Mikono and Perez

[2011] FamCA 587

FAMILY COURT OF AUSTRALIA

MIKONO & PEREZ [2011] FamCA 587

FAMILY LAW – CHILDREN – INTERIM – Where the mother moved with the children to Melbourne temporarily – Whether the mother is permitted to remain in Melbourne with the children in the interim – Where there are allegations of but no findings about violence and abuse – Where protecting the potential worsening of the mother’s wellbeing in the interim is in the best interests of the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Mikono

RESPONDENT: Ms Perez

INDEPENDENT CHILDREN’S LAWYER: Mr Bell

FILE NUMBER: SYC 2973 of 2010

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Coleman & Greig

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stephen W Bell & Associates

Orders

ORDERS (made 21.2.11)

1. All existing parenting orders are vacated.

2. That the mother have sole parental responsibility for N born … 2007 and H born … 2009 (“the children") but in relation to any significant medical, educational or religious issue she is obliged to consult the father and provide him with an opportunity to consider the issue.

3. That the children spend time with the father as follows:

   a)Two weekends each four weeks in Melbourne accompanied by a member of his family or another person acceptable to the mother for a period of 8 hours each day on 2 consecutive days

   b)For the time the father spends in Melbourne the father is to collect the children at the commencement of the time near the B Car Rental Desk, father to return the children on Saturday to D Shopping Centre. On Sunday father collect the children from D Shopping Centre and mother collect from airport.

   c)For one weekend each 4 weeks the mother will cause the children to travel to Sydney to spend time with the father for 8 hours each day on 2 consecutive days

   d)For the travel to Sydney the mother will book airfares and the father will pay the fares in advance of travel

   e)For the travel to Sydney the father will book and pay for the mother's accommodation

   f)The father will arrange and pay for a car with child restraints to be hired for the mother from the airport.  Mother collect children Saturday afternoon from father’s home.

   g)For the time in Sydney the father to be accompanied by a member of his family or another person acceptable to the mother when the children are with him

   h)The father will ensure that the children are not brought into contact with the paternal grandfather

   i)On Sunday mornings mother returns the children to the father’s home at 8:30 am and the father delivers them to the airport at the end of spending time.

4. Parties share the cost of telephone communication in that the mother pay for telephone communication each Tuesday and the father pay for telephone communication Thursday and alternating Sundays

5. The matter to be expedited

6. That within 14 days the parties and Independent Children's Lawyer agree on a  Part 15 expert and the terms of reference and file consent orders for the Court's approval

7. That a Case Assessment conference date be allocated for property matters.

8. Spending time shall commence in accordance with schedule 1 attached.

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.

SCHEDULE 1

Pattern for spending time

Week

1. February 25-26               break

1. March 5 -6  Melbourne

1. March 12 -13                  Sydney

1. March 19-20                   Melbourne

1. March 26-27                   break

IT IS NOTED that publication of this judgment under the pseudonym Mikono & Perez 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 CAIRNS

FILE NUMBER: SYC 2973 of 2010

Mr Mikono

Applicant

And

Ms Perez

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings are a review of a decision made by Loughnan JR (as he then was) for the mother to be permitted to continue to live in Melbourne with the children and the father to be able to visit them each weekend for five hours each day, supervised. The mother was granted interim sole parental responsibility with the requirement that she consult with the father. Subsequent to the decision of the Judicial Registrar, consent orders were made requiring the mother to bring the children to Sydney for one weekend each month.

2. The orders relate to N (aged 4) and H (aged 2).

3. The mother moved to Melbourne in April 2010. This move was initially a temporary move, which she said was authorised by the father, provided she gave an undertaking to return. She seeks to remain in Melbourne, where she says she can feel secure and establish herself with the support of her family. The mother alleges controlling behaviour and domestic violence by the father, and recently also indicated the father may have acted inappropriately with the oldest child.

4. Until the final hearing regarding the residence of the children takes place, I must decide whether it is in the children’s best interests to continue or alter the current orders relating to where the children will live and spend time, and when that occurs.

APPLICATIONS

1. The mother seeks sole parental responsibility for the children, with consultation with the father, as per the orders of Loughnan JR. She seeks to be permitted to live in Melbourne with the children. Her affidavit of 18 February 2011 amends her earlier Response document in terms of her proposal for the father’s time with the children. The mother proposes that the children have supervised time with the father two weekends each month in Melbourne, for 8 hours each day. The mother suggests she also continue flying with the children to Sydney once a month to facilitate more time between the father and the children.

2. The father primarily seeks that the mother return to Sydney with the children and he spend time with them from noon to 5pm each Tuesday and Thursday, and one full day each weekend. In the alternative, the father seeks time with the children in Sydney each fortnight, after picking then up from Melbourne around Friday lunch time (depending on flights) and returning them late afternoon on Sunday. The father seeks to maintain telephone communication three times a week, with the option of speaking to the children briefly on the other days to say ‘good night’. The father wants equal shared parental responsibility.

3. Counsel for the Independent Children’s Lawyer indicated he supported the mother’s desire to stay in Melbourne with the children and for her to have sole parental responsibility. He supported a regime by which the mother travelled to Sydney once a month with the children, and the father travelled to Melbourne twice a month. The father could see the children for 8 hours each day contact is scheduled, provided his time with them is supervised.

DOCUMENTS RELIED UPON

1. The applicant father relied on the following documents:

   8.1.Amended Application in a case filed 31 August 2010;

   8.2.Father’s affidavits filed:

   8.2.1.15 February 2011;

   8.2.2.14 February 2011;

   8.2.3.31 August 2010;

   8.2.4.21 June 2010;

   8.2.5.13 May 2010;

   8.3.Affidavit of Mr F Mikono sworn 14 February 2011;

   8.4.Affidavit of Ms G Mikono filed 13 May 2010;

   8.5.Affidavit of Ms I Mikono sworn filed 13 2010; and

   8.6.Affidavit of Ms J Mikono filed 13 May 2010.

2. The respondent mother relied on the following documents:

   9.1.Mother’s Amended Response filed 23 June 2010;

   9.2.Mother’s response to an Application in a Case filed 6 September 2010;

   9.3.Notice of Child Abuse filed 8 June 2010;

   9.4.Mother’s affidavits filed:

   9.4.1.18 February 2011;

   9.4.2.23 June 2010;

   9.4.3.8 June 2010;

   9.4.4.4 June 2010 (primary affidavit);

   9.5.Mother’s Financial Statement filed 23 June 2010;

   9.6.Affidavit of Mr K filed 18 February 2011;

   9.7.Affidavit of Ms L filed 18 February 2011; and

   9.8.Affidavit of Ms M filed 3 September 2009.

SHORT CHRONOLOGY

1. The mother was born in 1970 and is aged 41.

2. The father was born in 1972 and is aged 38.

3. The parties commenced cohabitation in February 2005.

4. N was born in 2007 and is now aged 4 years.

5. H was born in 2009 and is now aged 2 years.

6. The parties separated 2 February 2010.

7. The mother relocated temporarily with the children to Melbourne in April 2010.

8. Loughnan JR made orders 28 June 2010.

CHILDREN’S BEST INTERSTS

Primary considerations

1. I am required to make an order in the children’s best interests and my primary consideration is to ensure the children have the benefit of a meaningful relationship with both parents and are protected from harm. The mother claims that since the orders of 28 June 2010 and the visiting arrangement put in place that day, the children’s relationships with their father have improved. The mother therefore submits that the meaningful relationship between the father and the children can be maintained over the distance from Melbourne to Sydney. The father says that given the children’s ages, his relationship with them is best served by very frequent time with them, and this requires geographic proximity. The mother said the father has not complained that his relationships with the children are not meaningful, however counsel for the father notes that while the relationships may have improved, they may not have the chance of improving beyond a certain level.

2. Family violence is a major issue in the case where the mother alleges violence against herself and the children, perpetrated by the father.

3. The mother alleges that the father has been verbally and physically abusive to her, and sometimes verbally abusive in front of the children. These are detailed in her Notice of Child Abuse or Family Violence. She also alleges that the father verbally and physically abused N by:

   20.1.criticising the child in “teacher/student” role play;

   20.2.pushing the child on the top of his head to the ground;

   20.3.telling the child that people were laughing at him;

   20.4.swearing at the child;

   20.5.throwing the child’s possessions in anger; and

   20.6.grabbing the child by the wrist, throwing him across the room and smacking him on the bottom a number of times.

4. After the hearing before Loughnan JR (as he then was), proceedings involving the parties in a Local Court concluded. Common assault charges against the father were dismissed and the mother was unsuccessful in obtaining an Apprehended Violence Order on the basis that she now lived in a different city from the father. The Magistrate apparently found, however, that the mother did have reasonable grounds for concern and that the father’s behaviour would intimidate her. The father relied upon the result in the Local Court to suggest that there was no substance to the assertion by the mother that the father was abusive. I am unable to reach that conclusion on an interim basis. The charge of assault against the father would have been determined on a different standard of proof. The issue at the final hearing will centre around findings about family violence on the balance of probabilities and how any behaviour of the father affects the parenting orders that are made.

5. There is, as yet untested, information in these interim proceedings in the counselling notes of Ms A. Those notes detail the mother’s fears before separation and her reports of the father verbally and emotionally abusing the mother as well as hitting her, grabbing her by the jaw, sitting on her and pulling her hair, at times in front of the children.

1. The mother recently made the allegations of sexually inappropriate behaviour by the father in her affidavit of 18 February 2011. The father said this was because the physical abuse case had now collapsed, so the mother needed a new reason to stay in Melbourne. The allegations were that on 9 January 2011 the mother observed :

   [N] fondle himself in an unusual way, and he then bent over to attempt to lick his private parts.  I said to [N] words to the effect, "What are you doing?  Who does that?"  [N] replied in words to the effect, "[P] does it…sitting on his couch. [P] is [N’s] name for his father]

   On two occasions [N] has stuck his tongue out and approached [H] trying to lick [H's] tongue, laughing and saying, "we're kissing".  [N] then said to me in words to the effect of: "Mummy, stick your tongue out”. I replied in words to the effect of: "No, mummy doesn't want to kiss you like that". [N] then said in words to the effect of: "[P] does.

2. The father totally denies ever doing the acts such as those described in the preceding paragraph. Counsel for the father said that such evidence should be discounted because:       

   24.1.the mother did not raise these allegations with her two counsellors, despite her raising a great many other issues with her primary counsellor;

   24.2.the allegations were never the subject of correspondence between the parties;

   24.3.the allegations have been revealed “in a forensic context” on 18 February 2011 and not revealed at a time that one would expect them to be raised, with the initial ‘disclosure’ in early September 2010;

   24.4.the allegations are inconsistent with comments in her affidavit that the time between the father and the children is working well, and makes no complaints about supervisors;

   24.5.there has always been another person present with the father and children; and

   24.6.the mother facilitated the children spending time with the father, on at least eight occasions between the time of the allegations and the hearing, though supervised, and has increased the frequency of these occasions and their duration.

3. Counsel for the Independent Children’s Lawyer said the mother has simply reported what N has said and has gone through the proper channels to have these statements dealt with. In the meantime the Independent Children's Lawyer says the mother is trying to do the right thing and trying to maintain a relationship between the children and the father. The mother has requested precautions: that the father be supervised and that the children not spend overnight time with the father.

4. The mother has concerns about the paternal grandfather, who had charges against him including inappropriate sexual conduct against a minor. The paternal grandfather was acquitted of those charges on 15 December 2010. While the father concedes that the children should no longer come into contact with the paternal grandfather, the father has not shared with the mother the details of the allegations against the paternal grandfather. The father maintains the paternal grandfather has not seen the children since 6 September 2010.

5. In regards to the abuse alleged against the child and mother I am unable at this interim stage to make any assessment of the allegations alleged. This will be a matter for final hearing. I need to exercise some caution given the allegations (albeit untested) which have been made.

The additional considerations

1. The father has suggested the eldest child wants to spend more time with him but he is of the age where his views would not be taken into consideration by the court for his lack of emotional and cognitive maturity.

1. The children have a close relationship with both parents, the mother being their primary caregiver. They have contact with their maternal extended family when they are in Melbourne and the paternal extended family when they are in Sydney, and are exposed to their culture. The paternal grandmother is normally the person who supervises the father in his time with the children. The mother has recently moved out of her sister’s home in Melbourne and is a little farther away from family.

2. The father submits that the mother has failed in the facilitation of his relationship with the children given her relocation to Melbourne. The mother notes that she has made the children available on weekends, and has willingly added to the time the children spend with the father by travelling with them to Sydney once a month.

3. If the mother is not permitted to stay in Melbourne with the children, they will separated from their maternal extended family, and the eldest child will be separated from his new friends and the pre-school at which he has begun to attend. They will however have more access to their father and paternal family. This is the change the mother fears however, given her anxiety which she says results from the father’s past emotional, verbal and physical abuse.

1. The mother suffers from anxiety and is receiving treatment for it. Counsel for the Independent Children’s Lawyer submitted that at an interim stage, it is perhaps in the children’s best interests that the mother's psychological state is protected, so that she can undertake her parenting role to the best of her ability, and continue to receive counselling to put her in better place for the future. He did acknowledge that the mother’s presentation of fear of the father and her actions were inconsistent. She allowed the father into her home at a time when there was a temporary AVO in place. She was herself sometimes the supervisor of the father’s time with the children. The extent and reasonableness of the mother’s fear will be issues for the final hearing.

1. The practical difficulty arising from the children being in Melbourne is of course the travel involved in their seeing the father. The father has outlined in detail the cost to him of travelling to Melbourne, often paying for the travel of a familial supervisor.

2. I do not place great weight upon the father’s concerns about the costs of travelling to Melbourne to see the children. His alternate proposal is to travel to Melbourne to pick up the children, return with them to Sydney for the weekend then return them to Melbourne. On the mother’s proposal, he would incur the cost of one return ticket and accommodation (or two if he brings a supervisor). His proposal necessitates four return tickets, or perhaps three if the youngest child does not yet require a seat of his own, as well as car hire.

3. The mother has been assisting in making the children available to the father by taking the children to Sydney once a month, but her financial statement shows this is difficult for her. The mother has now moved out of the maternal family home and into her own home in Melbourne, which the father says is an ill-conceived move, given the mother’s financial difficulty. He also says it limits her ability to contribute to travel costs. The father also criticises this move given that family support was said to be a motive for initially moving to Melbourne. Whether the mother’s move to her own independent accommodation with the children was inappropriate is a matter which may or may not be explored at the final hearing.

4. The additional difficulty with the travel of the children to Sydney is that the youngest child is still breastfeeding, though it was suggested he should be weaned by June. The mother submitted that it is inappropriate for the father to put his costs of travel at a priority over the children’s wellbeing in being with their primary caregiver in an environment in which she feels more content.

5. The mother has previously raised the issue of the eldest child’s separation anxiety, though the father notes the mother says the child is doing very well at preschool, and in separating from her in the current arrangement with the father.

1. I have no doubt that both parents are dedicated to their children and take the responsibilities of parenthood seriously. The mother wishes for me to consider the father’s actions of fighting for the children to return to Sydney to be another way he attempts to control her. The father’s allegedly controlling behaviour will be the subject of evidence at the final hearing, but at this interim stage, I acknowledge his genuine desire to see and spend adequate time with his two young children, so that normal attachments might be formed and maintained.

2. The mother and father have been able to cooperate thus far to organise weekend time between the father and children. I do not think any order I make will necessarily lead to further proceedings regarding enforcement.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. The mother says the violence and abuse in the past is of such a level that it would impair the ability of the mother to properly share parental responsibilities with the father and parent the children to the best of her ability should she be required to do so. It is submitted that the parties only share the level of communication that permits them to reorganise telephone calls and visits, though the mother acknowledges she and the father have begun to communicate.

2. Although I have not made any findings relating to violence, I will err on the side of caution and noting the mother’s anxiety in relation to the father, find that pursuant to s 61DA(3) of the Family Law Act 1975 (Cth), it would not be appropriate in the circumstances for the presumption to be applied when making the order. Parental responsibility will remain with the mother, who is the primary caregiver of the children, and she will be required to consult with the father. This is the same order as the one previously made by the Judicial Registrar.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. As I have not ordered equal shared parental responsibility I am not required to consider the practicality of the children spending equal time with each parent under s 65DAA(1) FLA. Indeed, the father does not seek this outcome in any case. I am also not required to consider the possibility of substantial and significant time pursuant to s 65DAA(2) FLA. In any case, the children would not be practically able to spend week-day time with the father unless the mother was required to return to Sydney.

CONCLUSION ABOUT BEST INTERESTS AND PROPOSED ORDERS

1. As explained above, I have not made any findings relating to the violence and abuse allegedly perpetrated by the father against the mother. I also have not yet made any findings relating to the sexual, physical, emotional and verbal abuse, allegedly perpetrated by the father against the eldest child. Noting the mother’s anxiety and fear of the alleged behaviour of the father however, I consider it is in the children’s interests to remain in Melbourne at this stage. I consider a return to Sydney would potentially worsen the mother’s well-being and this could impact negatively on the children. A final determination of the appropriateness of this arrangement will be made at final hearing.

2. The father and mother have shown that arrangements can be made for the father to have significant time with the children, now three weekends out of four.

3. Whilst not ideal, I find that the children will be able to maintain a good relationship with the father with this arrangement of three out of four weekends, at least in the short term.

4. I note that the current travel arrangements involve some sharing of costs. The father pays for travel to Melbourne for two weekends in four when he spends time with the children in Melbourne. The mother pays for her travel with the children to Sydney for one weekend in four.

5. The telephone contact with the children will remain as has been ordered.

6. Given the risks inherent in the allegations of violence and abuse, I will err on the side of caution until the matter can be properly ventilated, and have the father’s time with the children supervised. I will also order that the children not spend time with the paternal grandfather, given past allegations and the father’s consent on this matter in the past.

7. The Independent Children’s Lawyer proposed that given the mother’s anxiety and the increasing seriousness of the allegations against the father, that the matter be expedited. I was informed that the orders of Loughnan JR transferred the proceedings to Melbourne. I agree with the Independent Children’s Lawyer that the proceedings should be expedited for the reasons she gave but also the father’s fears of the tyranny of distance and its possible effect on the father’s relationship with the children. Having the proceedings transferred to Melbourne will create difficulty with expedition. I therefore intend to have the proceedings remain in Sydney and will dismiss those orders of Loughnan JR accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 27 July 2011.

Associate:

Date:  27.7.2011