Kincaid and Teke

[2017] FamCA 379

FAMILY COURT OF AUSTRALIA

KINCAID & TEKE [2017] FamCA 379

FAMILY LAW – CHILDREN – Limited issues – whether the mother should be permitted to travel overseas with the child – dispute as to changeover location – child’s best interests

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)

APPLICANT: Ms Kincaid

RESPONDENT: Mr Teke

FILE NUMBER: MLC 9468 of 2014

DATE DELIVERED: 31 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kildea

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

THE RESPONDENT: In Person

Orders

IT IS ORDERED BY CONSENT THAT

1. For the purpose of facilitating the time the child B born … 2010 (“the child”) spends with the father pursuant to paragraph 4 of the orders made 16 November 2016, changeover is to occur at the child’s school when that time commences at the conclusion of school.

IT IS ORDERED THAT

1. For the purpose of facilitating the time the child spends with the father pursuant to paragraph 4 of the orders made 16 November 2016, changeover when it does not occur at the child’s school, is to occur at C Contact Centre and if for any reason C Contact Centre is unavailable, changeover is to occur at the McDonald’s restaurant closest to the child’s school.

2. Forthwith the parties do all acts and things and sign all necessary documents to register for and be placed upon the waiting list for changeover at C Contact Centre.

3. The father by himself, his servants or agents be and is hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child from the Commonwealth of Australia.

IT IS ORDERED BY CONSENT THAT

1. The Court requests that the Australian Federal Police forthwith place the name of the child B born … 2010 on the Airport Watch List in force at all points of international arrivals and departures in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until 24 January 2028.

IT IS FURTHER ORDERED THAT

1. Notwithstanding that the child’s name is to be placed on the Airport Watch List, the mother be permitted to travel overseas with the child and it is requested that the Australian Federal Police place an exemption on the Airport Watch List to give effect to this order.

2. For the purposes of travel referred to in paragraph 6 herein, the mother is to provide the father with 28 days written notice of  the intended departure date and provide details of return flights, accommodation, a travel itinerary, email addresses and telephone contact numbers on which the child can be contacted while overseas.

3. All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kincaid & Teke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9468  of 2014

Ms Kincaid

Applicant

And

Mr Teke

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing before me on 26 April 2017. There were by then only limited parenting issues outstanding and when the matter was not reached it was adjourned for hearing before me on 15 May 2017.

2. The parties in this case met and commenced a relationship in Australia in 2001. Shortly thereafter the father returned to Turkey. The mother followed the father to Turkey and the parties were married in Turkey in 2002.

3. The parties returned to Australia in October 2004 and their son was born in Australia in 2010.

4. The father returned to Turkey, followed by the mother and the child in mid-2010.  The parties lived together with the child in Turkey until late 2010 when the father left the apartment in which they were living with the child and went to live with his parents.

5. The father initiated divorce and parenting proceedings in Turkey and the mother filed a counter claim also seeking parenting orders.

6. The parties reconciled in February 2011 and separated again in either late 2011 on the mother’s case or early 2012 on the father’s case.

7. The child, who is now seven years of age, has been the subject of ongoing proceedings both in Turkey and Australia since the parties’ final separation.  The proceedings have included an application by the mother under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) in April 2012 for the child to be returned to Australia.  That application was dismissed by the City D First Family Court in Turkey on the basis that the child had not been wrongfully removed from Australia or wrongfully retained in Turkey. The mother appealed that decision.

8. There were a number of orders made in the proceedings in Turkey including personal protection orders in favour of the father and the mother against each other and an order similar to an Airport Watch List order on the application of the father to prevent the child’s removal from Turkey. 

9. Despite the fact that orders had been made in October 2010 to prevent the child’s removal from Turkey, in October 2014 the mother travelled to Australia with the child. The father was unaware of the mother’s intention to return to Australia and once he became aware that she had done so, he also travelled to Australia.

10. The mother commenced parenting proceedings in this Court shortly after her arrival in Australia with the child and on 24 October 2014 Cronin J made an order placing the child on the Airport Watch List. That order remained in force until 23 October 2016. There is currently no order in place. Although the parties agree that the child’s name should be placed and remain on the Airport Watch List until the child turns 18, it is the mother’s case that she should be permitted to leave the Commonwealth of Australia with the child without restriction.

11. Although the father filed a response to the mother’s application and participated in the proceedings in this Court in November 2014, he initiated proceedings under the Hague Convention for the return of the child to Turkey. Those proceedings were heard and determined by Bennett J over a five day period in March and April 2015 with final submissions in October 2015.  On 13 May 2016 her Honour dismissed the application of the State Central Authority for the child to be returned to Turkey. Although her Honour found that the child had been habitually resident in Turkey and on that basis, his removal from Turkey had been wrongful, she also found that the father had acquiesced to the child remaining in Australia.

12. Final parenting orders were made by consent on 16 November 2016. Pursuant to those orders the mother has sole parental responsibility for the child, he lives with her and the father spends time with him from the conclusion of school on Friday until 4.30 pm on Sunday each alternate weekend and from the conclusion of school on Wednesday until the commencement of school on Thursday each week. During the long summer holiday, the child is to spend time with the father and the mother on a week about basis and for half of that summer holiday period once he turns 14.

13. On 21 November 2016 the mother filed an Amended Initiating Application for final orders. She sought the following orders:

    ·That until 24 January 2028 the father be restrained from removing the child from the Commonwealth of Australia and it is requested the Australian Federal Police place the child’s name on the Airport Watch List

    ·That she be permitted to travel overseas with the child and that the Australian Federal Police place an exemption on the Airport Watch List entry to give effect to this order

    ·Changeovers that occur at the commencement or conclusion of school shall occur at the child’s school and all other changeovers shall occur at the McDonald’s restaurant closest to the child’s school.

14. On 25 November 2016 the father filed an Amended Response in which he sought the following orders:

    ·That the Airport Watch List order remains in full force until 24 January 2028, the mother and the father be restrained from taking the child outside the Commonwealth of Australia and no exception should be placed on the Airport Watch List allowing the mother to travel with the child outside the Commonwealth of Australia

    ·That for changeovers that do not occur at school occur at a contact centre and until such an application for a contact centre is accepted,  changeover to occur in the foyer of the Suburb E Police Station

    ·That the final orders be varied so that the father spends the second half of the summer holidays from 10 January until 28 January with the child in a block period rather than on a week about basis in the event that he decides to live overseas or if his family come from Turkey to visit the child

15. It was these issues which were listed for hearing before me.

Issues

1. During the course of the hearing before me, the parties reached an agreement in relation to the time the father should spend with the child in the event that either he no longer lives in Australia or his parents travel to Australia to spend time with the child during the long summer holiday period. The parties also agreed that when changeover does not occur at school, it should occur at C Contact Centre (“C”), leaving unresolved the question of where changeover should occur until a place becomes available at C or if C is not available.

2. The only other issue was whether, in circumstances where the parties had agreed that the child should remain on the Airport Watch List, there should be an exception to allow the mother to travel overseas with the child.

Changeover

1. The mother proposed that when not at school, changeover be at C and that until a place becomes available or if C is for some reason unable to facilitate changeover, that it take place at the McDonald’s closest to the child’s school. The father similarly proposed that when not at school changeover be at C but that if C were to be, for whatever reason, unavailable, changeover be at the Suburb E Police Station, which is where changeover currently takes place.  

2. It was the mother’s case that on 24 November 2014 the parties had consented to orders which provided for changeover to take place at C but that until a place became available, changeover was to take place inside the Suburb E Police Station. The father conceded that although the mother had attended an intake session, he had not done so as a result of which C closed its file. The father’s explanation for not having attended an intake session was, he said, because the Hague proceedings were still on foot and he was, as a result, very busy. He also said that he expected to be returning to Turkey with the child at the conclusion of those proceedings. As mentioned previously, the Hague proceedings were heard over five days in March and April 2015 with final submissions on 29 October 2015. Judgment was delivered in May 2016. I am not satisfied that, however busy the father may have been preparing for the hearing or his belief that the child would be returning to Turkey with him, adequately explains why he could not have attended the required intake session.  

3. It is the mother’s case that if an order were to be made in the terms sought by the father, there would be little incentive for the father to do what is necessary to comply with the C requirements in circumstances where it is his case that there is nothing wrong with the current arrangements for changeover at the police station. Based upon the evidence before me, I am satisfied that there is a very real possibility that if I accede to the father’s proposal, changeover is likely to be at the Suburb E Police Station for, at the very least, some months and possibly significantly longer.

4. Counsel for the mother submitted in support of her proposal, that a police station is not a suitable venue for changeover and that McDonald’s would be a more child friendly environment. It was the mother’s case that the father is sometimes late, leaving her to wait with the child in the Suburb E Police Station. Although the father conceded that he was sometimes late, he denied that this was a frequent occurrence.

5. Counsel for the mother’s submissions as to the unsuitability of the police station were based upon what she said were her concerns as to what the child might be exposed to at the police station and the impact that might have upon him. Her concerns included the child coming into contact with those reporting crimes and those who may have committed crimes. She was also concerned about the child perceiving the visits to the police station as being a normal part of his life in circumstances where she says he tells his friends at school that he has been to the police station. As I raised with the father, changeover at a police station and the need for that to occur may also impact upon the child’s perception of one or both of his parents.

6. Although the father conceded that the child might come into contact with both those reporting crimes and/or criminals and that it was not a child friendly environment, it was his evidence that the possibility of the mother being verbally aggressive towards him outweighed any risk that changeover at the police station might present to the child.

7. The father made general assertions as to the mother being mentally unstable and extremely aggressive. In cross-examination he said as follows

   I’m not dealing with a normal person, I’m dealing with an extremely aggressive, mentally abusive, extremely aggressive, if something is not the mother’s point, even at police station mother has following me to the back entrance and try to say something, I am running to my car the mother is still yelling and screaming trying to say something…we are not talking about, like, physical aggression or anything like that…but we are talking about is mother is still trying to get her point, she can follow me, she can come to the car park she can still try and get her point but because the police station is fully…there is like police there, mother is always deterred, like she can’t go forward, but she still trying to. There was a couple of incidents at police station, even police came outside…

8. The father conceded that although in his affidavit sworn 27 October 2014, he had deposed to threatening behaviour by the mother towards him, he had not deposed to any other incident since filing that affidavit. Not only had the father not deposed to these alleged incidents in his trial affidavit, even when he gave oral evidence about them, that evidence lacked particularity. Nor were these allegations put to the mother.

9. The father relied upon observations of the mother’s behaviour at changeovers during late 2014 made by the supervisors of his time with the child in support of his assertions as to both the mother’s behaviour and her mental instability. These assertions are not consistent with the 21 January 2015 report in evidence before me of Dr D, who psychiatrically assessed the mother in January 2015.

10. The father suggests that the fact that there have been no incidents at changeover is because it has been taking place at the police station and that changeover at McDonald’s, even if covered by CCTV cameras, would not provide sufficient disincentive to the mother or protection for him. I am not satisfied on the balance of probabilities, based on the evidence before me, that the mother is likely to behave abusively or aggressively towards the father in the presence of the child, whether or not changeover takes place at the police station.    

11. I must focus on the best interests of the child and I am satisfied on the balance of probabilities that changeover at McDonald’s would, as submitted by counsel for the mother, be a much more child friendly and child focused option. Although I am also satisfied that it would not be in the child’s best interests to be exposed to any conflict between the father and the mother, as submitted by counsel for the mother, McDonald’s is a well populated public place. Even though I am not satisfied, as submitted by the father, that the mother is emotionally or psychologically unstable and likely to behave in an aggressive manner towards him, even if that were the case, McDonald’s would, in my view, be likely to offer sufficient safeguards for the father and it follows the child.

Whether there should be an exception to the Airport Watch List order to allow the mother to travel overseas with the child

1. At the commencement of the proceedings, I was advised that both the father and the mother had agreed upon the child’s name being placed and remaining on the Airport Watch List until he turns 18.  The reality is that in circumstances where the mother is proposing that she be permitted to travel overseas with the child, her case is, in essence, that the Airport Watch List order only pertains to the father.

2. When the matter was first listed for hearing before me, I expressed some concern about being asked to make orders permitting the mother to travel overseas in the absence of any evidence as to what travel might be proposed. Although the mother did seek and was granted leave to file a further affidavit setting out the history of two overseas holidays that she might have taken, but could not take because of the orders which precluded her taking the child out of the Commonwealth of Australia and the possibility of taking the child on a cruise in the coming months, there was little detail.

3. Notwithstanding that lack of detail, it is significant in my view, as submitted by counsel for the mother, that pursuant to the orders made on 16 November 2016, the mother has sole parental responsibility for the child and that that order was made by consent. Inherent in that consent is that the father accepts that the mother will make decisions and act in the best interests of the child.

4. The father submitted that the mother does not have a career, has only limited connections to Australia and that in those circumstances, particularly given the history of this matter, there is a risk that she might attempt to relocate to another country with the child and in particular a country that is not a signatory to the Hague Convention.

5. The father and the mother in this case are both dual Australian and Turkish citizens. That being said the father clearly has a much stronger connection to Turkey than the mother. He has family in Turkey, has travelled to Turkey on a number of occasions to visit his family since he returned to Australia in 2014 and gave evidence as to the possibility of having to return to Turkey for medical treatment in the near future.  

6. I do not accept, as submitted by the father, that the mother does not have connections with Australia. It is common ground that she has family in Australia. The child is enrolled in school in Australia and is being treated by Australian medical practitioners on an ongoing basis. The mother is also undertaking part time study. Perhaps even more significantly, when the mother did wrongfully remove the child from Turkey she returned to Australia. There is also no evidence before me of the mother having any connection to any other country.

1. It was further submitted by counsel for the mother, in my view with some force, that even though the mother does not presently have any definite plans to travel, the child should be permitted to travel overseas if the opportunity arises.  In light of the protracted proceedings to date, counsel for the mother submitted that the mother should not be required, both for financial reasons and because of the need for finality, to make an application to the Court on each occasion she wishes to travel overseas with the child.

The child’s best interests

1. In circumstances where I am being asked to make parenting orders, the best interests of the child are paramount. In determining the child’s best interests, I must have regard to both the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) to the extent that they are relevant to the determination I must make.

2. There is in this case no dispute that the child will benefit from having a meaningful relationship with both the father and the mother and they have already consented to orders for the purposes of making that possible. Although the mother is critical of the father for not paying child support, I do not have sufficient evidence before me to make findings with respect to those matters. There is otherwise no evidence to suggest that the parties have not taken whatever opportunities available to them to participate in the child’s life. There is also no evidence before me to suggest that the parties are not responsible parents or that they are unable to provide appropriate care for the child, nor is it of particular relevance for the purposes of the matters I must determine in circumstances where they have already consented to orders for the child’s care.  

3. There are in this case competing allegations with respect to family violence. I have already referred earlier in these reasons to the father’s allegations with respect to the mother being mentally unstable and the likelihood of her being verbally abusive. The mother also sought to rely upon the father having been convicted of an assault upon her in Turkey prior to her return to Australia with the child. However, it is her case that whatever risk the father might pose to her is historical and that changeover at the police station is neither necessary for the safety of either her or the father and is not in the child’s best interests.

4. Of particular significance in this case is whether it would be preferable to make orders that would be least likely to lead to further proceedings in relation to the child. In my view it is reasonable to infer that at some time prior to the child turning 18, there will be an opportunity for him to travel overseas. If I do not accede to the mother’s application, she will, absent the father consenting to such overseas travel, be required to institute proceedings lifting the Airport Watch List order to enable the child to leave Australia. The history of the litigation in this case does not inspire much confidence that the parties are likely to be able to reach agreement. I am satisfied that both the financial and emotional cost of further proceedings is not in the child’s best interests.

5. In all of the circumstances I am satisfied that I should make the order the mother seeks permitting her to travel overseas with the child. However I am also satisfied that she should be required to provide the father with details of any proposed overseas travel including her itinerary and proof in writing as to arrangements for the child’s return travel to Australia.

6. Finally for all of the reasons I have discussed earlier, I propose to make orders for changeover, when it does not take place at school, to take place at C, or if for any reason C is unavailable, at the McDonald’s closest to the child’s school as proposed by the mother. Even if I had accepted what the father has said about the mother’s behaviour, it is the child’s best interests in this case that must prevail over the father’s concerns. In my view changeover at a police station is not in the child’s best interests and I am also satisfied that the issues of concern identified by the mother are likely to be of increasing concern as the child get older.   

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 31 May 2017.

Associate: 

Date:  31 May 2017