Luccio and Santos Da Assuncao

[2012] FamCA 254

FAMILY COURT OF AUSTRALIA

LUCCIO & SANTOS DA ASSUNCAO [2012] FamCA 254

FAMILY LAW - CHILDREN - Relocation - Where Applicant Father has filed a Notice of Discontinuance in respect of all proceedings in this Court - Where the Applicant Father has repeatedly failed to comply with directions to file material - Where the Applicant Father is on bail awaiting hearing on five criminal charges - Where the Applicant Father has not filed any material since his filing of a Notice of Discontinuance - Where the hearing is held as undefended

Family Law Act 1975 (Cth)

APPLICANT: Mr Luccio

RESPONDENT: Ms Santos da Assuncao

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 7731 of 2009

DATE DELIVERED: 13 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13 April 2012

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Orders

1. The Respondent Mother, Ms Santos da Assuncao (hereinafter referred to as “the Mother”), have sole parental responsibility for making decisions about major long-term issues for the children of the relationship, L born … August 2007, B born … December 2009 and C born … February 2011 (hereinafter referred to as “the children”).

2. For the purposes of these Orders a major long-term issue shall include, but is not limited to, issues about:

   (a)       The children’s education (both current and future);

   (b)       The children’s religious and cultural upbringing;

   (c)       The children’s health;

   (d)       The children’s names/name; and

   (e)       Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

3. The children live with the Mother.

4. The children spend no time with, and not communicate with the Applicant Father, Mr Luccio (hereinafter referred to as “the Father”).

5. The Father be restrained and an injunction issue restraining him from having any contact, directly or indirectly, with the Mother or the children.

6. The Father be restrained and an injunction issue restraining him from approaching the Mother or the children or attending upon any place where the Mother works, attends or lives or any place where the children attend or live.

7. The Father be restrained and an injunction issue from coming within 100 metres of the Mother or the children.

8. The Mother be at liberty to relocate the children to live outside the Commonwealth of Australia and its Territories, particularly to Brazil, South America.

9. All previous or current Airport Watch orders or PACE Alerts be discharged.

10. The Father be restrained and an injunction issue restraining him from lodging any Airport Watch or PACE Alert in relation to the children without an Order of a Court of competent jurisdiction first had and obtained.

11. As soon as reasonably practicable, the Mother’s passport, currently held in the Registry of the Federal Magistrates Court of Australia at Brisbane, and any passport for the children or any of them, be returned or provided to her.

12. Within forty-eight (48) hours of any written request being made by the Mother, the Father and the Mother shall sign all applications or documents and do all things necessary to enable a passport to be issued for each of the children to enable each of them to travel outside the Commonwealth of Australia and its Territories.

13. In the event any party refuses or neglects to comply with any request or direction to give effect to the terms of these Orders, then the Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and instruments in the name of the defaulting party and do all such acts and things necessary to give validity and operation to the deed or instrument, pursuant to s 106A of the Family Law Act 1975 (Cth), at the expense of the defaulting party.

14. Pursuant to section 121 of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer have leave to provide a copy of these Orders and any Reasons for Judgment that may issue to the Department of Community Services, New South Wales.

15. The Independent Children’s Lawyer be discharged.

16. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Luccio & Santos da Assuncao 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 BRISBANE

FILE NUMBER: BRC 7731 of 2009

Mr Luccio

Applicant

And

Ms Santos da Assuncao

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the final hearing of the application for parenting Orders of Ms Santos da Assuncao (“the Mother”) as set out in the Mother’s Amended Response filed 10 May 2011 in respect of the children, L, born in August 2007, who is now four years of age, B, born in December 2009, now two years of age, and C, born in February 2011, who has recently turned one.

2. This hearing has been set down for the making of final Orders and is a hearing on an undefended basis in circumstances where the matter has a long history (which will be briefly discussed), but in particular in circumstances where Mr Luccio (“the Father”) filed on 8 March 2012 a Notice of Discontinuance by him of all proceedings. Following that Notice of Discontinuance being filed, the parties signed and submitted to this Court consent Orders in the form reflecting the Mother’s proposed Minutes of Orders attached as Annexure ‘A’ of her interim application filed 27 October 2011. That permitted the Mother to relocate to Brazil with the children pending any trial of the proceedings.

3. Today’s hearing occurs in the circumstances that the Father having filed his Notice of Discontinuance on 8 March 2012, and having given his consent in the Orders as referred to, has filed no further material, nor has he sought to enliven any application by him in the period since the filing of his Notice of Discontinuance and the making of the consent Orders.

4. There is a relatively lengthy litigation history to this matter as reflected in the list of documents relied upon by the Mother. The Father initially filed an application on 1 September 2009, seeking parenting Orders regarding the child, L. Those proceedings were instituted in the Federal Magistrates Court, and there followed in that Court a series of Orders over the period from September 2009 and thereafter, which I need not detail for present purposes. On 3 September 2010, a report from psychologist Mr W was filed in the Federal Magistrates Court following the conduct by that psychologist of interviews with the parties on 17 March 2010 and further telephone conversations and interviewing on 7 June 2010 and 3 September 2010. That contained a helpful summary of the history of the matter to that point and the issues involved in the proceedings to that point, and I will not repeat the summary in these reasons.

5. Relevantly, Mr W reached these conclusions, commencing at paragraph 65 of his report:

   [The Father] is obviously very preoccupied with [the Mother]. It also seems apparent that he has been violent towards her and has not respected the authority of the law by failing to cease contact with her. I gain nothing from him to suggest that he has any interest in his children beyond them representing to him a conduit to their mother. From the information I gained from him during my interview with him, from what [the Mother] has told me and from the documentary material I have read, he exhibits very marked narcissistic and. less so. antisocial personality traits. When I consider what has been documented by the police of his behaviour, alongside the reports of [the Mother], I consider that he is very likely to harm [the Mother] in the future should he not be able to engage again with her in a relationship. In this respect I consider him to be very dangerous. Further, I am of the opinion that [the Mother] would not be capable of resisting his approaches to her should he make any contact with her. She does not seem to understand that he represents a serious threat to her. I believe this threat will escalate as it becomes more apparent to [the Father] that there is no chance of them having an intimate relationship again. Any threat to her personally is a threat to her as the mother and primary carer to [L] and [B].

6. I interpolate here that at the point of Mr W’s report, C had not yet been born. Mr W continues at paragraph 66 of his report as follows:

   [The Mother] has become desensitised to the violence [the Father] has perpetrated against her and therefore to the risk he poses her in the future. I cannot trust her to make a reliable judgment about him. She has not demonstrated a capacity to do so in the past. This is not because she suffers some form of psychological disorder, but is the result of the accumulation of her experiences with him in the relationship. For her judgment and hence her capacity to protect herself against him to improve, she will require psychological counselling, and an extended, at least twelve month, period of no contact with him, either directly or indirectly.

7. I interpolate at this point that in circumstances where the Father has faced difficulties with numerous criminal charges involving incarceration and the like in the meantime, the period of twelve months referred to has been effected. Mr W continues at paragraph 67:

   The children, particularly [L], have witnessed significant violence between their parents. There is nothing obvious about them which suggests they have been harmed by this, but I would find it difficult to understand how they have not been. As a result of their experiences, they are likely to be more predisposed to suffering from mental health disorders, particularly anxiety conditions. They are fortunate in that their mother seems to be providing more than adequate care for them. Her psychological and physical health needs therefore to be maintained.

   (emphasis added)

8. At paragraph 68, Mr W observes this:

   From what I understand of the manner that [the Father] has repeatedly sought to reengage with [the Mother] despite any legal restrictions or directions being placed upon him, I cannot have any confidence that if he was to spend time with the children, that he would not take the opportunity to somehow seek out their mother. It also concerns me that, as recently as in the last few days, [the Father] has made contact with [the Mother]. I therefore have the opinion that it is not in the interests of the children to be spending any face to face time with their father due to the psychological and physical risk that this would expose their mother to. I also fear that while [the Mother] remains in Australia, she will always be at risk of being the victim of incursions upon her life by [the Father]. There would be advantages of her returning to Brazil with the children where she will be free to go about her life without fearing that [the Father] might harm her.

   (emphasis added)

9. At paragraph 69, Mr W continues:

   As noted above, I am of the opinion that [the Mother] does not fully understand the risk that [the Fahter] poses to her. With psychological therapy and/or the passage of time, she is likely to understand more of that risk and it will then be likely that she will suffer more psychologically if she considers that [the Father] might make contact with her. Consequently, her capacity to care for the children will be further compromised by her realisation of what I consider to be the true risk that [the Father] represents to her.

10. In a conclusion which is, to say the least, sobering, Mr W observes:

    In closing, I wish to note that in the eight years I have been conducting assessments and preparing reports in family law, and after having prepared over five hundred reports, I have never been concerned for a parent in the way I am concerned for [the Mother] in terms of the physical risk I believe [the Father] poses to her. I have no confidence that any amount of psychological therapy which [the Father] might receive would decrease the risk he poses to [the Mother].

11. It is, in this case, plainly evident that the Mother is, and must remain, the primary carer of these children. It is obvious in the face of Mr W’s report and opinions which I accept, that the Mother’s capacity to provide that care needs to be maintained and enhanced. Mr W points to the plain benefits of the Mother being permitted to relocate to Brazil, and in particular the benefits to the children of the Mother’s parenting thereby being uncompromised potentially in the respects Mr W refers to.

12. I have already noted during the exchanges with the Father this morning that he in fact signed consent Orders which have been made by the Court, which at that time permitted the Mother to relocate to Brazil pending a final trial of the proceedings. The Father informs me by telephone this morning, he not having filed any affidavit material, that he is currently on bail in respect of criminal charges he is facing. He indicated that he was facing five such charges and that he intends to plead not guilty to those charges. He asserts that the trial of those charges should be heard sometime before the end of the year. He was unable to specify the charges in any detail beyond referring to the fact that he is charged with assaults, including at least one count of indecent assault. It is impossible for this Court to be comfortably satisfied as to the actual charges being faced, when they will be heard, and the like, and no evidence or documents to corroborate the Father’s oral assertions by telephone this morning were provided.

13. The Father is entitled to the presumption of innocence, and that plainly means I do not take into account the potential for him being convicted of those charges, but what I can take into account is the fact that, for some time to come it would seem, the Father will be occupied in terms of the criminal proceedings referred to.

14. The history of these proceedings is set out in the Orders that have been made by both the Federal Magistrates Court and by this Court, including by its Registrars, as outlined in the list of documents handed up to me this morning on behalf of the Mother. I will not recount that history in full, but it is clear from a reading of the Orders that there have been several occasions, and many directions made, which the Father has not complied with and which, in the result, caused previous listings of this matter for trial to be aborted.

15. Those Orders included an Order of Principal Registrar Fillipello, made on 28 April 2012, in relation to directions for the trial, and the Father was clearly on notice by that Order and by previous Orders and directions that were made by the Court of the prospect of this matter proceeding on an undefended basis in the event of his failure to comply with directions.

16. The subject Orders sought by the Mother are as contained in her Amended Response filed on 10 May 2011. The Father filed, on 28 June 2011 in response to the Mother’s filing of an Amended Response, an Amended Application seeking that the Mother be estopped from relocating to Brazil, and other Orders. That resulted in (again) this matter being moved towards a trial and on 13 July 2011, Justice Murphy set the matter down for a trial commencing on 6 October 2011. In the result, that trial had to be vacated by Order of Registrar Kane on 22 September 2011, because the Court had received a notification from Corrective Services in New South Wales to the effect that the Father was on remand, and because his status was no longer as an inmate or prisoner, he could not be produced for the trial.

17. On 28 September 2011, a Registrar made further directions and Orders in terms of the Father filing further material. There was a notation in that Order that the Mother had foreshadowed making an application at the trial for Orders for costs and expenses thrown away on the vacated trial. On 27 October 2011, the Mother filed an Application in a Case seeking permission to travel to Brazil to reside there pending the trial and indeed, as I have already referred to, in the result the Father ultimately consented to such an Order being made (subsequent to a contested hearing of that application) and that Order was made as well as the Father also filing the Notice of Discontinuance of all proceedings on 8 March 2012 as I have referred to.

18. With that background, having regard to Part VII and the factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in particular, I am comfortably satisfied that it is in the best interests of these children for the Court to make final Orders in the terms sought by the Mother.

19. I find, taking into account in particular Mr W’s evidence, that the Court could not be satisfied that there is benefit to these children of a relationship with the Father in his current circumstances. I also find that there is a need to protect the children from physical or psychological harm that might result from the involvement of the Father in the manners and respects referred to by Mr W. The children are obviously too young for any views of theirs to be given any weight, and as to the nature of their relationship with their parents, it is plain enough on the material from the Mother before me that she has a good caring relationship with the children and indeed there is no criticism by the Father of her capacity to provide care. He tells me this morning that she is a, “…great mother,” and he does not suggest otherwise than that the children should be in the primary care of the Mother.

20. Many of the matters identified by Mr W have relevance to various considerations set out in s 60CC of the Act. In terms of the likely effect of changes in the children’s circumstances, the Mother’s affidavit filed in support of her interim application on 27 October 2011, set out the essential bases upon which she says it is in the children’s best interests that she be allowed to relocate to Brazil. The Mother has a degree and family support in Brazil, and in circumstances where there is no evidence before me of any substantial child support having been contributed by the Father, I find that there are financial considerations and substantial benefits for the children in being allowed to live in Brazil with their mother.

21. I am satisfied that, in circumstances where the Mother is living in Brazil, she will have the capacity to provide for the children’s needs, and that their emotional and intellectual needs will be fulfilled by her parenting in those circumstances, absent the involvement of the Father. Plainly enough, in this case, the primary considerations loom large and I have already made relevant references to those by reference to the evidence provided by Mr W, which I accept.

22. There is, in this case, evidence as to family violence and family violence Orders having been made historically, and there is, as Mr W refers to in his report, the history of the Father’s non-compliance with restrictions that have been imposed upon him by law pursuant to those Orders. I am satisfied that, within the meaning of s 60CC, the Mother has amply fulfilled her responsibilities as a parent with the possible exception as referred to by Mr W of her perhaps historically not having sufficient insight into the potential for the detriment of the Father in terms of his involvement with her.

23. I note that by his consent to the Order for the Mother to relocate to Brazil pending a final trial of the matter, there is plain recognition by the Father of the obvious benefits for the Mother and the children to be living in Brazil in circumstances where he is continuing to confront the criminal charges he faces. I note that, as Mr Smith submits to me, Brazil is a signatory to the Hague Convention. If the Father’s circumstances change and he brings an end to his criminal proceedings, it is open to him, of course, to institute further proceedings at some future point in time.

1. The Father orally submitted to me this morning that his Notice of Discontinuance was filed because he understood he could discontinue the proceedings in Queensland and institute proceedings in Sydney or in New South Wales. I do not accept that submission for a number of reasons, including the most obvious reason, that is, that subsequent to filing the Notice of Discontinuance, the Father has done nothing at all to file proceedings in any Court exercising jurisdiction under the Act, and in circumstances where, given his attendance by telephone this morning, he was plainly aware of the hearing of this matter on an undefended basis today.

2. In those circumstances, and for those brief reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 13 April 2012.

Associate: 

Date:  17 April 2012