TERZI & BOURKE

[2018] FamCA 526

FAMILY COURT OF AUSTRALIA

TERZI & BOURKE [2018] FamCA 526

FAMILY LAW – CHILDREN – Application filed by father seeking to discharge parts of previous parenting orders – Application by father seeking order for sole parental responsibility of the child – Application by father seeking amendments to previous parenting orders – Orders made discharging previous parenting orders – Orders that child live with the father – Orders that father have sole parental responsibility for the child – Orders that child spend time with the mother as agreed or as ordered by a Court exercising jurisdiction under the Family Law Act – Injunctive Orders.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Terzi

RESPONDENT: Ms Bourke

FILE NUMBER: HBC 686 of 2011

DATE DELIVERED: 14 May 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Saunders

SOLICITOR FOR THE APPLICANT: FitzGerald & Browne

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. All previous parenting orders in relation to X born … 2010 (‘the child’) «FCA_LD221»are discharged.

2. Mr Terzi (‘the father’) shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. Neither parent shall be adversley affected by alcohol whilst the child is in their care.

5. The parties are restrained from intentionally bringing the child into contact with any person who is under the influence of illicit drugs or excessive alcohol or permitting the child to remain in contact with any person who is under the influence of illicit drugs or excessive alcohol.

6. Neither parent shall denigrate or belittle the other parent or member of the other parents family in the presence or hearing of the child.

7. The child shall spend time with Ms Bourke (‘the mother’) as is agreed by the father in writing or ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

8. Should the child spend time with the mother pursuant to any such agreement, the mother shall ensure that the child is not left in the unsupervised care of her partner, Mr F.

9. Pursuant to s 65DA(2) and s 62B 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 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.

10. All outstanding applications be dismissed.

11. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Terzi & Bourke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 686 of 2011

Mr Terzi

Applicant

And

Ms Bourke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. X (‘the child’), is currently aged seven and has been the subject of proceedings in this Court for some time.  The current proceeding was commenced on 18 January 2018 in which Mr Terzi (‘the father’) sought sole parental responsibility for the child, that Ms Bourke’s (‘the mother’) time with the child be reserved and a series of other orders of which are quite clear.  The application was supported by an affidavit of the father filed 24 January 2018 and the matter was listed before this Court on 28 February 2018.

2. The first issue I need to deal with is the question of notice to the mother.  The original application and affidavit were personally served on the mother on 30 January 2018 and in that respect, I have regard to the affidavit of service of Mr JJ filed 6 February 2018.   The matter came before the Court on 28 February 2018 and a Registrar of the Court noted there was no appearance for the mother.  The matter was stood over for a possible undefended hearing and came before Austin J at this Court on 8 March 2018. 

3. On that occasion, the mother did appear and interim orders were made:-

   (a)discharging the previous parenting orders made by this Court,

   (b)providing that the father have sole parental responsibility,

   (c)providing that the child live with the father; and other orders. 

4. On the 23 March 2018 the matter came before a Registrar in Chambers.  On that date, the Registrar made chamber’s orders for the filing and serving of certain documents.  The matter came before the Registrar on 18 April 2018 and there was non-compliance and non-appearance by the mother and as such, the proceedings were adjourned for a possible undefended hearing before me today. 

5. Tendered in evidence today was a letter addressed to the mother at Suburb E informing her of the hearing today.  Further, the mother was called outside Court today and there was no appearance by her.  Given the history of this matter, I am satisfied that the mother has notice of the proceedings and has chosen not to be involved in the proceedings. 

BACKGROUND

1. The father is aged 39 and is employed in a service industry.  He lives in D Town, Tasmania.  The mother is aged 32.  Her current occupation is not known to this Court.  She lives in Suburb E.  The parties commenced living together in 2010 and separated a few months after they commenced cohabitation.  I have previously determined that the mother and father commenced their relationship in April 2010 and the child was born later that year.  She is now, aged seven. 

2. The father says the parties separated in July 2011.  The parties were involved in parenting proceedings in February, March, May and August 2015.  On 13 August 2015, I published reasons and made orders that all previous parenting orders be discharged and that the parents have equal shared parental responsibility for the child, that the child live in the primary care of the father and spend time with the mother.  I have had regard to those reasons as part of the background in these proceedings. 

3. In the summer school holidays of 2015/2016, the mother spent no time with the child.  In late March 2016, the mother sought that time resume and for the majority of 2016, the child spent Wednesday night with the mother during school term. 

4. In July 2016, the father sought the mother’s consent for the child to travel to Europe.  The mother consented to the issue of a passport for the purposes of the child’s travel, but failed to confirm with the Department of Foreign Affairs and Trade that she was the signatory to the child’s passport application.  Consequently, the passport did not issue and the child was unable to travel.

5. The child saw the mother in December 2016 and that was the last time the child saw her mother.  These proceedings were commenced in 2018.  I have had regard to the history provided by the father in his affidavit filed 24 January 2018.

6. The father is currently in a relationship with his present partner and he deposes that he has been in a relationship for two years.  He is now in full-time employment and works 38 hours per week.   The father’s partner has two children, KK aged 12 and LL who is aged eight. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. The current arrangements sought by the father do not in any way effect the residence arrangements that have been in place since 2015.  They firstly impact on the time, if any, that the child spends with her mother, and secondly, in relation to parental responsibility.  I note the factors set out for consideration in the father’s submissions[1] to which I have had regard, are:-

   [1] Filed 8 March 2018.

   S60CC(2) Primary considerations

   (a)     the benefit to the child of having a meaningful relationship with both of the child's parents;

   It is submitted that there is a benefit to [the child] of having a meaningful relationship with both of her parents. The father is not seeking to prevent the ongoing relationship between [the child] and her mother. In late March 2016 the mother contacted the father wanting her time with [the child] to resume.

   Given that the mother had not spent time with [the child] for some time, the father was content to facilitate one overnight per week until the parties could attend community based mediation to discuss the Final Orders and the mother’s current circumstances (Father’s affidavit filed 24 January 2018, para 10). When the father received a text message from an unknown number on Christmas Eve 2016 claiming to be from the mother, he responded as soon as he could to discuss an appropriate time for the mother to see [the child] over Christmas. He was told to “”[ …] off and don’t message this number again, it’s not [the mother’s] number”. He has not heard from the mother since this time (Father’s affidavit filed 24 January 2018, para 18).

   The orders sought by the father will still allow [the child] to have the benefit of a meaningful relationship with her mother, as determined by the father if the mother wishes to spend time with her daughter.

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   It is submitted that the mother’s lifestyle is chaotic. Her current circumstances are unknown to the father. There was a rumour that she has recently spent some time at [Suburb Q] Prison (Father’s affidavit filed 24 January 2018, paras 23 -24).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   S60CC(3) Additional considerations

   (a)     any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   [The child] is 7 years. She asked why “Mummy” was picking her half sister, [Y], up from school but not herm claiming that her father was stopping her from going to her mother’s house. [Y] and [V] (her half brother) would also often tell [the child] that they would take her home with them which has caused further confusion for her (Father’s affidavit filed 24 January 2018, para 21

   (b)    the nature of the relationship of the child with:

   (i)each of the child's parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   [The child] was attending the same school as her half sister, [Y]. It is likely she has a close relationship with her. The father facilitated time for [Y] to spend at his home at the mother’s request in February 2016 (Father’s affidavit filed 24 January 2018, para 9) and is willing to continue to facilitate time.

   The father held concerns that [Y] is taking [the child’s] lunch and lunch money (Father’s affidavit filed 24 January 2018, para 22). He was also concerned about the impact on [the child] of [Y]’s comments to her about her mother.

   (c)    the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   The child has not spent any time with the mother for almost 17 months.

   The father has had ongoing difficulties with contacting the mother. The co-parenting relationship is non-existent.

   (ca)   the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   The father continues to pay child support to the mother of $50 per fortnight. This is for arrears owing (Father’s affidavit filed 24 January 2018, para 31). He otherwise was paying full child support payments to the mother up until Term 1 in 2016 (after the mother had not spent any time with [the child] since the end of the 2015 school year). This is when he notified Centrelink and the Child Support Agency that [the child] was in his full-time care (Father’s affidavit filed 24 January 2018, para 8).

   (d)    the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   The child has not spent any time with the mother for almost 17 months.

   (e)    the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   The father has had ongoing difficulties with contacting the mother. The co-parenting relationship is non-existent.

   (f)     the capacity of:

   (i)each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   See paras 30 – 31 of the father’s affidavit filed 24 January 2018.

   (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   The mother’s circumstances are unknown. The father can provide stability for [the child].

   [The child] is close to the paternal family. The paternal family have [European] heritage. The [Paternal Grandmother] wishes to take [the child] to [Europe]. There have been difficulties with contacting the mother to finalise [the child’s] passport application (Father’s affidavit filed 24 January 2018, paras 13 – 14).

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child:

   The mother identifies as Aboriginal. The father is happy for [the child] to learn about Aboriginal culture, however, to the best of the father’s knowledge, the mother and her family have no cultural involvement with the Aboriginal community (Father’s affidavit filed 9 January 20156, para 175).

   (i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   It is submitted that the mother’s attitude to the child is poor and that her attitude to the responsibilities of parenthood is poor.

   In contrast, the father has demonstrated ongoing commitment to [the child’s] wellbeing, as demonstrated by his commitment to these proceedings since they were commenced in 2011 and his commitment to taking on the role of primary caregiver of the child since late 2015.

   (j)     any family violence involving the child or a member of the child's family;

   Not relevant.

   (k)    if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   Not applicable.

   (l)     whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   It is submitted that the Orders sought by the Father will minimise any potential Contravention Applications or further proceedings being brought by either party.

   (m)   any other fact or circumstance that the court thinks is relevant.

1. For this child, it is important that decisions can be made about her well-being.  Her mother has in many ways abandoned the field for whatever reason and this Court does not know why.  It is appropriate that the father have sole parental responsibility, so that he can make decisions in relation to schooling about which he has concerns and in relation to travel, although, of course, the child is habitually resident in Australia and removing the child from Australia for a holiday, given the 1996 Child Protection Convention of which [Europe] is a signatory, would not take her out of the jurisdiction of the Court.  The father can apply for a passport for the child.  Sole parental responsibility does not give him permission to remove from the child from the Commonwealth of Australia.  The father would still need to either obtain the Court’s consent or alternatively, obtain the consent of the mother to travel outside Australia[2] which I do not think would be easy. 

   [2] See s 65Z(2) of the Family Law Act 1975 (Cth).

2. Given all of those circumstances, I propose to make the following orders and in making these orders, I will have regard to the orders made by Austin J on 8 March. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 May 2018

Associate:     

Date:              5 July 2018