEEN BEHAVING INAPPROPRIATELY. I SEEK A FULL IVO.

That application was successful and she was granted what both she and the father describe as a full interim intervention order on that date. On 22 September 2016, the father consented without admission to that order being made on a final basis.

80. The mother deposes that notwithstanding that there was an intervention order in force, the father continued to verbally assault her over the phone, via text message and in person, including in the child’s presence. She said he called her a “fucking bitch”, “mental” and a “stupid woman” and that he also threatened to put her in a mental hospital, make her life a living hell and take the child away. The mother annexed copies of text messages sent by the father in those terms to her affidavit. The mother further deposed that on 8 August 2016 she sent the father a text message asking if he wanted to have regular visits with the child in her presence as a result of which the father telephoned her in a fit of rage saying words to the effect of “you are not allowed to do this…you fucking idiot…you don’t have rights… I will take the child from you… you are mental!” The mother says she replied that she had had enough and was going to the police. On 8 August 2016 the mother gave a statement to Constable S in relation to the father’s alleged breaches of the intervention order. The father deposes that on or about 21 August 2016 he was interviewed by Constable S at the Suburb R Police Station with a Country C interpreter and Independent Third Person present. He now faces seven charges of emotionally and psychologically abusing the mother and eight charges of using a carriage service in a harassing manner.
81. On 2 December 2016 the mother applied to extend the intervention order on the grounds that the father had breached the order and was behaving inappropriately in front of the child. On 22 December 2016 the father consented, without admissions, to that order being made which will expire on 22 December of this year.
82. At the commencement of his evidence the father sought and was granted a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) with respect to any evidence in relation to the charges he faces and any alleged breaches of the intervention order as and from 29 September 2015. Ultimately the father was not cross-examined in relation to these matters other than in a general sense as to the impact of his behaviour on the mother and the child. The reality is that the messages, which are annexed to the mother’s affidavit, speak for themselves. I am satisfied that those messages are abusive. I also accept the mother’s evidence as to the father’s abusive face to face behaviour.
83. Family violence is defined in s 4AB(1) of the Act as follows:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family (the family member), or causes the family member to be fearful.

The examples include “repeated derogatory taunts”. Whilst I am satisfied based upon what the child told Ms N and the mother’s concessions in cross-examination that the child has been exposed to loud arguments involving both the father and the mother and the conflict in the relationship is not only attributable to the father, I am also satisfied based upon the text messages annexed to the mother’s trial affidavits, which were not the subject of any challenge, that there has been family violence in this case perpetrated by the father. As previously referred to, the child told his counsellor that “[the father] will hit and kick when angry and call him stupid”. This is behaviour which is consistent with the definition of family violence. Although the father makes similar allegations against the mother and I have had regard to him having complained of the mother’s behaviour to his support worker, the numerous text messages annexed to the mother’s affidavit paint a picture not mirrored by the father’s evidence. For the reasons I have previously discussed, in so far as there is a conflict between the father and mother’s evidence about this issue, I accept the mother’s evidence.

THE CHILD’S RELATIONSHIP WITH HIS PARENTS AND THE BENEFITS OF A MEANINGFUL RELATIONSHIP WITH THEM

84. The family consultant Ms N described the interaction between the child and the mother as “warm, affectionate and mutually responsive”. Despite the mother’s anxiety in the witness box, that warmth was also obvious when she was asked to describe the child. I am satisfied that the child currently has and will benefit from a meaningful relationship with the mother on an ongoing basis.
85. Although Ms N’s observations of the child with the father suggest a somewhat less spontaneous and comfortable relationship, she also described some of their interaction as light hearted and said that they appeared to be having fun. In cross-examination she described the child and the father’s relationship as being sufficiently developed, and in those circumstances maintainable, even if the child were to relocate to Country W.
86. I am satisfied that the child currently has and would benefit from an ongoing relationship with the father, subject to what I have found are the limitations of his parenting capacity, and that relocating to Country W would be likely to have a significant impact on that relationship. It was Ms N’s evidence and she was not shaken despite determined and forceful cross-examination by counsel for the father, that the child will be able to keep his father in his mind and that his relationship with the father at this age is sufficiently developed for that relationship to be maintained, even if they are limited to seeing each other by electronic means and do not see each other in person on a regular basis. However, Ms N also said that in the absence of regular face to face contact, their relationship would be unlikely to develop further.
87. Although the mother said in cross-examination that the father can come to Country W as many times and as often as he likes to visit the child, there are issues in this case as to how often the father might be able to visit the child in Country W and the mother’s ability travel to Australia with the child, if at all. This is a possibility the Court must take into account.
88. Although counsel for the father submitted that the mother has an extremely negative view of the father which has been conveyed to her family and that both her view and their views would be likely to influence the child and damage his relationship with the father, I do not agree. Although the mother was negative about the father, she was able to acknowledge the importance of the child having a relationship with the father and I accept her evidence. This is also consistent with what she told Ms N and Ms N’s observations of the mother.

THE EFFECT OF CHANGES IN THE CHILD’S CIRCUMSTANCES AND THE PRACTICAL DIFFICULTIES AND EXPENSE OF THE CHILD SPENDING TIME WITH THE FATHER

89. There is no question that there would be significant changes in the child’s life if the mother is permitted to relocate with him to Country W. The mother’s case is focussed on the positive aspects of the relocation, such as the family support available to her in Country W, her capacity to work and support herself and the child and the child being able to have regular contact with his maternal grandparents, aunts, uncles, cousins and his paternal grandfather. Although I am satisfied that these changes will be positive for the mother and both directly and indirectly the child, not all of the changes the child will face will be positive, particularly in the short term. Not least being that he will not be spending time with the father on a regular basis as he is currently doing.
90. Counsel for the father submitted that the mother’s proposals lacked detail and were overly optimistic. Although the mother deposed that she proposes to enrol the child at the school in T Town where his cousins attend, there was no detailed evidence with respect to the school itself or what it offers. Notwithstanding that lack of detail, it is common ground that lessons at the school are conducted in Country W and that the child does not speak Country W. Both the father and the mother and their families also speak Country C and the mother’s evidence is that although the child does understand a significant amount of what is said to him in Country C, he does not speak Country C.
91. The mother’s evidence was that the child would learn to speak Country W in a matter of weeks. Although he may start learning some words, I am satisfied that he is unlikely to be proficient in the timeframe suggested by the mother. In those circumstances, I am satisfied that in the short term, in particular until he becomes more fluent in Country W, at the very least his schooling is likely to present him with significant challenges. That being said, I accept Ms N’s evidence that although change can be disruptive for children, if well managed, they adjust.
92. Notwithstanding that the mother was perhaps a little over confident about how the child would adapt to his new environment, I am satisfied that she is a caring and capable parent and would do all she could do and all that is necessary to make the transition to his new home as smooth as possible. The fact that she has managed to provide the care she has for the child, prioritising his needs, whilst having to remain in Australia, effectively against her wishes and despite her anxiety about her future, gives me confidence in her ability to do what is necessary to ease the child’s adjustment to his new life. I am satisfied that in any event there is an element of the child being likely to be happy as long as he is with his primary carer, in this case, the mother.
93. It was also submitted on behalf of the father that Country W is not a safe place for the child to live. The father relied upon newspaper reports of three terrorist attacks in the town or suburb where the mother’s family live and where she proposes to live with the child. Although the mother said she was unaware of these incidents when they were put to her, she made the point, in my view a reasonable point, that there have also been a number of what have been described as terrorist attacks in Australia and Melbourne in particular in the same period. Whilst I accept that there may be such attacks in Country W, that is just one of the matters I must consider and that would not in my view, having regard to all the other issues in this case, alone be a reason for not permitting the mother to relocate to Country W with the child.

THE FATHER’S CASE THAT THE MOTHER REMAIN IN AUSTRALIA WITH THE CHILD

94. The father’s case is that the mother should not be permitted to relocate to Country W with the child. Whilst it is true that if the Court were to accede to the father’s application, the child would continue to spend time with the father for seven hours each week as he currently does, how that relationship could develop further would depend upon the assessment of his capacity to care for the child and on that basis, is difficult to predict. I am satisfied on the balance of probabilities that in all of the circumstances of this case, the father’s involvement in the child’s care is likely to be relatively limited even if the child remains in Melbourne as he proposes he should. In any event the Court must weigh up all of the parties’ proposals and consider how they are likely to impact on the child’s welfare.

The mother’s lack of physical, emotional and financial support in Australia

95. There is no dispute that the mother has no family in Australia to support her. Notwithstanding that the evidence of both the father and the paternal grandmother was that they would be a source of emotional support for the mother and the paternal grandmother said in evidence that she loved the mother, I am satisfied that their evidence was either totally disingenuous or demonstrated a profound lack of insight. Not only have they not provided the mother with that support to date, but given the nature of the relationship between the mother and the father and the fact that she has no relationship, in my view for good reason, with the paternal grandmother, that is not a practical option.
96. The mother deposed that the father is assessed and pays $35 a month in child support and that she is “struggling financially and emotionally to keep my budget and give the child a decent education and life”. Whether the father minimises his income, which for the reasons I have discussed I am satisfied is the case, to reduce his obligation to pay child support or to protect his disability benefits, the effect is the same. Although the father told me during final addresses that he would try and work more and pay more child support, it is unfortunately too little too late and I am satisfied that if the mother remains in Australia, she is likely to remain primarily financially responsible for the child.
97. Whereas the mother speaks both fluent Country W and Country C, languages both spoken in Country W and speaks some English, she is not a fluent English speaker and required an interpreter during the hearing. Even if she had better English language skills, she has no Australian qualifications. She deposes that although she is currently in receipt of Centrelink benefits, she will be required by Centrelink to look for a job or engage in full time study which will be impossible for her to do because she has no family support, nor can she rely upon the father to care for the child, even when the orders provide for him to do so. The mother worked in the service industry in Country W and worked in retail and it is her evidence that she will be able to obtain employment in Country W. None of the mother’s evidence in relation to these matters was the subject of any real challenge.
98. The mother was cross-examined about the child having made friends at school and although she conceded that he did have friends at school and was from time to time invited to parties, the life she described with the child did sound somewhat bleak.

The mother’s mental health

99. The mother relied upon a report prepared by Ms F, a Family Casework Counsellor, Child Youth and Family Team, Inner Health Community Health Service dated 9 September 2015 which she annexed to her trial affidavit. Ms F said in that report as follows:

[Ms Petrov] describes having difficulties sleeping, feeling physically exhausted, feeling trapped in her current situation and feeling worried about her son and about their futures. The writer has begun some work with [Ms Petrov] on developing strategies to cope better under these circumstances. [Ms Petrov] stated that although attending regular counselling temporarily relieves her of her anxiety and depressed mood, these symptoms reappear when she has contact with her ex-husband.

100. Although not on affidavit, neither counsel for the father or the Independent Children’s Lawyer objected to the mother being permitted to rely upon the report nor was Ms F required for cross-examination. I note that Ms N had read the affidavit to which this report was annexed.
101. The mother also relied upon the evidence of her current counsellor Dr M annexed to his affidavit filed 29 March 2017. Dr M, who is a psychologist, said that the mother is “suffering noticeable symptoms of anxiety and depression. In the treatment it became apparent that the patient’s condition is a result of her long-lasting exposure to a series of significant stressors.” He said that the mother’s “current psychological impairment with identifiable cause falls into diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed mood (code 309.28 on DSM-5)”.
102. Dr M also said as follows:

[Ms Petrov] states that for several years she has had to deal with highly stressful situations associated with her ex-husband, the father of her child. At different stages she was a victim of domestic violence, homelessness with a toddler in hands and experienced open life threats. All documented.

As a result of her last years upheaval, [Ms Petrov] is having sleeping difficulty with insomnia and occasional nightmares featuring her child being hurt and she cannot help him-she wakes up in cold sweats, frequent muscular and stomach spasms often with breathing difficulty, crying spells, tiredness. The condition produces a feeling of guilt as the woman understands that she can be a much better mother without unnecessary stressors exhausting her.

…

[Ms Petrov] says that she is exhausted with her non-stop concern for the well-being of her son who is exposed to damaging influences, not speaking of his physical safety. The patient states that she needs to go to Country W to live with her family, preventing her child from further damage while recuperating herself to the level where she can be fully functional. She wants to be the mother in line with her values and understanding of motherhood with all the responsibilities and a healthy environment around the child. [Ms Petrov] describes her feelings as being in a jail: she cannot leave the child with the incapable father, who damages the boy, and go to [Country W], while [the child] is not allowed to leave Australia on the father’s request

…

As [Ms Petrov’s] treating psychologist, I am prepared to do my professional best to assist the patient in coping with the current stressors. Nevertheless, it is obvious that no treatment can produce an improvement of her condition unless the main stressor, inability to go to [Country W] with her son, is removed.

103. The mother also sought to rely upon the report of her general practitioner Dr V dated 26 March 2017, which was annexed to her trial affidavit. Dr V said in that report as follows:

This patient is suffering from Depression, Anxiety, PTSD due to stressful long divorce and relationships problem with her ex husband. The patient has worsening of her symptoms over many months, she feels desperate and lonely. [Ms Petrov] was exposed to aggression and ongoing family violance [sic] from her ex husband and her ex mother in law. The patient was homeless and was living in crisis accommodation for few months during this time her son was less the 2 years old. She has no friends and relatives in Australia. The relationships with her husband severely affected her healthy emotional state, she feels destroyed and ruined, unable to cope with the situation. [Ms Petrov] sees regularly psychological counsellor unfortunately with poor effect. The patient did not see her family which lives overseas for more the 5 years. Currently she does not have any support in Australia, her ex husband was abusing her for long period of time.

…

[Ms Petrov] needs to have some support from her relatives during this crisis situation. I believe that wil [sic] this improve her emotional state and psychological state of her son. [Ms Petrov] and her son would also benefit if she will move overseas together with son to live with her relatives where she will be well supported.

104. As with the report of Ms F, there was no objection taken to the mother relying upon this evidence. Nor was Dr V required for cross-examination. Rather it was the father’s case that the evidence of the single expert psychiatrist Dr F should be preferred. That evidence described the mother as having a social anxiety disorder and obsessive-compulsive personality traits and that the mother was not suffering from depression in a clinical sense. Ms N, in her report referring to the mother’s symptoms of anxiety and depression as identified by both Dr V and Dr M, opined that the psychological effect upon the mother of not being permitted to relocate was likely to be detrimental in both the immediate and long term. Although Ms N said she would defer to Dr F’s expertise, she made what I consider to be a quite reasonable observation that Dr F had spent two hours or thereabouts with the mother over two sessions whereas Dr V and her psychologist Dr M had been treating the mother more frequently and over an extended period of time.
105. The mother, when cross-examined about whether she accepted Dr F’s diagnosis that she does not have depression, said in my view with some force, that she did not want to be rude but she knows what she has. Whether the mother does or does not have clinical depression is in my view not determinative. I have no doubt having observed the mother in the witness box and heard her evidence that, as Ms N says, the psychological effect upon the mother of not being able to relocate is likely to be detrimental both in the short and long term and that this could impact significantly upon her parenting capacity.

DISCUSSION

106. I have found that there has been family violence in this case, that it is likely that the child has been exposed to that family violence and that although I am satisfied that there have been verbal altercations involving both the father and the mother, I am ultimately satisfied on the balance of probabilities that it is the father who has been primarily responsible for that family violence. I also accept the distinction made by Ms N between “Conflict-Instigated Violence or Common Couple Violence” and more coercive controlling violence. Ultimately what this leads me to conclude is that although I am satisfied that there is a risk of ongoing verbal abuse by the father and that the father and mother are likely, as described by Ms N, to “…have difficulty negotiating and cooperating with parenting arrangements” the risk of that family violence escalating is limited.
107. In my view, it is not so much the physical risk that family violence presents to the mother or the child either directly or indirectly, but rather the impact of that behaviour upon the mother and how it has heightened her sense of isolation and lack of support which is significant in this case. Although the mother now seeks to return to Country W, the outcome of this case may have been very different if she had been and felt supported by both the father and his mother.
108. I do not have any real confidence that the father understands or accepts the impact of his behaviour upon the mother and I would have serious concerns for her welfare and it follows the child’s welfare, if that behaviour were to continue and the mother was required to continue living in Australia not only without support but exposed to what I consider to be totally inappropriate behaviour by the father.
109. Not only has the mother had no emotional support since separation, she has also had little financial support and by virtue of the father’s limited parenting capacity, little support with respect to the child’s physical care. I am not satisfied on the balance of probabilities that, at least for the foreseeable future, that is likely to change. Although the father now says he is prepared to have his parenting capacity assessed, there was little sign during the hearing that he was able to acknowledge that his parenting capacity might be limited or what those limitations might be. The father was keen to emphasise to Dr F during his psychiatric assessment the fact that he had studied and understood anatomy and that he could drive a car. This was consistent with the father’s evidence during the hearing where he consistently referred to his intellectual disability as dyslexia and when asked what he thought dyslexia meant, he responded that “everyone has a slight problem in life”, “no one is perfect…everyone has some problems, it is a small problem that I have.”
110. Counsel for the father submitted that the Court could not be satisfied, based upon the mother’s antipathy and her family’s antipathy towards the father, that the mother or her family would promote and facilitate the child’s relationship with the father. In support of that submission, she relied upon the fact that there was only one paragraph in the mother’s trial affidavit which dealt with how she would maintain the child’s relationship with the father. At the commencement of these reasons, I referred to the stark choice the Court must make in this case. If the mother is permitted to relocate, the options for the child to maintain his relationship with the father are limited and I do not accept that the mother has not adequately addressed those options in her evidence.
111. Counsel for the father’s submission that it would be difficult for the child to maintain his relationship with the father if the mother was not committed to doing so would have some force if the evidence suggested that she would not do so. However, although I accept that the mother does have a negative view of the father she has, in what I am satisfied are difficult circumstances, continued to facilitate the child spending time with the father and the development of his relationship with the father. This is notwithstanding her concerns about the father’s capacity to care for the child and her concerns for his safety in the father’s care.
112. Based upon my observations of the mother and her evidence and the evidence of Ms N, I accept that the mother understands the importance of the child having a relationship with the father and being focused on the child’s welfare and will support that relationship going forward whether she remains in Australia or is permitted to relocate to Country W with the child. This includes travelling to Australia with the child, albeit subject to the father paying for the child’s return air travel, to enable him to spend time with the father.
113. Counsel for the father was critical of the mother for not offering to meet the cost of the child’s travel to Australia to spend time with the father, based upon what she submitted the mother’s family had said about providing her with financial support. In circumstances where I am satisfied that the mother has to date and is likely to continue to be primarily responsible for the child’s financial support, the father pays only minimal child support, where she is likely to have only a limited capacity to meet the cost of her own travel and accommodation in Australia and there is no obligation on her family to pay for the cost of travel, I do not accept that the mother can be criticised for not offering to pay for the child’s travel.
114. The paternal grandfather lives in Country W and the father has previously travelled to Country W to spend time with his father. The paternal grandmother has previously provided the father with the necessary funds to travel to Country W and as recently as last year, paid for him to travel to Asia for a holiday. I have already expressed my reservations about the father’s income and it may well be if he were actually paid for the work he does, he would have the necessary funds to meet the cost of both travelling to Country W and the cost of the child travelling to Australia, without having to rely upon his mother to do so. Both parties also gave evidence as to other financial assistance which might be available to both the father and the mother for the purposes of the father travelling to Country W or the child travelling to Australia. Although I cannot be satisfied that this financial assistance will be available on an ongoing basis, both parties did seem to see it as a real possibility.
115. Although the evidence gives me some confidence that the father will both want to and have the capacity to travel to Country W to spend time with the child and to meet the costs of the child’s travel to Australia, I am mindful that there is a possibility that the only time the child spends with the father if this does not occur will be by electronic communication. I accept Ms N’s evidence in cross-examination that in those circumstances, the child would be able to maintain his relationship with the father, even if that relationship did not develop further. As Kay J said in Godfrey & Sanders [2007] FamCA 102 at paragraph 36, a meaningful relationship does not necessarily have to be an optimal relationship. In any event, the benefits of the child maintaining a meaningful relationship with each of his parents is just one of the matters I must consider and weigh up.
116. It was the mother’s case that it is also open to the father to relocate to Country W. Although that might be a possibility, I accept the father’s evidence, particularly having regard to his intellectual disability and what I am satisfied is his significant dependence on his mother, that it would not be easy for him to do so. The possibility of the father relocating to Country W is not a factor which adds significant weight to the mother’s case.
117. The child relies primarily upon the mother for his physical and emotional wellbeing. That is unlikely to change. If the mother remains in Australia with the child, she will have no family support which I am satisfied is likely to impact upon her capacity to work and her emotional wellbeing. I accept Ms N’s evidence that the psychological effect upon the mother is likely to be detrimental, which will in turn be likely to have a detrimental effect upon her parenting capacity.
118. I am satisfied that the negative aspects of the mother having to remain in a foreign country away from family and friends might be ameliorated if the father and his family were supportive. The mother might be able to move forward with her life in Australia, by either studying or seeking employment if the child was able to spend more time with the father, freeing up the mother’s time. However I am also satisfied that as a result of the father’s intellectual disability there is a significant question in relation to his parenting capacity and it follows, the physical contribution he can make to the child’s care. In those circumstances, I am satisfied that if the mother were required to remain in Australia, based upon the history of this matter and my observations of the father’s evidence and that of the paternal grandmother, that she would have to care for the child with little physical, emotional or financial support from the father.
119. I have had regard to the likely effect of the child’s relocation upon the father and accept Ms N’s evidence as to the possible detrimental effect upon him. Although that might similarly have an indirect impact upon the child, I am satisfied that those effects will be of less significance for the child in circumstances where he relies primarily upon the mother for his physical and emotional wellbeing.
120. Weighing up all of the evidence and having considered both the primary and additional considerations in s 60CC of the Act, I am satisfied that it would be in the child’s best interests for him and the mother to relocate to Country W.

PARENTAL RESPONSIBILITY

121. The mother in this case seeks sole parental responsibility. Although counsel for the father conceded that the presumption of equal shared parental responsibility does not apply in this case and that the parties’ communication is poor, it is the father’s case that the responsibility for making decisions with respect to both the child’s education and medical matters should be shared. I do not accept that sharing the decision making in relation to those matters would be in the child’s best interests. I am satisfied that there are many factors that are likely to stand in the way of effective communication and decision making in this case. Not least of those being the tyranny of distance in circumstances where I propose to accede to the mother’s application that she be permitted to relocate to Country W with the child.
122. In those circumstances, unless the father decides to relocate to Country W, he would be making decisions from a distance without direct knowledge or experience of the circumstances of the child. I am satisfied that would be difficult even without the father having an intellectual disability. That intellectual disability makes that process even more complex and having regard to the evidence of Dr D, I am satisfied that the father’s intellectual disability is likely to impact upon the father’s ability to make what may be difficult decisions with respect to the welfare of the child.
123. Ms N was asked in cross-examination about the possibility of the parties sharing parental responsibility with respect to the child’s education and medical care. It was her evidence that not only did she see the relationship between the parties as problematic, but that she was of the view that the father’s intellectual disability would be likely to impact his decision making capacity.
124. I am also satisfied that given the history of this matter and the way in particular in which the father has conducted himself to date, that even if the parties were to communicate by text and email rather than directly, there is a possibility that the communication between the parties will be seen as an opportunity by the father to verbally abuse the mother.
125. Ultimately if there is to be an impasse, there must be some way of breaking that impasse. I am not confident that the parties have the ability to do so. Ms N was asked in cross-examination whether she would support a hybrid order for parental responsibility, which would give the mother sole parental responsibility in terms of educational and medical decisions but shared parental responsibility for the other three major matters relating to change of name, relocation to another jurisdiction and religion. Ms N stated in cross-examination as follows:

Their relationship is problematic, their communication problematic and capacity to make joint decisions regarding their son and his needs is likely to be problematic. I would have to agree with the mother’s view that the father has some limitations which may impact on his ability to make wise or sound decisions regarding his child and his child’s interests.

In circumstances where the mother will be caring for the child in another country, I am satisfied that it is the mother who is better placed to make these major parenting decisions for the child.

ARRANGEMENTS PENDING THE CHILD’S DEPARTURE

125. Although the mother had not made a definitive decision as to when she would leave Australia, if permitted to do so, the possibilities were that she would either leave immediately or wait until the end of the school year. Some months have now passed since the hearing concluded and the school year is almost at an end. In any event, even if the mother does not decide to leave immediately, it is the father’s case that there should be a period of three months during which the child continue to spend time with him in accordance with the existing orders. The father agrees with the Independent Children’s Lawyer’s proposal that any change to those arrangements be conditional upon a positive parenting assessment. In those circumstances, I propose to leave the existing arrangements for the child to spend time with the father in place pending the departure of the mother and the child for Country W.

The child’s contact with the paternal grandmother

126. The father seeks the discharge of the order restraining him from bringing the child into contact with his mother. I am not satisfied that it would be in the child’s best interests to re-establish a relationship with the paternal grandmother, particularly in circumstances where he will be relocating to Country W with the mother in the not too distant future.
128. It is common ground that the paternal grandmother moved to Country X in May 2013 when the child was about two years old. The paternal grandmother returned to Australia to live in or about March 2016. The paternal grandmother had not seen or spent time with the child during this period. The order restraining the father from bringing the child into contact with his mother was made by consent and without admissions on 23 August 2016.
129. I have found on the balance of probabilities that the paternal grandmother did send abusive and threatening text messages to the mother at or about the time of separation.
130. The mother also deposes to an incident in her affidavit when the paternal grandmother came to Melbourne from Country X for a holiday in July 2015. The mother says that while the father was visiting the child at her home, his aunt called and said that the paternal grandmother wanted to talk to her. Although the mother said she was not interested in speaking to the paternal grandmother, the father put his phone on loudspeaker. The mother said that the paternal grandmother yelled at her and used offensive language. She said she wanted the mother to live with the father and that if she did not she would make sure that the mother would be stuck in Australia until the child turned 18.
131. The mother deposed that the following day the father telephoned her and told her that he had had an argument with his mother who he said had slapped him across the face and scratched his wrist trying to snatch his keys out of his hand and that he had gone to the police to inquire about taking an intervention order out against his mother. Later that same day, the father sent the mother the text message annexed to her affidavit which stated “[l]isten to me please my mum is going crazy right now if there is an emergency please call me or triple zero police”.
132. Although the father agrees that he and his mother argued, he denies that she slapped or scratched him or that he went to the police. He does not deny the text message sent to the mother. In all of the circumstances, I prefer the mother’s evidence of what occurred. The mother’s evidence is consistent with the father’s complaints to support workers on previous occasions and the text message in my view speaks for itself.
133. I also have significant reservations about the paternal grandmother based upon her evidence before me. Notwithstanding her somewhat dramatic protestation that she loved the mother, there was something almost threatening about her evidence and how she directed that evidence towards the mother in the body of the Court.
134. Other than the fact that she is the child’s grandmother, there is otherwise no evidence before me as to anything positive the paternal grandmother might bring to a relationship with the child. In circumstances where the child has had only very limited contact with her, is likely to have only a limited recollection of her and any relationship with her would be of limited duration, I am satisfied that it is not in the child’s best interests for the order restraining the father from bringing the child into contact with his mother to be discharged. The father will no doubt wish to spend as much time with the child as possible prior to his departure for Country W and in my view, the focus of that time needs to be between the father and the child and not the paternal grandmother.

Should the father be permitted to drive with the child?

135. For the reasons previously discussed, I prefer the mother’s evidence to that of the father, including her evidence as to his driving ability or perhaps more importantly, his ability to remain focused on his driving. Dr D in his assessment of the father described him as demonstrating “marked difficulty dividing his attention” and this is potentially an issue for him when he is driving. In all of the circumstances, I have reservations about the father driving with the child. The issue is more limited in circumstances where at the very latest, the mother will be relocating to Country W at the end of the current school year. That being said, I do not propose to accede to the father’s application that the child be permitted to drive with him pending the mother and child’s departure for Country W.

Arrangements for the child to spend time with the father in Country W

136. This leads me to the question of the father’s time in Country W. It is the mother’s case that if the father is in Country W he spend time with the child between 10:00 am and 5.00 pm on days as agreed, being at least four days a week. The mother did not seek to restrict the number of times the father could come to Country W to visit the child however the father adopted the Independent Children’s Lawyer’s proposal that he visit the child during the school holidays on up to three occasions each year. The mother also proposed that the child’s time with the father in Country W should be supervised time. The mother’s primary concern appears to be not that the father would deliberately harm the child, but rather that his already limited parenting capacity will be even more limited in an unfamiliar environment and in circumstances where his language skills are also limited. Dr D described the father as having “weakness with regard to attention, working memory and speed of information processing”. Dr D also said in summary as follows:

His level of intellectual functioning suggests there may be some reduction in his ability to assess and understand risks and demonstrate appropriate judgement, especially with novel and changing situations such as responding to unexpected dangers. Consequently it is recommended he will require some support with complex day-to-day decisions.

137. I am satisfied that the unfamiliar environment in Country W would be likely to add to the difficulties the father faces on a day to day basis as a result of his intellectual disability and that this is likely to impact on his parenting capacity. In those circumstances I am satisfied that the child’s time with the father in Country W should be supervised by a member of his family or the mother’s family.
138. The father for his part seeks orders which provide for the child to spend overnight time with him in Country W up to three times per year at the home of a family member, with the family member to be in substantial attendance.
139. Although the father’s evidence is that the child has stayed overnight with him on many occasions, as previously referred to, I do not accept his evidence in relation to this issue. It is almost impossible in this case to predict when the father is likely to have the capacity to care for the child overnight, if at all, either in Australia or in Country W. Although the mother did not rule out the possibility, in circumstances where the father’s parenting capacity is limited, the child has not spent any regular overnight time with the father to date and it is not clear how much time the child will be spending with the father in Country W and/or Australia, it is impossible to predict whether and when it is likely to be in the child’s best interests to spend overnight time with the father. Although on his case the father will be visiting Country W on up to three occasions each year and his language skills may improve and life in Country W may become more familiar to him, the child will similarly, at least in the short term, be in an unfamiliar environment and in my view, the Court should proceed cautiously. It is also in the circumstances of this case difficult to predict when unsupervised time might be appropriate.
140. In all of the circumstances, I propose to accede in principle to the mother’s application with respect to the child’s time with the father in Country W. Although this unfortunately may lead to the parties being involved in further proceedings if they cannot agree upon there being either overnight time or unsupervised time in the future, it is in my view impossible in all of the circumstances to make orders that would definitively avoid that possibility.
141. Although the Independent Children’s Lawyer proposed that the child communicate with the father by Skype on one occasion each week, I see no reason why it should not be twice a week as proposed by the father and as agreed by the mother.

Arrangements for the child in Australia

142. Finally, the parties did not make any submissions with respect to the arrangements for the time the child spends with the father in Australia following his relocation to Country W. For the reasons already referred to, it is difficult to predict how much time the child will be spending with the father either in Country W or Australia and how much further the father’s capacity to care for the child will develop or what arrangements would be suitable for the child. In those circumstances it is hard to predict what arrangements might be appropriate, including how much time the child should spend with him, whether that time should include overnight time and whether any supervision is required.
143. In those circumstances, I propose to make orders that the child spend daily time with the father in Australia at times to be agreed. I also propose to restrain the father from driving with the child or bringing him into contact with his mother. Although this may lead to further proceedings if the parties are unable to agree upon a suitable regime or ultimately if the father seeks further time, that is unfortunately, in the circumstances of this case, unavoidable.

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 November 2017.

Associate:

Date: 23 November 2017