Sipkovska and Sipkovski

[2007] FamCA 524

FAMILY COURT OF AUSTRALIA

SIPKOVSKA & SIPKOVSKI [2007] FamCA 524

FAMILY LAW - CHILDREN - Best interests - Father in prison - Application by mother to Court for release of passports to take 14 year old son to visit family members in Macedonia - Minimal likelihood that mother intends to remain in Macedonia

APPLICANT: Mrs Sipkovska

RESPONDENT: Mr Sipkovski

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio

FILE NUMBER: BRF 1659 of 2005

DATE DELIVERED: 2 April 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 2 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant mother appeared in person

SOLICITOR FOR THE RESPONDENT: The Respondent Father appeared in person by telephone assisted by an interpreter

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Ms Awyzio, Solicitor as town agent for Carter Naughton Rice, Solicitors

Orders

1. That the three passports of the child, a son born … January 1993, be released into the possession of the Independent Children’s Lawyer, to be held by him and released to the Mother for travel dates that are provided to him in writing.

1. That the Mother informs the Independent Children’s Lawyer in writing in relation to travel plans for herself and the child.

1. That the Independent Children’s Lawyer will provide the child’s passports to the Mother as and when they are required by her for specific travel.

1. That the Mother keeps the Independent Children’s Lawyer informed of any changes to her travel itinerary.

1. That the injunction made by Federal Magistrate Baumann on 11 January 2005 that the Mother be restrained from removing the said child from the Commonwealth of Australia be set aside.

1. That the Australian Federal Police remove the child’s details from the PACE Alert System.

IT IS FURTHER ORDERED:

1. That the Father is to file an Amended Application in Form 1 within twenty-one (21) days setting out what Orders he is now seeking from the Court.

1. The Mother is required to respond to the Father’s Amended Application within twenty-one (21) days.

1. When the Father’s Amended Application and the Mother’s Amended Response are received by this Court the matter is to be listed before a Registrar to a date to be fixed for the issuing of a Trial Notice and a directions hearing.

1. Leave given to the Father to appear by telephone link at any future proceedings.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1659/2005

Mrs Sipkovska

Applicant

And

Mr Sipkovski

Respondent

REASONS FOR JUDGMENT

1. The application in this matter was originally filed in the Federal Magistrates Court by the father on 10 December 2004 seeking very detailed orders in relation to the child.  He was content at that stage for the child to reside with the mother, but he wanted particular contact with the child each alternate weekend from Friday 5 pm until 6 pm Sunday.  He sought a total of 19 different orders.

2. Those proceedings passed through the system, but what happened in the meantime is that the father was charged with attempted murder of the mother.  I do not need to go into the details of that.  Psychiatrists or psychotherapists have provided reports in relation to the father's condition.  The first report of note is the report of Dr L dated 9 June 2004.

3. The matter proceeded, as I said, through the system, but it was then delayed as Bell J and other judges decided there was no point in progressing the proceedings in relation to future arrangements for the child until the criminal proceedings had been finalised.  As I understand it, the criminal proceedings were finalised in March of last year.  The father pleaded guilty to attempted murder and has been sentenced to nine years imprisonment.

4. The subject of the application is the male child of the parties.  He was born in January of 1993.  He is now 14 years of age.  The probability is by the time the father is released from prison the child will be 18 years of age.  Certainly, by the time he is 17, if not earlier, a child is well able to express his own views.  It is very rare for a Court to make any orders in relation to a child, male or female once the child has reached 16 years of age.

5. The application before the Court today, and the only application that has been listed for today, is the mother's application filed on 8 February 2007 ‑ that is, where the mother seeks orders that the three passports of the son, born … January 1993, currently held by the Family Court of Australia, be released to the mother; that an injunction made by Baumann FM on 11 January 2005 that the mother be restrained from removing the said child from the Commonwealth of Australia be set aside and that the Australian Federal Police remove the said child's details from the PACE alert system.  The mother has filed an affidavit in support of that application.  She makes reference in that to a report prepared by Mr M on 13 May 2005 in which Mr M recommended no contact with the father.  Bell J dealt with the matter on 30 September 2005 and ordered no contact.

6. The offence to which these matters relate was dated 22 June 2005.  As I understand the material, the son, was a witness to the tragic events of that day.  The only explanation forthcoming to explain the father's conduct is to be found, in my view, in the psychiatric report of Dr D of 4 April 2004, which appeared to have been commissioned by the Independent Children's Lawyer.  Reference to this is made in the written submissions handed up by the applicant mother.  On page 8 under the heading, "Psychiatric diagnosis", Dr D says:

   He is best described as having delusional disorder, a condition that is self‑explanatory.  He has the subtype referred to as morbid jealousy.  This condition displays paranoid delusions similar to those seen in schizophrenia but differs from schizophrenia because of the absence of reported hallucinations, and in delusional disorder the delusions are somewhat more circumscribed, leaving the sufferer more functional than the schizophrenic, thus more organised and less deteriorated.  This aspect is thought by some to lead to greater potential for risk as the sufferer may be capable of better planning and more able to retaliate against his imagined persecutors, which could potentially include anybody involved in this case.

7. The report of Mr M I perused confirms the summation outlined in the written submissions from the mother.  The mother's case essentially is the child is 14 years of age.  Whether the Court ultimately makes an order that the child be forced to visit his father in prison is a matter for another date.  I would have thought it was highly likely a Court would decide that a 14 year old can either visit his father or not as he pleases.  But that is a matter, as I say, for another Judge at another time.

8. Presently, the mother says she wishes to visit her elderly relatives in Macedonia and to allow the son the opportunity to get to know them, form a relationship with them and for them to have the opportunity to see him.  The mother's material, I would have thought, was self‑explanatory in that regard.

9. The mother describes her trip as being of a short holiday in the near future.  The son has expressed statements that suggest he believes such a holiday would be beneficial for him.  The child has been to Macedonia on one previous occasion.  The parties have another child, an adult daughter who is 22 years of age and studying at university.  Whether she travels with them is not known at this stage.

10. I have formed the opinion it is highly unlikely that mother, son and daughter intend to permanently relocate to Macedonia.  I make no criticism of that country.  It is just they have a new life in Australia.  The daughter is studying here.  In any event, the mother made a very telling submission in saying that her son does not read or write Macedonian.  The father says that is a lie.  On balance, for the purpose of today's proceedings, I prefer the evidence of the mother.  It would be highly unlikely, even with her family there in Macedonia, that she would stay to have her son educated for the balance of his secondary schooling or beyond.

11. The mother has three passports, a New Zealand passport, an Australian passport and a Macedonian passport, all issued in the name of the child.  They are currently held pursuant to court orders with the Court.  The mother and the Independent Children's Lawyer have agreed on appropriate arrangements, and they are set out in paragraphs 6 to 11 of the mother's written submissions.  I will read those into the record:

    That the three passports of [the son] be released into the possession of the Independent Children's Lawyer to be held by him and released to the mother for travel dates that are provided to him in writing.

    That the applicant mother informs the Independent Children's Lawyer in writing in relation to travel plans for herself and the child.

    That the Independent Children's Lawyer will provide the child's passports to the mother as and when they are required by her for specified travel.

    That the mother keep the Independent Children's Lawyer informed of any changes to her travel itinerary.

    That the injunction made by Baumann FM on 11 January 2005 that the mother be restrained from removing the said child from the Commonwealth of Australia be set aside.

    That the Australian Federal Police remove [the child’s] details from the PACE alert system.

12. It seems to me that those orders are eminently sensible in the situation that prevails.  The father throughout his submissions exhibited to my mind an ongoing need to try and control the mother and/or the son.  The mother tellingly said he wants her to stay here.  He is not interested in the boy.  I do not have to adjudicate on that particular issue at the present time, suffice it to say, her submission is in keeping with the diagnosis of morbid jealousy to which I have referred.

13. I appreciate the force of the evidence that the son suffered post‑traumatic stress disorder.  It is not unexpected if he has witnessed ongoing violence over a considerable period of time of the father towards the mother, particularly the tragic events of June 2005 where the father caused serious injury to the mother, the effect of which is that he was convicted on his own admission of attempted murder. 

14. In the whole of the circumstances, I will accede to the application.  Orders will issue in terms of paragraphs 6 to 11 of the written submissions of the mother.  Copies of the decision on today's date will issue in due course, in perhaps a week or so time, and they can be forwarded to the respondent father who, presumably, will be able to arrange for an interpreter.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  2 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SIPKOVSKA & SIPKOVSKI