Piotrowski and Piotrowska
[2008] FMCAfam 1374
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PIOTROWSKI & PIOTROWSKA | [2008] FMCAfam 1374 |
| FAMILY LAW – Child almost 17 years old – father living in Poland since 1998 – no effective contact until father’s attempt to effect contact in 2008 – child’s wishes clear – application for summary dismissal of father’s application granted. |
| Family Law Act 1975, ss.60CC, 61DA |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR PIOTROWSKI |
| Respondent: | MS PIOTROWSKA |
| File Number: | MLC 7492 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 8 December 2008 |
| Date of Last Submission: | 8 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms A.E. Carter |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
That the mother have sole parental responsibility of the child [X] born in 1992.
That the mother have the sole parental responsibility of making decisions about the day to day care, welfare and development of the said child.
That the child live with the mother.
That the child spend time with and communicate with the father in accordance with the child’s wishes.
Otherwise all extant applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Piotrowski & Piotrowska is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7492 of 2008
| MR PIOTROWSKI |
Applicant
And
| MS PIOTROWSKA |
Respondent
REASONS FOR JUDGMENT
Mr Piotrowski wishes to see his daughter, [X], who was born on
27 March 1992.
The difficulty is that Mr Piotrowski left Australia in 1998 and has scarcely seen his daughter until 2007. When he did so, [X] swore at him and told him in no uncertain terms to leave her alone.
Mr Piotrowski says that his daughter has been alienated from him by her mother, Ms Piotrowska. Mr Piotrowski says that he is concerned for his daughter's health because he asserts that the mother and daughter are socially generally alienated and alone.
The father points to the contrast between a number of email messages sent by [X] to him in 2007 and [X]’s negative response when he tried to actually meet her in August 2008.
For the reasons that follow, I have come to the view that the Respondent's application for the summary dismissal of
Mr Piotrowski's application, made orally during submissions, should be granted.
The Facts
The father was born in 1967 and the mother in 1966. They were born and lived in Poland until they came to Australia in 1991, having married in Poland in 1990.
It is clear that the marriage was not successful and that they decided to separate in 1998. The mother decided to stay in Australia with [X] and Mr Piotrowski went back to Poland.
Mr Piotrowski returned to visit his family and spent what he described as "a few moments" together in 1999.
According to the father, thereafter the mother changed her telephone number, obtained an unlisted number and has basically frustrated all contact between the father and [X].
The parties were divorced in October 2005 by an order from the District Court in Lodz, Poland.
In January 2007 the father hired a private investigator to find where his daughter was. Having done this and allegedly having made his email available to [X] via the investigator, the father asserts that [X] sent him a number of emails. He appended those emails to his first affidavit and they would appear to involve a relatively affectionate interchange.
The mother's affidavit asserts that the husband's stay in 1999 was a week long during which time, she asserts the father spent time with [X] on each day.
The mother confirms that in 2002, she refused to allow the husband on one occasion to see [X] because she felt that this would be traumatic.
According to the mother's hearsay account, the child felt somewhat pressured by the contact from the private investigator in 2007 and eventually gave up her email contact with the father because she felt dissatisfied with it. According to the mother's account, the husband sent further emails insisting that [X] write to him which [X] found a nuisance and so she blocked his email account. The mother denied pressuring the daughter to do so in any way.
The mother asserts that in November 2007 the father sent correspondence to [X]’s school. This is consistent with the father's account. The mother says that [X] was embarrassed by the whole process.
It appears that on 12 August 2008, the father simply approached the child unannounced at a train station. The child asked him to leave.
Similar events occurred the following day. The mother asserts that the child was shaken by the incident.
These endeavours to unilaterally impose contact continued on 15 August 2008, 22 August 2008 and 25 August 2008.
The husband has forwarded a letter to the Court dated 4 December 2008 which responds to the mother's affidavit. It is clear relevantly from that letter that the daughter's response was to swear at her father and tell him to leave her alone.
The matter was the subject of a telephone link-up on 8 December 2008. Mr Piotrowski adopted the position essentially that his daughter had been manipulated against him. He pointed to what he said was the affectionate nature of the emails in 2007. He asserted that the change manifested by his daughter's behaviour in 2008 could only have occurred because of alienation by the mother. He said that his daughter would be living in isolated social circumstances because the mother had no friends or contacts and he inferred from this that his daughter needed counselling because of the mental ill health that he inferred as a result.
Counsel for the mother submitted that the daughter's wishes were clear and should be respected, bearing in mind that she is now approaching 17 years. She submitted that the application had no reasonable prospects of success and should be summarily dismissed.
The father, it should be noted, confirmed to the Court that he had no immediate or present plans to visit Australia but wished that there be Court orders both to enable his daughter to have counselling and for him to see his daughter when he might visit at some unspecified date in the future.
Consideration
This is a most unusual case which turns very much on its own facts. Albeit that it is an application for summary dismissal, it is still in my view appropriate to follow what was described by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 as "the legislative pathway".
First, I must consider whether equal shared parental responsibility should be applied. In my view the presumption in s.61DA of the Family Law Act 1975 (“the Act”) does apply because there are no grounds to believe that there has been abuse of the child or family violence.
Nonetheless, it is clear in the particular circumstances of this case that the presumption of equal shared parental responsibility is not appropriate in the children's best interests.
The father has had virtually no involvement with this child since 1998. Such involvement as he has had has been problematic.
[X] has lived with her mother alone for over half her life and plainly has a very close relationship with her. It is clear in these unusual circumstances that equal shared parental responsibility will only give rise to further contests between the parties which in itself is likely to be unsettling to [X]. The father's endeavours to exercise parental responsibility have only caused the child embarrassment at her school and on those occasions when he has tried to see her unannounced. In my view, there should be an order for sole parental responsibility in favour of the mother.
Equal time and substantial and significant time are plainly totally impracticable in the circumstances of this case.
In these circumstances, I must consider making such orders in the Court's discretion as are likely to be in the best interests of the child as a result of the consideration of the matters contained in s.60CC of the Act.
Here, the decisive considerations are clear:
a)[X] is almost 17 and has expressed clear views about what she wishes to happen. Those views should be accorded respect;
b)there is no evidence of any objective sort to support the father's assertion that [X] requires counselling, is unwell in any way, or requires for any other reason the sort of psychological counselling the father seeks. The father does not appear to understand that the emails in 2007 simply do not present in such a fashion as to give rise to the inferences he seeks now to draw from them;
c)the father's proposals as to him spending time with [X] seem unlikely to give rise to any time prior to [X] turning 18 in any event.
I should make it clear that although I have listed three matters, it is clear that [X]’s wishes are the overwhelming and by far the most significant consideration.
If this matter were somehow to go to full trial (and this would be difficult, given that the father does not propose to come to Australia in the foreseeable future and cross‑examination could scarcely take place in any effective way over the phone) the conclusion would inevitably be, even on the father's own evidence, that his daughter does not wish to see him and the Court would not be likely to make her do so.
In my view, this case has no reasonable prospects of success and the application should indeed be summarily dismissed.
I will therefore make the orders sought in the mother's response which, it should be noted, provide for [X] to spend time with her father as she may desire.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 23 December 2008
0