Abadi and Sokulsky

[2017] FamCA 412

FAMILY COURT OF AUSTRALIA

ABADI & SOKULSKY [2017] FamCA 412

FAMILY LAW – CHILDREN

APPLICANT: Mr Abadi

RESPONDENT: Ms Sokulsky

INDEPENDENT CHILDREN’S LAWYER: Boland Legal

FILE NUMBER: SYC 3215 of 2010

DATE DELIVERED: 5 June 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr C Turini, Elringtons

SOLICITOR FOR THE RESPONDENT: Mr R Routh, Farrar Gesini Dunn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Orczykowski

Orders

I make orders by consent in accordance with the Minute of Orders Sought by the Independent Children’s Lawyer (Exhibit ICL1), orders 1-5 and 7 as amended on those orders, as follows:

IT IS ORDERED BY CONSENT THAT

1. The matter be referred back to Ms D for the purposes of a further report being prepared, in particular covering the following:

   a.What change should occur in the time the child spends with the father;

   b.Whether the time the child spends with the father should be supervised, and if so, when the supervision ought to be removed;

   c.The degree and timing of the father’s proposed involvement with the child’s school;

   d.Whether the parents ought to undertake any parenting courses and psychological assessment; and

   e.Any other matters which Ms D feels are relevant to the child spending time with the father.

2. For the purposes of Order 1 above, Ms D have access to all Court documents and subpoenaed materials.

3. In the event Ms D forms the view that it is necessary to consult either Dr C or F Family Services, the parents are to do all acts and things and sign all necessary authorities for Ms D to communicate with Dr C or F Family Services.

4. Pending a place a G Hospital becoming available, the child spends time with the father every fortnight, for no less than one hour, supervised by Mr H from F Family Services.  The location and day for when contact takes place is to be agreed upon by the parties, through their solicitors, in writing.  In the event Mr H is unable to provide supervision and a place has not become available at G Hospital then the parties shall engage I Group to provide supervision.  It is noted that F Family Services will cease operation on 1 July 2017, however, Mr H is able and willing to provide supervision on a private basis.

5. The parties will equally share the costs of the supervision outlined in Order 4 above.

6. The Independent Children’s Lawyer is granted leave to issue subpoenas to:

   a.F Family Services

   b.Dr C; and

   c.E School.

IT IS FURTHER ORDERED THAT

1. The application for the lifting of the injunction restraining the removal of B (the child) from Australia is refused.

2. The matter is otherwise adjourned to 8 November 2017 at 3pm for a period of one hour.

3. In the event that any applications are necessary either by way of making alternate arrangements for the child and the time that she spends with her father, or any other application, whoever wishes to make the application is required to file the application and supporting affidavit material fourteen days in advance of that date and any response in responding material is to be filed seven days in advance of that date.

IT IS NOTED THAT

1. The parties are to comply otherwise with the Rules that deal with the filing of material for interim proceedings.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 3215 of 2010

Mr Abadi

Applicant

And

Ms Sokulsky

Respondent

REASONS FOR JUDGMENT

1. In this matter an application is made to enable the mother to travel overseas with the child of the relationship. That is, an application that is made in the face of a restraint that was imposed on 1 December 2015 by Judge Neville, presumably pursuant to s 68B of the Family Law Act 1975, because he considered it was appropriate for the child’s welfare. 

2. The matters which are most obviously balanced in relation to a restraint for travel overseas in this case are the benefits that might come to the child from the ability to travel, the enjoyment of that time with her family and the freedom which, should all things being equal, be extended to parties to travel. 

3. Against that there is the risk that might be posed to the relationship between the child and her father if the mother was not to return the child to Australia.  In no way does a determination under this provision require consideration of some sort of aspect of punishment. 

4. On 23 May 2017 the mother, by application in a case, sought orders in respect of overseas travel.  She has today limited that travel such as to reflect travel that the Independent Children’s Lawyer gives agreement to and that is travel by way of cruise liner for a period of up to 14 days departing from and returning to Australia, but with potential ports of call along the way.  The terms as agreed to by the Independent Children’s Lawyer are set out in Exhibit ICL1. 

5. The mother specifically deals with what she has to say about travel at [31]-[34] of her affidavit which show that at present she does not have immediate plans for travel but wants the opportunity to be able to travel.  By her application, the mother indicated that she wished to travel to the Country J and to India, neither of which are Haigh convention countries.  She has, however, today limited her application to cruises of up to 14 days but including international cruises.  The mother points to the fact that she has lived in Australia for ten years, has worked in a professional capacity in Canberra for seven years, owns her own home, her children are studying in Canberra and that she intends to apply for permanent residence, but has not been able to apply for permanent residence yet. 

6. In opposition to the application, the father pointed to his previous affidavit material filed on 4 July 2016.  There, particularly at annexures 1 and 2, he points to what he says are false details contained upon the child’s birth certificate regarding her parentage.  That is, he was not recorded as the father and that somebody else was recorded as the father, and that he had not contributed to the preparation of that birth certificate, leaving the inference that it was the mother who was responsible for the birth certificate.  That birth certificate was produced on 12 May 2010.  He pointed also to annexure 2 which showed that on 21 May 2010, a week and a little after the production of the birth certificate, it was certified by a Department of Foreign Affairs and Trade official, presumably to give it validity to be used internationally. 

7. It is the case that there is a troubled relationship between the child and her father.  The proceedings so far have dealt with the process of introduction of the child to her father so that she might know who her father is.  Each of the parents attest in one way or another that there are difficulties in that relationship and the development of that relationship and it is quite clear that the mother regards the fact of that relationship as problematic. 

8. The father also pointed to [33] of his affidavit of 16 July 2010 and referred thereto a threat that he said that the mother had made to keep the child overseas.  I pause to note that the Rules provide that a single affidavit is to be provided by each of the parties in interim proceedings and that it is an unsatisfactory process to refer to a number of different affidavits.  It is non-compliant with the Rules and renders decision making difficult.  It makes it difficult for other parties to know what material has to be covered to deal with the case. 

9. The assertion in 2010 is not a matter that I would apply any great weight to, particularly given that it is so dated, so I assign little value to it.  On balance, the material that is relied upon by the parties is reasonably neutral between the two of them as to whether or not there is a risk of non-return to Australia.  The evidence that is not contradicted show some strong ties on the part of the mother despite an absence of permanent residence, however, at the same time it shows an underlying desire to travel to India and Country J and that is in the context of an apparently low view of the involvement of the father with the child. 

10. As to the benefit to this particular travel, I am left to guess as to what the particular benefits might be.  That is a product of what Mr Routh has indicated as a difficulty for the mother as this stage.  She was criticised by the solicitor for the father for not providing details as to the travel and Mr Routh pointed sensibly to the difficulties that she has in planning such travel given that there is a need to coordinate the arrangements with the various children.  However, that does leave this in a position where it is difficult to ascertain what particular benefits come to the child from a particular trip particularly where it is an unidentified cruise and the destinations along the way which are not shown. 

11. There is also a lack of material to indicate the change of circumstances since the making of the restraining order by Judge Neville.  That is, a lack of circumstances sufficient to cause it to be a matter that should be revisited, and on balance I decline to lift the injunction at present, although in doing so I note that there may be occasion where advantages in the travel could be identified such as to help to indicate that it would be in the child’s interests to take a particular trip and that arrangements might be provided for security regarding travel which would warrant a reconsideration. 

12. Accordingly, I refuse the application for the lifting of the injunction restraining the removal of the child from Australia.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 June 2017.

Associate: 

Date:  13 June 2017