Atuk and Atuk
[2017] FamCA 441
•27 June 2017
FAMILY COURT OF AUSTRALIA
| ATUK & ATUK | [2017] FamCA 441 |
| FAMILY LAW – CHILDREN – TRAVEL – Where the mother seeks orders that she be allowed to travel overseas with the children – Where destination subject to Department of Foreign Affairs and Trade travel warnings – Where father opposes travel – Consideration of relevant matters – Where risk is determining factor – Where application dismissed. |
| Family Law Act 1975 (Cth) 60CC |
| Atuk & Atuk [2016] FamCA 283 SCVG & KLD (2014) FamCAFC 42 |
| APPLICANT: | Ms Atuk |
| RESPONDENT: | Mr Atuk |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Truong |
| FILE NUMBER: | PAC | 4209 | of | 2014 |
| DATE DELIVERED: | 27 June 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 May 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Hawach of Mcauley Hawach Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Atila of Atila Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Truong of Legal Aid NSW Bankstown Family Law |
Orders
That the mother’s application filed 8 March 2017 be dismissed
That any application for costs be made by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days, thereafter judgment reserved to chambers.
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 Atuk & Atuk 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 PARRAMATTA |
FILE NUMBER: PAC 4209 of 2014
| Ms Atuk |
Applicant
And
| Mr Atuk |
Respondent
REASONS FOR JUDGMENT
The discrete application for determination is the question of the proposed overseas travel for the two children of the parties’ relationship J aged 14 and K aged six.
The application is made in the context of ongoing property and parenting proceedings between the parties that commenced in 2014.
On 29 April 2016 various interim orders were made by consent and following determination at an interim hearing. Those orders provided relevantly as follows:
IT IS FURTHER ORDERED BY CONSENT THAT:
1.Each parent is restrained from:
a.Making any negative remarks about the other parent or members of that parent’s family to the children or in the presence or hearing of the children;
b.Discussing these proceedings or any issues in dispute between the parties with the children or in the presence or hearing of the children;
c.Physically disciplining the children;
d.Using the children or any of them as messenger to facilitate communication between the parties.
2.Each parent is to use his or her best endeavours to ensure that no party:
a.Speak negatively about the other parent or member of that parent’s family to the children or in the presence or hearing of the children; and
b.Discuss these proceedings or any issues in dispute between the parents with the children or in the presence or hearing of the children.
3.For the purposes of facilitating changeovers otherwise and as provided for below the parent who is to commence spending time with the children shall collect the children from the other parent and at the conclusion of that time the children shall be collected by the other parent from the residence of the parent with whom the children are spending time.
PENDING FURTHER ORDER IT IS FURTHER ORDERED THAT:
4.That the Mother and Father have equal shared parental responsibility for the children [J] born … 2003 and [K] born … 2011 (“the children”).
5.That the children live with the Mother.
6.That the children spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS and or email communication and in default of agreement as follows:
a.During school term each alternate weekend from after school Friday to before school Monday or Tuesday if a long weekend commencing Friday 12 February 2016 for the current school term and thereafter commencing on the second weekend after the resumption of school term;
b.During school term each alternate Thursday from after school Thursday to before school Friday commencing Thursday 4 February 2016 in the current school term and thereafter commencing the first Thursday after the resumption of school term;
c.For one half of the end of term school holiday periods commencing at 9:00am on the first day of school holiday periods and concluding at 5:00pm in the midpoint Saturday of such holiday periods.
7. The Father’s time with the children be suspended on the Mother’s Day weekend from after school Friday to before school Monday provided always that the children shall spend the Father’s Day weekend with the Father from after school Friday to before school Monday.
8.The Mother be permitted to enrol the child [K] in the [G School] forthwith and facilitate the child’s continuing attendance at that school pending further order.
9.That the Mother shall nominate the Father as the primary emergency contact in the event of any emergency relating to the child [K] in respect of which the Mother is unavailable.
10.The Father return the child [K] to the Mother by no later than 5:00pm today by delivering the child to the Mother at her residence and in respect of this order leave is granted to the Mother to relist on short notice by communication with the Associate in chambers.
Previous interim proceedings
The reasons for judgment in relation to the interim parenting orders reveal the background to this matter: Atuk & Atuk [2016] FamCA 283.
The father and mother married in Country D in 1998. Following the marriage the mother moved to Australia from Country D in 1999 to live with the father. The father and mother separated in late April 2014.
There are three children of the marriage. The eldest, M is presently 16 years of age and resides with the father and spends no time with the mother. He has left school and is apprenticed. The younger two children who are the subject of this present application reside primarily with the mother.
Interim parenting orders were made on 2 February 2016 in relation to the two younger children with the father and mother to have equal shared parental responsibility, the children to live with the mother and the children to spend time with the father as agreed or in default as per the arrangements referred to.
The mother is in contract employment. The father has chosen to stop full time employment and care for his elderly mother whilst receiving a disability support pension.
The mother asserts that after separation the children lived with her and spent from Friday afternoon until Monday morning with the father.
On 18 September 2015 the father removed the child K from the mother’s care. The child was returned to the mother’s care on 6 October 2015.
Thereafter the child did not spend time with the father until after the family consultant’s interviews in December 2015.
The mother enrolled the child K in the G School that being nearby to her residence. The child commenced at that school in the 2016 academic year. The father objected and proposed Suburb C School that is nearby to his residence.
The father has paid little child support since separation, choosing to cease full time employment in late 2014. The mother has been paying school fees for the child J at N School without contribution from the father. The child now attends the L School.
The father makes many historical allegations as to the mother’s care of the subject children and of her conduct in relation to them. The Department of Family and Community Services became engaged after what appears to be notifications by the father in relation to the child M who now lives with the father and is in employment. The Department for the reasons set out in the reports attached to the father’s affidavit took no action.
The father’s evidence reveals a significantly conflictual relationship between he and the mother with the father willing to engage the child M in legal proceedings against the maternal grandfather in relation to recovery of goods and an Apprehended Domestic Violence Order. More recently he has facilitated the child M commencing legal proceedings against the mother over an issue as to the alleged use by her of certain trust funds asserted to be those of the child. Needless to say the relationship between the mother and the child is strained.
The father asserts that the mother has a significant medical disability. That assertion is not supported by the mother’s general practitioner’s notes (Exh “C”) tendered by the father. Indeed, they indicate the circumstances of upset within the home and the mother’s allegations as to the father’s significant gambling before separation.
The Family Consultant’s Memorandum
The parties and the three children of the marriage attended upon a family consultant on 17 December 2015 for the purposes of a preparation of a Child Responsive Program Memorandum (Exh “B”).
The Memorandum recommended the appointment of an Independent Children’s Lawyer, that order being made on 13 January 2016.
At the time of the Memorandum the eldest child was residing with the father and the younger children residing with the mother. The younger children were spending time with the father each week from after school Friday until Monday.
The eldest child M presented to the family consultant as “reserved and disinterested in being interviewed or involved in the process”. It is apparent that the child is significantly aligned with the father after an incident between him and the maternal grandfather. Without consulting the mother the father had arranged for the child to leave school and commence an apprenticeship.
The child J presented as a “friendly mature and articulate boy”. J reported to the family consultant that he felt that he was somewhat in the middle because his older brother was not spending time with the mother and as at the time of the interviews his younger brother was not spending time with the father. J expressed a clear wish for arrangements to “stay as they are, but he also wants to spend some weekend time with the mother”. The child suggested perhaps eight nights per fortnight with the mother and six nights with the father provided he had weekend time with both parents.
Notwithstanding the father’s allegations J reported that he did not find the mother to become angry for no reason or hit or yell. He said he had no worries about physical discipline in either household.
The youngest child K presented as a “confident, outgoing and friendly boy”. It appears that the father had engaged the child in the dispute with the child conscious of the father’s views as to shared care. The child also reported that he had told the father not to do “bad things again” referring to him being retained by the father. The child reported that he was not scared of either of his parents and liked both of their houses. In evaluation the family consultant was of the view that given the child’s age his arrangements may need to be different to that of his brothers.
Both parties made allegations one against the other to the family consultant and if necessary those allegations will need to be tested at a final hearing.
The father asserted to the family consultant that the mother had been diagnosed at O Hospital with bipolar disorder. The father adduced no evidence at the interim hearing to support this contention and indeed the mother’s general practitioner notes refute any such suggestion.
The mother expressed concern about the children being returned by the father directly to school after the weekend as it had been reported to her by the school that when the children had arrived their uniforms were dirty and they did not have lunch. She had concerns that if they were being cared for by the paternal grandmother she would have difficulty preparing the children for school due to her age and medical condition. This contention seems to be supported by the father’s assertion that he is required to be his mother’s disability carer.
Concerningly, the father informed the family consultant that he would be taking the three children home with him at the conclusion of interviews. The father was advised by the consultant that this may not be in the children’s best interests yet he repeated his intentions to the family consultant several times.
The family consultant reports that the parties have poor communication and usually communicate via text message.
In evaluation the family consultant repeated her concerns that the father may retain the children in his care or seek to discuss the children’s interviews with them. The family consultant identified significant risk issues regarding coercive and controlling family violence, influencing the children and not supporting the children’s relationship with the other parent. The consultant was of the view that the father had sought to influence the children through telephoning them while they were in childcare and in interview. The family consultant considered such conduct highly inappropriate and concerning as it indicates an inability to prioritise the children’s needs above his own and to act in their best interest.
The child J has expressed views in the context of the family consultant’s Memorandum. It is clear that he sees himself primarily residing with the mother and spending weekend time with each parent. The child K is young and no significant weight would be given to his views if expressed. It is concerning that the child has reflected poorly on his father’s conduct in retaining him for a period. However, the child appears to enjoy time with his father.
Both children have significant relationships with both the mother and father and it is important that those relationships continue. The children have an established relationship with the paternal grandmother who was part of their household until the parties’ separation. J perceives her as somewhat argumentative and the ongoing relationship between her and the children must be seen in the context of her poor health such as would require the father to cease employment and assume the primary role as her disability carer. It would certainly be inappropriate if the children were left in the care of the paternal grandmother for any extended period.
The history of the parents’ engagement with the children during cohabitation is not much in dispute. They both had a significant involvement subject to the exigencies of employment. Post separation their engagement with the children has varied in the circumstances discussed above.
During cohabitation both parties were responsible for the maintenance of the children. Post separation that burden has fallen most substantially upon the mother by reason of the father’s decision to cease full-time employment and assume the obligation to care for his elderly mother. It is unlikely the mother will receive more than token support for the children from the father in the foreseeable future.
The father proposes a significant change in the present circumstances of the subject children. He proposes that the children reside primarily with him and spend weekend time with the mother. That arrangement is not in accordance with the wishes of the child J who indicated to the family consultant that if arrangements were not to his liking he would simply “just leave” as his parents live locally. The children’s circumstances post separation had not settled until such time as a temporary arrangement was put in place on 2 February 2016. Another change in the children’s circumstances would be unnecessarily disruptive particularly where there will be a final determination as to parenting arrangements at final hearing.
There is no practical difficulty and expense in the children spending time with or communicating with each of the parents by reason of the close proximity in which the parents reside. Telephone contact with each parent can be a matter for the child J to determine himself. However, the level of conflict between the parties is suggestive of an order for telephone contact between the child K and the parents being appropriate.
An assessment of the father’s parental capacity is clouded by his conduct post separation particularly as reflected in the family consultant’s Memorandum. There must be some misgivings as to his capacity long-term to provide for the children’s needs particularly their emotional and intellectual needs; however, that assessment will await a final hearing. The father makes allegations as to the mother’s capacity to parent by reason of her conduct in relation to the children and, as he asserts, her mental health issues. There is no evidence before the Court supportive of those concerns such that would give rise to the mother being unable to properly provide for the needs of the children including their emotional and intellectual needs.
The parents continue to have a conflictual relationship and as such present with poor attitudes to the children and the responsibilities of parenting. It is hoped that the settlement of interim arrangements will facilitate better communication and some amelioration in their conflictual relationship.
There are assertions as to violence and adverse conduct in the parties’ relationship. Both parties have differing versions that are unable to be resolved on an interim basis.
In the context of reasons for judgment delivered 29 April 2016 the detailed consideration as to the relevant factors relating to the children’s best interests was undertaken. Regard has been had to that consideration. They did not need to be repeated here in the context of this discreet interim issue.
The present Application
On 8 March 2017 the mother filed an Application in a Case seeking in summary the following orders:
a)that within seven days the parties do all things necessary to procure passports for the children and that upon issue of such passports they be lodged with the Registrar of the Family Court of Australia at Parramatta to be released only with the written consent of both parties or court order;
b)that in the event that either party fails to comply with the previous order such passports without the consent of that party;
c)that the mother be permitted to remove the children from the jurisdiction of the Commonwealth of Australia for a period of not more than 28 days with such travel to be within gazetted New South Wales school holidays and any additional period up to 10 days or such other period as the parties may agree in writing with the mother to provide to the father or his legal representative not less than 28 days’ notice of her proposed travel, a written travel itinerary, return tickets to Australia for the children and herself and the details of overseas telephone contact numbers at which the children and the mother may be reached whilst overseas;
d)costs.
The mother relied upon her affidavit filed 8 March 2017.
For his part the father filed a Response to the mother’s Application in a Case on 31 March 2017.
The father relied upon his affidavit filed on 31 March 2017.
The DFAT warning
Exhibit “B” before the Court comprises the Australian Government Department of Foreign Affairs and Trade travel warning as at 24 April 2017 in relation to Country D with the official travel advice being prescribed as “high degree of caution” as to the whole country and any need to travel should be reconsidered in relation to the cities of S and T and various provinces of the country. Otherwise, circumstances of conflict in the Middle East are matters of public knowledge.
The mother’s evidence
The mother asserts that the main reason for her trip is to visit her parents and to keep the children in touch with the heritage and their Country D culture.
During the parties’ cohabitation they travel to Country D for holidays with family regularly. It appears that the last of such holidays for the family as a whole was in a period from mid-June 2013 to mid-July 2013.
At the times of such travel the family stayed in City S where the extended family on both parties resided. The wife says that since the parties’ separation in late April 2014 her parents visited her in Australia for the period from June 2014 to February 2016. There is no evidence as to why they are unable to do so again.
Correspondence between the parties has not resolved the issue notwithstanding a request from the father for him to care for the children while the mother travelled to Country D to visit her parents. Circumstances where the father responded expressing concerns as to the mother influencing the child K to hold negative views of him and querying the guarantee that could be provided by the mother to ensure the return of the children were understandable.
The father’s evidence
The father says that he has had no satisfactory response to his request for guarantee that the mother would return the children to Australia. He expresses further concern in that he has been informed by a third party of the mother’s intention following resolution of outstanding property issues to return to Country D permanently with the children.
He expresses further concern as to the mother’s failure to comply with interim parenting orders in that in January 2017 she sought inappropriately to enrol the child K at Suburb U School without the father’s consent.
Otherwise, he says that the mother has removed the children from school during school term in the period from 10 December 2016 to 21 December 2016 without his consent. During such period his prescribed time with the children did not take place.
Otherwise, the father provides evidence by way of photo that the child M has a valid Australian passport until 2 May 2018 and asserts that the mother is in possession of valid passports for both of the children.
It is his position that should she wish to travel to Country D she may do so but that he will care for the children during her absence.
Discussion
The mother’s interim application was first listed before a Registrar on 6 April 2017 and on that date listed for hearing before a Senior Registrar on 19 April 2017. On that date the matter was adjourned for hearing before the Court on 15 May 2017 on which date judgment was reserved.
Property proceedings were resolved by orders made on 24 March 2016 following delivery of reasons for judgment that day. Those orders provided that the sum of $254,194.00 together with some of the pro rata interest to be paid to the wife from a controlled monies account where funds were held on trust for the parties.
Those orders have been appealed and the distribution of funds has been stayed pending outcome of the appeal.
It is also common ground between the parties that Country D has ratified both the Hague Convention on the Civil Aspects of International Child Abduction and from 1 February 2017 the Hague Convention of 19 October 1996 on Jurisdiction Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility, and Measures for the Protection for the Children.
The operation and efficacy of those conventions in Country D in the present circumstances is not the subject of evidence nor is the prospect of recognition and enforcement of orders made by this Court under the latter mentioned convention that has recently commenced operation.
Some of the pertinent issues as to the question of overseas travel were the subject of consideration by the Full Court in Line and Line [1996] 21 FamLR 259 and earlier in Kuebler (1978) FLC 90-434.
The mother has family in Country D and few ties in this country.
There is no evidence as to why her parents cannot again travel to Australia.
There is no evidence as to availability or otherwise of relevant cultural events here in Australia for the children.
The parties’ relationship is poor and the wife, it is asserted, has represented an intention to return to Country D with the children and has not complied with previous orders.
Otherwise, however, the overarching concern is for the likely risk to the children in travelling to a destination where the relevant authorities prescribe a high degree of caution and the need to reconsider the travel to such destination.
Interim Parenting
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.……In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter& Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks& Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FamCAFC 42.
50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
This matter is easily resolved by the risk to the children of being exposed to civil unrest as proscribed by the Departmental warning and concerns as to the risk of them not returning in circumstances where there is no evidence as to the relevant operation of international Hague Treaty obligations in that country in its present circumstances.
The application is to be dismissed.
It is noted that the children were placed on the airport watch list by reason of interim orders made on 16 September 2014 for a period of two years. Such orders expired on 15 September 2016. No application has been made for any further order.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 June 2017.
Associate:
Date: 27 June 2017
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