Turan and Turan - [2009] FMCAfam 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURAN & TURAN

[2009] FMCAfam 72

FAMILY LAW – Dispute over children – parents being in different States – children living with mother – entrenched attitudes of parties and children – outstanding property dispute.

Family Law Act 1975, ss.60B, 60B(1), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(l), 61DA

Goode v Goode [2006] FamCA 1346
Price v Underwood [2008] FamCAFC 46

Applicant:

MR TURAN

Respondent:

MS TURAN

File Number:

MLC 12926 of 2007

Judgment of:

Burchardt FM

Hearing dates:

17 & 18 December 2008

Date of Last Submission:

18 December 2008

Delivered at:

Melbourne (by Video Link to Hobart)

Delivered on:

10 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr A. Robinson

Solicitors for the Applicant:

Zindilis Barristers & Solicitors

Counsel for the Respondent:

Ms K. Mussared

Solicitors for the Respondent:

Legal Aid Commission of Tasmania

Counsel for the Independent Children’s Lawyer:

Ms F. Di Giovanni

Solicitors for the Independent Children’s Lawyer:

Wallace Wilkinson & Webster

THE COURT ORDERS THAT:

The Respondent mother MS TURAN (“the mother”) have sole parental responsibility for making decisions about major long term issues relating to the children [X] born in 1994 and [Y] born in 1994 (“the children”).
The children live with the mother.
The mother shall keep the Applicant father MR TURAN (“the father”) informed of any changes to the children’s contact details and school.
The father shall keep the Respondent mother informed of his contact details.
The father write to the children to advise them of any changes to his contact details so they can contact him in future if they choose to do so.
In the event that the children (or either one of them) express the wish to spend time with the father both parties shall do all necessary acts and things to facilitate the children (or child as the case may be) spending time with the father.
Whilst the children attend high school, the children consult with the school counsellor on at least one occasion per school term and a copy of this Order be released to the school attended by the children.
The Order appointing the Independent Children’s Lawyer dated 4 June 2008 be discharged.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT DIRECTS THAT:

Within 14 days the parties forward in writing to one another and to the Court their submissions in relation to the constitution of this Court in relation to property issues.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 12926 of 2007

MR TURAN

Applicant

And

MS TURAN

Respondent

REASONS FOR JUDGMENT

Introductory

There are two substantive issues for determination in this proceeding. The first, children's issues, has been heard on 17 and 18 December 2008 and these reasons for decision deal largely with those matters.
The second outstanding issue is a property dispute between the parties. I will return to the orders necessary to enable that matter to be determined in due course.
The substantive major dispute between the parties is whether the two children of the relationship, twins [Y] and [X], born in 1994, should live primarily with the mother in Hobart or primarily with the father in Melbourne.
For the reasons that follow, I am of the clear view that the children should live with the mother in Hobart and should have, at least at the moment, no contact with their father.

The Procedural History

Because of the way the matter has proceeded, it is necessary to set out the procedural history.
Proceedings were commenced by an application for divorce filed by the husband on 28 November 2007. That application was not supported by any affidavit material.
The wife's response filed on 21 January 2008 took issue with the date of separation and was supported by an affidavit subsequently filed on 4 March 2008. From that affidavit, it is apparent that the dispute about the date of separation is directly relevant to a property dispute foreshadowed by the terms of the mother's affidavit.
The mother's March affidavit also deposed to the breakdown of the marriage and the effect of that upon the two children.
The father filed an affidavit disputing a number of the facts asserted by the mother on 4 April 2008. When the matter came before the Court on 4 June 2008, I ordered the appointment of an Independent Children's Lawyer because, notwithstanding that no formal applications had been lodged, it was clear that there were children's issues to be determined. On 4 and 18 August 2008 the father filed a further affidavit, primarily directed to the divorce application but also touching on issues relevant to the property matter and children's issues.
On 19 August 2008 I ordered that there be a family report following the first appearance of the Independent Children's Lawyer at Court that day.
Subsequently, on 25 November 2008, the mother filed an application. She sought that the children live with her and that there be a property distribution in her favour. She also sought that the proceeding be transferred to the Hobart Registry and various procedural orders relating to the property dispute.
Although the husband had filed an affidavit on 10 November 2008 anticipating the change of venue application and opposing it, he has not to this date filed any further other affidavit material, nor has he filed at any stage a financial statement.
The mother filed a financial statement and an affidavit on

25 November 2008
together with an affidavit from her solicitor which essentially addressed the change of venue issue.

The Divorce

When the proceeding was called on on 17 December 2008, counsel for the father submitted that the proceeding was concerned primarily with the issue of divorce and acquiesced only with reluctance to the Court's determination to deal with children's issues as well. It was common cause between the parties that the property issues were not in a position to proceed in any event.
In the ultimate, the parties agreed with the Court's suggestion that since the mother's material suggested separation in October 2007, and a year had now elapsed in any event, it was sensible in the light of the decision of the Full Court of the Family Court in Price v Underwood [2008] FamCAFC 46 for the husband to file an amended application for divorce, accepting for these purposes at least that separation took place in October 2007.
This duly occurred and I made a divorce order on 18 December 2008. I note that I have made it clear that the adoption of the October 2007 date was without prejudice to the parties' positions to argue some other relevant date of separation in the property proceedings.

The Change of Venue Issue

Because counsel for the father sought time in which to put on further material about this issue, with the inevitable concomitant expense for the parties, and because I had formed a clear view about the matter, I gave extempore reasons about the application for change of venue on 18 December 2008. For the reasons I then expressed, I rejected the application for change of venue. I repeat that in my view although the logistical difficulties imposed by this case are significant, they are not such as to deny any party a fair opportunity to present and test their case and to conduct their trial.

Children's Issues

This brings us to the kernel of the matter as it has been heard thus far.
As it emerged, neither party sought in the ultimate exactly what had previously been expressed. The mother changed her position, in that she no longer seeks an order for shared parental responsibility.
This was a relatively minor change, a change which I can understand in light of the way the case has progressed.
The father through his counsel, however, articulated for the first time at the commencement of the first day of hearing that his position was that the children should live with him in Victoria and spend liberal time with the mother in Tasmania, a matter I shall return to when I deal with the evidence.
Although one might reasonably say that the father's affidavit material had indicated a desire to see his children, the change to primary carer was made only at this very late stage.

The Facts about the Parties and the Children

The parties agree that they married in Sydney in September 1989. Both parties assert in substance that following the marriage, the father was the primary breadwinner, although the wife did some work at home for a while, and the mother was the primary person in charge of the home.
The twins were born in 1994 and although the mother had done some work from home later on, her command of English is relatively poor and it seems likely that her employment prospects are generally likewise poor.
The parties lived initially and for some years in New South Wales. There is a dispute, and an important one yet to be determined, as to the course of the parties' financial and personal dealings from about 2003 onwards.
For present purposes, it is sufficient to say that at some point, the parties bought a property in New South Wales and that in 2005 or 2006, the father bought a property in Queensland. The mother says that this purchase was merely part of the ongoing activities within the relationship, whereas the father asserts that his move to Queensland was the date of separation.
On any view, albeit that the motivations involved are in vivid dispute, the children and the mother joined the father in Queensland at some point in 2007. He, during 2007, went to Melbourne to buy into a [omitted] business and did so. He moved to Melbourne to enable this to occur.
While the sequence of events is by no means clear, it seems that at some point in late 2007 (I would infer at or about the date of separation asserted by the mother, namely 20 October 2007), the mother became aware that the father was sending romantic emails to a woman in Turkey and/or that he was involved in a relationship with a woman in Melbourne.
Counsel for the father made much of inconsistent versions of the discovery of the father's unfaithfulness, as displayed in the mother’s various affidavits, the account given by the mother's proposed witness, Ms B, and by the report writer. I accept that there are material inconsistencies in the various accounts given.
In part, as I find, these inconsistencies arise out of the mother's problems in expressing herself in English and the emotional tumult that the events caused the mother at the time and, having seen her give evidence, continue to cause her.
Stepping away from the heat of battle, however, the sequence of events is reasonably clear. I think it is more probable than otherwise that the mother first found out about the father's infidelity in the presence of the daughter, [X]. The whole family were, at least to that point, devout Jehovah's Witnesses and the discovery of infidelity, distressing as it would be in any event, is given heightened emphasis by the nature of the Jehovah's Witnesses' beliefs about the sanctity of marriage.
As I find, the mother would no doubt have been deeply distressed by the discovery of infidelity after a lengthy period of marriage. She would have been quite unable to restrain herself from bringing this to the attention of her children and she clearly did so.
I think that not only were emails discovered but also letters indicating a possible relationship in Melbourne (the husband has in fact subsequently admitted a relationship with another woman in Melbourne, although he gives no details of when it took place).
I will return to the legal consequences of the mother's conduct later but it is sufficient to note that following the discoveries that obviously took place in October 2007, the mother contacted the father, refused to come with the children to Melbourne and in fact went to Hobart where she has close family.
Since that time, the children have had minimal contact with their father. The evidence suggests that he did continue to telephone regularly (see mother's affidavit, 4 March 2008, paragraph 20). I find that it is more probable than otherwise, having heard the parties' evidence and seen their demeanour, that he did indeed first try to convince the mother and children to return to Melbourne and then became more hectoring when that was resisted. The mother took steps to cease contact and there has been virtually no contact for over a year.
In his evidence given before the Court, the father made a number of assertions about the nature of his relationship with the children, some of which are not easy to reconcile. He said that he wanted to spend time with the children and support them spiritually. He said that he wanted the children to live with him and that they could go to see the wife as much as they liked. He said he could afford for them to go once per week. He said he had not seen the children since October 2007 and that there had been some conversations by telephone. On the one occasion he spoke to his son [Y], the son hung up on him. When he spoke with his daughter, she was not respectful of him and started swearing and so the father hung up. He said that the children were under pressure but that this pressure was not applied by the wife but rather by her family who live in Hobart. He was adamant that it was up to him to decide whether he married or not, this last assertion being made not in response to any question put to him.
Although he said in substance that the children might regard him as the more lenient parent, he said that he had the right to hit his children and to tell them how to behave. He qualified this later by saying that he did not have the right to hit them strongly so as to cause injury. He also made accusations that the wife hits the children, but these were fleeting and were alleged to have taken place in 2004 or 2005.
The father was somewhat equivocal as to what his status was within the Jehovah's Witness Church. There was competing evidence as to what the effects of a remarriage or even adultery might be. The most I am able to say is that it is more probable than not that Jehovah's Witnesses regard persons who leave a marriage as having violated the sanctity of that marriage and would at the least look at them askance.
The father was adamant that if the children did not wish to live with him, he did not wish to see them. He said, "If the children do not want to see me, I will not pay. I will not give them one cent."
It should be noted that the father appears to live above the [omitted] shop at which he works. He said no-one else lives there with him and there were two rooms available for the children. I have my doubts as to whether or not anybody lives with him because he himself volunteered that he has had an affair in relatively recent times and his insistence upon his right to marry, while on one view understandable, suggests that such a course is not as far from his mind as he sought to suggest.
It should be noted that the father's evidence was given in a fashion described perhaps best as unrestrained, argumentative and lacking insight. He insulted cross-examining counsel, he talked over me and many of his answers suggested a lack of insight into the children's view of him.
The mother was in many ways a not dissimilar witness to the father, although she was less unrestrained. Like the father, she had a habit of answering questions with questions. It is not necessary in the context of the views I have formed to traverse her evidence in any great detail. She was cross‑examined at some length, and if I may say ably, by counsel for the father who sought to show that the reluctance, as with the husband, of answers was by no means satisfactory and to an extent evasive.
It is sufficient to say that having seen and heard the wife give her evidence, albeit by video-link, I formed the view that the mother did inappropriately involve the children in the sequelae of the father's perceived infidelity and would not, with any great enthusiasm, seek to promote a relationship with the father. Nonetheless, I do not find that the difficulties the father has with his children arise as he asserts solely because of the mother's conduct.
I make that finding because of the impressive evidence given by the report writer. Despite extensive cross‑examination, particularly on behalf of the husband who disagreed with the report writer's conclusions, Ms Malakoff was an extremely impressive witness.
An examination of the transcript will show that she readily made concessions where they were there to be made. However, she did not alter her evidence where she was clear. Ms Malakoff is a very experienced report writer, evidently qualified to express the opinions she expressed and I should make it clear that I accept her evidence in its entirety. That evidence includes that the children became aware effectively almost instantly when the mother became aware that the husband had been unfaithful. Ms Malakoff conceded that the mother had over-involved the children in that aspect of the adult relationship, but in my view one needs to bear in mind the very natural distress that the mother would have felt upon learning of infidelity after a long marriage. Further, it rather beggars commonsense to suggest that she would never have mentioned this to her children.
The mother, the children and the father have lived for many years as Jehovah's Witnesses. Fidelity within marriage and the sanctity of the marriage relationship is on the evidence before me regarded extremely seriously by Jehovah's Witnesses. It is scarcely surprising both that the mother should respond strongly to news of such infidelity and that the children should do so too.
The children were brought up by their father and their mother in the Jehovah's Witness faith and it is scarcely surprising, indeed it would be astounding if it were otherwise, that the children should respond extremely badly to the news of the father's infidelity.
I find that the daughter was with the mother when the initial appreciation of infidelity took place. Thereafter, given that the daughter was already 13, there was no prospect whatever of both siblings not knowing all about the matter as it developed.
It is common cause that both children do not now wish to see their father at all. Their views are clearly recorded in the family report. [Y] says he would run away if forced to see his father and [X] quite clearly has a completely fractured relationship with him.
I find that although this may have had its origins in the mother's conduct, I accept the evidence of Ms Malakoff that the primary drivers of this very poor relationship are the children's own views and the father's completely inappropriate response to them.
It is clear that far from endeavouring to smooth his relationships with his children, the father when speaking to them has merely sought to assert his self-perceived authority over them. It is scarcely surprising that those endeavours have proved counterproductive.
In his evidence before me, the father stressed again his entitlement to direct his children's lives. This lack of insight only goes to reinforce the accuracy of Ms Malakoff's analysis. The father's threats to have nothing to do with the children if they do not do what he wants is again illustrative of both the lack of insight in his position and his failure to appreciate that his children at 14, whilst certainly not adults, are developing views of their own.

Counsel for the father sought to suggest that the report of Ms Malakoff, when read closely, suggested an underlying desire on the part of the children to see their father. He was critical of what he described as the simplistic religious views of the children.
I do not think the report goes as far as counsel for the father suggests but even if it does, it is clear that whatever their underlying and unexpressed secondary views might be, their primary views are clear. They are totally estranged from their father and do not wish to see him.
Whether or not the children's views are simplistic is more open to question. Of course they are not adults, but Ms Malakoff described them as mature. I accept her evidence. The fact is that the views the children express are the same as the views of adult Jehovah's Witnesses according to the evidence before me. On one level of intellectual analysis, these views might be described as simplistic but they are lawfully held views and they are not irrational. It is not for me as a Court to evaluate the propriety or otherwise of these views to any greater extent. The fact is that they are the views of this family and would indeed be the father's views, had his own circumstances not changed.
Ms Malakoff recommended that the mother have sole parental responsibility. She recommended in effect that the father write to the children to advise them of changes to his contact details and in a one‑off endeavour to mend the bridges between them.
Although extensively cross‑examined by counsel for the father, Ms Malakoff stuck to her opinion that any endeavour to force any further contact with the father at the present time would be only likely to give rise to yet further estrangement.
I have said already that I accept Ms Malakoff's evidence and I repeat that in respect to this aspect of the matter. Ms Malakoff's opinion accords with the recorded views of the children as expressed to the report writer and with the likely response, given their religious and social beliefs, to the sort of behaviour effectively admitted by the father and certainly demonstrated in the witness box.

Consideration of the legislative pathway

Against these considerations, I come to the legislative pathway as identified in Goode v Goode [2006] FamCA 1346.
The first issue for consideration is that of sole parental responsibility.
Both Ms Malakoff and the Independent Children's Lawyer support the mother having sole parental responsibility. In circumstances where the children are totally estranged from the father and not likely to see him for some considerable time, it is self-evidently only practical and appropriate that the mother have sole parental responsibility.
That this is so is made all the more necessary by the fact that on both parties' version of the events, the mother and the father are completely unable to communicate. Their demeanour in Court suggests that they would be utterly unable to communicate in any civil or appropriate way.
In the circumstances, I have no hesitation in deciding that the presumption in s.61DA of the Family Law Act 1975 (“the Act”) is rebutted because its application would not in the circumstances of this case as I have described them be in the children's best interests.
In the circumstances I have described, it is also self-evidently wholly inappropriate to contemplate equal time or substantial and significant time.
Equal time is plainly completely impractical. It is also contrary to the children's expressed wishes.
In my view, substantial and significant time is also inappropriate. That this is so springs from a consideration of matters set out in s.60CC of the Act.
It is trite that the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act).
In this case, there is no meaningful evidence to suggest that there has been abuse, neglect or family violence (s.60CC(2)). The evidence is clear that until separation, the father was a good father and the mother was a good mother.
The question that also requires to be considered as a primary consideration is the benefit to the children of having a meaningful relationship with both of their parents (s.60CC(2)(a)).
Here, counsel for the father laid great emphasis upon the fact that the orders sought by the mother and the Independent Children's Lawyer will have the effect of sundering the parental relationship with the father. He submitted that this was plainly likely to defeat the primary consideration expressed in s.60CC(2)(a)).
While at one level of analysis that is correct, there are a number of other points that need to be made. First, the Court is concerned as a matter of paramountcy with the children's best interests, not the perceptions of interests of the parents themselves. Secondly, the evidence as I find shows that it will not be in the best interests of the children to be in contact with their father. This will become more apparent when I turn to the s.60CC(3) matters below.
It is important to remember that the benefit to the children of having a relationship with both parents is to be approached in the light of the objects set out in s.60B of the Act. Section 60B(1)(a) makes it clear that the benefit of parents having a meaningful involvement in their lives is only "to the extent consistent with the best interests of the child". The Court is also required to bear in mind the object of protecting children from psychological harm.
With these matters in mind, I turn to s.60CC(3).
The children have expressed strong views that they do not wish to presently have contact with their father. The children, as I have found, are mature and have a sufficient level of understanding to express these views such that they should be given very considerable weight (s.60CC(3)(a)).
The nature of the relationship of the children with their mother is strong, secure and loving. Nobody has suggested the contrary. Their relationship with their father is fractured and acrimonious and likely to remain so. This is so partly to an extent because of the mother's conduct, but contrary to the submissions and lack of insight of the father, it also relates to the children's own developed views and his inappropriate response to them (s.60CC(3)(b)).
Notwithstanding the father's assertion that he would encourage a relationship with the mother if the children live with him, I find that the measure of distrust and dislike between the parents is such that neither would facilitate or encourage a close and continuing relationship between the children and the other parent (s.60CC(3)(c)).
Any attempt to make the children move from their mother to their father would clearly be traumatic for them in the context of the findings I have made (s.60CC(3)(d)).
The practical difficulty of the children spending time with their father is that they simply would not do so voluntarily and will actively jointly conspire to avoid it (s.60CC(3)(e)).
The mother plainly has the capacity to provide for the needs of the children, including their emotional and intellectual needs. The father's disturbing lack of insight, as evinced by his response to the children's views and the formulation of his last-minute proposal that the children live with him, suggest that he might struggle to provide for the needs of the children, notwithstanding that he plainly loves them (s.60CC(3)(f)).
The religious and associated beliefs of the children, together with what appears to be a reinforcing element of their Turkish conservative background, will affect the children and both of their parents because of the circumstances of this case as I have described them. These beliefs would make them react adversely to any orders that the children live with the father or spend time with him (s.60CC(3)(g)).
I have already dealt with those matters that might fall for consideration under s.60CC(3)(i).
It is by no means certain that any orders I make in this proceeding will be more or less likely to lead to the institution of further proceedings. On balance, however, I think that the orders I propose to make, which are sought by the Independent Children's Lawyer, are more likely to lead to finality and thereby avoid the stress to both the mother and through her, to the children (s.60CC(3)(l)).
Nobody has submitted that the other subsections of s.60CC(3) are relevant.
It will be readily apparent that this is a very unfortunate and sad case. The mother's conduct has been by no means perfect. In addition to other reservations I have already expressed, I note that she took it upon herself to tell the daughter, [X], about the father's application for relocation during the currency of the hearing by telephone. That is inappropriate, although equally it is in a sense understandable. The mother impressed me as being a person with little emotional self‑control and I am unsurprised that she should tell her daughter of her father's application which I suspect distressed her as much as it no doubt distressed the daughter and her brother.
Nonetheless, any weighting of the relevant considerations as I have set them out above leads inexorably to the conclusion that the children should live solely with the mother. Very unfortunately, any further contact with the father at the present time, other than perhaps one well‑crafted valedictory letter, will be extremely damaging.
Subject to one matter, the ancillary orders proposed by the Independent Children's Lawyer are self-evidently sensible in the context of the findings that I have made and orders will issue to that effect. I note that order 5 proposed by the Independent Children’s Lawyer appears inconsistent with the submissions made in Court. I will hear further submissions on this point.
It is to be hoped that as time goes by, Mr Turan comes to realise that the relationship with his children will require a less controlling and more conciliatory approach and that their feelings towards him moderate, but nonetheless the orders I will make are in my view quite clearly those that are in the children's best interests at the present time.

Property Matters

Counsel for the husband sought that the husband file a responding affidavit and financial statement, that there be valuation of the [omitted] business, a proper disclosure of financial circumstances and a conciliation conference together with a hearing of one to two days.
The mother sought the interim orders numbered 1 to 8 in the application filed on 25 November 2008.
Order 1, which was the transfer to Hobart, has already been disposed of.
Orders 2, 3 and 4 effectively seek to freeze any property assets or income in the father's possession.
Order 6 seeks spousal maintenance (this matter was not pressed before me but has been reserved to trial).
Order 7 is an application that the mother shall be granted leave to amend her application upon proper financial disclosure by the father, and order 8, costs, which is plainly premature.
In my view, the affidavit material goes nowhere near far enough to make the sort of freezing orders that the mother seeks. The parties have lived apart for over a year and albeit with the assistance of relatives, the mother has managed to get by thus far. No application for interim urgent spousal maintenance has been pressed.
What I think is appropriate in the circumstances is:
(a)that the husband file a responding affidavit and financial statement;
(b)     that both parties make discovery of:
(i)    any documents relating to the purchase and sale of all property held at any time jointly or severally by the father and/or the mother;
(ii) all documents in relation to the purchase or sale of properties in the name of the father or the mother at any time involving loans and/or mortgages;
(iii) all documents in relation to the father's business dealings including any businesses purchased or sold either in the husband's name or in partnership with others between 2005 and the present;
(iv) that the father provide a list of business income and expenditure on a month-by-month basis from the commencement of the [omitted] business to the present;
(v)   any business statements and records of business for the last seven years;
(vi) copies of the parties' annual tax returns for the last seven years.
The matter will be adjourned for a two-day trial on a date to be fixed.
Although the father sought a conciliation conference, the logistical difficulties of conducting such a conference when the mother would be in Hobart, participating only by phone, and where the parties have such entrenched distaste for one another, are such that in my view it will simply be a cost to the parties that will produce no meaningful result. If ever a case screamed out for curial disposition with the attendant lack of likelihood of any sensible settlement, this is it.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 10 February