Behn & Ziomek - [2014] FamCA 157

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK

[2014] FamCA 157

FAMILY LAW – CHILDREN – Interim applications – father seeks that the child lives with him – mother seeks that the child spends supervised time with the father – child 20 months old – child has not spent time with the father for eight months – child to live with the mother and spend time with the father three times per week – an initial period of limited time to re-establish relationship – no unacceptable risk of harm in the father’s care to warrant supervision – mother recently returned to Australia with the child following eight months in Germany – father had invoked the Hague convention – father’s application for an agreement made in Germany to be registered in Australia refused
FAMILY LAW – PROPERTY – Interim application by the mother for spousal maintenance and the return of personal property adjourned – father to file a response regarding those issues
FAMILY LAW – INJUNCTIONS – mother restrained from removing the child from Australia
FAMILY LAW – PRACTICE & PROCEDURE – Transfer of proceedings – mother’s application granted

Family Law Act 1975 (Cth) s 60CC
Hague Convention on the Civil Aspects of International Child Abduction, signed 25 October 1980, [1983] UNTS 1343

APPLICANT:

Mr Behn

RESPONDENT:

Ms Ziomek

FILE NUMBER:

NCC

2014

DATE DELIVERED:

25 February 2014
EX TEMPORE

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

24 February 2014

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

Orders pending further order:

That the proceedings be transferred to the Sydney Registry of the Family Court of Australia and the matter listed before Registrar Bastiani at 10.00 am on

14 April 2014.
That the child L born … 2012 shall live with the mother.
That the child shall spend time with the father on three occasions per week, failing agreement otherwise being Tuesday, Thursday and Saturday as follows:
(a)over a period of two weeks commencing 1 March 2014 for a period of two hours from 10.00 am to 12.00 noon;
(b)thereafter commencing 15 March 2014, from 10.00 am to 5.00 pm.
The changeover point shall be at the B Contact Centre, Suburb C, Sydney, unless otherwise agreed.
Each party shall forthwith do all acts and things necessary to complete the intake documents for access to changeover services at B Contact Centre and once accepted changeover shall be in the Centre NOTING that until such time as the Centre accepts the parties as users of the Centre, changeover shall be outside the entrance to the Centre or as otherwise agreed.
That the father shall communicate with the child by SKYPE as agreed but failing agreement on Monday, Wednesday and Friday at 6.00 pm (AEST) for a period of up to 10 minutes on each occasion.
(a)The mother shall facilitate such SKYPE communication by ensuring the child is present and encouraging him to participate; AND
(b)the mother is restrained during the course of SKYPE conversations between the child and the father from using any language other than English to speak to the child.
Each parent is restrained from:
(a)denigrating the other parent and member of that parent’s extended family and/or household;
(b)discussing Court proceedings in the presence or hearing of the child or permitting any other person to do so.
Until further order MS ZIOMEK and her servants and agents are restrained form taking or sending or attempting to take or send the child L (male) born … 2012 from Australia.

IT IS FURTHER ORDERED:

The father is to file in the Sydney Registry and serve within 28 days:
(a)a Reply to the Application by the mother for spousal maintenance and return of personal possessions;
(b)a Financial Statement;
(c)any affidavit on which he seeks to rely in relation to interim spouse maintenance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Behn & Ziomek 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 NEWCASTLE

FILE NUMBER: NCC 5 of 2014

Mr Behn

Applicant

And

Ms Ziomek

Respondent

REASONS FOR JUDGMENT

This is an application by the husband and father, Mr Behn, in respect of the one child, aged 20 months, L, (“the child”). The father is seeking an order for interim residence with him, failing the registration of orders which have been made in Germany. The father is living in Town D on the Central Coast of New South Wales.
The mother, in her response, seeks orders for limited supervised time between the child and his father. She is presently living in Sydney in a women’s refuge.
There are three aspects to the applications, which came before me in a duty list on 24 February:
a)the first is the mother’s application for the proceedings to be transferred to the Family Court Registry in Sydney;
b)the next is the interim orders in the competing applications for parenting arrangements for the child; and
c)the next is for spouse maintenance and the return of personal possessions sought by the mother in her response, which was not pressed as urgent but clearly needs to be dealt with.
In respect of the transfer, the mother says, and I accept, that living in Sydney in a refuge with the care of a very young child and no supportive family, it is extremely difficult for her to attend court in Newcastle, given the length of travel and the need to make appropriate care arrangements for the child.
Taking into account that the trip for the father to Sydney and Newcastle is equidistant and there is no other reason why the matter should remain here, I consider it appropriate for the matter to be heard in Sydney and have made an order for transfer with a first return date before a registrar in that registry on 14 April 2014.
In respect to the parenting arrangements, the short history of the matter is that these parties met in Sydney in 2007 when the mother was 19 and the father 29. They married and began living together in Melbourne, where they lived for about five years. The father suffered a back injury during that time and, it is alleged, started to suffer from depression.
The child, L was born in 2012 in Melbourne. After his birth, both parents were involved in his care. The mother returned to work doing two six hour shifts a week and at that time, the father cared for the child. In a short, urgent matter, I am not in a position to say who provided exactly what level of care but I accept that both parents were actively involved in the care of the child.
In June 2013, the mother travelled home to Germany with the child for a holiday. She made a decision not to return. As a consequence of that decision, the Hague Convention was invoked.
A District Court in Germany determined that the child had been wrongfully retained in Germany and an order for the return of the child to Australia was made. The mother appealed against that decision but withdrew her appeal on the basis of an agreement that was reached between the parties. That agreement was annexed to the father’s affidavit and it provided for the mother to return the child to Australia and for certain arrangements to be put in place for the care of the child contingent on the mother finding adequate accommodation in Sydney. The father sought to register that agreement, effectively, in this court and his application was refused.
Inherent in the orders of the German court was that the agreement would cover the period until an Australian court could make parenting orders. Both parties ask for interim parenting orders to be made.
In considering what is in the child’s best interest, I’m obliged to consider the sections of section 60CC of the Family Law Act. The primary consideration is the benefit to a child of having a meaningful relationship with both parents and the need to protect the child from any harm, exposure to abuse, neglect or family violence. The child is a very young child and he did have a relationship with both his parents consistently until mid-2013.
His relationship with his father has been put under pressure by a period of now almost eight months where they have spent virtually no time together. There were a couple of occasions in Germany when the child was brought in contact with his father, which were probably stressful for the child and both parents, and I do not take them particularly into account as representative of the child’s relationship. It was very properly conceded on behalf of the mother that it is critical for the child to have his relationship with his father restored. There is no evidence before me that suggests that the child has been exposed to physical or psychological harm.
In coming to other relevant considerations, each of the parents does have a relationship – an important relationship – with the child and the father’s parents have also enjoyed a relationship with him in the past. No doubt the extended maternal family in Germany also enjoys a relationship with the child, however, none of them live in Australia. The extent to which the parents have taken the opportunity to participate in decisions, the mother made a choice not to return to Australia, which has had the consequences outlined; the father moved swiftly to ensure that the Hague Convention was invoked and both parents and the child are now in Australia.
It is not clear what the ultimate application of the mother will be. Her response includes in par 4(b) an application for leave to file an amended response, setting out arrangements proposed after a family report. I am not sure, at this stage and perhaps neither is the mother, as to whether or not she is making an application on a final basis to relocate the residence of the child. That is a matter for final hearing. The present circumstances of the child are that he’s living in a refuge with his mother. She is under financial pressure and probably emotional pressure from the events of the last six to eight months.
The father has a residence in Town D but there is insufficient information about that residence and the household members for me to come to any conclusion about it. Annexure T to the father’s affidavit appeared to be an affidavit, or in the form of an affidavit, by Ms E. That document referred to Ms E being friends with the father. However, from the Bar table, the father indicated that he and Ms E were living together in a de facto relationship, as were her children; they were members of that household.
There was no evidence before me in the father’s affidavit about that relationship or any more about the household or future plans. Likewise, the mother’s current arrangement, living in a refuge, is clearly not something that she contemplates on a permanent basis but she is not yet in a position to know where she is going to be living, although the evidence suggests that it is likely to be in Sydney. There is some practical difficulty and expense with the child spending time with his father. There is some travel involved for the father but, in my view, the significant matter is that there would be minimal travel for the child and minimal inconvenience for him in spending time with his father.
The mother proposes that the time be supervised in a contact centre or supervised by a supervisor. There is insufficient evidence, in my view, to suggest risk, let alone unacceptable risk, of the child spending face to face time with his father unsupervised. The only factor that must be taken into account is that given his age, eight months apart is likely to mean that he will struggle to remember who his father is and that relationship will need to be restored and quickly built back up. I do not propose to make an order for supervision but rather to have a short period of a fortnight with regular periods of time three days a week.
Thereafter, longer whole day periods of time three days a week until the parties come back before the court and their relative positions in terms of the evidence about their circumstances, perhaps with the benefit of an assessment by a family consultant, can be reconsidered.
Each of the parents has the capacity to look after this child and to meet his needs, at least on the evidence before me. He is a very young boy, not yet two. His family live in Australia and Germany. No doubt, he is growing up bilingual. There is no family violence order that affects the family.
There has been no face to face contact between the child and his father since the mother returned to Australia. There should have been in terms of the agreement that was reached between the parties in Germany. The mother says in her affidavit material she wasn’t sure whether that agreement would be enforceable and that that agreement has not been registered as orders in Australia. Nevertheless, what I draw from the agreement is that the mother contemplated that there would be regular face to face time between the child and his father and had no reservations about that.
There should be orders as stated and I note that in respect of what little communication there has been by way of Skype; that may have been made stressful for the child by speaking to his father in English with his mother speaking German to him at that time. Accordingly, it’s appropriate for there to be an order restraining, just for the periods of time when the child is speaking to his father by Skype; that the mother also speaks to the child in English.
I have made orders as discussed with the changeover point to be B Contact Centre, being the most convenient place for the mother because that is the place she nominated in her proposed orders.
Until the parties are accepted as users of the centre for contact changeovers, it can be the point of reference for changeover and orders are made accordingly.
I have also made a non-denigration order, restraining the conduct of both parties and an order that the mother not attempt to remove the child from Australia. The father’s evidence is that he has a Federal Watch order in place.
In respect of the spouse maintenance, directions have been made for the father to reply to the application for spousal maintenance and for return of the mother’s personal possessions, and to file a financial statement and an affidavit on that topic.
I will distribute those orders now to both parties in accordance with arrangements put in place for that to be done.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 February 2014.

Associate:

Date: 19 March 2014