Santos Da Assuncao and Luccio

[2012] FamCA 141

FAMILY COURT OF AUSTRALIA

SANTOS DA ASSUNCAO & LUCCIO [2012] FamCA 141

FAMILY LAW - CHILDREN - Relocation - Whether children should be permitted to move to Brazil with their mother until the Father's criminal charges are finalised - Whether such a move in child's best interests - Whether such a move prejudices the Father's case to spend time with the children once released - Where there are significant family violence concerns

Crimes (Administration of Sentences) Act 1999 (NSW)
Prisoners (Interstate Transfer) Act 1982 (NSW)

APPLICANT: Ms Santos da Assuncao

RESPONDENT: Mr Luccio

INDEPENDENT CHILDREN’S LAWYER: Mr Kinston

FILE NUMBER: BRC 7731 of 2009

DATE DELIVERED: 15 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Smith & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Shoebridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kinston

Orders

1. 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.

2. There are no Orders for maintenance contained herein.

3. Paragraphs 2, 3, 4 and 5 of the Orders of Federal Magistrate Demack made 9 October 2009 be discharged.

4. Paragraphs 6 and 7 of the Orders of Federal Magistrate Demack made 16 December 2009 be discharged.

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

6. The Respondent Father be restrained and an injunction issue restraining him from lodging any Airport Watch or PACE Alert without an Order of a Court of competent jurisdiction first had and obtained.

7. The Applicant Mother, Ms Santos da Assuncao, be at liberty to relocate the children, L, born … August 2007, B, born … December 2009 and C, born … February 2011, (hereinafter referred to as “the children”) to live outside the Commonwealth of Australia and its territories, particularly to Brazil, South America, pending the final trial of this matter.

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

9. 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 to the children to enable each of them to travel outside the Commonwealth of Australia and its territories.

10. 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.

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

Ms Santos da Assuncao

Applicant

And

Mr Luccio

Respondent

REASONS FOR JUDGMENT

1. On 14 November 2011, I heard the Applicant Mother’s Application in a Case filed on 27 October 2011 seeking Orders, inter alia, that would permit the Applicant Mother to relocate the children, L, born in August 2007; B, born in December 2009, and C, born in February 2011 (“the children”), to live outside the Commonwealth of Australia and to relocate to Brazil, South America, pending the final trial of these proceedings.

2. The substantive proceedings concern parenting Orders with respect to the children.

3. As at 14 November 2011, the Respondent Father remained in custody being held in prison by Corrective Services New South Wales. The Respondent Father had been detained in custody, having been charged on or about September 2011 with several sex-related offences and had been remanded in custody with bail refused, and as he was not therefore currently serving a term of imprisonment, he was not an inmate for the purposes of prisoner transfer under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) or a prisoner for the purposes of the Prisoners (Interstate Transfer) Act 1982 (NSW). There were thus legal and procedural difficulties identified by Corrective Services New South Wales in having the Respondent Father delivered to Court in Queensland for the purpose of the interim hearing. On that basis, arrangements were made with Corrective Services New South Wales for the Respondent Father to attend the hearing of the interim application by telephone link.

4. The matter has an unfortunate history. The parties commenced cohabitation in or about 2003, and separated in either August 2009 (on the Respondent’s version) or in March 2009 (on the Applicant’s version). Either way, the length of the relationship was about six years.

5. Obviously, as at the date of the hearing before me, the children were very young.

6. In the substantive proceedings, the Applicant Mother makes allegations of serious family violence perpetrated by the Respondent Father. Those allegations were denied by him. There have been numerous Family Violence Orders and alleged breaches of those Orders. There are also allegations of family violence in respect of the Respondent’s relationship with his former wife. There is significant evidence of police involvement concerning alleged assaults of the Applicant by the Respondent in New South Wales; for example, an assault in January 2007; an alleged contravention of Domestic Violence Orders in 2004, 2005 and 2007; a common assault in 2005 and 2007 (see Annexures to Applicant’s affidavit filed 21 October 2009); and an alleged assault on 3 June 2010.

7. Family Violence Orders were made on 26 March 2009 and 14 May 2009.

8. The substantive proceedings were instituted by the Father by the filing of an application in the Federal Magistrates Court on 1 September 2009. In that application, the Father sought Orders for, inter alia, shared care. At that stage, the Father was seeking a Location Order and an Order for an interim PACE Alert.

9. Thereafter, a number of Orders were made in the Federal Magistrates Court, including interim parenting Orders and time Orders for the Father, but following a psychologist’s report by Mr W, dated 3 September 2010, an Order was made in the Federal Magistrates Court on 6 September 2010. The Orders then made included, inter alia, an injunction restraining the Father from contacting the Mother directly or indirectly, and restraining him from approaching the Mother wherever she may reside or work. The matter was then transferred to this Court.

10. On 23 September 2010, the Mother filed an Amended Response seeking sole parental responsibility; that the children live with her and have no time with the Father; injunctions preventing the Father from contacting the Mother or the children; and Orders permitting the Mother’s relocation to Brazil with the children.

11. On 28 April 2011, Orders were made by the Principal Registrar of this Court. At that time, the Father was on remand in respect of certain criminal proceedings and was being held under the auspices of Correctional Services New South Wales. By that time, the history indicates that the Father had failed on two previous occasions to comply with Orders for preparation of material for the trial of the parenting proceedings. Both then and subsequently, Orders were made for the matter to proceed on an undefended basis in the event that the Father failed to comply with procedural Orders.

12. On 28 June 2011, the Father filed an Amended Application seeking Orders for the Mother to be restrained from relocating to Brazil; for there to be equal shared parental responsibility and seeking Orders for time.

13. On 13 July 2011, His Honour Justice Murphy, at a callover, listed the parenting proceedings for a final trial to commence on 6 October 2011. In the event, on 22 September 2011, a Registrar made an Order in Chambers vacating the trial dates on the basis that information had been received from Corrective Services New South Wales to the effect that the Father was being held on remand, and as his status was no longer as an inmate or prisoner, Corrective Services New South Wales would not be able to produce him physically for the trial.

14. As already noted, at the time of the interim hearing of the current application, the Father was still prevented from attending Court physically on the basis that he was remanded in custody.

15. Since the hearing on 14 November 2011, the Father has filed, on 5 March 2012, a Notice of Discontinuance expressed to be a discontinuance of his Initiating Application and a discontinuance of the “Final Trial”. That is, under Part C of the Notice, which details what is being discontinued, the Father has expressed a discontinuance of his application and the whole of his proceedings.

16. Following that Notice of Discontinuance being filed, the parties then signed and submitted to this Court consent Orders in a form reflecting the Mother’s proposed Minute of Orders attached as Annexure “A” to her interim application filed 27 October 2011.

17. In those circumstances, I make Orders as set out in the signed consent Orders submitted to this Court. The substantive proceedings are listed to be heard, on a now undefended basis, on 13 April 2012.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 March 2012.

Associate: 

Date: 21 March 2012