CORLA & TEBELLO

Case [2016] FamCA 429


FAMILY COURT OF AUSTRALIA

CORLA & TEBELLO [2016] FamCA 429

FAMILY LAW – CHILDREN – PARENTING ORDERS – where father poses an unacceptable risk of harm – where presumption of equal shared responsibility does not apply – where sole parental responsibility order in favour of the wife – where cultural and religious beliefs have an impact on the child’s best interest – where relationship with the child is outweighed by the negative aspects and experiences which she feels – where father currently resides overseas – where father will communicate and spend time with child as agreed between the parents – where the father will travel to Australia to spend time with the child as agreed between the parents – where father sought to have the assistance of an interpreter – whether father has not shown any signs of difficulty comprehending the communications – where this is the first court event he has requested an interpreter – where father declined to cross-examine any witnesses. 

FAMILY LAW – CHILDREN – permanent resident of Australia – where mother seeks father’s consent to the child becoming a permanent resident – where it is in the best interests of the child to have the right to travel overseas and return to Australia.

Family Law Act 1975 (Cth) ss 4, 4AB(1), 60B, 60CA, 60CC, 61DA, 65DAC, 106A,
Family Law Rules 2004 (Cth) r 22.11(3)
Evidence Act 1995 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Blinko & Blinko [2015] FamCAFC 146
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Re W(sex abuse - standard of proof) [2004] FamCA 768
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Ms Corla
RESPONDENT: Mr Tebello
INDEPENDENT CHILDREN’S LAWYER: Ms Geysen
FILE NUMBER: BRC 3393 of 2013
DATE DELIVERED: 2 June 2016
PLACE DELIVERED: Townsville
PLACE HEARD: Townsville
JUDGMENT OF: Tree J
HEARING DATE: 3 March 2016; last written submissions received 8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes
SOLICITORS FOR THE APPLICANT: Boulton Cleary & Kern
THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms Sharp
SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Couper Geysen Family & Animal Law

Orders

  1. All previous parenting orders be forthwith discharged.

  2. K, born … 2006, (“the child”) live with the mother.

  3. The mother shall have sole parental responsibility for the child.

  4. The father is to communicate and spend time with the child at all such times as is agreed between the parties and failing agreement the father to be able to send the child letters and gifts.

  5. In the event the father travels…

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Details
AGLC
CORLA & TEBELLO [2016] FamCA 429
Case
[2016] FamCA 429
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Tree J considered a dispute between CORLA (the mother) and TEBELLO (the father) concerning parenting orders for their child, K. The mother sought sole parental responsibility and consent for the child to become a permanent resident of Australia. The father, who resided overseas, had requested an interpreter during proceedings, though he had not previously indicated any comprehension difficulties and declined to cross-examine witnesses.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given the father's overseas residence and the mother's assertion of an unacceptable risk of harm posed by him. Additionally, the court had to consider the child's best interests in relation to her cultural and religious beliefs, her relationship with her father, and the mother's application for the child's permanent residency in Australia. The court also needed to address the father's request for an interpreter and the practical arrangements for the father to communicate and spend time with the child.

Tree J found that the presumption of equal shared parental responsibility did not apply due to the father's overseas residence and the negative aspects of his relationship with the child, which outweighed any positive connection. The court reasoned that it was in the child's best interests to live with the mother and for the mother to have sole parental responsibility. The court also determined that it was in the child's best interests to have the right to travel overseas and return to Australia, necessitating the father's consent to her permanent residency. The court noted the father's request for an interpreter but found no evidence of comprehension issues, particularly as he had not raised this previously and declined to cross-examine.

Consequently, the court ordered the discharge of all previous parenting orders and that the child live with the mother, who was granted sole parental responsibility. The father was to communicate and spend time with the child as agreed by the parties, with provisions for letters, gifts, and agreed time if the father travelled to Australia or if the mother and child travelled to Country X. The court also made orders regarding the father's access to the child's school reports and the parties' contact details. Crucially, the court ordered the mother to facilitate the child's permanent residency application, with a Registrar appointed to sign necessary documents should the father fail to do so within the stipulated timeframe. The court also issued an injunction restraining the father from referring to the child by any Christian name other than K and restrained both parents from recording conversations with the child.

Orders

Orders of the court

1.

All previous parenting orders be forthwith discharged.

2.

K, born … 2006, (“the child”) live with the mother.

3.

The mother shall have sole parental responsibility for the child.

4.

The father is to communicate and spend time with the child at all such times as is agreed between the parties and failing agreement the father to be able to send the child letters and gifts.

5.

In the event the father travels to Australia, the child spend time with the father as agreed between the mother and father.

6.

In the event the mother and child travel to Country X, the child spend time with the father as agreed between the mother and the father, with the father to sign all necessary consent and provide the necessary documents for the child to enter and leave Country X.

7.

The parties are to do all acts and things and give all necessary consents to enable the father, at his cost, to obtain from the school the child attends, a copy of her school reports, information pertaining to her educational progress, school circulars and school photographs.

8.

The parties keep the other informed of their contact telephone number, Skype address and residential address.

9.

The mother and father are restrained from recording any conversations of the child with the other party by any means.

10.

The father be restrained and an injunction issue restraining him from referring the child by any Christian name other than K.

11.

The mother or her legal representative, deliver a completed version of the appropriate form or documentation from the Department of Immigration and Border Protection relating to the grant of Australian permanent residence for the child, to the father within seven days of the date of this Order.

12.

The father execute the document forwarded to him giving his consent to the granting of the Australian visa for the child and email and post the completed form to the mother’s legal representative no later than 14 days from the date of this Order.

13.

Should the father fail to sign any document necessary to facilitate an application for permanent residence for the child being made, and upon the mother’s solicitor filing an affidavit deposing to this failure and annexing a copy of any correspondence forwarded to the father in relation to the same, a Registrar of the Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign any such document in the father’s stead.

14.

The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

15.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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