ILAN & ILAN

[2015] FamCA 1041

FAMILY COURT OF AUSTRALIA

ILAN & ILAN [2015] FamCA 1041

FAMILY LAW – CHILDREN – Interim Proceedings – Where father proposes to travel overseas to Country F with child for a period of six weeks – Where mother opposes the father’s application – Mutual injunctive orders preventing parents from removing the child from Australia without the permission of the other party in writing or Order of a Court of competent jurisdiction

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – With whom a child spends time – Whether there should be an order for equal shared parental responsibility – Orders that child live with the mother and spend time with the father and communicate with the father - Mutual denigration orders

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Orders made appointing single expert valuer

Family Law Act 1975 (Cth)

APPLICANT: Ms Ilan

RESPONDENT: Mr Ilan

FILE NUMBER: LNC 159 of 2015

DATE DELIVERED: 9 November 2015

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 9 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Welch

SOLICITOR FOR THE APPLICANT: Philip Welch

COUNSEL FOR THE RESPONDENT: Ms Gibson

SOLICITOR FOR THE RESPONDENT: Charmaine Gibson

Orders

AS TO PROPERTY

1. BY CONSENT the parties jointly instruct Valuers B to value the wife’s property at C Street, Suburb D, City E, Country F with each party to pay half the cost of such valuation and the wife to take all reasonable steps necessary to ensure the valuer access to the said property so as to carry out the valuation and that such valuer to be treated as a single expert for the purpose of the valuation.

AS TO PARENTING

UNTIL FURTHER ORDER

1. G born in 2010 (‘the child’) live with Ms Ilan (‘the mother’).

2. The child live with Mr Ilan (‘the father’) when the father is in Tasmania as follows:-

   (a)During Tasmanian school terms:-

   (i)     in week one from Friday after school or 3:00pm if a non-school day until the commencement of school Monday or 9:00am if a non-school day; and

   (ii)    in week two from Thursday after school or 3:00pm if a non-school day until Friday at the commencement of school or 9:00am if a non-school day;

   (b)On Father’s Day (if the child is not otherwise in the care of the father) from the Saturday preceding Father’s Day at 4:00pm until the commencement of school Monday or 9:00am if a non-school day; and

   (c)During school holiday periods for the first week of each of the mid term school holidays periods commencing after school on Friday and concluding at 12 noon the following Saturday week, the the child live with the mother from that Saturday week until the commencement of school the following Monday week or Tuesday week if the Monday is a pupil free day. 

   (d)On Christmas Day from 2.00pm until 4.00pm Boxing Day.

   (e)For the Tasmania Christmas/New Year school holidays commencing December 2015 from Friday 1 December 2015 in accordance with the arrangements, as set out in order 3(a) above.

   (f)On the child’s birthday if the birthday falls on a weekend or non-school day for half the day at such times as agreed between the parties but failing agreement from 9:00am until 1:00pm if the child is not otherwise in the care of the Father;

   (g)On the child’s birthday if the birthday falls on a school day from 3:00pm until 6:00pm if the child is not otherwise in the care of the father;

   (h)The time the child lives with the father will conclude at 4.00pm Saturday before Mother’s Day if the child was to otherwise be with the mother on Mother’s Day; and

   (i)Such further or alternate times as agreed in writing between the parties.

3. For the purposes of handover, the location for handover shall be the child’s school if a school day and in the event of a non-school day the location for handover shall be the mother’s residence at the commencement of the father’s time with the child and the father’s residence at the conclusion of the father’s time with the child.

4. The child shall have telephone communication with the father when he is interstate or overseas each Tuesday, Thursday and Sunday at 6:30pm Eastern Standard Time with the father to initiate the telephone call to the mother’s mobile telephone.

5. Neither party denigrate the other parent to or in the presence or hearing of the child or permit any third party to do likewise.

6. Neither parent will discuss parenting issues concerning the child, the Court proceedings between the parties or any Court Orders with or in the presence or hearing of the child nor permit any third party to do likewise.

7. The parties will communicate issues of concern relating to the child via email save and except for in the event of an emergency.

8. The parties be restrained from removing the child from Australia without the written permission of the other party or by Order of a Court of competent jurisdiction.

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

10. Any application for costs ought to be made in accordance with the Rules under the Family Law Act 1975 (Cth).

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ilan and Ilan 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 LAUNCESTON

FILE NUMBER: LNC 159 of 2015

Ms Ilan

Applicant

And

Mr Ilan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Ms Ilan (‘the mother’) and Mr Ilan (‘the father’) relating to their five year old daughter, G (‘the child’).  The issues fall into three primary areas:-

   (1)whether the father can take the child or travel with the child to Country F for six weeks over the forthcoming Summer school holiday period in Tasmania; 

   (2)whether the child should spend four nights per fortnight with the father during school term and the remainder of the nights with the mother, or whether that time should be equal; and

   (3)the question of parental responsibility. 

2. Each of the parties has filed some material.  The mother relied upon her amended application initiating proceedings which was deficient in one area in that it did not include her claim for sole parental responsibility, although that was set out in her affidavit.  She also relied upon her affidavits filed 16 July 2015 and 6 November 2015.  The father relied upon his amended response filed 28 October 2015 and his affidavit filed the same day. 

3. The background to this matter is that the father is aged 66, having retired, it seems, in about April 2013 and in receipt of an Australian aged pension.  He was born in Country H and has lived in Australia since 1980.  He has been an Australian citizen since 1983. 

4. The mother is aged 47.  She was born in Country F and moved to Australia in 2007 and, since that time, has become an Australian citizen.  She has an elder child from another relationship, J, who is 19 and lives and studies in Tasmania.  The mother works part time and receives some parenting payments.  The evidence is she works three nights per week. 

5. These are people of modest means.  The child is enrolled in kindergarten at Scotch Oakburn College.  The background in terms of the place of habitual residence of this child is almost something that a law professor would probably use for an exam question.  The child was born in Tasmania but has travelled, as I understand it, to Country F for a few months each year.  Probably that would mean that the child’s habitual residence was Australia.  After the father retired in April 2013, the family agreed to move and live permanently in Country F and, in fact, moved to Country F.  That may well have changed or may not have changed the child’s place of habitual residence.  Some time in 2014, the child lived in Country F and spent about a month with the parents travelling in Country H.  The child came back to Australia with the mother later in the year and the father accepted that the child could remain in Australia. 

6. The child’s place of habitual residence is, as I have said, as confusing as it can be.  In addition, there are proceedings commenced in Australia, initially for property and subsequently for parenting orders.  Before the mother commenced the parenting aspect of her Australian proceedings, the father commenced, and apparently is pursuing, proceedings for parenting orders in Country F.  There is no evidence before me as to the effect of those Thai proceedings.  I do not know at this stage whether Country F is a signatory to the Child Protection Convention, although I am told, and I accept, from competent counsel, that both Country F and Country H are signatories to the Hague Convention on the abduction of children. 

7. The breakdown between the parties has been acrimonious and was marked by violence.  The mother asserts there was violence committed upon her by the father in 2012 and 2014.  The father denies the violence by him and says that if there was violence, it was violence to him by the mother.  The mother says that the father is controlling; the father denies that assertion.  In any event, violence in this case does not raise to a level which causes overt, concern bearing in mind that the mother seeks orders that the father spends unsupervised time with the child and the father seeks orders that the child lives with the mother for a significant period of time.  So, from the perspective of each of the parties, it seems that they are of the view that the violence was situational rather than chronic and I accept that as one of the bases for making the decision I am about to make. 

8. There are issues between the parties as to the circumstances and the timing of their relationship breakdown.  What is not in dispute is that the parties returned to Australia in the first half of 2014 after being overseas a few months.  There was some unhappiness between them shortly before October 2014, and the father left Australia and remained overseas for about three months from 21 October 2014 to about 22 January 2015. 

9. It also seems that the father went overseas again about three months later from 21 April 2015 to 21 June 2015, a period of about two months.  There is also no issue that the father went overseas from about 20 August 2015 to about 14 October 2015, a period of about two months.  It is clear that in the last 12 months the father has been overseas about seven months.

10. It is also not in issue that the parties entered into a parenting arrangement shortly before the father went overseas in October 2014.  That agreement provided that the child live six days per fortnight in the father’s home, and eight days a fortnight in the mother’s home.  There are issues as to whether that was pressured unreasonably upon the father or not. 

11. It is also clear that when the father came back, he insisted, or the mother accepted, or a combination of both, that the child spend equal time with her parents.  The mother’s case is that this was forced upon her.  The father’s case is that that was what the parties agreed.

12. The mother asserts that the father is dominating and dominant, and that he has little respect for women, and that he has a poor relationship with J[1].  The father disputes that he is dominant.  He disputes that he demeans women, and says that he has, or at least had, a fine relationship with J. 

    [1] The mother’s daughter from a previous relationship.

13. It is not in issue that the parties have, from time to time, collected the child early from school.  There is some evidence that the child did not go to school, at least in the care of the father on a number of occasions, which is indicative of the dispute trickling down and impacting on the child. 

14. The mother asserts that the father is engaging the child in the conflict. The mother says that the child is complaining to the mother that the mother is preventing her from travelling to Country F.  The mother asserts that the father has no family in Country F, and has no relationship or a poor relationship with her family.  The father says that was where he intended to live. 

15. During the course of submissions I raised with the parties what should happen over the mid-year school holiday periods.  I was told it should be on equal time.  And I intend to make that order as an interim order. 

16. I asked what should happen over Christmas, and I was told that the father would be travelling to Country F for about six weeks over the Christmas period irrespective of the outcome of these proceedings.  However, his counsel made it clear that the father expected, and hoped, that the child would travel with him over that period of time.  It is, albeit apparently grudgingly, conceded that the child has a close relationship with each parent. 

17. The mother asserts that she is the primary carer.  The father disputes that and says that he was a significant, if not primary, carer given his retirement in April 2013.  It is clear that the mother has been the primary carer of the child over the last 12 months because she has had the care of the child for seven of those 12 months and up to 50 per cent of the time in the other months. 

18. I have considered the question under section 60CC(2)(b) about violence, abuse or neglect.  It is clear that each of the parties regard the other as safe to care for the child, although each of the parties has concerns about the frankness, honesty and veracity of the other party, which comes out of the affidavits in clear form. 

19. I do not give the child’s views any significant weight, bearing in mind that the child is only five and is no doubt struggling with the breakdown of her parents’ marriage. 

20. I am satisfied that the child has a close and loving relationship with each of her parents and a close and loving relationship with her sister, J. 

21. Each of the parties has, in their own way, tried to make decisions about the child.  And at times that decision making has failed because each of them has particular views as to where the child should live and how the child should manage.  But the mother has primarily made the decisions about the child this year when the father was away. 

22. In terms of the extent of the ability to maintain the child, I make no formal findings in that respect except to note that the mother has taken on part-time employment to meet school fees and ought not to be criticised for that.  I am concerned of the effect of any changes in the child’s circumstances if she returns to Country F.  I am concerned about it in this respect: there are proceedings Country F and I do not know what the consequences of those proceedings are.  I do not know if they will impact on the efficacy of the Hague Abduction Convention.  The father is still pursuing those proceedings, it seems to me. 

23. I am concerned that if I make an order that the child be permitted to return to Country F over the Christmas school holiday period for that six weeks that it may be that the child has not been permitted to return and these proceedings would need to be resolved in Country F rather than here.  Given the history of the matter so far, there is no basis upon this Court not having jurisdiction and no reason why it ought not to exercise that jurisdiction. 

24. I am concerned that if the child goes to Country F, there may be practical difficulties and expense in terms of having to deal with those aspects.  I make no criticism of the capacity of either of the children’s parents to care for the child because each says the other is able to do so.  The mother, as I said, has been the primary carer of the child for the last 12 months, although I make no criticism of the father given the arrangements that the parties had made some six or eight months before October of last year. 

25. I have commented on the violence earlier in these reasons and I reflect upon that again now.  Irrespective of what orders this Court makes, there will need to be a final hearing at some stage, probably towards the middle or end of next year.  By that time hopefully a family report will be in place.  Therefore, in terms of the child travelling to Country F this year, I will decline to make that order and reject the application of the father in that respect. 

26. In terms of question of parental responsibility, I see no reason why there ought not to be an order at this stage for equal shared parental responsibility.  If major issues arise which are not resolved then the parties will need to come back to Court and that can be determined at that time.  Accordingly, I will be making an order for equal shared parental responsibility. 

27. I do not, in the circumstances, propose to make an order for equal time given the factors to which I have referred to earlier and particularly having regard to the father’s significant times away and plans to have significant times away.  This child is entitled to some stability and as such, I will put in place orders which will promote stability, at least until the final hearing.  I have considered significant and substantial time and make an order in one form which meets that definition.  I had considered what ought to happen over the Christmas period.  The father is not here, but I will make some orders in the event that he changes his mind and is here over that period of time, as sought by the mother. 

28. In terms of telephone calls, the father has a close relationship with the child and it would seem to me that two telephone calls a week is on the very modest side and there ought to be an increase in terms of that, but it needs to be in a structured way so it can happen and can be enforced to happen. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 November 2015.

Associate:     G Doyle

Date:              9 November 2015