Aldridge and Mazzotti (No. 2)

[2009] FamCA 1347

FAMILY COURT OF AUSTRALIA

ALDRIDGE & MAZZOTTI (NO. 2) [2009] FamCA 1347

FAMILY LAW – CHILDREN – Entrenched conflict between parents – Orders restraining mother from leaving Australia without father’s consent or order of the Court – Name by which child should be known

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3)

McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Aldridge

RESPONDENT: Mr Mazzotti

FILE NUMBER: CAF 262 of 2005

DATE DELIVERED: 18 November 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 & 28 November 2006
26 & 27 February 2007
18 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self represented litigant

SOLICITOR FOR THE RESPONDENT: Ms D. Simpson, Dobinson Davey Clifford Simpson

Orders

1. The mother, Ms Aldridge, of the child E, born … October 2003, have sole parental responsibility for the child. 

2. The child will live with her mother.

3. Unless the parents otherwise agree the child will not spend any time with her father.

4. a.     The child’s mother will keep her father, Mr Mazzotti, advised of the address at which she and the child are living.

   b.      The child’s mother will also advise the father of the school that the child is attending from time to time and will authorise and direct the school to provide to the father, at his expense, copies of any reports or notices that the school may issue.  A copy of this order may be presented to any school that the child is attending for the purposes of informing the school that the order exists and its terms. 

   c.      The child’s mother will keep her father advised of any significant medical issues or medical treatment that the child receives during the time that the child is in her care and in particular she will advise the father within 24 hours of any event which causes the child to be hospitalised.

   d.   The father may send letters, cards and gifts to the address that the child resides at now and in the future.  The mother will facilitate the provision of  such letters, cards and gifts to the child.

5. The mother be and is hereby restrained from removing E, born … October 2003, from the Commonwealth of Australia without the written consent of the father or an order of this Court.

6. To facilitate the order herein before referred to all passports in relation to the child will be retained by a Registrar of this Court and released to the mother upon her applying to have it so released provided the father consents or there is an order of the Court permitting the release of the passport.

7. a.     Until further order the mother and her servants and agents, and the father and his servants and agents, are restrained from taking or sending or attempting to take or send the child E, female, born … October 2003 from Australia.

   b.      The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

   c.      The Registry Manager shall immediately notify the Marshal and the Australian Federal Police Family Law Team at Canberra of these orders by telephone and shall as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the Australian Capital Territory Police.

   d.      The Court requests that until 1 January 2012 the Australian Federal Police place the name of the child on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

8. I discharge the order that was made by me on 29 August 2005 that the surname for E would be Aldridge in lieu of Mazzotti Aldridge and I require that E be known by the surname Mazzotti Aldridge and not by the surname Aldridge or by the surname Mazotti-Aldridge.

9. I remove all other applications that are in existence in this matter from the pending cases inventory and I make the usual order about the return of all documents that have been produced subpoena or which have become exhibits in this case.

10. The matter itself is removed from the pending cases list. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: No. CAF 262 of 2005

MS ALDRIDGE

Applicant

And

MR MAZZOTTI

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before the Court relate to the outstanding issues concerning E, the child of the parties, who was born in October 2003.  She is at this time just over six years old.  The proceedings about E have occupied a significant number of days in this Court, and several pages of Affidavits.  However, at the conclusion of the proceedings, as I indicated in the course of my judgment delivered recently in relation to property matters between the parties, I was advised that the father, in the interests of resolving matters, and doing what he considered in the circumstances would be best for the child, has agreed that orders should be made that the child should live with her mother and that he would not spend time with her.

2. The father also indicated that he wanted an order restraining the child from being removed from the Australian Capital Territory (ACT) /Queanbeyan, New South Wales (NSW) area, and wanted to be kept advised about where the child was living, and of any medical issues that related to her. 

3. The matter limped for a time about these things until I was advised relatively recently by the mother that she did not agree to the last two of the stipulations that I have just mentioned, namely, that she be restrained from living otherwise than in the ACT or Queanbeyan area, and that she should keep the father advised of the address at which the child was living, and medical issues about her.

4. Accordingly, I arranged for this matter to be listed before me today so that I could finalise questions about the child before this Court.  There were some new matters raised before me this morning which I think I can also dispose of in the course of these proceedings.  They related to orders that were made by me in the past on an interim basis, which included:  the surrender of passports for the child; the proscription from her leaving Australia without the father’s consent or an order of the Court; and her name being placed on the airport watch-list.

5. In addition, the parties have raised, through Ms Simpson on behalf of the father, that the father should have an order which would facilitate his obtaining reports at his expense from the school the child is attending.

6. The second issue related to whether or not the father may correspond with the child in the future by letters and by delivery of presents, and so forth.  I consider that is appropriate as well. 

7. The third issue that was raised somewhat late in the proceedings was the name by which the child should be known.  I will deal with each of these matters separately. 

The best interests of the child

1. Any order I make is an order that must, under the Family Law Act 1975 (Cth), be made in accordance with the child’s best interests,[1] not the desire of either of the parents.  I note at the outset that each of the parents in this matter expresses extreme hostility towards the other.  I have practised in family law for about 40 years and I have been a Judge of this Court for 15 years.  It would be fair to say that the acrimony between these two rates among the “Top 10” of those that I have come across during the time that I have been in practice and on the Bench.

   [1] Family Law Act 1975 (Cth) s 60CA.

2. The likelihood, therefore, of their being able to co-operate (in the parenting of the child) as they are obliged to do by nature, by decency and by the law, is small.  I understand and accept from the mother that, to the extent that she is able to do so, she encourages the child to have some form of contact with her father.  I understand that the father, to the extent that he is able to do so, wants to have some sort of contact with the child.  However, the father’s lack of enthusiasm for pursuing this matter, coupled with the mother’s total inability, in my opinion, to understand the effect of her conduct and her ability to influence, either directly or indirectly, the child about her father, mean that these things are very remote.

3. The primary considerations I am obliged to take into account in determining what is in the child’s best interests are, first, that she should be protected from anything that may cause her harm.[2]  There have been allegations in this matter which would normally require me to make a decision about whether or not the things that are asserted by the mother about the conduct of the father were true, because if they were, that would impact upon the question of the child’s safety.  However, given the orders that I am being asked to make, that is no longer a relevant consideration because there is no question of her safety from her father, at least, in the context of those orders.

   [2] Family Law Act 1975 (Cth) s 60CC(2)(b).

4. The second primary matter that it is important in most cases that a child should have the benefit of a relationship with each of her parents.[3]  It is interesting that this phrase includes the word “benefit of.”[4] Section 60CC(2)(a) does not make it obligatory that there should be a relationship because in some cases such relationship is not possible.  This, as the father has, I think, in some respects, courageously recognised, is the situation in this matter. His persistence over some time in trying to have a relationship with E, has brought nothing but litigation, concern, angst, worry, anguish and expense to the parties.

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [4] For a discussion of “benefit of”, see the Full Court of the Family Court of Australia decision of McCall & Clark [2009] FamCAFC 92, [121] (per Bryant CJ, Faulks DCJ and Boland J).

5. In his decision to step back, he is not – and I accept he is not – in some way acknowledging the concerns expressed by the mother, but rather as a responsible father, he is recognising that the only prospect that he can reasonably have for a relationship with the child at some point in her life is to step out of it for the time being.  That is a difficult decision for any father or any parent to make, and I accept and commend him for it. 

Additional considerations in determining the best interests of the child

1. The other matters that I am to take into account involve a sequence of factors which relate to:  the ability of each of the parents to accept their responsibilities as parents;[5]  the practicalities and difficulties associated with the time that one parent may spend with a child;[6] and  the wishes of the child herself[7] (although, at age six, I am not prepared to place a great deal of weight upon those wishes,) even if I had obtained them independently (by an appropriately qualified person).

   [5] Family Law Act 1975 (Cth) s 60CC(3)(i).

   [6] Family Law Act 1975 (Cth) s 60CC(3)(e).

   [7] Family Law Act 1975 (Cth) s 60CC(3)(a).

2. I take account of the issues of violence that have existed between the parents in the past and the orders made about such family violence.[8]  I also take account of the effect that such orders would have upon the relationship of each of the parents with each other[9] and their ability to co‑operate with each other for the benefit of the child.[10]  I note also the fact that such violence may impact directly upon the child. 

   [8] Family Law Act 1975 (Cth) s 60CC(3)(j).

   [9] Family Law Act 1975 (Cth) s 60CC(3)(d)(i).

   [10] Family Law Act 1975 (Cth) s 60CC(3)(c).

3. Those, broadly, are the matters which are relevant to these proceedings.  I have not canvassed them in great detail because of the nature of the orders that are being sought.

Discussion

1. There are some factors that flow from the nature and background of these proceedings, which I need to touch on briefly in explanation for some of the orders that I propose to make.  The first is this.  It seems to me to be unreasonable in circumstances where the child would not be on a day-to-day, or week‑to‑week, or month-to-month, or even year-to-year basis, spending time with her father, to require the mother to remain in the ACT or the Queanbeyan area.  It would be an unreasonable shackling of the mother in circumstances where there would be no demonstrable benefit to the relationship between the child and her father.

2. This provides a fairly broad canvass upon which the mother might choose to write, if she were minded to do so.  That would permit her to move some distance from Canberra and she may do so, I cannot say.  It would be a pity, if at some point in the future, the child were to look to her mother and to say to her, “When I was six, you wanted to go and pursue connexions with your real family, and to find your real father, and you wanted to do this, notwithstanding that you hadn’t seen your father for a long time.  But you stopped me from being able to see my real father in circumstances where I wanted to do so.”

3. I have no idea whether the child will want to pursue a relationship with the father in the future, but she should be able to do so.  It is for that reason that I think it is important that the mother should continue to have a liability and a responsibility to enable the child to at least communicate in writing with her father, which cannot possibly impinge upon the risks that would otherwise apply if there were to be any physical contact, if I were to accept all of her evidence, which I do not.  The second fact, of course, is that not only is the father, as E’s father, likely to be interested in, but he is obliged to be involved in, knowledge of what is happening to her medically.

4. Indeed, the child may herself, at some point in the future, need to have some contact with her father to be able to ascertain whether any medical condition from which she is suffering may be hereditary, and hence provide some part of her history to enable her to be properly cared for in the future.  Accordingly, contact must be maintained, at least to the extent of there being able to be written communications between the child and her father in the future.

5. If I were to impose an order, as I propose to do, that the child’s mother keep the child’s father advised about where the child is living, then it is an order which, to some extent, is almost impossible to detect a failure to comply with.  If there is a change of address, how does one find out that the change has occurred? 

6. Accordingly, I cast around, as I suggested to the parties in the course of addresses, for a means whereby I could provide an incentive to the mother to comply with the order.  It seems to me that that incentive lies in the resolution of one of the additional matters that were raised in front of me today.  If I am to impose, as I propose to do, an order on the mother which requires her to remain within Australia, unless she obtains an order of the Court, or alternatively obtains the consent of the father, then one of the factors which any court considering an application for her to leave this country would be likely to take into account, is her compliance with this very minimal requirement of keeping the father advised about where she and the child are living.

7. I might add that, during the course of addresses, the mother quite properly indicated that she was prepared to comply with this requirement, and I welcome this indication from her of an acceptance of this possibility that at some point in the future the child could pursue a relationship with her father.  I have also considered, and believe it is appropriate, that the father should be able to obtain from any school, that the child attends, reports as to her progress.  I note in the course of addresses that the mother indicated from the Bar table that she was in the process to applying to home school the child.  I am not sure that that would be something that I would regard in the circumstances as being in the child’s best interests, but nevertheless the order I make relates to any school that the child attends.

The name by which the child will be known

1. The final issue which seems to me is resolved in a pragmatic way relates to the name by which the child should be known.  Previously, by consent, although by consent in this matter has had a vexed history as a preamble to orders that were made by the Court, I made an order on 29 August 2005 which required that:

   The child’s surname shall be changed from [Mazzotti-Aldridge] to just [Aldridge].

2. I indicated when this ceased to be a matter of agreement between the parties in the course of submissions before me today, that I believed the appropriate way of resolving the dispute was by reference to the name by which the child was known on her birth certificate.  On her birth certificate, which I have obtained a copy of,[11] she is known by the surname of “Mazzotti Aldridge”.  Her given names are, as indicated in previous orders, “[…]”.  I propose to discharge my previous order and to require that that be the name by which she is in future known, given that both parties agreed that she would be known by the name that appeared on her birth certificate.

   [11] Being that filed in this Court when proceedings began.

Conclusion

1. I make orders in accordance with my judgment.  The matter is removed from the pending cases list.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  3 March 2010