Aitkens and Acosta
[2013] FMCAfam 173
•1 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AITKENS & ACOSTA | [2013] FMCAfam 173 |
| FAMILY LAW – Whether child’s time with father should be increased by one or two days each fortnight – whether father may take child out of Australia for holidays – relevance of family violence and mother’s fear child may not be returned if taken out of Australia. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Starr & Duggan [2009] FamCAFC 115 Kuelba and Kuelba [1978] FLC 90-434 Line and Line 1997 FLC 92-729 |
| Applicant: | MR AITKENS |
| Respondent: | MS ACOSTA |
| File Number: | DGC 2646 of 2009 |
| Judgment of: | Phipps FM |
| Hearing dates: | 7 & 8 February 2013 |
| Date of Last Submission: | 8 February 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 1 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | JH Legal |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | Amicus Lawyers |
ORDERS
All previous Orders are discharged.
The husband and the wife have equal shared parental responsibility for the child [X] born [in] 2005, including but not limited to the following:
(a)education and schooling;
(b)surgery and hospitalisation for any serious injury, illness or disability;
(c)decisions regarding religion and religious instruction of and observance by the said child, with the parties agreeing that the said child shall observe the Islamic faith; and
(d)decisions about the said child playing or being involved in any sporting, cultural, artistic or community activity including competition, training or meetings.
Each party shall have sole parental responsibility for the day to day care, welfare and development of the said child when he is in their care.
The said child shall live with the wife.
The husband shall spend time with and communicate with the said child as follows:
(a)each alternate weekend from the conclusion of school Friday afternoon until the commencement of school Monday morning, or Tuesday if Monday is a non-school day. For the purposes of this order, the father is to collect the child from school and return the child to school;
(b)each alternate week from after school Thursday to before school Friday;
(c)for half of term school holidays by agreement, failing agreement then the first half of all school holidays for all years that end in an odd number, and the second half of the school holidays for all years that end in an even number. For the purposes of the said child’s holiday time with the husband in odd years, the husband is to collect the said child from the school at the conclusion of the last day of school for the semester (i.e. Friday) and return the said child to the [S] Police Station at 4.00pm a week later;
(d)for half of the long summer school holidays by agreement, failing agreement then the first half for all years that end in an odd number, and the second half for all years that end in an even number. For the purposes of the said child’s holiday time with the husband in odd years, the husband is to collect the said child from the school at the conclusion of the last day of school for the semester (i.e. Friday) and return the said child to the [S] Police Station at 4.00pm on the last day of the first half of those long summer holidays, with the parties agreeing to what that day is in the communication book or by agreement reached through their respective legal representatives;
(e)the parties agree that for the purposes of the long school summer holiday period as outlined in clause 5(d), the first half of the long school holiday period will include Christmas Eve, Christmas Day, Boxing Day and New Years Day. The parent who has the said child for the first half will be under no obligation to entertain requests for contact on the aforementioned days. Both parties agree that the aforementioned days hold no particular/special significance according to the Islamic faith;
(f)Father’s Day from 10.00am to 5.00pm should such a day not fall upon times outlined in clause 5(a) and (c). The husband agrees that his time with the child will be suspended at 10.00am on Mother’s Day and shall return the said child to the [S] Police Station at the time/date;
(g)Eid Al Fitr/Ramazan Bayram: from the conclusion of school (or 5.00pm on a non-school day) on the eve of the first day of Eid Al Fitr/Ramazan Bayram until 5.00pm the next day, for all years ending in an odd number. For all years ending in an even number, from 5.00pm on the first day of Eid Al Fitr/Ramazan Bayram until 5.00pm the next day, with the husband to return the said child to the [S] Police Station;
(h)Eid Al Adha/Kurban Bayram: From the conclusion of school (or 5.00pm on a non-school day) on the eve of the first day of Eid Al Adha/Kurban Bayram until 5.00pm the next day, for all years ending in an even number. For all years ending in an odd number, from 5.00pm on the first day of Eid Al Adha/Kurban Bayram until 5.00pm the next day, with the husband to return the said child to the [S] Police Station;
(i)on the said child’s birthday from the conclusion of school (or 4.00pm on a non-school day) until 7.00pm, with the husband to collect the said child from school and return him to the [S] Police Station, or in the event it is a non-school day, the husband is to collect and return the said child to the [S] Police Station; and
(j)any other time by written agreement between the parties.
That each party provide the other party with written notice of their intention to travel within Australia with no less than 3 weeks notice. Such written notice shall include the intended destination, estimated time stayed, details of any pre-booked accommodation (including phone number and address).
That during the school holiday period, whoever has the said child in their care shall facilitate a telephone call to the other parent’s mobile phone at 6.00pm each Tuesday and Thursday for a period of 30 minutes. The parent initiating the call is to ensure the said child is available to engage in the telephone communication in a distraction free and private environment. The parent shall also ensure the said child’s privacy and not cause the conversations to be recorded or to occur on speakerphone.
The husband acknowledges and agrees that the wife shall, at her sole and unfettered discretion, nominate any of the following three persons to attend the contact changeovers, the child’s school for any extracurricular activities or events, or for the purposes of dropping off the child or collecting the child in her absence:
(a)the maternal Grandmother Ms O;
(b)the maternal Uncle Mr A; or
(c)the wife’s new husband Mr B.
That each party shall keep the other informed as to the change of their physical addresses through their legal representatives. Neither party’s legal representatives shall release the other party’s physical addresses unless the party consents or in the case of an emergency affecting the immediate safety of the said child.
The parties shall communicate primarily through a communication book. In the event of an emergency affecting the immediate safety of the said child or if a parent is running late to changeover, the parties shall be at liberty to contact each other via SMS message.
All other non-urgent communication between the parties relating to the long term care, welfare and development of the said child shall continue to occur only through their lawyers with the husband acknowledging that the wife intends to re-apply for an extension of the Magistrates’ Court of Victoria Family Violence Intervention Orders indefinitely.Each of the parents must do all things and sign all documents to give their consents and authorities necessary to enable each parent to obtain from the said child’s school such information, reports or other material as is normally made available to parents concerning the said child’s social and academic progress.
Each parent shall forthwith and without delay notify the other of any significant illness or injury or medical appointment relating to the said child, and shall provide all consents and authorities necessary to enable both parents to be fully advised regarding the treatment and to enable any hospital visits as required.
Each of the husband and wife, their servants and agents be restrained as follows:
(a)from discussing these proceedings with the said child or within his hearing;
(b)from denigrating, abusing or insulting the other to or within the hearing of the said child; and
(c)from using or permitting any form of corporal or physical punishment upon the said child.
The parties agree that once the said child turns 11 years of age, they shall use their best efforts to settle the following issues via a Family Relationship Centre before re-commencing litigation:
(a)where the said child shall attend secondary school; and
(b)whether the husband shall be permitted to travel outside of the Commonwealth of Australia to a Convention Country with the said child in the absence of the wife.
Each of the husband and the wife and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [X] born [in] 2005 (male) from the Commonwealth of Australia.
The said child be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police 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 maintain the child’s name on the Watch List until [date omitted] 2019.
Upon expiration of the period referred to in Order 18 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
If after the expiration of the period set out in Order 18 above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules2001 to reflect the removal of Order 11 by consent and to correct various typographical and formatting errors in the Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Aitkens & Acosta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2646 of 2009
| MR AITKENS |
Applicant
And
| MS ACOSTA |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The issues in this case are two. Whether the parties’ one child [X] born [in] 2005 should spend overnight with his father each Thursday or only every second Thursday and whether the father should be able to take the child overseas on holidays. Current orders provide for the child to spend time with his father each alternate weekend from 5.00pm Friday to before school Monday and every Thursday from after school until 7.00pm, half school holidays and on special occasions. The parties agree that the alternate weekend time should be extended to before school Tuesday when Monday is a non school day.
The husband was born [in] 1982 and the wife [in] 1982. They were 19 when they married and are now aged just 31 for the husband and nearly 31 for the wife. The parties married and commenced living together on [omitted] 2001. They separated in July 2008 and were divorced on 22 November 2009. Since then the child has lived with the wife and spent a substantial amount of time with the husband. The wife remarried on [omitted] 2011 and the husband is engaged to be married.
Consent Orders made in the Family Court of Australia at Dandenong on 8 November 2010 provided for the wife and the husband to have equal shared parental responsibility for the child, that the child reside with the wife and that the child spend time with the husband every fortnight between 5.00pm on Friday to 3.00pm on Sunday and at other times as agreed. That consent order included property orders.
The wife commenced proceedings in the Federal Magistrates Court of Australia on 14 July 2011. I made a Recovery Order for the child on 15 July 2011 and the child was returned to the wife when the husband brought the child to the Court premises at Dandenong. Those proceedings concluded with Consent Orders on 3 August 2011 which again provided for the husband and wife to have equal shared parental responsibility for the child, that the child live with the mother and that the child spend time with the father from 5.00pm Friday until the commencement of school on Monday each alternate weekend, each Thursday from the conclusion of school until 7.00pm during winter months and 8.00pm during summer months and for half of school holidays and on various celebratory occasions.
The husband commenced these proceedings on 19 June 2012. He seeks the discharge of the Orders of 3 August 2011, an order that the parties have equal shared parental responsibility for the child, that the child live with the wife, that the child spend time with him from the conclusion of school on Thursday until the commencement of school on Monday each alternate weekend and from the conclusion of school on Thursday until the commencement of school on Friday on the alternate week. He seeks half school holidays and time on various celebratory occasions and an order that each party might take the child overseas upon providing eight weeks written notice of intention to travel and an itinerary four weeks prior to travel.
The wife proposes an order for equal shared parental responsibility, that the child live with her and spend time with the husband each alternate weekend from after school Thursday until before school Monday, extended until before school Tuesday if Monday is a nonschool day. She puts a second proposal, but not a preferred proposal which is alternate weekends from after school Friday until before school Monday extended to before school Tuesday if Monday is a non-school day and each alternate Thursday from after school until the commencement of school on Friday. The parties agree on school holidays and special occasion, including time on Muslim holy days. The wife opposes any order for overseas travel.
Both parties agree that the need for them to meet should be reduced to a minimum and so the proposals for times which commence and finish at school. The wife would not propose a change were it not for events at changeovers. She proposes a block of time once a fortnight because she considers that means that the child would know the routine. The husband considers the child would benefit from additional time with him.
The witnesses are the husband, the wife and the wife’s mother. Ms D prepared a family report verified by affidavit. The report is part of the evidence. Neither party cross-examined Ms D.
Children’s provisions
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that the child’s best interests is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
Section 61DA requires the court to apply a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe there has been abuse of the child or another child, a member of the family, family violence, or if it is not in the best interests of the child.
If the court makes or intends to make an order for equal shared parental responsibility, s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are in s.65DAA(5).
By s.65DAA(3):
“a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays;
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
The Full Court of the Family Court said in Starr & Duggan [2009] FamCAFC 115 at [38] and [39]:
“38.…a logical approach is to:
first make findings concerning the relevant s 60CC factors;
then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.”
The order made in July 2011 contains a provision that the parties have equal shared parental responsibility for the child and both parties propose that continue. This means that the legislative pathway in this case commences with requirements that follow when an order for equal shared parental responsibility is made or is proposed to be made. That means I must consider whether equal time, or if not that substantial and significant time, is in the child's best interests and reasonably practicable. Since neither party proposes equal time I have to consider the best interests and reasonable practicability considerations in the context of substantial and significant time.
A number of specific matters can conveniently be considered first.
Family violence
The wife alleges abuse and violence during the marriage and subsequent to the marriage. She alleges that the husband has threatened to kill her, has tried to strangle her, and has threatened to take the child from her if she ever repartnered. The allegations include that the husband held a knife to her throat and threatened her with an axe. The husband denies these allegations.
The wife made a recording of an event in 2009. She set out what she alleges the husband said on that occasion in one of her affidavits. The husband denied the allegations but when a section of the recording was played to him during his cross-examination he acknowledged that that was his voice and expressed shock that he could have said such things. He is recorded as saying he will kill the wife, he will bury her whole family, he will kick down her door and bury “all of you”, if he wants the child for 5 minutes he wants him "when it comes to my kid I am God". He says he will put a knife to the wife's throat and feed her to the child.
The wife alleges that during this argument she was assaulted, pushed into walls, choked and punched. The combination of the tone of the husband's voice, which is so angry, the nature of the threats, sounds which could be physical contact and the wife's responses means that the recording is corroborative evidence of the wife's allegations. I accept that she was assaulted as she alleges.
The wife says she made the recording on the advice of a police officer. She says that she had gone to the police after similar earlier incidents and the police had said they could do nothing without some independent evidence. A police officer advised her to record changeovers with the father. She purchased a digital voice recorder and made the recording by having the device in her pocket.
On the recording the wife responds vigorously to the husband using swear words as much as he does. She makes no physical threats, largely she is protesting about his behaviour. She says more than once not to hit her and once that it is the third time the husband has hit her. She may have said these for the benefit of the recording but there is nothing in the recording which suggests that the wife has provoked the husband or that she is behaving in a way which suggests that she is attempting to show herself as reasonable and the husband as violent and abusive.
Family violence and abusive behaviour are significant issues in determining a child's best interests, but it might be thought they do not loom so large in this case because of the nature of the disputes. The basic outline of the living arrangements for the child were settled in the middle of 2011 with the child to live with the mother and spend three nights and two evenings each fortnight, half holidays and special occasions with the father. The current dispute about the child's time with the father is one overnight each fortnight, whether the child should spend four nights or five nights each fortnight with the husband.
The dispute about travel would normally be confined to an assessment of the risk that the child would not be returned to Australia, how the time away with a parent might benefit the child's relationship with the travelling parent, and whether any absence from the other parent might affect the child's relationship with that parent. If the overseas holidays are confined to the holiday times already agreed and embodied in the 2011 Orders it might be thought that family violence and abusive behaviour now has little relevance to the travel dispute.
Family violence and abusive behaviour are relevant to both issues. In particular they are relevant to the child’s relationship with each party, and the attitude of each party to the other and the child’s relationship with the other parent.
The mother alleges that the child has been present or close enough to hear on many of the occasions when the husband has assaulted and abused her. She alleges that the husband has on several occasions called her a dog in both English and Turkish. She says that the child has told her that the husband has used the same expression to the child, that is, has told the child that his mother is a dog. Apart from the corroborating evidence contained in the recording of the 2009 event, I found the mother to be credible in her evidence. Her description of the various events has detail and consistency. Her mother gave evidence of abuse of both her and the wife and likewise the grandmother's evidence has detail and consistency. Both the wife and the grandmother have obtained family violence intervention orders against the husband.
The wife says that the husband abused her about remarrying and about her new husband being part of the child's life. The terms used in some of that abuse show that the husband considers that the child is his in the sense that he is the one who should control the child's life and resents the intrusion of another man into the child's life and quite possibly into the wife's life. The husband denies the abuse and statements. I find that he did abuse the wife and made the statements she alleges.
Family report observations
In the family report Ms D records that most of the wife's comments about the father child relationship were negative. The wife said that there is "not enough bond" between the father and son; that the child is "intimidated" by the father. Ms D considers it notable that the wife had conflicting views about the child's relationship with his father. While being largely negative she did admit that the child wants to see his father but says that he does not want to go because his father stresses him. She claims that the child can return upset and irritable.
Ms D says that the wife presented as a morose and depressed woman, quite possibly burdened and feeling overwhelmed by the continuing dispute with her former husband.
The husband told Ms D that the outcome he sought from the court was one week on, one week off. Ms D said the husband presented as a man with possible poor impulse control and therefore prone to react angrily to situations out of his control. Her assessment of the husband is that he is a committed father but one who at times allows his frustration to interfere with his judgment and role as a parent.
Ms D describes the child, 6 1/2, as a sensitive child and young for his age, but a confident little boy who readily engaged in conversation with her. He expressed the wish that his mother and father could get back together and be nice together. She considers that he loves and feels loved by both his parents.
Ms D's observation of the child with the husband was that they had great fun together. While this observation session was taking place the wife and her mother left briefly for some refreshments and the child rang the grandmother’s phone. The call was from the husband’s phone and the grandmother returned, hostile, asking why she had received a call from the husband. Ms D says it transpired that at the child's request the husband had rung the grandmother's phone because the child wanted to stay longer with his father. Ms D says this was inappropriate to place the child in a situation over which the child had no control and where the likely response to the request would have been no. Ms D says it was inappropriate for the child to have to explain his reasons to his mother and grandmother.
Particular occasions
Prominent in the mother's case are two occasions, one where she says the father withheld the child for some days and the other when the inference the wife invites is that the husband was attempting to keep the child away from the wife and the child's grandmother.
The first is the occasion in July 2011 which resulted in the recovery order. The wife says that the child was to spend one week of the school holidays with the father; the husband says it was two weeks. The father took the child to Sydney, this to the knowledge and with the agreement of the wife. When the wife delivered the child to the husband at [S] Police Station on 1 July 2011, she says she insisted that the husband tell her when he would be back. The husband resisted the request. The police officer present suggested that it be written down and the police officer wrote his name and station at the top of a piece of paper. The note reads "picked up 01-07-11 4:40 p.m. will return 11-07-11 7.00 p.m. plane lands 5.00 p.m. Monday". The note is in various handwriting, some of which the husband acknowledges is his.
The wife says that the date of 11 July 2011 and the time of 7.00 pm was the agreed date and time of return. The husband says this refers to the plane flights and alleges that the agreement was that the child would spend all of the fortnight with him. The wife says that this is not so and that she had a medical specialist appointment for the child later in the week after the return from Sydney.
Contact occurred between husband and wife on 11 July 2011. The plane flight was delayed by about two hours. The wife says she still wanted the child returned but the husband said the child was tired and he would return him the next day. The wife says that despite her attempts to have the child returned he was not and so she commenced proceedings for a recovery order. The husband continued to maintain his evidence that the agreement was that the child would spend the whole fortnight with him.
I am satisfied that the agreement was for the child to be returned to the wife on 11 July 2011. This is the clear meaning of the handwritten note. The husband acknowledged some of the writing was his but was vague about the rest. I am satisfied that all the writing was on the paper at the time the husband left the police station, that he saw it and that it was clear then that the agreement was the child would be returned at 7.00 pm on 11 July 2011. The police officer present wanted to resolve the dispute. He initiated the writing down of times and wrote his name and station at the top of the piece of paper. The probability is that the police officer would have ensured that what was written on the paper was clear and acknowledged by both the husband and wife. The husband broke the agreement and did not return the child at the agreed time.
On 29 August 2012 the child had a school function in the evening. The maternal grandmother picked the child up from school and then took him to the school function. The wife was pregnant and not well. The school had contacted the wife and asked her if the husband was allowed to attend and she confirmed that he was.
The school function was for parents and grandparents and the children made costumes out of recycling bags and papers. Parents and grandparents brought food. The grandmother says that prior to the function the husband spoke to her and she told him that the wife would not be able to attend and that she, the grandmother, would be attending with the child. She says that the father said she did not need to be there and that she should meet him at the school entrance drop the child off and go. The grandmother says she told the father that the function was also for grandparents and that she would stay.
The grandmother tells of the father telephoning her when she and the child were at the school again asking for the child to be taken outside to him and telling her she did not need to be there. The grandmother says that after the husband arrived at the classroom he told her to go and that he would take the child home.
The grandmother said she was confused by this because the intervention order the wife had against the father prevented him from approaching within 200 metres of the mother's home. She telephoned the wife who said she would try to come towards the end of the evening spend a little time and take the child home.
The grandmother says that she noticed that the child and the husband had gone outside and had not returned. She could not find them and called the husband and asked him to bring the child back. The father would not. The grandmother sought the assistance of school staff who paged the husband and child over the loudspeaker and then the grandmother went with the principal to search.
They located the child and the father in another building. The grandmother says the principal approached and told them to return as the wife was there the pick up the child. The grandmother says that as they walked back the father approached her saying he had warned her many times to stay out of his business and saying that he wanted to spit in her face. She says the abuse included swearing.
When they returned to the office the wife was there and when the wife attempted to take the child the husband pushed the child towards the classroom. The husband, according to the wife and grandmother, was saying that the child should have something to eat. Eventually the child took a piece of cake and the wife took him home.
The husband denies much of what is alleged. He says he attended at the school evening. He disputes telling the grandmother that she should go or that he would take the child home himself. He says that he asked the child where he played in the school grounds and went with the child and three of his friends so that they could show him where they played. He says that the grandmother knew that that was what was happening. He denies abusing the grandmother.
Again the wife's evidence and that of the grandmother is detailed and convincing. The husband's denial of the allegations against him is unconvincing. I am satisfied that he was attempting to have the grandmother leave so that he would be caring for the child by himself. The inference from his removing the child out of the classroom without the grandmother knowing where he was and the need to obtain the principal’s assistance to find him is that he was not intending to return the child to the grandmother or the wife if she came to the school. He intended to take the child home himself. Since he could not attend the mother's home he must have intended to take the child to his own home.
Parents attitude to each other
On [date omitted] 2012 the wife went into premature labour. The baby was born but died soon afterwards. The wife then describes various conversations with the husband at changeovers in the days after that. The husband disputes some of the allegations the wife makes but he does not dispute that he sent text messages on the 29 September 2012 17 October 2012, 6 October 2012 and 5 October 2012. The text messages are set out in paragraph 13 of the wife's affidavit affirmed on 8 November 2012 and filed on 8 November 2012.
The text messages include the following extracts:
a)on 29 September 2012:
These pathetic games, neglecting the child from speaking to his father,… Wot kind of caring parent do u cal ur self [Ms Acosta] Or r u trying so hard so [X] can start to c [Mr B] as his blood father. Do you have mental issues [Ms Acosta], I'm starting to get scared for [X] safety that u just might b unhealthy n unsafe for [X] to b around
b)on 17 October 2012:
Because u lost ur child doesn't give u any right to play God with my son with me. Alright u child
c)on 6 October 2012:
I feel for my son [Ms Acosta], u use my son as a weapon against me, not only that to punish me so u can you can feel better in ur liesss, u make my son miss out on his family activities
d)on 5 October 2012:
Plus I'm talking about my son. The child u hav with ur new husband has nothing to do with me, I'm concerned about the child we conceived [Ms Acosta]. Because u lost ur child don't try to take your anger out on me and [X]. My son has a right to spend time wif his father. Don't be selfish and think of [X]
The husband says that he considers these were appropriate messages to send to the wife. The husband’s complaints cannot be that the child was not spending time with him in accordance with the order of July 2011. That is not alleged. One of the wife's complaints about the husband is that he would ring her when the family violence intervention order prevented him from doing so. It seems he was ringing her wanting to speak to the child. Ms D says that the husband presents as a man with possible poor impulse control and therefore prone to react angrily to situations out of his control. She says he asks why the parental relationship cannot be straightforward, why the wife cannot simply meet his requests: such as giving him the child's passport so that he can take the child overseas like he allowed her to do.
The messages also illustrate the husband's reaction to the wife remarrying. Ms D's observations show that the child regards the husband as his father and that there is a strong father-son relationship. Nothing in the evidence suggests that the wife and her current husband are attempting to usurp the husband's role as the child's father.
The wife fears and mistrusts the husband and the history of abuse and family violence shows this is understandable. The husband considers that the wife undermines his role as the child's father. The wife considers that the child has a poor relationship with his father. She said this to Ms D and Ms D says that that is wrong, that the relationship between father and son his strong. Ms D is clearly correct.
The wife probably does not actively undermine the child's relationship with the husband. She acknowledges the child’s need to have a relationship with the husband and has always seen that the child needs to spend time with his father both before any orders were made and then subsequently.
Ms D accurately sums up the relationship. She says that the parenting relationship is characterized by mutual lack of trust, lack of respect towards the other as the child’s parent, lack of insight about the child's needs, plus defensive and aggressive behaviour towards each other. She says that the husband is frustrated by what he perceives to be the wife denying him time with his son. For her part, Ms D says, the wife is angry and intimidated by the husband's demands, particularly when she is providing the child's daily care, without any financial support from the husband. Ms D says that the criticism of and attitude towards each other significantly interferes with their parenting responsibilities, and, importantly, brings the child into their conflict.
Family report conclusion
Ms D concluded that there are no indications that the child's regime should be significantly changed. She says that the child deserves to spend regular, predictable time with his father and to spend weekend overnight time with his father. She says he would benefit by the weekly time with his father continuing. Specifically she says that to see his father every fortnight would not allow the child's relationship with his father to be normalized. The child should not have lengthy intervals when he does not spend time with the father.
Best interests considerations
I must consider the child's best interests in the context of the requirement for considering substantial and significant time. The relevant s.60CC considerations in this case are:
Primary considerations:
i)the benefit to the child of having a meaningful relationship with both of the child's parents; and
ii)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations:
iii)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;
iv)the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
v)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
vi)the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs;
vii)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;
viii)any family violence involving the child or a member of the child's family;
ix)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:
(a) the nature of the order;
(b) the circumstances in which the order was made;
(b) any evidence admitted in proceedings for the order;
(c)any findings made by the court in, or in proceedings for, the order;
(d) any other relevant matter;
x)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;
xi)any other fact or circumstance that the court thinks is relevant.
The evidence shows that despite the toxic relationship between the parties, the behaviour of the husband towards the wife and the opinion the wife has of the husband, the child has a good relationship with each parent. His mother is his principal carer and he has a strong father-son relationship with his father.
In determining what is in the best interests of the child little reliance can be placed on the views expressed by either the husband or the wife. The husband considers that the wife undermines his relationship with the child. That is not correct. The wife considers that the child has a poor relationship with the husband and that is not correct. The only reliable evidence is the independent expert evidence given by Ms D. Her recommendation is a continuation of the existing orders and that the child has weekly time with the husband.
The mother's principal proposal for Thursday night to Monday morning each fortnight is not recommended. The husband's proposal for fortnightly Thursday night to Monday morning and in the intermediate week Thursday overnight was not a proposal either party put to Ms D and so not considered specifically by her, but a reasonable inference is that the recommendation of no significant change would not support the husband's proposal.
The first primary consideration in s.60CC is the benefit to the child of a meaningful relationship with each parent. The child has a strong and meaningful relationship with each parent despite the toxic relationship between the parents. That in itself is an argument for limited change to the current order, and the only cogent evidence, that of Ms D, supports limited, if any, change.
The mother considers that the father's violence and abuse of her and his family background presents a risk of the child following a similar path to the father, and so relevant to the second of the primary considerations the need to protect the child from potential risk of psychological harm.
The family background the mother raises is that the husband's grandfather murdered the husband's father and then the husband's uncle murdered the husband's grandfather. When this happened is not clear, but it seems many years ago.
The husband's brother, his only sibling, is in prison for murder and attempted murder. When asked why his brother was in prison the husband replied "self-defence murder". The husband takes the child to visit his uncle in prison twice a year. The husband says this is at Easter and Christmas when the prison has farm days for children and that is when he takes the child. There is no evidence that the husband has discussed with the child why his uncle is in prison, and at 6 1/2 the child might not understand even if his father did attempt to explain including explaining what he means by self-defence murder.
There may exist a risk that the child will be affected by his father's attitude to the wife and his father's tendency to resort to violence. There is no expert evidence about this and no basis for saying that if the risk exists it would be greater or less depending on the amount of time the child spends with the husband. Consequently the second of the primary considerations does not assist in determining the issue about the amount of time.
The first of the additional considerations is the child's views, taking into account the child's age. The child did express some views to Ms D but Ms D says they reflect the situation the child is in and given the child's age his views do not assist.
The child's relationship with each parent is relevant. What I said above about the first of the primary considerations, the benefit to the child of a meaningful relationship with each parent, sets out the relevant evidence and relevant conclusion to be reached under this consideration.
I am satisfied that the mother, despite her negative views about the husband, does recognize the need to promote the child's relationship with the husband and has done so by having the child spend time with the husband both before orders were made and after orders were made by complying with those orders. The husband has attended school events and to the extent necessary the wife has given her permission.
The wife has applied for and obtained an exemption from making a child support assessment application because of the risk of violence towards her by the husband. The husband has provided minimal financial support for the child outside the times the child is with him. He has paid school fees this year and paid for school uniforms this year.
Both parents have shown that they are capable of providing for the child's needs while the child is in their care, and given the limited nature of the dispute about time this consideration has little relevance.
Family violence has taken place and the mother has a family violence intervention order and I have taken it into account in the discussion earlier in these reasons.
The best interest considerations in s.60CC lead to the conclusion that the child's best interests are met by discharging the order for Thursday night from after school to 7.00 pm and instead making an order for overnight Thursday each alternate week. The child has a good relationship with each parent notwithstanding the toxic relationship they have. He is adequately cared for by each parent under the current arrangements. Minimal change is called for as Ms D recommends. The reduction of frequency on Thursday from every week to every second week is not a reduction in time given that it will be overnight. Every Thursday would mean a change from three nights a fortnight to five nights a fortnight, too great a change. The weekend, mid week, holiday time and time on special occasions meets the requirements of substantial and significant time.
I must consider whether the proposed order is reasonably practicable. The parties live in reasonable proximity to each other. They have little if any ability to communicate and discuss issues which may arise but given that the child will be spending the majority of his time with the wife the need for such discussions will be very limited. The orders are reasonably practicable.
Travel
The other issue is whether the husband may take the child out of the country for holidays. His proposals now are fairly vague. He says in his affidavit sworn 14 June 2012 that he initially approached the wife in early June 2012 wanting to travel to Vietnam in July 2012 and then Disneyland in the United States of America in 2013. He did not object to the wife travelling to Turkey with the child to visit her dying grandmother and now wishes to travel himself.
In his Affidavit sworn 2 February 2013 he says he has re-partnered and will be having an Islamic ceremony to marry. His partner Ms L has a daughter aged 6 and after the Islamic ceremony hopes to travel overseas to celebrate and hopes that all four, including the child [X], can travel together. Later in the affidavit he says that if he was permitted to travel overseas he would visit Turkey to see his family in Turkey and also have some recreational time in the United States of America and other countries which would offer [X] an educational experience.
The wife fears that the husband may take the child out of Australia and not return. The husband’s position at the hearing, in contradiction to his affidavit says he will not go to Turkey because he will be conscripted for military service. The husband, although born in Australia and an Australian citizen is entitled to Turkish citizenship because his parents are Turkish. His only relative in Turkey is his grandmother who is very ill. Therefore, he says he has no reason for going to Turkey.
The wife says that the husband can obtain an exemption from military service. The evidence does not permit me to say whether that is correct or not.
The husband was born in Australia and is an Australian citizen. He has employment and family in Australia and is prepared to lodge a $5,000 bond as security that he will return the child to Australia. He has a fiancée who he says is an Australian citizen. His mother and brother cousins, nieces and nephews are in Australia. The affidavit material shows that his sister in law is estranged from her husband who is in prison and there is no direct evidence that the husband sees his nephews and nieces. Therefore the husband has ties with Australia, but the wife fears he may not return the child to Australia. He has employment as a [omitted] with the one employer, although on a casual basis. On the one hand this suggests stability in Australia but on the other hand he has an employment skill which can be used outside Australia, although there is no evidence about the extent of that potential use.
The husband proposes a general order allowing him to take the child for holidays. That means if such an order is made it has to be made without the Court knowing whether the country of proposed travel is a Hague Convention country. Of the three countries he refers to, Vietnam is not, Turkey and the United States of America are.
I am satisfied that the wife genuinely fears that the husband may take the child out of Australia and not return. I am satisfied that the husband has threatened to take the child from her. His attitude to the wife and how he sees her attitude to his relationship with the child is shown in the text messages of September and October last year. Ms D said the husband presented as a man with possible poor impulse control and therefore prone to react angrily to situations out of his control.
Whether the husband ever reaches the stage where he considers the wife's attitude to his relationship with the child is such that it leads him to want to remove the child from the mother and do so by taking himself and the child out of Australia permanently is difficult to assess. There is a risk that the husband might keep the child longer out of Australia than any order might allow, and a lesser risk that he might do so permanently.
The travel issue must be decided applying best interest considerations. The judgments in Kuelba and Kuelba [1978] FLC 90-434 and Line and Line 1997 FLC 92-729 set out specific matters in travel applications to be considered in the context of best interest considerations. They are:
a)the length of the proposed stay;
b)the bona fides of the application;
c)the effect on the child of not having contact with the other parent;
d)any threats to the welfare of the child by the circumstances of the proposed environment;
e)the degree of risk that the departing parent will not return;
f)whether the country of travel is a signatory to the Hague Convention on Child Abduction;
g)the risk of deviation to non-convention country;
h)the financial circumstances of each parent;
i)the provision of security.
Ms D commented on the father’s wish to travel and noted that the child had already spent two weeks with the father in Sydney and said that the child should not be away from the wife for longer than that. Ms D may not have been given full information about what occurred when the father took the child to Sydney. I have already found that I am satisfied the agreement between the husband and wife was that the time would be for only one week. The child was returned to the mother later in the second week and was not with the father for the full two weeks.
The father has ill formed proposals for overseas holidays. He mentions Vietnam and the United States of America as proposed places in 2012 and 2103. He now says he will not go to Turkey. His travel would have to be during school holidays. Assuming he is not going to Turkey he is not wishing to travel so that the child may meet relatives or that the child may see something of the land of his parents’ heritage. Time spent overseas with the husband would not promote the child's relationship with the husband any more than a holiday within Australia. It might be that seeing a foreign country would have some educational benefit for the child, but he is only six and there is no expert evidence that there might be a benefit.
Because the father does not propose an order which limits the travel to a specific country many of the factors referred to in paragraph 79 cannot be assessed.
The mother has a fear that the husband will attempt to take the child from her, and things he has said to her and his behaviour is some justification for this. She has suffered and continues to suffer distress because of the husband's behaviour and she would be distressed and fearful that she would not see the child again if the child was outside Australia with the husband. This could damage her relationship with the child and detract from her ability to care for him. Despite her poor opinion of the husband she promotes the child’s relationship with his father but additional stress may change her.
Allowing holidays out of Australia is not in the child's best interests. It would not promote the child's relationship with the husband and may affect his relationship with the wife. There is some risk that the husband might not return the child to Australia. There is no established benefit to the child at his age in the father taking him out of Australia. The money the husband propose spending taking the child out of Australia could be used by the husband for the support of the child in Australia, a best interest consideration in itself.
The mother proposes an injunction prohibiting the removal of the child from Australia and an order that the child's name be placed on the Airport Watch List. I will make the order with a finish date for the Watch List of the child’s fourteenth birthday. The protection of the order will not be needed after that date.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 1 May 2013
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