Sterski and Sterska

[2011] FamCA 561

FAMILY COURT OF AUSTRALIA

STERSKI & STERSKA [2011] FamCA 561

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Sterski

RESPONDENT: Ms Sterska

FILE NUMBER: MLC 11090 of 2010

DATE DELIVERED: 1 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Edwards

SOLICITOR FOR THE RESPONDENT: Slater & Gordon

ORDERS

1. That the application in a case filed by the husband on 21 April 2011 and the response thereto filed by the wife on 25 May 2011 are both dismissed.

2. That the husband pay the wife’s costs fixed in the sum of $3700 such costs to be paid out of the husband’s entitlement to any property settlement.

IT IS NOTED that publication of this judgment under the pseudonym Sterski & Sterska is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11090 of 2010

Mr Sterski

Applicant

And

Ms Sterska

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Sterski, to whom I shall refer in these reasons as the husband.  The respondent is Ms Sterska, to whom I shall refer as the wife. 

2. There are still pending proceedings arising out of an application filed by the wife in November 2010 including specifically in relation to the three children of their marriage. 

3. The application filed on 21 April 2011 seeks, in essence, that the parties do whatever is necessary to enable C, who was born in April 2000 and who is, therefore, 11 years of age, to be able to travel for a family reunion holiday in Scotland.

4. The application does not set out any more particulars than that, but the husband says that he has purchased the tickets and I note that the holiday period proposed is from 22 June to 15 July 2011.  Curiously, the certificate of insurance refers to the destination as Europe and Africa.  The departure tickets are clearly showing the route by which the husband is going to travel. The difficulty I have is that the application is opposed.  Both parties filed affidavits and both parties sought to cross-examine the other and, therefore, the evidence is what it is.

5. The husband’s evidence is very simple and very short.  He says that he had paid for the tickets and that he had a niece whom he has not seen for nine years.  The niece has now given birth to a child and he wants his daughter to have the benefit of meeting the child and he said C was very excited about meeting this new member of her family.  He then said that the wife just not allowed the child to go. 

6. The wife’s evidence is far more comprehensive, as it should be because it was prepared by her practitioner.  The wife had some concerns about the fact that the husband may not return.  That assertion is supported by statements throughout her affidavit about problems that the parties have had in the past.  The husband denies he will not return because he has much here to come back to, including the other two children, one of whom is a child suffering from autism and for whom he feels particularly close and responsible.

7. Thus I am left with the evidence about the risk.  I would not be prepared to make a finding on this material that the risk is high, but that is not really the fundamental issue. 

8. What I am required to do is to make a parenting order.  A parenting order is defined in the Family Law Act 1975 (Cth) (“the Act”) to deal with a number of things including with whom a child is to live. That particular provision enables a court to make an order about such things as travelling overseas on a holiday.

9. Section 60CA of the Act provides that:

   When making a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

   Section 60CC then says that:

   When determining what is in the best interests of a child, the Court must take into account the matters set out in the section.

10. The particular provisions are not really helpful in an application for a discrete holiday overseas.  They do, however, include the views expressed by a child.  I have no evidence in this case as to the level of maturity or the child’s understanding of what this is all about.  It is quite disconcerting that it is conceded by the husband that he has, in fact, spoken to C and told her that her mother has suggested that she is indicating that she does not want to go to Scotland.  It is always troubling when a parent involves a child in the proceedings because it puts the child in a position where the child has to make a choice between two parents.  Children deserve to be just that - children.  It concerns me in this case that C is being put into a position where she is effectively making the decision about whether she goes overseas.

11. Giving her options such as seeing a new baby and meeting extended families is hardly the way to determine what is in the child’s best interests. 

12. It is also important to note that the substantive proceedings in this case are still pending before the Court and the parties were to have a meeting with a family consultant for the purposes of the preparation of an issues assessment.  The assessment is not a family report.  It is designed to enable the parents to understand what they are putting their children through and for the family consultant to give feedback to the parents about the views of the children. It may in this case have been of some assistance had I had the expert’s view, not only about the level of maturity and understanding of the child about this particular trip to Scotland, but also whether, in fact, her mother is right that she is reticent to be going. 

13. I am concerned in this case that this child is well and truly caught in the middle.  Accordingly, I do not really understand what it is that C wants to do and, more importantly, whether I should take her views into account.

14. There is also a question of the nature of the relationship between C and each of the parents.  The husband did not give me any evidence at all about the nature of the relationship and there is a concern expressed by the wife about the fact that there was a recent incident in which the child was struck by the husband.  On one view it might have been a violent act but on the evidence of the husband, it was simply a discipline issue.  All of those clearly indicate that there is a problem between the parents and their approach to parenting this little girl.  I raise that particular subject because it leaves me with some doubt as to whether or not this child should be away from the watchful eyes of the other parent.

15. Another matter that I am required to take into account is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I do not have any evidence before me as to how each parent sees the other in terms of the future of this little girl but it troubles me that the whole focus has been on the attraction of a holiday rather than on the issues of parenting in the future. 

16. I am obliged to take into account the likely effect of any changes in the child’s circumstances including the likely effect on C of any separation from either of her parents or another child. There is even a dispute about that in this case.  The child who is autistic is a child to whom C is particularly attached.  The wife’s concern is that the autistic child will be stressed and anxious by her absence, albeit that it is only for some three weeks.  The husband’s response is that there are other adults around who can care for the child.  I am not troubled about the care issue as much as I am about the impact on the child of being away from her mother and siblings. 

17. Equally, I am concerned about C being away from her father if he alone goes to Scotland, but none of the evidence is really clear and objective.  What I do not also have is the views of a family consultant as to whether or not this child, at the age of 11, can be away from her other members of her family for that period of time.  That is a glaring problem in a case such as this where there is absolutely no trust between the parties.

18. Another matter that I am required to take into account is the capacity of each of the parents to provide for the needs of the child including emotional and intellectual needs.  It would seem that both parents have done an admirable job in caring for the physical needs of the child but involving the child in their dispute is clearly not a good thing.  It is emotionally damaging the children as the social science research shows. 

19. Having conceded that he showed C the affidavit and particularly what her mother maintains C had said about the trip to Scotland, it troubles me that the husband’s capacity to understand the problem is somewhat limited.  I say that also in the context of some material that apparently was not necessarily known to the wife but has been made clear today by the production by the husband of two WorkCover psychiatrist reports.

20. Dr K is a psychiatrist well known to this Court and who has generally been accepted as an expert witness.  He described the husband as late as January 2011 as suffering from depression.  Those questions raise in my mind other problems about whether or not being away from the family environment where C normally lives is an appropriate way to ensure that she learns about her extended family in Scotland. 

21. I am troubled about that because one of the other issues that became evident from cross-examination of the husband was that C has been diagnosed with anxiety.  It seemed common ground between the parties that she was prescribed medication by the Royal Children’s Hospital and the husband decided that that was not an appropriate diagnosis or medication and he threw the medication away because he did not want his child to be “poisoned”.

22. All of those things leave great concerns in my mind about his capacity to take the responsibilities of parenting appropriately.  That becomes a matter to be taken into account in terms of the attitude to the responsibilities of parenthood demonstrated by each of the child’s parents. 

23. On the evidence, and I might be being very unfair to the husband because of him being unrepresented in the absence of any serious material in this case, but I can only work with what I have.  It seems to me that his attitude in unilaterally organising the trip without the permission of the Court was not a very sensible course of action. 

24. I am not told of any specific family violence orders, although there is a serious question in this case about the discipline issue.  I am not prepared to make any finding on this evidence as to whether or not what did occur to C was or was not appropriate family discipline.

25. The affidavit material of the wife certainly attaches to it some photographs which are concerning.  There are other matters in section 60CC (4) but they are not relevant for the purposes of this interim decision, nor is it appropriate that I embark on the question of equal shared parental responsibility. 

26. Section 65DAA requires that if I make an order for equal shared parental responsibility, I have to contemplate the sharing of time.  I do not think it is appropriate in this case because neither party has asked me to make an order for equal shared parental responsibility today and, therefore, I do not need to undertake that task.

27. When I balance all these matters up, unfortunately for C, I do not see that it is in her best interests that she travel to Scotland for the period proposed by the husband.  In those circumstances his application must fail and I dismiss it.

RECORDED   :   NOT TRANSCRIBED

1. There is an application now by the wife for her costs thrown away as a result of the husband’s application. Section 117 of the Act says that each party shall bear their own costs unless there are circumstances that justify a departure from that rule.

   If the Court is contemplating departing from the rule, the Court is obliged under section 117(2A) to take into account the matters there set out. They include the financial circumstances of the parties, the way in which the litigation has been approached in the sense of the compliance with directions, whether someone has been wholly unsuccessful and whether there are any legal aid considerations. I am not told of any legal aid considerations in this case. It appears that all parties complied with the relevant orders of the Court but it must be said that the husband has been wholly unsuccessful.

2. That leaves me with the question of the financial circumstances of each of the parties.  The husband is currently the recipient of Centrelink benefits and the wife is earning approximately $80,000 per annum.  The parties’ income position may be difficult to discern but there is a property dispute, which I note is outstanding.  At the moment the pool would stand at somewhere around the $200,000 mark.  The wife went to the trouble of responding to the husband’s material.  She did it appropriately.  She sought the questions of the psychologists’ material which the husband had not volunteered, as he probably should have, and the affidavit material was clearly lacking.

3. I think there are circumstances in this case to justify departure from the rule and I propose to make an order for costs.  I propose to fix the sum to avoid the prospects of the parties being involved in further disputes about assessments and taxation.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 June 2011.

Associate:   

Date:  13 July 2011