Gora and Gora

FAMILY COURT OF AUSTRALIA

GORA & GORA

[2012] FamCA 690

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Gora

RESPONDENT:

Ms Gora

FILE NUMBER:

SYC

4022

2008

DATE DELIVERED:

9 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

30 July 2012

REPRESENTATION

APPLICANT:

Mr Gora

RESPONDENT:

No appearance

Orders

Order for Parental Responsibility

The father and mother have equal shared parental responsibility for the children N born … October 1997 and E born … March 2005 in relation to their care, welfare and development of a long-term nature, such responsibility to include, but not limited to, issues about:
(a)education of the children – both current and future
(b)the religion of the children
(c)the health of the children
(d)any changes to the children’s living arrangements that may make it significantly more difficult for the children to spend time with either parent.

Order for day-to-day care and development

The father have the sole responsibility of making decisions about the children’s day-to-day care, welfare and development during times at which the children live or spend time with the father.
The mother have the sole responsibility of making decisions about the children’s day-to-day care, welfare and development during times at which the children live with or spend time with the mother.
Each parent is entitled to attend the events involving the children, including but not limited to:
(a)sporting fixtures
(b)extracurricular activities that allow for parental attendance or participation
(c)school functions and events that allow for parental attendance or participation
provided that the parent who has the children in their care on the day of such activity will be responsible for the care of the children at such event, including the children’s transportation to and from the event, unless otherwise agreed upon by the parents.

Orders for living with the mother and spending time with the father

Other than when the children are not spending time with the father, the children will live with the mother.
The children will spend time with the father each alternate weekend from

4.00 pm Friday until 5.00 pm Sunday.
The father is to collect the children from the mother’s residence at the commencement of the time pursuant to Order 6 and the mother is to collect the children from the father’s residence at the conclusion of the time pursuant to Order 6.

Order spending time with each parent upon significant occasions

The children spend additional time with the father as follows:
(a)upon such other occasions as the father and mother agree including but not limited to Easter and other special occasions in which the children are involved
(b)if not on a weekend under Order 6 above, from 4.00 pm on the day prior to Father’s Day to 6.00 pm on Father’s Day
(c)on the father’s birthday:
(i)if not on a weekend under Order 6 above from 4.00 pm on the day prior to 6.00 pm on the father’s birthday
(ii)if on a school day from 4.00 pm on the day prior to the commencement of the school the following day
(iii)if on a week during the school holiday period and the children are not spending that period with the father from 4.00 pm on the day prior to the birthday until 6.00 pm on the day following
(d)on each of the children’s birthdays for a period of at least four (4) hours as agreed between the parties
(e)for one half of each of the school holiday periods in Terms 1, 2 and 3 as agreed but failing agreement for the first half in odd-numbered years and the second half in even-numbered years
(f)for one half of the school holiday period in Term 4 being the first half in odd-numbered years and the second half in even-numbered years.
The children spend additional time with the mother as follows:
(a)if Mother’s Day falls on a weekend under Order 6 above then the children shall be returned by the father to the mother at 4.00 pm on the day prior to Mother’s Day
(b)on the mother’s birthday:
(i)if on a weekend under Order 6 above the children shall be returned by the father to the mother prior to 6.00 pm on the mother’s birthday
(ii)
if on a week day during the school holiday period and the children are not spending that period with the mother from

4.00 pm on the day prior to the birthday until 6.00 pm on the following day.

Orders for communication

The children have the following communication with their parents:
(a)by telephone between 8.00 am and 9.00 am on Christmas morning with the parent other than the parent in whose care they are during that morning
(b)by telephone, email or other electronic means on up to three (3) occasions per week during periods when the children are spending time with the other party.

Orders for parental communication

Each parent must ensure that the other parent is kept informed, as soon as is reasonably practicable, of:
(a)any medical problems or illness suffered by the children whilst in the care of the other party
(b)any medication that has been prescribed for the children
(c)any specialist medical appointments or with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the children
(d)any social, school or religious functions which the children are to attend
(e)the residential address of each party
(f)the telephone number of each party
(g)any other matter relevant to the welfare of the children.
Both parties are permitted to liaise directly with the children’s school so that they may receive copies of school notices, information, newsletter school reports, school photographs and any other information about the children’s progress, and attend at times as arranged to discuss the progress of the children.
In the event that either party wishes to take either or both of the children on a holiday, they must supply to the other party not less than 30 days’ notice of full details of such holidays, including, but not limited to:
(a)       the destination
(b)       who they are travelling with
(c)       proposed times and dates of travel
(d)       proposed means of travel
(e)       accommodation and contact details
and the non-travelling parent shall supply the other parent with any passport held by the children to facilitate such travel.
As and from 28 days from today’s date each parent is permitted to take the children overseas during school holiday periods on giving two months’ notice of intention to travel. The other parent is to provide all necessary consents to the issue of a passport which is to be held by the party first travelling overseas and handed to the other party on that party’s return.
Liberty is granted to the mother to apply in relation to Order 14.
The cost of travel is to be at the expense of the parent taking the child.
In the case of the father he may procure such travel pursuant to Order 14 under the supervision of either his partner Ms C or his daughter Ms R. Unless otherwise agreed the children are to be returned to Australia at the conclusion of the school holidays period.

Notification of intention to move

The father and mother shall give to the other party thirty (30) days’ notice in writing of any intention to move from their address current as at the making of these Orders.

Restraints

Each of the parties is restrained from:
(a)abusing, insulting, belittling or otherwise denigrating the other party
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so and
(c)involving the children in communication between the parties.

Orders for dispute resolution

In the event that the parents cannot reach a joint decision about:
(a)       a major long-term issue involving the children or
(b)       the interpretation of these Orders or
(c)       the implementation of these Orders or
(d)       the enforcement of the Orders
which involve the children, each of the parents will do all things necessary to participate in the Family Dispute Resolution with the person authorised under the Family Law Act.

Before an application is made to a court for a variation of these Orders, to take account of the changing needs for the circumstances of the children of the parties, the father and mother shall each do all things necessary to attend counselling or mediation and participate in dispute resolution with a Family Dispute Resolution practitioner.
Pursuant to Section 65DA(2) and Section 62B, the particulars of 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 these particulars are included in these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed for the list of Active Pending Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gora & Gora 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 SYDNEY

FILE NUMBER:

Mr Gora

Applicant

And

Ms Gora

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the court are proceedings between the parents of two children namely N born in October 1997 and E born in March 2005.
The proceedings were commenced by an Application filed by the father on

22 June 2011 to which application the mother filed a Response dated 26 July 2011 seeking orders different to those sought by the applicant father.
The matter came before the Court for the first day of its Less Adversarial Trial on 25 May 2012. At that time, in addition to the application filed by the father, he had filed a Parenting Questionnaire dated 23 May 2012 and subsequently filed and served an affidavit of 24 July 2012.
The parties attended a Children and Parents Issues Assessment on 30 August 2011 with a Family Consultant, Ms M, who swore an affidavit verifying that assessment on 23 September 2011.
The mother did not appear on the first day of the Less Adversarial Trial and was contacted by telephone. The mother was informed that the matter was listed for hearing before the Court for one day commencing at 10.00 am on Monday, 30 July 2012.
The Court noted in accordance with the Children and Parents Issues Assessment that the parties had reached agreement on all issues except travel and it was subsequently explained by the Family Consultant that the travel in dispute related to travel for the purposes of giving effect to arrangements for contact within Australia and for overseas travel in respect of which the father wanted the ability to take or procure the taking of the children overseas both for the purposes of engagement with his family in South East Asia and otherwise.
The Court’s Order fixing the matter was sent to the mother at her address. The Order further required that each party file and serve any affidavit material on which they wished to rely on or before 4.00 pm on 16 July 2012 and that the mother was to file and serve a Parenting Questionnaire. The mother did not file anything in accordance with those directions.
On the morning of the hearing the mother did not appear. The mother was telephoned by the Court at telephone numbers which she had supplied to the Court and the Court was unable to contact her. Her name was called outside the Court and there was no response to the call by 10.20 am and the Court directed that the matter proceed notwithstanding the failure of the mother to appear.
The evidence relied on by the father was the Children and Parents Issues Assessment verified by the Family Consultant; the oral evidence of the Family Consultant; the affidavit filed by the father in support of his application; the oral evidence of his partner Ms C and of his daughter Ms R which was given orally on the hearing.
The father had set out in his Initiating Application a series of orders that he sought. He said that he believed that they were consented to but the source of his information was the Family Consultant as a result of the interviews conducted for the purpose of the Children and Parents Issues Assessment.
In evidence to the Court the father said that some of the orders which he sought and some of the orders which had been agreed to had not always been complied with by the mother and that in particular she had unilaterally made decisions in relation to the children’s schooling when there had been no prior consultation with him.
The evidence of the Family Consultant was that the mother had only two areas of objection to the orders, they were: domestic travel for the purpose of the operation of the orders and overseas travel by the children.
In relation to domestic travel the father resides in the eastern suburbs of Sydney and the mother resides in the north-western part of Sydney. There is some 40 kilometres between the two residences and the father is presently undertaking the travel both to and from the mother’s residence for the purpose of giving effect at this time to the agreement between them.
The father seeks equitable share of that arrangement and his evidence to the Court is that the mother has a motor vehicle all expenses of which are paid for by her employer and which she may use. The cost of the children spending time with each parent is a cost of the children and ought to be something to which each of the parents contributes. In this case the Court proposes to make an order that the costs of travelling of the children for the purpose of the order within Australia are to be shared in that the father is to pick up the children from the mother’s place of residence or their school at the commencement of the time to be spent with him and the mother is to collect the children from the father’s residence at the end of the time to be spent with him.
Having heard the evidence of the father and having heard from the Family Consultant and the father’s current partner Ms C, the Court makes findings as set out hereunder.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

The Issues

The significant issues appear to be arrangements for overseas travel and arrangements for domestic travel for the children.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, 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 for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

It seems clear that these children like most children will benefit from the positive input from each of their parents to the development of their maximum potential. The children presently, on the evidence of the Family Consultant, have a meaningful relationship with each of their parents. There is no reason why that cannot continue in this particular case and the Court is satisfied that the children will benefit from its continuance.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence before the Court which establishes that these children have been exposed to physical or psychological harm or been subject to or exposed to abuse or violence.
The mother has challenged the father’s capacity for supervision and the father has challenged the mother’s capacity for supervision of these children.
There is no evidence from the mother before the Court to the effect that these children have been neglected by the father. Indeed, the father has given some evidence to suggest that the mother at times is unaware of the whereabouts of her oldest son when the child is in her care. Whatever the truth of those allegations the children, according to the Family Consultant, have a good relationship with each of their parents. The children also seem to have a good relationship with their half-sister Ms R and the father’s longstanding partner Ms C.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The views of the children as expressed to the Family Consultant were that N, aged 14, said that he was happy with the current arrangements; substantially those arrangements which the father seeks to give formality to by an Order.
N has expressed the view that he is close to each of his parents. It did appear to the Family Consultant that N had a significant amount of freedom at each parent’s home.
E indicated that he had a close relationship with each parent and is happy with the current arrangements and that he could not think of anything he would change about his life except perhaps to procure a new skateboard.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The relationship between the children and each of the parents appears to be good. The relationship between the children and the father’s partner and their half-sister also appears to be good.
The father’s partner gave evidence of her involvement in the children’s lives. She is otherwise childless.
She has encouraged N in his chosen sport and apparently not only is the boy proficient at that sport but is trusted to teach younger children.
E apparently shares with her a love of her dog. They walk together and share, it appears, an easy relationship.
The father’s mother is still alive and resident in a gated community in South East Asia. She is presently unwell. She desires it appears to see her grandchildren. She has but little contact with N having last seen him when he was three years old and has never seen E. The Court is informed that the grandmother is not able by reason of ill-health to travel to Australia.

There is no evidence before the Court of the relationship between the children and any other persons. The Court is informed that the children have both cousins and aunts and uncles in South East Asia.
There seems no indication that these children have suffered by reason of the arrangements presently in existence which are intended to continue. There has been some suggestion that in the mother’s home the children are treated differentially but the father in the witness box indicated that from his point of view he had no doubt that the children were loved equally. The difference in their ages mean of necessity they had from time to time to be treated differently.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Both parents have appeared to be willing to agree to implement arrangements which permit of the children having a relationship with each of them. There has been a measure of hostility and some lack of communication in the past. That, for the sake of the children, needs to stop. The continuation of this conflict can only damage the children and the parents must find a way in which they can communicate effectively and without rancour. It seems that some advances have been made, in that communication does take place by email.
The mother in the past has been prone to make unilateral decisions without informing the father. This must also stop except in the case of emergency. She does not have the sole parental responsibility for these children and the amount of time spent with them by her, which is the majority of the time, does not afford her an entitlement to ignore the input of the father in relation to major decisions in their lives. That form of unilateral action in the interests of these children also has to cease.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court finds that there is unlikely to be any adverse effect from the orders that it proposes to make. Were the Court not to make an order permitting of the possibility of the children visiting their grandmother they would lose that connection with their origins and that would be regrettable.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There appears no practical difficulty in giving effect to the children’s right to maintain personal relationships and direct contact with both parents on a regular basis, as the Orders provide.

(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The evidence of the Family Consultant is that both children have a good relationship with each parent. It appears that each parent does have a capacity to provide for the needs of the children including their emotional and intellectual needs. Perhaps it is the fact that the father sets more boundaries and sustains them more consistently than the mother. This is a difference in parenting styles.
The father is concerned with the children’s academic progress and there seems to be some basis for that concern. It is hoped that this matter, having resolved, both parents can work co-operatively towards encouraging their children to achieve their maximum educational potential.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The age differential between these children is significant with the eldest child being nearly 14 and ¾ years and the youngest child aged seven.
The children are aware of their parents’ conflict but on the evidence appear somewhat resigned to it. The current system of resolving that conflict from time to time provides no good role model for the children and the parents need to remember that continuing interpersonal conflict can cause significant and lasting emotional damage to their children and be causative of future problems of a serious nature for them.
The advice of the Family Consultant is that each of the parents will need to be very careful in their dealings with the children and in particular not show favouritism to either of them since to do so affords the possibility of damaging their sibling relationship. The children come in part from a South East Asian background. They have some, although limited, capacity with Spanish and the father wants to afford them the opportunity of better understanding of that language and the South East Asian culture and tradition.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Neither child is of aboriginal nor Torres Strait Islander descent.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It seems in this case that the financial burden of these children has in large measure been borne by their mother. The father is paying minimal child support. The father says, and there is no evidence to the contrary, that there have been difficulties with the accumulation of arrears of child support and he is subject presently to a departure prohibition order by reason of those arrears. He says he is currently in discussion with the Child Support Agency. He notes that he is and for some time has been unemployed. He says that he hopes that later this year he will be able to gain employment. He has worked as in international business and estimates his earnings were $80,000 plus a year. Obviously once he regains employment it will be necessary for him to make a real and continuing contribution to the cost of his children and presumably then meet any arrears properly assessed. He in the meantime is paying nominal child support only.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any family violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of any family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Whilst the Court would wish to make an order which is in all respects final the Court takes into account that the mother has expressed a view particularly in relation to overseas travel that she is concerned about the capacity of the father to supervise. Given of course that the father is the subject of a departure prohibition order it would not be within his ability to depart Australia in any case. The father proposes that the children be accompanied overseas either by his partner or his daughter, both of whom gave evidence. Each impressed as being articulate, aware of the issues and concerned to be of assistance where possible. Both expressed the view that they cannot only supervise but also exercise control over the children.
The father’s daughter is a flight attendant on an international airline and as such has the opportunity to procure, at a highly discounted cost, tickets for overseas or domestic travel for friends or relations. She and Ms C have informed the Court that they would be prepared to accompany the children both to South East Asia so they may see their grandmother and their other extended family there. They point out that whilst in South East Asia they would live in a gated community in which the children’s grandmother lives and they would have access to travel by car and an ability to have continuing relationships with their uncles, aunts and cousins.
The Court does not believe, given the ethnic background of the father and the place of location of his mother and the ability of the father to provide for the supervision and safety of the children whilst travelling overseas through either his daughter or partner, that such travel should be prohibited.
The father proposes that any such travel would take place during those school holidays in which he has the care of the children. Given however that the mother has indicated her opposition, but does not appear to argue it, the Court will nevertheless order that the children be permitted to travel to South East Asia, which order is not to come into effect for 28 days from today’s date and leave will be granted to the mother to put any matter before the Court in relation to that order within that time.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the Orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. There is no evidence before the Court that there has been any family violence.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The Court has considered the question of time spent. The father does not seek any change substantially to the current arrangements and I find that the current arrangements at this time to be in the children’s best interests subject to the variations referred to in this Judgment.

The Orders to be made

The Court therefore proposes to make the Orders set forth above which it finds to be in the best interests of these children.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 9 August 2012

[2012] FamCA 690

Key Legal Topics

Areas of Law

Family Law