DITTERSDORF & GUNST

[2018] FamCA 607

FAMILY COURT OF AUSTRALIA

DITTERSDORF & GUNST [2018] FamCA 607

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother wishes to travel overseas for an short holiday with the child to celebrate her parents’ wedding anniversary – Where the mother wishes to relocate with the child overseas to that same country on a final basis – Where the child has already been subject to an order requiring her return to Australia from that country pursuant to the Hague Convention – Where the Court determines that the travel is more for the benefit of the mother and her parents than the child – Where the mother’s application for travel is dismissed.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

APPLICANT: Ms Dittersdorf

RESPONDENT: Mr Gunst

INDEPENDENT CHILDREN’S LAWYER: Ms J. Fotheringham

FILE NUMBER: BRC 12814 of 2017

DATE DELIVERED: 10 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Simpson Family Lawyers

FOR THE RESPONDENT: Self-represented (Ms Lines, solicitor sought and was granted leave to withdraw at the hearing)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

1. The mother’s application filed 10 July 2018 be dismissed.

2. The matter be assigned to the docket of Justice Carew and listed for a case management hearing on 5 October 2018 at 2.15pm.

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 Dittersdorf & Gunst 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 BRISBANE

FILE NUMBER: BRC 12814 of 2017

Ms Dittersdorf

Applicant

And

Mr Gunst

Respondent

REASONS FOR JUDGMENT

1. Ms Dittersdorf and Mr Gunst are the parents of X born in 2016. Ms Dittersdorf wishes to travel to Country B in Europe with X to join in the celebrations of her parents’ 40^th wedding anniversary for the period 25 October 2018 to 17 November 2018. Mr Gunst opposes the application[1] given that he has already been the applicant in prior proceedings under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) in relation to X.

   [1] Although no Response or affidavit were filed by him.

2. There are competing parenting applications before the Court which will be determined at another time. The mother wishes to relocate with X to Country B permanently. The father opposes relocation.

background

1. The mother is 34 and was born in Country B. She came to Australia in 2011 and met Mr Gunst on a dating app in 2014. They married in 2015 and separated in December 2016.

2. The father is 34 and was born in Australia.

3. At the time of separation the parents were in Country B on holidays. They were due to fly back to Australia on or about 11 January 2017.

4. The mother contends that separation occurred after she was viciously assaulted by the father. She contends that she decided to stay in Country B with X where she had the support of her family. Mr Gunst was charged and convicted of the assault of Ms Dittersdorf and ordered to pay compensation.

5. The father contends (to the family report writer) that he was in effect ‘set up’ by the mother whom he suspects always intended to stay in Country B during their holiday. His belief is formed in part by the fact that he says she had a copy of his criminal history with her. The father contends that the mother’s father is a police officer in Country B and implies that his connections resulted in the father being charged and initially imprisoned.

6. The father has a criminal history of violence and two of his previous partners obtained protection orders against him. He contends that the protection orders were obtained at the end of the respective relationships and did not indicate a history of violence during his relationships.

7. The father returned to Australia and commenced proceedings pursuant to the Hague Convention for X to be returned to Australia from Country B.

8. An Order requiring X to return to Australia was made in August 2017 so that the competing parenting applications could be determined in the country of the child’s habitual residence. The mother appealed against the Order. The appeal was dismissed and the mother returned to Australia with X in November 2017.

9. The father commenced proceedings for a parenting order in Australia in December 2017 and an Order was made by consent in the Federal Circuit Court on 31 January 2018. That Order made provision for X to spend time with her father for four hours each fortnight to be supervised at the C Town Contact Centre. The proceedings were transferred to his Court in June 2018.

10. The father has spent very limited time with X since the parties separated in December 2016. The Hague convention proceedings in Country B took nearly a year to finalise. There was then a delay in time commencing pursuant to the January 2018 Order and in or about April 2018 it seems the father obtained employment in Perth, Western Australia. It is common ground that he returns to Brisbane every two weeks for one week.

11. A family report was filed on 31 May 2018 and recommends against X relocating at this time and supports the child remaining in Australia and building a relationship with the father.  

applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper[2], but such consideration will focus in particular on issues that will be determinative at an interim hearing. [3]

   [2] See s 65D.

   [3] Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[4]

   [4]Baghti & Baghti [2015] FamCAFC 71.

3. Section 60B sets out the objects and principles to be applied when considering what parenting order is proper.

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child so far as they are relevant. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[5]

   [5] Banks & Banks (2015) FLC 93-637.

discussion

1. The issue for determination at this interim hearing is limited to the mother’s travel with X to Country B for a visit. That said, any determination of parenting matters will be informed by Part VII of the Act.

2. The mother submits that while she was the respondent to Hague proceedings she did not abduct the child from Australia and has never contravened an order of a court. She submits that it is in X’s best interests to attend the celebrations in Country B where she has a strong relationship with her maternal grandparents with whom she has previously lived and with whom she communicates every day by WhatsApp.[6] The time that the child would otherwise spend with the father can be made up and she is prepared to pay for the costs of supervision for the make-up time. While the mother has very limited financial means her parents are willing to pay for return flights and she will stay with her parents in Country B.

   [6] An internet based audio and visual means of communication.

3. The independent children’s lawyer supports the mother’s application.

4. While the mother submits she is not a flight risk, the father contends that the mother planned and acted upon an intention to remain in Country B in 2016 during what was planned to be a holiday only. This is a factual issue for the trial.

5. While it is true that the child could again be recovered if the mother were to remain in Country B, any such proceeding would be attended with significant delay as occurred on the last occasion. The consequence for X was that she did not spend any time with her father for about twelve months.

6. The child already has a fractured relationship with the father and I do not consider that there should be any further interruption in the child’s opportunity to spend time with the father nor any risk to her time with the father being again interrupted.

7. However, the most significant reason for my determination to refuse the mother’s application is that X is a very young child, only just two years of age. The flights involved will be long and for a visit of short duration. The child will not be aware of the significance of the celebrations. In my view the travel is more for the benefit of the mother and her parents than the child. 

other matters

1. I raised with the parties the prospect of listing the matter for final hearing on 2 and 3 October 2018. This course was opposed by the independent children’s lawyer and the father because there would be insufficient time for the father to build on his relationship with X and to have his relationship further assessed.

2. As I have now had the opportunity to review the material, in particular, the family report, and while I am conscious that the Court attempts to list international relocation matters with priority, I am not persuaded that the matter will be ready for trial on those dates. I do however consider that the matter should be judge managed and I will allocate it to my docket and list it for a case management hearing in October 2018.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 August 2018.

Associate:

Date:  10 August 2018