Miller and Vesco
[2008] FMCAfam 224
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER & VESCO | [2008] FMCAfam 224 |
| FAMILY LAW – Undefended hearing – sole parental responsibility – father in Italy – prior Hague proceedings – application granted. |
Family Law Act1975, ss.61DA(4), 60CC
| Director General, Department of Community Services & Marshall [2007] FamCA 1116 |
| Applicant: | MS MILLER |
| Respondent: | MR VESCO |
| File Number: | SYC 640 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 27 February 2008 |
| Date of Last Submission: | 27 February 2008 |
| Delivered at: | Sydney |
| Orders Delivered on: | 27 February 2008 |
REPRESENTATION
| Solicitor-Advocate for the Applicant: | Mr Kramer |
| Solicitors for the Applicant: | Horowitz & Bilinsky |
| The Respondent: | No Appearance |
ORDERS
The Child M born in 1996 (“the Child”) live with the Mother.
The Mother have sole parental responsibility for the Child.
The Mother keep the Father informed of all matters relevant to the health, welfare and wellbeing of the Child.
The Father have telephone, postal and email contact with the Child at all reasonable times.
Until further order the Respondent MR VESCO, by himself, his servants or his agents is hereby restrained from removing or attempting to remove the Child M born in 1996, male, from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Father from removing or attempting to remove the said Child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said Child names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The time for filing an appeal against these orders is extended to twenty-eight (28) days after the publication of reasons.
IT IS NOTED that publication of this judgment under the pseudonym Miller & Vesco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 640 of 2007
| MS MILLER |
Applicant
And
| MR VESCO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is between the applicant mother, Ms Miller, who is 54 years old, and the respondent father, M, who is 64 years old. It is a parenting matter concerning the child M, who is almost
12 years old. The mother is seeking sole parental responsibility for M, as well for him to live with her, have telephone and email contact with the father, and for M to be placed on the airport watchlist such that M cannot be removed from Australia by his father.
The matter has been undefended throughout its entirety, and as such these orders and judgment are made following an undefended hearing conducted on 27 February 2008. In this judgment I will have regard to the mother’s affidavits filed 27 February 2007, 8 November 2007 and 25 February 2008. I made orders on 27 February 2008 and now publish my reasons for making those orders.
Background
The mother, who was born in Egypt, immigrated to Australia with her immediate family in the 1970’s and became an Australian citizen in 1983. Subsequently she worked throughout Europe, including Italy. During her travels she met the father, in Milan, around 1983. Members of her extended family remain in Australia.
The father was born in Northern Italy in 1944. On the evidence provided in the mother’s affidavit filed 8 November 2007, it appears that he has lived the majority of his life in this town, with the exception of brief periods living with the mother in Australia. His brother, E, and E’s wife M are said to live in a town nearby to the father’s home town, which the father continues to reside to the present time.
The mother alleges in her affidavits that the father has a criminal history resulting from trafficking in stolen vehicles and theft, being imprisoned at various times in Italy, Austria and Tunisia.
The parents began their relationship about six months after they met in Milan. They married in 1991, and M was born in 1996.
According to the mother’s affidavit evidence, the relationship was characterised by regular violent outbursts on the part of the father, with allegations that the father’s assault on her caused the premature birth of M. The mother furthermore alleges that the father’s brother, E, and his wife M pressured her to surrender M to them to raise as their own child, a move which was supported by the father. The mother also states that she was subjected to financial and emotional abuse throughout the relationship.
In late 1996 the mother came to Australia with M, with the consent of the father, to visit her dying father. They remained in Australia until March 1998, at which time the mother says she yielded to the father’s request that she return to Italy with M. She states that upon her return, M was taken by E and M and not returned to her for a period of three months.
In 1999 the mother’s family again assisted her to leave Italy and return to Australia with M. She enrolled M in kindergarten and remained here with him until early 2000, when the father called her to state that he only had one month to live. She returned to Italy with M, at which point she discovered the father was lying and claims the father took M’s passport to prevent her leaving again. The mother states it was at this time that the father’s violence escalated.
The mother describes numerous acts of violence perpetrated against her by the father, many of which were in M’s presence, and which resulted in physical injury to the mother such as a dislocated jaw and broken teeth. The police were called on a number of occasions by concerned neighbours. The mother states that as M got older he attempted to intervene on her behalf, which would result in M also being hit. Furthermore, she states that the father insisted M sleep with the father until M was nine years old.
The father spent three months in Australia working in 2003 while the mother and M remained in Italy. Upon his return, the domestic violence continued. The mother also asserts that the father would kick and hit M and verbally abuse him.
In December 2006 the mother was able to obtain an Australian passport for M, issued without the father’s knowledge due to the violent situation the mother and M were living in. The mother then came to Australia with M on 31 December 2006.
The mother began proceedings in the Federal Magistrates Court on
31 January 2007. The matter first came before me on 7 March 2007, on which date orders were made for M to be placed on the airport watchlist, with the mother’s solicitor to notify the father of the proceedings and the orders made by registered post.
On 18 April 2007, the matter was again brought before me, this time at the institution of the Director-General of the Department of Community Services, who had brought proceedings on behalf of the father under the Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”). The stay of proceedings sought by DOCS was granted pending the outcome of the Hague Application in the Family Court. I will discuss the Hague proceedings in more detail later in this judgment.
The matter was relisted before me subsequent to judgment being delivered in the Hague proceedings.
A letter was received from the father on 21 November 2007, stating that he refused to appear by telephone, and that he felt professional representation would be fruitless given his lack of success in the Hague proceedings. He instead requested that I read the affidavits filed on his behalf in the Hague proceedings. As these affidavits have not been filed in these proceedings, either as affidavits or annexures to affidavits, and the father has not filed a response or notice of address for service, I consider the matter to be undefended.
On 22 November 2007 I made orders setting the matter down for an undefended hearing, with orders that the mother’s solicitor notify the father by registered post of this and the likely consequences of non-attendance on the hearing date. M was again placed on the airport watchlist.
On 27 February 2008 the undefended hearing proceeded with the orders being made in terms of the mother’s final application.
Hague Convention Proceedings
As stated above, Hague proceedings were brought by the Central Authority seeking M’s return to Italy. The matter was heard by Mushin J, who delivered judgment on 21 September 2007, with the judgment published as Director General, Department of Community Services & Marshall [2007] FamCA 1116. I incorporate that judgment into my reasons for judgment in this matter. However, I will briefly outline below sections of the judgment which were of particular assistance to me in deciding this present application.
The Hague application was opposed by the wife on two discretionary grounds:
a)That M’s wishes went beyond “the mere expression of a preference for ordinary wishes” and that he “has attained an age, and a degree of maturity, at which it is appropriate to take account of his…views”; and
b)That there was a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
At paragraphs 76 and 78, Mushin J finds that the first ground set out above was made out:
76. The child is aged 11 years and, as is established by the evidence of the Family Consultant, is well able to express his views. As referred to above, the Family Consultant's evidence establishes that the child "has reached an age and degree of maturity at which it would be inappropriate if his wishes were not given significant weight". The detail, context and nature of the expression of the child's views lead me to agree with her opinion. There was no cross-examination of the Family Consultant to challenge those propositions…
78. Having made the findings in the previous paragraph, it follows that the wife has established a ground on which an order for return may be refused. However, by virtue of the inclusion of the word "may" at the beginning of the sub-Regulation, there remains a discretion as to whether I should refuse an order for return. Before deciding that question, I propose considering the question of grave risk. The later consideration of the final discretion is relevant to both paragraphs and particularly so in this matter.
With regards to grave risk, His Honour stated the following at paragraphs 89-90:
89. The evidence of the Family Consultant is fundamental in my consideration of this issue. As previously noted, that evidence was not challenged. I was particularly influenced by the twice stated opinion of the Family Consultant that the child was in “fear and dread” of an order for return. Those words are consistent with the entirety of the child’s expressed views. The concept of an 11-year-old child being in “fear and dread” is most concerning. It is vastly more than a mere statement of preference. It is also more than the concept of “disruption, concern and anxiety” referred to in the majority judgement quoted above.
90. In my view, were I to order that the child be returned to Italy, it is highly probable that he would be traumatised. That translates to a degree of risk which is “substantial and not trivial” as well as being “intolerable … extreme and compelling”. Accordingly, I find that were I to order a return, the child would be placed at a grave risk of psychological harm which would, in turn, place him in an intolerable situation.
In light of the grave risk a return posed to M, and His Honour’s findings with regards to M’s wishes, the application was dismissed, and M was allowed to remain in Australia with his mother.
Report prepared in Hague Proceedings
The report referred to above, which was prepared on 17 May 2007 for the purpose of the Hague proceedings, was put into evidence before me as annexure AM6 to the mother’s affidavit filed 8 November 2007. Accordingly, I have regard to it as supporting the mother’s assertions that M was also subjected to physical and emotional abuse by his father. I note that in the Report at paragraph 7 the Family Consultant records M’s allegations that his father sexually abused him also. The Family Consultant reports M’s clear wishes with regards to spending time with his father at paragraph 10:
M says that he “never” wants to see his father again, adding “I don’t want to have him for my dad”. He referred to his father as “Fred”(substitution for real first name) and said he had started to do this when he came to Australia because “He doesn’t deserve to be dad”. He added, “I don’t miss him or think about him. My mum says call him, talk to him, but I don’t. I don’t want to”.
I also place weight on the Family Consultant’s statement at paragraph 14 of the report with regards to M’s wishes: “He has reached an age and degree of maturity at which it would be inappropriate if his wishes were not given significant weight”. M’s wishes should be factored in to any decision I make with regards to parenting arrangements.
Discussion
I am satisfied the father is on notice as to these proceedings. His letter to the Court dated 16 November 2007 indicates this. I am satisfied that had he wished to do so, he could have participated in the proceedings.
M’s mother has been his primary caregiver since birth, and clearly has a close relationship with M. In the absence of any evidence by the father, I accept the mother’s evidence about the abuse both she and M were subjected to by him. This evidence is supported by M’s disclosures to the Family Consultant in the report for the Hague proceedings.
The mother has obtained satisfactory accommodation for herself and M, and the school reports that form annexure A to the mother’s affidavit filed 25 February 2008 demonstrate that M is adjusting well to his life in Australia.
Applicable Law
The presumption of equal shared parental responsibility is rebutted as all the factors indicate it would not be in M’s best interest for it to apply: s.61DA(4). This is a case in which the evidence indicates the relationship between the child and the father is not meaningful in the positive sense contemplated in s.60CC(2)(a), and, in any case, given the issues in this matter, it is unlikely that such could be re-established. M has expressed very strong wishes which I am prepared to take into account in making these orders (s.60CC(3)(a)). I am satisfied that M needs to be protected from the risk of physical and psychological harm that his father poses to him (s.60CC(2)(b)). M has a very strong relationship with his mother, while on the evidence he has a very negative relationship with his father (s.60CC(3)(b)). Despite this, the mother has, in recognition that M’s thoughts and feelings may be subject to change as he matures, sought that the father have communication with M through electronic communication and letters (s.60CC(3)(c)). M’s separation from his father does not cause me concern for the reasons stated above (s.60CC(3)(d)). The cost of the limited orders for the father to communicate with M also does not concern me (s.60CC(3)(e)). The mother has demonstrated that she is able to meet M’s needs, whereas I have significant concerns about the father’s ability to do so (s.60CC(3)(f) and (g)). The mother’s evidence and actions satisfy me that she will continue to act in a child-focussed manner (s.60CC(3)(i)). Most significantly, the issues of family violence strongly indicate that the orders I have made are appropriate (s.60CC(3)(j)). It is rare for the Court to make orders for sole parental responsibility, with limited opportunities for sustaining a relationship between a child and a parent, but I am more than satisfied that it is appropriate to do so in this case.
Conclusion
As the father lives in Italy and is unlikely to reside in Australia, and in view of the issues outlined above, I find it to be in M’s best interests to make an order giving sole parental responsibility to the mother. Accordingly, I will make orders in the terms of those sought by the mother in her Amended Application filed.
For the reasons of the abuse and violence discussed above, I also find it appropriate to place M on the airport watchlist preventing his removal from Australia by his father or his father’s agents. I will not prevent the mother from travelling with M.
While M has expressed strong views with regards to having communication with his father, I will make an order for there to be telephone, letter and email communication. It is to his mother’s credit that she seeks this order. Although M expresses strong reluctance to communicate with his father, as he is only 11 it is possible that he may, in the future, change his mind. These orders allow for that to occur.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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