Halas and Jolaha

[2019] FamCA 291

FAMILY COURT OF AUSTRALIA

HALAS & JOLAHA [2019] FamCA 291

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of child.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Halas

RESPONDENT: Mr Jolaha

FILE NUMBER: SYC 113 of 2019

DATE DELIVERED: 12 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cummings SC

SOLICITOR FOR THE APPLICANT: John R Quinn & Co

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders PENDING FURTHER ORDER

1. The parents have equal shared parental responsibility for the child X born … 2017.

2. The child live with the mother.

3. The child spend time with the father as follows:

   (a)       On alternate Saturdays and Sundays from 9am to 6pm;

   (b)       Each Tuesday and Thursday from 3 to 6:45pm with the paternal grandparents to collect the child from the mother and the father to return the child fed, bathed and ready for bed.

   (c)       From 3pm Christmas Day to 12 noon the following day in 2019;

   (d)       On the last Tuesday in January from 3pm to 12 noon the next day;

   (e)       At Easter 2020 from 3pm Thursday to 4pm Good Friday;

4. Upon the child reaching age 3, the child to spend each alternate weekend from 9am Saturday to 4pm Sunday, with the alternate Saturday and Sunday daytime to cease forthwith.

5. Upon the child reaching 3 years and 6 months of age, the father’s Tuesday time to extend from 3pm until 3pm Wednesday each week, and the Thursday time to cease forthwith.

   (i)The parties may vary the dates and times of the father’s time with the child as agreed.

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 Hanas & Jolaha 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 SYDNEY

FILE NUMBER: SYC 113 of 2019

Ms Halas

Applicant

And

Mr Jolaha

Respondent

REASONS FOR JUDGMENT

1. This was an interim parenting application in relation to the parties’ child X, born in 2017. The father by way of a minute of order seeks immediate overnight time, being 6 pm Tuesday to 8 am Wednesday, 6 pm Friday to 6 pm Saturday in week 1, in week 2, 6 pm Tuesday to 8 am Wednesday and 6 pm Saturday to 6 pm Sunday.

2. The mother resists overnight time at this stage. When pressed by me on the child’s capacity to cope with overnight time in the future and be away from her mother, the mother posited perhaps at age three. Given the delays in this Registry, any interim order I make may, in the absence of agreement, continue for two years, at which time X may be approaching four years of age, and therefore I will make an order having regard to that circumstance.

3. Mr Cumming, Senior Counsel, appeared for the wife and Mr Schonell, Senior Counsel, for the husband.

4. The documents I read were as follows:

   a)For the mother:

   i)The mother’s application, affidavit and financial statement filed 15 March 2019; and

   ii)A case outline.

   b)For the father:

   i)His response, affidavit and financial statement filed 10 April 2019;

   ii)A case outline;

   iii)An affidavit of a Ms T, X’s guardian ad litem in the American proceedings.

Relevant Facts

1. The father is aged 43, the mother 30. Both parties were born in Country B. They commenced a cohabitation marriage in July 2010. On 24 October 2017, the parties moved to America for the husband to take up a position in City D, and the wife ceased working at that time. X was born in 2017, and she has dual citizenship. On 31 August 2018, the parties separated, and a series of concerning events occur in the American courts, inter alia.

2. On 5 September 2018, the mother files a divorce petition, and the father left the former matrimonial home on 10 September. On 11 September, the father asks the mother to withdraw her petition for divorce and agrees to the mother and child living in Australia. It is important to note that the father’s work in America was on a temporary residence work visa which was to expire in February 2019.

3. On 4 October 2018, the father files an application for the child, who was then aged 14 months, to spend two nights a week with him.

4. On 17 October 2018, daytime orders for the child to spend time with her father were made.

5. On 23 October 2018, the husband received an offer to work in Australia, commencing 1 January 2019 which segued nicely in with his American contract, and, quite frankly, as I see it, that should have signalled the end of any American proceedings.

6. On 30 October 2018, the father continues the American proceedings and seeks orders that the child return to Australia and live with him. So he, too, as well as the mother, wants this to happen.

7. On 31 October 2018, orders are made for overnight time and one afternoon a week, and this is consented to by the mother. The mother says she was under pressure, on her own and in America. She had a lawyer but no family support and was told that this is the way it would be, and the mother’s position on this is supported by the affidavit of Ms T, who was the child’s guardian ad litem in the American proceeding.

8. On 16 November 2018, the mother seeks an order that she return to Australia with her daughter which is consistent with the father’s application filed on 4 October 2018 to return to Australia.

9. On 19 November 2018, the matter was adjourned by the American judge to 13 December 2018.

10. On 20 November 2018, there was a settlement conference between the parties, and there was an agreement, it is asserted, that they would dismiss the American proceedings, a sensible approach, and everyone would return to Australia given they’re all citizens of this country and the father had a job here and they would commence proceedings under the Australian law. Nothing was signed and no orders were entered into.

11. On 20 December 2018, the mother and the child returned to Australia by consent. On 23 December 2018, the father asked to spend time with the child in Sydney, and the mother does not agree. It is after this that the father re-enlivens and re-agitates the American proceedings despite him having a job in Australia and there being no one living in America at that time and the parents not really having any capacity to live in America. Certainly the mother did not and only the child had citizenship.

12. On 27 December 2018, the father files a contempt application in the American courts.

13. On 28 December, the American judge makes orders that the mother is to attend America to appear at that hearing on 11 January 2019.

14. On 10 January 2019, the mother files her application in the Family Court in Australia.

15. In January 2019, a judge of the USA County Court of State E, extraordinarily and at the father’s behest, finds the mother guilty of contempt, sentences her to a term of imprisonment which could purged by the payment of $10,000, the mother is to hand the child over to the father, he is to have sole parental responsibility and the mother’s time with the child to be at the father’s discretion. The judge ordered the mother to appear on 5 March 2019.

16. At this time the father is spending time with the child in Sydney by agreement, limited time, but he is spending time with his daughter during this period of time of which I speak.

17. Again, on 19 February 2019, the father’s petition to the US court was to make final orders as per the interim orders so that he can register those orders in Australia and for the mother to pay the costs of the legal proceeding.

18. On 20 February 2019, the father lodges an objection to child support application in Australia and is still pursuing the American proceedings.

19. On 22 February 2019, the mother files an urgent application in the Family Court to prevent registration of the American orders, and that is successful despite at that time the father’s lawyer arguing to the contrary before me.

20. On 22 February 2019, a Judge in the USA, still persisting with this matter, contemplates a Hague application and stands the matter over. This is most unusual given that everyone is living in Australia including the child, she is the only one who has a right to live in America. On 5 March 2019, finally, the US proceedings are transferred here as this Court is clearly the Court seized of jurisdiction and the United States madness ceases and will be sealed forever.

21. The father’s conduct in pressing the American proceedings is inexplicable if, as he asserts and I accept, his daughter’s best interests were at the forefront of his mind, however, those are matters for another day.

22. I am not persuaded that because X spent 10 successful overnight periods with her father in America when she was about 15 months of age that this then means in her now changed circumstances living in Australia that I should forthwith order what the father seeks, two nights a week, or two nights fortnight, and daytime and that this should be ongoing on a long-term basis until agreement or final order. This order would be ongoing for the foreseeable future.

23. In matters concerning young children - and X is a young child - whose primary and secondary attachments are still forming, cautious and slow haste are required. She is 20 months of age. It is clear the mother was the primary carer of the child and the father the primary income earner and that the father is a loving, caring and competent father, as the wife has attested to in Facebook posts post-separation. This matter is not about his capacity to parent his daughter but his daughter’s capacity to be separated one night or at best - on his best case, two nights a fortnight or for a week from her mother on a regular and ongoing basis.

24. The mother asserts the child needs to establish a strong bond with her dad, become well settled in her environment in Australia and be in a stable and child appropriate regime of time and that shorter, frequent time is preferable, between 3 and 6 two evenings a week and all day alternate Saturdays and Sunday. Fortunately for X, both her parents live with their own parents, and the grandparents of X live a close proximity to each other and they are, again, competent and loving grandparents.

25. I accept the father cannot be at his home at 3 o’clock on a Tuesday and a Thursday to collect his child because of his work commitments, however, the grandparents can do that. The mother was more than agreeable to the paternal grandparents collecting X on those two days a week. The father can then return from work as soon as he possibly can.

26. The father agrees he will ensure his daughter is fed, bathed and ready for bed when he returns her to her mother on those 2 afternoons a week.

27. This was effectively, except for a few changes in time an agreed position.

28. The real question for me is when does overnight time commence?

Going to the Act

1. I will not rebut the presumption of equal shared parental responsibility. There is no evidence that would cause me to do so. X is entitled to have both parents in her life.

2. Having not rebutted that presumption, I need to consider whether there ought be an order for equal time or significant and substantial time. Neither party contends for equal or significant and substantial time and that is entirely appropriate given she is 20 months of age. Therefore, the order to be made is the order I determine that is in the child’s best interest.

3. Looking at the factors, I must under section 60CC(2) and (3) of the Family Law Act.

4. X clearly benefits from a meaningful relationship with each of her parents who are both competent and capable parents. I cannot see she has witnessed any poor behaviour in either of her parents’ care or in anyone else’s care.

5. Her wishes are irrelevant. She is too young.

6. The nature of her relationship with her parents. Her mother is clearly her primary carer and has been throughout her life. Given her young age and that the father was working in America, the mother was with her all day and has always been with her daughter.

7. I am concerned at the father’s approach in America and the orders he sought that the child was to live in an equal time arrangement, and with his interim application that she spend six nights a fortnight in his care broken up over a two-week period. That is not a child-focused approach and may indicate a lack of insight into a child’s needs. However, having said that, he is clearly a competent and capable parent.

8. If I push overnight time, as the father wants me to do, against the mother’s wishes, I may not only damage the child’s attachment to her mother but also her all-important attachment to her father, and I am very cautious about this. 10 overnight times in a confined timeframe at age 15 months is vastly different to an ongoing long-term arrangement for a young child such as this. Ultimately, there will be an order for overnight time and it will be a consistent and ongoing pattern of overnight time.

9. I have formed the view that at her young age, 20 months, her young age militates against a rushed approach for overnight time which I accept the father will enjoy and will cope with. There is no issue for me about the father’s capacity.

10. I will provide for some limited overnight time in the next 12 months for even though I have found an order for overnight time at her age is not an order in her best interests, to say there should be no overnight time for potentially two years is also not an order in her best interests, but I will hasten slowly. I will provide for some limited overnight time between now and when she is aged three to gauge how she goes and to give her father and the father’s family experience of having her overnight.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 12 April 2019.

Associate:

Date: 9 May 2019