Galia & Tanis

[2023] FedCFamC1F 1143

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Galia & Tanis [2023] FedCFamC1F 1143

File number(s):	SYC 6140 of 2022
Judgment of:	BENNETT J
Date of judgment:	29 August 2023
Catchwords:	FAMILY LAW – CHILDREN – overseas travel – where maternal grandmother is primary carer for child aged 5 – where maternal grandmother wants to go to Country C with the child for 10 days – where father does not oppose – where mother opposes – where no material was filed by or on behalf of the mother – where mother made oral submissions – assessment of s60CC factors
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	29 August 2023
Place:	Melbourne
Counsel for the Applicant:	Ms McNamee
Solicitor for the Applicant:	CE Family Law Pty Ltd
Solicitor for the First Respondent:	Blomfield Legal Pty Ltd (Ms Richardson)
Counsel for the Second Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Agresta
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

ORDERS

SYC 6140 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GALIA

Applicant

AND:

MR TANIS

First Respondent

MS ISAKOVA

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	29 AUGUST 2023

THE COURT ORDERS THAT:

1.The child X born 2018 (“the child”) be and is hereby permitted to travel to Country C with the applicant maternal grandmother, Ms Galia, between two dates in late 2023.

2.No less than 7 days prior to departure, the applicant maternal grandmother provide to each of the parents an itinerary showing the dates of travel, flight details, accommodation details and contact details for X while overseas, including the telephone number and email address at which X and the applicant can be contacted. 

3.X have such communication with her parents while overseas as may be agreed by each parent with the applicant maternal grandmother or at X’s request, and the applicant take all steps necessary to facilitate such communication.

4.The applicant maternal grandmother inform both parents by email of X’s return to Australia and provide each parent with 5 photographs of X in Country C from Country C.

5.Within 10 days the mother and the father provide to the applicant, via their respective solicitors, a telephone number or email address at which photographs of the child and messages may be sent from the applicant to the parents during the holiday.

6.The applicant maternal grandmother be solely responsible for all costs of travel, accommodation and activities for X to travel to Country C with the applicant maternal grandmother. 

7.The applicant maternal grandmother be permitted to provide to the Country C Consulate, copies of this Order, and any further document that may be required by the Country C Consulate.

8.Each of the maternal grandmother, the father and the mother attend for a psychological assessment with a suitably qualified practitioner nominated by the independent children’s lawyer and any party who is legally aided forthwith seek an extension of aid for the payment of the psychological assessment.

9.There be liberty to the independent children’s lawyer to apply for further orders in relation to the psychological assessment by seeking that the matter be listed before me by arrangement with a Senior Judicial Registrar

10.The Directions Hearing before the Judicial Registrar on 13 October 2023 be and is hereby vacated and in lieu thereof the matter be listed for a Directions Hearing by Web Conference on 8 December 2023 at 10.00 am before the Judicial Registrar (“the adjourned date”) with liberty to the parties to apply for an administrative adjournment of the matter if the psychological assessments have not been completed and released by that date.

11.Subject to any order to the contrary, pursuant to section 62G(2) of the Family Law Act 1975 an updated family report be prepared.  For that purpose the parties and child X born 2018 attend upon a Child Court Expert nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 1 March 2024 and be released by not later than 1 May 2024 AND IT IS NOTED THAT an earlier family report has been prepared by Ms D, Court Child Expert.

12.Not later than 4.00 pm on 14 September 2023 the parties provide their contact telephone numbers and email addresses.

13.The family report deal with the following matters:-

(a)any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that may affect the weight that the court should place on those views;

(b)the matters set out in s60CC of the Family Law Act;

(c)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

(d)an observation of each of the parties with the child/ren (unless it appears to the Court Child Expert that such an observation taking place is not in the immediate best interests of the child/ren);

(e)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible.

14.For the avoidance of doubt the Child Court Expert be and is hereby authorized to have reference to:-

(a)all documents filed in these proceedings;

(b)any documents produced on subpoenae and released for inspection by all parties;

(c)any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

(d)any documents or things referred to in this Order.

15.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

16.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren:

16.1a Children’s Court;

16.2a child protection authority;

16.3a State or Territory legal aid authority; and

16.4a convener of any legal dispute resolution conference.

17.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.

18.The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as he/she considers appropriate and in respect of which he/she provides the other parties with prior written notice.

19.Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer be at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.

20.The Family Dispute Resolution Conference set down for 4 October 2023 be and is hereby vacated and it be re-listed at the discretion of the Judicial Registrar on the adjourned date provided that the psychological assessments and any other expert evidence as to substance abuse has been completed and released to the parties.

21.Any party who appears electronically must ensure that he/she can connect to the video conference (audio is not sufficient).

22.My reasons for decision this day be transcribed and when settled be placed on the Court file.

23.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex-tempore

BENNETT J

1. This matter comes before me as an urgent interim hearing, having been allocated by a Judicial Registrar on 4 August 2023.  It concerns X, a little girl aged five years, having been born in 2018.  X is described in an extensive family report published on 2 February 2023 as a “delightful little girl”.  At paragraph 76 of the report, she is described as:

   …a four year old girl who presented as neat and appropriately dressed when attending the Melbourne registry.  She appeared to a playful, inquisitive and social child.  [X] was very quick to become comfortable with the writer and staff in the registry playroom.

2. Since mid-2022, X has resided in the care of her maternal grandmother, the applicant, Ms Galia.  That was pursuant to orders made by her Honour Justice Brasch on 5 September 2022.  At the same time, parental responsibility was allocated to the applicant maternal grandmother for all major long-term decisions related to the child, including education, religious and cultural upbringing, health and dealing with the Department of Foreign Affairs and Trade passport officers or visa providers.

3. By application filed on 19 July 2023, the applicant maternal grandmother seeks to take X to Country C for a 10-day holiday as soon as same can be booked.  She proposes September, but I will allow her from September until November because of possible difficulties in securing flight reservations.  The respondent father has no objection to the trip and has indeed signed a minute of order proposed by the maternal grandmother.  And that minute is before the Court.  The independent children’s lawyer supports the child’s trip to Country C, and likewise signed the minute of order proposed by the maternal grandmother.

4. The respondent mother is the only party to the proceedings who opposes the holiday.  The respondent mother is represented in the substantive proceedings by Blomfield Legal Pty Ltd, solicitors of New South Wales.  Today, Ms Connell of that firm attends Court to observe the matter but does not act for Ms Isakova.  She is not legally aided to do so.  Ms Isakova represents herself.  Ms Isakova could not join the audiovisual link with an image and merely phoned in.

5. The application was served on Ms Isakova via her solicitors on 21 July 2023.  It was sent by email.  Page 6 of the application bears the usual notification to respondents that if they oppose the orders sought in the application, they must file a response and evidence not less than two days prior to the hearing date and attend Court.  No material was filed by or on behalf of the mother within the timeframe allowed, or indeed by today.  The mother detailed the basis of her opposition for X’s holiday in Country C, and I had her affirmed.  She swore to the truth of her submissions.  I regard that as evidence before the Court.

6. The family report is quite extensive.  It refers to the circumstances in which X’s care was changed from the mother to the maternal grandmother.  I have also had the benefit of reading the section 69ZW response, dated mid-2023, provided by the Department of Family and Community Services of New South Wales.  That deals more particularly with the circumstances immediately preceding the removal of X from her mother’s care.  In those documents, there is evidence of environmental neglect.

7. In one report, there is a reference to family violence within the mother’s household between the mother and the boyfriend, the arrest of her mother.  Environmentally:

   The house is reportedly “absolutely disgusting”.  There is dog faeces in all rooms.  [X] sleeps on lounge with dogs and on [X’s] bed, there is no sheets [sic].  [Ms Isakova] (the mother) reportedly rescues animals.  The dogs were reportedly starving and have sores…  [X] has reportedly stepped in the dog faeces and also stepped on a rusted nail which was on the floor.  [X] is described as being underweight and her hair does not grow.  [X] would be seen walking around with no clothes, mattered hair, rubbish all around her.

8. There were also concerns about the mother’s use of illicit drugs.  I understand that evidence has not been tested because the matter is awaiting a final hearing.

9. Other matters of concern are the mother’s mental health.  There is reference in the family report to a possible diagnosis of a mental health disorder.  The mother says she has not been diagnoses with a mental health disorder.  She has been diagnosed with post-traumatic stress disorder.  She has a mental health plan from her doctor and is seeing a counsellor or a psychotherapist.  She has not recently seen the psychotherapist and proposes to return.  The mother has recently faced criminal proceedings.  She was incarcerated f on more than one charge.  Those charges were withdrawn, and the mother pleaded guilty to three counts of another charge.  Those proceedings have apparently concluded.  The mother’s use of marijuana is noted in the report.  The mother’s contention is that she has withdrawn from the use of marijuana.

10. Returning to the proposed trip to Country C, the mother’s opposition is that X has a medical problem, and the mother placed X on the waiting list for surgery some two years ago.  In the last 10 days, a place became available for X to have that surgery, but the maternal grandmother refused.  The mother considers that not to be a child-focused decision, and on that basis said that she would not permit the child to travel out of Australia.  However, the matter needs a little more scrutiny than that.  For a start, the surgery was to be in City E at F Hospital, quite remote from where the maternal grandmother lives in Melbourne.

11. The child was placed on a waiting list by the mother without consultation with the maternal grandmother, when X was in the mother’s care.  Those circumstances have significantly changed since that time.  Indeed, upon coming to live with the maternal grandmother, the maternal grandmother had the child seen by the G Hospital, who referred X to the H Hospital.  X is subject to a program investigating whether or not surgery is the preferred course for what is essentially a problem which has manifest itself in snoring. The grandmother has sola parental responsibility for health matters.

12. The mother says that the child is prone to infection, however, I must say that the untested evidence of Community Services in New South Wales indicates that there might have been other matters that led to the child suffering infections whilst in the care and under the authority/responsibility of the mother. 

13. The mother has seen X three times in the last 14 months.  The mother gave evidence that she had proposed that the maternal grandmother travel to Country C without X, whereupon the mother could assume care of X for the 10 days of the grandmother’s absence from Australia. Alternatively, the mother would take X to visit her sister in City J, an aunt who X last saw a few months ago. 

14. It is not surprising that those alternatives did not seem as attractive to the maternal grandmother as taking the child to Country C to enjoy what is going to be a fairly typical holiday. 

15. When making any parenting order, I must consider the best interests of the child as the paramount consideration.  The twin pillars on which that consideration rests is the Court’s consideration of the need to protect the child from family violence or abuse and the benefit to the child of maintaining a meaningful relationship with the parents.  They are referred to as the primary considerations.

16. The additional considerations are numerous, and I need only deal with those that are relevant to this particular case.  I would assume, although I have received no evidence, that the child would like to travel with the maternal grandmother, in any event, the child’s wishes in relation to a trip of this nature are not matters that I would find particularly material.  The child has been assessed by the family consultant as having a warm and loving relationship with the maternal grandmother and, obviously, a close relationship with the mother.  A not so close relationship with the father was observed.

17. I can take into account the extent to which each of X’s parents have fulfilled or failed to fulfil their obligations to maintain the child and to be involved in matters concerning her long-term welfare. At the moment, the child is cared for by the maternal grandmother, and that is due to matters which pertain to the capacity of the mother and the father to care for X. There is no factor under section 60CC, subsection (3), which indicates that the trip ought not take place. More particularly, no evidence has been adduced by any party to the proceedings as to why the trip is not indeed a child-focused and appropriate recreation for the child.

18. I take into account that this will be a trip primarily for adults, that is, the maternal grandmother and her partner, but it will give X the opportunity to see them in a recreational setting, resting and having a good time.  That of itself is a direct benefit to the child.  Of course, I expect that the child will otherwise have a pleasant time herself.  I think it is important that the child be able to share the experience with her parents on return.  And for that purpose, I have amended the minute of order to provide that the grandmother is to provide at least five photographs of the child in Country C to each parent.  Now, that can be in hard copy on her return, or it could be a photograph every second day which is sent from Country C to a telephone or an email address.

19. I will enlarge the orders that I have dictated to require each party to provide, through their respective solicitors, an address to which photographs can be sent during the trip.  It will be up to the grandmother how the photographs reach the parents, but each parent should be able to talk about Country C with X on her return. 

20. The nature of the dispute is such that I need not consider the allocation of parental responsibility more widely than it has already been decided by the interim orders of Justice Brasch made on 5 September 2022.  For the above reasons, I make the orders as set out at the beginning of these reasons for decision.

1. As to the future mention of the matter, there appears to be a few events coming up.  There is an FDRC for a full day on 4 October 2023, and it is listed for another directions hearing to the Judicial Registrar on 13 October 2023.

2. There have been, I understand, 10 Court events since these proceedings were instituted in the middle of last year.  Only one other event, apart from today, has required the attendance of the Independent Children’s Lawyer because it was a substantive event.  There should not be so many events.  Looking at the matter on the Court system, there is a full day FDRC scheduled for 4 October 2023, and then a further directions hearing before the Judicial Registrar on 13 October 2023.  Both of those dates will be vacated.  Instead, the parties have sensibly agreed to progress the matter toward a final hearing.  For that purpose, it is agreed that the mother should be assessed psychologically, and the mother and the independent children’s lawyer seek that the maternal grandmother be assessed.

3. The maternal grandmother does not say that the assessment is unnecessary or unwarranted but does cavil at the cost because she is funding these proceedings privately.  She is not in receipt of the grant of legal aid, and an assessment may be expensive.  What would obviously be more expensive is embarking upon a hearing with insufficient evidence for the Court to be able to make a decision.

4. The Independent Children’s Lawyer is a very experienced practitioner, Ms B.  I will make an order for the three parties to the proceedings, that is, the maternal grandmother, the respondent mother and the respondent father, to be psychologically or psychiatrically assessed.  I give both because one may be more available and affordable than the other, however, I indicate here that a psychological assessment is likely to suffice.

5. As I understand the situation, each litigant seeks primary care of X.  I anticipate that there could well be some difficulties with funding.  The maternal grandmother and the respondent father are paying privately for these proceedings.  I will leave it to The Independent Children’s Lawyer to broker an arrangement between the legal aid authority concerned and the private litigants as to payment for the cost of the assessments, but I will reserve liberty to apply in the event that the parties need orders from the Court for the matter to fully proceed.

6. The next matter is that the mother needs to undergo some drug testing.  I think in all the circumstances, without there being a final hearing in sight, that can probably be left until later.  It is likely to be quite expensive, and whilst it would be of interest to an assessing clinician from a psychological point of view, it is probably not absolutely necessary, and the Court would be more assisted by drug testing done proximate to a final hearing than perhaps even a year out.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       29 August 2023