TOUREL & REIDEL

[2018] FamCA 116

FAMILY COURT OF AUSTRALIA

TOUREL & REIDEL [2018] FamCA 116

FAMILY LAW – CHILDREN – Parental responsibility – Where child has lived with father since 2014 – Where mother contends she should be involved in long terms decisions – Where presumption of equal shared responsibility rebutted due to family violence – Where father granted sole parental responsibility – Where mother and child to undergo counselling – Where future time between child and mother to be determined on basis of agreement of parents and child’s wishes

FAMILY LAW – CHILDREN – International travel – Where it was ordered the father be permitted to obtain an International travel document (including a passport) for the child

FAMILY LAW – CHILDREN – Family violence – Where the mother is restrained from permitting or facilitating the child from coming into contact with her fiancé

FAMILY LAW – CHILDREN – Child’s surname – Where the child expressed wish to change surname due to bullying – Where the change in surname was ordered

FAMILY LAW – CHILDREN – Psychiatric assessment of father – Where the father has been previously psychiatrically assessed – Where no order for further psychiatric assessment

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Tourel

RESPONDENT: Ms Reidel

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 1136 of 2007

DATE DELIVERED: 28 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 26 and 27 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Whitehead Payne Lawyers

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

1. The child B Reidel-Tourel (known as B Tourel) born … 2005 (“the child”) be known for all purposes as B Tourel and the father be permitted to make application to change the child’s name on his birth certificate.

2. The father have sole parental responsibility for the child for all major long term issues as that term is defined in the Family Law Act 1975 (Cth).

3. In exercising sole parental responsibility in relation to the child:-

   (a)the father shall advise the mother, in writing, of the necessity to make a decision, the proposed outcome of such a decision, the reasons for the proposal and any documentation available to assist with the making of such decision;

   (b)the mother shall reply, in writing, to the father within 14 days of receipt of his written advice;

   (c)the father shall give consideration to the mother’s reply; and

   (d)when the father has made the decision, he shall write to the mother and advise her of the decision, the reasons for the decision and how he has considered the mother’s reply, within 7 days.

4. The child is permitted to have an Australian travel document (including a passport) and to travel internationally.

5. The father is permitted to hold the child’s passport at any time the child is not travelling overseas.

6. The mother is restrained and an injunction hereby issues restraining her from permitting or facilitating the child from coming into contact with Mr E save with the prior written consent of the father.

7. All extant applications be dismissed.

IT IS FURTHER ORDERED BY CONSENT

1. The parties provide to the Independent Children’s Lawyers the name and contact details of the therapists they engaged pursuant to Paragraphs 12 and 13 of the Order of 26 February 2018 within fourteen (14) days and the Independent Children’s Lawyer shall provide to the therapists a copy of the report by Ms C dated 9 February 2018 and a copy of the report by Dr D dated 21 July 2015.

NOTATION

A.This Order is to be read in conjunction with the Order made by consent on 26 February 2018, a copy of which is attached hereto.

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 Tourel & Reidel 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 BRISBANE

FILE NUMBER: BRC 1136  of 2007

Mr Tourel

Applicant

And

Ms Reidel

Respondent

REASONS FOR JUDGMENT

1. The applicant and respondent are the parents of B Reidel-Tourel born in 2005 (“the child”).

2. The child has lived with the father since 2014 and has not spent any time with the mother since then.

3. On the first day of the hearing the parents were able to reach agreement on many matters and an Order was made by consent. The Order provided, among other things, for the child to live with the father and for the child and mother to undertake family therapy in an attempt to re-establish their relationship. They are to be assisted in that task by the child’s psychologist and after eight sessions (subject to certain provisos) the mother and child are to spend time together at such times as may be agreed between the parents, taking into account the child’s wishes.

Outstanding issues

1. The outstanding issues about which the parents are unable to agree are as follows:

   a)Whether an order for equal shared parental responsibility or sole parental responsibility to the father should be made;

   b)Whether the father should be able to obtain a passport for the child;

   c)Whether the mother should be restrained from bringing the child into contact with her fiancé, Mr E;

   d)Whether the father should be restrained from bringing the child into contact with his former partner, Ms F;

   e)Whether the child’s surname should be formally changed from Reidel-Tourel to Tourel; and

   f)Whether the father should be psychiatrically assessed.

Background

1. The father is 57 years old and works part time. He earns about $50,000 per annum. The father is not in a relationship. He and the child live in northern New South Wales.

2. The mother is 50 years old and unemployed. The mother has been in a relationship with Mr E since 2013. The mother and Mr E live in an undisclosed address about two to three hours’ drive from the father according to the mother. I note that the mother provided her address to the Court when requested to do so and the address will be held by the Court in a sealed envelope marked ‘not to be opened without an order from the Court’.

3. The parents never cohabited.

4. In 2008 a final parenting Order was made by consent. Until December 2014 the child lived with the mother and spent time with the father most weekends. Since December 2014 the child has lived with the father pursuant to an Order made by the Federal Circuit Court.

5. The mother suffers from bipolar disorder for which she is prescribed medication. The mother has a history of illicit substance abuse and alcohol abuse although she contends that she has, in recent times, ceased consuming alcohol to excess and ceased using cannabis.

6. The mother’s partner, Mr E, is alleged to have perpetrated significant physical violence upon the mother and to have sworn at and pushed the child.  

7. The child has been having counselling with a psychologist, Mr G, for a number of years. The child has maintained an adamant refusal to see the mother. The child provided a list of reasons why he has formed that view, including being exposed to his mother’s drug abuse, alcohol abuse, being sworn at by her, being threatened by her, being physically abused by Mr E, being left alone at night etc. In short, the child has detailed many valid reasons for not wanting to see the mother quite apart from what appears to be the father’s likely influence. 

8. The father has a history of alcohol abuse and violence. He has undertaken anger management therapy in order to address his poor impulse control. There is no evidence of alcohol abuse or violence since the child came into his care in December 2014. 

9. The child has been exposed to significant conflict between the parents. 

Legal principles

1. Any decision involving a parenting order requires the application of the legislative pathway as set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act describes the objects and principles to be applied but in all cases the best interests of the child remain the paramount consideration. In determining what is in the child’s best interests the court must consider the matters set out in s 60CC of the Act to the extent they are relevant.

2. In considering what order to make, the Court must, to the extent it is possible consistent with the child’s best interests being paramount, ensure that the order does not expose a person to an unacceptable risk of family violence (as that term is defined in the Act).

3. When making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child but the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if it is not considered to be in the best interests of the child for there to be an order for equal shared parental responsibility.

4. Equal shared parental responsibility requires the parents to come to a joint decision about major long term issues (as that term is defined in the Act).

Independent Children’s Lawyer recommendations

1. The Independent Children’s Lawyer recommends the following:

   a)That the father have sole parental responsibility for major long term issues;

   b)That the child’s surname be formally changed to Tourel;

   c)That the mother be restrained from bringing the child into contact with Mr E; and

   d)That the father be permitted to obtain a passport for the child and to travel overseas to countries which are signatories to the Hague Convention on Civil Aspects of International Child Abduction.

Parental responsibility

1. The father proposes that he have sole parental responsibility for major long term issues for the child given the inability of the parties to communicate. According to the father, he and the mother last communicated about four or five years ago and ended up in a physical altercation to which the police attended. He contends that he attempted to facilitate communication about the child’s welfare by using a communication book but the book was never returned by the mother.

2. The mother contends that as the child’s mother she should be involved in making major long term decisions.

3. There seems little doubt that the relationship between the parties involved family violence. It seems uncontentious that the last communication between the parties resulted in a physical altercation to which police were called although each party has a different version of the particular event. I am satisfied that there are reasonable grounds to believe that one or both parties have engaged in family violence. Accordingly, the presumption that equal shared parental responsibility is in the child’s best interests does not apply.

4. In any event, I am not satisfied that equal shared parental responsibility would be in the child’s best interest for a number of reasons. Firstly, each party told Ms C, during interviews for the family report on 29 January 2018, that they had no desire to have a co-parenting relationship. Secondly, each party holds a very poor opinion of the other. Thirdly, the child has already been detrimentally affected by his exposure to the conflict between the parents and a requirement for decisions to be made jointly would, more likely than not, expose the child to further conflict. Fourthly, there are already issues about which the parties cannot agree e.g. whether or not the child should have a passport and travel overseas and finally, an order for equal shared parental responsibility is more likely to lead to further litigation.   

5. Accordingly, I propose to make an order for the father to have sole parental responsibility for major long term issues and I propose to adopt the draft order prepared by the Independent Children’s Lawyer and adopted by the father that will require the father to consider the mother’s views in relation to any decision he is required to make.

Passport

1. The child is apparently a talented sportsman and has already missed the opportunity of travelling to a number of countries to play his sport. The father wishes to obtain a passport for the child to facilitate his participation in international sporting events.

2. The mother is opposed to the father and child traveling overseas. She holds a belief that the child will be exposed to drugs and alcohol if he travels overseas.

3. I am not persuaded that there is any reason to prohibit the child’s travel overseas.

4. As I intend to order the father to have sole parental responsibility the question arises whether or not it is necessary to make any order about overseas travel or the acquisition of a passport.

5. Section 11 of the Australian Passports Act 2005 (Cth) relevantly provides:

   (1)The Minister must not issue an Australian travel document to a child unless:

   (a)Each person who has parental responsibility for the child consents to the child having an Australian travel document; or

   (b)An order of a court of the Commonwealth …permits:

   (i)The child to have an Australian travel document; or

   (ii)To travel internationally;

   (iii)…

   (2)– (4) …

   (5) For the purposes of this section, a person has parental responsibility for a child if, and only if:

   (a) the person:

   (i) is the child’s parent … and

   (ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 …

6. An Australian travel document is defined as meaning an Australian passport or a travel-related document.

7. Under the Family Law Act 1975 (Cth) each parent has parental responsibility which is defined as encompassing all duties, powers, responsibilities and authority which, by law, parents have in relation to children (see s 61B). A parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child (see s 61D). It is apparent from ss 65DAC and 65DAE that parental responsibility applies in relation to major long term issues and issues that are not major long term issues. The Australian Passports Act does not differentiate.

8. As the Order made by consent on 26 February 2018 provides for the mother to spend time with the child in certain circumstances, the mother may have parental responsibility to make decisions when the child is in her care relating to day to day matters.

9. Accordingly, I consider it is necessary to make an order relating to the passport issue.

10. On a plain reading of s 11 of the Australian Passports Act, a passport can issue even where the consent of both parties does not exist, if an order of this Court permits the child to have an Australian travel document (which includes a passport) or is permitted to travel internationally. I propose therefore to make an Order within the terms of s 11(1)(b)(i) and (ii) of that Act.

The surname

1. The child has complained to his psychologist that in 2017 he was bullied and teased because of the surname “Reidel-Tourel”. In November 2017 an interim Order was made permitting the father to enrol the child at high school, which he commenced this year, in the surname “Tourel”. There have been no bullying or teasing complaints this year.

2. Mr G, the child’s psychologist, opines that the child’s distress is less likely to be about the name itself but rather that it brings up distressing memories for the child of the time he lived with the mother.

3. I find that it is in the child’s best interests for his surname to be formally changed to Tourel. In a practical sense this has already happened for the child. It may, as submitted by the Independent Children’s Lawyer, enhance the prospects of success of the mother’s reintroduction to the child if the child’s wishes in this regard are respected.

Injunction involving Mr E

1. The child has made disclosures about Mr E’s assaulting him and the mother.

2. Allegations of Mr E’s physical violence towards the mother are corroborated by the detailed particulars contained in Queensland Police Service records including graphic photographs of the mother’s injuries.

3. The mother and Mr E maintained in oral evidence that they did not recall the violence. The mother blamed herself for significant facial bruising suggesting that it occurred because of her excessive consumption of alcohol combined with her over medicating which in turn caused her to fall about on the furniture.

4. Mr E has been the respondent to two protection orders where the mother is named as the aggrieved. The protection orders were taken out on behalf of the mother by police. The current protection order remains in place until 2019.

5. The mother provided sworn evidence that Mr E did not have a criminal history. The five page criminal history produced by the Queensland Police Service contradicts the mother’s evidence. Despite Mr E’s obfuscation on this issue I find that the criminal history as contained in those records is more likely than not to be an accurate account of Mr E’s criminal history.

6. The extent to which the mother will go to deny the violence and to protect Mr E is extremely concerning. I find that the mother would have no capacity to protect the child from Mr E and accordingly I propose to issue the injunction. 

Injunction involving Ms F

1. The father opposes any injunction against him from bringing the child into contact with Ms F. He contends that he has not been in a relationship with Ms F for about four years and that she has not stayed at his place since about 2015. She has been twice married since they were in a relationship. However, the father contends that the child has a fondness for her and that they see her from time to time. By way of example, he said that the child might say, “can I see [Ms F]?” and they will drop by the lawn bowls club and watch her play “a few ends” before leaving. He does not recall being informed of the matters about which Ms F deposes in her affidavit filed in 2014 and upon which the mother now relies to support her application for the injunction.

2. The mother contends that Ms F dressed provocatively and permitted the child to play with her breasts and pubic area. The mother has not seen the child with Ms F for about five years and her sole basis for making the latter allegations rests on the content of Ms F’s affidavit filed in support of the father’s application to have the child live with him in November 2014. The relevant paragraphs of that affidavit are as follows:

   4.On Friday 31 October, 2014, I was with [the child] in the garden in the afternoon. I was sitting down and [the child] said, “I want to kiss you, I love you, I want to touch you.” [The child] then touched my left breast. I said to [the child], “You can’t do that. Go and play football.”

   5.Later [the child] came up behind me and grabbed me from behind and was thrusting his pelvis into my bottom and said, “I want to do boom boom.” I said “Stop [B]”.

   6.[The child] was very different from ever before. There has never been any behaviour like this from [the child] before.

   7.I had a shower on Sunday morning, 2 November, 2014 and when I opened the door [the child] was standing there. He touched my pubic area. He said, “I want to do boom boom.” I said, “No, I will tell your Dad.”

1. Those paragraphs do not in any way support the mother’s allegations. I reject her allegations entirely and I will not make any order impacting on the child’s ability to have contact with Ms F.

Psychiatric Assessment

1. The father has already been psychiatrically assessed by Dr D in 2015. It is not clear to me why the mother pressed for this order. The mother elected to make no submissions at the end of the trial.

2. Dr D was cross-examined by the mother during the trial and rejected the suggestion that the father should be psychiatrically assessed. He recommended the father seek psychological support to deal with past issues and the re-introduction of the child with the mother. The father has already consented to an order in those terms.

3. I propose therefore to dismiss the mother’s application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 28 February 2018.

Associate: 

Date:  01.03.2018