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FAMILY COURT OF AUSTRALIA TOMAS AND ANOR & MURRAY [2011] FamCA 641

FAMILY LAW PARENTING Where child was formally adopted in Western Samoa and adoption order was subsequently discharged Best interests of the child Whether there should be a change in residence Where as a practical consequence parental responsibility will follow a change in residence. FAMILY LAW JURISDICTION Whether the Court has jurisdiction to determine the proceedings. Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60B, 60C, 60DA, 64B, 65C, 65D, 65DA, 65DAA, 65DAC, 65G, 67ZC, 69C, 69ZH Family Law Rules 2004 (Cth) Rule 6.02 Evidence Act 1995 (Cth) s 140 Makita v Sprowles (2001) 52 NSWLR 705 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FAFC 157 Minister for Immigration and Multicultural and Indigenous Affairs and B and Others [2004] HCA 20; 219 CLR 365; 206 ALR 130 Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp [2003] FamCA 1393; (2004) FLC 93-186 Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR 392 Re Mark: an application relating to parental responsibilities [2003] FamCA 822; (2003) FLC 93-173 Dudley and Chedi [2011] FamCA 502 Findlay and Anor & Punyawong [2011] FamCA 503 Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421; 42 Fam LR 369; 235 FLR 450 McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 Champness & Hanson (2009) FLC 93-407 Leighton & Carey [2010] FamCAFC 94 Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANTS:

Ms Tomas and Mr Tomas Ms Murray

RESPONDENT:

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INTERVENER:

Director-General, Department of Family and Community Services PAC 1187 2009

FILE NUMBER: DATE DELIVERED: PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: HEARING DATES:

17 August 2011 Sydney Parramatta Loughnan J 11, 12, 13, 14 and 15 July 2011

REPRESENTATION COUNSEL FOR THE APPLICANTS: SOLICITOR FOR THE APPLICANTS: COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT: Mr J. Weaver Selective Lawyers Ms K. Conte Mills Neagle Lawyers

COUNSEL FOR THE DIRECTOR-GENERAL, Ms V. Hartstein DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: SOLICITOR FOR THE DIRECTOR-GENERAL, NSW Crown Solicitor DEPARTMENT OF FAMILY AND COMMUNITY SERVICES:

ORDERS
1) That Ms Murray have sole parental responsibility for S Tomas born in June 2007 (the child). That the child live with Ms Murray. That Ms Murray be permitted to relocate the residence of the child to Western Samoa and for that purpose she is authorised to take all steps and sign all documents necessary to procure a valid passport for the child and obtain such immigration status as may be necessary for the child to gain entry into Western Samoa and remain living there. That Ms and Mr Tomas take all necessary steps and sign all documents necessary to consent to the issue of a valid passport for the child, consent to the procurement of such immigration status for the child as may be necessary for the child to gain entry into Western Samoa and remain living there and remove the child from the watch list at points of international departure from Australia. In the event that Ms Tomas and / or Mr Tomas fail to comply with any or all of their obligations under Order 4 within 14 days of the written request by the respondent or her legal representative, a Registrar of this Court shall be authorised to sign any necessary documents referred to in this Order upon the filing of an affidavit by Ms Murray or her legal representative deposing to the request made of the applicant in writing and his/her failure to comply in the time stipulated. In order to give effect to these Orders, Ms and Mr Tomas shall cause the child to be delivered to the Manager Child Dispute Services (CDS) located at 1-3 George St, Parramatta at a time and date agreed between the parties. Ms and Mr Tomas may communicate with S by telephone on 2 occasions per week, with Ms Murray to facilitate the telephone call on a Monday evening, Western Samoan time and Ms and Mr Tomas to facilitate the telephone call on Thursday, Australian time. Leave is granted to any party to restore the proceedings to the list before Justice Loughnan in relation to the form of these orders and any necessary machinery orders on giving at least 24 hours notice to each other and to the Court.

2) 3)

4)

5)

6)

7)

8)

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NOTATION
(A) The Court notes that Ms Murray has offered and agrees to facilitate the child spending time with Ms and or Mr Tomas in the event that either of them travel to Samoa or in the event that the child travels to Australia.

IT IS NOTED that publication of this judgment under the pseudonym Tomas & Murray is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA FILE NUMBER: PAC 1187 of 2009 Ms Tomas and Mr Tomas Applicants And Ms Murray Respondent And Director-General, Department of Family and Community Services Intervener

REASONS FOR JUDGMENT INTRODUCTION


1. The issue before the Court is whether 4 year old, S Tomas, 1 should live with her former adoptive parents in Australia or with her birth mother in Western Samoa. The child, S, was born in Western Samoa in June 2007. The applicants are the childs great aunt and great uncle, Ms Tomas and Mr Tomas. With the consent of her parents they adopted the child under the law of Western Samoa in late June 2007. The child stayed with her birth parents until February 2009 while arrangements were made with New Zealand authorities for the child to obtain entry status to Australia. The child was delivered to Australia by her birth mother in February 2009. Although the birth mother ultimately changed her mind about the adoption, the child has lived in Australia with the Tomases since 15

2.

1 For the purposes of these proceedings I have referred to the child by the last name Tomas. It is possible that the discharge of her adoption by the Tomases had an effect on the name by which she would be known in Western Samoa. For Australian purposes she has been known as S Tomas and I understand she has a New Zealand passport in that name. I note that she is referred to as Tomas in the Initiating Application and in the mothers Response.

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March 2009. The adoption was subsequently discharged by a Court in Western Samoa, without notice to the applicants. At the time of the hearing there were ongoing proceedings between the parties in Western Samoa in respect of the discharge of the adoption. 3. In this Court the applicants seek orders in their favour for parental responsibility and residence. The respondent is the childs biological mother, Ms Murray. She objects to the jurisdiction of this Court but seeks a resultant order for the return of the child to Western Samoa. In the alternative she seeks parenting orders in her favour which would have the same effect. I am satisfied that the child would be loved and well cared for under either proposal. As the parties live in different countries, however, it is not practicable for her to spend substantial amounts of time in both households. Therefore only one proposal can succeed. I have decided that it would be in the childs best interests to return to live with her mother in Western Samoa. The reasons for so deciding are set out below. In these reasons I will refer to the parties and the members of their families by name. As will be seen the family relationships involved in the case are confusing and the terms applicants and respondent are not sufficiently descriptive. After being requested to do so, the Director-General of the NSW Department of Family and Community Services intervened in the proceedings. The childs biological father, Mr Murray, is a necessary party to the proceedings,2 but has chosen to take no part in the proceedings save as a witness in his wifes case. I understand that he wholly supports his wifes case. He decided that it was not practicable for him to take active part in the proceedings as he and Ms Murray live in Western Samoa with 7 of their 8 other children. To the extent necessary I dispense with the Rules in that regard.

4.

5.

6.

7.

APPLICATIONS
8. The orders sought by Ms and Mr Tomas are contained in a Minute of Final Orders3 provided by their counsel on the last day of the trial. They seek the following orders:
1. That all previous orders in relation to the child, [S Tomas] born June 2007 (the child) are hereby discharged.

2 Rule 6.02 of the Family Law Rules 2004 (Cth). 3 Exhibit 12.

2.

That [Ms Tomas] born [in] 1963 ([Ms Tomas]) and [Mr Tomas] born [in] 1971 ([Mr Tomas]) shall have sole shared parental responsibility for the child. That the child shall live with [Ms Tomas] and [Mr Tomas]. That the child shall spend time with [Ms Murray] born [in] 1971 ([Ms Murray]) in Samoa as follows: a. Commencing in 2012, from 5.00 pm on Easter Sunday until 5.00 pm on the Friday immediately following Easter Sunday each year. Commencing in 2012, from 5.00 pm on 25 December until 5.00 pm on 30 December each year. Other time as agreed between the parties.

3. 4.

b.

c. 5.

That [Ms Tomas] and [Mr Tomas] shall pay the cost of transporting the child to , Samoa, for the purpose of [Ms Murray] spending time with the child pursuant to Order 4. That [Ms and Mr Tomas] shall deliver the child to the home of [Ms Murray] and located in , Samoa at the commencement of [Ms Murrays] time with the child purusant to Order 4. That [Ms Tomas] and [Mr Tomas] shall collect the child from the home of [Ms Murray] and located in , Samoa at the conclusion of [Ms Murrays] time with the child purusant to Order 4. That [Ms Murray] shall be entitled to communicate with the child by telephone, when [Ms Murray] is not spending time with the child pursuant to Order 4, as follows: a. From 5.00 pm until 6.00 pm Australian Eastern Standard Time each Monday and Friday; and Other times as agreed between the parties.

6.

7.

8.

b. 9.

That within 24 hours, [Ms Tomas] and [Mr Tomas] shall make available to the child, and shall continue to keep available to the child until further order, a telephone which has the capacity to communicate with [Ms Murray] in , Samoa and shall assist the child to telephone [Ms Murray], pursuant to Order 8.

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10.

That [Ms Tomas] and [Mr Tomas] shall be responsible for the costs of complying with Order 9. That within 24 hours, [Ms Murray] shall advise [Ms Tomas] and [Mr Tomas] in writing of a telephone number on which the child shall communicate with [Ms Murray] in , Samoa ([Ms Murrays] telepone number), pursuant to Order 8. That [Ms Murray] shall advise [Ms Tomas] and Mr Tomas] in writing of any change in [Ms Murrays] telephone number (the change) within 24 hours of the change occuring. That within 7 days, [Ms Tomas] and [Mr Tomas] shall engage with ms [C], Senior Practitioner and Acting Manager, Post Adoptive Resource Centre under the auspices of the Benevolent Society (the adoption consultant) for the purposes of creating a birth story for the child and comply with the reasonable recommendations of the adoption consultant regarding the child (the recommendations) until the adoption consultant advises [Ms Tomas] and [Mr Tomas] in writing that the recommendations are no longer required. That [Ms Tomas] and [Mr Tomas] shall be responsible for the costs of complying with Order 13. That each party shall be restrained from denigrating the other party in the presence or hearing of the child and each party shall use their best endeavours to ensure that no third party denigrates any party in the presence or hearing of the child. That [Ms Murray] born [in] 1971 their servants and / or agents be and are hereby restrained from removing or attempting to remove, or casuing or permitting or attempting to cause or permit, the removal of the child [S Tomas] born June 1997 from the Commonwealth of Australia. The Australian Federal Police shall give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and shall maintain the child's name on the Watch List pending further order.

11.

12.

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9.

Ms Murray does not concede that this Court has jurisdiction to hear the matter. By her Amended Response she seeks orders In the Alternative as follows:
1. That the application filed 1 December 2010 be permanently stayed or

dismissed on the basis that this Court has no jurisdiction; 2. That the applicants deliver the child to the respondent for the purpose of returning the child to Samoa.

In the alternative: 3. 4. 5. That the mother have sole parental responsibility for the child. That the child live with the respondent mother. That the respondent be permitted to relocate the residence of the child to Samoa and for that purpose the respondent is authorised to take all steps and sign all documents necessary to procure a valid passport for the child and obtain such immigration status as may be necessary for the child to gain entry into Samoa and remain living there. That the applicants take all necessary steps and sign all documents necessary to consent to the issue of a valid passport for the child, consent to the procurement of such immigration status for the child as may be necessary for the child to gain entry into Samoa and remain living there and remove the child from the PACED alert system. That if the applicants fail to comply with any or all of their obligations under this order within 14 days of the written request by the respondent or her legal representative, a Registrar of this Court shall be authorised to sign any necessary documents referred to in this Order upon the filing of an affidavit by the respondent or her legal representative deposing to the request made of the applicant in writing and his/her failure to comply in the time stipulated.

6.

7.

10.

By a Minute4 handed up at the conclusion of the trial, Ms Murray also seeks:


8. For the purpose of changeover, in accordance with Order 5, the applicants shall deliver the child to the Child Dispute Services (CDS) located at 1-3 George St, Parramatta at a time agreed between the parties. The applicants shall communicate with [S] by telephone on 2 occasions per week, with the respondent to facilitate the telephone call on a Monday evening, Samoan time. The applicants shall facilitate the telephone call on a Thursday Australian time. Notation. The Court notes that the respondent has offered and agrees

9.

10.
4 Exhibit 11.

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to facilitate the child spending time with the applicants in the event that either of them travel to Samoa or in the event that the child travels to Australia.

WRITTEN EVIDENCE
11. Ms and Mr Tomas rely on: Sworn/affirmed Amended Initiating Application Affidavit of Ms Tomas Affidavit of Mr Tomas Affidavit of Ms A Affidavit of Mrs V Affidavit of Ms Tomas Affidavit Mr Tomas Affidavit of Ms A Affidavit of Mrs V Affidavit of M V Affidavit of Mr Tomas 12. Ms Murray relies on: Sworn/affirmed Filed Amended Response to Initiating Application Affidavit of Ms Murray Affidavit of Mr Murray Affidavit of Shane Neagle Affidavit of Dr T (annexure to affidavit of S. Neagle) Affidavit of Shane Neagle Affidavit of Semi Lueng Wai 21/12/2009 30/06/2011 4/07/2011 4/07/2011 6/07/2011 11/07/2011 11/07/2011 4/07/2011 14/07/2011 14/07/2011 12/07/2011 15/07/2011 Filed

30/06/2011 30/06/2011 18/02/2010 22/02/2010 18/02/2010 22/02/2010 18/02/2010 22/02/2010 18/02/2010 22/02/2010 27/06/2011 29/06/2011 27/06/2011 29/06/2011 27/06/2011 29/06/2011 29/06/2011 29/06/2011 27/06/2011 29/06/2011 29/06/2011 30/06/2011

13.

The Single Expert evidence is: Family Report of Ms P prepared March 2010.5 Family Report of Ms P dated 11 July 2011. Family Report of Ms P dated 14 July 2011.

THE HEARING
14. A trial plan was settled by counsel on the morning of the second day of the trial. Submissions concluded on 15 July 2011 and judgment was reserved. There are related proceedings before the Supreme Court of Samoa. They were listed for hearing on 15 August 2011. The outcome of those proceedings could be relevant to the proceedings before me. For example, one potential outcome of the Samoan proceedings, namely the granting of the Tomass appeal to that Court, could have effectively negated one possible outcome of the proceedings before me. Nothing was put before me as to the effectiveness of a decision of this Court on living arrangements for the child in Western Samoa. In any event, learned counsel agreed that I should not deliver judgment prior to 22 August 2011, with leave to all parties to restore the matter on 48 hours notice until 4.00 pm on that day. It was envisaged that if the matter was restored pursuant to that leave, an application may be made to re-open. I noted that in the event that no request was made to restore the matter within that time, judgment would be handed down on a date after 22 August 2011 without more than the usual, short, formal notice to the parties. On 5 August 2011 an email was received in my chambers from the solicitors for Ms Murray, the text of the message was:
I refer to the above matter and confirm we act for the Mother, [Ms Murray]. Can I please refer you to the below advice, in part, received this morning by email from both our client's and her husband's Samoan based solicitor, namely Mr Semi Leung Wai, who is acting on their behalf in regards to the current Discharge Adoption Order Appeal of the Adoptive Great Uncle and Aunty in this above matter, the [Tomases], currently before the Samoan District Court. Mr Wai advised me as follows:
5 The date of the first report is something of a mystery. It was not dated by the report writer. In reasons for judgment given by Benjamin J on 2 June 2010 in relation to a hearing conducted on 17, 19 & 22 March 2010, the report is described as being dated 9 March 2010. It was released under cover of a letter dated 9 March 2010 but as the report records, it incorporates observations made by the report writer on 12 March 2010 and information contained in an affidavit filed 13 March 2010. Doing the best I can, the report was prepared in March 2010 and probably on or before 17 March 2010.

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At call over of cases today 4 August 2011 and Ms Peteru, counsel for the [Tomases], advised she will not be proceeding with the appeal and seeking a judicial review of the decision of the District Court. I advised the Chief Justice, my concern is to expedite matters, because we urgently require to resolve the legal status of an infant and also there are proceedings in Australia and to hear the Appeal on the date already of 15 August 2011. The counsel for the [Tomases] said she has to file the required application. The CJ ordered she is to file on 22 August 2011. I requested I be served and the [Murrays] be cited as a party, as they have an interest in the proceedings. The CJ ordered I be served and the [Murrays] to be cited as the Second Respondents. It would appear from the above, that the Appeal matter will now not be heard on 15 August 2011 as previously understood, given there appears to be an application made on 4 August 2011 by the [Tomass] counsel, that the matter be treated as a Judicial Review. I take it if this application is successful, this might means there could possibly be a hearing De Novo, maybe at some future stage? Thus, it is my respectful submission, subject to any further clarification from the Australian solicitors for the [Tomases], that final judgment of the Family Court of Australia can now be progressed, if the Court was so inclined [i.e. rather than waiting until 22 August 2011 and its current listing]. I am raising all this in the context of the relevant discussions had between his Honour and respective counsel on the last day of the Family Court of Australia final hearing, about the Honorable Court delaying its judgment until after the 15 August 2011, so as to give due consideration, if considered necessary, to the Samoan Appeal and findings (if any). Please do not hesitate to contact me should you have any queries. You will note I have copied in all relevant parties to this email.

17. 18.

On 10 August 2011, the solicitors for the Tomases and the Intervener consented by email to the proposed course. On the basis of that agreed approach and without any subsequent application on behalf of any party I considered that I was authorised to give judgment as soon as practicable.

RELEVANT PEOPLE
19. 20. 21. The child who is the focus of these proceedings, S, was born in June 2007 and as at the date of the hearing she was 4 years of age. The child has an extensive family. The following are persons of particular significance in her life. Ms Murray is the childs biological mother. She was born in 1971 and as at the date of the hearing was 40 years of age. She does not have paid employment. Mr Murray is the childs biological father. He was born in 1970 and as at the date of the hearing was also 40 years of age. He is the Principal Accountant for a government department in Western Samoa. Mr and Ms Murray live together in Western Samoa. In addition to S they have 8 children, born between 1993 and 2006. Those children all live with their parents except for ME, who lives with his uncle but who has not been adopted by his uncle. Ms Murray has another son, a child of a previous relationship. He is 19 years of age. He has lived with Ms Murrays aunt (Ms Tomass sister), since he was one year old, pursuant to a cultural adoption arrangement. Ms Tomas is the childs maternal great aunt and was formerly her adoptive mother. She is the sister of Ms Murrays mother. She was born in 1963 and as at the date of hearing she was 48 years of age. She is a Process Worker. She works from 2.00 pm to 10.00 pm Monday to Friday. She has an adopted adult son, P, who is about 21 years of age and who lives in Sydney. Ms Tomas is married to Mr Tomas. He is the childs great uncle and was formerly her adoptive father. He was born in 1971 and during the hearing he turned 40 years of age. Mr Tomas has a biological son, B who is about 21 years of age and lives in Western Samoa. He has two sons called M. The younger of them was born in 2004. His mother is W, who is a cousin of Ms Tomas and of Ms Murray. M was conceived when W lived with the Tomases. M has been adopted out, probably within Ws extended family. Mr Tomas is a Driver, driving a semitrailer around Sydney. He works from 5.00 am to 3.00 pm Monday to Friday. He has the option of over-time and has rostered days off. Ms and Mr Tomas live in a western suburb of Sydney. Mr Tomas and Ms Tomas adopted the older M in American Samoa in 2001. He was the son of Ms Tomass adopted sister, AA. AA is the daughter of Ms Tomass mothers first cousin. The older M now lives with Ms Tomass niece, T in Brisbane. Ms Murray says M lives with JN who she says is Ms Tomass sister. In rectifying her affidavit, I understood Ms Murray to say that the JN referred to in her affidavit is

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T. That does not make sense but there it is. 26. As is set out in some detail below, Mr and Ms Tomas adopted the child in Western Samoa in 2008 and she has lived with them since March 2009. Mrs V is a niece of Ms Tomas and the cousin of Ms Murray. She is the daughter of Ms Tomass brother. Mrs Vs mother died in 1982 leaving her father to raise their children. He remarried and had two further children. Mrs V came to Australia in 1985 and married Mr V in 1991. They later adopted Mrs Vs sister, U and her half sisters, the child B and the child C .

27.

CREDIBILITY
28. The factual disputes in these proceedings largely involve the subject of family negotiations. Given the focus of parenting proceedings, it is not necessary to resolve all of those disputes. The written evidence of the parties differs in significant details. In those circumstances the credit of witnesses assumes importance. Unfortunately, on many issues the position is unclear. I am not simply able to prefer the evidence on one side of the case to that on the other. Findings, where they are possible, fall to be made issue by issue. Mr Tomas was a poor witness. English is not his first language and although he did not ask to use an interpreter he apparently did not understand some questions. In those circumstances care is needed in placing emphasis on the way in which he gave his evidence. However he was vague, he demonstrated a poor recollection of dates and he contradicted his own written evidence and that of his wife, albeit largely on peripheral issues. For example:

29.

He agreed that he drinks 4-6 stubbies of beer on a Saturday night but elsewhere said it was 2-4; and the bottles of beer were variously 345 or 375 ml. These are relatively trivial distinctions but Mr Tomas went out of his way to make them. In cross-examination at first he did not volunteer having an interaction with the police on the occasion when, as he later conceded, he attempted to steal a television set. I am not sure that the facts about all of his children would have been revealed if he was not pressed in cross-examination. In the context of his reference to committing suicide in the event that the child is returned to Samoa, when he was first asked whether he had consulted a doctor about his feelings he said he had not. His counsel found it necessary to recall Mr Tomas to correct that evidence in fact he had

consulted a GP in that regard. One significant departure from his written testimony related to the purchase of a ticket for Ms Murray to return to Samoa on 15 March 2009. Mr Tomas deposed that:
37. In or around March 2009, I paid for [Ms Murray] and [X Murray] to fly home to Samoa. I did not pay for [S Tomas] to fly back to Samoa with [Ms Murray], because I did not agree to [S] to go back to Samoa with [Ms Murray].

His evidence is consistent with his case, to the effect that he had no intention of allowing the child to leave Australia with the mother. Unfortunately, although the sworn statement is literally correct, it is misleading. In cross-examination he conceded that the ticket he bought was for Ms Murray, X and S. That concession was necessary as Ss name appears on the booking plan.6 That plan reveals that there was no additional fare for S. Therefore Mr Tomas was correct in that he did not pay for [S Tomas] to fly back to Samoa with [Ms Murray]. However the reason was not because (he) did not agree to [S] to go back to Samoa with [Ms Murray] it was because there was no fare for an accompanied infant. 30. As the Family Report writer, Ms P, notes, he was coy with her as to why he lost his drivers licence about 10 years ago - too many points. The fact is that he lost his licence due to a drink drive conviction. It may be thought that because there is an issue about the extent of his consumption of alcohol, he tried to minimise that issue when he saw Ms P. That may be so but he has not sought to hide the truth from the Court. In his sworn evidence,7 he accurately attributed the loss of licence to a drink drive conviction. There is no credit issue there. On the other hand he was guileless and made concessions when asked. Ms Tomas was a thoughtful, compelling witness. If anything she is not as proficient in English as Mr Tomas. She used an interpreter in the course of her cross-examination on many occasions and it was apparent from her answers that she did not always understand the questions asked. It is Ms Tomass evidence that Mr Tomas has never been drunk since she has known him. Even reading that down to what she has been in a position to observe, some doubt remains in my mind about that evidence. Putting aside the views of Ms Murray on the topic, it is conceded for example that Ms Tomas generally drives Mr Tomas home from family BBQs as he would be over the limit. There is also

31. 32.

33.

6 Exhibit 3. 7 Para 10 of the first affidavit.

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reference in police records to Mr Tomass presentation when he was charged with running onto the ground at the venue of an international sports event. 34. 35. 36. Otherwise, her evidence was not seriously challenged. She made concessions appropriately. Ms A, Mrs V and Ms V were briefly cross-examined but their evidence was not challenged. Ms Murray gave evidence through an interpreter. Her affidavit did not bear an endorsement as to translation. She says that her husband translated it for her. A certificate was later provided. In giving oral evidence she made significant use of the interpreter. She appeared to reflect on questions before answering and to be a careful witness. I was not confident in all instances that Ms Murray understood the questions asked. For example, it was put to her that she told the Court in March 2010 that she was concerned about the childs weight. She agreed. She was asked what other things concerned her then about the child and said: Nothing else. I was not taken to the transcript of the hearing but I would be surprised if the childs weight was then the only concern expressed or held by her about the child. When asked, she made some concessions in favour of the Tomases. For example she readily conceded that, having seen the child during the week of the hearing, she is no longer concerned that the child is overweight. Given the way in which her oral evidence was given I am slow to draw inferences adverse to Ms Murray unless satisfied that she intended the meaning of the answer given. For example, she agreed in cross-examination that after she learned of Mr Tomass infidelity with W she started to look for problems in the marriage (of [Mr and Ms Tomas]). One might otherwise infer from that comment that her search was contrived to falsely identify problems. I make no such inference here. On the other hand Ms Murray would not agree that her affidavit to the Samoan Court of 1 April 2009 to the effect that Ms and Mr Tomas agreed and consented to her taking the child home to Samoa, was misleading, notwithstanding her concession that they later told her she could not take the child home. In my view the statement is misleading. Ms Murrays evidence in these proceedings is that initially Ms and Mr Tomas agreed to the return but from early on 15 March 2009 and thereafter, she knew they no longer agreed. Ms Murray was asked if she was successful and the child returns to Western Samoa, whether she thought the child would be sad. At first she said no but then agreed with learned counsel for the Tomases that the child would miss them and (therefore) that she would be sad if she returned to Samoa. The Tomases have a similar blind spot in relation to

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whether the child was sad not to return to Samoa with her mother on 15 March 2009. It defies belief that the child did not miss her biological parents and siblings in March 2009 and that she would not miss the Tomases if she is to return to Samoa now. This might not be a credit issue, it might go to a lack of insight. 38. 39. Mr Murray gave evidence in English by telephone from Samoa. He was not challenged on any significant aspect of his evidence. Ms P gave evidence as the single expert and her credit is not in issue.

THE ISSUES
40. The agreed issues are:
1. The circumstances leading to [the child] being in the care of the Applicants. The need to protect the child from the risk of harm. The nature of the childs relationships. The likely effect of change on the child. The childs right to enjoy her Samoan culture. Where the child should live and who should have parental responsibility for the child.

2. 3. 4. 5. 6.

41.

In addition, counsel for Ms Murray identified the following issues:


1. The jurisdiction of the Family Court in this matter: (a) Whether these proceedings are parenting proceedings or adoption proceedings; If they are adoption proceedings then where is the basis for the jurisdiction of the Family Court; Whether the Family Court is being used to validate an adoption arrangement which is otherwise irregular or illegal pursuant to other Commonwealth (immigration) and State Law (intercountry adoptions).

(b)

(c)

2.

For the purposes of the Family Law Act, who are the parents?

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3. 4.

Best interests of the child. Rights of the child to live with her natural parents and siblings in her native country. Capacity of parents. Degree to which a party has fulfilled or failed to fulfil their duties as parents. Right of child to have a meaningful relationship with her parents and other family members.

5. 6.

7.

BACKGROUND EVIDENCE
42. The following is an agreed chronology:
Date From March 2007 to June 2007 April/May 2007 In or around May 2007 June 2007 In or around November 2007 24 January 2008 Early December 2008 Late January 2009 3 February 2009 9 February 2009 17 February 2009 Event Ms Tomas discusses adoption of the unborn child, S, with Mr Thomas Ms Tomas phones Ms Murray to ask if she can adopt her child if it is a girl Ms Tomas and Ms Murray discuss the feeding of the child after it is born, either breast fed or bottle fed. The child is born in Samoa. Ms Murray sends adoption papers to Ms Tomas for Ms Tomas and Mr Tomas to sign. Court in Samoa makes adoption order for the child in favour of Mr and Ms Tomas. The childs New Zealand passport arrives in Western Samoa from the Tomases. Ms Murray applies for a visa to come to Australia Mr Tomas pays for Ms Murray and child to travel from Samoa to Sydney. The child, S, arrives in Sydney with Ms Murray and sister X. Ms Murray tells Ms Tomas and Mr Tomas she had changed her mind and was taking the child back to Samoa with her. Respondent tells Ms Tomas that she does not want to remain

staying in Ms Tomass house. 18 February 2009 8 March 2009 9 March 2009 9 March 2009 13 March 2009 Ms Murray and the child travel to Brisbane and stay in a house owned by a woman named T in Brisbane. Ms Murray and child arrive back in Sydney from Brisbane. Ms Murray advises Ms Tomas that she wishes to return to Samoa with the child Tomases instruct their solicitor to write to cousin in Brisbane seeking that the child M come and live with them Tomases purchase ticket for Ms Murray and the child to return to Samoa on 15 March 2009 and file an application in the Federal Magistrates Court in Parramatta for child to remain in Australia and be placed on the airports watchlist. Parties attend airport. Whilst at airport Ms Murray is advised by the Tomases and Ms A that the child is on the airport watch list and will not be returning to Samoa. Ms Murray returns to Samoa without the child. Ms Murray and Mr Murray obtain an order from the District Court in Samoa for the discharge of the adoption. Ms Murray applies for a visa to return to Australia. Visa denied because sponsor completed incorrect forms Visa granted to Ms Murray for travel to Australia Ms Murray returns to Sydney and personally serves on the Tomases an order from the District Court in Samoa discharging the adoption. Ms and Mr Tomas say they are unaware that any application to Court in Samoa, until they receive the discharge order from Ms Murray. Ms Tomas and Mr Tomas file and application for parenting orders at Parramatta.

15 March 2009

14 April 2009 June 2009 19 October 2009 30 November 2009

8 December 2009

21 & 22 December Application for interim parenting orders heard in Family Court 2009 in Parramatta. Interim orders made that the child live with the applicants Ms Tomas and Mr Tomas and spend time with Ms Murray. 28 December 2010 Ms Murray begins spending regular time with child pursuant to Interim Orders. 22 February 2010 Mr Tomas, Ms Tomas, Ms A and Mrs V file affidavits on behalf

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of the applicants and served on respondent. 23 February 2010 24 February 2010 25 February 2010 9 March 2010 17,18 & 22 March 2010 2 June 2010 29 August 2010 1 October 2010 14 October 2010 25 October 2010 Mr Tomas and Ms Tomas file an appeal in the District Court of Samoa to set aside the discharge of adoption order Ms Murray and Mr Murray file affidavits on behalf of respondent. MT swears affidavit on behalf of respondent. Family Report released. Final hearing which becomes a further interim hearing before Justice Benjamin Judgment and Orders handed down By Justice Benjamin Mention: Benjamin J invites any party to make an application for disqualification. Adjourned to 1.10.10 Mention: Proceedings further adjourned to 14.12.10 Ms Murray files Notice of Appeal, Application in an Appeal and Affidavit Appeal listed before Justice Coleman

14 December 2010 Application for disqualification made by Ms Murrays solicitor. Application refused. Adjourned to 8.3.11 17 December 2010 Appeal listed before Justice Coleman. Disqualification issue now subject to appeal and to be heard concurrently with the substantive appeal 28 February 2010 Supreme Court Samoa on appeal from the District Court: Notice of Motion by Murrays to strike out Tomass appeal unsuccessful. Appeal by Tomases in relation to the discharge of the adoption order to be heard by the Supreme Court of Samoa next on 18.4.11

OTHER EVENTS
43. The parties were not able to reach agreement about other events and in particular about events since 28 February 2011. As far as I know, the following is not controversial. Ms P noted from Ms Murrays passport that she was in Australia from 15 March 2010 until about 11 June 2010 and from 27 August 2010 until about 13 November

44.

2010. 45. On 15 March 2011 the Full Court of this Court upheld an appeal against the refusal of Justice Benjamin to recuse himself from hearing these proceedings and directed that the final hearing of the proceedings be fixed before another Judge in the Parramatta Registry, with all possible expedition. The matter was listed before me on 7 June 2011 on an application for summary dismissal by Ms Murray and for final hearing for 5 days commencing on 11 July 2011. On 10 June 2011, I held that the summary dismissal application had already been heard and determined and made no further interlocutory orders. At the time of the hearing before me, the Tomass appeal against the discharge of the adoption order was listed for hearing before the Supreme Court of Samoa on 15 August 2011. Ms Murray travelled to Australia for the trial on 10 July 2011 and departed on 15 July 2011. By arrangement with the Tomases and in addition to time spent on Tuesday, 12 July 2011 for the purposes of observations for the family report, Ms Murray spent time with the child on 11 and 15 July 2011.
FOR THE CHILD

46.

47.

48.

49.

CURRENT ARRANGEMENTS
50.

The child lives with Ms and Mr Tomas at their rented home in western Sydney. They moved into that home in March 2011 having previously lived at the home of Mr and Mrs V. The western Sydney property is a two bedroom, brick townhouse. On Mondays and Tuesdays Ms Tomas wakes the child at 7.00 am, gives her a shower and makes her breakfast. Breakfast is usually cereal, fruit, a cup of Milo and bread and butter. Ms Tomas packs her bag for Pre-School. At about 8.15 am she takes the child to pre-school Day Care at a nearby suburb. The child is at pre-school from about 8.45 am to 4.30 pm. Mr Tomas collects her after pre-school. If he has a late delivery then Mrs V or Ms SN (Ms Tomass cousin who lives with Mrs V) collect her. On Wednesdays, Thursdays and Fridays Ms Tomas wakes

51.

52.

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the child at 8.00 am and makes her breakfast. Ms Tomas lets the child watch a television show for about one hour and then she turns the television off and sits down with the child to do some writing. She tries to teach her to write her name, write letters and numbers, draw pictures and she reads her stories from picture books. At about 11.00 am she gives the child a shower, dresses her and packs food and clothes and they leave for Mrs Vs house. They arrive at about 12.00 noon and Ms Tomas makes lunch for herself, the child and Ms SN. At 1.30 pm Ms Tomas leaves for work. Sometimes Ms SN showers the child before Mr Tomas picks her up. Mr Tomas attends at Mrs Vs place at about 4.30 pm. Thereafter Mr Tomas is guided by the childs wishes. Sometimes the child says she wants to go the park on the way home and sometimes she wants to watch television. In Summer she mostly wants to go to the park. On arriving home the child watches television while Mr Tomas makes dinner. They eat dinner at 6.30 pm. Ms Tomas rings and speaks to the child at about 7.30 pm. At 8.30 pm Mr Tomas turns off the television, puts the child in her pyjamas and puts her to bed, in the bed of Ms and Mr Tomas. They say a prayer and the child goes to sleep. The child has her own room but rarely sleeps there. She usually sleeps in the bed with Ms Tomas and Mr Tomas. When Ms Tomas comes home during the week at about 10.00 pm she picks the child up and tries to put her in her own bed. However if the child wakes and says she wants to sleep with Ms Tomas and Mr Tomas, they let her. 53. Mr Tomas and Ms Tomas both swore affidavits on 27 June 2011. They differ in some details, for example, when the BBQ at Mrs Vs house is eaten and when they leave for home. The overall thrust of their evidence is similar. Strangely, they both depose to attending a BBQ at Mrs Vs house most Saturdays but during cross-examination Mr Tomas said that the BBQs only occur in Summer. The discrepancies are irritating but at least suggest that there was no systematic collusion between the witnesses. Later Mrs V gave evidence to the effect that the Tomases come to her house most Saturdays nights and that in Summer and on occasions during Winter, they have a BBQ.

54.

On Sunday morning, the child attends Sunday school and church with Ms Tomas. They go home after church and Mr Tomas prepares a meal. Sometimes they go to the markets at a nearby suburb. Otherwise the child memorises her bible verse from the morning. The child sleeps for half an hour after lunch. In the afternoon Ms Tomas and the child go back to church with Mr Tomas. They are home by 5.30 pm, eat dinner and Ms Tomas showers the child before putting her to bed at 7.30 pm. In Mr Tomass version the child is given a bath on Sunday nights. Ms Tomas says there is no bath at the home. Nothing turns on that.

THE EXPERT EVIDENCE


The Evidence of the Family Consultant 55. Ms P is a family consultant employed by the Family Court and was appointed as the single expert in these proceedings. She holds an honours degree in Social Studies and a Masters of Social Work from the University of Sydney. She also has a Graduate Diploma of Family Therapy from the Australian Institute of Family Therapy. She had 14 years experience with Centacare Sydney as a Counsellor with families affected by alcohol abuse; a Marriage and Family Counsellor; and as Director of Counselling and Mediation Services and Manager of Marriage Counselling, Mediation and Child Sexual Assault Programs. In 1994 she worked as a Public Guardian with the Office of Public Guardian. Since 1995 she has worked as a Family and Child Counsellor for the Family Court at Parramatta, where she is now Manager of Child Dispute Services. Relevantly she has undertaken Court sponsored staff development and training programs including Cross Cultural Awareness, and Working with Interpreters and NESB Families. For her report of March 2010 the family consultant read the affidavits then filed by the parties and the police record of Mr Tomas. Interviews were held on 5 and 12 March 2010. She interviewed Ms and Mr Tomas separately and together and interviewed Ms Murray. Ms Murray had the assistance of an interpreter. For her report of 11 July 2011 the family consultant read

56.

57.

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the agreed chronology, the Reasons for Judgment of Benjamin J of 14 December 2010 and the orders and reasons of Benjamin J of 2 June 2010. She interviewed Ms Tomas and Mr Tomas and the child separately and a few days later, she interviewed them together. 58. For her report of 14 July 2011 the family consultant interviewed Ms Murray and the child separately and observed them together on 12 July 2011. Again Ms Murray had the assistance of an interpreter.

First Report March 2010 59. It is revealing that when the family consultant asked Mr Tomas if it would have been in the childs best interests to return her to her mother (in March 2009) before she became attached to Ms Tomas and himself he replied Probably, but I was angry too. Mr Tomas became distressed when asked to consider the child returning to Samoa and said he: would think about suicide, she is going to take my heart. There is nothing left in this world. Ms Tomas too became emotional but made what might be considered a more child focussed response, to the effect that Im going to send money for her. Id go to Samoa to see her for her birthday. Faced with the proposition that the child might remain in Australia Ms Murray became tearful and said I will be devastated. I will appeal the case. Her life will be a mess. The family consultant noted that Ms Tomas did not react to Mr Tomass reference to committing suicide. The family consultant noted that although the competing formal proposals did not then include any time for the other party/ies with the child, the parties told her that if they were successful, the other parents would be permitted to spend time with the child. The family consultants observations for the first report were based on interviews on 5 and 12 March 2010 about 12 months after the child came into the Tomass care. The family consultant noted that the child was somewhat overweight. The family consultant noted that she did not separate easily from any of the parties. She cried and became distressed when Ms Tomas and Ms

60. 61.

62.

63.

Murray separately tried to leave her in child care. Nevertheless she was observed to have a warm relationship with the Tomases and with Ms Murray. The family consultant noted that the child had not seen Ms Murray (for some months) before the first observation and yet called her mummy. That they had a warm connection suggested to the family consultant that the child remembered Ms Murray as her primary attachment figure. 64. The family consultant noted that the child interacted warmly with the Tomases, played with them, clearly enjoyed herself and relished being the focus of attention. Both Ms Murray and Mr Tomas were resistant to handing the child over to the other party/ies. Indeed Mr Tomas required a forcible reminder from the family consultant before he provided the child to Ms Murray at the conclusion of one session. The family consultant noted that when X Murray and the child displayed conflict and upset, Ms Murray coordinated with Ms Tomas to defuse the situation and they held the children while encouraging them to kiss and make up. Subject to the Court finding her concerns to be well founded, the family consultant preferred the proposal of Ms Murray. She noted that at the heart of the dispute was a different understanding between the parties as to their rights and obligations under the Samoan adoption. She says that it may well have been in the bests interests of all parties, including the child, if Ms Murray had been permitted to return her to Western Samoa in March 2009. The child has a good relationship with all three parties. The fact of that relationship insofar as Ms Murray is concerned, given the childs long separation from her, suggested to the family consultant that she was the primary attachment figure for the childs early life. The family consultant noted that none of the parties suggested that it would be possible to maintain significant contact with the party/ies with whom she does not live. Remaining in Australia may alienate the child from her siblings and her culture, as it is practiced

65.

66.

67.

68.

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in Samoa. The Murrays have their own home whereas the Tomases rent. Like her siblings in Western Samoa, the child will receive a private education there. 69. The family consultant noted that Mr Tomas demonstrated possessive characteristics and either a manipulative nature or some emotional instability and he lost his licence in 2001 for driving with a proscribed content of alcohol in his system.

Second Report 11 July 2011 70. The family consultant saw only the Tomases with the child. She noted that compared to the observations for the February 2010 report, the child separated more easily from the Tomases. On that basis she thought that the child was more securely attached to the Tomases that she had been earlier. She also noted that the Tomases had not told the child about how she had come to live with them and that she was called different names by the Tomases and the Murrays. She noted that Ms Tomas conceded that the child was called ZA by the Murrays and S by the Tomases and was encouraged by the Tomases to call Ms Murray by her first name and not mother. She noted that Ms Tomas conceded that the child is confused about her identity. In the family consultants opinion the child needs to be told about her family relationships.

Addendum to Second Report 14 July 2011 71. 72. For this addendum, the family consultant saw only Ms Murray with the child. The family consultant noted a warm relationship between mother and child and that they interacted in a comfortable and relaxed manner. She thought that the relationship was a little less affectionate than she had observed in February 2010 but records that on parting, the child gave Ms Murray a number of big hugs and kisses on the mouth. Similarly, on returning to the waiting room the child seemed pleased to see Ms Tomas, who picked her up and gave her a big hug. The family consultants concerns about the child being

73.

74.

confused as to her identity were heightened by Ms Murray. She said that when she rang the child from Western Samoa, she and the child typically played a game whereby Ms Murray would initially call the child S; the child would insist on being called ZA and when called ZA, would insist on S. Ms Murray agreed with the family consultant that this indicated a degree of confusion within the child. 75. Ms Murray told the family consultant that she was not quite sure how the child would adjust to a return to Western Samoa but thought that she would adapt well because of her siblings. The child is assessed as being attached to Ms Murray and to Ms Tomas and Mr Tomas. She has a warmer relationship with the Tomases. The family consultant says that this is unremarkable given that she lives with the Tomases and had not seen her mother for 7 months. Nevertheless, the family consultant opines that Ms Murray was the childs primary attachment figure for the first 22 months of her life. The family consultant observes that if the child is to remain with Tomases she would be well cared for and loved. However, the family consultant notes that there are risks for the child under that proposal if her relationships with her biological parents and siblings are not maintained. The family consultant notes that the Tomases have not managed that to date. The family consultant sees an illustration of that failure in that they have not shown any inclination to assist the child to understand that Ms Murray is her birth mother. The family consultant says that if the child stays in Australia, the Tomases will need the help of the Post Adoptive Resources Centre. On the other hand if the child is returned to Western Samoa, she will have the benefit of her birth family (including 8 siblings) and her culture. The concern there would be that she may face difficulties in adjusting to the change and there may be trauma for her in separating from the Tomases. The family consultant thinks that those dangers may be ameliorated by the day to day care of her primary attachment figure Ms Murray.
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76.

77.

78.

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The Oral Evidence of the Family Consultant 79. The family consultant said that one of the options she recommended in her final report dated 14 July 2011, that the child remain in Australia with the Tomases, was based on an understanding that the child would be well cared for and loved by her adoptive parents. When asked, she agreed that she had no way of being certain that the child would be well cared for. She said that the recommendation was largely based on Mr Tomas saying, and his wife confirming, that he had stopped drinking to a great extent. She also said that she cannot know if this is true. The family consultant said that her opinion that S presented as a child who appeared happy and well cared for, was based on her observation when she walked out to the waiting room. The child was cuddling Mr Tomas, they were interacting and laughing and they seemed happy and comfortable. The family consultant explained that her basis for saying that that the child has developed a secure bond with the Tomases in her second report was her observation of the way the child interacted with Mr and Ms Tomas. She was very very comfortable with them and played with them and seemed to be having a good time with them. She was observed to be affectionate with them. There was no concerning behaviour. The family consultant said that although the child presents has having a warmer relationship with the Tomases than with Ms Murray, this was not surprising considering the child had not seen her birth mother for a long time. As to whether this indicates anything about the childs attachment to the Tomases in comparison to that with Ms Murray, the family consultant responded I think she is attached to both. When asked about what she meant in saying that the child appeared to have adjusted to being in Mr and Ms Tomass care, the family consultant responded that shes been in their care for a while now and she seems to be doing quite well in their care. The child was probably a bit warmer with the Tomases in July 2011 than she was in March 2010.

80.

81.

82.

83.

84.

The family consultant confirmed in cross-examination her view that the childs insistence in being called ZA and then S when talking to Ms Murray on the telephone, indicates confusion. She said that it is not ideal (for a child) to not have a name that all family members use. She went on to say that the child has two women who refer to themselves as being her mother. She observed the child calling both Ms Murray and Ms Tomas Mum and, in her opinion, the child is a bit confused. She said this could impact on her sense of identity and self-esteem but that she could not be sure about that. I commented to the family consultant that the expert evidence suggests that in a traditional Samoan adoption, the idea is that family links are not severed and that that could lead to a situation where there were literally two mothers. The family consultant agreed. The family consultant sought to explain her recommendation that the child be informed of her true identity so that she can become more confident and comfortable with it. She said she thought it would be better if the child had a sense of who these two mothers were and of the relationships. She reiterated that, in her opinion, the child is confused about this, particularly since Ms Tomas does not tell her that Ms Murray is her mother. The family consultant said that it is her view that Mr and Ms Tomas are not managing this part of the situation terribly well. In responding as to how she came to form this opinion, the family consultant said she thought that the Tomases very much want S to be their child and to be identified as their child and they as her parents. She thought that these proceedings must have engendered some awareness in the child about it, and that she (the family consultant) would be surprised if it was handled well. The family consultant said that in her opinion, if the child were to stay in Australia, the parties would need the assistance of a post-adoptive resource centre in developing a birth story for the child. She said that the concept of a birth story is important for all adoptive children. The birth story would help explain why the child is living with the Tomases when she has a family in

85.

86.

87.

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Samoa. She explained that the days when, as an adoptive parent, you took a child and didnt help them understand who they are, are long gone and is not good practice. 88. In relation to the Tomass capacity to facilitate an ongoing relationship between the child and her birth parents, the family consultant said that they have not demonstrated a capacity to do so to date. She also noted that (interim) court orders have not compelled the Tomases to do anything to foster such a relationship but that, in any event, they have volunteered nothing. The family consultant said that, if the child was to return to Samoa, she may face difficulties adjusting to a very different family situation. She would go from living in a townhouse in western Sydney to sharing a bedroom with four sisters. The family consultant said that the long term effects of this would depend on the effort that Ms Murray puts into helping her to adjust and that the whole family would have to put in an effort to make her feel comfortable. She did not know how well her adjustment back into the family in Samoa would be managed. The family consultant said that she thinks the child would be traumatised by leaving the Tomases, just as not returning to Samoa with her mother in 2009 was probably traumatising. She has had a number of separations from significant people. The family consultant was then asked about whether it would be good for the child to be protected from another major trauma. She responded that it might be, but that there is the downside to that, that she then would not be brought up in her own culture with her siblings, so its a difficult balancing job. The family consultant was also asked about whether there was a risk that this trauma would have an impact on the childs ability to form relationships in the future. She said that it might, but that moving back to be with her family could also be a protective factor. Similarly, when asked whether there was a risk that the child would develop mental health problems, anxiety or depression, the family consultant said that there was such a risk. However, she could develop these same

89.

90.

91.

problems if her living in Australia is not handled well and she is alienated from her culture and siblings. If the Tomases want the child to call her birth mother by her first name and refer to her biological siblings as friends, the family consultant said that there is potential for the child to lose her sense of identity and sense of connectedness. The family consultant said that the adoption literature would indicate that that is the case. 92. In her cross-examination by learned counsel for Ms Murray, the family consultant was asked about the procedure the court should adopt should it be determined that it is in the childs best interest to return to Samoa. The family consultant said that a transitional period would be ideal in these circumstances rather than her just getting on the plane. The family consultant thought that final changeover should probably be at court, and that she could spend some time talking to the child. The family consultant said that there are other family consultants at the Parramatta Registry who have expertise in the area of adoption and that they could do at least some short term work with the parties in assisting with this transition. The family consultant was asked about Mr Tomass comment that he would commit suicide if the child was to move back to Samoa. She said she had noted in her first report that this was of concern because she perceived it as an indication that either he was not emotionally stable or was trying to manipulate. She said she does not know him well enough to say that he has mental health issues. She said she would be concerned if anyone says that they would kill themselves and that Mr Tomas should speak to his general medical practitioner about these feelings. The family consultant said she could not be sure what he meant by the comment. She conceded that it is possible that that is just the way he expresses himself and allowed that, whichever way this case goes, someone is going to be devastated by the outcome. It was suggested that Mr Tomass feelings comprise a continuing burden on the child. The family consultant said that it sounded to her as though Ms Tomas is quite needy around the child but that she did not observe a

93.

94.

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burden as such. She said that children need emotional support for their parents and do not need to bear the burden of their parents emotional wellbeing. The family consultant said she had the impression that the child is meeting the emotional needs of both Mr and Ms Tomas. She said that there could be difficulties around this when she gets older and wants to try to individuate, but that it is a matter of degree. 95. It was concerning to the family consultant that Ms Murray changed her mind very early on and the Tomases did not contemplate returning the child at that early stage. As to whether it was at an early stage, the family consultant conceded that from the Tomass point of view that occurred a year after they had adopted the child and two years after they arranged with the Murrays to take the child. The family consultant said she asked Mr Tomas whether he thought that Ms Murray wanted to take the child back to Samoa because she was grief stricken, and that he responded that she was angry, rather than grief stricken and that he was angry too. The family consultant said that this showed a lack of insight, generally, into the childs needs and a lack of ability to isolate his own emotional needs from that of the child. The family consultant said that this is of concern and that it goes to demonstrate Mr Tomass viewing of the child as an entitlement rather than as a child who might be traumatised by being separated from her mother. She does not know whether his attitude has changed in this regard.

96.

The Evidence about Samoan Traditional Adoption 97. Without initial objection, Ms Murray relied on an affidavit of her solicitor, Shane Neagle. That affidavit in turn attached an affidavit of Dr T and also a commentary on an article which in turn is attached to the affidavit of Ms Murray. On Wednesday, 13 July 2011, I raised with the parties that the terms of any instructions to Dr T were not in evidence and that the second attachment to the affidavit of Shane Neagle is a commentary by someone, not on affidavit, who does not purport to qualify themselves as an expert. On Thursday, 14 July 2011 counsel for Ms Murray sought to rely on a further affidavit of Shane Neagle in

an attempt to correct those problems. That prompted an objection on behalf of the applicants which was rejected. 98. Tootooleaava Dr T offers opinion evidence about traditional Samoan adoptions. Dr T is the Co-ordinator of the Fasitoo Uta. In 1997 she was bestowed an orator matai or chief title, Tootooleaava, from the village of in Samoa. She has degrees in History and Law with honours and a Ph.D, all from the University of Otago in New Zealand. She does not formally establish her qualifications to give opinion evidence on Samoan cultural adoptions. However, the chain of correspondence between the solicitors for Ms Murray and the Attorney-General of Samoa demonstrates how Dr T came to be invited to give opinion evidence. Learned counsel for Ms Murray said that at some expense and trouble, they had sought to put before me, what Benjamin J had said was missing, when the matter came before him in 2010. If the formal requirements of expert evidence are a counsel of perfection8 then we are well short of perfection here. There is a further problem in that the instructions given to the expert were not agreed or even disclosed between the parties and not all of the statements of fact contained in the instructions are common ground. Happily Dr T commented on the practice and not on the history provided in the letter of instruction. She did not address the specific questions posed in that letter. I allowed the affidavit into evidence. The Tomases were free to adduce their own evidence. I do not think that the opinions are controversial and they put the arrangements described by the parties, into a context.

99.

100. Dr T describes the Samoan cultural practice of Vaetama as a form of cultural adoption. She says: That it usually occurs within the family, is very flexible and the ties with biological parents are never severed; That the child grows up knowing who his or her biological parents are or is informed of them later on; That the child is free to move between his biological and adoptive parents; That, when an individual decides to adopt out their child, an understanding is formed between the parties. For example, if a mother promises her unborn child to be adopted by relatives, the adoptive parents have a reasonable expectation that the mother will keep her promise; That there is however no strict cultural obligation on the mother to give up her child in the event that she changes her mind;
8 Makita v Sprowles (2001) 52 NSWLR 705, Heydon JA; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FAFC 157 Branson J.

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That, where the biological parents desire for the child to be returned, both parties consider and discuss the following factors: a) b) c) d) reasons as to why the biological parents want the child returned; the quality of care which has been provided by the adoptive parents; what is in the interests of the child; and what the child desires. That the outcome of those discussions vary. The child might stay with the adoptive parents or return to the biological parents. However the decision is considered to be mutual. If the biological parent obtains the child through different means, the adoptive parents have no redress. 101. Importantly, while Dr T gives evidence about traditional adoptions, the situation before me involves an adoption that was formalised under the law of Western Samoa. The Evidence about the Samoan Proceedings to Reverse the Discharge of the Adoption 102. Ms Murray relies on the affidavit of Semi Leung Wai, her lawyer in Samoa. He acts for Mrs Murray in the proceedings now before the Supreme Court of Samoa. He says that in March 2011 the Supreme Court refused his clients motion to strike out the Tomass appeal against the 14 April 2009 discharge of their adoption order. He says that the appeal was adjourned to 15 August 2011 after having been originally set down for an earlier date. He says that election petitions have priority over such matters and elections petitions were filed at the relevant time. 103. From unchallenged information provided to my chambers by email after the trial it appears that Ms and Mr Tomas have told the Supreme Court of Western Samoa that they will not prosecute their appeal and that they will bring an application for judicial review of the decision to discharge the adoption. I note that notice of that change did not come from them, nor is there any application that publication of my judgment await the outcome of those proceedings.

JURISDICTION
104. It is argued on behalf of Ms Murray that this Court has no jurisdiction to entertain the Tomass application. Her counsel confirmed that Ms Murray does not argue that the Court has jurisdiction but should refuse to exercise it

because Australia is a clearly inappropriate forum9. 105. As to this question, learned counsel for Ms Murray asked that I take into account the written and oral arguments made on behalf of her client for and at the hearing before me on 7 June 2011. As I understand those submissions I am asked to find that the proceedings are in reality adoption proceedings and therefore this Court does not have jurisdiction or that in any event the proceedings are an abuse of process. Notwithstanding that the Court has no jurisdiction, it is argued that it can nevertheless and should, order the return of the subject child to Samoa. 106. From the earlier written submissions, in summary: 1. The Family Court of Australia has no jurisdiction to hear these proceedings or to have ever heard these proceedings on the basis that: a) These proceedings are adoption proceedings AND not parenting proceedings OR any other proceedings to which the Family Law Act 1975 (Cth) (the Act) would apply. No consent has ever been given by the respondent for the Family Court of Australia to determine this matter, and; b) The Family Court of Australia, through the application of the Act, is being used by the Applicants to validate a situation involving the adoption of a child which is otherwise irregular, improper or illegal pursuant to the adoption and immigration requirements of the Commonwealth of Australia and the State of New South Wales. 107. The essential elements of the arguments made on behalf of Ms Murray are: The unique feature of adoption proceedings is the severance of any legal relationship between the biological parents and the child. That is the effect of the orders sought by Ms and Mr Tomas. Therefore these are really adoption proceedings and not parenting proceedings. The Samoan adoption has now been discharged but in any event, as it would not meet the requirements of formal recognition under Australian law, it was an illegal adoption. The Family Law Act 1975 (Cth) (the Act) does not
9 Forum non conveniens.

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empower the Court in relation to adoptions save for the power to make arrangements in relation to certain international agreements about adoptions and Western Samoa is not a prescribed overseas jurisdiction. Section 65G cannot apply as the mothers consent and the Courts leave is required for an adoption order in favour of a non parent; The right of a person concerned with the care, welfare and development of a child to apply for parenting orders (s 65C) cannot be used to circumvent adoption proceedings. Sections 116 and 117 of the NSW Adoption Act10 prevail over any Commonwealth law. To the extent that s 65C or any other provision of the Act gives the Court jurisdiction over the child in these circumstances then there is a conflict with State law and Australias international obligations under the Hague Convention on Inter country Adoptions. An officer of the Office of the Commonwealth Attorney General advised the lawyer for Ms Murray that the Immigration (Guardianship of Children) Act 1946 precludes the entry into Australia of a child adopted from a non convention country where the adoption was not declared to be valid by the Supreme Court. The Tomases are seeking to rectify arrangements that are not acceptable under Australias immigration and adoption laws through family law proceedings. Therefore the proceedings are an abuse of process; The childs New Zealand passport which allowed an Australian visa to issue, was itself falsely and possibly, unlawfully obtained; The devices employed by the Tomases could lead to child smuggling and trafficking into Australia; Even if restored by the Supreme Court of Samoa, the Samoan adoption can never be approved by an Australian Authority.
10 Adoption Act 2000 (NSW).

108. In the course of oral arguments made before me on 7 June 2011 it was submitted that because of s 69ZH of the Act the Court has no jurisdiction over the child. That argument seemed to rely on the proposition that these are or are in essence, adoption proceedings. Adoption being the subject of welfare laws, the Court is being asked to make orders about welfare matters under s 67ZC. It was submitted that s 69ZH effectively acts as a limitation on the general powers of this court in relation to welfare issues whereby a child must be a child of a marriage. It is submitted that in circumstances not dissimilar to the matter before me, the High Court in Minister for Immigration and Multicultural and Indigenous Affairs and B and Others [2004] HCA 20; 219 CLR 365; 206 ALR 130 found that the Family Court had no jurisdiction. 109. It was submitted that I should be aware of the public interest in preventing international transactions in children; the problems of loop holes in the Australian law and the danger of ratifying a mechanism for the inappropriate transfer of children from a disadvantaged country. It is submitted that the Court should be seen to reinforce the need to use lawful and recognised adoption procedures. 110. It is submitted for the Intervener that the Court does have jurisdiction. The essential elements of the arguments made on behalf of the Director-General are: Adopted in the Act means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children; The effect of adoption is that the child becomes at law the child of the adoptive parents and ceases to be the child of the birth parents; It seems unlikely that the definition of adopted in the Act was intended to exclude an adoption not recognized as such by the law of Australia; The child did not come into the care of the adoptive parents pursuant to an illegal adoption, and no inference can be drawn against them on that basis; The adoptive parents have the care of the child who is in

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Australia and are thus entitled to bring parenting proceedings in the Family Court; The natural parents of the child may have been reinstated as the parents of the child by virtue of the discharge of the adoption order, but in any event are interested in the care of the child and were in fact the carers of the child for more than a year of her life; For the purposes of parenting proceedings in the Family Court both the natural and adoptive parents may be treated as parents with whom the child has a right to have a meaningful relationship. For the purposes of parenting proceedings in the Family Court, an adoption pursuant to the law of another country is regarded as if it were a valid adoption pursuant to the laws of Australia. The natural parents of the child are not elevated in relation to other persons merely because they are the parents. There is no presumption in favour of parents. The Court may have some comment to make on the unsatisfactory nature of the adoption process in this case, carried out by both the applicants and respondent, which has enabled the applicants to by-pass the regulatory authorities, both in terms of the adoption and of bringing an adopted child into Australia. Discussion about Jurisdiction 111. Part VII of the Family Law Act contains the following section:
Section 64B (1) A parenting order is: (a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or (b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a). (2) A parenting order may deal with one or more of the following: (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i) a child to whom the order relates; or (ii) the parties to the proceedings in which the order is made; (h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

112.

The Tomases seek orders within the description in 2(a), (b), (c) and (d). The orders sought by the Tomases are parenting orders. Parenting proceedings may be brought by a number of categories of people. Section 69C provides:
Who may institute proceedings (1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children. (2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:

113.

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(a) either or both of the childs parents; or (b) the child; or (c) a grandparent of the child; or (d) any other person concerned with the care, welfare or development of the child.

114. The Tomass fall within subsections (2)(d) if not (2)(a). 115. As to the connection between the proceedings and Australia, s 69E provides:
Child or parent to be present in Australia etc. (1) Proceedings may be instituted under this Act in relation to a child only if: (a) the child is present in Australia on the relevant day (as defined in subsection (2)); or (b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or (c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or (e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings. (2) In this section: relevant day, in relation to proceedings, means: (a) if the application instituting the proceedings is filed in a courtthe day on which the application is filed; or

(b) in any other casethe day on which the application instituting the proceedings is made. Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

116. 117.

Subsections (1)(a), (c) and (d) apply. As to the argument that the effect of the Tomass application is the same as an adoption application: true it is, among other orders, the Tomass seek an order for sole parental responsibility. However the fact that the orders have the same effect does not make these adoption proceedings. With some obvious similarities, the matters taken into account in adoption proceedings are not entirely the same as those taken into account in parenting proceedings. In Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp11 this Court dealt with a child who was said to have been the subject of a customary adoption in a Torres Strait Island extended family. Chief Justice Nicholson, as he then was, sitting at first instance, found that notwithstanding the competing assertions about the requirements of customary adoption, the main issues were, with whom the child should reside and the responsibility for the care welfare and development of the child. His Honour found that those matters were to be addressed under the provisions of Part VII of the Act. I assume that the argument about s 65G is based on a misreading of the section. Section 65G addresses the impact on the rights of biological parents of an adoption in certain circumstances. No party before me seeks the approval of this Court under that section in anticipation of an adoption application to be made to a State Court. Therefore, these proceedings cannot fall within the provisions of that section.

118.

119. As to the argument that the proceedings fall within the scope of s 69ZH that is not the case. If I understand the argument correctly, the section is said to be attracted because these are not parenting proceedings and therefore must fall within the Courts welfare power and that power is limited. I am satisfied that the proceedings before me are parenting proceedings. As to the suggestion that the circumstances of this case have
11 [2003] FamCA 1393; (2004) FLC 93-186

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similarities to those which ultimately came before the High Court in Minister for Immigration and Multicultural and Indigenous Affairs and B and Others above, the circumstances are clearly different. In the latter proceedings the issue was whether the Act conferred power on the Court to order that a Federal Minister release children held in immigration detention. The High Court found that it did not. Separate judgments were given but for example, in their joint judgment, Chief Justice Gleeson and Justice McHugh found:
53. The orders sought in the present case are not concerned with the relationship between the parents of the children. They do not seek to enforce duties or obligations owed by the parents to the children. They are not analogous to the orders sought in Marions case, which did not impose any duty or liability on a third party. The object of the orders in the present case is to require the minister to take or to refrain from taking action in respect of the children. Nothing in Pt VII gives any support for the making of such an order or orders against the minister. Consequently, no provision or combination of provisions in Pt VII defines the jurisdiction of the Family Court with respect to a matter involving the minister. So far as the minister is concerned, the Act has not defined any jurisdiction of the Family Court with respect to a matter mentioned in s 75 or s 76 of the Constitution.

120. The reference to Marions case is a reference to Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR 392 where the parents of a child sought permission for the sterilisation of their daughter or the power to authorise that procedure themselves. There the welfare power was found to extend to the Court granting that relief. As in the case before me, but unlike the situation in Minister for Immigration and Multicultural and Indigenous Affairs and B and Others, the orders sought to define the parenting authority of the parties. No order was sought against a third party. 121. Finally, there is an argument that the proceedings are an abuse of process and as I understand the argument, that arises in part because conduct of parties was in breach of Australian and or New Zealand law. The argument goes that the New Zealand passport relied on to allow the child entry to Australia was obtained by fraud and that because the childs adoption did not meet the

requirements for recognition in NSW, it was illegal. 122. I respectfully adopt the submission made on behalf of the Director-General the fact that the Samoan adoption would not meet the requirements for recognition in NSW does not make it an illegal adoption. 123. There is a level of hypocrisy in Ms Murray complaining about events in a chain of conduct in which she cooperated. Until February 2009 she was a willing participant in an arrangement to deliver the child to the Tomases. However, I am not sure that there is any merit in the jurisdictional argument in any event. Even if the adoption was illegal I am not sure that this Court could, on that basis alone, refuse to exercise power. This Court is charged with making orders in matters within its jurisdiction. Illegal conduct comes to the attention of the Court from time to time but it does not necessarily justify a refusal to exercise judicial power in that matter. For example and relevantly: Justice Brown, as she then was, made parenting orders in relation to a child whose birth was the product of steps taken under an agreement that her Honour found, would have been illegal in Victoria12. Her Honour found:
94. The fact that such an agreement would be illegal in Victoria, by virtue of the provisions of the Infertility Treatment Act 1995 (Vic), is not a relevant consideration.

Justice Watts made parenting orders in two cases in relation to children whose birth was the product of steps taken under an agreement that was illegal in Queensland.13 In one of those cases, Findlay and Anor & Punyawong, his Honour said: 10. At the time the children were conceived (a time prior to 1 June 2010), the Surrogate Parenthood Act 1988 (Qld) was in force. Section 3 of that Act prohibits the applicants doing what they have done and makes it a criminal offence.
11. By the time the children were born, the Surrogacy Act 2010 (Qld) (SA Qld) was in force. As from 1 June 2010, s 56 and 57 SA Qld prohibited commercial surrogacy agreements and made entering into one and providing commercial benefit to the surrogate illegal.

Conclusion 124. Parenting orders are sought. Ms and Mr Tomas have


12 Re Mark: an application relating to parental responsibilities [2003] FamCA 822; (2003) FLC 93-173. 13 Dudley and Chedi [2011] FamCA 502; Findlay and Anor & Punyawong [2011] FamCA 503.

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standing to bring the proceedings. There is a qualifying connection with Australia. I am satisfied that the Court has jurisdiction to determine these proceedings.

PARENTING PROCEEDINGS
Submissions 125. The Applicants following: written submissions include the

[The child] has lived with the Applicants, as their daughter, since February 2009 when [the childs] birth mother delivered [the child] into the care of the Applicants. In April 2009, the adoptive mother obtained a discharge of the adoption order for [the child] without the knowledge and consent of the Applicants. The Applicants have challenged that decision in the Supreme Court in Samoa and expect a decision in August 2011. The child is settled and safe in the care of the Applicants. The Court should adopt a cautious approach and leave the [the child] in the care of the Applicants.

126.

The respondents Case Outline Document included the following:


Presumption of Equal Shared Parental Responsibility: s.61 DA

Pursuant to S.61DA(4) this presumption is rebuttable. In this situation, equal shared parental responsibility is inappropriate as the childs biological family live in Samoa and her adoptive mother and father live in Sydney. Sole responsibility should lie with the childs parents in Samoa.
Best Interests of the Child: s.60 CA The Court must consider the primary considerations and additional considerations when making a determination as to the best interests of the child. Submissions in relation to the primary and additional considerations are detailed below. Primary Considerations: s60 CC (2)

1. Consideration of s.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the childs parents: The child will benefit most by having a relationship with her biological parents, and knowing who her biological family are. [The child] is now 4 years and 1 month of age and spent the first 22 months of her life with her natural family which includes her mother, father and 8 siblings. 2. Consideration of s.60CC(2)(b): The need to protect the child from psychological harm from being subjected to or exposed to abuse, neglect or family violence: The mother withdrew her consent to the adoption agreement and declined to continue with the agreement when she arrived in Australia with the child because she had now raised the child continuously since birth and had a significant bond with the child and certain concerning aspects of the applicants lifestyle became known to her. The Respondents evidence is that the following aspects caused her concern enough to rescind the adoption agreement: the 2nd applicant determining she would not remain at home to look after the child despite the representations to the respondent that she would; drinking habits of the 1st applicant; 1st applicants affair with his niece resulting in a child; comments by the 2nd Respondent and Ms A including violence between the 1st and 2nd respondent; and, a somewhat permissive attitude about extra-marital relationships of the 1st applicant. The child is at risk of psychological harm if the Court orders that she remain in Australia with the applicants: [The child] would become alienated from her culture as it is practised in Samoa and also denied an opportunity to form a close bond with her extensive immediate family. Neither of the parties has suggested that it is realistic for [the child] to maintain significant contact with the party with whom she does not live. (paragraph 56, Family Report). The Family Report writer identifies some concerning personality traits of the 1st applicant: ...manipulat(ive)... or not emotionally stable... a

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controlling and possessive side...that calls into question his appropriateness to parent... importance of [the child] to his emotional well-being place an inordinate burden on the child in terms of meeting his needs. (Paragraph 58, Family Report). In addition, the 1st Respondent was less than forthcoming regarding his alcohol intake habits. (paragraph 59, Family Report). Additional Considerations: s.60 CC (3) 1. Consideration of s.60CC(3)(a): Any views expressed by the child and any factors (such as the childs maturity or level of understanding) that the court thinks are relevant and the weight it should give to the childs views: The child is too young to express her views. 2. Consideration of s.60CC(3)(b): The nature of the relationship of the child with (i) Each of the childs parents; (ii) other persons (including any grandparent or other relative of the child): [The child] had lived with her natural parents and 8 siblings for the first 22 months of her life. She was breast-fed by her natural mother during this time. At 22 months, [the child] was introduced to the [Tomases] for the 1st time. [The child] has lived with the [Tomases] since they refused her return with her mother in March 2009 and has spent time with [the child] in accordance with the Interim Orders made in December 2009. The Family Report Writer observes [the child] as having a good relationship with both the applicants and respondent. Of particular note is the fact that she still has a firm bond with her birth mother who was her primary attachment figure for the first twenty-two months of her life. Despite a disruption of nine months this firm bond is still evident.(paragraph 55). Further, the attachment that [the child] has now formed with the applicants is one where given her mother is still her primary attachment, removal from the applicants is not likely to be detrimental to her long-term welfare and development (see paragraph 55).

3. Consideration of s.60CC(3)(c): The willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent: It is unlikely the successful party in these proceedings would be willing to facilitate an ongoing relationship with the unsuccessful party. If the child returns to live with her natural family then she will have all of the benefits of being raised within her culture, with her siblings and parents. 4. Consideration of s.60CC(3)(d): The likely effect of any changes in the childs circumstances, including the likely effect on the child of any separation from (i) either of his or her parents; (ii) any other child or person (including any grandparent or other relative of the child), with whom they have been living: If [the child] were to return to Samoa with her natural family, she would be returning to the environment in which she has spent most of her life. Given that she would once again be surrounded by her parents, siblings and extended family members in her native homeland, it is submitted that this would simply restore her to the environment she has known most of her life. It is the environment in Sydney with the [Tomass] which is a foreign environment for [the child]. The Family Report indicates at paragraph 55 that a return to live with her family in Samoa is not likely to be detrimental to her long term welfare and development. There is no reason to suggest [the child] would have any more advantages growing up in Australia than in Samoa. In Samoa her siblings attend private schools and it is intended that [the child] would attend the same. She would reside with her family in their residence in Samoa. The Family Report indicates that living in the family residence in Samoa compared with her living arrangements in Sydney may offer more stability(paragraph 57). 5. Consideration of s.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the childs right to

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maintain personal relations and direct contact with both parents on a regular basis: There will be significant practical difficulty and expense associated with spending time and communicating with the party who is unsuccessful in these proceedings due to the distance between Australia and Samoa. The mother will be unable to remain in Australia given her husband and 8 other children reside in Samoa and the limitations on her visa. 6. Consideration of s.60CC(3)(f): The capacity of (i) each of the childs parents; and (ii) any other person (including any grandparent or other relative of the child): There is no evidence to suggest that the home environment in Samoa is inappropriate for [the child]. There is evidence to suggest instability and elements of an inappropriate living environment were [the child] to remain with the applicants. These are reflected in the mothers concerns about the child remaining with the applicants and in the reasons why the mother rescinded the adoption agreement. These issues are summarised above at paragraph 2. In addition, as also summarised above at paragraph 2, the Family Consultant has concerns in relation to Mr [Tomas]. These are reported within paragraphs 58 and 59 of the Family Report. [The childs] natural family in Samoa have their own home and all of the children attend private schools. Mr [Murray] is the principal accountant for [a government department] in Samoa. He has a degree in commerce. There is no evidence to suggest the parents have no capacity financial or otherwise to care for [the child]. They are raising 8 other siblings who are older than [the child]. It is uncertain as to the level of educational attainment of the applicants. It is suggested that the 1st applicant does not have a secondary education. Therefore the family most likely to be able to provide for [the childs] educational needs is her biological family.

7. Consideration of s.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the childs parents, and any other characteristics of the child that the court thinks are relevant: [The childs] background and culture is Samoan. It is appropriate and in her best interests that she live within this culture in the country of her birth and upbringing, with her natural family who have provided and will continue to provide a loving home environment. She has the right to know and grow up alongside her 8 brothers and sisters. She would not have this opportunity if she remained in Australia. She has no siblings in Australia. Australia has International obligations in this regard. Article 20 of the United Nations Convention on the Rights of a Child (1989), of which we are a signatory, provides inter alia that due regard shall be paid to the desirability of continuity in a childs upbringing and to the childs ethnic, religious, cultural and linguistic background. The lifestyle and background of the 1st applicant is in question. The mother has particular concerns for [the child] being raised by the applicants given the 1st applicants relationship with his niece while she lived in the home of the applicants. There is one child of this relationship. Of further concern to the mother is the comment to her by the 2nd applicant to the effect of, it doesnt matter if my husband will also marry your daughter. What is wrong with that? The mother has concerns about the alcohol use of the 1st applicant and what she has been told about violence in the marriage of the applicants. 8. Consideration of s.60CC(3)(h): Aboriginal or Torres Strait Islander background: Not applicable. 9. Consideration of s.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the childs parents: The mother was always unsure of her decision to allow
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the adoption of [the child] to her aunt and uncle. The mother says that despite the protestations of the father, she felt sorry for her aunt and agreed to the adoption because of this. The mother regretted her decision at the time [the child] was brought by her to Australia and this regret was reinforced by the information she came to know when she arrived here with [the child] in February 2009. The mother was due to return to Samoa with [the child] on 15 March 2010, using an airline ticket purchased/organised by the applicants on 13 March 2010. The applicants prevented this from occurring and the mother was forced to return to Samoa without [the child]. Unknown to the mother was that on the same day the airline ticket was purchased for [the child] and the mother to return to Samoa, the applicants filed parenting proceedings in the Federal Magistrates Court at Parramatta, also seeking an airports watchlist order. This application was withdrawn by the applicants the day after the mother had to leave Australia without the child. The filing of this application was only done to keep the child in Australia pursuant to the airports watchlist. Of note is the fact that at no time, prior to or after the birth of [the child] did the applicants travel to Samoa to meet her. In fact it was the case that 22 months later the mother came to Australia with [the child] on tickets paid for by the applicants. This is unusual behaviour for adoptive parents who have to wait for nearly 2 years to see the child. The 1st applicants comments to the Family Consultant are of concern in relation to his attitude. The 1st Applicant: does not give full and frank disclosure regarding his alcohol use and a previous drink-driving conviction; he is unable to indicate how it is that [the child] would have a better life in Australia; he does not give full and frank disclosure about his sexual relationship with another niece (it is the 2nd applicant who reveals this to the Family Consultant, therefore what the mother says as a concern she had and a reason she elected not to leave [the child] with the applicants was correct); he presents to the Family

Consultant as either being manipulative or not emotionally stable give his comment about likely suicide if [the child] is returned to the care of her natural family; he demonstrated to the Family Consultant a controlling and possessive side; he sees [the child] as meeting his needs indicating that [the child] is important to HIS emotional well-being (see paragraphs 58 and 59 of the Family Report). The 2nd applicant has not seen the need to take time off work in order to care for [the child] (in accordance with her initial representations to the mother that she would do this). [The child] is cared for by a nephews wife for the time being while the 2nd respondent goes to work. Both of the applicants work. The 2nd applicant works from about 2:00pm until 10:00pm most days in the week. 10. Consideration of s.60CC(3)(j): Any family violence involving the child or a member of the childs family: The mother alleges she has been informed by the 2nd applicant and that there is some domestic violence between the applicants. The mother herself notes the 2nd applicant appeared to have a bruised lip when she returned from Brisbane on 24 February 2009. 11. Consideration of s.60CC(3)(k): Any family violence order that applies to the child or a member of the childs family, if (i) the order is a final order, or (ii) the making of the order was contested by a person: Not applicable 12. Consideration of s.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child: It is in the best interests of this child that this matter be finalised. The longer the child remains away from her home and family in Samoa, the more detrimental to her well-being that protracted proceedings will be. In addition, there are other children who are suffering as a result of these events. These children being [the childs] 8 siblings back in Samoa who have had to live without their mother while she remains in Australia for these proceedings. The longer these proceedings

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continue, the less opportunity [the child] has to maintain her relationship with her siblings and her father with whom she lived for the first 22 months of her life. 13. Consideration of s.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant: By way of background cultural information, it is important for this Court to be aware of what might be termed the customary adoption practices of the Samoan culture. It appears that is some circumstances, members of the extended family may raise a child in order to provide them with opportunities that the child might not otherwise have had, especially education. A paper entitled, Samoa: A Situation Analysis of Children, Women and Youth prepared by Dr Chris McMurray for the Government of Samoa and UNICEF in 2006 describes the practice thus: Due to the extended family life in Samoa, people are used to an open form of adoption where children are raised by siblings, grandparents or other relatives. This is known as vae tama. The circumstances of the applicants previous adoption of the child [M] are relevant for consideration in these proceedings and similar in many respects. Not only was there delay in the adoption/collection, but the applicants did not seek to establish a bond with this child and the mother now refuses to allow this child to live with the applicants, despite the applicants insisting in is their right for the child to be with them. The applicants have therefore engaged in illegal adoption practice before. 14. Consideration of s.60CC(4): The court must consider the extent to which each of the childs parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the childs parents: (a) has taken, or failed to take the opportunity: (i) to participate in making decisions about major long term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled or failed to fulfil, the parents obligation to maintain the child.

Having regard to the above facts and circumstances, I submit that Orders sought by the respondent in relation to the child be made by the Court.

Discussion 127. Parenting proceedings are determined on the basis of s 60CA of the Family Law Act. It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

128. The provisions of Part VII distinguish between parents and grandparents and others. The Murrays and the Tomases have all been the childs parents. Ms Murray is the biological mother of the child and to the extent that her status was changed by the 2008 Samoan adoption, as at the date of the hearing, the Samoan adoption has been discharged. There is no definition of parent in the Act but by s 4 of the Act parents include those who adopted a child according to law, including outside Australia. Therefore the Tomases were adoptive parents. The legislation does not refer to those who are or who were ever parents but only to those who are parents. 129. Therefore these proceedings involve parties who are not parents. Assuming I am not wrong in that, it is necessary to consider the precise wording of the provisions. The relevant provisions do not all specifically address the circumstance whereby a party is not a parent. 130. In dealing with such a matter, I understand the position to be:14 a) A two step approach is appropriate. First, is the non-parent a person concerned with the care, welfare or development of the child; and if so, what order should be made in the best interests of the child? b) Section 65C does not prescribe a hierarchy of applicants. The application falls to be determined under s 60CA guided by the objects and principles in ss 60B(1) and (2) and based on consideration of relevant matters under ss 60CC(2) and (3); c) A number of Part VII sections do not apply when assessing best interests in proceedings that
14 Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421; 42 Fam LR 369; 235 FLR 450.

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involve a party who is not a parent and particularly where two parents are not also parties. For example: Sections 61DA and 65DAA are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent15; Sections 60B(1)(a), (c), and (d); Sections 60B(2) (a), (c) and (d) Section 60CC(2)(a); and Sections s 60CC(3)(c), (e), and (i). d) In relation to s 60CC, that does not mean those considerations are to be ignored if the facts of the case raise them as issues. They can be addressed under other considerations such as s 60CC(3)(f) [capacity to provide for needs] or, if nowhere else, under s 60CC(3)(m) [any other fact or circumstance relevant]. 131. Ms and Mr Tomas are persons concerned with the care, welfare or development of the child. 132. Despite the fact that they are not parents, the claims of Ms and Mr Tomas are not, for that reason alone, outweighed by those of Ms Murray. 133. The otherwise prescribed pathways of ss 61DA & 65DAA do not apply.

134. Sections 60B(1) and (2) provide:


60B Objects of Part and principles underlying it (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from
15 In Aldridge & Keaton above, the Full Court cited with approval the reasoning of Moore J in relation to ss 61DA and 65DAA in Potts & Bims and Ors [2007] FamCA 394 at paragraph 8.

being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a childs best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

135. Findings are required as to what is in the childs best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a childs best interests. 136. Section 60CC(1) requires the Court to consider the primary considerations and additional considerations articulated in ss 60CC(2) and 60CC(3) respectively. For ease of reading I will set out issues that relate to the Tomases as if they are parents under the specific provisions of those subsections but rely for authority on s 60CC(3)(m) where necessary. Turning to the matters in s 60CC as they relate to these proceedings:

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Primary Considerations (2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents 137. In McCall & Clark (2009) FLC 93-405 the Full Court accepted the interpretation of Brown J in Mazorski & Albright16 who found that a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. The Full Court also accepted the interpretation of Bennett J in G & C17 that the enquiry was a prospective one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. In Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, ORyan & Benjamin JJ) observed at 83,502:
103. The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a meaningful relationship with both parents. This is an incorrect assumption. The Courts obligation is to make the orders most likely to promote the childs best interests. In seeking to achieve that objective, s 60CC(2) (a) directs the Court to consider the benefit to the child of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett Js analysis in G & C [2006] FamCA 994.) (emphasis in original)

138.

139.

The Full Court also observed in that decision at 83,513: The first and very important observation we would make about this complaint is that the expression meaningful relationship is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship . This provision was not the subject of extensive submissions. It seems to me that the background facts and the observations of the family consultant permit a finding that there is likely to be an important, significant and valuable relationship between each of the parties and the child. There is a question posed by the family consultant about the extent to which the child is meeting the needs of the Tomases, particularly of Mr Tomas, rather than them focussing on her needs. Nevertheless, no adverse impact on the child was detected by the family consultant other than some confusion about the nature of her relationship with the adults in her life.

140. 141.

16 (2007) 37 Fam LR 518. 17 [2006] FamCA 994.

142.

With the best will in the world it is difficult to see how the child will have a meaningful relationship with Mr and Ms Murray if she continues to live with the Tomases. She continues to be strongly attached to Ms Murray but the family consultant noticed a change in the nature of their interaction between the observations in March 2010 and those in July 2011. With infrequent physical contact presumably those changes would continue. Similarly her relationship with the Tomases is likely to have less meaning if the child only sees them a couple of times each year.

143.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence 144. 145. Abuse and family violence are defined terms. Section 4 of the Act includes the following definitions:
"abuse" , in relation to a child, means: (a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or (b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person. "family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

146.

Albeit in the context of findings of sexual abuse, in Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms:
Principles relevant to findings of sexual abuse 28. In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:

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In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities. It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered. In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse: (a) (b) (c) that the allegation is proved; or that the allegation is not proved; or

there is insufficient evidence to determine either (a) or (b).

Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. 29. In M v M (1988) 166 CLR 69 the High Court said at 76:

it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. Viewed in this setting, the resolution of an allegation of sexual abuse

against a parent is subservient and ancillary to the courts determination of what is in the best interests of the child. The Family Courts consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)

147. 148. 149.

It seems to me that those considerations apply equally to allegations of family violence. As to the standard of proof, the Evidence Act 1995 (Cth) (the Evidence Act) now incorporates the effect of Briginshaw18 in s 140. Section 140 of the Evidence Act provides:
Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

150.

Turning to the issues before me, no allegations are made in relation to abuse. As to family violence there are two sets of allegations. Ms Murray says that she has been told by family members that Mr Tomas assaulted Ms Tomas. However, she is simply not in a position to give and has not been able to call, credible evidence on this matter. She says that she saw Ms Tomas with damage to her lip. Ms Tomas denies the allegation and said that on the occasion referred to by Ms Murray, she had a cold sore. There is no independent evidence that Mr Tomas has assaulted Ms Tomas, or anyone else.

18 (1938) 60 CLR 336.

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151.

Mr Tomas deposes to an occasion in March 2009 when he saw Ms Murray smacking her daughter, X, very hard on the leg. He says that she was apparently very angry after speaking to her husband on the telephone. He says that the child was next to X when this occurred and started to cry. He says that Ms Murray then picked up the child and shouted at her [S] why are you crying? Although it would not conclusively resolve the issue, the family consultant does not report observing any damage to the child as a result of her being exposed to family violence. On that evidence alone I cannot make a finding that there was family violence on those occasions or that there is an unacceptable risk of family violence in the future.

152.

153.

Additional Considerations (3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; 154. Her youth means that little weight would be given to the childs views. In any event she has lived within the Tomas household for more than half her life, and has had limited and sporadic contact with her mother and no physical contact with her father and siblings. Happily none of the parties seems to have pressed the child for an expression of her views.

(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); 155. In the family consultants opinion, the primary attachment for the child is Ms Murray, at least that was the case for the first 22 months of her life. The family consultant noted a warm and appropriate interaction between Ms Murray and the child albeit that the recent interaction was not as warm as that observed in March 2010. That relationship is notable given the months of separation between mother and child. 156. There was a suggestion that the child recognised Mr Murrays voice when they spoke on the telephone on the first night of the trial. That would be remarkable because Ms Murray says that although she makes the calls every week, she and Mr Murray have often been unable to

speak to the child. The previous time Mr Murray spoke to the child was a date in May 2011. She has not seen him for more than two years. The effect of the mothers evidence, including exhibit 6, is that on the evening of the first night of the trial, the child recognised Mr Murrays voice on a telephone, without being prompted. In the course of cross-examination it transpired that at the commencement of the conversation Mr Murray identified himself to her as Dad. Therefore there is no evidence that the child recognised Mr Murrays voice. (3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; 157. The responsibility for this has necessarily, largely fallen to the Tomases since March 2009. The family consultant does not believe that the Tomases have made every effort to maintain the relationship between the child and her biological parents and siblings. The fact of the rift in the extended family of Ms Tomas and Ms Murray will hinder any efforts the maintain the relationship between the child and the party/ies with whom she does not live.

158. In the past there was a loving relationship between Ms Murray and her aunt, Ms Tomas. The initial agreement to adopt is evidence of that. I think I was told that X Murray was named after Ms Tomas. Sadly, the events of March 2009 have caused a rift between those women and between members of their shared extended family. Ms Murray told the family consultant that her mother no longer speaks to her sister, Ms Tomas and that the cousins have taken sides. The family consultant reports that Ms Murray said I know it will never be the same because I saw that she (Ms [Tomas]) is not interested in me any more. But it is up to her. It may be that the split largely coincides with the geographical location of family members. It is telling, in that regard, that Ms Murray took accommodation with one of her lawyers for the duration of the final hearing, rather than having the family accommodation that was provided to her in February / March 2009. 159. Albeit late in the piece, the main parties have each detailed the arrangements they propose, in the event that they are successful, to maintain contact between the child and the other party/ies. Given the

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rift between the Tomases and the Murrays and within their extended family; the problems incurred to date; and the expense of facilitating communication and physical contact between Samoa and Sydney, I am pessimistic about compliance with either set of proposed arrangements. Although the parties have managed to litigate in both jurisdictions, it should be noted that any orders for communication and physical contact will be difficult to enforce. 160. As to the costs, for example Ms Murray could not find family accommodation in Sydney for a week during the time of the final hearing. She and Mr Murray have what is said to be a good standard of living in Western Samoa but that does not mean that they, let alone their other children, can regularly fly to Sydney. Ms and Mr Tomas both have jobs and are likely to be able to more easily afford travel to Samoa but they live in rented premises and there is no indication that they have a substantial amount of spare funds.

(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; 161. There is one potential change. Since January 2009 the child has lived in Australia with the Tomases, has experienced long periods without physical contact with mother and has had no physical contact with her father or her 8 siblings. On the Tomass proposal that would continue but with the promise of some contact both in Australia and in Western Samoa. On the respondents case, the child will live in Samoa and will rarely see Mr and Ms Tomas. The family consultant identified the risk of trauma to the child if she is to return to Western Samoa. She does not know what impact there will be of her separation from Mr and Ms Tomas or of her adapting to life in the Murray household. She opined that the fact of her attachment to Ms Murray and contact with her siblings would support her through those changes.

162.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; 163. Whatever the outcome of the proceedings, the cost of travel and communication between Australia and Western Samoa is a relevant practical consideration for the future. The parties live 4300-odd

kilometres apart. There is no current evidence before me but I note that a single fare plus taxes for an adult or a child from Sydney to Apia in March 2009 with Polynesian Blue Airlines was about $600.19 That suggests that return travel for anyone but a baby or small infant then involved a cost of the order of $1,200. That means that the financial circumstances of the parties and their ability to fund travel and accommodation and communication of sufficient frequency and duration to maintain a close and meaningful relationship between the child and the other party/ies, are very relevant. 164. Mr Murray holds position which is well paid in Samoan terms. The Murrays describe themselves as living a middle class lifestyle. These proceedings and private school fees have taken a toll on the family resources. Mr Murray deposed20 to a gross weekly income of 776.00 Western Samoan Tala (WST). He says he pays 33% in various taxes. If the WST is worth about 43 cents Australian, his gross weekly income is about $A337. Ms Murray does not have paid employment. Mr and Mrs Murray have 7 children living with them. The children of school age attend Roman Catholic schools, for which their parents pay private school fees. From the evidence of Mr Murray I gather that Ms Murrays Australian solicitor paid her air fares to Australia for the hearing, as the Murrays could not afford them. Although Mr Murray had a different understanding of his wifes accommodation during the trial, it is conceded in the respondents case that she was accommodated for that period at the home of her counsel. In crossexamination Mr Murray thought that if the child stays in Australia, they could afford for Ms Murray (not himself or any of their other children) to visit once a year. The evidence is that Ms Murray rings the Tomass home to speak to the child, on average 3 times each week. The Tomases are both in paid employment. There is no evidence before me as to the state of their finances. There is reference in the evidence to them moving houses from time to time, living with Mr and Mrs V to save money and having a car loan in the name of another person. My impression is that the Tomas weekly budget may not be under the same pressure as that of the Murrays but I cannot be sure.

165.

19 Exhibit 3 travel plan for Ms Murray (and the infant S) and X Murray one way on 15 March 2009 was for $A1,201 @ $550 each for Ms Murray and X and a credit card charge. I gather on that basis that S would share a seat. 20 Para 3 of his July 2011 affidavit

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(3)(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; 166. As I understand her evidence, in the family consultants opinion the Tomases and Ms Murray have the capacity to provide for the childs needs. She has a specific concern as to the child being confused as to her identity because the Murrays and the Tomases have called her by different names and have given inconsistent explanations to her about her relationship with other family members. The family consultant seems to lay most of the responsibility for that at the feet of the Tomases, presumably because the child lives with them. The family consultant is concerned that the child might be meeting the needs of the Tomases rather than them being solely focussed on her needs. A number of specific potential concerns are raised in relation to Mr Tomas. The Family Consultant opined that Mr Tomas demonstrated possessive characteristics and either a manipulative nature or some emotional instability. Mr Tomas lost his drivers licence in about 2001 for 6 to 12 months for drink driving. He drinks 4 to 6 stubbies of beer each Saturday. In summer, there is usually a BBQ for the extended family at the home of Ms Tomass niece Mrs V and her husband. Ms Tomas drives Mr Tomas home from those events because he would be over the legal limit. However, Ms Tomas says Mr Tomas has never been drunk since she has known him. In 2008 he was convicted for running onto the field at an international sporting event. The police records assert that he had been drinking. Some years ago Mr Tomas stole a television set. On the set being recovered, no charges were laid.

167.

168.

169.

170. 171.

172. Except for S, Mr Tomas does not appear to maintain close links with his children. In the course of crossexamination he was unsure of their ages and said that he does not regularly communicate with them or visit them. This sits uncomfortably with his reference to suicide if the child is returned to Samoa. On the one hand he does not have a close relationship with most of his children and yet he suggested to the Family Consultant that if the child is returned to her biological parents by the Court, he will kill himself.

173. On the other hand the family consultant noted that the child interacted warmly with the Tomases, played with them and clearly enjoyed herself and relished being the focus of attention. As indicated above, the family consultant said that S presented as a child who appeared happy and well cared for. She noted, that the child cuddled Mr Tomas, they were interacting and laughing and that they seemed happy and comfortable. (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; 174. The child is a girl who is barely 4 years of age. The predominant influence on her early life was her mother. Despite very substantial periods of separation, her attachment to her mother remains strong. As to the childs Western Samoan background it seems to me that similar considerations apply to those detailed in 3(h) in respect of the Aboriginal and Torres Strait Islander communities. The issue is also addressed in s 60B(2)(e). In her first report, the family consultant asserts that it can be assumed that if the child was to stay in Australia she would become alienated from her culture as it is practised in Samoa. There is no evidence about the impact of the competing proposals on the childs exposure to Samoan culture. Indeed there is no evidence about the culture of Western Samoan culture save as to traditional adoptions. That might be because there is little between the proposals in that regard. There are clearly cultural issues. There is the confusing web of family relationships arising from traditional and formal adoption practices. There is the evidence about the childs sleeping arrangements. At one point in her cross-examination the family consultant referred to the child sharing a bedroom with four of her sisters in Samoa. Ms Murray deposes to her home in Samoa being a traditional Samoan house, which is open plan, with the usual amenities and two bedrooms. On the other hand it passed without comment that although the child has her own bed at the Tomass house, she is put to bed with Ms and Mr Tomas every night and sees out the night there on most nights. In a case without the Samoan background it might be expected that one or both of those practices would be criticised as inappropriate or at lease inadequate or undesirable. In the absence of more direct evidence on the topic, it seems to me that it is permissible to observe that in Australia, the child has had extensive and regular, indeed daily, exposure to members of her extended family.
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175.

176.

177.

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In addition, through Sunday school and church, she has had exposure to other members of the expatriate Samoan community. In that way she has some exposure to the culture of Western Samoa. Similarly, one can assume that living in Western Samoa with her biological parents and most of her siblings and being educated in a school there, would expose the child to, if not, immerse her in, the culture of Western Samoa. (3)(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; 178. This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; 179. Ms Murray says that when she came to Australia in February 2009 Ms Tomas said to her: Whats wrong if my husband wants to make your daughter his wife when she grows up?. According to Ms Murray that question was asked in response to her saying to Ms Tomas: If you cant be there and [Mr Tomas] is going to look after [the child] during the night time it is better that I take her back with me. Why didnt you say anything to our family about [Mr Tomas] having a relationship with [W]? I do not recall there being any challenge to this evidence but the response does not seem to follow from the question. There is no evidence before me as to the tenets of Western Samoan culture in this regard but irrespective of that culture, if stepping into the role of Mr Tomass wife would include for example, an adult S having a sexual relationship with him, that is an unacceptable and abhorrent proposition. Given that this evidence was given through an interpreter, I acknowledge the possibility that something has been lost or gained in translation. Ms Murray is critical of the Tomases because they have both continued in paid employment and for part of each working day, the child has been left in the care of others. For the purposes of Australian law there is nothing in the general arrangements made for the child by the Tomases that reflects poorly on their attitude to the child and to the responsibilities of parenthood. Indeed, it is a credit to them that the child is healthy and happy. She has been well cared for. As to

180.

181.

supervision, apart from recent pre school attendance, the child has always been under the care of a member of her extended family. 182. 183. Similarly, there is no criticism made of the Murrays and the upbringing they provided for the infant S. I note that the family consultant is critical of all parties in respect of their treatment of the childs need to understand her relationship with them and her confusion.

(3)(j) any family violence involving the child or a member of the child's family; 184. I have referred to this issue at s 60CC(2)(b) above.

(3)(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; 185. There are no family violence orders.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; 186. Subject to the right of appeal and depending on the treatment in Western Samoa of Australian orders, I would imagine that whatever decision is made will resolve the issues for the time being. In the latter regard no submissions were made about the impact in Western Samoa of orders made in these proceedings under private international law.

(3)(m) any other fact or circumstance that the court thinks is relevant. The Conduct of the Parties Generally 187. Reference was made during the hearing to the conduct of the parties at various stages, including their conduct of litigation that might be said to have a bearing on their fitness as parents for the child. For example there is the circumstance of orders being obtained from Courts without notice to the other parties. Without notice to Ms Murray, the Tomases attempted to obtain an AVO against her and succeeded in obtaining from the Federal Magistrates Court orders preventing her taking the child back to Western Samoa. Those orders were granted on 13 March 2009. It appears that the orders were never served, but were described to Ms Murray at a time when it was too late for her to challenge them. Then, once Ms Murray had left the jurisdiction, those proceedings were discontinued.

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188.

Similarly, Ms Murray and Mr Murray obtained a discharge of the earlier adoption order in April 2009. No notice was given to the Tomases of the proceedings prior to the order being made and no notice was given to them of the order until Ms Murray handed it to Mr Tomas on 30 November 2009. In the latter regard, Semi Leung Wai is the solicitor for the Murrays in Samoa and he says that the relevant laws and rules of Samoa do not require service of the order on the Tomases. A series of steps have lead to the unfortunate situation in which the child finds herself and to the considerable delay in resolving these issues. No doubt the way in which the parties obtained Court orders has contributed to that situation. For example, if the Tomases had ensured that Ms Murray was able to be heard in relation to the injunction and watch list orders granted in March 2009, I am confident that the issues would have been resolved then or otherwise addressed in a more timely way. Similarly, if the Tomases had been informed of the discharge application that was made in Western Samoa, that issue is likely to have been resolved or conclusively addressed in short order. However, the parties do not strike me as sophisticated people and therefore I am especially reluctant to take into account that conduct in identifying an arrangement that will be in the childs best interests. Of course, parenting orders cannot be made for the purpose of punishing poor behaviour by an adult.

189.

190.

The Benefit of the Tomass Proposal to the Murrays and their other Children 191. There is reference from Mr and Ms Tomas to the benefits of the adoption for the childs biological family. For example Ms Tomas told the family consultant You want to adopt for the future of the kids. We want to help each other. When they grow up and find a job and help their brothers and sisters. It seems to me that the potential economic benefit to the Murray family in Western Samoa, of the child making a life in Australia, is not something properly taken into account by me in these proceedings. I am to take into account matters going to the best interests of the child, not the best interests of her biological parents or siblings. Further, it would be paternalistic to take into account against her own proposals, a potential future benefit to Ms Murray, her husband and other children from the child growing up with the Tomases in Australia.

192.

The Need to Provide the Child with a Narrative as to Her Background and Relationships 193. In the family consultants opinion, the child should have been and should now be given an explanation of her relationships with the parties. This issue has relevance in two ways. First, the family consultant sees it as cause for concern in relation to the parenting capacities of the parties and because she has lived with them for the last two years, particularly those of the Tomases, that the child has not been given that explanation. Secondly, there is an issue as to whether the parties should cause that explanation to be given now and how that should be done. The family consultant spoke to Ms C who is Senior Practitioner and Acting Manager, Post Adoptive Resource Centre under the auspices of the Benevolent Society. I take it that this inquiry was made at the family consultants initiative. Ms C told the family consultant that children who are adopted should be brought up with the knowledge that they are adopted from the beginning of the adoption. She explained that very young children should be given information as soon as they can understand it. Ms C told the family consultant, by way of example, that when mixing with other families and seeing pregnant women it should be explained to the child by the adoptive mother that he or she did not grow in my tummy. The family consultant reports that Ms C said there were difficulties with kinship adoptions and stated that no one should grow up thinking their mother is their sister. According to Ms C an advantage for a child who is not adopted is that they have ready access to other family members who are available to help shape a childs developing sense of identity. The family consultant reports Ms Cs view: If an adopted child is not told the story of their birth then the childs developing identity is built on a false foundation. Interestingly, Ms Murray and Ms Tomas independently made almost identical responses to the family consultant about this issue. They thought that a full explanation should wait until the child is 11 or 12 years of age. Ms Murray added that it would be dealt with within the family. I note in that regard the reference in Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp (above) to expert evidence given in relation to the practice associated with traditional Torres Strait Islander adoption, Kupai Omasker. The evidence was that the child adopted is not meant to know the identity of his or her natural parents

194.

195.

196.

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until he or she is 21. At that time the child can acknowledge the biological parents as his/her parents or continue to acknowledge them as uncles, aunts etc. 197. Obviously as a result of the family consultants report, Ms and Mr Tomas have belatedly included in the orders they seek the following order:
That within 7 days, [Ms Tomas] and [Mr Tomas] shall engage with Ms [C], Senior Practitioner and Acting Manager, Post Adoptive Resource Centre under the auspices of the Benevolent Society (the adoption consultant) for the purposes of creating a birth story for the child and comply with the reasonable recommendations of the adoption consultant regarding the child (the recommendations) until the adoption consultant advises [Ms Tomas] and [Mr Tomas] in writing that the recommendations are no longer required.

198.

In that there has been no opportunity to explore this issue with the expert consulted by the family consultant, I am concerned that there might be another view in relation to the treatment of children such as the child. Could it be that there is merit in the independently expressed views of Ms Tomas and Ms Murray? I can confidently assume that if these proceedings had not been instituted, this issue would have been dealt with in accordance with the views of Ms and Mr Tomas. It is likely in that event that a birth story, whether constructed with the assistance of someone like Ms C or not, would have been addressed when the child was about 12 years of age. On the other hand, it may be that there is a universal truth about this question. It may be that the accepted wisdom across all child focussed cultures or at least, that the orthodox view in Australia, irrespective of other cultures, is as reported to the family consultant by Ms C. It follows in these proceedings that parental responsibility will go with the residence arrangement. There is a question as to whether the Court should interfere with that grant of parental responsibility by prescribing the design and delivery of a birth story for the child. The parties are now alive to this issue. Given that there has been no real opportunity to explore this issue, I am not in a position to make a specific order. If they are successful in their primary application, Ms and Mr Tomas are on record as intending to implement the approach suggested by the family consultant. Therefore, on one view, it is not necessary to make the order. If Ms Murray is successful then it may not be necessary or practicable to make the suggested order. The child would thereafter be living with her birth family and so the narrative may not be needed. Even if it is, it may not be practicable for her to access Ms C or a source of relevant advice from an individual or authority in Western

199.

200.

Samoa. 201. For the reasons outlined above, ss 61DA and 65DAA are not prescribed pathways in the reasoning process for these proceedings. Turning to the specific parenting orders sought - in this case consideration of orders about parental responsibility should logically follow a determination about the living arrangements for the child. Living Arrangements 202. Unlike the legislative pathway, here the decision about parenting responsibility must follow a decision about living arrangements. The pathway does not apply here. In any event, it is not in the childs best interests to live for equal or substantial and significant time with the parties. Nor would that be reasonably practicable. As to what is in the childs best interests, I will refer to the findings made in respect of the s 60CC matters.

203. Conclusion 204. 205.

The key issue is whether there should be a change of residence. The single expert does not make a specific recommendation but highlights the risks associated with the two options. A fair reading of her evaluation of the matter would be that the risks associated with return are less than those inherent in the Tomass proposals. The Tomases have had ample opportunity to address the risks the family consultant associates with their proposals that the child will have sufficient contact with her biological family to maintain a relationship with them; and her need for help with her identity development. In the family consultants opinion, they have failed to do so. There are concerns about Mr Tomass past behaviour and about whether the Tomases are able to focus on the childs needs. On the other hand the family consultant opines that the risks associated with a return to Western Samoa difficulties in the child adjusting to her new family situation and the trauma of separating from the Tomases, will be ameliorated by day to day care from her primary attachment figure, Ms Murray.

206. The first thing to say is that I have no doubt that the child will be safe and loved and happy under either proposal. Even with the limited view provided by the evidence in these proceedings, I have no doubt that Ms Murray, Ms Tomas and Mr Tomas have been loving parents to the child and that they want nothing but the
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best for her. They have all made significant sacrifices to achieve their aspirations for this lovely young girl. That said, in order to determine these proceedings, I am required to distinguish between the parties proposals. Far from the task in many cases, the search for adequate parenting, here I am able to make a choice between two proposals that offer love, security, support and fellowship to the child. To the extent that the findings and comments I have made seem critical of one or more of the parties, I hope that they understand that those are necessary in order to distinguish between the proposals, so as to decide the matter. 207. As the evidence falls before me, the proposal of Ms Murray is to be preferred. It offers the child a return to the household of her biological parents and of 7 of her 8 siblings. Whatever cultural experience is replicated in Australia by the expatriate Samoan community, she will likely have ready access to that culture in Western Samoa. There will be access to members of her extended family under either proposal. There is no evidence about the education plans for the child in Australia but I have no reason to find they would be superior to the attendance at the parochial school or schools at which the Murray children attend. 208. There is no suggestion that the act of agreeing to and facilitating her adoption by the Tomases was a rejection of the child by Mr and Ms Murray. It is entirely explained by the Samoan practice of traditional adoption. While not all of them were objectively concerning, some of the matters that influenced Ms Murray to change her mind about leaving the child with the Tomases in early 2009 raised significant issues. For example, Mr Tomass infidelity, leading to Ms Tomass cousin W falling pregnant with M Tomas came as a shock to Ms Tomas. It is no wonder that Ms Murray was disturbed by it. 209. In stark contrast to their earlier decision about the older M, the decision of the Tomases to prevent Ms Murray from taking the child home in March 2009 was not a child focussed decision. When the family consultant put that proposition to Mr Tomas he said: Probably, but I was angry too. Ms Tomas could not adequately respond when the same proposition was put to her by the family

consultant. 210. There are other issues in relation to Mr Tomass behaviour and personality. Perhaps most importantly, he seems to be unable to separate his needs from those of the child. For example, from the first report of the family consultant: the child is his heart and he would think about suicide. She is going to take my heart. There is nothing left in this world. Every morning I look forward to kissing her goodbye and I look forward to seeing her when I come home. As I have said above, the family consultant could not decide whether the reference to suicide was meant to manipulate or whether it reflected emotional instability. The family consultant considered that when he attempted to take the child from the Court building on an occasion when he was aware that she was to leave with Ms Murray, Mr Tomas demonstrated a controlling and possessive side to his nature - that calls into question his appropriateness to parent. 211. I note however, that although she was upset by the concept, Ms Tomass reaction to the proposition that the child might return to live with Ms Murray was: Im going to send money for her. Id go to Samoa to see her for her birthday. That is a more child focussed reaction than that of Mr Tomas. It should be said that it also contrasts with the reaction of Ms Murray to the proposition that the child might remain in Australia - I will be devastated. I will appeal the case. Her life will be a mess. In the latter regard however, it must be acknowledged that in a practical sense, there are no real options available to Ms Murray if her application fails. 212. In my view, the childs best interests will be met by her returning to live with Ms Murray, Mr Murray and her siblings in Western Samoa. 213. As to what orders should and can usefully be made in relation to the child spending time with the Tomases and communicating with them the reality is that any orders I make will be largely unenforceable. Despite the assurances given on behalf of Ms Murray, the rift between the Murrays and the Tomases and within the extended family of Ms Tomas and Ms Murray, together with the absence of any practical extra territorial effect of the orders of this Court in Western Samoa, create
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considerable doubt about a workable regime for physical contact and communication between the Tomases and the child, once she returns to Western Samoa. 214. Perhaps the best course is to make the orders proposed on behalf of Ms Murray and to give the parties a short opportunity to bring the matter back about the form of the orders. The parties have persisted in related litigation in Western Samoa, it might please them for example to put in place, mirror orders in that jurisdiction. Parental Responsibility 215. Parental responsibility is defined by s 61B of the Act to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
Section 61C Each parent has parental responsibility (subject to court orders) (1) Each of the parents of a child who is not 18 has parental responsibility for the child.

216.

Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order. Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order. Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child. (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying. Subsection (1) has effect subject to any order of a court for the time

(3)

being in force (whether or not made under this Act and whether made before or after the commencement of this section). Note: Section 111CS may affect the attribution of parental responsibility for a child.

217.

An order for shared parental responsibility has the following effect:


Section 65DAC Effect of parenting order that provides for shared parental responsibility (1) This section applies if, under a parenting order: (a) 2 or more persons are to share parental responsibility for a child; and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(b)

(2)

The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE). (3) The order is taken to require each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and to make a genuine effort to come to a joint decision about that issue.

(b)

(4)

To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

218. Discussion 219.

Presumably that must also apply to equal shared parental responsibility.

As is stated above, s 61DA is not part of the necessary pathway of reasoning in these proceedings. However, as Moore J said about ss

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61DA and 65DAA in the passage cited with approval by the Full Court in Aldridge and Keaton,21 Nonetheless, the particular applications may make it necessary to address those outcomes in any event. 220. Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or family violence.

(b) (3)

When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

(4)

221.

In the unusual context of this case, the presumption would be that it is the childs best interests for Mr Murray and Ms Murray to have equal shared parental responsibility for her. Neither the Tomases nor Ms Murray seek such an order. Nevertheless, the practical impact of an order in favour of Ms Murray would lead to that outcome.

21 Above.

222. Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility as it thinks proper. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act. 223. Of the orders proposed, the only practicable order in the event that the child is to live with Ms Murray in Western Samoa, is that Ms Murray have sole parental responsibility. Although not sought, perhaps the most sensible order would be one that did not interfere with the current position. That assumes that the law of Western Samoa is similar to that in Australia. Pursuant to s 61C, Mr Murray and Ms Murray each have parental responsibility for the child. I am not aware of the potential impact on those rights of proceedings in Western Samoa. The safest course is to make the order sought by Ms Murray. Conclusion 224. The presumption that the parents have equal shared parental responsibility does not apply because these are proceedings involving parties who are not the childs parents. As a result of my orders, the child will return to live with Ms Murray in Western Samoa. The only practical option of those pressed on behalf of the parties is that Ms Murray have sole parental responsibility for the child and I will so order. I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 17 August 2011. Associate: Date: 17 August 2011

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