Jemir and Waters (No 2)

[2016] FamCA 511

FAMILY COURT OF AUSTRALIA

JEMIR & WATERS (NO 2) [2016] FamCA 511

FAMILY LAW – CHILDREN – final orders – where the mother lives in Australia and the father lives in the United States of America – where the mother and father have equal shared parental responsibility – where the child lives with the mother and spends time with and communicates with the father – where there is no challenge on behalf of the mother that this Court does not have jurisdiction to deal with matters concerning the child who is resident with the father in the United States of America and therefore the application in that regard is abandoned.

Family Law Act 1975 (Cth) s 60CC, 111CD, pt VII

APPLICANT: Ms Jemir

RESPONDENT: Mr Waters

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4271 of 2015

DATE DELIVERED: 20 June 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Resolve Divorce Lawyers

COUNSEL FOR THE RESPONDENT: Mr Culshaw

SOLICITOR FOR THE RESPONDENT: Culshaw Miller Divorce & Family Lawyers as agents for Nathan M Siedman

Orders

1. That the Initiating Application of the mother filed 16 November 2015 in so far as it relates to C be dismissed.

2. That the mother and the father have equal shared parental responsibility for the child B born … 2003.

3. The child live with the mother.

4. The father spend time and communicate with the child as follows in Australia or in the United States of America at his discretion:-

   a.      For a period of up to six weeks during the Australian summer school holiday period at dates as agreed between the parties;

   b.      For a period of up to four weeks during the United States’ midyear summer holiday period each year at times and dates to be agreed between the parties;

   c.      Such other times as may be agreed between the parties in writing.

5. That such time as provided for in paragraph 4 be subject to the condition that the mother is provided with four weeks written notice of the time intended to be spent including exact dates, times and location and a copy of the full itinerary of planned flights.

6. That the father communicate with the child and the mother facilitate such communication via Skype, telephone and email as may be appropriate and at all reasonable times.

7. The mother will facilitate the provision of letters, cards, gifts, photographs or other material which may from time to time be forwarded to the child by the father or by members of the father’s extended family.

8. The mother shall communicate with the father by email in relation to the child as to the following:-

   a.As to any significant milestones, achievements as soon as is reasonably practicable thereafter;

   b.No less than once each three month interval to provide the father with a general update as to the child’s day to day care, welfare and development, including but not limited to the provision of a recent photograph of the child and which may from time to time include details as to the social, extra-curricular, sporting or other activities the child may have engaged in;

   c.That so as to facilitate Skype, email, postal and telephone communication, the parties shall keep each other advised of their respective relevant and current:-

   i.Residential address;

   ii.Residential landline telephone numbers;

   iii.Mobile telephone numbers

   iv.Email addresses

   v.Email address for the children or each of them.

9. That as to the costs associated with facilitating the child’s time with the father pursuant to these orders:-

   a.      The father shall pay all of his costs of travel and where necessary any accommodation costs;

   b.      The father be responsible for arranging and booking the child’s travel arrangements and for paying for all of the costs of the child’s travel to his residence to commence his time with the child, including but not limited to all costs to purchase airfares and to pay taxes and all ancillary costs as required by the airline;

   c.      The father shall provide the mother with 14 days’ notice of any arrangements made for the child to travel and shall provide a copy of the relevant itinerary.

10. That the father be restrained and an injunction be granted restraining him from denigrating the mother in the presence of the child and from discussing these proceedings or the circumstances of the parties’ separation with her.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Jemir & Waters (No 2) 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 ADELAIDE

FILE NUMBER: ADC 4271 of 2015

Ms Jemir

Applicant

And

Mr Waters

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the parenting arrangements in respect of the children, B born in 2003 and C born in 2008. 

2. The proceedings were commenced by Ms Jemir (“the mother”), filing an Initiating Application on 16 November 2015.  In that application she sought final orders that she and Mr Waters (“the father”) have equal shared parental responsibility for the children.  In addition, she sought that the children live with her, but spend time with the father either in Australia or in the United States of America.  There are terms and conditions set out in the final orders sought which would regulate the arrangements in respect of the children spending time with their father and providing him with an ability to communicate with them. 

3. For his part, the father has remained silent until recent date when he filed a Response to the mother’s Initiating Application on 3 June 2016.  He seeks orders that the parties have equal shared parental responsibility for the children and that each of the parties are able to communicate with the children via electronic and social media.  In respect of the children, he seeks an order that they live with him, but that they spend time with and communicate with the mother either in Australia or in the United States of America, at her discretion for a period of six weeks during the children’s summer school holidays and at other times as may be agreed.

4. There appears to be some distinct similarity between the orders that the parties each seek, save and except that both the Initiating Application and the Response each seeks that both children live with the filing party.  The difficulty arises from the circumstances of the current arrangements in respect of the children.  B lives with the mother in Australia.  C lives with the father in the United States of America, but more particularly, in the state of California. 

5. The parties met in 1996 and married in 1998.  The parties lived both in Australia and in the United States of America.  In October 1998, the mother obtained residency to remain in the United States of America.  B was born in 2003 in D Town, and C was also born in D Town in 2008.  The parties separated in June 2012 and the mother moved to Australia with the children.  She obtained a divorce order in the Family Court of Western Australia on 3 May 2013.  In February 2014, it appears that the children became Australian citizens.  The mother remarried in 2014. 

6. The parties appear to have been on a reasonable relationship with each other and there seems to have been general agreement about arrangements for each of them to spend time and see the children.  In particular, in December of 2014, C sought to extend her time in the United States and stay with her father for an additional period.  It was anticipated, at least as far as the mother thought, that the child would return to Australia in June 2015.  B did not stay in America, but returned to her mother.  C did not return to Australia in June 2015 and various requests that the mother made for C to return were refused.  It was as a result of that refusal that the conflict between the parties was joined and the mother considered that initiating proceedings would be filed in this Court. 

7. At the same time, or at least soon thereafter, their mother made application under the 1980 Hague Convention seeking the return of C.  Those proceedings were heard and ultimately determined in the Superior Court of California in the County of Marin.  Notwithstanding the filing of proceedings in respect of both children in this Court, it was considered necessary that these proceedings be adjourned to await the outcome and resolution of the Hague Convention application.  On 4 March 2016, the court in California denied the application or petition for return of C to the Commonwealth of Australia.  Accordingly, the matter then comes back before the Court to determine what is now to occur. 

8. The matter was last before me on 10 June 2016. On that occasion I indicated to counsel that I had an initial view which was that on the basis that a court in the state of California had determined that C’s habitual place of residence was the United States of America, that as a result of the juxtaposition of that finding and the 1996 Convention, together with a consideration of the provisions of s 111CD of the Family Law Act 1975 (Cth) (“the Act”), unless one of the exceptions as set out in the Act applies, this Court did not have jurisdiction in respect of the child C. The proceedings were adjourned for a relatively short period of time so that each of the parties could consider their separate positions. They were difficult and distressing considerations for the parties.

9. As far as the mother was concerned, she had to consider whether she would pursue proceedings in the Californian court, either by way of parenting or, perhaps, by way of some further application under the 1996 Convention, seeking that the Californian court’s consent to or agree to transfer jurisdiction in respect of the child, C, and the parenting considerations that flow from her residence in the United States of America to this Court.  A further option of the mother was to bring parenting proceedings in the Californian court and seek, if successful, an order that the child relocate from the United States of America to Australia.  A third option is, obviously, for the mother to do nothing.  The last two options are matters that would not impact upon the determination of whether this Court has jurisdiction in respect of matters relating to C.  The first option may impact upon that.

10. As far as the father is concerned, he had to consider what he would wish to do in relation to the child, B.  Interim orders were made by me which provided at least some initial certainty that the child would live with the mother and spend time with the father as may be agreed.  More importantly, though, it was for the father to consider his position as to whether he would involve himself in these proceedings in relation to B.  There is a clear concession, not that there was any significant doubt about the matter, that this Court clearly has jurisdiction in relation to B.  There are also, I think, the realities of B’s age and a recognition by each of the parties that B is likely to do what she would wish to do irrespective of the dictates of her parents.  As far as the father is concerned, I think it is reasonable for me to find that B has evinced clear intention to reside and remain in the care of her mother. 

11. There is no challenge on behalf of the mother to the matters I raised in my ex tempore reasons delivered on 10 June 2016, namely, that I do not consider that I have jurisdiction to deal with the child C.  That concession enables me to discharge that part of the Initiating Application of the mother filed 16 November 2015 that deals with C.  That leaves orders in respect of B. 

12. I have affidavit material in support of the mother’s application, in particular, being her affidavit of 16 November 2015 and, to some extent, although of perhaps lesser relevance, the affidavit of the mother’s solicitor, Rose Cocchiaro, filed 3 June 2016.  The mother sets out in her affidavit the arrangements in respect of the children, but, in particular, B. 

13. What I foreshadowed on the last occasion and, indeed, on earlier occasions was that this matter has come before me without any intervention or engagement by the father in respect of matters relating to B I considered it was to the significant advantage to the child for the proceedings to be resolved expeditiously.  The mother now seeks that.  I think it is fair to say that the father, whilst he does not necessarily consent to all of the orders that the mother seeks, the orders that he is prepared to concede has an importance as to whether or not the matter is or is not resolved expeditiously. 

14. The relevance is that the mother, perhaps surprisingly in circumstances of her application and the manner in which she says the father retained the child, C, is keen for the children to be reunited and that the mother does not consider that can happen until and unless she has final orders in respect of B.  It is only then, she considers, that she will have sufficient certainty that will enable B to spend time with C in the United States.  Whilst I know little of the circumstances of the father, as I have indicated, I know a great deal more as to the circumstances of the mother, her family, and the arrangements that she has in place in respect of B’s care. 

15. It seems to me the single most important factor that impacts adversely on B is what appears to be the total breakdown in the relationship that she has with C.  The children have not seen each other now for some considerable time, and I’m satisfied on the affidavit material filed by the mother that the children have a close relationship and that they miss each other.  The orders sought by the mother are clearly and obviously targeted to that very issue which accounts for the generosity of the orders that the mother proposes in her application.  There is no significant opposition by the father in respect of the basic tenor and thrust of the orders sought by the mother once there is a concession that this Court should not concern itself with matters in respect of C, and the concession by the father that this Court has jurisdiction in respect of B. 

16. It cannot be said that there is fulsome consent between the parties, other than in respect of the important areas, parental responsibility, and with whom each of the children shall live, but there is sufficient comity in respect of the orders that each of the party seeks that I am sufficiently confident to proceed on the basis of a final hearing in respect of the child B. It is not, however, simply a matter for me to make orders as presented, even were I to decide that, in effect, they were orders that could be considered against the general default of the father. That may have some impact. In respect of any order that I make by way of a parenting order, whether it be a contested hearing, an order by consent or whether it be a proposed order by default, the Court’s attention must never be diverted from the obligations and requirements of Part VII of the Act. And in that respect, I bring to account the primary considerations and the additional considerations.

17. A primary consideration is that the child will benefit from having a meaningful relationship with both of the child’s parents.  Unfortunately, the inconsistency in the manner in which these considerations are put forward resonates with the mother in terms of her inability, certainly at this stage, to have a meaningful relationship with C.  But, again, a consideration now is in respect of B, and there is clearly an advantage and a benefit in B having a meaningful relationship with the child’s father.  There is no issue raised in respect of the need to protect the child or children from physical or psychological harm. 

18. The additional considerations are relevant and I take into account any views that the child B, may have expressed.  But, in particular, I bring into account those provisions, those additional considerations under s 60CC(3), which relate to matters in respect of B having a relationship with her sister, C.  They are important considerations and, again, they – the impact that they have upon my decision is not just as to the orders that the mother seeks, but also the urgency with which she seeks those orders and the final disposal of the proceedings. 

19. I am satisfied that bringing together the circumstances that have presented themselves to this Court, the affidavit material and the findings of the court in the State of California, that orders should be made in terms of the mother’s final orders sought as to the child, B, and that the proceedings be resolved to finality. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 June 2016.

Associate: 

Date:  23 June 2016