NAKOTONI & MURPHY

[2016] FamCA 397

FAMILY COURT OF AUSTRALIA

NAKOTONI & MURPHY [2016] FamCA 397

FAMILY LAW – CHILDREN – Best interests – With whom the child should live – Where the child is very young – Where the child had spent the majority of his life in the care of the mother – Orders made for the child to live with the mother and spend time with the father

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA(2)

APPLICANT: Mr Nakotoni

RESPONDENT: Ms Murphy

FILE NUMBER: SYC 4282 of 2014

DATE DELIVERED: 25 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 May 2016

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	In Person

Orders

IT IS ORDERED

1. That the child B born … 2014 (“the child”) live with the mother.

2. That the child spend time with the father as follows:

   (a)From the date of these orders until 24 April 2017 on one day each alternate weekend between the hours of 9 am and 2 pm as agreed between the parties in writing or failing agreement on each alternate Saturday;

   (b)From 25 April 2017 until 24 October 2017 each alternate weekend from 10 am on Saturday until 10 am on Sunday;

   (c)From 25 October 2017 each alternate weekend from 10 am on Saturday until 5 pm on Sunday; and

   (d)Such other time as the parents in writing agree.

3. That unless otherwise agreed all changeovers for the purpose of the father spending time with the child shall take place at McDonalds Family Restaurant, Suburb C.

4. That the mother facilitates the father communicating with the child by Skype as agreed between the parties or failing agreement each alternate evening between 6.30 pm and 7.30 pm Australian Eastern Standard Time.

5. That with respect to Skype communication:

   (a)       The father shall instigate contact at first instance;

   (b)The mother shall do all things necessary to ensure that her Skype account is active within these times and advise the father within 24 hours via email of any changes occurring to her Skype account.

6. That each party keep the other informed of any changes in their email addresses and Skype contact details within 24 hours of any change.

7. That these orders shall be sufficient authority to authorise any preschool, school, doctor or hospital to release to either party any information relating to the child.

8. That each party is restrained from denigrating the other parent or any family member within the presence or hearing of the child.

9. That in the event of the child suffering a medical emergency requiring medical attention while in the care of either parent:

   (a)       The other parent is to be notified as soon as practicable;

   (b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible;

   (c)The medical practitioner or medical facility must be advised that the other parent has access to the child’s medical records and information should be provided to the other parent on request.

10. That Mr Nakotoni (“the father”) born … 1975 and Ms Murphy (“the mother”) born … 1983 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child B (male) born … 2014 ( “the child”) from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further Order of the Court.

11. That as soon as practicable the Court notifies the Australian Federal Police of these orders.

12. That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nakotoni & Murphy 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 SYDNEY

FILE NUMBER: SYC 4282  of 2014

Mr Nakotoni

Applicant

And

Ms Murphy

Respondent

REASONS FOR JUDGMENT

1. B, born in 2014 (“the child”), is the child of Mr Nakotoni (“the father”) and Ms Murphy (“the mother”).

2. The father and the mother met and formed a relationship in Asia. The father is the citizen of an Asian country and the mother is an Australian citizen. The father and the mother came to Australia in December 2013 and lived together in Suburb D until 9 July 2014 when the child was less than three months old. The child  was born in Australia.

3. After the parents separated, the child remained living with his mother.

4. Although the evidence is not clear, it appears that, at some time after separation, the father returned to live in Asia and at various times he has also lived in E Town.

5. From the Bar Table the father told the Court that he is currently living in Asia but intends to move to Australia and live in Sydney.

6. On 11 July 2014, the mother filed an Initiating Application wherein she sought, relevantly for present purposes, sole parental responsibility for the child, and orders that the child live with her and spend time with the father as agreed between the parents.

7. On 27 July 2015, the mother filed an Application in a Case, wherein she sought, inter alia, orders that the child spend time with his father in a graduated regime commencing with two hours each week.

8. On 19 November 2015, the interim proceedings were listed before the Senior Registrar who made orders substantially in accordance with the mother’s proposal.

9. By an Application in a Case filed 17 December 2015, the father asked the Court to review the decision of the Senior Registrar.

10. Accordingly, this matter comes before the Court by way of hearing de novo. The father’s application was listed for determination on 23 March 2016, but there was no appearance on that day by either the father or the mother and the application was accordingly adjourned until 18 May 2016 when both parties appeared. Both of the parents represent themselves. The father had the assistance of an interpreter.

11. The Application in a Case filed by the father on 17 December 2015, annexes a document setting out the orders which he then sought. The father then sought an order that the child live with the mother until he reaches three and half years of age on 24 October 2017. Until that time, the father sought orders that he spends time with the child on Saturday and again on Sunday between 10 am and 12 noon on not more than three consecutive weekends, presumably three out of every four weekends. After 24 October 2017, the father proposed that he spend time with the child every second day between 5 pm and 9 pm. From 25 April 2017 to 24 October 2017, the father sought an order that he spend an overnight period with the child, failing agreement from 9 am Saturday to 9 am Sunday.

12. From the Bar Table, the father informed the Court that, since 25 April 2016, he has been spending time with the child each fortnight for a period of four hours. The time takes place at Suburb C which is close to the area where the child lives with his mother.

13. Again, from the Bar Table, the father told the Court that he was living in Asia but had plans to move to Australia and live in the Suburb F area. He wishes to spend time with the child every second week but for a longer period than that which is currently agreed and proposes that overnight time should commence immediately. The father also proposes that from January 2017, the child will attend a preschool in Suburb F every second week and therefore that the child will live with the father in Suburb F every second week.

14. The mother’s proposal is that the orders made by the Senior Registrar should continue in effect.

15. Both of the parents seek orders in relation to the child’s living arrangements far into the future. The mother asks the Court to make orders which will have effect when the child begins school, including time during school term and time during school holidays. The father asks the Court to put in place week about arrangements from the beginning of 2017.The child  is only two years old. He has not yet experienced overnight time with his father. It is impossible to predict what arrangements should be made for the child from the time he is five years old. The orders I propose to make will cover the period until such time as this matter is able to be heard and determined. The parties are, of course, at liberty to reach an agreement in relation to all aspects of the child’s future care.

16. The arrangements for the child’s future care, until such time as this matter can be heard and determined, fall to be determined pursuant to section 60CC of the Family Law Act 1975 (Cth) (“the Act”). There is no dispute that the child will benefit from having a meaningful relationship with both of his parents.

17. Whilst the mother makes allegations that there has been family violence involving her and the father, she seeks orders that the child spend time with the father unsupervised and that that time should extend to overnight time. In those circumstances it is inferred that she does not consider that there is a need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.

18. Then child is only two years old and there is no evidence as to his views, which would, in any event, not be determinative.

19. The parents separated when the child was less than three months old and since that time he has lived in the care of his mother. Because the father has lived either in Asia or in E Town, he has not been able to spend significant time with the child. It is likely that the child’s primary relationship is with his mother and that he is developing a loving relationship, and a relationship of trust, with his father. However, there is no evidence currently before the Court which suggests that the child’s relationship with his father is sufficiently developed that it is appropriate for him to spend extended periods with the father or overnight periods.

20. The fact that the father has not lived in proximity to the child has had the effect that he has not been able to spend time with the child and because of that fact has not had the opportunity to develop their relationship.

21. At the present time it would not be in the child’s best interests to be separated from his primary carer for lengthy periods of time or overnight periods. Such a separation will be appropriate, as the mother recognises, after the child has had the opportunity to spend time with his father and for their relationship to develop. I consider that it would be appropriate for the child to commence overnight time with his father when he is three years old. Initially that overnight time should cease at 10 am on the following day but after six months the overnights should be extended so that the child spends the whole weekend with his father.

22. At the present time, with the father living in Asia, there are immense practical difficulties in the child spending time with the father. The parents have agreed on a regime of communication by Skype, but have a disagreement about a time at which the Skype communication should take place. The mother suggests that Skype contact between the child and the father should take place each second day between 6.30 pm and 7.30 pm Australian Eastern Standard Time. The father agrees that the Skype contact should take place each alternate evening but suggests that it should take place between 7 pm and 8 pm. The mother deposes to the child’s routine. He is usually in bed around 7.30 pm. The times proposed by the mother are more appropriate.

23. The father emphasises the fact that The child’s paternal family are Asian and the importance of him being immersed in Asian culture. The issue of preschool is one which can be determined at the final hearing of this matter. Having regard to the child’s age, it is necessary to give greater weight to the effect of separation from his primary carer than the cultural aspects of his upbringing.

24. The mother asks the Court to maintain the Watch List order. The father is a citizen of an Asian country. The mother deposes to conversations where the father has told her that he has the ability to work online anywhere in the world. In those circumstances it is appropriate to maintain the Watch List order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 May 2016.

Associate: 

Date:  25 May 2016