Sedaka and Pashtun

[2013] FamCA 700

FAMILY COURT OF AUSTRALIA

SEDAKA & PASHTUN [2013] FamCA 700

FAMILY LAW – Parenting – limited issues about holidays.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Sedaka

RESPONDENT: Ms Pashtun

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2546 of 2011

DATE DELIVERED: 26 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 August 2013

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr Frajsman, RJ Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb

Orders

IT IS ORDERED BY CONSENT

1. That all previous parenting orders in respect of the children B born … 2008, C born … 2010 and D born … 2011 be discharged.

2. That the parents have equal shared parental responsibility for the children.

3. That the children live with the wife.

4. That the children spend time and communicate with the husband as follows:

   (a)    each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday during school term commencing from Saturday 31 August 2013;

   (b)    for one half of the school term holidays being the first half in 2014 and each alternate year thereafter and the second half in 2015 and each alternate year thereafter;

   (c)    for one half of the long summer school holidays as follows:

   i.    in 2013/2014 on a week-about basis with the first week to commence on Friday 20 December 2013 and each alternate week thereafter with changeover to take place at 5.00pm on the Friday;

   ii.   in 2014/2015 and each alternate year thereafter, for the second half of the period commencing from 5.00pm on the day being the mid-point of the holiday to 5.00pm on the Sunday prior to the commencement of the new school year; and

   iii.    in 2015/2016 and in each alternate year thereafter, for the first half of the period commencing from 5.00pm on the last day of the school year until 5.00pm on the day before the mid-point of the holiday.

   (d)from 10.00am until 5.00pm on Father’s Day each year if the children are not otherwise with the father pursuant to Order 4(a) hereof.

   AND ORDERS NOT BY CONSENT OF THE PARTIES BUT OF THE COURT:

   (e)    from 5.00pm on Christmas Day until 5.00pm on Boxing Day in 2015 and for a similar period in each alternate year thereafter and from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2014 and for a similar period in each alternate year thereafter;

   (f)     on each of the children’s birthdays for a period of three hours by agreement with the wife and failing agreement from 4.00pm to 7.00pm.;

   AND FURTHER BY CONSENT OF THE PARTIES:

   (g)    from 4.00pm to 7.00pm on the father’s birthday if it falls on a weekday, otherwise from 12 noon to 5.00pm if such time falls on a weekend;

   (h)    at any other times as may be agreed between the parties in writing from time to time.

5. That the father’s time with the children be suspended as follows:

   (a)    from 10.00am on Mother’s Day each year until the conclusion of Mother’s Day;

   (b)    from 5.00pm on Christmas Day until 5.00pm on Boxing Day in 2014 and for a similar period in each alternate year thereafter, and from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2015 and for a similar period in each alternate year thereafter; and

   (c)    from 4.00pm to 7.00pm on the mother’s birthday, if it falls on a weekday, otherwise from 12 noon to 5.00pm if such time falls on a weekend.

6. That all changeovers are to take place at the E Children’s Centre and in the event that E Children’s Centre is not available on any occasion, outside the Suburb F Police Station or any other place agreed in writing between the parties.

7. In the event that any child is invited to a party or other special occasion at a time during the other parent’s care, the wife or husband shall immediately upon receiving the invitation, provide the other parent with a copy of it to enable that parent to respond to the invitation as they may choose.

8. The children shall communicate with the husband and wife by telephone between 5.30pm and 6.00pm on days when the children are not in their care.

9. For the purposes of telephone communication:

   (a)    both parents will each provide the other with a telephone contact number; and

   (b)    both parents will each allow the children to telephone the other parent at times that they may reasonably request.

10. That the parents exchange information regarding the children by way of text messaging, emails and a communication book but issues are to be limited to the children’s care, welfare and schooling needs.

11. That the husband and wife, their servants and agents, are restrained from abusing, insulting or otherwise denigrating the other parent or members of the other parent’s family or friends in the presence or hearing of the children.

12. That the parents will inform the other of any serious illness or injury sustained by the children whilst in their care and provide the details of any treatment received by the children including the name and address of the medical provider.

13. That the wife may provide a copy of these orders to any preschool, childcare centre or school which the children attend.

14. That the wife do all acts and things to ensure that any preschool, childcare centre or school at which the children attend provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the children’s education to the husband.

15. That each parent provide the other parent with no less than 7 days written notice of any intended change of residential address, telephone number, email address or other contact details.

16. That the parents be restrained from discussing with the children or with any other person in the children’s presence, the details of these proceedings.

17. That the husband and wife during their time with the children refrain from:

    (a)excessively consuming alcohol;

    (b)use or taking any drug of addiction; and

    (c)misuse or abuse any drug whether or not prescribed.

18. That the wife and husband be restrained by injunction from allowing or permitting the children to undergo any further medical examination for the purposes of investigating sexual abuse unless they have been directed to by the Department of Human Services or Victoria Police.

19. That each of Mr Sedaka and Ms Pashtun, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children B born … 2008 (female), C born … 2010 (male) and D born … 2011 (male) and the children are restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List AND THE COURT ORDERS that such order shall continue for a period of two years from the date of this order and thus expire at 4.00pm on 26 August 2015.

20. That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australia Federal Police will remove the children’s names from the Watch List NOTING THAT if either party seeks that the children’s names remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

21. That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the AFP Operations Coordination Centre, …, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

22. That a copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

23. In the event that either the husband or wife intends to travel with the children outside of the Commonwealth of Australia, they must advise the other parent in writing as to:

    (i)     the country to which the children will be travelling and with whom the children will travel;

    (ii)    provide an explanation for the purpose of travel;

    (iii)     the airlines the children will travel on;

    (iv)   the date upon which the children will depart from and return to the Commonwealth of Australia;

    (v)    the addresses at which the children will reside and the telephone number and email address on which the other parent can be contacted by the children; and

    (vi)   provide a full itinerary.

24. That the husband attend and complete a post-separation parenting course.

25. That 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.

AND THE COURT NOTES

A.The parties intend to attend for mediation to revisit the appropriateness of the time with orders prior to the youngest child commencing primary school;

B.That for the purposes of calculating half of the summer school holiday, the time available shall be calculated from 5.00pm on the last day of school until 5.00pm on the Sunday prior to the commencement of the new school year and it is understood that the children will be with the mother each year from 5.00pm on the Sunday prior to the school year commencing;

C.For the purposes of clarity it is understood that during 2013/2014 summer holidays, the children shall be with the mother and father as follows:

(i)     with the father from 5.00pm on the weeks commencing Friday 20 December (including the Christmas period), Friday 3 January 2014 and Friday 17 January 2014; and

(ii)    with the mother from 5.00pm in the weeks commencing Friday 27 December 2013; Friday 10 January 2014 and Friday 24 January 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sedaka & Pashtun 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 MELBOURNE

FILE NUMBER: MLC 2546  of 2011

Mr Sedaka

Applicant

And

Ms Pashtun

Respondent

REASONS FOR JUDGMENT

1. Mr Sedaka (“the husband”) and Ms Pashtun (“the wife”) resolved their parenting dispute on 26 August 2013 with the assistance of counsel for the Independent Children’s Lawyer, save for three discrete issues.

2. A determination was required about those three questions.  Each of counsel for the Independent Children’s Lawyer, the solicitor for the wife and the husband in person, made submissions about what orders should be made.  All agreed that the evidence before the Court was largely unhelpful save as to the background.  No party required the other for cross-examination purposes.

3. Upon the conclusion of the submissions, I made orders and said I would later give reasons for the disputed orders.  These are those reasons.

4. The husband and wife married in 2008 and separated in January 2011.  The three children who are the subject of these proceedings are B who is aged about five years, C who is three years of age and D who is not yet two years of age.

5. These proceedings began in 2011 and have had an unfortunate (but not unusual) litigation history.  After a number of hearings in the Federal Circuit Court, the proceedings were transferred here.

6. After a first day hearing before the Court, at which both the husband and wife were unrepresented, the case was set down for trial and a timetable for filing of evidence was ordered.  The wife complied with that order but the husband did not.  Ultimately, the husband’s explanation for that became irrelevant but the focus of the wife’s evidence was largely historical and importantly, on the criticisms of her by a family consultant who prepared a family report for the Federal Circuit Court.

7. I shall return to the family report below because it was relied upon by the Independent Children’s Lawyer.

8. As earlier indicated, the major factual disputes between the husband and wife were not litigated because of their compromise but the determination of the three discrete issues must be viewed through the prism of the family report as well as the wife’s evidence. 

9. Until the compromise, the parties’ positions were polarised even if the husband had not filed the evidence in chief ordered by the Court. 

10. When the matter began the pathway to trial, the husband’s position was that the three children should live with him and have limited time with the wife.  Indeed, he initially sought orders that the wife’s time with the children be supervised.  It would seem on the papers that the Independent Children’s Lawyer supported that position in part because it was also the view of the family consultant. 

11. The wife’s position was that both parents have equal shared parental responsibility, the children live with her and the husband spend time with them on alternate weekends along with the sharing of holiday time. 

12. It could not be lost on anyone that D is a very young child who is strongly attached to the wife but who was also comfortable with the husband.  Leaving aside the view of the family consultant, the wife was prepared for D to spend not only overnight with the husband but also significant holiday time.  I must therefore conclude that the wife considered that the husband could care for all three children and in particular D.

13. The husband’s verbal complaint to the Court (as distinct from any evidence because he did not file any) was that he just wanted to see his children and for the orders to be carried out.  His expressed concern was that the wife was not complying with her obligations and the court orders.

14. I turn then to the family consultant’s evidence which, because the case was compromised, was not challenged. 

15. Ms G is a family consultant in private practice.  She saw the parties and the children in May 2013 and read the various affidavit material then made available to her including the husband’s old affidavit material.

16. Ms G said the report followed upon an order of Judge Turner made in August 2012.  The history encapsulated in the report was as follows.

17. The parties separated in February 2011 amidst allegations of domestic violence.  The relationship between them was acrimonious after separation and had impacted upon their capacity to communicate and co-parent.  There was an intervention order in place after separation.

18. Immediately after separation and for a period of some weeks, B lived with the husband and C lived with the wife.  D had not then been born.

19. In April 2011, consent orders provided for B and C to live with the wife and spend time with the husband on a weekly basis.  Alternate weekends including overnight time was also agreed.

20. The history indicated frequent and prolonged disruptions of the children’s relationship with the husband because of the wife’s non-compliance with court orders.  The wife consistently complained that drug tests that had been ordered were unreliable and that was her reason for non-compliance.

21. At some point, there was a contravention application brought by the husband against the wife and that enabled the resumption of time between the husband and the children in February 2013.  The resumption meant that there were supervised visits between the husband and D up until February but no time until May. 

22. As for the (then) current arrangements for the children, the family consultant said that the wife was living in a Housing Ministry flat in Suburb F and was reliant upon Centrelink benefits because she was not receiving any child support payments.  Her family lived in Country H.  The wife had professional support services which were extensive and they assisted with the children.

23. As for how the wife viewed the future, the family consultant said that she offered various reasons for non-compliance with court orders including the children being sick, her transport difficulties and the recurrent concern about the unreliability of drug tests.  The family consultant noted that the wife reported that B continued to complain about genital irritation and discomfort particularly after time spent with her father.  Thus, the recurring themes for the wife were drug problems and sexual abuse.  The latter gave rise to concerns by the family consultant about the wife’s attendance on numerous doctors.  As for an explanation of the manifestation of the sexual abuse issues, the family consultant said that a clinical report indicated that B had the irritation and discomfort even during periods when the husband was not seeking the children.

24. As for the husband’s proposals, the family consultant said that he complained about disruptions and was concerned about the wife’s unsubstantiated allegations that he was neglectful of the children’s care but also that the wife was taking B for medical examinations.  To the family consultant, the husband complained that he did not think the wife could promote a regular and positive relationship between he and the children.  That gave rise to his desire to have the children live with him. 

25. After interviewing the wife, the family consultant said:

    ·    It was difficult to get the wife to focus on the seriousness of the non-compliance with orders;

    ·    The wife stated that the orders disrupted routines;

    ·    The wife wanted to spend time in Country H with her extended family;

    ·    The wife rejected options put by the family consultant to support the relationship between D and the husband;

    ·    The wife appeared to place every other consideration ahead of the children’s relationship with their father.

26. Nothing the family consultant saw in the husband caused her concern about his ability to care for the children.  That all led the family consultant to the following conclusions:

    ·    The wife had been given numerous opportunities to comply with orders but displayed an incapacity and unwillingness to respect and adhere to court orders;

    ·    The wife had given vague and spurious reasons for not providing visits;

    ·    The wife was fixated on finding an alternative explanation for B’s irritation and discomfort problems to support non-compliance with orders;

    ·    Very young children can only maintain the image of an absent parent for short periods and therefore regular visits were essential;

    ·    The wife impressed as not being particularly psychologically minded or insightful and did not recognise the harm she was causing to the children; and

    ·    The wife did not support a relationship between the children and the paternal extended family.

27. Of the children’s views, the family consultant opined that they were too young.  She said there was a good relationship between the children and the husband despite the wife’s attempts to diminish and undermine that relationship.  D in particular did not display any separation anxiety or distress.

28. As to removing the children from the wife, the family consultant said that whilst it was not ideal, the children had been able to separate from her for extended periods and the husband had demonstrated an ability to comply with court orders and seemed willing to support the relationship between the wife and the children.

29. One question about which the parties compromised and agreed, concerned the responsibility for future decision-making.  They have agreed now on equal shared parental responsibility yet the family consultant said the wife had made unilateral decisions and that in her professional opinion, it was not advisable for the parties to communicate directly with each other because the children would be exposed to parental conflict. 

30. With that negative background, the parties still compromised. The wife’s evidence about the family consultant’s opinion was that such an approach was “far too drastic”. Yet, apart from such bald assertions, no evidence (that would satisfy ss 55 and 56 of the Evidence Act 1995 (Cth)) was led by the wife. She said in her affidavit, sworn only a week before the hearing, that she had “protective concerns” for the children “amid the backdrop of family violence and fears of child abuse” (my emphasis).  She justified her position by saying she was “simply acting instinctively as a mother in shielding” the children from any risk of abuse or violence.  The rhetoric was not a response to the family consultant’s concerns.

1. Thus, the three issues for the Court to determine were:

   (a)Should the husband have some time with the children every Christmas Day or just every second year?

   (b)Should the husband have some time with the children on each of their birthdays or should that time just depend on who had the children on those days? and

   (c)Should a Watch List order be for one year (as the wife would have it) or two years (as the husband and the Independent Children’s Lawyer argued)?

2. In respect of those three matters, I shall deal with them sequentially.

3. For the husband to have time with the children every Christmas meant, from the wife’s perspective, (and by logical extension, that of the children) that she and they could not ever spend time with her extended family in Country I at Christmas.  My concern expressed at the hearing was that this was a focus of convenience of the parent rather than the interest of the children.  While the best interests of children are the paramount consideration, it must follow that that is not the only consideration.  Here however, D is only about two years of age and his fractured relationship with the husband must now be the Court’s focus.  The other children are also very young but already have a very close relationship with the husband;  they were observed excitedly involved with him as well as secure and calm in his presence.  The wife’s extended family therefore can come to the children from overseas but also, the trip to the extended family can occur other than on the most significant days in the lives of these children.

4. This was an issue about the convenience of the wife rather from the focus of what was best for the children.  Whilst children are entitled to have a relationship with the wife’s extended family, that cannot be seen as significant as that which they need to have with their father.  The extended family has plenty of years to cement such a relationship.  This is a case where the children’s priority relationship is the determining factor and in my view, Christmas is a significant event for these children.

5. In respect of the second matter (b) above, the time is so limited that it was hard so see what the dispute was about.  This family does not have a lot of money and the wife has limited transport but as I understood the husband’s position, he would be willing to put himself out to spend time with the children on their birthdays.  Having regard to the views of the family consultant about the nature of the relationship between the husband and the children, I see every good reason for the husband to have the opportunity to participate in days that are important for the children.  To the extent that the wife saw this as a convenience issue as well, I do not see it as such.  I find therefore that it is in the best interests of the children that the father spend time with them on their respective birthdays and I would have thought that three hours is an appropriate time particularly as the parties agreed that the time on the wife’s birthday should be three hours as well.

6. In respect of the third issue (c) above, I indicated that I thought one year was not enough time nor that two years was much better but the parties have set that as the outer limit.  The husband indicated that if the orders were working, it would be much easier for him to compromise and that might give rise to the wife being able to go to Country I.  I suspect that very much depends upon the nature of the relationship between the husband and the children at that particular time.  To the extent that the wife felt that there was some urgent need to go (and she did not indicate that was the case at the moment) arrangements could be made for a further application to be made to the Court.  From the wife’s perspective, travelling to Country I was not on the horizon.

7. To ensure some stability in the lives of the children and to give the husband confidence that his endeavours to have a relationship will not be disrupted, I consider two years appropriate but one year not enough.

8. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that in making a parenting order, the Court must consider the best interests of the children as the paramount consideration. A presumption of equal shared parental responsibility in this case is not rebutted because despite the evidence of the parties, each sought such an order. Section 65DAA of the Act requires the Court to consider time if such an order for parental responsibility is made. That is not necessary in this case because of the limitations that the parties have sought to place on themselves in respect of time between the husband and the children. Thus, the only question is whether or not it is in the best interests of the children to make the orders in relation to the three discrete issues.

9. What is best for the children is determined by a consideration of the mandatory provisions of s 60CC.  The first of those considerations is the benefit of the children in having a meaningful relationship with both of their parents.  This case was about that very fact.  The husband complained that the wife was thwarting his relationship particularly having regard to the age of D and that was certainly the view of the family consultant.  The compromise reached between the parties would tend to suggest that there has been something of an epiphany by the wife notwithstanding her expressed position that she had concerns about protection of the children.  Nothing that was said to the Court on 26 August 2013 would suggest that the wife had such concerns now because she was prepared to agree to significant time.  If that significant time occurs, then there will be a meaningful relationship between the husband and the three children.

10. A second consideration relates to the protection of children from harm.  On the basis of the wife’s evidence sworn only some days prior to the final hearing, as indicated above, she expressed concerns for the welfare of the children.  I am satisfied on the evidence of the family consultant that there is no evidence to justify the allegations of sexual impropriety against the husband.  More importantly, the family consultant recommended that the wife be restrained from pursuing that line of inquiry and examination through the medical profession.  Ironically, in the consent orders I have now made at the request of the parties, that very order has been agreed to by both parents.

11. I am satisfied in the circumstances that there is no risk to the children.

12. The other factors set out in s 60CC are clearly covered in the matters that I have earlier mentioned.  The views of the children are not relevant.  The capacity of the parents to care for these children is clearly accepted each by the other.  Parental responsibility must be shown by at least the husband’s pursuit of time with the children and as I have indicated, the wife will no doubt now accept that the husband is going to have a very significant part in the children’s lives.

13. There are no family violence orders now in existence because as I understand it, they expired almost immediately upon the making of these orders.  I take into account the fact that they were in existence for some time.  Neither party relied upon that however for the purposes of rebutting the assumption of equal shared parental responsibility. 

14. It is not necessary that I examine questions of financial support because neither party raised that as an issue.  In relation to the question of the willingness and ability for the parties to enable the children to be a part of the husband’s life, I take into account the fact that the husband pursued the orders albeit not what he had originally sought including by filing a contravention application against the wife.  For her part, as I have made clear, there is significant criticism of her approach to the husband’s role in the lives of these children.  Time will tell whether that view is misplaced.

15. The other matters set out in s 60CC(3) are not entirely helpful or relevant in these proceedings but in my view, of the three issues, the children will benefit by having the father not only involved in their life but very much involved in significant times of the year such as Christmas and their birthdays.  The third issue relates to the security and stability of that relationship and in my view that is consistent with the theme that the wife needs to accept that the husband is to have a very significant role in the lives of these children.  In my view therefore it is appropriate that the orders be made in the terms I have outlined because they are in the best interests of the children.

I certify that the preceding Forty Five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 August 2013.

Associate:

Date:  26 August 2013