Agosta and Agosta and Anor
[2018] FamCA 946
•15 October 2018
FAMILY COURT OF AUSTRALIA
| AGOSTA & AGOSTA AND ANOR | [2018] FamCA 946 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – With whom a child spends time – Orders by Consent that child lives with step mother – Orders by consent that child spends time with mother – Orders by determination in relation to when such time should commence and where changeovers should occur – Orders by Consent that child communicate with the father – Injunctive Orders – Specific Issues Orders. |
| Family Law Act 1975 (Cth) |
APPLICANT: FIRST RESPONDENT: | Ms Agosta Mr Agosta |
| SECOND RESPONDENT: | Ms Webster |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Taghdir |
| FILE NUMBER: | MLC | 7529 | of | 2013 |
| DATE DELIVERED: | 15 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 15 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Leeton |
| SOLICITOR FOR THE APPLICANT: | Cathleen Corridon And Associates |
COUNSEL FOR THE FIRST RESPONDENTS: | In person |
| SOLICITOR FOR THE FIRST RESPONDENT: COUNSEL FOR THE SECOND SOLICITOR FOR THE SECOND COUNSEL FOR THE INDEPENDENT SOLICITOR FOR THE INDEPENDENT | Ms Rothschild Elisa Rothschild Lawyer Mr Taghdir Taft Lawyers |
Orders
BY CONSENT all previous parenting orders in relation to the child X born … 2012 (‘the child’) are discharged with the exception of the order made 23 February 2015 that the child remain on the Airport Watch List, set out in the orders 2 to 5 of orders made 23 February 2015 as below:-
(2)Each party Ms Webster born … 1983, Mr Agosta born … 1976 and Ms Agosta born … 1970 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said child X born … 2012 from the Commonwealth of Australia.
(3)IT IS REQUESTED that the Australian Federal Police give effect to this 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 maintain the child’s name on the Airport Watch List for a period of five years.
(4)Upon expiration of the period referred to in Order 3 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
(5)This Order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done by consent in writing (authenticated as prescribed in accordance with reg.13 of the Family Law Regulations 1984 (Cth)).
BY CONSENT Ms Agosta (‘the applicant’) and Ms Webster (‘the mother’) shall have equal shared parental responsibility for the child.
BY CONSENT the child live with the applicant.
BY DETERMINATION the child spend time with the mother as follows:-
a.during school term 4 in 2018 and each alternate weekend thereafter from the conclusion of school or 3.30pm if a non-school day on Friday until the commencement of school or 10.00am if a non-school day on the Monday; with such time to commence Friday 26 October 2018 and each alternate weekend thereafter;
b.from the beginning of Term 1 2019, the alternate weekend time to commence the second weekend after the commencement of Term 1 in each year; and in relation to the mid-term school holiday period; if the children are primarily with the applicant the last week of the preceding school holiday period the alternate weekends will commence the first weekend after the commencement of school term and if the child is with the mother primarily in the last week of the preceding mid-term school holiday period then the alternate weekend will commence on the second weekend after the commencement of school term;
c.from the beginning of Term 1 2019 the child will spend additional time with the mother during school term in that the child will spend from the conclusion of school at 3.30pm if a non-school day on Wednesday until the commencement of school or 10.00am if a non-school day on the Friday, this being the Wednesday afternoon to Friday morning immediately following each of the alternate weekends during school term referred to in order (c) above;
d.BY CONSENT notwithstanding the time the child is living with the applicant:-
i.for not less than 4 hours on Mother’s Day at times agreed between the parties in writing and failing agreement from 12.00pm to 4.00pm; and
ii.on the child’s birthday, as agreed between the parties in writing and failing agreement from the conclusion of school until 6.00pm if a school day, or 1.00pm to 5.00pm if a non-school day.
e.BY CONSENT for gazetted Victorian mid-year school holiday period, (April, June and September) as agreed between the parties and failing agreement:-
i.the first half in odd numbered years from the conclusion of the last day of school until 3:00pm on the day calculated to be halfway through the said school holiday; and
ii.the second half in even numbered years from 3:30pm on the day calculated to be halfway through the said school holiday and commencing the next school term;
NOTING THAT the parties will try to harmonise these times with the mother’s other children.
f.BY DETERMINATION during the gazetted Victorian Christmas/New Year holiday period, as follows:-
i.in 2018 and each alternate year thereafter from after school on the last day of term until 1.00pm on 25 December 2018, with the child to spend the next seven (7) days with the applicant until 12.00 noon on the following week and thereafter week about until three (3) days before the end of school term when the child will be returned to the applicant; and
ii.in 2019 and each alternate year thereafter from 1.00pm on 25 December for a period of seven (7) days until 12.00 noon one week later and thereafter week about between the mother and applicant with the child to be returned to the applicant at least three (3) days before the commencement of school term.
BY DETERMINATION For the purpose of all changeovers which do not occur at the school, the changeovers shall occur at McDonald’s Suburb B in Victoria. The changeover shall occur within the McDonald’s Suburb B restaurant and the mother’s partner shall not enter the McDonald’s Suburb B restaurant at the time of changeover.
BY CONSENT during the time the child is with the applicant, the child shall spend time and communicate with Mr Agosta (‘the father’) as follows:-
a)by telephone, including Skype and other similar audio/visual devices, as may at times be agreed between the applicant and the father; and
b)face to face times in the Detention Centre as arranged between the applicant and the father, with the mother to be notified of those times.
BY CONSENT the applicant and the mother shall do all acts and things and sign all documents and authorities necessary to ensure that they each:-
a)have information and access to the child’s medical and dental records and any registered medical/health professional(s) upon whom the child may attend from time to time;
b)receive from any school attended by the child, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents or guardians or carers by schools and the expenses, if any, of such items received shall be borne by the receiving person;
c)are entitled to attend upon the child’s school upon any invitation issued on behalf of their school or otherwise for the bona fide purpose of enquiry as to the child’s welfare, including educational progress; and
d)be named as an emergency contact at the child’s school/sporting events.
BY CONSENT the applicant and mother shall:-
a)inform each other by either telephone, text message or email of any serious illness or injury suffered or sustained by the child while in their care as soon as practicable following the onset of the said illness or occurrence of the said injury; and
b)provide each other with the particulars of:-
i) any treatment required or received by the child; and
ii) the name and address of any treating medical/health professional involved with the child; and
c)ensure that any prescriptions or prescribed medications are provided for the child and accompany him at changeover as required; and
d)ensure the child attends school on time.
BY CONSENT the applicant, mother and father be restrained:-
a)from denigrating the child or other parties in the presence or hearing of the child, or permitting any other person to do so;
b)from discussing these proceedings with or in the presence of the child, and from permitting any other person to do so;
c)from exposing the child to any form of violence, threats or intimidation, and from permitting any other person to do so; and
d)putting any information of these proceedings on social media, whether that be Facebook or the like.
(10)BY CONSENT all of the parties are restrained from physically disciplining the child, or permitting any other person to impose and form of physical discipline on the child.
(11)Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(12)All extant applications be dismissed.
(13)All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
(14)The appointment of the Independent Children’s Lawyer is discharged.
IT IS NOTED
(15)Yelling to the child or at the child in anger is more likely than not exposing the child to a form of violence.
(16)The parties will make arrangements so that each have alternate Easter Sunday with the child in the first of the mid-term school holiday periods, if Easter is within those periods, with the first Easter Sunday the child to be with the mother and thereafter each second year as it occurs in those school holidays.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the Court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 Agosta & Agosta and Anor 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 MELBOURNE |
FILE NUMBER: MLC 529 of 2013
| Ms Agosta |
Applicant
And
Mr Agosta
First respondent
And
| Ms Webster |
Second Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
The child X, ('the child’), is aged six, having celebrated his most recent birthday. He is described by the family consultant as a delightful six year old boy. He is also described as presenting as friendly, energetic, eager to engage in games and activities, and he easily established a rapport with the family consultant. What this tells me is that he is a pretty typical, energetic six year old boy who is thriving, which is a terrific start for any child.
However, he has been caught up in the conflict of those around him. He is being cared for, as a primary carer, by Mrs Agosta, (‘the stepmother’), who has been his primary carer for virtually the whole of his life. Ms Webster is the child’s mother (‘the mother’). She has had a pretty rough trot over the last few years, and, perhaps, has tripped from time to time. She is anxious to have a better relationship with the child. She has re-partnered with Mr C.
The mother has three children aged between 10 and 14, and is planning a family with Mr C. Mr Agosta is the child’s father (‘the father’). He is in immigration detention, and, given the evidence before me, I am satisfied that he is likely to remain there for some time. He has a difficult history, and I have had regard to that history.
The matter was listed before me for hearing about:-
(a)whether the child should continue to live, primarily, with his stepmother; or
(b)whether he should live with his mother;
(c)the time and communication between all of those parties;
(d)who should have parental responsibility; and;
(e)whether the child should spend time with his father in the detention centre.
At that time, the father was in offshore detention, which made it, essentially, impracticable for the child to spend time with him. Now, the father has since returned from offshore and is in detention centres in the Melbourne area. Unsurprisingly, an Independent Children’s Lawyer was appointed, and a family report was ordered which has been released to the parties. I have read the family report and the recommendations made. The parties have now reduced their conflict significantly, and have asked this Court to determine it on the basis of submissions, rather than tested evidence.
That is a wise course because, often, going through the process of a hearing can undermine relationships between the adults which can significantly adversely impact on the wellbeing of the child. I congratulate the parties for allowing the Court to adopt that course.
The issues I have to determine are: first, whether the time the child spends with his mother is to increase from alternate weekend, plus two additional nights in the off-week; whether that time commences immediately, or whether it commences partly in June next year and then wholly in June the following year. That is the first question I have to determine.
The second issue I have to determine is whether changeover should occur at a police station or at something less confrontational. The third thing I have to determine is whether the child spends additional time with the mother on Father’s Day or on the occasion of Mr C’s annual celebration of his birthday.
I have, before me, from the Independent Children’s Lawyer:-
(a)his case outline filed 11 October;
(b)the family report of 17 August 2018 and the Department of Health and Human Services’ response; and
(c)a copy of all of the past orders made in the family law context.
I have, from the stepmother, who was represented by learned counsel:-
(a)her case outline filed on 10 October;
(b)her further amended initiating application;
(c)her trial affidavit;
(d)the trial affidavits filed on 17 February 2016 and 19 January 2016; and
(e)a notice of risk filed on 19 January 2016.
I have, from the mother, who was represented by learned counsel:-
(a)her case outline filed 12 October;
(b)her response to the initiating application filed 31 July 2018; and
(c)an affidavit filed 31 July 2018.
The father attended from a detention centre and was representing himself. I have endeavoured, as best I could, to explain the circumstances of the way the case runs to the father and to allow him to have his say. Although he was somewhat expansive, I have tried to restrict it to the areas where there was disagreement. The father agrees that there ought to be an order for equal shared parental responsibility.
The father agrees that the child should remain, primarily, in the residence of the stepmother. The father also agrees that the child should spend some time with his mother, although that needs to be, according to the father, somewhat circumscribed or limited.
The parties agree that there ought to be orders regarding non-denigration, and also to protect the child from abuse including unnecessary yelling; and I will talk about that a bit later.
I have read the last affidavit of the father from August 2016. There was a subsequent affidavit which he endeavoured to file but it has been returned, and he does not have a copy of that. He was given leave to provide submissions to me, although that was, again, constrained by the nature of the matters in dispute. I have had regard to all of that material. I intend to make most of the orders by consent, and deal with those which are in issue.
THE LAW
My task is, fundamentally, to do two things: first, to ensure that a child is as safe as a child can be; second, that the child has a meaningful relationship with his parents and those around him to enable him to grow up to be a significant member of the community and allow him to have a childhood.
The provisions of the Act that deals with children is set out in Part VII. In particular s 60B articulates the objects and the principles underlying them as follows:-
(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 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 child’s 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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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 either 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. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
I will endeavour to apply the facts to the law.
In this case, the family consultant tells me that this child has had a childhood, despite the rigours of his life so far. Both parents ought to look at the stepmother and thank her for taking those steps, because it is no little thing to take on another child. This child has been protected. The fact that the child loves the mother, as he clearly does, is of credit to the stepmother, and that ought to be acknowledged.
I will deal with the easiest bits, first. I am not going to make orders that the child spend Father’s Day with Mr C, or his birthday. If Father’s Day falls on the weekend, it can occur that time. If not, it will occur either the weekend before or the weekend after, or sometime before or sometime after. I am sure it will not upset Mr C if his birthday is celebrated a little early or a little late. And, for a child, all he will want to do is blow out the birthday cake and have as much of it as he can get away with, or that his siblings will allow him to get away with.
It is important for this child that he continue to acknowledge that whilst people will act in the role of father, that his father is who he is. It is clear in this case that the child knows who his father is, and that is not an issue. Those are two fairly easy questions. The next question is whether changeover should be at a police station or McDonalds. I worry about police stations. They do offer a measure of protection, but it says something to the child in a very loud voice that there is something wrong here, that people go to a police station when they ought to be protected.
I can understand, given the history of this matter, why there ought to be some protection, or a concern about protection given the dynamics of this family. But it seems to me it can be best managed and better managed at the McDonalds at Suburb B, with Mr C waiting patiently outside in the car with the other three children, although they are hardly likely to wait if they are at McDonalds, is my guess. And knowing that McDonalds has closed circuit television, I am satisfied that, in all of the circumstances, that will as safe as need be. Although, if something arises, then steps can be taken to go back to a police station.
The substantive issue in this case is when the mother’s time with the child should start. The stepmother and mother are agreed that there ought to be each alternate weekend, and there ought to be two days during the school week. As I said, the times differ. The Independent Children’s Lawyer says, there is no limitation on that or no suggestion of a build-up in the family report, and the family report is persuasive.
What worries me about this little boy is it is his first year at school. I am fairly confident he comes home, to use a vernacular, pretty knackered at the end of each day because they play hard. I am not going to start that time until the commencement of next year. It will not make much difference to the child. It will be a matter of a few weeks, and it will not take time. It will give the child a chance to settle into school on a full-time basis as a six year old, as boy who is full of energy. But from next year it will start.
There were some issues raised about the child getting to school on time and, I will make it clear, I expect this child to be at school on time. If the child is literate and numerate he will thrive in this world. If the child is not literate or numerate, he will not thrive. If he gets to school late there will be problems arising from that. So I expect, and I will make an order, that he gets to school on time. I will, otherwise, make the particular orders as I indicated, and I will go through those, now.
I have made no orders for times that the child spends with his father, if his father is released. That will have to be the subject of further discussion if that occurs, because that would need a lot more thought about it. So if there are no orders, then it makes it clear, and the notification by the step mother to the mother keeps the step mother informed as to what is going on with that.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 October 2018.
Associate:
Date: 20 November 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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