HOLINSKI & HOLINSKI
[2016] FamCA 45
•22 January 2016
FAMILY COURT OF AUSTRALIA
| HOLINSKI & HOLINSKI | [2016] FamCA 45 |
| FAMILY LAW – CHILDREN –Best interests of the children – Parental responsibility—With whom the children live – With whom the children spend time – Allegations of extremist views – Issues of religion, physical discipline, health, education – Allegations of family violence — Overseas travel to the United States |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC. |
| Holinksi and Anor & Holinski [2015]FamCA 184 |
| APPLICANT: | Mr Holinski |
| RESPONDENT: | Ms Holinski |
| ICL: | Ms Hafey |
| FILE NUMBER: | PAC | 129 | of | 2013 |
| DATE DELIVERED: | 22 January 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 10, 12, 13 February 2015, 25 and 26 May 2015, 24 August 2015, 24 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Turner Freeman |
| COUNSEL FOR THE RESPONDENT: | Ms Dart |
| SOLICITOR FOR THE RESPONDENT: | Blackman Legal |
| SOLICITOR FOR THE ICL: | Ms Hafey of Legal Aid Parramatta |
Orders
All prior parenting Orders are discharged.
The parents shall have equal shared parental responsibility for L born … 2010 and N born … 2012 (“the children”) in respect of major long-term issues in relation to the children as defined by The Family Law Act 1975.
Each parent shall have parental responsibility for issues that are not “major long-term issues” at all times the children are living with the mother and the father respectively. In particular each parent may permit the children to attend with the parent at any church associated with the faith in which the parents agree the children should be raised normally attended by that parent when the children are in that parent’s care.
The children shall live with the mother, except when they are living with the father as outlined in Orders 5 and 6.
Commencing on 25 January 2016 and until the end of school Term 1 of 2016 and unless otherwise agreed between the parents, the children shall live with the father:-
(a) From the conclusion of school on Friday until 6pm Sunday in each alternate week.
i)For the purpose of this Order the father shall unless otherwise agreed between the parties in writing:-
1. Collect L from school at the commencement of his time and return L to the mother’s home at the conclusion of his time.
2. For the purpose of this Order and until N commences school, the mother shall, to facilitate the children’s time with their father commencing, make N available to the father at L’s school (or such other place as is agreed between the parties in writing) no later than 15 minutes prior to the conclusion of L’s school day.
(b) Notwithstanding any other Order, from 10am until 6pm on Fathers’ Day and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
Commencing on the second Thursday of Term 2 2016 and unless otherwise agreed between the parents, the children shall live with the father:-
(a) During school terms from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week.
i)For the purpose of this Order, the period in which the children live with the father shall recommence in each new term on the first Thursday if the children have lived with the father during the first half of the school holiday period and on the second Thursday if the children have lived with the father during the second half of the school holiday period.
ii)For the purpose of this Order, the father shall collect L from school at the commencement of his time and return L to school at the conclusion of his time.
iii)For the purpose of this Order and until N commences school, the mother shall, to facilitate the children’s time with their father commencing, make N available to the father at L’s school (or such other place as is agreed between the parties in writing) no later than 15 minutes prior to the conclusion of L’s school day and shall, at the conclusion of the children’s time with the father, collect N from the father at L’s school (or such other place as is agreed between the parties in writing) no later than 15 minutes prior to the commencement of L’s school day.
iv)For the purpose of this Order and once N commences school, the father shall collect the children from school at the commencement of his time and return the children to school at the conclusion of his time.
(b) During school holidays at the end of Terms 1, 2 and 3 from 6pm on the second Sunday of the holidays until 6pm on the day before students are required to attend for the new term in 2016 and alternate years thereafter and from 6pm on the last day of the school term until 6pm on the second Sunday of the holidays in 2017 and alternate years thereafter.
i)For the purpose of this Order, changeover shall be effected at KFC Suburb I.
(c) For half of the school holidays at the end of Term 4 on any basis as agreed to by the parties but failing agreement for the first half of this period in years where the school holidays commence with an even number and for the second half of this period which commence in the year ending in an odd number.
i)For the purpose of this Order, changeover shall be effected at KFC Suburb I.
(d) Notwithstanding any other Order, from 10am until 6pm on Fathers’ Day and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
(e) Notwithstanding any other Order, from noon on Christmas Eve until 4pm Christmas Day in 2016 and alternate years thereafter and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
(f) Notwithstanding any other Order, from 4pm Christmas Day until 8pm Boxing Day in 2017 and alternate years thereafter and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
Notwithstanding any other Order, the children shall live with the mother:-
(a) From 10am until 6pm on Mothers’ Day and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
(b) From 4pm Christmas Day until 8pm Boxing Day in 2016 and alternate years thereafter and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
(c) From noon on Christmas Eve until 4pm Christmas Day in 2017 and alternate years thereafter and for the purpose of this Order, changeover shall be effected at KFC Suburb I.
Unless otherwise agreed between the parents, the parents shall each facilitate the children having telephone or Skype communication with the parent with whom they are not living, on no less than one occasion during each period when the children are living with the father and on no less than two occasions during each period when the children are living with the mother.
The mother and father shall take all reasonable steps and sign all documents as are necessary to ensure that N commences pre-school by no later than the third week of school Term 1 2016.
(a)The mother and father shall jointly request and thereafter follow advice from the staff at N’s pre-school as to whether it would be developmentally appropriate for N to commence school in 2017 or 2018.
The mother and father shall take all reasonable steps and sign all documents as are necessary to ensure that L is enrolled to start school in 2016.
(a) Unless a school is agreed between the parents in writing, the mother and father shall enrol L to commence Kindergarten at J School and such enrolment shall not be changed without the prior written consent of the parents or a Court Order.
(b) Once a decision is made pursuant to Order 9) a), the parents shall take all reasonable steps and sign all documents as are necessary to ensure that N is enrolled to start school at the same school already attended by L and such enrolment shall not be changed without the prior written consent of the parents or a Court Order.
The mother and father shall each be entitled to receive copies of school newsletters, notices and school photograph order forms.
The mother and father shall each be entitled to attend school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children’s teachers.
The mother and father are each restrained from enrolling the children, or either of them, in any extra-curricular activities which will require the participation and/or assistance of the other parent in the other parent’s time, without the prior written consent of the other parent.
The mother shall take all steps necessary to ensure that the children receive immunisations in accordance with the National Immunisation Program Schedule as specified by the Department of Human Services (Cth).
(a) The mother shall keep the father informed as to each immunisation received by the children, or either of them and shall provide the father with a copy of all immunisation records.
The mother and father shall each be entitled to take the children, or either of them, to a General Practitioner or General Medical Practice in proximity to their homes for treatment of routine childhood illness and injuries.
(a) The mother and father shall each keep the other informed, in writing, of the details of the children’s General Practitioner or General Medical Practice and shall each provide any necessary authority to the other parent to enable the other parent to obtain information about diagnosis, prognosis and treatment.
(b) In the event that the children, or either of them, require specialist medical treatment, the mother and father shall each give the other parent prior notice of the appointment details and, wherever practicable, both parents shall attend specialist appointments.
i)In the event that both parents are not able to attend specialist appointments, the parent attending the appointment shall notify the other parent of the outcome within 24 hours of the conclusion of that appointment.
In the event of emergency medical treatment being required, the mother and father shall each notify the other via SMS as soon as practicable after the event which warranted emergency medical treatment and shall provide any authority necessary to enable the other parent to attend upon the children, or either of them and obtain information about diagnosis, prognosis and treatment.
The mother is restrained from causing the children to be treated by a chiropractor unless such treatment is consented to by the father.
The mother is restrained from obtaining, or attempting to obtain Australian or United States Passports for the children, or either of them.
The mother and father shall each keep the other informed as to their current residential address, their current mobile and landline telephone numbers and their email address and shall each notify the other within 24 hours of any change.
The mother and father are each restrained from:-
(a) Denigrating the other or a member of the other’s extended family in the presence or hearing of the children
(b) Allowing any other person to denigrate the other parent or a member of the other parent’s extended family in the presence or hearing of the children
(c) Discussing the proceedings or the issues in the proceedings in the presence or hearing of the children.
(d) Allowing any other person to discuss the proceedings or the issues in the proceedings in the presence or hearing of the children.
(e) Hitting or striking the children or either of them for any purpose.
(f) Allowing any other person to hit or striking the children, or either of them for any purpose.
Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the L (a male) born … 2010 and N (a male) born … 2012 (“the children”), from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
All outstanding applications and cross-applications are dismissed.
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
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for two little boys, L who is almost six and N who is three.
The parents Mr Holinski (“the father”) and Ms Holinski (“the mother”) separated after a four year marriage, and have resolved financial matters between them. They have been unable to reach agreement on many matters relating to their children’s future care.
The father seeks orders that the parents have joint parental responsibility for the children except in relation to medical decisions or matters of religion for which he proposes that he hold sole parental responsibility. He also proposes that the children live with him initially for four nights per fortnight and gradually increasing to an equal time arrangement.
The mother proposes that she have sole parental responsibility for the children, that they live with her and spend defined time with the father, commencing with a regime similar to the current arrangement and increasing to four nights per fortnight during school term from 2018 and half of school holidays as well as special days. The mother also seeks various other orders, in particular an order permitting her to travel overseas with the children each year in the Christmas school holiday period subject to certain conditions.
The Independent Children’s Lawyer (ICL) supports orders that the mother have sole parental responsibility for the children, that they live with her and spend defined time with the father. That time is proposed to commence with two nights per fortnight and increase shortly to four nights per fortnight and during half of the school holidays on a roughly week about basis. The ICL also proposes specific orders in relation to various matters including the commencement of preschool for N and school for L, communication, immunisation and medical treatment and a restraint on obtaining passports for the children except in relation to overseas travel in connection to a school, sporting or cultural event.
The question for me to determine is which of the suite of orders proposed by the parties is in the best interests of the children.
BACKGROUND
The mother and the father and are both 30 years old.
The mother was born and raised in the United States in a family that followed the traditions of a K church. Religion was a very important and central part of the mother’s family life. The mother was schooled at home by her mother and completed high school in this manner.
The father contends that the mother’s family hold a number of extremist views concerning various matters, including government and banking institutions, gun ownership, health and vaccinations and child rearing practices. This matter is dealt with later in this judgment.
The father was born in the United Kingdom and was raised in Australia from the age of seven. He is of Polish heritage. Although the father attended university he did not complete a course of study. The father has been employed as a baker for over 10 years with the same employer.
The parents met in March 2008 when the mother and her sister travelled from the United States and stayed with the father’s family, who were at that stage affiliated with an independent K church with which the mother also had an association.
After the mother returned to the United States the father visited her there and in February 2009 the parents celebrated a ceremony conducted by the maternal grandfather at his church in State F, which each of the parties describe as a “marriage”. This marriage was not registered.
The parties were married in Australia in 2009. They initially lived with the paternal family and in September 2009 purchased their own home.
The parents followed the traditions of an independent K Church (“the K Church”) with which the father’s family had been affiliated for some time
The parties’ first child L was born in 2010.
In March 2010 the maternal grandparents visited from the United States, although the father was unaware of their plans to visit prior to their arrival. There was a dispute between the father and the maternal grandparents on 18 March at the family home and the maternal grandparents called the police. Police attended but took no further action and the maternal grandparents stayed with the family for two weeks. During the visit the mother and maternal grandparents went to Canberra for a number of days, though the circumstances surrounding this trip are a matter of dispute which are dealt with later in these Reasons.
In June 2010 there was a dispute between the father and members of his family and a pastor of the K Church. The parents and extended paternal family then began attending another independent K Church.
The maternal grandmother and a maternal aunt visited in March 2011 and stayed with the parents.
A second son, N was born in 2012.
The parents’ relationship was a traditional one in the sense that the father was employed full-time and the mother was mainly responsible for household matters and the raising of the children. The father assisted in the home with domestic tasks, meal preparation and the care of the children. The family regularly attended church and other family events with members of the extended paternal family.
Members of the maternal family visited in late 2012 and returned to the United States on 15 December. On 11 January 2015 the maternal grandfather and a maternal aunt returned to Australia at the mother’s request.
On 11 January 2013, the father arrived home from work and saw that the mother and children were not at home. The mother had left a note for the father, in which she informed to him that she had “left again” but did not provide him with any of her contact details. The father was unaware that the mother had made plans to leave him and to take the children with her. The mother initially spent a few days in a motel and then moved to stay at a friend’s house, though she did not inform the father of the children’s whereabouts if herself and the children.
The father sent an email to the mother on 14 January 2013 in which he proposed that they meet the following day, at church. In a return email, the mother informed the father that she and the children were “fine and safe” and that she was not interested in a meeting. She also asked the father to sign passport papers for the boys.
On 15 January 2013, the father commenced these proceedings and sought location and recovery orders among other orders.
The parties continued to communicate via email from time to time over the ensuing months. The mother moved to a home in a Sydney suburb on 18 February but did not provide her address or other contact details to the father.
The matter was first heard in the Federal Circuit Court on 26 February 2013 and later on 27 May. The parties sought that the judge make interim orders they had agreed to, but he declined to make those orders.
The father through his solicitor wrote to the mother seeking time with the children at a contact centre. On the 6 June 2013 the mother responded through her solicitor that she did not consent to any contact between the father and the children. She also stated that her position was that the father and his family live in “what is effectively a religious cult” and put the father on notice that she intended to relocate with the children to State F in the USA.
On 23 May 2013, the mother filed an amended Response seeking orders that she be permitted to relocate to the United States with the children and did not seek any orders for the father to spend time with children.
The matter was transferred to the Family Court in June 2013. On 21 August 2013 orders were made for the father to spend time with the children, initially supervised and increasing to 6 hours each Saturday, unsupervised.
The father spent time with the children from 29 August 2013. The children’s time with their father was observed to be a happy experience for the father and children on each occasion. The parties subsequently agreed to the father having overnight time with the children and orders were made by consent in December 2013 for that time to be slowly introduced.
In March 2014 the parties were divorced.
The parents each continue to consider religion as an important aspect of life for themselves and their children.
The parties have been unable to reach agreement about many matters involving the children’s care. These include somewhat simple issues such as an appropriate changeover location, church attendance, jointly attending appointments and the father having additional time for significant events. They also have not been able to agree on more complex issues such as appropriate medical treatment, discipline and education. The parties were not able to agree about an appropriate date upon which L should start pre-school, the number of days he should attend or the choice of pre-school. Some of the matters in dispute have involved the ICL and/or the parties filing applications before the Court and some interim judgments have been given about matters relating to the children’s care.
At the time of the hearing the children lived with their mother and spent time with their father for a few hours each Tuesday afternoon and each alternate weekend from Saturday morning for 24 hours. During this time they spend regular time with the extended paternal family. The mother no longer seeks an order permitting her to relocate the children to the United States.
The Areas of Dispute
The mother’s alleged extremist views
The first contentious issue is whether the mother and extended maternal family hold extremist views that may detrimentally impact on the children. An associated issue is the influence of the extended maternal family upon the mother and in particular whether the mother’s family attempted to assist the mother in removing the children from Australia.
So far as the views held by the mother’s family are concerned, the father describes the mother’s upbringing as one “in a fundamentalist tradition”. The mother did not attend school and was “home-schooled” by her parents. The father says that the mother’s family have a “deep distrust of government institutions and banking institutions”. He says that he gained the impression from conversations with them that the maternal family did not hold money in banking institutions and that the maternal grandfather owns a number of firearms which he believes he needs to “protect the family from the government and its agencies”. The father said that the mother is also of the view that the government should not impose taxation.
In his affidavit the maternal grandfather (“Mr M”) says that he “believe[s] in the personal choice of each individual to freely live according to the dictates of one’s own conscience.” Under cross-examination he agreed that there are certain laws that people exercising their conscience should not obey, and that he was particularly concerned about legislation relating to guns. He agreed that it was his view that there should not be legislation with respect to guns in the United States and that people should be encouraged to hold that view. However, under re-examination, Mr M said that he did comply with gun laws.
Health
So far as health and medical treatment is concerned, it is not in dispute that the mother is of the view that immunisation of children is unnecessary and may be dangerous. The father says that the mother told him on numerous occasions when they were married that “there is a conspiracy to kill children with immunisations”. Although the children were not immunised during the relationship, after separation the father informed the mother that he wished to have the children immunised and following discussion with the ICL the mother agreed to this occurring. The father says the mother told him that he had forced her to agree to this. The mother confirmed under cross-examination that during the marriage she and the father also preferred that the children not be immunised and that it was an important issue for her.
The mother also believes that chiropractic is an appropriate treatment for children and has taken the children to a chiropractor without the father’s consent.
Under cross-examination the mother agreed that the father was against chiropractic since about the time L was one and that she had not taken the children to a chiropractor prior to separation. She first took the children to a chiropractor about five months after she left the father and said that N’s spine was manipulated by a chiropractor when he was aged between one and two. The mother said that she not check with anybody in the medical profession about that profession’s position on manipulation by a chiropractor as it [chiropractic] was “something [she] was raised with”. She was not aware of the suggestion put to her that the “Association of Paediatricians” recommended against children under two being taken to a chiropractor. The mother agreed that she sought no professional advice and the only research she carried out on the topic was on the internet.
In their affidavits, both parents gave examples of the children’s medical conditions which the mother says have been “treated” by a chiropractor. These conditions include the congenital ophthalmological condition, strabismus which apparently affects L and the mother.
The mother maintained under cross-examination that chiropractic was helpful for conditions such as headache and for treating ophthalmic conditions. She said that the children had been treated by a chiropractor since separation and were generally taken to see a chiropractor every four to six weeks. She believes that it helps for the children to be “aligned” and said that the chiropractor said he could institute treatment for L’s eye condition.
Under cross-examination the mother agreed that she had not asked the ophthalmologist involved in L’s eye treatment whether a chiropractor would assist and said that she didn’t think “the question had any relevance for the doctor’s field”. When asked about the chiropractor’s expertise she said chiropractic is “therapeutic in and of itself” for “everything.”
The mother maintained that even though the father opposed N being taken to a chiropractor she would still take him to one and believed that the children would continue to receive the benefit of having their eye condition corrected.
Physical Discipline
The father says that the mother and her family’s extreme views also related to the discipline of children. He said that she believed that physical discipline of young children with a rod or similar implement was appropriate. Both parents said that the mother was raised following the methods in a book entitled “To Train Up a Child” by Michael Pearl and Debi Pearl and that she followed the methods of punishment set out in that book. The father said that it is his view that this method places weight on physical discipline and outmoded and inappropriate views on the raising of children. The mother says in her affidavit that she was aware that the father did not like the methods advocated for in the book.
Under cross-examination the mother said that she agreed with a lot of the contents of the book “How to Train Up a Child”. She said that she had first encountered the book when she was in her teens but had not read it for some time, since before L was born. She agreed that the book recommended hitting children under the age of 12 months and that the recommended implement be a willowy branch. When she was asked whether she thought it was an appropriate book but the husband did not, she answered “to some degree yes”. The mother agreed that she did not recall seeing anything offensive in the book but agreed under cross-examination that many of the portions read to her in Court were offensive and inappropriate.
Under cross-examination concerning physical discipline, the mother said that she had researched the topic, but had not formed the view that she should abstain from using physical discipline because she follows the Bible which she said advocated for physical discipline. The mother referred to a number of passages from the Bible to guide her in this regard. She said that for some time in 2013 she had not used [an implement for] discipline but subsequently changed her mind as she found alternative methods ineffective. She also said that even if the father had formed the view that there are more appropriate ways to discipline the children she would not stop hitting them as discipline.
The father says that the teachings of the K Church with which the paternal family were previously affiliated and with which the mother had re-affiliated, promoted the physical punishment of children using a rod, home-schooling as the only legitimate form of education and the idea that the minister of a church should be permitted to discipline the children of members of that church. The father says that he and his family were excluded from that church after the minister who promulgated these ideas refused to discuss these ideas with his family members and threatened police action if the paternal family attempted to attend the church. He is concerned that as the mother has returned to this church she follows these teachings.
After the proceedings had been completed in May 2015, leave was given to the father to reopen the proceedings for further evidence to be admitted in relation to two issues, one of which included the matter of discipline. In this regard the father says that in July 2015 the children revealed to him that the mother had been giving them vinegar which she required them to drink if they had been disobedient. According to the father L complained that it made him gag and N said that they also have a spicy chilli drink. The father described the children as looking distressed and seeking comfort from him during this conversation. The father believes that the mother may be following advice of Michael Pearl and in particular an article in which Mr Pearl recommends that when children are “playing up” and complain or are being defiant or complain that they are hurt then the parent should “pull out a terrible tasting herbal potion and give [the children a spoonful]”. In the article Mr Pearl recommends that if there is no herbal remedy to hand that the parent should “use something that is very unpleasant, yet good for the child - like apple cider vinegar with garlic”.[1] The father maintains that this discipline is excessive and inappropriate and raises concerns about the mother’s parenting capacity.
[1] Father’s affidavit affirmed 20 August 2015 and filed 20 August 2015, annexure B.
The mother agrees in her further affidavit and under cross examination that she had administered apple cider vinegar to the children for the purposes of discipline. She says that she conducted an internet search after the May 2015 proceedings and was looking for alternate methods for disciplining the children. She says that she found a “mother’s blog” in which the participants were discussing giving children something distasteful in their mouth in response to children’s distasteful behaviour and that a number of mothers recommended giving children a teaspoon of apple cider vinegar or lemon juice. The mother says that between June and July 2015 she gave the children a teaspoon of apple cider vinegar “on a handful (sic) occasions”. The mother denied ever giving the children a spicy drink and denied reading Mr Pearl’s article on his website prior to reading the father’s affidavit. Under cross examination the mother said that she administered the vinegar on five to ten occasions over a four week period but was unable to identify the behavioural issue that caused her to do this. The mother denied having read Mr Pearl’s book in over seven years.
Other faith – based beliefs and practices
The father says that the teachings of the K Church also extend to banning ‘non-Christian’ music, television and cinema. This does not appear to be disputed by the mother.
After the May 2015 hearing, the other basis for reopening the proceedings was to permit the father to bring evidence of L handing out religious tracts or pamphlets at his preschool which the father contends was supported or instigated by the mother.
It is not in dispute between the parties that on 19 June 2015 L had 21 pamphlets with him at school. The father says that the existence of the pamphlets were brought to his attention by the preschool director who told him that L had the pamphlets in his possession to hand them out at school to the other children. The 21 pamphlets in question are in a comic strip form and concern themes of financial ruin, banking, a protagonist “selling his soul”, revenge and hell. There are references to the Bible and Christian themes. It is also not in dispute that the preschool did not permit L to hand out the tracts and returned them to the father. It is not disputed that the pamphlet or tract in question is clearly unable to be understood by children.
The mother says that L asked her if he could take the “gospel tracts” from home to school “so he could show them to his friends and tell them all about Jesus”. The mother says she was happy that L wanted to tell his friends about Jesus but did not feel that the tracts were appropriate for preschool children. She said that she did not know what to do as she did not want to discourage L.
The mother agreed that some of the images in the tracts would be threatening to other children and her son and thought it very likely that he would not be allowed to hand them out at preschool. She said that she felt that this “would be better coming from the teacher”. Under cross-examination the mother said that she was not incapable from preventing L from taking the pamphlets to school but thought she would put the issue in the teachers’ hands. The mother could offer no explanation why she did not leave the pamphlets at home.
Under cross examination from the ICL the mother said that she allows L to take what he wants to school but that in the future if there was something inappropriate she would be more assertive. The mother said she did not understand why the father was concerned about L taking the tracts to school and believed that the father was just “getting at her”.
When the proceedings were reopened it also came to light that the father is involved in street preaching on a regular basis and takes the children with him during this activity. Both parents apparently preach in public with their children as part of their religious practice. The mother set out in her affidavit, and the father subsequently agreed that the children are included in this activity and regularly hand out gospel tracts when the father is street preaching. An example of a tract handed out by children on a particular occasion which includes biblical and Christian themes is attached to the mother’s affidavit. Under cross examination the father said that despite the children being involved in distributing religious tracts when with him, he was surprised that L took the pamphlets to preschool to distribute them to other children.
Home-schooling
The mother said in her affidavit that she and her sisters were schooled at home by her mother. She also agreed under cross-examination that it was her parents’ belief that public education was not an appropriate way to educate children. She said the father had agreed with her views on home-schooling during the marriage and was an important issue for her. She says in her affidavit that she first became aware of the father’s change of mind when she was pregnant with L but they did subsequently reach agreement that the children would be home-schooled.
When the issue of L’s pre-school arose prior to and during the first hearing days in February 2015 the mother was then proposing that L attend a private Christian pre-school. At that stage the father was proposing that L attend a community based pre-school associated with a public school located approximately half-way between each of the parents’ homes. The parties could not reach agreement and it was necessary for me to make that decision for them. In the Reasons for Judgment of 13 February 2015[2], which should be read with these Reasons I indicated the basis on which an order be made that L attend a community based pre-school.
[2] Holinksi and Anor & Holinski [2015]FamCA 184.
Discussion
The father describes the mother’s views referred to above as extreme and not in accordance with mainstream values and contends that it is inappropriate and harmful for the children to be exposed to them. It is the father’s contention that the mother’s views on matters such as discipline are so extreme and different to his own that it would be confusing and detrimental to the children for them to be exposed to this form of parenting. He says that these matters are also relevant to the issue of parental capacity, that the mother is highly resistant to change and that she will continue to raise the children in accordance with these practices and views which will be detrimental to them.
It is the mother’s contention that her views on these matters were originally ideas that were shared between the parents and that they entered the marriage on the basis that their children would not be immunised, would be educated at home and that physical discipline would be utilised. She says that it is hardly surprising that the children may wish to hand out religious tracts at preschool when the father encourages the same activity when the children are street preaching with him. It is her contention that the father’s criticism of her in this regard in these proceedings is opportunistic and indicates his lack of bona fides.
I am not satisfied that the mother’s views at the date of the proceedings in relation to immunisation, home-schooling and physical discipline are as extreme as the father contends or that it would be harmful for the children to be exposed to them for the following reasons.
First, although both parents during the currency of the relationship agreed that the children would be schooled at home, the father later altered his view on this topic. Subsequently, the mother also agreed, albeit reluctantly, that the children would be enrolled in public schools. Ultimately, each of the parties agree to an order proposed by the ICL that the children be educated at public schools up until the completion of primary school. The father does not seek a similar order for the secondary years of school or seek sole parental responsibility with respect to education if the Court makes the proposed order about pre-school and primary school, so it can be inferred that he is content with the mother’s position.
Further, the father opposed the mother’s position on immunisation, during the currency of the relationship but subsequently changed his mind again after separation and wished for the children to be immunised. In November 2013 the mother also agreed that the children should be immunised in accordance with the health department regime and the relevant vaccinations have been administered since that date. Ultimately each of the parties agreed to the ICL’s proposed order that the children continue to be immunised.
So far as physical discipline is concerned, it appears that both parents agreed during the currency of the marriage that some level of physical discipline of the children was appropriate. It is in my view, of some concern that the mother continued to consider at the end of the hearing in May 2015 that physical discipline was appropriate in light of the family consultant’s evidence. It is also of some concern that she continued to search for other methods of discipline which are akin to physical discipline (the administration of vinegar) after indicating to the Court in the May proceedings that she agreed to an order restraining the parents from using physical discipline.
Under cross-examination in relation to the issue of physical discipline the family consultant was shown various extracts from the book “To Train Up a Child” particularly in relation to striking even young children with an implement and was referred to the mother’s evidence that she adopted methods from this book. The family consultant said that in his opinion those methods were inappropriate and ineffective. The family consultant opined that it was highly inappropriate to hit a child with an object such as a spatula, which the mother said she had used, and said that it did raise concerns about that aspect of her parenting capacity. He said that such methods of discipline suggest a lack of knowledge about child development. When asked whether he identified abusive parenting techniques by either parent the family consultant said that there was a risk that such methods of discipline could escalate to a risk of abuse. However, the family consultant said that he did not identify any basis upon which the children should be referred to Community Services as he did not identify any risk of significant harm associated with such discipline techniques.
Although I am of the view that such discipline techniques may be ineffective and not in accordance with current knowledge concerning child development, the mother’s use of physical discipline to date has not amounted to abuse of the children having regard to that definition in the Family Law Act.[3] Most significantly however, and consistent with the stance she took in relation to other matters, the mother also consented to the order proposed by the ICL that the parents be restrained from physically disciplining the children or allowing another person to do so.
[3] Section 4: "abuse" , in relation to a child, means:
Although there is no expert evidence concerning the method of discipline the mother adopted in June and July 2015 (the swallowing of vinegar), in my view it would appear that this is a somewhat outdated method and unlikely to be consistent with current understanding of child development. Nonetheless, although in my view this method of discipline may be regarded as unusual and outdated, it would also not amount to “abuse” of the children under the Act.
I do have some concerns however relating to a risk of harm arising from the mother’s apparent lack of understanding concerning the potential dangers of chiropractic and limitations and appropriateness as to this form of treatment for young children. It is particularly concerning that the mother was aware that the father was opposed to chiropractic for some time prior to separation but she took N to a chiropractor when he was less than two years old and did not seek any professional medical opinion as to the appropriateness of chiropractic treatment for a child of this age.
It is also of concern that the mother continues to believe that chiropractic will assist in the treatment of an ophthalmic condition and is indeed “therapeutic” for “everything”.
I am not satisfied that the children may be potentially harmed by the other unusual or non-mainstream views held by the extended maternal family such as a distrust of governmental and banking institutions, inappropriateness of gun laws and the like. There is no evidence to suggest that the mother holds such views herself and there is evidence to the contrary, such as that the mother herself held money in bank accounts. There is also no evidence to suggest that the mother would disobey any such laws herself. However, the issue of the influence of the extended maternal family in relation to the removal of the children from Australia is a specific area of potential concern, to which I will return.
I am also of the view that the parents respective religious practises and associated views fall within the rights that each of them have to exercise their freedom of religion. The parents are of the same denomination within the same religion and are in dispute with one another over relatively minor differences in the practise of that religion. I am not satisfied as urged upon me by the father’s legal representative that the religious practices of the mother are much more extreme or dangerous than the practices of the father. It is also in my view a matter of significance that while the father contends that the mother holds extremist views that may be dangerous or harmful to the children this contention is inconsistent with his position that the mother should have at least a significant role or equal shared care of the children.
Extended maternal and paternal involvement in the family / allegations of father’s coercive and controlling conduct
It is the father’s position that the maternal grandparents were unduly involved in the family’s life when he and the mother were married, and influenced the mother to the detriment of his family. His position is that there is a continuing risk with their ongoing influence over the mother. He contends that it had always been the maternal grandparents’ intention to have the family live close to them in the United States and that in particular Mr M attempted to arrange for the mother and L to leave the country without the father’s consent. This issue is central to the father’s opposition to the mother’s proposed order permitting her to take the children with her to the United States for travel once a year. Essentially it is the father’s case that on the basis of the past actions of the mother and her family he does not trust them and has fears that if she is permitted to leave Australia with the children they would not return.
It is the mother’s case that the father, aided by his family, has been coercive throughout the relationship, and that he continues to behave to some extent in a controlling manner after separation including in the conduct of these proceedings. This contention is central to her position that the father is a perpetrator of family violence and in particular that his behaviour prevented her from keeping connections with her family, friends and culture. The mother portrays the actions of her family as supporting her in her struggle against her controlling husband.
The factual dispute to be resolved is whether the father did act in a controlling an coercive manner and whether the mother and her extended family acted in a manner to support he concern that the children may not be returned to Australia if permitted to travel with the mother to the United States.
The early months of the marriage
There is no dispute between the parties that the mother did not initially settle well in Australia after her arrival in March 2009, that she missed her family and that she spent a considerable amount of time communicating with family and friends in the United States by electronic means including Skype.
In her trial affidavit the mother raises concerns about the relationship between herself and the paternal grandparents from quite early on in the marriage but the first suggestion that the father behaved in a controlling manner appears in her account to date from the ending of a relationship between the mother’s sister Ms O and the father’s brother Mr P in around mid-2009. She says that the paternal family including the father expected her to “take their side” [in the dispute between Ms O and Mr P] as she felt the paternal family thought of her as “one of them”.
The first alleged controlling action of the father about which the mother complains was in May or June 2009 when she says that the father made her close her Facebook account.
Although the main thrust of the mother’s evidence is that the father was coercive and controlling in various ways, she also alleges that the father’s parents behaved in a similar manner by dealing with issues through “family meetings” when says that “all five members of the Holinski family would gather together and yell at me”. She says that the father would not take her side or come to her defence, that she was scared of the father’s family and felt intimidated by them. Under cross-examination the father denies there were family meeting involving the entire paternal family but agreed there were occasions where issues were discussed where only the people involved were present. The paternal grandfather gave evidence consistent with this and said to his recollection there were only two or three such meetings.
The mother says that by about September 2009 when she and the father moved to their own home, the father constantly criticised her. The two areas of concern in this criticism were that she was not sufficiently obedient and that she sought to maintain a relationship with her family.
The mother says that the father was not ever physically violent towards her but that she was scared that he would become violent. She claims that the father once said to her “I feel like I could turn violent without being able to stop myself” which made her feel scared and intimidated.
The mother also alleges that the father was financially controlling. She said that she was happy for him to handle the finances but he insisted that she provide a detailed account of her expenditure and he checked the statement every week and demanded an explanation of all expenditure of which he was unaware.
Escalation in tension between extended family
According to the mother’s affidavit, the father’s controlling behaviour increased following the birth of their first child, L, in February 2010. She also says, and it does not appear to be in dispute, that the parties experienced some difficulties with the extended paternal family at this time.
There appears to be no dispute that in early 2010 tensions between the parents and each of the extended families were such that and the father decided on around 28 February that it would assist them as a family if they cut all contact with their extended families for three weeks. It is also not in dispute that the father telephoned the mother’s family in the United States in relation to this matter and Mr M told the father that if having no contact with the mother for three weeks would help their marriage then they agreed to do this.
The mother says that despite this agreement about ceasing contact with their families the next day the father spoke to his family and the mother was still required to go the paternal grandparents home for a weekly visit and attend a family meeting. The mother describes herself at the time as feeling “very upset” and “desperate” and that she was being constantly verbally abused by the father and his family.
The mother says that she was so scared and emotionally exhausted that she contacted her parents and told them about the father’s “verbal abuse” and “control”.
Mr M says in his affidavit that he had been concerned about the mother’s relationship with the father and extended paternal family from his first visit to Australia in June 2009. Both he and Ms M say that significant difficulties with the paternal family commenced in late 2009. Mr M says that the visit in March 2010 was due to concerns for the mother due to the paternal family and the purpose of the trip was to support her.
Maternal Grandparents visit in March 2010
On 18 March 2010, when L was one month old, the M’s visited from the United States without the father having been aware of their plans to do so. The father says that he arrived home from work one day and the mother said that she had a surprise for him and took him into the lounge room where the grandparents were seated.
According to the mother, the father told her parents to “get out” or he would call the police. Shortly thereafter the father’s family also arrived. The mother said that there was then an argument between the two families and in the course of it that the father demanded that she hand L to him. The police subsequently attended the parents’ home but took no action and the maternal family stayed at a nearby hotel for the weekend. The maternal family then stayed with the parents for a couple of weeks.
During the time the Ms visited the mother went with her family for a few days to Canberra from 2 April 2010. The mother said that it was her idea to take this trip and that she needed to spend time away from the father and his family and with her family. Although it is not clear why the mother took this action, she said that prior to the trip to Canberra she went to the police station “to explain the situation”. She says
I had a feeling that [Mr Holinski] would report that we had left to the police and I wanted to give them a heads up about the situation and also to make sure that we were doing things legally. I said that we were going away for a while and that [L] would be with his Mom.
She also says that when they arrived in Canberra they went to the police station to “let them know we were safe” and says that police in Sydney had requested that they do this. The mother describes the father as “relentless” with his phone calls during her time in Canberra and says that he subsequently travelled with a pastor from the church to Suburb Q and that she, the father and the pastor talked for a few hours and she agreed to go home with the father. She says that the father appeared to acknowledge “that there was a problem and that he wanted to work on it”.
The father says in the course of a conversation with Ms M during this visit she told him that the purpose of the trip was to take the mother and L back to the United States. Mr M also gave evidence of discussions at the parent’s home during this visit in which he admitted in the presence of the paternal grandparents and parents that the purpose of the trip was to take the mother and L to the United States.
In her affidavit the mother says that this visit by her parents and sister Ms O in March 2010 was a surprise and that she was unaware of their plans prior to their arrival. The mother does not address her knowledge of the purpose of her parents’ trip.
Under cross-examination the father confirmed that he did not trust the mother’s family since their unexpected arrival in March 2010 and the mother’s parents taking the mother and L to Canberra during that visit. He said that he also had conversations with Mr M and had received emails from friends to the effect that the maternal family wanted the mother back [in the United States]. He was concerned that if they all went “back there for a visit then there would be too much of a strong hold, that [Ms Holinski] would not return with myself and [L] back to Australia”. The father maintained that he was shocked when the maternal grandparents arrived and was distressed that the purpose was to take the mother and L away. He said that, Mr M had said on the phone that he [Mr M] would “turn up whenever he wants to turn up”[at the parent’s home].
Ongoing difficulties in parents’ marriage
Following the March 2010 trip, it seems to be common ground that there were some ongoing issues in the parents’ personal relationship. As I understand, it the father did not regard these issues to be of great significance, whereas the mother contends that the father continued to behave in a controlling manner towards her. She said that after her parents returned to the United States (from April 2010) the father limited her family’s phone calls to her to one call of one hour per week.
In May and June 2010 the parents received counselling from a pastor at the K Church with which they were then both affiliated but the mother says that the father was concerned about the pastor wanting to control him. In June 2010 there was a dispute between this pastor and the father’s extended family and as a result the paternal family cut their ties with the K Church. It is the father’s position that the pastor involved himself inappropriately with personal and family matters of the parishioners (which is discussed at paragraph 48) and that the mother moved to a new church with he and his family. The mother says that the father demanded that she have nothing more to do with anyone from the K Church and that she was too frightened to disagree and from this stage felt even more isolated.
The mother makes a general complaint that the father verbally abused her. She gives examples that he yelled at her saying things like “the house is not clean enough. The clothes are not ironed right. You are not dedicated to what is happening here because you are too focussed on your family in the US”. The mother also describes that in the course of arguments the father would back her into a corner, close the door behind him or block the exit to prevent her leaving and would stand over her and continue to verbally abuse her until she “collapsed in tears”. She said that on approximately two occasions she struck the father to remove herself from the situation.
The mother relates an incident in February 2011 at the time of L’s first birthday party where she says that the father was very critical of her and verbally abused her and also says that the father had forbidden her family to visit for L’s first birthday.
As I understand it, there is no dispute that a few weeks later, in March 2011 Ms M and the mother’s sister Ms R visited and stayed with the family at their home for about two and half weeks. The mother claims that she had a number of arguments with the father in the presence of her family members during this time.
The mother claims that after this visit with her family the father insisted on being present during her phone conversations with her mother so that he could monitor them. After this occurred for a few months the mother says she set up a secret Skype account so that she could communicate with her family without the father’s interference. The mother said that she was able to utilise this secret account for over a year without the father finding out about it. She indicates that she communicated in this way until around mid-2012.
In about June 2011, the mother became pregnant with the parties second child, N and says that she felt so controlled by the father at this stage that she was nervous and anxious all of the time. The mother says that in August 2011 when she consulted her General Practitioner she was diagnosed with stress and anxiety.
On 28 October 2011 the mother says that she was so desperate and unable to cope that she went to a women’s shelter with L for a day. She then decided to try to reconcile with the father and was hopeful that another pastor would be able to assist her and the father. She says that the following day she had a counselling session with that pastor and that the relationship with the father improved for about two weeks. She and the father together received counselling from the pastor for about a month but the father disengaged when he began to hear things that he did not agree with.
Following this counselling, which was not successful in improving the relationship, the mother said that the father became more controlling in that he conducted daily checks on her internet account, read all her emails, checked the history of her Skype account and all telephones to and from the house and told her that he arranged for all of her emails to be forwarded to his private account. The father agreed under cross-examination that he accessed the mother’s emails but said it was a joint account. He also agreed that he checked the internet usage each week but denied he supervised the mother’s Skype calls.
She also says that the father required her to carry a phone at all times so he could reach her at any time. The mother says that the father constantly told her that she was crazy and raised in a “demented family”. She claims that he gave her instructions about many minor day-to-day matters such as how often the sheets were to be washed and screamed at her if she disobeyed these types of directions. A further example of controlling behaviour she alleges in this context is that the father withheld L’s birth certificate from her for over two years.
Shortly after the birth of the parents’ second child N in late May 2012, the mother says that she and the father had an argument about the paternal family’s involvement in their lives. She telephoned the paternal grandfather and pleaded with him to step back from the paternal family’s involvement in their lives so she and the father could sort matters out themselves. She says that the following occurred:
[the paternal grandfather] became absolutely irate on the phone yelling at me “you are an unsubmissive wife; you don’t know how to follow [Mr Holinski]. If he says you are supposed to do something, then just do it, and don’t question him. The way your parents raised you is the reason you don’t know how to be the right kind of wife. You are a wasted space on Earth.
The mother says that the paternal grandmother yelled for about 10 to 15 minutes on the phone. She says that following this conversation she called the father at work and told him that he and his family had given her no reason to stay and she then packed a few things for herself and the children and attempted to leave but the car would not start. The mother says that the father arranged for his father to come to the home to watch her so that she could not leave. The mother claims that the following day the father told her that the reason the car would not start was because he had “unplugged some wire or something, in case things got ugly”. He said “You would have no way to leave… I’m quite pleased with myself for my quick thinking otherwise who knows where you would have got to.”
Although the father does not provide any context for this communication, it is not disputed that in June 2012 the maternal grandfather, Mr M, sent an email to the father in which he wrote the following words
I will let you in on a secret. We have researched and know how to get [Ms Holinski] out of the country without your approval. I’m not giving a vain threat. I will not give the details of this covert endeavour and it all hinges on [Ms Holinski’s] consent.
Although the mother and Mr M did not dispute that this email was sent neither of them makes reference to it in their respective affidavits. However, the mother says that in May 2012 she had asked the father if she and the children could visit the United States to see her family and friends but the father refused to allow her to take the children out of Australia.
The maternal grandfather, Mr M, says in his affidavit that in about June or July 2012 he received an email from the father which confirmed to him that the parents still had problems in their marriage and that he “decided to make enquiries to see if there was any way for [Ms Holinski] to leave Australia”. In particular, he made enquiries with a parishioner in his church who he knew to be a former marine who advised him it was extremely costly and “virtually impossible” to get a person out of a country without that person’s consent. Mr M said he “would never have taken steps to assist [the mother] to leave Australia without her requesting this assistance, nor would [he] have taken any action without seeking legal advice to ensure that no laws were broken if this occurred. He says in these circumstances he sent the email referred to in paragraph 105.
Mr M said that the purpose of sending the email to the father in June 2012 was not to threaten the father but was to seek to have him reconcile with the mother. However, he ultimately conceded that the father was entitled to have become extremely concerned that there would be an attempt to remove his children from Australia without his knowledge. Under cross-examination the mother agreed that her father had told her about the conversation he had had with the former Marine about removing a person from another country. She said that she had had asked her father to obtain the information about going to the United States without the father’s consent. She says that when she was informed that it would be illegal and she did not countenance that.
The maternal grandparents and another of the mother’s sister’s Ms R visited the parents and the children in late 2012. Mr M described this visit as “joyful and pleasant”. The father said under cross-examination that he thought that things were moving in the right direction at this stage in relation to trust of the maternal family.
The mother’s family returned to the United States on 15 December 2012 but Mr M and the mother’s other sister Ms O returned to Australia on 11 January 2013 at the mother’s request to assist her in leaving the father.
The father said there was a discussion about moving to the United States shortly before the mother left him in January 2013. The mother agreed under cross-examination that this conversation he said that in that conversation he made it clear that it was not in the children’s interest to move to the United States.
Events following separation
In his affidavit the father said that when he arrived home from work on 11 January 2013 and saw that the mother and children were not at home he found a note from the mother. The mother wrote
[Mr Holinski],
You may be shocked that I’ve left again especially because things have been going “relatively smoothly”. But the truth is, you shouldn’t be shocked because the issues have still always been there, even when you wanted to ignore them and pretend they didn’t exist.
I am a prisoner, trapped in my own home, by my own husband. I can’t do this anymore. I need some space, to be able to think and feel like a normal human again, without you constantly over me. I have asked my dad and [Ms O- the mother’s sister] to come be with us for a little while. It was my idea, they didn’t pressure me or force me to do this at all. I asked.
The father sent an email to the mother on 14 January and it is clear that he was envisaging a reconciliation between them and proposed the assistance of various church members. In particular, he proposed a meeting at the church the following day. The mother replied by return email indicating that she and the children were “fine and safe” that she was not interested in a meeting.
The father commenced proceedings the following day, 15 January 2013.
The parties continued to communicate via email from time to time over the ensuring the months, but the mother did not provide her address or other contact details to the father.
In her Response filed 31 January 2013, the mother sought a final order in terms that “the mother and children may permanently relocate and change residence to the United States of America” and that she have sole parental responsibility for the children. She also sought sole parental responsibility for the children on an interim basis and did not propose any orders that the children spend time with their father on either an interim or final basis.
The father subsequently amended his application and sought orders that the children live with him and spend defined time with the mother.
In her Amended Response of 23 May 2013, the mother sought final orders including that she have sole parental responsibility for the children, that she be permitted to relocate the permanent residence of the children to State F in the United States and that the father communicate with the children by letter and email at reasonable frequency. On an interim basis she sought orders that she have liberty to travel overseas to the United States with the children for five weeks. She did not seek orders that the children spend time with the father on an interim or final basis.
On 27 May 2013 a judge in the Federal Circuit Court declined to make interim orders that the parties had agreed to, and the matter was transferred to this Court in June 2013.
On 3 June 2013, the father through his solicitor sought the mother’s consent to an arrangement for him to spend time with the children at a contact centre. In response, the mother’s legal representative wrote the following:
We are instructed that our client does not consent to any contact for your client with the children before the hearing on the 13th June, or at all.
Our client’s position is that your client and his family live in what is effectively a religious cult.
During the time our client resided with your client she was continually abused psychologically and emotionally by your client, his parents and his extended family. The children were regularly exposed to this abuse.
Our client is a good mother who is able to provide for the physical, mental and emotional wellbeing of the children, however, our client’s emotional wellbeing and her ability to care for the children is adversely affected by the thought of your client exercising any contact.
Our client is not able to contemplate that your client or his family again have the opportunity to inculcate the children with their toxic views.
Our client will do whatever is required to prevent your client and his family having any contact with the children.
We put you on notice that our client will be seeking to relocate to [State F] in the USA where she has the support of family and friends and where the children will be able to grow up in a loving environment rather than in a destructive cult in which your client and his family reside.
Our client’s greatest fear is that her children will again be exposed to you client and his family’s way of thinking, that they will be indoctrinated with the views of your client and his family and will ultimately treat others in the manner in which you (sic) client and his family are alleged to have treated our client and the children.
Travel to the United States and question of risk
On 20 August 2013, each of the competing applications for interim orders were heard. The following day I delivered a judgment and made orders for the father to spend supervised time with the children at a contact centre and made an order restraining the parties from removing or attempting to remove the children from Australia. In that judgment I expressed the following view:[4]
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.
[4]Holinski & Holinski [2013] FamCA 629 at [56]
Although the mother subsequently changed her position and for some time has sought orders only that she be permitted to travel with the children and says she no longer has an intention to relocate to the United States, it is essentially the father’s position that little has changed since August 2013. It is the father’s position that the steps taken by the mother and her extended family from around March 2010 until August 2013, her connection to the United States and the influence of the maternal grandparents indicate that there is a risk that the mother would not comply with any orders of the Court requiring her to return the children if she were allowed to take the children for a holiday to the United States.
So far as the contention of ongoing risk of the mother retaining the children in the United States is concerned, the father says that he first became aware that the mother was not pursuing an application to relocate when he read the Family report which was released on 25 March 2014. He says that a short time later, on 29 March 2014 he had the following conversation with L:
[L]: “I’m going on a plane.”
[Father]: “Where are you going?”
[L]: “To see [Ms O] and [Ms R].”
([Ms O] and [Ms R] are [Ms Holinski’s] sisters who live in the United States of America.)
[Father]: “When are you going?”
[L]: “Winter. I won’t be coming back to see you.”
[Father]: “What do you mean?”
[L]: “I will not come to our home.”
[Father]: “Who else is going?”
[L]: “Mummy and [N].”
The father also says that on Saturday 5 April 2014 when he delivered the children to the mother after them spending time with him the following conversation occurred:
[Mother]: “Time to go [L].”
[L]: “I don’t want to.”
[Mother]:“We need to get home.”
[L]: “I’m going to fly on a plane.”
[Mother]:“What do you mean?”
[L]: “Mum you tell daddy.”
[Mother]: “I don’t know what you’re talking about.”
[L]: “You said we were going on a plane to America to see [Ms O], [Ms R], Nonna and Poppa.”
[Mother]: “When are you going?”
[L]: “At winter and I’m not coming back.”
[Ms Holinski] then placed [L] in her motor vehicle.
[Father]: “Why are you telling lies to [L] for?”
[Mother]: “I haven’t said anything to him.”
[Father]: “He is being very specific with details. Someone must be telling him this”
I then approached [L] to say goodbye.
[L]: “I’m going to America.”
[Father]: “[L], you are not able to – who’s been telling you this?”
[L]: “Mummy.”
The father also says that he has made enquiries with the United States Department of State in relation to the obtaining of passports for children and annexes information from that Department’s website which indicates that US Passports can be obtained for children under the age of 16 by a person who has “sole custody”. His understanding of the legal position, is as I understand it, put forth as relevant to his concerns about the mother’s capacity to remove the children from Australia, rather than as evidence of the law.
The father maintained under cross-examination that there was a discussion about returning the United States permanently one week before the mother left. The father also maintained his concern that if the mother were permitted to take the children to the United States they would not come back. He said that his concern was based on his understanding that in some states in the United States the Hague Convention was not in place and that the mother could easily disappear with the boys. He said that nothing could allay his fears which were deep-seated. It was not put to the father that the conversations in which L talked about travelling to America in a plane in March and April 2014 did not occur, and the mother did not refer to those conversations in her affidavit.
In relation to the order the mother seeks allowing the children to travel, her position essentially is that she changed her intention and application to relocate to the United States some time ago and there is no risk that she will not return with the children should she be permitted to take them to the United States for a holiday.
In her affidavit the mother says that she “initially” withheld the children from their father as she believed “that if [Mr Holinski] and the [Holinskis] got hold of the children they would never give them back to me” and “that both [L] and [N] would be very scared and they needed [her]”.
The first incident the mother relates in her affidavit concerning conflict between her and the father over the issue of travel to the United States was in May 2012 when she says she asked the father if she and the children could visit the United States. She says that in this conversation the father told her that she could go back, that he was not keeping her in Australia, but she was not to take the boys.
The mother says that the only time she had an intention to move to the United States was in early January 2013. She said that she did wish to relocate at the time as she was scared of the father and his extended family. The mother maintains that she is still scared of them but the children are now settled in their home and she would like to visit her family in the United States with the children every year.
The mother does not address in her affidavit the conversations that the father says occurred in March and April 2014 when L spoke about travelling on a plane to the United States.
Under cross-examination the mother agreed that it was still her preference to live in the United States though she said she would be content to live in Australia.
Discussion
An assessment of the different versions on the issues of the father’s alleged family violence and findings are based to a large extent on an assessment of the credit of each of the parents and the witnesses who gave evidence on their behalf. In relation to the issue of the maternal extended family’s alleged interference in the parents’ relationship also there is some undisputed corroborative evidence such as the email sent by Mr M to the father.
Where the respective versions differ as to these two issues, I prefer the father’s version over the mother’s for the following reasons.
Firstly, in my view, although this is not determinative of itself, I take into account the timing of the mother’s allegations of violence and abuse. When the mother first left the family home with the children in January 2013 her principal concerns (which can be gleaned from the note she left the father and from their email exchange), appear to have been her distress and severe frustration at the father refusing to give consent for her to take the children out of Australia with her. While the mother characterises this as controlling conduct by the father and refers to being “a prisoner trapped in [her own home] by her own husband” and alleges that he was “constantly over [her]”[5] the complaints of control appear to be limited to this issue. In the first of the email messages from the mother she requests that the father sign the boys’ passport papers as a demonstration of the father’s love. Initial emails exchanged between the parties which are attached to their respective affidavits initially concern the passport applications and later emails deal in a civil manner with the children and their wellbeing.
[5]In Handwritten note left for husband.
On 15 January 2013 the father commenced these proceedings. At that stage the father sought location and recovery orders, orders that the children live with him and that the mother be restrained from removing the children from Australia. The father did not file a Notice of Abuse at this stage. The mother filed a Response on 31 January seeking to permanently relocate to the United States with the children on a final basis and other orders. In a Notice of Abuse (known at the time as a Form 4) filed on the same day the mother alleges of verbal abuse, one occasion when the father withheld L from her, the father “taking sides” with his family, harassment and stalking and attempts to deny the mother a relationship with her family (emphasis added). She did not make any of the more serious allegations set out in her affidavit such a sexual misconduct towards the child and sexual abuse of herself even though on her case they had occurred during the relationship.
After the father commenced proceedings, the parties initially entered into negotiations concerning their respective interim applications for the father to spend time with the children and for the mother to be permitted to travel with the children to the United States. There is no dispute between the parties that they reached agreement as to what they regarded as appropriate orders in late May 2013. In the terms of settlement document dated 27 May 2013 the parents consented to orders that the children live with their mother and spend unsupervised time with their father in an increasing regime of up to three hours on each occasion, twice per week, as well as telephone communication.
It was not until the Judge of the Federal Circuit Court declined to make those orders and the father sought the mother’s agreement to the children spending time with the children though correspondence with the mother’s lawyer that she made the general allegation through a letter from her solicitors that she was “continually abused psychologically and emotionally by [the father], his parents and his extended family [and the children] were regularly exposed to this abuse”. That letter dated 6 June 2013 from the mother’s solicitors went on to say that the mother “is not able to contemplate that [the father] or his family again have the opportunity to inculcate the children with their toxic views” and that “[the mother] will do whatever is required to prevent [the father] and his family from having any contact with the children”. It is also in this letter that the mother accuses the father and his family of living in a “destructive cult”.
There is no explanation given by the mother about why she was prepared to allow the children to have unsupervised contact with the father a short time prior to giving instructions to send such a letter. I infer from the undisputed fact that the parties exchanged civil emails between one another for some time and that they agreed that the children could have unsupervised time with the father pending determination of the interim issues that the mother initially did not have concerns about the children spending time with the father. It can also be inferred that there was some level of cooperation between the parties at that time because the mother continued to hope that the father may consent to the children travelling overseas or that she may be permitted to do so by court order. It can also be inferred that when the Judge was not prepared to make consent orders in late May 2013, the mother’s approach to the proceedings changed and she made the serious allegations that the father and his family live in a religious cult, that she had been abused by all of them for a number of years and the children were regularly exposed to the abuse. As is said in the letter she then decided to do “whatever is required to prevent [the father] and his family having any contact with the children”
Views of the children
The children were four and two when observed with their parents by the family consultant and are too young to have expressed a view concerning the proposed parenting orders.
Nature of the children’s relationship with each parent and other significant persons
The opinion of the family consultant which is consistent with the uncontested evidence is that the children have established attachment relationships with each of their parents.
I also accept the family consultant’s evidence that the children appear to have established relationships with both of the paternal grandparents. Given the amount of time the maternal grandparents and maternal aunts have spent with the children I am also satisfied that they have established relationships with the children.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Prior to separation each of the parents was actively involved in long term decision making with respect to the children and spent time and communicated with the children on a daily basis.
The mother’s unilateral decision to take the children into her care on 11 January 2013 and refusing to provide the father with details of their whereabouts meant that the mother alone make all decisions and the father was denied the opportunity of participating in decision making.
The father took immediate steps to make application to locate and communicate with the children but there was a period of eight months in which he did not spend time with the children. Since this time the father had resumed making decisions with respect to the children.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The father pays child support for the children as assessed by the Child Support Agency.
Likely effect of change in the children’s circumstances as a result of the orders
The orders proposed by each of the parties will result in a change in the children’s circumstances in that they will spend more time with their father and be separated from their mother for a greater period of time.
So far as the father’s proposal is concerned, his orders involve the children spending at the very least five nights per fortnight in the his home or at the most nine nights per fortnight with him. It is submitted by the father that the children will benefit from being exposed more significantly to both parents and will result in them spending greater time with the parent who has greater parental capacity.
The opinion of the family consultant, which was not challenged in this regard, is that it is likely that the children would experience a significant separation from or disruption to their relationship with either parent as distressing. However, neither parent proposes parenting orders which involve a significant separation from the other parent.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There is no practical difficulty or expense in spending time with the non-residential parent in either parent’s proposal.
Capacity of each parent and any other person to provide for the children’s needs
It is the opinion of the family consultant that the mother has demonstrated the ongoing capacity to meet the day to day needs of the children whereas the father’s capacity appears to be largely untested. The father has to date only been able to parent the children for a 24 hour period and a few hours per week.
It was also noted by the family consultant that due to the nature of the father’s employment, he is likely to require the assistance of his extended family to meet the children’s day to day needs in the event that the children live with him. This is relevant to the father’s proposed orders that the children live at least five nights per fortnight with him and assumes greater significance if the children were to live nine nights per fortnight with him. While the extended paternal family are clearly close to and supportive of the father, their capacity to assist him in the event the children were to live primarily with him is not addressed in their affidavits or explored under cross-examination.
It is submitted on behalf of the father that he is the only parent who has the capacity to provide for the children’s educational needs because he is the only parent who has had any experience with public education and all the matters associated with it, such as meeting teachers and attending parent/teacher nights with which the mother has had no experience. There is no doubt, even on the mother’s case, that she was reluctant to enrol the children in public education. There is also no doubt that the mother’s preference is for home schooling and although the father preferred that the children be publicly educated when the marriage was intact he agreed with this proposal at the time. In circumstances where the mother has consented to an order that the children attend a local public school and she be restrained from changing that enrolment and the father does not seek a similar order with respect to high school education, in my view this is not a matter of great significance. Although the mother is clearly not as familiar with public education as the father and may not philosophically agree with it, there is nothing to suggest that she does not have the capacity to become involved as parents do, in the life of the school community.
It is a central plank in the father’s argument that the mother has significant shortcomings in her parental capacity, as he contends many of her child rearing practices are consistent with the book “To Train Up A Child”, which was tendered in evidence, the contents of which are described in the father’s submissions as “horrific”. It is submitted on behalf of the father that the particularly concerning aspects of that book and the mother’s child rearing practises are the proposition that it is necessary and an integral part of the development of the child for a parent to strike and hit the child, that home schooling of children is to be preferred and that children ought not be vaccinated. However, each of these concerns have been addressed in specific orders to which the mother has consented. I accept the submission on behalf of the mother that there is no evidence upon which I could be satisfied that the mother is likely to disobey these orders.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
L who is almost six and N who will be four in a few months were very young when their parents separated. The Christian religion and the K denomination in particular was a central feature of each of the parents own lives when they were growing up and it was through faith based activities that the parents met. The children have been raised within this tradition and it is likewise a central feature of their life as they attend many faith based activities with each of their parents. The parents initially attended a particular church from which the father’s family have now been excluded. The mother has returned with the children to attend that church.
The father is of Polish and British heritage and was raised in Australia. Traditions or practises associated with his cultural heritage are available to the children through the time they spend with the father and his extended family. The father attended public schools and participated in extra-curricular activities such as sport in the broader community and wishes for his sons to do so.
The mother was raised in the United States in a close-knit community in which most of her friends and activities were associated with a church led by her father. The mother wishes for her children to participate in her broader American culture and the particular cultural milieu of her family and church, and submits that the only way this can occur is for the children to be able to travel with her to the United States as she proposes. Whilst there is significant force to this argument, it must be weighed against the risk which the father contends that the mother will not return the children to Australia if this is permitted.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
There is no doubt that each of the parents loves and is devoted to the children, each is motivated by genuine care for them and wants the best possible outcomes for them.
At times each of the parents has acted in a way that has shown a poor attitude towards the responsibilities of parenthood. In particular, the mother’s withholding of the children from their father for a period of eight months showed a serious disregard for the children’s rights to a relationship with their father and her responsibility as a parent to promote it. The father’s insistence through the orders he proposes that the children attend school at a location half way between the two parents’ homes rather than closest to the home where the children are primarily living, in my view is more consistent with this own needs than being child-focussed.
Family violence
It is a central feature of the mother’s case that the father has been perpetrator of family violence to which the children have been exposed. She sets out in her affidavit a history of verbal abuse, intimidation and controlling behaviour which she says was perpetrated by the father during the relationship but does not allege that he was physically violent. The mother gave a similar account to the family consultant. For the reasons given, I am not satisfied about her account and do not find that he perpetrated family violence as alleged.
Although the father has maintained from the outset that there have been a number of incidents in which the mother has been violent towards him which were included in his Notice of Family Violence, he does not rely upon these incidents as being of significance in the orders he seeks. The mother admits her conduct in this regard in her affidavit and to the family consultant but says that such conduct occurred in the context to her responding to the father’s abuse and intimidation. Although police have attended some incidents at the request of the parties on occasions, neither party has been charged and no apprehended violence orders have been made.
I accept the opinion of the family consultant in relation to family violence which he maintained under cross examination as follows:-
The history available to this assessment was suggestive of poorly managed conflict and situational violence between [Ms Holinski] and [Mr Holinski] rather than supporting of concerns that either parent had engaged in patterns of behaviour designed to engender fear or significant physical harm for the other. The family consultant was concerned however, that the few reported incidents involving physical violence occurred in the presence of the children and seemed to be disputes over the children.
Overall, the family consultant identified the most significant issue for the children as that of parental conflict, as opposed to violence. I also accept the family consultant’s opinion that “the involvement of members of each extended family appeared to have exacerbated rather than ameliorated the issues of conflict between the parents”.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
This is a consideration which in the submission of the mother and ICL should be given significant weight with respect to an order relating to parental responsibility.
It is submitted on behalf of the mother that an order for shared parental responsibility is the order “most likely to lead to the institution to further proceedings”.
This consideration is in a different form to the other best interest considerations and to previous iterations under prior legislation, in that it is in neutral terms. In other words there is no presumption that further proceedings are undesirable. While there may be many cases where there is no doubt that the children’s bests interests would be promoted by avoiding further litigation the Court may in appropriate circumstances not consider that it is in a child’s best interests to make an order that would least likely lead to the institution of further proceedings.
As noted earlier, the Objects of the part of the Act dealing with parenting are to ensure that the best interests of children are met in various ways including 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. The Principles underlying these Objects include that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about the future parenting of their children. It is clearly a serious step for any court to exclude a parent from the exercise of parental responsibility. Having regard to the Objects and Principals and the presumption in favour of joint parental responsibility, I am not of the view that making an order least likely to lead to the institution of further proceedings is necessarily a weighty factor, especially where the application of all of the other relevant best interest considerations may indicate that the best interests of the children would be met by the parents equally sharing parental responsibility.
Any other relevant fact or circumstance
The father submits that a relevant matter particularly in circumstances where the mother is seeking sole parental responsibility is that although the interim orders permit the children to spend more time with the father if agreed to by the parents, the mother has not agreed to any additional time outside the orders. The father has however, on a number of occasions particularly in late 2014 allowed the mother to spend some time with the children during the limited time he spends with them under the orders in order to foster the children’s relationship with their mother.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. 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 long-term issues of the children must be made jointly, unless the Court provides otherwise.
[7] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 26 Fam LR 422.
The mother seeks orders that she have “sole parental responsibility” for the children and the ICL supports this proposal. Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which by law parents have in relation to children and that the father would have none of the duties, powers, responsibilities and authority with respect to the children. The father proposes that he have sole parental responsibility with respect to the children’s religious upbringing and medical procedures (which in his opinion are required). He also seeks sole parental responsibility with respect to pre-school and primary school education in the event that the mother does not consent to his proposed order with respect to these matters. Accordingly this would mean that he alone would have all the duties, powers, responsibilities and authority with respect to these matters.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides 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. 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 (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
It is submitted on behalf of the mother that the presumption does not apply as the father has engaged in family violence and is rebutted as the Court should be satisfied that it would not be in the best interests for the parents to have equal shared parental responsibility for the children. The ICL makes similar submissions though does not make submissions about whether that the Court should be satisfied that family violence has occurred and relies in the main on a submission that the presumption is rebutted.
For the reasons given, I am not satisfied that the father has engaged in family violence and I approach the matter on the basis of considering whether the presumption is rebutted. It is the father’s case that the presumption is rebutted with respect to religion and medical procedures which may be required in his opinion. This submission depends upon a finding that the mother’s position with respect to these matters is extreme and potentially harmful to the children which for the reasons given are findings I have not made.
So far as religion is concerned, it is also noted that the father seeks a restraint upon the mother attending the sermons preached by a particular pastor or attending the K church. The issue of a child’s “religious upbringing” falls within the definition of a major long-term issue under the Act. In this matter the parents have reached agreement on the children’s religious upbringing in the sense that they have agreed that the children are to be raised as Christians within the K tradition. There is no prospect of this position changing over time. The particular matter of religion at issue in these proceedings relates to the father’s preference for the children to attend the church he regularly attends and his contention that the K Church which the mother attends promotes extremist views. The K Church is the mother’s regular church. Having regard to the agreement reached by the parents about religious upbringing in the broad sense, I am of the view that the issue of specific church attendance when in the care of each of the parents is not a major long-term issue. I am also unable to make a determination that it is in the best interests of the children to attend one church rather than another. However, given the centrality of church attendance and faith based activities in the lives of the parents, I am of the view that it is in the best interests for the children to attend the church of the parent with whom they are living at the time. For these reasons I am not satisfied that it is in the best interest of the children for sole parental responsibility with respect to religious upbringing to be given to the father or for the order containing the restraint sought by him to be made.
So far as sole parental responsibility in respect of medical procedures (which in the opinion of the father are required) is concerned, I am of the view that there would be real difficulties with the practical operation of such an order as proposed and in any event such an order is not required in the best interests of the children.
There are a number of orders made concerning medical treatment and the particular areas of concern raised by the father being chiropractic and immunisation are specifically addressed. Other evidence before the Court indicates that the mother has appropriately addressed other medical conditions that have arisen from time to time including referral to specialist medical practitioners and having the children undergo medical procedures which appear appropriate on medical advice. In my view for these reasons the order with respect to sole parental responsibility relating to specific matters sought by the father is not consistent with the children’s best interests.
In any event, both this application and the mother’s application for sole parental responsibility must be considered in the context of the presumption and a consideration whether the presumption is rebutted by evidence such that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them.
A number of relevant matters arise in a consideration of the rebuttal of the presumption, in addition to a consideration of the best interest factors. In particular I take into account that the effect of a parenting order that provides for shared parental responsibility pursuant to s 65DAC(2) is that decisions about major long-term issues are required to be made jointly and require the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision about that issue.
The ICL and mother both submit that the Court must have particular regard to the intractable conflict between the parties and the unlikelihood that they would be capable of consulting one another, making a genuine effort to come to a joint decision and making a joint decision about such issues.
The tenor of the family consultant’s evidence seems to be that intractable conflict is more relevant to living arrangements than to the issue of parental responsibility. However, the family consultant did express the view that allocating sole parental responsibility to the parent with whom the children primarily live “could be considered as a means of protecting the children from conflict, particularly in instances where conflict prevents the children from accessing preventative medical or health intervention”. In this case it is not suggested that the parents’ inability to reach agreement has prevented the children accessing medical or health intervention but it is to be remembered that because they were unable to reach agreement in relation to pre-school, L commenced pre-school at an age when he could have been commencing school.
The family consultant also added his opinion that “an order that provided for the parents to have equal shared parental responsibility may, however prevent decisions being made for the children based on reasons other than their best interests.” While he made an overall recommendation for the children to live with the mother, he recommended that orders with respect to parental responsibility of the children be subject to judicial determination.
It has also been submitted on behalf of the ICL and the mother that an order for equal shared parental responsibility is likely to lead to the institution of further proceedings. In this regard it is noted that proceedings with respect to two issues about which the parents could not agree has already occurred. The parents were unable to agree about a changeover location until an application was brought before the Court and could not agree about L’s pre-school and the Court had to make a determination in relation to that issue.
However, the requirement to make joint decisions only relates to major long-term issues as defined in the Act.
Agreement has already been reached about many of the major long-term issues. The parents have each agreed to orders that the children be enrolled in pre-school and public primary schools and have had long standing agreement that the children be raised as Christians in the K tradition. Many issues in relation to health are also the subject to specific orders and it is unlikely that issues such as the change in the children’s name would arise in the future or that the parents could not reach an agreement about that matter.
It is also hoped that the parents have learnt some salutary lessons in the course of these proceedings and the cost involved in bringing specific issues back before the Court may also act as a deterrent. The family consultant in his report has also given the parents advice concerning specialist post-separation parenting services the parents can access. In my view the mother has already shown signs of significance compromise in consenting to orders in relation to immunisation, public education and refraining from physical discipline. It is also to be remembered that the level of conflict that is present during the currency of proceedings may not persist after final orders are made.
I also take into account the obvious intelligence of the parents and extent of genuine concern they have in relation to their children.
Ultimately having regard to each of these matters and in particular considering the Principles underlying the Act and the serious nature of any order which would remove a parent from all which is involved in the exercise of parental responsibility, I am not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them and accordingly the presumption is not rebutted.
If order made for equal shared parental responsibility:
As I will make an order that the parents have equal shared parental responsibility for the children, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in the best interests of the children and whether such an order is reasonably practicable. If it is considered that an order providing that the children spend time with each of the parents would either not be in the best interests of the children or not be reasonably practicable, I must then consider under s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and be reasonably practicable.
In this matter the father in any event seeks orders that the children spend equal time with each of the parents or in the alternative that they spend substantial and significant time with each of the parents. As the balance of the parenting orders are governed by a consideration of orders which are in the best interests of the children I shall deal with that matter first.
Having regard to my earlier discussion, I am satisfied that the children will receive a benefit from having a meaningful relationship with both parents and will be protected from physical or psychological harm as envisaged under that primary consideration under either of the parents proposals. The nature of the children’s relationship with each of their parents and other significant people would also support either of the suite of orders being made. The likely effect of a change in the children’s circumstances that may arise from the father’s proposal, in particular that the children spend nine days each fortnight in his care during school time, is a significant factor. This is particularly so as the children have spent all of their lives to date in the primary care of their mother. Likewise, the capacity of each parent to provide for the children’s needs is a significant matter. While there is nothing to indicate that the father has shortcomings in his parental capacity, he is untested and will need significant assistance on a practical level from his parents whereas the mother has proven capacity to provide for the children’s needs. A very important factor in this case is the level of conflict to which the children have been exposed. While this conflict cannot in my view be characterised as family violence, it is nonetheless associated with poorer outcomes for children for the reasons given by the family consultant. The family consultant was of the opinion that the proposals made by the mother (which are very similar to those currently being considered) are appropriate to the developmental needs of the children. The family consultant was of the opinion that parenting arrangements that involve significant and substantial time or equal time with each parent would not be recommended because of the apparently high level of conflict between the parents. Having regard to all of the considerations as discussed above and giving particular consideration to the equal time proposal and substantial and significant time proposal as required by the Act, I am not of the view that either such proposal is in the best interests of the children.
Order permitting the mother to travel to the United States
The mother seeks an order permitting her to remove the children from Australia for a period of up to 28 days in the Christmas school holidays in alternate years and in the other year for one period of up to 21 days to coincide with the school holiday period following the conclusion of either Term 1, 2 or 3. She seeks associated orders requiring her to provide the father with 28 days written notice of her intention to travel overseas, except in a case of an emergency and requiring her to provide to the father a written itinerary, ticket and associated details at least 14 days prior to the date of the departure. In her final proposed minute the mother also sets out conditions in relation to these orders that she do all acts necessary to register the orders in State F together with a simultaneous request for enforcement under State F custody legislation and that she deposit $20,000 by way of security for the children’s return.
Although there was some limited cross-examination about depositing a sum as security and registering the orders there was no evidence in relation to the operation of State F Uniform Child Custody Jurisdiction and Enforcement Act or the relationship between this legislation and the Child Protection Convention.
The father contends that there are risks associated with the mother’s orders seeking general permission to travel to the United States, and the ICL likewise does not support orders in this general form.
It is submitted on behalf of the mother that there is no evidence to support a finding that the mother will not return to Australia if she were permitted to travel overseas.
For the reasons previously given, I am of the view that there are reasonable grounds for the father to fear that the mother may not return the children given the mother’s position expressed in her solicitor’s letter of 6 June 2013, Mr M’s covert enquiries about removing the mother and L from Australia without the father’s consent, and as it can be inferred from L’s conversations with his father in March and April 2014 that there were ongoing discussions within the maternal household at the time about the children travelling to America on a plane and not coming back. Given the mother’s connection with the United States, lack of connection with Australia, preference to live in the United States and my findings about the influence of the maternal family, in my view a real risk does arise that the mother may not return the children to Australia.
The issue then arises as to whether the security proposed to be deposited by the mother in the sum of $20,000 together with an order requiring her to register the orders under State F Child Custody Legislation would ameliorate such a risk. There is no evidence in relation to the operation of the State F law or the relationship between this legislation and the Child Protection Convention. Further, while it may be possible to register the orders of this Court in State F, there is no evidence concerning the effect such registration would have with respect to any other jurisdiction in the United States. There is in my view insufficient evidence about the issue of registration of these orders for me to be satisfied that the risk is ameliorated in this case. Similarly, given the father’s evidence concerning his level his concern which in my view is not unreasonable, in my view the sum of $20,000 proposed to be deposited does not sufficiently ameliorate the risk in this matter to make such general orders.
The ICL’s order with respect to requiring the parents to take steps for the children to be issued with passports in the event of the children wishing to travel overseas is too broad particularly with reference to “a cultural event” for me to be satisfied that it is appropriate to make such an order.
Conclusion
Each of the orders consented to by the parties have been made substantially in the terms proposed by the ICL with minor amendments for the reasons given. I have also explained why in my view it is not in the best interests of the children to make specific orders sought by each of the parents relating to matters such as overseas travel, a restraint on attending a particular church and the like. So far as the balance of the matters are concerned for the reasons given I am of the view that it is in the best interests of the children for the parents to equally share parental responsibility for the children and for the orders with respect to their living arrangements and the time they spend with their parents to be made as largely proposed by the ICL. There are some specific orders such as the father’s proposal for Christmas school holidays and the airport watch list order which in my view are in the best interests of the children.
I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 January 2016.
Legal Associate:
Date: 22 January 2016.
(a) An assault, including a sexual assault of the child;
…
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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Procedural Fairness
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