Badger and Aksakov

[2012] FamCA 1134

FAMILY COURT OF AUSTRALIA

BADGER & AKSAKOV [2012] FamCA 1134

FAMILY LAW – CHILDREN - Best interests of the child – Whether the child should spend any time with the father – Whether the mother should have sole parental responsibility for the child – Where there are allegations of drug abuse by the father – Where the mother seeks to be permitted to take the child overseas to visit the maternal family on an annual basis – Whether there should be any surety in place if the mother is permitted to take the child overseas to ensure her return of the child to the Commonwealth of Australia

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Badger

RESPONDENT: Ms Aksakov

FILE NUMBER: PAC 3205 of 2011

DATE DELIVERED: 8 November 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 7 & 8 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Cohen

David H Cohen & Co

Orders

1. That I discharge all form of parenting orders in respect of the child including any order that required the child to be placed on the Airport Watch List restricting her removal from the Commonwealth of Australia.

2. That the mother shall have sole parental responsibility of the child B born … February 2009.

3. That the child shall live with the mother.

4. That the father shall spend no face to face time with the child.

5. That the father be entitled to forward to the child via the mother gifts, cards and letters.

6. That the mother having ascertained that that material is appropriate, make it known to the child and until the child is in a position to read, to read and make known to the child the contents of any such communication

7. That the mother shall notify the father, in writing and no less than twenty-eight (28) days prior to any intended date of departure of her plans to travel overseas with the child including, when she will travel, when she will return and where she will be whilst overseas.

8. That the father shall pay to the mother, for her costs thrown away, the sum of $10,000.  That amount is to be paid to the mother or as she may direct within fifteen (15) months of this date.

9. That all applications and cross applications be and are hereby dismissed.

10. That all issues be removed from the Active Pending Cases List.

11. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3205 of 2011

Mr Badger

Applicant Father

And

Ms Aksakov

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. This matter has taken an unusual course.  It came before me yesterday in respect of the father’s application, which I will identify shortly, for parenting orders concerning the parties’ only child.  In addition, there was an issue as between the parties in respect of property.  At the commencement of the hearing, it was made clear by the father that there was indeed no issue as to property and he sought no order in that regard.  The issue of parenting orders remained alive.  The father gave evidence and was cross-examined.  His father gave evidence and was cross-examined.  I will review the evidence shortly in these reasons for Judgment.

2. This morning the father contacted my Associate to indicate he would not attend Court today.  He is not present in Court today.  He has, however, been contacted by telephone, and has participated by telephone.  His position, as I understand it, is that he would not initially oppose orders that are made today but would appeal and seek, once he had attended to certain matters in his life, to press his application to spend time with his daughter.

3. The father, in my view, would be well advised to take some other course.  It emerges that the father, I find, has some difficulties in his life at present that need be attended to before he will be in a position to move forward in respect of time with his daughter.  The step he has taken today does him some credit because it is clearly an acknowledgement that at the moment he is not in a position to proceed with his current application.

Brief background

1. A brief background to this matter is as follows:-

   ·The father was born on in 1972. 

   ·The mother was born on in 1982. 

   ·The parties commenced cohabitation in about 2000 or 2001. 

   ·The parties are in dispute as to the date of their marriage, the mother saying it was in 2005 and the father saying it was in 2006.  To my mind, nothing turns on this at this time.

   ·The parties separated on or after 19 April 2011, which was the date that the mother left Australia to travel to Country C, which is her country of birth.

2. The subject child in this matter was born in February 2009.  In the evidence the father gave, he contested the mother’s assertions that she was the primary caregiver and says that he was very actively involved with the child up until the time the mother went to Country C.  His father, who gave evidence, endeavoured to support this position.

3. Whilst there is no property dispute presently before me, it is clear that matters to do with money and finance have played a significant part in this matter.  I am satisfied that the father had difficulties in his own life around the time of separation.  I will return to that shortly in these reasons for Judgment.

The parties’ materials

1. There is a volume of material filed and relied upon by the parties.  The father commenced these proceedings by filing an Initiating Application on 15 July 2011, which mainly sought relief in respect of the mother’s intention to travel overseas with the child.  The documents he seems to have identified that he relies upon in this matter do not include that application, but I include it together with an Application in a Case filed on 14 June 2012.  The father referred to a number of affidavits, which seem to be, because he does not identify them with specificity, his affidavit sworn 22 May 2012 and his affidavit sworn 14 June 2012.  He relied on the evidence of his father, who I allowed to be called without being on affidavit.  In addition, he had indicated he relied on the affidavit of his mother, Ms D, which was sworn on 6 October 2012.

2. The mother, for her part, sought to rely upon:-

   ·her Response filed 1 August 2011;

   ·an Application in a Case filed 30 March 2012;

   ·three Financial Statements filed respectively 1 August 2011, 21 February 2012 and 5 October 2012;

   ·her affidavits sworn respectively 21 July 2011, 23 February 2012, 29 March 2012 and 5 October 2012;

   ·affidavits of Mr E sworn 3 October 2012, of Ms F sworn 4 October 2012 and of Ms G sworn 2 October 2012; and

   ·a valuer’s report by Mr H annexed to his affidavit sworn 23 February 2012 and filed 27 February 2012.

The hearing before me

1. In cross-examination of the father yesterday, it emerged that following the breakdown of the parties’ marriage, he claimed that he suffered from depression.  He said at that time he was also gambling and he mentioned that at one stage he believed he had expended some $30,000 in this regard.  During this period, he pawned or hocked jewellery of his wife and the child, and from time to time redeemed and then further re-pawned those items.  The items, as I understand it, have now been recovered by dint of criminal matters involving New South Wales Police.  There was a claim against the father, which I understand he is paying periodically, for compensation in respect of those recovered items.

2. The father also agrees that certain amounts of money were borrowed.  He asserts that it was some $70,000, whereas the mother asserts it was considerably more.  It seems that what happened was the parties reached an agreement whereby the property was transferred into the wife’s sole name and an amount of money was raised by mortgage thereafter.  Some of the monies were used by him to purchase equipment to establish a new business.  It was initially alleged that there had been payments of money for a franchise, but the father denied this.

3. In any event, material was purchased from overseas, and paid for to the value of approximately AUD$11,000.  The father’s evidence, which I find very hard to accept, was that thereafter he could not pay the bond fees to enable that material to be released in Australia.  Thereafter, he believes that the bond agents sold the material.  He has not made any inquiry in respect of whether any moneys are either owed by him because of a shortfall or owed to him because the amount realised on sale exceeded the amount that the bond agent sought to recover.  In addition, there was a motor vehicle purchased for some $28,000.  He asserts there was a holiday to Bali.

4. The father was questioned about drug use.  This evidence caused me very considerable concern.  His evidence, as I understand it, is that he has flirted with marijuana from time to time and that he took amphetamines two, and then later he said possibly three, times.  One of those occasions, he alleges, was when someone spiked his drink.  I find that evidence highly improbable.  In any event, on that occasion, the drug affected him to the extent that he was required to be hospitalised.  The other occasion that he readily accepts occurred was when he was apprehended for driving with an illicit substance present in his system.  On that occasion, as I understand his evidence, he conceded that two days before, or thereabouts, he had consumed some form of amphetamine or methamphetamine.

5. Additionally, the father’s financial affairs are in a considerable state of disarray.  He seems to assert that he owes $75,000 in loans and so forth.  He has no details of these.  He says that he has involved a company or organisation that will assist him in rationalising his debt, but as yet no action has been taken by him to do something in respect of this.

6. I must say that, having regard to the general tenor of the evidence, I am left with the uncomfortable feeling that the level of indebtedness has more to do with drugs and gambling than with legitimate commercial debt.  I am concerned, and find it highly probably, that the money owed in respect of gambling and drugs are the reasons for the father leaving New South Wales and going to Queensland rather than the avoidance of any legitimate commercial debts.

7. I am aware that his father, who clearly seeks to assist his son, says that he was the one who advised the father to go interstate.  I accept that that may be true, but it does not allay my fears that his reason for leaving New South Wales was more to do, as I say, with drugs and gambling rather than legitimate commercial debt. 

8. There is the additional factor that the father clearly has outstanding criminal charges against him.  As I understand it, an offence has been found proven, and in accordance with the criminal law in New South Wales, a Local Court Magistrate has issued a warrant so that he may be arrested and brought before the Court to enable the matter to proceed to conviction and sentence.

9. As I have said, the father today – and this does him very considerable credit – has indicated he wishes to resolve and deal with these matters, so far as he can, before pursuing his application to spend time with his daughter.  One of the things he has indicated to me that he wishes to do is surrender himself to police and deal with the outstanding warrant against him.  That is a sensible course and must clearly be to his benefit.  The question then is “What am I to do today?”.

The law to be applied

1. This is a parenting matter, which means there are certain sections of the Family Law Act 1975 (Cth) to which I must have regard.

2. The first of those sections is section 60B, which sets out the objects of the Act and the principles underlying those objects.  The objects are to ensure that the best interests of children are met.  This can be achieved by ensuring that a child knows both parents and has a relationship with both parents, balanced against the need to protect the child from any physical or psychological harm, amongst other things.

3. I turn then to section 60CC(2), which sets out the primary considerations. These are in very similar, but not identical, terms to the objects I have already referred to.  Section 60CC(3) then sets out, for the assistance of the Court, the additional considerations to which I must have regard.

4. The first of those are any views expressed by the child and any matters that may underline those views (subparagraph (a)).  In my view, I can receive some assistance in this regard from the Family Report prepared by Ms I dated 2 November 2012, which I will take into evidence before me.  The child was not immediately able to recognise her father, but and after some time, there was a certain warmness observed.  It seems, on my reading of the report however, that the child was far more interactive with her grandfather than her father.

5. I am satisfied that the child has not expressed any view that would enable me to obtain an insight into what it is that she wishes to occur.  Even if the child’s views could be made clear to me, her age would indicate that there is very little weight that should be attached to those views.

6. The next consideration is the nature of the relationship of the child with each of the child’s parents (subparagraph (b)).  The child clearly has a close, loving and supportive relationship with her mother.  The relationship with the father is far more problematic.  I am not able to say that the father, at this time, has any relationship with the child. 

7. The father’s case is that, for a considerable period of time, he has not been able to deal with the mother because of an Apprehended Violence Order.  One of the difficulties with that assertion is that he first indicated that the Apprehended Violence Order expired in July this year and he had made no attempts thereafter to either communicate with the mother or the child other than by sending a birthday present.  Fortunately for the father, he did not, because it appears the Apprehended Violence Order remains in force until November 2014.

8. I am satisfied that the child displayed far more recognition of her paternal grandfather than she did of her father.  I am not aware of the extent of the relationship with the child’s maternal grandparents and extended family.  It is apparent that the mother has travelled with the child to Country C from time to time.

9. As to the opportunity to participate or the extent to which each parent has taken or failed to take such opportunity to participate in the making of decisions (subparagraph (c)), it seems to me that, for whatever reason, the father has just found it too difficult to become involved in the child’s life.  His evidence was that when the mother returned from Country C, he was so angry with her that he could not speak to her.  That, to me, seems to be in direct conflict with other evidence he gave that he is desperate to arrange communication with his former wife so that he can have an ongoing relationship with his child.

10. As to the extent to which each of the child’s parents has fulfilled obligations to maintain the child, I am satisfied that the father has indeed done his best in the situation that he finds himself in financially, and money is deducted from his Benefit for that purpose.

11. Next is the likely effect of any change, including the effect on the child (subparagraph (d)).  In my view, to simply allow the father to be reintroduced to the child’s life at this stage could be quite detrimental to the child.  As I have said, the father, in my view, needs to attend to a number of outstanding matters and loose ends in his personal life before he can move forward.

12. The practical difficulty and expense of contact (subparagraph (e)), in any event, would mean that the father, so long as he remains in Queensland – and he tells me he proposes to do so – travelling to New South Wales to see the child.  Alternatively, if he wished the child to travel to where he lives, it would mean the difficulty of the child being brought to his place of residence.  In his present financial situation, that presents a real difficulty.

13. So far as the capacity of each parent is concerned (subparagraph (f)) and the attitude towards parenthood (subparagraph (i)), the mother’s attitude and capacity are proven and exemplary.  The father’s position indicates that both as to capacity and attitude his position is far inferior to that of the mother.

14. These are the matters that lead me to believe that when I balance the object and primary considerations of the child spending meaningful time with and having a relationship with each parent as against the need to protect the child, the need to protect the child at this present time must prevail.

15. I turn then to the next section which I am required to take into account, and that is section 61DA, dealing with the presumption of equal shared parental responsibility.  There is clearly no level of communication between these parties and, in my view, to require there to be at this stage equal shared parental responsibility would be to create an impossible, unworkable and potentially volatile situation which could not be for the benefit of the child.  The mother is the person who has the child with her.  In my view, in this case it is entirely appropriate that she have sole parental responsibility.

16. So far as time with the child is concerned, section 65DAA of the Act says that if I make an order for equal shared parental responsibility, I must consider equal or significant and substantial time with the non-residential parent.  Despite not making such an order, I am aware of the Full Court of the Family Court of Australia decision in Goode & Goode[1] which states that even in the absence of such an order, I must still consider if it is in the best interests of the child that she have either equal or significant and substantial time with her non-residential parent.

    [1] [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422

17. In the circumstances of this case, there can be no question of equal time.  It is not sought, and in no way could it be seen to be practical or appropriate in this case.

18. As to whether there should be substantial and significant time, in this case, I am satisfied that the matters that I have sought to identify, which need to be addressed and remedied by the father make it clear that, at this time, it is not appropriate that I make any order for the father to spend any time with the child.

19. Accordingly, I propose to order that the mother have sole parental responsibility for the child, that the child live with the mother and that, by order, the father spend no time with the child.  I propose to order that the father be entitled to forward gifts, letters and cards to the child, and I propose to order that the mother, having examined those documents, pass them on if they are appropriate.

20. I propose to order in respect of the mother’s proposed travel to and from Country C that until the child commences school, the mother be required to inform the father no less than 28 days prior to her proposed date of departure of her plans for travel on that particular occasion.

21. The father, in my view, can recover from the position to be created by my orders if he attends to matters that affect his life adversely at this time.  I am not setting down a checklist for him, but it would seem to me that if he wishes to come again to this Court, he would need to be able to satisfy the Court at such time that his situation is much improved.  He would need to provide satisfactory evidence that his depression is adequately managed, or that he had made a recovery.  That would require evidence by a properly qualified medical practitioner.

1. He would need to satisfy the Court that he has dealt with the debts of which he has given evidence in these proceedings, and that his finances are in order.

2. He should be in a position to produce appropriate evidence to establish that he is then drug-free and, so far as can be indicated by any test, that he had been drug-free for some period of time.

3. If he were to do those things, he would be, in my view, well on the way to satisfying a Court at some time in the future that there was a very significant change in his circumstances, and the circumstances involving the child, that may require re-litigation and reinvestigation of the matter.

4. However, the application before me must be dealt with.  There is absolutely no value and no benefit to the child in me making other than final orders today.

5. I therefore make orders in respect of the issue of parenting as set out at the commencement of these reasons for Judgment.

The costs application

1. I turn then to the issue of costs.  An application has been made on behalf of the mother for costs relating specifically to the issue of the property, which until yesterday morning was very much alive.  The father indicated at the commencement of the proceedings yesterday that he no longer wished to pursue any order in respect of property.  The real property is registered in the wife’s sole name.  I do not believe any further order in respect of property is necessary.

2. However, it is clear that the mother prepared her case, as she had to do, on the basis that property was in dispute.  Apart from anything else, she incurred a disbursement in obtaining a valuation report from Mr H.

3. Further, it is put to me by her solicitor, Mr Cohen, that had property not been an issue, it is at least possible that the mother may have obtained a grant of Legal Aid to assist her in the conduct of the parenting issues.  Whilst, with respect, this is an ingenious submission, I am not sure that I can take account of it so as to widen the issue of costs into the parenting issues.

4. I have been given an estimate of $15,000 by Mr Cohen.

5. Costs in this Court are governed by section 117 of the Act.  The general rule is that each party pay their own costs, however, if there are circumstances that justify it, the Court may make an order for costs, and I refer to the decision of the High Court in Penfold v Penfold[2]. 

   [2] (1980) 144 CLR 311

6. If I am to make an order for costs, I must have regard to the matters set out in section 117(2A).  The first of those is the financial circumstances of each party (subparagraph (a)).  I understand the father is in straightened circumstances.  He has, on his own evidence, very significant debts, which, sooner or later, are going to have to be paid or dealt with in some way.

7. The mother’s situation is better than his, but she has the care of the child and, notwithstanding the amount paid by the father by way of child support deducted from his pension or benefit, the weight of the support of that child clearly falls upon her.

8. Whether any party is in receipt of assistance by way of Legal Aid does not apply in this case (subparagraph (b)).

9. Subparagraph (c) relates to the conduct of the parties in relation to the proceedings.  To my mind, this of particular significance in this case.  The father did put property in issue in these proceedings.  It was only at the commencement of the hearing yesterday morning that he indicated that it was no longer an issue.  It is clear, to my mind, that the father’s actions caused the mother to incur the costs of preparing for a contested property hearing.

10. This is a situation where it cannot be said that the proceedings were necessitated by the failure of a party to comply with orders (subparagraph (d)), although I do note in this respect that the father, having commenced these proceedings, then at times sought not to engage, and indeed it will be remembered that my first contact with this matter was when the matter came before me for an undefended hearing, the father having not complied with directions, nor participated.

11. This is not a case where any party has been wholly unsuccessful (subparagraph (e)), because in my view, the matter was not proceeded with and the Court has not made orders following a concluded contested hearing.  However, I am satisfied that the father, conducting the matter in the way in which he did, has clearly exposed himself to an order for costs, and I propose to make such an order.

12. It would, to my mind, be absolutely against good practice and common sense to order that there be an assessment of the mother’s costs in respect of the property issue by a proper costs assessor.  Such a course will merely keep these parties engaged.  Mr Cohen has given me an assessment of $15,000.  In my view, an appropriate amount that the father should pay to the mother for her costs thrown away is $10,000.  The father has indicated to me that he would require at least 12 months within which to pay, and I propose to give him 15 months to pay that amount.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 8 November 2012.

Legal Associate:      

Date:    13 February 2013