Becker and Becker

[2014] FCCA 1154

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKER & BECKER [2014] FCCA 1154

Catchwords:
FAMILY LAW  ̶  Whether child should live with husband or wife  ̶  whether risk of wife removing child permanently from Australia.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 65DA, 65DAA, 67Z

Applicant: MS BECKER

Respondent: MR BECKER

File Number: DGC 1377 of 2013

Judgment of: Judge Phipps

Hearing dates: 12 & 13 February 2014

Date of Last Submission: 13 February 2014

Delivered at: Dandenong

Delivered on: 6 June 2014

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Monash Oakleigh Legal Service

Counsel for the Respondent: Mr Pinner

Solicitors for the Respondent: G A Black & Co

ORDERS

1. That all previous orders are discharged as from 12 June 2014.

2. That paragraph 4 of the orders made in the Federal Circuit Court of Australia on 9 July 2013 be discharged.

3. That the said child [X] born [omitted] 2007 be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the names of the said child from the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

4. That the husband and the wife have equal shared parental responsibility for the child [X] born [omitted] 2007.

5. That the child live with the wife commencing 12 June 2014.

6. That commencing 20 June 2014 the child spend time with the husband as follows;

   (a)Every weekend from Friday after school or 3.30pm to Sunday 4.30pm;

   (b)For half of all school term and Christmas holidays as agreed and if not agreed the first half;

   (c)From 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year thereafter;

   (d)From 3.00pm Christmas Eve to 3.00pm Christmas Day in 2015 and each alternate year thereafter;

   (e)From 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day in each year;

   (f)From 4.00pm until 6.00pm on the child’s birthday if it falls on a school day and from 1.00pm until 5.00pm if the child’s birthday does not fall on a school day;

   (g)From 9.00am to 5.00pm on the Father’s birthday if it falls on a weekend or during the holidays and the child is not otherwise scheduled to be in the father’s care;

   (h)Otherwise as agreed.

7. Paragraph 6(a) is suspended during all school holidays.

8. Spend time orders are suspended so that the child lives with the mother:

   (a)From 3.00pm Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter;

   (b)From 3.00pm Christmas Day to 3.00pm Boxing Day in 2015 and each alternate year thereafter;

   (c)On the child’s birthday from 9.00am until 1.00pm if it falls on a spend time day;

   (d)From 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day;

   (e)From 9.00am until 5.00pm on the Mother’s birthday if it falls on a weekend or during the holidays and the child is not otherwise in the mother’s care.

9. All changeovers which do not occur at school are to take place by the husband delivering and collecting the child at the mother’s residence.

10. Each parent may communicate with the child by telephone at all reasonable times while the child is in the other parent’s care.

11. The father may receive copies of all correspondence and/or notices usually provided to parents of students at the school including school reports, newsletters notification of concerts, sports days, speech nights and parent teacher interviews.

12. The father may attend all school functions usually attended by parents.

13. Each party inform the other of any serious illness or significant injury to the child requiring medical treatment.

14. The father is entitled to attend upon any doctor or other health professional treating the child and to be given information about the treatment and general health of the child by those practitioners.

15. The parties keep each other informed of their residential address and telephone numbers.

16. Each party is restrained by injunction from:

    (i)Denigrating the other party to or in the presence of the child or allowing any other person to do so;

    (ii)Discussing family law proceedings with her in the presence or hearing of the child or allowing any other person to do so.

17. Each parent give the other parent 30 days’ notice of intention to take the child out of Australia and give particulars of dates, flight numbers and the child’s residence while outside Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1377 of 2013

MS BECKER

Applicant

And

MR BECKER

Respondent

REASONS FOR JUDGMENT

1. The applicant wife, Ms Becker and the respondent husband have one child [X] born [omitted] 2007.  The wife proposes that the child live with her and spend time with the husband every weekend from Friday evening to Sunday evening, half school holidays and time on special days.  The husband proposes that the child live with him and spend time with the wife alternate weekends from after school Friday to the commencement of school Monday half of school holidays and time on the special occasions.

2. The wife was born on [omitted] 1971 in the Philippines.  She is aged 42.  She has [number of siblings omitted].  All her family live in the Philippines.  She told the family consultant Ms S that she has supportive friends.

3. The husband was born on [omitted] 1951 in Australia.  He is aged 63.  The husband has been married twice before.  He has three older children, [A] born [omitted] 1987 and [B] born [omitted] 1985, who both have the same mother and [C] born [omitted] 1995.  He told the family consultant that he was with [A] and [B]’s mother for 12 years and with [C]’s mother for 10 years.  [C]’s mother is [nationality omitted] and younger than the husband.  [X] knows and sees his older siblings.

4. The parties met over the Internet and chatted that way for about two years.  They met in person in the Philippines the wife believes in 2004 and married there on [omitted] 2005.  The wife arrived in Australia on 31 January 2006 and now has permanent residency in Australia.  The parties lived in a property owned by the husband at [omitted].  The child was born on [omitted] 2007.

5. The relationship was volatile.  The wife alleges that the husband had affairs with other women and that that he assaulted her.  He alleges that the wife would scream at him and attempt to provoke him into assaulting her.  The husband denies having affairs and denies assaults.  There were a number of occasions when police attended.  The wife alleges that was because of the husband’s behaviour.  The husband says he called the police because of the wife’s behaviour.

6. On 7 April 2013 there was an argument between the parties, the husband says about food.  The wife alleges that the husband punched her in the left eye.  The husband alleges that the wife ran at him and he put his hand up and she ran into him.

7. The police applied for an intervention order naming the wife as the protected person.  The order was made on 12 April 2013 by consent and without admission of the allegations in the complaint.  The husband was charged with assaulting the wife and after a contested hearing in November 2013 he was convicted and fined $2,000.

8. The Child Protection Service became involved. The report provided by it following a Notification of Child Abuse pursuant to s.67Z of the Family Law Act 1975 (Cth) says that the child, when interviewed, disclosed that his father pushed his mother and he had seen his father hit his mother. He made a similar disclosure to the family consultant Mr M when interviewed on 12 July 2013 as part of a consultation pursuant to an order I made under s.11F of the Family Law Act 1975 (Cth).

9. The husband’s description of how the mother obtained the injury to her eye on 7 April 2013 is improbable.  The child’s statements, although made by a young child, provide some corroboration, and the conviction by a state court magistrate following a contested hearing needs to be taken into account.

10. I am satisfied that the husband did push and hit the mother and that he did punch her on 7 April 2013.  The significance of this may not be great.  Both Mr M on 12 April 2013 and Ms S, who prepared a family report dated 12 July 2013 observed a happy and close relationship between [X] and each parent.  The Child Protection Service interviewed the husband and the child on 17 April 2013 while the child was living with the husband.  The child said he felt his mother was sad.  He did not express concern being in the care of his father.  The report from the Child Protection Service says that the child presented as well cared for and that the father appeared to be understanding of the child’s physical needs.

11. The Child Protection Service visited the mother’s home on 6 June 2013.  The report says the child presented as happy and interactions between the wife and the child were assessed to be positive and appropriate, this while the child was living with the mother.  The Child Protection Service observed that both homes were satisfactory and the child was well cared for.

12. Ms S referred to the adverse effect on the child of being exposed to the parties’ conflict. She said that if the violence related to the stressful situation between the parties that could indicate that it would not continue once the parties had separated. Subsequent to separation the wife makes no allegations of behaviour by the father which could be within the definition of family violence in s.4 of the Family Law Act 1975 (Cth).

13. The husband left the family home with the child on 7 April 2013.  The wife left two days later and the husband returned with the child.  The wife says that the child continued to live with the husband as she could not drive and the husband was able to take the child to school.  The wife says [X] spent time with her every weekend.  The husband says that it was only once or twice up until the time he went to Thailand.  Since this was shortly after separation probably both are correct.

14. The husband then went to Thailand for two or three weeks on a business trip.  He arranged for his [names omitted] to care for the child during the week and his son [A] during weekends.  The friends lived at [suburb omitted] and could not take the child to school.  They placed the child in childcare during the week.  The husband said he arranged with the school principal for the child to have school work.

15. The mother attended at the school and learnt that the child was not there and that the father was away.  She telephoned [A].  According to the husband she arranged with [A] that she would care for the child for four days although I am not clear that the wife agrees that this was the arrangement.  Whatever the arrangement the child went to live with the wife on 8 May 2013 and was not returned to the [names omitted] or [A].  He remained with the wife until 15 July 2013 when he went to live with the husband pursuant to orders I made on 12 July 2013.  Those orders provided for the child to spend time with the wife from the conclusion of school on Thursday until the commencement of school on Monday, each alternate weekend, half school holidays and time on Boxing Day and on Mother’s Day.

16. The child did not attend school during the two months he was with the mother.  The mother did not have the means of getting him to school.  However during that time both parents attended at [W] School and enrolled him there.

17. After separation the mother rented a room in a house.  The husband alleges that a known sex offender was living in the premises, something of concern to the Child Protection Service.  The mother has since moved and now lives in [omitted] in her own premises.

18. The husband has sold the matrimonial home.  At the time of the hearing he was living in a one-bedroom apartment in [W].  His evidence was that he would be moving in about a week to the second apartment on the same block, a two-bedroom apartment.  He is walking distance from the school and the wife’s residence is about 3km from the school, a five minute bus ride.

19. The wife commenced the proceeding on 24 May 2013. The parties and the child met with the family consultant Mr M on 12 July 2013 pursuant to an order I made under s.11F of the Family Law Act 1975 (Cth) on 9 July 2013.

20. Mr M gave an oral report in court on 12 July 2013.  He observed a happy child with a good relationship with each parent, similar to the observations made by the Child Protection Service.  Mr M said it was difficult to make a distinction between the parents in terms of recommendations.  He said that on balance the father had spent more time with the child than the mother given that she had been working more hours and the shifts she had.  He said that did not say that either parent was unable to care for the child but it really came down to their availability.  It may be that Mr M misunderstood the amount the wife had been working.  She says it was 50 hours a fortnight, although she had stopped while the child was with her so she could care for him.  In his oral report Mr M gave the wife’s working hours as two shifts, the most usual shift 3.00pm until 10.00pm, the other shift 7.00am until 3.00pm.

21. The living arrangements of the child have remained as set out in the order of 12 July 2013 except that the husband went overseas again for two weeks in November 2013 and the child was cared for by the wife.

22. Ms S in her family report came to a similar conclusion as Mr M about the child’s relationship with each parent.  She observed a warm and close relationship between the child and each parent.  She said the relationship seems to be trusting and secure with no concerns raised from the observation sessions about the nature of these relationships.  She noted that the parties were cooperating and were able to communicate.  She concluded they were able to share parental responsibility for the child in practice as well as in theory.

23. Ms S’s recommendation was that there be no change in the arrangements except for one weekday from after school to 7.00pm, half of all school holidays and time on special days throughout the year.  She considers that because of all the major changes in the child’s life there should be no more changes.  He needed time to settle and emotionally work through the separation as well as work through the transition to school life.

24. Section 60CA says that in making children's orders the best interests of the children is the paramount consideration and s.60CC contains the best interests considerations.

25. Section 65DA contains a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption can be rebutted if there are reasonable grounds to believe that there has been family violence. There are reasonable grounds to believe that there has been family violence which means that the presumption is rebutted but both parties propose an order for equal shared parental responsibility and it is an appropriate order to make in this case.

26. Section 65DAA of the Family Law Act 1975 (Cth) sets out the effect of a parenting order for shared parental responsibility. If there is such an order and the exercise of parental responsibility involves making a decision about major long-term issues in relation to the child the parties are required to make the decision jointly. They are required to consult each other in relation to the decision to be made and to make a genuine effort to come to a joint decision about that issue.

27. Ms S found good cooperation between the parties and they have demonstrated this by going together to the [W] School to enrol the child even at a time when the parties were in dispute about which parent the child should be living with.  They are able to cooperate to the extent necessary to have shared parental responsibility for all the major long-term matters and it is in the child’s best interests that that occur.

28. When there is an order for equal shared parental responsibility s.65DAA requires the court to consider whether the child spending equal time with each parent is in the best interests of the child and reasonably practicable or if not equal time substantial and significant time. Neither party proposes equal time and Ms S does not recommend it. She does not see it as a situation where equal time is appropriate. The wife’s proposal for the child spending each weekend with the father is done because it means she can work at weekends where the pay is higher, and so care for the child during the week. The father’s proposal for alternate weekends and some time on a school day each week contains more of the elements of substantial and significant time described in s.65 DAA(3).

29. The wife proposes the child spend four nights a fortnight with the husband.  The husband proposes the child spend three nights a fortnight with the wife.  The current orders provide for four nights a fortnight.  Ms S recommends that the current arrangement continue but with the addition of time after school one night a week.  I see no reason to consider any other proposal other than those put forward by the parties and Ms S’s recommendation.

30. The first of the best interests considerations is the primary consideration of the benefit to the child of a meaningful relationship with each parent.  Ms S observed a good and loving relationship between the child and each parent and considered that each parent has the capacity to provide for the needs of the child.  Any of the proposals meets the requirements of this consideration.

31. The second of the primary considerations, the need to protect the child from harm, need not be considered.  There is no evidence of any risk to the child in the care of either parent.  The known sex offender of concern in April 2103 was said to be living in the same house where the wife had.  The wife has moved and the wife had no other association with him.

32. The first of the additional considerations is the views of the child. Ms S described the child as too shy and lacking in confidence to have an interview with her, so his views are not known

33. The second of the additional considerations is the relationship of the child with each parent and other persons.  The husband claims that he was the primary carer of the child while the parties were together because the wife was working considerably more than he.  However, cross examination of the husband showed that the wife carried out the major part of domestic duties, cooking, cleaning, washing and preparing the child for his day.  This in addition to being the major financial support of the parties.  This evidence suggests that the wife was the homemaker and principal carer for the child before separation.  Since then the child had a short time with the husband prior to his going overseas in May 2013, then was cared for solely by the wife until mid-July 2013 and since then has been living principally with the husband, but with significant time with the wife.

34. The next consideration is the extent to which each party has participated in decision making and time with the child.  These have been described and need no further elaboration.

35. The next consideration is the extent to which each party has fulfilled their obligation to maintain the child.  The wife was the principal financial supporter prior to separation and since then each has supported the child while in that party’s care.

36. The next consideration is the effect on the child of any change in circumstances.  This is significant to Ms S’s recommendation that the child live with the husband.  She considers that the child should not have another change and sees this as the deciding factor, given the assessment she made of the child’s relationship with each parent.  She assessed each as capable of providing for the needs of the child and saw making no further changes as the deciding consideration.

1. There is no practical difficulty in the child spending time with each parent.  The parents live close to each other.

2. The next consideration is the ability of each parent to provide for the child’s needs.  Each parent has shown the ability to do this and Ms S formed the same opinion.  Ms S also referred to the husband’s work in helping the child to regain lost ground because of his absence from school.

3. Relevant to this consideration is the husband’s travel.  The husband has been out of Australia twice since separation.  On the first occasion he placed the child with friends without telling the wife notwithstanding that she clearly had the ability to care for the child.  He put the child in a situation where he could not attend school.  True it is that when the child was with the wife for two months he did not attend school but that was in circumstances where the wife had found that the child was not with the husband, and had collected him.  She could not get the child to school.  The husband says he was pursuing business opportunities in [omitted].  Given his work history of largely casual work this seems unlikely.  He gave no evidence of how he might pursue these business interests in Australia.  Travelling twice within six months suggests a pattern which might continue, and also suggests that he puts his interests ahead of those of the child.

4. The other consideration which is relevant is family violence.  What I have already said applies here.  There was family violence prior to separation, it took place in the circumstances of stress the parties were under and has not been repeated.  It does have some small relevance.  The husband may enter into a relationship with another woman.  His history of three marriages suggests he might.  If that relationship comes under stress family violence might be repeated.

5. The question of where the child’s best interests lie is finely balanced.  Ms S’s opinion favours stability.  On the other hand I am satisfied that prior to separation the wife was the child’s principal carer.  I am satisfied that the wife will devote herself to the care of the child while I have some doubts about the husband given his travel pattern.  Admittedly his travel was for short periods only, two or three weeks, but I am not satisfied that they were necessary for any viable business interest.  In the end I am satisfied that the balance is in favour of the wife’s proposal, that the child’s best interests will be met by living with the wife and having each weekend with the husband.

6. On 9 July 2013 I made an order that each party be restrained from removing the child from the Commonwealth of Australia and an order placing the child’s name on the Watch List for a period of two years.  The husband’s proposal is that the orders continue past that time.  The wife proposes no orders being made.

7. The husband alleges that the wife has expressed a wish to place the child with her family in the Philippines while she continues to work in Australia to earn money or that she intends to return to the Philippines permanently with the child.

8. The wife says this is not so.  She says her home is now in Australia, the child is Australian and she wants to bring him up in Australia.  I do not accept that the wife would want to be separated from the child.  Her history of care for him and the relationship she has with him points to the opposite conclusion.  She is not in a position where she either has to work or she has to care for the child and she has shown that she will put caring for the child ahead of working.  While the child was with her for two months in 2013 she stopped working.

9. I accept what the wife says that she wants the child to be raised in Australia.  She has left all her family in the Philippines and clearly she must miss them.  Despite this she made the decision to marry the husband and move to Australia on a permanent basis.  While the marriage has ended that does not mean that the wife’s reason for staying in Australia has come to an end.  She has the child.  She gave evidence about her work history in the Philippines and it was limited.  The child is Australian and has commenced school in Australia.  The Philippines would be a foreign place for him.  I am satisfied that the wife has the child’s best interests at heart and that she sees his best interests as staying in Australia.  The wife can work and pay for her and the child’s upkeep, something, from her evidence, she could not do so easily in the Philippines.

10. The wife wishes to be able to travel to the Philippines and take the child.  Meeting the mother’s family and seeing his mother’s country of origin is a benefit to the child.  Leaving the Watch List order in place would mean that if the mother wished to do this she would need to obtain the husband’s consent or apply to the court.  A best interests consideration is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  The husband opposes the wife taking the child to the Philippines.  This suggests he would not give his consent in the future so that for the wife to do so she would have to make another court application.  I take into account that the Philippines is not a Hague Convention country.  I am satisfied that any risk that the wife would not return the child to Australia is easily outweighed by the benefit of their not being further proceedings.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  6 June 2014