Barreto and Vogel
[2013] FCCA 550
•18 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARRETO & VOGEL | [2013] FCCA 550 |
| Catchwords: FAMILY LAW – Children – interim order for child to spend two days with each parent – child almost two years old – concerns about father removing child from Australia – Watch List order – whether child should live predominantly with the father or the mother. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| Cases cited: Goode & Goode (2006) FLC 93-286 Mazorski and Albright (2007) 37 Fam LR 518 Moose & Moose (2008) FLC 93-375 Mulvaney & Lane (2009) FLC 93-404 Sigley & Evor [2011] FamCAFC 22 |
| Applicant: | MR BARRETO |
| Respondent: | MS VOGEL |
| File Number: | MLC 6069 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 4, 5 & 6 March 2013 |
| Date of Last Submission: | 6 March 2013 |
| Delivered at: | Launceston |
| Delivered on: | 18 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Not represented by a lawyer |
| Counsel for the Respondent: | Not represented by a lawyer |
| Counsel for the Independent Child’s Lawyer: | Ms Wiener |
| Solicitors for the Independent Child’s Lawyer: | Perry Weston Lawyers |
ORDERS
That MR BARRETO (“the father”) and MS VOGEL (“the mother”) have equal shared parental responsibility for [X] (also known as [X]), born [in] 2011 (“the child”).
That the child live with the mother.
That the child spend time with the father as follows:
(a)each alternate weekend commencing on Friday 28 June 2013 from Friday at 4.00 p.m. (or from after school or kindergarten if applicable) until 9.00 a.m. (or until the start of school or kindergarten if applicable) on the following Monday;
(b)each week from 4.00 p.m. (or from after school or kindergarten if applicable) each Wednesday until 9.00 a.m. (or until the start of school or kindergarten if applicable) on Thursday;
(c)from 3.00 p.m. on Christmas Day until 3.00 p.m. on Boxing Day in 2013 and each alternate year thereafter;
(d)from 3.00 p.m. on Christmas Eve until 3.00 p.m. on Christmas Day in 2014 and each alternate year thereafter;
(e)upon the child attaining the age of six years, for half of the child’s school holidays as agreed (but on alternating weekly basis if there is no agreement); and
(f)at such other times as the father and the mother may agree from time to time.
That MR BARRETO (“the father”) and his servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the male child [X] (also known as [X]) born [in] 2011 (“the child”) from the Commonwealth of Australia.
That the child be and is hereby restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia (“the Watch List”) and maintain the child’s names on the Watch List until further order of a Court of competent jurisdiction.
IT IS NOTED that publication of this judgment under the pseudonym Barreto & Vogel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6069 of 2012
| MR BARRETO |
Applicant
And
| MS VOGEL |
Respondent
REASONS FOR JUDGMENT
Introduction
The dispute in this matter is between MR BARRETO (“the father”) and MS VOGEL (“the mother”) over the living arrangements for their child [X] (also known as [X]) born [in] 2011 (“the child”).
As I said during the hearing, this is a dispute between two loving parents. In addition to being loving, they are both intelligent so I will say from the outset in these Reasons that I am quite confident that the child will be looked after responsibly and competently whether he is living with one parent or spending time with the other.
The father and the mother were each represented by lawyers until shortly before the hearing. Unfortunately, they were not represented by those lawyers at the hearing itself, which I assume was the result of changes to Legal Aid Victoria’s funding policies. The Independent Child’s Lawyer (“ICL”) was represented by Counsel.
The Applications
These proceedings were instituted by the father at a time when he considered that the mother was inappropriately retaining the child and not allowing him to spend any time with the child. I shall refer to that below but at this stage it is sufficient for me to detail some of the Orders sought by each of them in their Case Outlines.
Both the father and the ICL sought an order that the parties have equal shared parental responsibility for the child. The mother did not address that issue in her Case Outline or in the Amended Response filed on her behalf on 18 February 2013. I can only assume that the mother’s failure to address that issue was simply an oversight, because she did not ever suggest that she should have sole parental responsibility.
The father sought further orders inter alia as follows:[1]
[1] As set out in his Outline of Case document
2. That the child live with the father until the child turns 3 years of age.
3. That the child spend time with the mother as follows:
a. in a two week cycle as follows until the child turns three years of age:
Week one
i. Monday from 9 am until 5 pm;
ii. Wednesday from 9 am until 5pm
iii. From 9 am Saturday until 5 pm Sunday
Week two
iv. Wednesday from 9 am to 5pm; and
v. Friday from 9 am until 5pm
b. From 4 pm Christmas Eve until 12 noon Christmas Day 2014 and each alternate year thereafter;
c. From 12 noon Christmas Day 2013 until 4 pm Boxing Day 2013 and each alternate year thereafter;
4. From when the child turns three years of age the child live with the father and mother in a shared care arrangement in a two week cycle with the father as follows:
Week 1
a. From 9 am Monday until 9 am Thursday
Week 2
b. From 9 am Thursday until 9 am Monday
c. With the mother at all other times.
d. From 4 pm Christmas Eve until 12 noon Christmas Day 2014 and each alternate year thereafter;
e. From 12 noon Christmas Day 2013 until 4 pm Boxing Day 2013 and each alternate year thereafter;
5. That the mother’s time with the child be suspended as follows:
a. From 4 pm Christmas Eve until 12 noon Christmas Day 2013 and each alternate year thereafter;
b. From 12 noon Christmas Day 2013 until 4 pm Boxing Day 2014 and each alternate year thereafter;
The mother sought orders that the child live with her and spend time with the father as follows:
a)from Friday at 6.00 p.m. until Sunday at 6.00 p.m. each second weekend;
b)from 2.00 p.m. on the following Wednesday until 6.00 p.m.; and
c)as otherwise agreed between the parties.
Both the mother and the father sought an order that the other be restrained from using illegal drugs and consuming alcohol for 24 hours prior to, and during any time that the child spends with that other parent. I shall comment about that aspect further below.
The ICL sought orders that the child live with the mother and spend time and communicate with the father as follows:
a)each alternate weekend from 5.00 p.m. on Friday until 9.00 a.m. on Monday;
b)from 5.00 p.m. each alternate Wednesday until 9.00 a.m. on the following Thursday morning;
c)on special occasions as agreed; and
d)such further or other times as is mutually agreed.
The ICL also sought an order that the parties use a communication book to assist in communication between the parties, with such book to travel with the child between the parents.
Background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 36 years and is a Portuguese citizen. The mother is 31 years old and is an Australian citizen. They started living together when they were both living and working in Germany. I am satisfied that at that time both parties were “recreational users” of illegal drugs but I am also satisfied that parenthood has been a “wake-up call” that they have each heeded. I say that because the parties each refer to drug taking in their affidavits but, during the hearing, no serious questions were asked about that. Further, they have both been able to provide clear drug screen test results.
In Germany the parties’ relationship was volatile and it seems clear that the mother’s pregnancy was the only real factor that kept the parents together and caused them to move to Australia in early 2011. They lived together for a time following their arrival in Australia and the child was born in June 2011.
In August 2011 the father and the mother travelled together to Berlin and Portugal with the child. They returned to Australia in September 2011.
In March 2012 the parties separated when the mother left the residence in which they were living. The parties do not agree about the circumstances giving rise to the fact that the child remained living with the father, nor about the circumstances of the mother’s subsequent contact with the child. However, it is clear that in early July 2012 the mother retained the child in her sole care contrary to the wishes of the father. It was that retention of the child that precipitated him filing an Application on 5 July 2012 in which inter alia he sought a Recovery Order.
On 23 July 2012 Federal Magistrate Walters (as he then was)[2] made interim orders which included:
a)equal shared parental responsibility;
b)that the child live with the mother and the father on a 4 day rotating cycle with the first 2 days being with the father and the second 2 days being with the mother, with changeover to be effected by each parent delivering the child to the other parent’s home at the start of the child’s time with that other parent;
c)the appointment of an Independent Children’s Lawyer;
d)random drug testing;
e)an order restraining both parents from removing the child from Australia; and
f)that the child’s details be placed on the airport “watch list” to prevent his removal from Australia.
[2] Now Justice Walters of the Family Court of Western Australia
Apart from minor variations as agreed between the parents from time to time, the child has been going back and forth between them every two days in accordance with those orders.
On 28 August 2012 orders were made for the preparation of a Family Report and setting this matter down for hearing. The Family Report was prepared by Dr R and it was released to the parents’ former lawyers and to the ICL on 22 January 2013.
Both parties filed a number of Affidavits and they were cross-examined. Dr R was also cross-examined by both parents and by Counsel for the ICL.
I will say at this point that both parties acquitted themselves very well as unrepresented litigants and the respect that they showed each other during the hearing gives me confidence that they have the ability to put past disputes behind them in the interests of their child, who is clearly much loved by both of them.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[3]
[3] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [4]
[4] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[5]
[5] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, but the amendments apply only to proceedings instituted on or after 7 June 2012. These proceedings were commenced on 5 July 2012 so the amendments are applicable to this matter.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[6] The amendments referred to in the paragraph above now require courts to give greater weight to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence than is given to the benefit to the child of having a meaningful relationship with both parents.[7]
[6] Subsection 60CC(2)
[7] Sub-section 60CC(2A)
The court must also take into account those of the “additional considerations” that are relevant.[8]
[8] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[9]
[9] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[10] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[11]
[10] Section 61DA
[11] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[12]
[12] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[13]
[13] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[14]
[14] See KB v TC (2005) FLC 93-224
Discussion
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered in a number of decisions. In Mazorski and Albright,[15] Brown J said this at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[15] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[16] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[16] 2nd Edition revised
In the relocation case of Godfrey & Sanders,[17] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [18]
[17] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
[18] At paragraph 33
He went on to say:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. [19]
[19] At paragraph 36
Although there has been some criticism of those last comments by Kay J in Godfrey & Sanders by a well respected former judge of the Family Court of Australia,[20] I note that their Honours of the Full Court of the Family Court of Australia have three times referred to those comments by Kay J without apparent criticism.[21]
[20] See the article by Prof. Richard Chisholm: “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006” in (2008) 22 Australian Journal of Family Law, commencing at page 193.
[21] See Moose & Moose (2008) FLC 93-375 at paragraph 70 (May, Boland and O'Reilly JJ), McCall & Clark (2009) FLC 93-405 at paragraph 116 (Bryant CJ, Faulks DCJ and Boland J) and Sigley & Evor [2011] FamCAFC 22 at paragraph 135 (O’Ryan, Strickland and Benjamin JJ)
In this matter, there was no suggestion by either parent that the child should have anything other than a meaningful relationship with the other parent. However, their views clearly differed on how much time is needed by the child in the physical presence of each of them in order to foster and maintain his meaningful relationships.
Protecting the children from harm from abuse, neglect or family violence
There is no evidence that the child has suffered any harm from abuse, neglect or family violence, so I do not consider this criterion to be relevant.
Relevant additional considerations
The child’s views
The child is almost two years old. Clearly, his views are not a relevant consideration.
The relationships of the child with the parents and other people
The child has been spending equal time with his parents as a consequence of the interim orders made on 23 July 2012 and it is abundantly clear that he has warm and loving relationships with both his parents. Both parties’ evidence supports such a conclusion and
Dr R stated that the child “impressed as a happy, bright and alert … toddler who demonstrated his joy of playing during time spent with each of his parents during their respective observation periods”. [22]
[22] See paragraph 41 of the Family Report.
Although none of the child’s grand parents gave evidence, I accept that he has as good a relationship with grandparents on both sides. That is facilitated by the use of Skype, especially in relation to the Portuguese side of his family and I would expect that to continue.
This child is fortunate to be able to grow up with the natural advantage of being able to converse in two languages and being aware of two different cultures.[23] That can only be to his benefit, but the benefits of relationships with wider family on both sides can be of even greater significance than that. As the late Treyvaud J said in Bright and Bright v Bright and Mackley,[24]:
… it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
The extent to which each parent has taken part in decision making about the child, or spending time or communicating with the child
[23] I do not accept the submission in the father’s Case Outline that “shifting the child to the mother’s care will reduce the child’s ability to develop both English and Portuguese”.
[24] Bright and Bright v Bright and Mackley (1995) FLC 92-570 at page 81,658
There has not been any lack of willingness on the part of either party to be fully involved in the child’s life, so this criterion is not one that causes me any concern.
The extent to which the parents have fulfilled their obligations to maintain the child
Similarly, I have no concerns about this consideration. The parties are maintaining the child equally because he is currently spending equal time with his parents.
The likely effect of any change in the child’s circumstances
It is clear that the parties and the ICL are all seeking a change to the child’s circumstances because none believe that the current regime is in the child’s best interests. However, they have different views about what the changes should be.
It seems to me that both parents, the ICL and the author of the Family Report (Dr R) were all of the view that the current arrangement of the child moving to a different household every two days is not in the long term interests of the child. I agree with that, but comment that I do not make any criticism of the interim decision of then FM Walters. It is clear that a “short term fix” was needed at the time to maintain the child’s relationship with both parents and there was a paucity of evidence to suggest any other course of action. As the Full Court observed in Goode & Goode:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.[25]
[25] Goode & Goode (2006) FLC 93-286 at paragraph 81
The ICL referred me to a paper given by Judge Sexton of this Court at a Family Law conference in Hanoi, Vietnam in September 2011 entitled “Parenting Arrangements for the 0-4 Year Age Group”.[26] I was already aware of Judge Sexton’s paper and the social science research to which it refers. In addition, the father provided me with a document entitled “Infants and overnight care - post separation and divorce. Guidelines for protecting the very young child’s sense of comfort and security”.[27] I was already aware of that document also.
[26] Published in “Australian Family Lawyer”, Volume 22, No. 2, commencing at page 30
[27] Published 26 November 2011 by the Australian Association for Infant Mental Health Inc
It is important to keep in mind the fact that the child will be just days short of his second birthday when I deliver these Reasons.
The document from the Australian Association for Infant Mental Health provided to me by the father contains the following:
In Family Court populations, when conflict is high and parents do not cooperate over the care of their children, regular overnight stays should commence once the young child’s ability to communicate and tolerate separation is consolidated – usually from the age of three years.
It went on to say:
Whenever undertaken, overnight time away from the primary parent is best with a parent/care-giver who is already a source of security and comfort to the baby or young child. In separated families, this level of security is optimally established and maintained over the first few years via regular, 2-3 times per week daytime care-giving based contact that supports the baby’s routines. By the time the child is at least in part able to self-soothe, consistently turns to the second parent for comfort, and is less reliant on the primary attachment relationship to co-regulate his/her stress states, then the child is more likely to manage a well-supported shared overnight arrangement between cooperative parents.
It seems to me that social scientists appear to be united in their view that a very young child needs a stable base in order to form proper attachments and feel secure. In general, that is best facilitated by ensuring that the child lives predominantly with the person to whom he or she is primarily attached.
In this particular case, the child clearly has attachments to both of his parents but I accept that his primary attachment is to his mother. When that was put to Dr R, she appeared to accept that the mother is the child’s primary attachment figure and said:
Well, that’s why I’ve made the recommendations that I made – that he primarily live with the mother and also spends a lot of time with Dad as well, but primarily live with Mum; that appears to be the most stable base at the present time.[28]
[28] Transcript at page 102
The difficulty and expense of the child spending time with and/or communicating with a parent
The parties currently live in relatively close proximity to each other, so while that continues there will be no such difficulties or expenses in relation to the child moving between them.
The capacity to provide for the child’s needs
The father clearly attempted to portray his financial position in a somewhat better light than is the case. Although I am of the view that he was deliberately exaggerating the financial viability of any freelance work he may obtain and any return he may expect from his “[omitted] project” in Portugal,[29] I have no major concerns about either parent’s ability to provide for the child’s physical needs. While the facts appear to suggest that the father may need to find cheaper accommodation, I am confident that he will still keep his son’s welfare in mind if that eventuates.
[29] See paragraph 21 of his affidavit filed 21 February 2013 and pages 41 and 42 of the Transcript.
I am confident that both parents will provide for the child’s intellectual needs very well. Both are clearly intelligent and committed to providing as well as they can for him.
In general, the mother gave the impression that she was more attuned to the child’s emotional needs than the father. A clear example was provided by the parties’ different approaches to the difficulties that the child had been experiencing at changeovers. In short, the mother believed that there should be some friendly conversation between the parents at changeovers, even if they both had to “fake it”, whereas the father preferred not to speak at all in order to avoid conflict.
The mother’s position was well illustrated by the answer she gave when asked by counsel for the ICL how she thought changeovers were going. She said:
Well, there’s just – it’s complete silence from [the father]’s behalf. If I say, ‘hello!’ he completely ignores me. The only time there is communication that’s verbal during changeovers it’s a disagreement. It’s – I find it very bizarre and very unhealthy for [the child], actually. I don’t agree with [the father]’s statement that it’s – because it always ends in conflict that we can’t communicate during changeover, because what I want during changeover is that [the child] sees that we say ‘hello’ to each other, even if it’s fake and even if it’s an insincere, ‘how are you?’, ‘how was your day?’. I think that it’s important for [the child] to see this, and I don’t think it’s healthy at all for him to see us in silence. [30]
[30] Transcript at page 62
The father clearly thought their exchanges should be more businesslike and he asked the mother if “a more formal, businesslike, cordial relation could also bring some advantages”. Her response was:
I think that a business would fail if this was a business relationship, the way that you ignore me … even business colleagues talk to each other.
I also have other concerns about the father’s ability to provide for the child’s emotional needs. However, at paragraphs 63 to 79 below I set out my concerns about the father’s willingness and ability to facilitate and encourage the child’s relationship with the mother, so I do not repeat them here. Suffice it to say that I am of the opinion that the father does not fully appreciate the child’s emotional need for warm and loving relationships with both of his parents.
The attitudes of the parents to the child and parental responsibilities
I do not need to specifically address this criterion, because it is covered elsewhere in these Reasons.
Any family violence involving the child or family member
It appears that there may have been some situational violence during the parties’ time together, but this is not a current concern.
Any other relevant fact or circumstance
In my view, it is appropriate to include here a consideration that was previously contained in section 60CC (prior to the amendments referred to in paragraph 24 above); that being the willingness and ability of the parents to facilitate and encourage the relationship with the other parent.
As I have mentioned above, these proceedings were instituted by the father at a time when he thought that the mother was inappropriately retaining the child and not allowing him to spend any time with the child. However, it is important for that to be seen in the context of the parties’ separation not long before that, and more importantly, the mother’s concerns that the father might take the child to Portugal without her consent.
In her first affidavit, the mother had said:
[The father] has indicated on a number of occasions in the past that he did not enjoy staying in Melbourne and that he wanted us to return to Portugal. I have received numerous messages from [the father] advising me that Australia was not safe for [the child] and that we should return to Portugal. [The father]’s family and friends are in Portugal. I fear that if [the father] is allowed to spend time with [the child] he may leave the country with [the child]. In fear of this I have retained [the child]’s passport. Even though I have [the child]’s passport in my possession, [the father] currently holds a Portuguese identity card for [the child]. [The father] may be able to procure a Portuguese passport for [the child] with [the child]'s Portuguese identity card. [The father] has also stated in a 'Facebook' 'status update' that he believed that the only choice was to take [the child] to Portugal.[31]
[31] See paragraph 28
The father’s Facebook “status update” read in part as follows:
Dear Melbourne friends, I want you to know that for a long time my wish is to offer a stable and safe environment for [the child] in my home town, where I have a house, a stable job possibility in my career as a [omitted] and a high quality child care centre for him. Although until now I was able to compromise by staying in Australia I can only imagine that this will continue to be possible in the future if the situation here improves considerably. The current unpredictability in our lives and lack of income are threatening to turn the situation unbearable and precarious on the short term.[32]
[32] See Annexure”JDV-04” to the mother’s first affidavit – spelling and grammatical errors corrected by me.
The mother’s concerns about the possibility of the father removing the child from Australia were given some credence when she subsequently had an email sent by the father to his aunt in Portugal translated. It is dated 12 June 2012,[33] and reads as follows:
[33] See annexure “JVD-1” to her affidavit filed 28 February 2013 - translation by an accredited Portuguese/English translator
This is a follow up of the conversation we had some time ago about our possible visit to Portugal.
Would it be possible, with your help, to book a flight for us from Melbourne to Lisbon with some flexibility of change or cancellation?
At this moment I am still very unsure about the possibility of going on such flight. I'm trying to obtain permission from the court here to go to [omitted] and live there with [the child], but they say it will be very difficult because allegedly it will interfere with his relationship with his mother. At the same time, the fact that I'm asking to go and live in Portugal renders impossible a request to go with him temporarily on holidays in August. I was thinking that it would be good to go at this time but now I'm confused once again.
There is the possibility of going without permission with the Portuguese passport, but I'd like to avoid this because it would not help me in the court case. At the same time, I'm afraid that if they do not allow me to move there, it could be even more serious to travel with him after that decision is made.
Anyway, I would like to have an idea about the possibility of travelling in August (going in the beginning of the month and returning at the end).
It annoys me to be stuck here with no support at all from anyone (including his mother) but at present I don't believe I have great chances.
I hope you are well.
While the father challenged some of the translation of his email to his aunt, he said that it showed his willingness “to consider all options”.[34] However, I note with concern that the email shows:
·that he wished to live in Portugal with the child; and
·that he had given thought to using a Portuguese passport to remove him from Australia.
[34] Transcript: Day 1 at page 22.
When I consider that the father had said on Facebook in March 2012 that he wanted to “offer a stable and safe environment” for the child in his “home town” and that “until now [he] was able to compromise by staying in Australia”,[35] I can fully understand why that email to his aunt may have reinforced the mother’s concerns when she learnt of its contents. I also note that the father had made application for a Portuguese passport for the child but it was “rejected on a technicality”.[36]
[35] See annexure “JVD-04” to her affidavit filed 17 July 2012
[36] See paragraph 51 of the father’s affidavit filed 20 July 2012 and pages 44 to 47 of the transcript.
In those circumstances, I cannot help but conclude that for some time in 2012 at least the father was actively considering the possibility of removing the child from Australia.
Notwithstanding the mother’s understandable concern that the father may attempt to remove the child from Australia, I was heartened by what Dr R said at paragraph 52 of the Family Report:
Despite acknowledging she continues to hold fears the father has the potential capacity to remove [the child] from Australia and not return him to her care, [the mother] nevertheless demonstrated a capacity to acknowledge the positive role the father plays in [the child]’s life and how [the child] values his special time with his father. [37]
[37] Emphasis by Dr R
However, I will order that the child’s details remain on the Watch List at points of departure from Australia.
In summarising some of the evidence, counsel for the ICL said this:[38]
The mother … impressed as being much more flexible, much more open to communication. Your Honour heard her evidence about having quite a few photos of the father on the fridge. She was open to him coming around for meals. It’s not often one hears that in these Courts ... She was also gratuitously complementary of him. She said he was a good educator, talked about his cooking, and again it’s not something that one often hears in these courts. One tends to hear much more negative remarks by one party about the other rather than anything that has a flavour of a compliment or something nice that one would say about the other. She recognises his strengths. She was respectful about him, and was … able much more than the father to draw a line under the past and move forward and look to the future. And that again … would place her in a much better position to facilitate an ongoing relationship between the father and the child rather than the opposite case.
[38] Transcript: Day 3 at page 124
I accept her references to the evidence to be correct and I also accept that the mother demonstrated a greater willingness and ability to facilitate and encourage the child’s relationship with his other parent. I refer to one example immediately below.
The father asked the mother what her wish was in relation to the outcome of the matter. Her reply was:
My wish is that we can actually be friends eventually … so that whatever custody arrangement comes out of this we can still see our son when we want to, and we can share meals with our son together and give him a very healthy, happy example for his parents. That’s my wish.[39]
[39] Transcript: Day 2 at page 76
I was left in no doubt that her wish was genuine.
The father admitted that he did not have any photos of the mother in his home. From what he said, it became clear that it was not until he was being cross-examined that he appeared to understand the benefit to his son of having photos of the mother in his home.[40]
[40] Transcript: Day 1 at page 17
I am satisfied that in June 2012 the father advertised on the internet that he had a room available in his apartment for somebody “in exchange for 60 hours per month of babysitting”, being “approx 2 evenings per week”, and that this was at a time when the mother was not working in the evenings and was “right around the corner”.[41] In my opinion, that is yet another indicator that the father has not been as promoting of the child’s relationship with the mother as he could have been.
[41] See annexure “JVD-08” to the mother’s affidavit filed 20 July 2012 and pages 49 and 50 of the transcript.
In view of what I have set out above, I cannot help but conclude that the mother displays a greater willingness and ability than the father to facilitate and encourage the child’s relationship with his other parent.
Conclusions
I conclude that while the parents should share parental responsibility for the child, he should live predominantly with his mother and spend time on a regular basis with his father.
In my opinion, the child’s time with his father should be both regular and frequent so that they maintain their meaningful relationship, while at the same time providing for him to have a stable base living with his mother. The orders that I make (as set out at the start of these Reasons) are specifically designed to allow the father to be involved in the child’s schooling (including kindergarten) whenever that occurs, thereby also providing for substantial and significant time as defined in the Act.
I have also provided for the child to spend half of his school holidays with each parent from the age of six years. That is because he should be able to spend longer periods away from his primary attachment figure by that time. However, I am confident that the mother will facilitate more time with the father at an even earlier stage if she feels that he will cope. I repeat the wish that the mother expressed to the father with such feeling in the witness box:
My wish is that we can actually be friends eventually … so that whatever custody arrangement comes out of this we can still see our son when we want to, and we can share meals with our son together and give him a very healthy, happy example …
For the child’s sake, I sincerely hope that the parties are able to make the mother’s wish comes true without the need for any further Court involvement.
Procedure
I heard this matter in Melbourne but I will be delivering this decision in Tasmania. Arrangements will therefore be made for the parents and the ICL to “attend” by telephone. My Associate will then provide copies of these Reasons and the Orders to the parties’ lawyers by electronic means or by mail.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 18/6/13
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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