Holinski and Holinski

[2013] FamCA 629

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI [2013] FamCA 629

FAMILY LAW – CHILDREN – Interim parenting – Father seeking time with children – Mother opposes any time – Father has not spent any time with the children since separation – Mother seeking on a final basis to relocate overseas – Mother holds concerns about the father and the paternal family spending time with the children and submits that the mere thought of such time adversely affects her parenting capacity – Contested allegations made by each party against the other as to family violence

Convention on the Civil Aspects of International Child Abduction (1980)
Family Law Act 1975 (Cth)

Goode & Goode (2002) FCL 93-286, (2007) 36 Fam LR 422, [2006] FamCA 1346

APPLICANT: Mr Holinski

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Ms Holinski

Ms Hafey

FILE NUMBER: PAC 129 of 2013

DATE DELIVERED: 21 August 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levet

SOLICITOR FOR THE RESPONDENT:	Blackman Legal
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blackman Legal Ms Hafey
Ms Hafey

Orders

1. Pending further order, L born … 2010 and N born … 2012 (“the children”) shall live with the mother.

2. Pending further order, the children shall spend time with the father as follows:-

   (a)Each Thursday from 2.30 pm to 5.30 pm supervised at the B Contact Centre commencing on 29 August 2013, or as can be facilitated by the Contact Centre;

   (b)Each Saturday from 11.00 am to 5.00 pm commencing on 3 October 2013; and

   (c)On Sunday 1 September 2013 from 9.00 am to 5.00 pm.

   (d)The parties shall do all things, sign all documents and attend all interviews that may be required to engage and obtain the assistance of the B Contact Centre in facilitating these Orders.

   (e)For the purpose of Order (2)(a), the mother is to deliver the children to that centre at the commencement of each such period of time, and collect the children from that centre at the conclusion of each such period of time.

   (f)For the purpose of Order (2)(b) and (c), changeover is to be supervised and is to take place at the B Contact Centre. For such periods of time, the father shall collect the children from the mother with the assistance of the B Contact Centre at the commencement of each such period of time, and the father shall return the children to the mother at the contact centre at the conclusion of each such period of time.

   (g)The parties shall abide by all directions given by the members of the staff at the contact centre.

3. Pending further order, the children L, a male, born … 2010, and N, a male, born … 2012, shall remain on the Airport Watch List.

4. Pending further order, the parties, their servants and/or agents are restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia.

5. The mother shall provide to the father her contact telephone number and residential address forthwith and shall notify the father of any change to such telephone number or residential address within twenty-four (24) hours of the same.

6. Neither party shall denigrate the other or any members of the other party’s family in the presence of, or in the hearing of, the children, and shall use their best endeavours to ensure that no other person does so.

7. The parties shall notify each other immediately or at least within one (1) hour of any medical emergency involving either of the children.

8. The parties and the Independent Children’s Lawyer shall agree between them to jointly appoint a single Chapter 15 expert witness to prepare a report for the Court’s assistance in this matter.

9. The parties and the Independent Children’s Lawyer shall agree between them the matters to which the expert shall consider and report upon.

10. Each of the parties shall pay one half of the costs of the preparation of the expert report, and bear half of any such additional costs of the expert to give evidence at Court if so required.

11. The parties shall do all things necessary to facilitate the preparation of the expert report, including attending upon the expert appointed, and if required by the expert, arranging for the children to attend upon the expert.

12. The Independent Children’s Lawyer shall provide to the single expert a letter of instructions to facilitate the commencement of the preparation of the report as soon as practicable upon the parties agreeing upon an expert.

13. The Independent Children’s Lawyer shall be granted liberty to photocopy, at the Court’s expense, such documents produced on subpoena as necessary in respect of providing such material to the expert.

14. The matter be listed for mention before myself in a Hearing Callover on 18 October 2013 at 10.00 am to progress the matter and in the event of any difficulties as to the appointment of a single expert.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holinski & Holinski 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 PARRAMATTA

FILE NUMBER: PAC 129 of 2013

Mr Holinski

Applicant

And

Ms Holinski

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns L, who is three and a half years, and N, who is almost sixteen months, the children of Mr and Ms Holinski. 

2. The parents were married in April 2009 in Sydney, and in January 2013 the mother left the family home with the children.  The children have not seen their father since that date.  The parents are not yet divorced.

3. This application relates to interim parenting Orders.  The father is asking that the Court make an order of equal shared parental responsibility for the children.  Both parents seek orders that the children live with the mother and the father seeks an order that the children spend time with him on a weekday for a few hours and each weekend day, and additional time on significant days such as birthdays.  The mother seeks an order that both parents undergo psychological assessment and that the interim parenting hearing be adjourned to a date after the report is available.  She also seeks an order permitting her to travel overseas with the children to the United States of America for five weeks, and that the father sign passport documents to facilitate that travel.  Further, she seeks an order that the father communicate with the children by letter and email at reasonable frequency.

The uncontested facts

1. The parents met in Australia when the mother was visiting from the United States of America in connection with a church activity.

2. The parents were married in a marriage ceremony in Sydney in April 2009. 

3. In early 2010, L was born.

4. In March 2010, the mother’s family arrived in Australia from the United States, and there was an incident involving both families at the parties’ home to which police were called.  No person was charged as a result of this incident.

5. In April 2010, the mother and L went to Canberra with her family for a few days.

6. The parties experienced some interpersonal difficulties in 2010 and 2011, which appeared to be resolved.

7. In early 2012, N was born.

8. Throughout their relationship, the parents had an affiliation with a Christian church.  Both extended families are also affiliated with Christian churches.

9. From about 2011 or 2012, the mother wanted to travel to the United States and take the children with her.  The father did not consent to this travel as he did not trust the mother to return the children.

10. The mother’s family came to Australia for two weeks in December 2012.  The mother’s family also returned to Australia in January 2013, though the father was unaware that they had arrived.

11. On 11 January 2013, the mother left the home with the children and took a number of documents, including her passport, the children’s birth certificates and the marriage certificate.  The mother also removed the SIM card from her telephone so that the father could not make telephone contact with her, but contacted the father by email on 14 January 2013.  In that email the mother sought the father’s consent to signing passport applications, to which he did not agree.

12. The father has not spoken to the mother or the children since separation, and does not have any contact telephone number for them to do so.

13. On 15 January 2013, the father sought orders from the then Federal Magistrates Court, which a Judge of that Court refused to make in February and again in May 2013.

14. On 13 June 2013, the proceedings were transferred to the Family Court and came before the duty list Judge on 12 August 2013 in relation to interim orders.

The parties’ documents

1. The documents the parties rely upon are as follows:-

2. In the father’s case:-

   a)Amended Application filed 25 February 2013;

   b)Affidavit of the father sworn 12 August 2013 and filed 12 August 2013;

   c)Affidavit of the paternal grandfather, Mr C Holinski, sworn 20 February 2013 and filed 25 February 2013;

   d)Affidavit of paternal grandmother, Ms D Holinski, sworn 20 May 2013 and filed 25 May 2013.

3. In the mother’s case:-

   a)Amended Response filed 23 May 2013;

   b)Affidavit of the mother affirmed 12 June 2013 and filed 12 June 2013;

   c)Affidavit of psychologist Ms E sworn 23 May 2013 and filed 23 May 2013.

4. Neither party sought to rely on their respective Notice of Child Abuse, Family Violence or Risk of Family Violence that had been filed in the matter.

The submissions

1. The difference between the positions of the parties in this matter is significant.  It is the father’s position that nothing arises from the limited uncontested facts that would suggest that the best interests of these children would be met by denying them the benefit of both of their parents having a meaningful involvement in their lives.  It is submitted that even if the Court were to consider the mother’s case at its highest, the incidents and allegations she makes could in no way amount to the emotional and psychological abuse she asserts.

2. The father submits, and this submission was adopted to an even greater extent by the Independent Children’s Lawyer, that a letter from the mother’s legal representative, which is annexure B to her affidavit, makes the mother’s position completely clear.  Her position is that the father’s family live in a religious cult and that during the currency of the marriage she was abused psychologically and emotionally by the father, his parents and extended family, and that the children were regularly exposed to this abuse.  The mother asserts that her emotional wellbeing and ability to care for the children is adversely affected by the thought of the father and his family having contact with the children, and having the opportunity to inculcate them with what is described as their “toxic views”.  It is said that the mother will do whatever is required to prevent the father and his family from having contact with the children, and will be seeking to relocate to the United States to raise the children there.

3. It is submitted by the father that this position is extreme, demonstrates that the mother is detached from reality and the nature of the dispute between the parties, and demonstrates that the mother puts her own interests ahead of the children and is incapable of putting their interests first.  It is submitted that the interim order for the father to spend time with the children is to ensure that the relationship between them will be preserved, notwithstanding the damage that has already been done.  It is submitted by the father that the relationship between him and the children needs to be built and he is also seeking telephone contact with the child L to reinforce in L’s mind that it is acceptable for him to contact and build a relationship with his father.

4. The father opposes the mother being permitted to leave Australia and refers to the difficulties of enforcement of the Hague Convention in the United States.  It is submitted that, as the mother has stated that she will do whatever it takes to ensure that the children do not spend time with the father and his family, that there is a significant risk that she will not return the children if permitted to travel to the United States.

5. The mother’s position relies almost entirely upon matters which are contested, being her allegations of psychological and emotional abuse by the father and his family, and the exposure of the children to this abuse.  The only uncontested matter that she relies upon is her assertion that her ability to care for the children is adversely affected by the thought of the father spending time with the children.  Essentially, the mother submits that the Court must balance the risk of harm to the children if they do not spend time with their father against the risk of harm to them if the mother’s parenting capacity is adversely affected by her fears arising from the children spending time with their father and paternal family.  It is submitted that this is a case in which a psychiatric report is required and that the report should be available to the Court prior to the interim orders being made.

6. The Independent Children’s Lawyer submits that the mother’s solicitor’s letter, annexure B to the mother’s affidavit, is at the crux of the matter in that the mother has made it clear to the father and to the Court that she does not contemplate the children having a relationship with the father.  The Independent Children’s Lawyer submits that the matter should not adjourned and also submits that if the mother is successful in the orders she seeks, this will predetermine the final issue because the relationship between the children and their father will be irredeemably lost.  It is also submitted that the children would almost already have lost that relationship with their father.

7. The Independent Children’s Lawyer submits that the maintenance of a relationship with the father via mail and email as proposed by the mother is totally inappropriate and that the daily telephone contact proposed by the father is also not child focused. 

8. The Independent Children’s Lawyer does not support the children spending time unsupervised with their father at this stage, and whilst having the time spent with the father supervised is an option, it is submitted that the alternative which best meets the children’s interests is for a changeover between parents to be supervised.  It is also submitted that initially the children should spend time with their father on a weekly basis to re-establish the relationship, and thereafter, the time together should either be one full day or two shorter periods at least once per week.

9. The Independent Children’s Lawyer opposes the mother being permitted to take the children to the United States and submits that it is a risk not worth taking, particularly if the matter is to be expedited.

10. Following the submissions made by the Independent Children’s Lawyer, the father indicated that he would seek a supervised handover, and the mother asked that if the Court were inclined to make the order as sought by the father that the Court not order that the children spend time with the father on a Sunday.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must give effect to the relevant objects and principles.  The objects of the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting and principles underlining it are set out in section 60B of the Act, and are as follows:-

   (1) The objects of this Part are to ensure that the best interests of the children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles (set out in subsection (2)) underlying these objects are (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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

Framework for interim applications

1. Goode& Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to be considered is that of parental responsibility.

Should the Court order equal shared parental responsibility for the children?

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that each of the parents of a child has parental responsibility for the child.  In this matter, the father seeks an order that the parents have equal shared parental responsibility. 

2. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of section 61C and an order for shared parental responsibility, which has the effect set out in section 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

3. Under section 61DA(1), 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.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence, or when the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (section 61DA(3)).

4. In this matter, although family violence has been raised by the mother, I cannot be satisfied that the father has engaged in family violence and the presumption is not displaced on this basis.  However, in my view, at this interim stage, it would not be appropriate in the circumstances for the presumption to be applied as there are so many critical factors relating to best interests that are in dispute.

1. As I consider the presumption of equal shared parental responsibility is not appropriate in these circumstances, the statutory consequences do not follow and the Court must make such order as is in the best interests of the children as a result of consideration of the matters set out in section 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).  In this case, the effect of the actions of the mother and the orders she seeks is to deny the children the benefit of them having a meaningful relationship with their father.  I accept the submission of the Independent Children’s Lawyer that if the order sought by the mother is made, the result will be the total destruction of the children’s relationship with their father, and that it is inappropriate for that relationship to be maintained by email or letter given their age.  Spending time with their father is critical to the formation of a meaningful relationship to which the children are entitled.  The only suggestion of exposure to abuse or family violence arises from the contested allegations of the mother.

3. Section 60CC(3) sets out additional considerations, a number of which are not relevant in this case, such as any views expressed by the children, given their ages.

4. The nature of the relationship of the children with each of the parents and other persons including grandparents is difficult to assess as virtually all of the evidence in relation to this issue is associated with contested matters.  However, given that the children, who are particularly young, have not seen their father for seven months, I accept the submission of the Independent Children’s Lawyer that the relationship between the children and their father has been significantly damaged, and in the case of the child N, may be virtually non-existent.

5. Another of the additional considerations is the extent to which each of the children’s parents has taken the opportunity to participate in making decisions in relation to the children, spend time with the children and communicate with the children.  During the currency of the marriage, it appears that each of the parents took these opportunities.  However, due to the unilateral decisions of the mother, the father’s opportunity to participate in making decisions and spending time with the children has been effectively stopped, but I note that the day after the father first became aware that the mother had removed the children from his care and did not intend allowing him to participate in this way or spend time with the children, he took action by the filing of an Initiating Application.

6. In relation to the likely effect of any changes in the children’s circumstances, including the likely effect on them of any separation from either of their parents, I accept that in the short term there may be a difficult period of adjustment if the Court were to make orders that the children spend time with their father as they would be separated from their mother.

7. I accept the submission made by the Independent Children’s Lawyer that the likely effect of the children continuing to not spend time with their father is that the children will not have any relationship with him at all.

8. As both parents reside in Sydney, there do not seem to be any practical difficulties associated with the children spending time with their father, other than ensuring that N’s breast feeding regime is not interrupted.

9. On the uncontested facts before me, I have some concerns about the capacity of the mother to provide for the emotional needs of the children.  There has been no recognition by her of the likely emotional impact upon the children resulting from the sudden removal of the children from their father and the continuing impact resulting from the destruction of that relationship.

10. Another of the additional considerations in relation to determining the children’s best interests relates to the lifestyle, culture and tradition of the children and their parents.  On the undisputed facts, each of the parents is affiliated with a Christian church and the values and traditions associated with those churches were followed in the parenting of these children.  I do not find, on the undisputed facts, that the father’s family are members of “a religious cult”, or that the children would be in any way harmed as a result of being exposed to the religious traditions of the father and his family.

11. In relation to the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents, I am concerned about the unreasonable attitude of the mother who, according to the letter written on her behalf by her solicitors, cannot even contemplate the father and his family having contact with the children and describing the paternal family as living in a “religious cult” and having “toxic views” when it appears that the values ascribed to and practices followed by the mother in the parenting of the children were the same.

12. Subparagraph (j) refers to family violence involving the children or a member of the children’s family.  Virtually all of the mother’s allegations relate to verbal abuse and controlling behaviour, and all of these allegations are in dispute.

13. The final relevant additional consideration in this matter is set out in subparagraph (l), which provides that the Court must consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.  This consideration does not require the Court to make an order that would be least likely to lead to the institution of further proceedings, but requires the Court to consider whether it would be preferable to make such an order.  In these circumstances, in deciding whether it would be preferable to make such an order, I take into account that the mother has, in my view, adopted an uncompromising position, made clear in the letter written by her solicitor, who state that “she will do whatever is required to prevent [the father and his family] having any contact with the children”.  In other words, the mother has indicated that she will appeal, and this is confirmed in submission, if any order is made allowing the father and paternal family to spend time with the children.   In these circumstances, I do not consider that it would be preferable to make an order that would be least likely to lead to further proceedings.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred. In my view, the order in relation to the children spending time with the father as proposed by the father, subject to some amendments, is in the children’s best interest having regard to both the primary considerations and the additional considerations set out in section 60CC. In light of the age of the children and the impact that a separation of seven months must have had upon their relationship with their father, it is not in the children’s best interests for the relationship with their father to be maintained via email or letter as proposed by the mother. This could not, in my view, be a “meaningful” relationship as referred to in the Act.

2. Permitting the mother to travel to the United States in light of the history of the matter, the stance taken by the mother to date, which in my view is uncompromising and unreasonable, together with the mother’s affiliation with the United States and stated intention to relocate involves a risk that the mother would not comply with the orders of the Court and return the children.  I am not comforted by her stated intention to abide by the orders of the Court or the mother having been given advice about the Hague Convention for the return of children.  Further, in the event that the children were returned under the Hague Convention, the likely time that this would take would further damage the relationship between the children and their father.

3. I accept the submissions made by the Independent Children’s Lawyer in relation to the most appropriate orders concerning the time the children are to spend with their father.

4. The orders that I then make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 August 2013.

Associate:     

Date:              26 August 2013