KARTAL and KAYA
[2017] FCWA 51
•26/04/2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KARTAL and KAYA [2017] FCWA 51
CORAM: DUNCANSON J
HEARD: 26 APRIL 2017
DELIVERED : 26/04/2017
FILE NO/S: PTW 2594 of 2007
BETWEEN: MS KARTAL
Applicant
AND
MR KAYA
Respondent
Catchwords:
CHILDREN - where children live with mother who seeks to relocate them to Turkey - where father ceased participating in the proceedings - children's views - relocation permitted
Legislation:
Family Law Act 1975 (Cth) s 60CA, s 60CC, s 61DA
Category: Reportable
Representation:
Counsel:
Applicant: Mr R Bannerman
Respondent: No appearance
Solicitors:
Applicant: Bannerman Solicitors
Respondent: Self-Represented Litigant
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern 17 year old [Child A] and 13 year old [Child B]. They are the children of the father, [Mr Kaya], and the mother, [Ms Kartal].
2The children live with the mother and spend time with the father when they wish to do so. The mother wants the children to live with her and she be permitted to relocate them to Turkey at a time of her choosing.
3The proceedings were listed for a readiness hearing on 28 March 2017. On that date it was ordered that the time within which both parties comply with previous orders for filing trial documents be extended by a further 14 days. A further readiness hearing was listed for 20 April 2017.
4The mother filed her trial documents. At the readiness hearing counsel informed the Court that it was the mother’s understanding the father no longer intended to oppose the orders sought by her.
5The father did not comply with orders for filing documents. The Court telephoned him and he confirmed that he did not oppose the orders sought by the mother and he did not intend to participate further in the proceedings.
6On 20 April 2017 an order was made that the mother have leave to proceed on an undefended basis.
THE ORDERS SOUGHT
7The orders sought by the mother are contained within her initiating application filed 13 June 2016. She seeks an order that all previous parenting orders be discharged including that placing the children’s names on the Port Alert List.
8The mother seeks an order that she have sole parental responsibility for the children and that they live with her. She seeks to be permitted to relocate the children as set out above. She seeks orders regarding the issue of passports for the children and an order permitting the children to travel out of the Commonwealth of Australia.
FAMILY BACKGROUND
9The mother was born on [in] 1972 and is 45 years of age. She is engaged in home duties. The father was born [in] 1974 and is 43 years of age. He is a disability pensioner.
10The parties have two children: Child A born [in] 1999 and Child B born [in] 2003.
11Both parties were born in Turkey. The mother migrated to Australia when she was very young. The parties met in Turkey and married there [in] 1998. The parties moved to Western Australia in 1999.
12The parties separated in June 2004 and were subsequently divorced [in] 2010.
13Proceedings in this Court first commenced almost 10 years ago. The background, including that in relation to the Hague Convention application is conveniently set out in the judgment of Justice Martin dated 20 October 2009, [2009] FCWA 136 at paragraphs 12 to 26, and it is not necessary for me to repeat it here.
14On 20 October 2009 Martin J ordered that the children live with the mother and spend supervised time with the father.
15In June 2010 the mother took the children to Turkey for three months. The children’s names remained on the Airport Watch List after her return in October 2011.
16The children spent time with the father in accordance with their wishes.
17The mother commenced these proceedings on 13 June 2016. In his response the father opposed the orders sought by the mother and sought an order that she be restrained by injunction from removing the children from the Commonwealth of Australia. He proposed that the children live with the mother and spend time with him in accordance with their wishes.
18Family Consultant Plummer prepared a family report dated 23 March 2017.
THE EVIDENCE
19The mother relied on her affidavit filed 12 April 2017 and a financial statement filed on the same date.
20The mother gave oral evidence. I found her to be child-focused and honest. Her evidence was reliable.
THE LAW
21These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
22The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
23In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.
24Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
25Section 60CC(2A) provides that in applying the above considerations, the court is to give greater weight to the need to protect the child from harm.
Parental responsibility
26Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.
27The presumption does not apply in circumstances where there is abuse or family violence. The mother seeks an order for sole parental responsibility for the children and I refer to that further below.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child’s parents
28The children have a meaningful relationship with the mother and it is to their benefit that it continues. It is to the benefit of the children to have a meaningful relationship with the father provided they are not exposed to harm by doing so.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
29There is not a need to protect the children from harm in the care of the mother. There was previously a need to protect the children from harm in the care of the father by reason of his violent behaviour. The children were exposed to this behaviour. To ensure the children’s safety their time with the father was supervised. The mother considers the children are of an age where they can protect themselves and their time with the father is no longer supervised.
30The children were exposed to family violence in the care of the father in March 2015. The Family Consultant reported that Child A spoke of a fight between himself and the father by reason of the father “bad mouthing” their mother, “swearing and using crude language in Turkish”. Child B was shaking after telling the father that he wished to go to Turkey and the father became increasingly upset. Child A was defending his brother.
31Both children recalled their father’s angry and aggressive behaviour when they were younger.
ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
32The children are aged 17 and 13 years. They expressed their views to Family Consultant Plummer. The Family Consultant described Child A as relaxed and forthright. Child A wishes to finish Year 11 in Australia and then move to Turkey where he wishes to join the Turkish military which is a family tradition. The Family Consultant reported that he has a strong desire to live in Turkey. He wants to live with his mother, spend time with the father in accordance with his wishes and wants to go and live in Turkey at the end of 2017. He reported to the Family Consultant he was strong in his opinions about wanting to go to Turkey and wished to be free from the constraints of the father.
33Child B also desires to live in Turkey to be with his cousins and embrace the country and culture. He wants to live with the mother there. He wishes to go as soon as possible and feels trapped in not being able to travel. Child B considers the father has ruined his family life by not allowing them to go to Turkey.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
34The children have a close and loving relationship with the mother. The father reported to the Family Consultant he had a good relationship with the children however, the children informed the Family Consultant they were unsure of their father’s love for them. Child A has a conflicted relationship with the father by reason of witnessing abuse perpetrated upon his mother and he referred to beatings he received from him which probably added to his mistrust. He considers his relationship with the father is currently stable. Child B does not like the father and considers his life would be better if the father was removed from it.
35The children have fond memories of being with the maternal family in Turkey.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
36The mother has made decisions about major long-term issues in relation to the children since separation. Between 2011 and 2014 the children did not spend time with the father. In 2014 the father began having some unsupervised time with the children. The mother has maintained the children. The father does not provide financial support for them.
the likely effects of any change in the child’s circumstances, including separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
37The children are accustomed to living with the mother and there is no question of them being separated from her. The mother and the children strongly desire to live in Turkey. Having regard to the strength of the children’s wishes in that respect it is likely that the effect of that change in their living arrangements such that they live in Turkey would be a positive one. Having regard to the nature of the children’s relationship with the father it is unlikely a separation from him would have any effect upon them.
38The mother proposes that the children maintain contact with the father as they have done over the years and if they move to Turkey they could contact him in accordance with their wishes, including through Skype and FaceTime.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
39There is practical difficulty and expense associated with the children spending time or communicating with the father if they live with the mother in Turkey. This difficulty arises by reason of distance and cost of travel. The parties are both of Turkish origin. The father has family members in Turkey. It would be possible for him to visit the children there.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
40The mother provides well for the children on all levels. She is currently unemployed by reason of health issues but hopes to return to work in the future. In the event that the mother moves to Turkey with the children she proposes to stay initially with her parents who own a five bedroom two bathroom home in the outskirts of [City C]. Thereafter she and the children would move to an apartment owned by her parents reasonably close by. The apartment is fully furnished.
41The mother has provided well for the children’s emotional needs. She has taken steps to protect them from harm by reason of family violence perpetrated by the father.
42The father has not provided well for the children’s needs in the past. Both children spoke of his violent behaviour towards them and the mother and his denigration of the mother.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
43The children are of Turkish origin and identify with that country. They both wish the opportunity to live in Turkey and enjoy the culture of the country.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
44This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
45The mother has demonstrated a responsible attitude to the children and the responsibilities of parenthood. She has protected the children from harm. She will facilitate the children maintaining contact with the father in accordance with their wishes.
any family violence involving the child or a member of the child’s family
46There has been family violence between the parties. It is well documented in the report of the Family Consultant, and an earlier report of the Single Expert Witness, Mr Cris De Rooster, and in the findings of Justice Martin. It is not necessary for me to repeat it here.
if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
47There is not currently a family violence order in place. The mother says the father breached a family violence order previously obtained by her.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
48It would be preferable to make final orders and conclude these proceedings. The children feel they have been prevented from travelling and wish the freedom to do so.
any other fact or circumstance that the court thinks is relevant
49The mother wishes to return to Turkey. The children who have had some experience of living there in their younger years also wish to do so. I am satisfied that the mother has a sensible and well thought out proposal and will receive assistance and family support if she relocates. She wishes to relocate at a time of her choosing and Child A wishes to finish Year 11 in Australia. It is likely that the relocation would take place after he has done so.
50The Family Consultant reported at [107] as follows:
Given the children’s strong views and how they reportedly strongly identify and connect with Turkey and their heritage and maternal family the Family Consultant would support the children relocating to Turkey. As they are dual citizens of Australia and Turkey the children have the opportunity to return to Australia at any time should a situation arise that’s untenable for them in Turkey. Further, the father has the opportunity as he is Turkish, to spend time with the children in Turkey as he had travelled in the past a number of times to Europe and Turkey.
51The Family Consultant further reported at [109] as follows:
The Family Consultant would suggest the father apply unconditional positive regard to the children’s views knowing that they have the opportunity to return to Australia if they choose or if a situation in Turkey would place them in harm’s way.
52In withdrawing his opposition to the orders sought by the mother, it appears the father has taken on board the Family Consultant’s suggestion.
53The father informed the Family Consultant he did not consider Turkey to be a safe destination. The mother disagrees and is confident that the children would have no difficulty in settling into a life in Turkey and says that both are keen to do so.
54Both children wish the opportunity to travel and are unhappy that they have not had an opportunity to do so. She says her proposed destination is a safe one and not in an area of instability.
55I am satisfied that the mother will make appropriate arrangements for the safety of the children. Turkey is their country of origin and the mother and both children strongly desire to live there.
56The mother is well prepared to meet the children’s needs.
57The relocation to Turkey will take place at a time when the mother in her discretion decides it is best for the children.
CONCLUSIONS
58Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental responsibility
59There has been family violence between the parties. The presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply. I intend to order that the mother have sole parental responsibility for the children. Since the parties separated she has made decisions without the participation of the father. She is attuned to the children’s needs and is best placed to make decisions about long-term issues for them in the future.
The children’s living arrangements
60The children will live with the mother. She has been their primary carer since birth and they have lived with her since separation. It would be in their best interests to continue to do so as she provides well for them on all levels.
61The children’s relationship with the father is a difficult one by reason of past events. In that sense the move to Turkey will have less of an impact than if their relationship with the father had been a strong one.
62The mother solely provides for the children and has sound reasons for wishing to relocate them. I intend to make an order that the mother be permitted to relocate the children to Turkey at a time of her choosing.
63Having weighed and balanced the matters in s 60CC referred to above I am satisfied that it is in the children’s best interests to live with the mother and she be permitted to relocate them to Turkey at a time of her choosing.
64I propose to make orders regarding passports for two reasons. Firstly there has been family violence and I do not expect the mother to have to communicate with the father to seek his permission for obtaining passports. Secondly, the proceedings have been ongoing for about 10 years. If the father does not cooperate, it would necessitate further proceedings which would not be in the children’s best interests. I therefore intend to make orders enabling the mother to obtain passports for the children, and dispensing with the necessity for the father’s consent.
THE ORDERS
65I made the following orders:
1All previous parenting orders concerning the children, [Child A] born [in] 1999 and [Child B] born [in] 2003 be and are hereby discharged.
2The Applicant, [Ms Kartal] have sole parental responsibility for the children.
3The children live with Applicant.
4The Applicant be permitted to relocate the children to Turkey at a time of her choosing.
5The Australian Federal Police be requested to remove the children’s names from the Family Law Watch List operating at all international ports in Australia and the Applicant do supply the Australian Federal Police with a sealed copy of this order.
6The Applicant be permitted to remove the children from the Commonwealth of Australia.
7The Applicant have permission to forthwith uplift the passports of the children from the Registry of the Family Court of Western Australia.
8Subject to any other requirements of the Department of Foreign Affairs and Trade, passports be issued to the Applicant for the children and the necessity for the consent of the Respondent, [Mr Kaya] to the issue of passports for the children be dispensed with.
9Any subpoenaed documents be returned to source.
10The proceedings be dismissed.
I certify that the preceding [65] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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