Braun and Umi and Anor
[2018] FamCA 884
•2 November 2018
FAMILY COURT OF AUSTRALIA
| BRAUN & UMI & ANOR | [2018] FamCA 884 |
| FAMILY LAW – CHILDREN – what time the child should spend with the paternal grandmother – whether the child should be permitted to travel overseas – orders made for child to spend time with the paternal grandmother and to travel overseas with the mother – orders made in the best interests of the child |
| Family Law Act 1975 (Cth) ss. 60B, 60CC, 61DA |
| Goode & Goode (2006) FLC 93-286 Withers & Russell & Anor (2016) 55 Fam LR 447 Mosman & Taylor Mosman [2018] FamCA 842 |
| APPLICANT: | Ms Braun |
| FIRST RESPONDENT: | Ms Umi |
| SECOND RESPONDENT: | Mr Diabelek |
| FILE NUMBER: | MLC | 987 | of | 2010 |
| DATE DELIVERED: | 2 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 25 October 2015 |
REPRESENTATION
| THE APPLICANT APPEARED IN PERSON: |
| THE FIRST RESPONDENT APPEARED IN PERSON: |
| NO APPEARANCE BY THE RESPONDENT: |
| INDEPENDENT CHILDREN’S LAWYER: | Mr M Weston Perry Weston Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D Wiener |
Orders
That all previous Orders are discharged.
That the mother, MS UMI have sole parental responsibility for the child, X born ... 2008 (“the child”).
That the child live with the mother.
Child’s time with paternal grandmother
That the child shall spend time and communicate with the paternal grandmother, MS BRAUN at all reasonable times as may be agreed between the mother and the paternal grandmother, but at least as follows:
(a)On four (4) supervised occasions a year for up to three (3) hours during Victorian gazetted school holidays on the basis that:
(i)one (1) occasion occurs in January 2019 and yearly thereafter;
(ii)one (1) occasion occurs in the end of term one (1) school holidays each year;
(iii)one (1) occasion occurs in the end of term two (2) school holiday each year; and
(iv)one (1) occasion occurs in the end of term three (3) school holidays each year.
(b)The mother shall nominate the dates for the contact visits in writing on not less than sixty (60) days’ notice to the paternal grandmother, with the notice to include particulars about:
(i)the venue for the visit;
(ii)the time of commencement and conclusion; and
(iii)the supervisor, if known.
(c)All supervision is to be undertaken by a suitably qualified, independent professional supervisor nominated by the mother from a commercial organisation that offers services in proximity to the mother’s area of residence;
(d)The costs of intake interviews for the mother and paternal grandmother charged by the supervising agency shall be paid by the paternal grandmother;
(e)The costs of supervision for each contact visit shall be paid for by the paternal grandmother;
(f)During visits under this Order, the paternal grandmother is restrained from discussing with or in the presence of the child any events involving the mother and any member of the paternal family (including these proceedings) and is restrained from making to or in the presence of the child any hurtful or denigrating remarks about the mother, her lifestyle, family or personality;
(g)The paternal grandmother may provide the child with an age appropriate gift or card at each visit;
(h)If the supervisor, during any visit, forms the view that the child is becoming distressed, the supervisor in attendance is authorised to bring the visit to an end and make arrangements to return the child to the mother; and
(i)No other persons or members of the paternal family, including specifically the father, other than the paternal grandmother are to be present or attend the supervised visits.
That to facilitate the parties communicating with the other party, they shall provide details of any email address of their nomination to which messages may be sent.
Overseas travel and passport
That the child shall be permitted to make an application for an Australian passport.
That the mother is permitted to obtain and renew the child’s passport in furtherance of Order 6 hereof, without the consent of the child’s father, MR DIABELEK.
That the mother has leave and is otherwise permitted to remove the child from the Commonwealth of Australia for the purpose of international travel, including to and specifically Country B.
Discharge of Independent Children’s Lawyer
That the Independent Children’s Lawyer is directed to provide to the parties details of professional contact supervisors as recommended by Family Consultant Ms C and upon the first visit occurring as set out in these Orders, the Independent Children’s Lawyer shall be discharged.
That all other applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Braun & Umi and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 987 of 2010
| Ms Braun |
Applicant
And
| Ms Umi |
First Respondent
And
| Mr Diabelek |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
Introduction
The child X (born 2008) is now 10 years of age, and since her parents separated in November 2009 (when the child was about 18 months of age), she has lived with her mother.
As the background which follows explains, the parenting dispute now requiring determination is discrete, involving essentially two issues, namely:
a)should the child spend any time, and if so, what time, with her paternal grandmother Ms Braun (now aged 79 years); and
b)should the mother have leave to take the child to Country B, the Country of the mother’s birth, for a holiday generally and, in particular, during the forthcoming Victorian Christmas school holidays.
Certainly when proceedings were more recently commenced in August 2015 and with a further consolidated Application by the paternal aunt, Ms D Diabelek (“the aunt”) seeking time before the Court, there were more issues for the Court to determine.
Sadly, it needs to be observed that although the Court’s decision will bring to an end current applications, it is to be expected and anticipated, that the litigation involving the child will began anew when the biological father Mr Diabelek (“the father”) is released from prison in the first half of next year. The paternal aunt may again seek to become involved.
Competing proposals
By her Initiating Application filed 1 May 2017, the grandmother sought orders in the following terms:
1. That the child [X] born ... 2008 (“the child”) live with the Mother.
2. That the child spend time and communicate with the Paternal Grandmother as follows:
(a) The first Sunday in each month from 10:00am to 8:00pm;
(b) Each alternative Friday from the conclusion of school to 8:00pm;
(c) During each school holiday period for one overnight from10.00am to 8.00pm the following day.
(d) At all other times as agreed between the parties.
3. For the purposes of changeovers, that the Paternal Grandmother make arrangements for her daughter [Ms D Diabelek] or her daughter [Ms E Diabelek] to collect the child from either the child’s school or the Mother’s residence and return the child to the Mother’s residence at the conclusion of time.
4. That without admitting the necessity for same, all parties be restrained from using physical discipline against the child the child.
5. Such other Orders as this Honourable Court sees fit.”
She maintains that Application, and relied upon her Affidavits filed 1 May 2017 and 20 September 2018. The grandmother was unrepresented but had the assistance of an interpreter in her native language of Farsi. The aunt (her daughter), who had been a party to these proceedings and had filed a recent Affidavit, sat beside her mother at the Bar Table, occasionally interjected, but her evidence was not relied upon by the grandmother.
The mother did not need an interpreter but was also unrepresented. Her most recent amended Response sought the following final orders:
A. The mother have sole parental responsibility for the child.
B. The child live with the mother.
The child spend no time with the first and second applicants and the second respondent.
C. The mother is permitted to apply for an Australian passport for the child “[X]” born ... 2008, without the need to obtain the father’s consent or signature, and to renew the passport.
The Court was assisted by the submissions of the Independent Children’s Lawyer (“ICL”), articulated by Ms Wiener of Counsel.
Contextual background
Statements of fact hereafter should be construed as findings of fact.
The father is aged 51 years and was born in the Middle East. The mother is aged 36 years and was born in Country B. As a result of a culturally arranged marriage in Country B in 2006, the mother was able to immigrate to Australia at the age of 25 years in 2006. The father and his family of four siblings had immigrated to Australia some years earlier. The child was born in 2008, and as noted already, the parents separated in November 2009.
I am satisfied that although the grandmother tried to support the mother post separation, as did the aunt, the behaviour of the father placed the mother, isolated from most of her family, in an isolated and vulnerable position.
After earlier proceedings in the Federal Magistrates Court were commenced and resulted in final consent parenting orders, I am satisfied family tensions continued to erupt. It is noteworthy, that the consent orders made by Burchadt FM (as he then was) on 30 August 2010, prescribed for the child to live with the mother and spend supervised time with the father.
It is neither necessary, or indeed helpful considering the issues the Court is asked to determine, to examine or make findings about all the issues that occurred post separation, save to observe that even the father’s mother (the Applicant) acknowledged the father got into bad company and committed a number of criminal offences that have seen him incarcerated at least since November 2016 – with numerous periods of remand (see Exhibit 3) from Corrections Victoria.
I sense, frustrated by the lack of contact being extended to the paternal family, the paternal aunt commenced proceedings that the child live with her in August 2015 and the grandmother was joined as a party, through her Application filed in 2017. The proceedings were consolidated and transferred to this Court by Judge Harland of the Federal Circuit Court of Australia, on 29 June 2017.
Although the biological father had been joined as a party, quite properly, he has not participated in these proceedings or filed any material. I am satisfied that the father has expressed his intention to seek parenting orders when he is released from prison next year. He is, I am satisfied, aware of these proceedings.
The aunt essentially withdrew from the proceedings, and was therefore not in a position to agitate for specific orders, arising from her decision to file a Notice of Discontinuance on 2 July 2018 – after the proceedings had been listed for trial before me by Johns J on 10 May 2018. Notation B, to her Honour’s Order made 14 September 2018, confirms that the aunt was aware that she had “no application before the Court and is no longer a party to these proceedings”.
Despite this awareness, the aunt chose to file and seek to rely upon a recent Affidavit, as if she remained a party. Although I indicated she could be a witness in her mother’s case, which would have necessitated her being absent from the Court whilst her mother was cross examined, after discussions with her mother, the grandmother informed me she did not rely on her daughter’s Affidavits. As a result, I allowed the aunt to remain in Court and sit beside her mother as a support person. Despite informing the aunt that she could not participate, the aunt wanted to question the report writer about her criticisms of the aunt and her opinions about the aunt’s behaviour and lack of insight. I did not allow her to do so. After a further exchange when I indicated that I intended to make orders permitting the mother to take the child to Country B, the aunt appeared indignant and left the courtroom.
Family Consultant Ms C, an experienced Psychologist engaged with the child on two occasions and has produced two assessments, being:
a)A Child and Parent Issues Assessment dated 8 March 2018 (Exhibit 1); and
b)A Family Report dated 6 August 2018 (Exhibit 2).
The grandmother and aunt were interviewed for the assessment in March 2018, but did not attend the assessment for the family report. The aunt did not attend as she no longer sought orders. The grandmother says, and I accept, she was overseas at the time visiting a sick relative. The time limits before trial did not permit the interviews to be rescheduled.
The mother and the child attended both assessments. The Family Consultant’s recommendations on both occasions were that the child be not required to spend time or have contact with either the paternal aunt or the paternal grandmother. Ms C also supported the child being able to travel to Country B with the mother. The paragraphs of the Family Report which encapsulate the reasons offered for these opinions are paragraphs 49 and 50, as follows:
49. The child reported awareness that her paternal aunt and grandmother wished to spend time with her. She said she didn’t really want to spend time with her paternal grandmother as she isn’t supportive of [Ms Umi’s] marriage. The child expressed very strongly her wish not to spend time with [Ms D Diabelek] in future as [Ms D Diabelek] had denigrated her sister and stepfather. The child said she didn’t mind if she continued to have telephone contact with her father or not. She reported that her father sends her cards every week, even though it is not her birthday. She wondered why her father sent her so many cards.
50. In relation to the family’s planned trip to [Country B] later this year, the child expressed great excitement about being able to meet her cousins and attend her uncle’s wedding. The child was also excited about a planned road trip around [Country B], and commented that she was not able to participate in the first road trip her mother, stepfather and sister made in 2015 – 2016, as she did not have a passport.”
Principles in parenting cases
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
Discussion as to orders for X to spend time with the grandmother
The grandmother was observed under brief cross examination. I am satisfied she genuinely wishes to spend time with the child. On the evidence, the last time she did so, for about 30 minutes at Christmas 2016, was a happy event. The mother to her credit voluntarily facilitated the time at the home of the grandmother. The mother did not hear any negative comments about the mother to the child from the grandmother on that occasion. Importantly, no other relatives were present.
This was important, as significant criticisms by the aunt and grandmother about the mother’s care of the child have been levelled at her. These include allegations of physical abuse (as a baby); neglect and failure to properly feed the child amongst other allegations.
Although I am prepared to accept for a period post separation, this young isolated mother might have struggled with being a sole parent, the years that have passed have demonstrated without real doubt on the evidence, that the mother is a very competent, committed, caring and emotionally attuned mother who offers excellent care of the child. She has the support of a new partner, and a young child of that union that completes her new family unit. The mother has completed most of her studies in health care and hopes to pursue employment in a hospital or the aged care industry. Her life is, I find, settled and stable and the child has flourished both educationally and developmentally. Ms C opines that the child is doing well and accepts the assessment I have made, consistent with her observations.
After the parties had been briefly cross examined, I explored with Ms C whether limited (say 3 - 4 visits a year) contact visits, professionally supervised, between the grandmother and the child could be of benefit to the child. The transcript reveals, ultimately after exploring the positives and possible negatives, she adopted that proposal. Although the grandmother was keen to have whatever time she could, the mother expressed some reservations – particularly about whether any limited engagement with the grandmother could cause the child to ask questions about her past, which for the mother are painful. However as Ms C observed, the child is a highly intelligent and “knowing” child. The mother described her daughter as mature and a girl of 10 years going on 15 years. I am satisfied the mother can, and will be able to adequately answer her questions sensitively. Provided the child is not at risk of any psychological harm arising from words or actions from this loving grandmother, I am satisfied that it is in the child’s best interests to meet her grandmother in a controlled environment four times a year during her school holidays, beginning in January 2019. The order which I made prescribes how it must occur. The mother, who receives no child support from the father, should not have to use limited funds to pay for the intake procedures (said by the ICL to be around $300 each) and for the actuarial supervision (around $100 per hour). Names of suitable professional commercial supervisors were given by Ms C. I intend to not discharge the ICL until the arrangements have been made.
Trip to Country B
With the mother having sole parental responsibility, there is still some debate as to if it is necessary for the Australian Passport Office to require the father’s consent to the issue of a Australian passport for the child. To avoid any doubt from that Office, the order I make makes it clear that the mother may seek the issue of a passport consistent with s.11(1)(b)(i) and (ii) of the Australian Passports Act 2005 (see also Withers & Russell & Anor (2016) 55 Fam LR 447 and Mosman & Taylor Mosman [2018] FamCA 842)
As Ms C observed, the child is excited about the prospect of travel to Country B. The grandmother raised concerns about:
a)health issues in Country B;
b)instability in the Country; and
c)the mother returning to Australia.
There is no probative evidence demonstrating the child is at risk, with proper immunisations and such, of health issues developing in Country B. Although I accept that Country B, in some areas, might be less stable and at risk of terrorist attacks, this is a very careful mother travelling to see her family. There is no evidence at all that the mother would put herself or the child at risk.
Finally, whilst I accept that Country B is not a signatory to the Hague Contravention, the mother under cross examination explained why living in Australia offers the best future and outcome for her and the child. She has a new career beckoning. The child is excelling at school and wants to be a doctor. The mother has re-partnered and has a young child of that union in Australia.
I regard the mother as an extremely low risk of failing to return. I find the trip is in the best interests of the child, allowing her a unique opportunity to meet and connect with her maternal extended family in Country B.
I make orders accordingly as they appear at the commencement of these Reasons.
All other pending applications are dismissed. The Court expresses its appreciation to the efforts of the ICL in this matter, and to Counsel Ms Wiener who adapted her advocacy to the hearing in a practical way, including the Bench to ask a number of questions, which allowed the matter listed for three days to be heard in three hours.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 25 October 2018.
Associate:
Date: 2 November 2018
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