Visentin and Sematida

[2010] FamCA 920

FAMILY COURT OF AUSTRALIA

VISENTIN & SEMATIDA [2010] FamCA 920

FAMILY LAW – CHILDREN – Interim – With whom a child spends time
FAMILY LAW – CHILDREN – Equal shared parental responsibility

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Visentin

RESPONDENT: Ms Sematida

FILE NUMBER: PAC 1963 of 2010

DATE DELIVERED: 19 August 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 19 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Sansom

SOLICITOR FOR THE APPLICANT: Watts Mccray

COUNSEL FOR THE RESPONDENT: Mr G. Gersbach

SOLICITOR FOR THE RESPONDENT: Briggs & Associates

Orders

1. That orders (1) to (5) inclusive of the Orders made 29 April 2010 be discharged. 

2. That orders (1) to (6) of the Orders made on 19 July 2010 be discharged.

3. That pending further order, the father have sole parental responsibility for the children Z a female born … December 2004 and Y a female born … January 2007.

4. That pending further order the said children live with father

5. That pending further order the said children spend time with the mother as follows:

6. In week one of each two week cycle on Monday, Wednesday, and Friday from 8am to 6pm; and

7. In week two of each such cycle on Tuesday Thursday and Saturday from 8am to 6pm.

8. That such two week cycle shall commence Monday, 30 August 2010 and until that time, the mother shall spend time with the children in accordance with the previous orders.

9. That the father arrange to provide an appropriate person to supervise the mother’s time with the children, and he shall be responsible to bear all associated costs.

10. That in event supervision cannot be arranged and put in place and maintained then either party shall have liberty to restore on seventy-two hours notice.

11. That the mother shall collect the children with the supervisor present from the father’s home at the commencement of each such period and return the children with the supervisor to the father’s home at the conclusion of each such period.

12. That the mother shall ensure the child Z attends school unless unwell or unable to attend on weekdays when the child is spending time with the mother.

13. That the mother shall decide whether or not Y attends preschool during the days when she is with the mother.  In that event, the mother shall notify both the preschool and the father, in a timely fashion, of that fact. 

14. That orders be made in accordance with 1 as amended, 2, 3 and 4 of the handwritten document made Exhibit A in today’s proceedings, herein set out as follows:

15. That the father surrender the mother’s [African] passport to the Court within seventy-two hours.

16. That the mother be restrained from obtaining any further passports.

17. That the Court authorise the father’s solicitors to notify the [African] Embassy and [European] Embassy of the Orders of the Court.

18. That the Court notes that the [European] passports of the mother and the children Z and Y have been surrendered to the Registry Manager of the Parramatta Family Court. 

19. That the matter be listed for further interim hearing in relation to financial matters at 10am on Thursday, 14 October 2010 before Justice Collier.

20. That liberty be granted to both parties to relist the matter upon giving seventy-two hours notice.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1963 of 2010

MR VISENTIN

Applicant

And

MS SEMATIDA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the arrangements to be put in place until further order in respect of the care of the parties’ two children, Z and Y.  The children, at present, live with their father and spend time with their mother pursuant to my orders of 23 July 2010.  At the present time, that time is both limited and supervised.  The mother wishes to extend it and do away with the aspect of supervision.  The father wishes to extend or alter the time slightly, but keep in place orders that provide for supervision; in this case, perhaps, by Dial-an-Angel or some similar body.

Brief Background

1. A background in the matter, briefly, is as follows. 

2. The father was born in 1961 in Australia.

3. The mother was born in 1975 in Africa. 

4. The parties have not married, although it appears some form of ceremony was undertaken by them in Europe. 

5. The child, Z, was born in December 2004 in Europe.

6. The child Y was born in March 2007 in Australia, once the parties came in 2006. 

7. The parties appear to have separated late in 2009 under the one roof, and they remained in that situation till February 2010, when the mother left with the children and moved into rented accommodation.

8. The mother then travelled to Africa and was to return to Australia by 14 April. 

9. The mother’s intention, at the time she left Australia, immediately after the time she arrived in Africa assumes some significance in this case and I will return to it later in these reasons. 

10. The father returned to Australia with the children on 19 May. 

11. The mother returned on 2 July 2007 and her reason for remaining in Africa between those two dates is something which I will return to shortly.  In any event, following what can only be described as a very, very prescribed hearing, orders were made by me on 23 July 2010 and the matter listed today.

The Parties’ Documents

1. In this case, the father was the applicant and he relied upon the following documents.

   a)Firstly, his application of 29 April 2010.

   b)His affidavit accompanying that application of 29 April.

   c)His affidavit of 21 July.

   d)His affidavit of 18 August 2010. 

2. The mother, for her part, relied upon the following documents:

   e)Her response filed on 17 August.

   f)Her affidavit filed on 17 August.

   g)Form 13 as to her financial circumstances also filed 17 August.

   h)An application filed today, being an application in a case that was required to be produced to reflect the orders sought on an interim basis.

Discussion

1. The mother’s application did contain matters financial.  They are not pressed today.  Accordingly, the matter for determination is, until further orders are made by this Court, where the children should live.  I have not heard the evidence of the parties.  I have, however, heard detailed submissions from each of their Counsel and I have read the material produced by each of the parties from subpoena.  It is the father’s case that the mother carried out what was described as a cruel act by removing the children overseas as she did.  It is here that I have concerns to what it was that was actually operating on the mother’s mind when she left.  She gives various explanations as to what happened.

2. She says in some material that she went to Africa to think about it; that is, while remaining in Africa.  That to me indicates that she had, whilst not a formed intention, at least held in her mind the possibility that she would remain in Africa at the time she left Australia.  That suggestion I am satisfied, on her own material, was not communicated to the father in any way; he thinking that he was consenting to the mother going for a fixed period, after which she would return to Australia.  The mother, in other affidavit material, seems to indicate it was only when she arrived in Africa and had been there for some time that she realised that her position might be better in Africa and she, therefore, decided to remain.

3. The mother in my view was not completely frank with the father at any time in relation to what she was doing in Africa.  She, firstly, sought to put off her return by saying that she was unwell, or the children were unwell and unable to travel, so as to return in accordance with what the father perceived to be the original plan. 

4. Whilst unable, on the evidence available to me, to see when the mother formed her intentions, I am satisfied on her own material that it was well in her mind when she left Australia that she might remain in Africa. 

5. There has been a move on the father’s part from Sydney to Melbourne that, on the face of it, does him not a great deal of credit, in that there appeared to be no consultation by him of the mother, but rather information given by him to the mother that he was going or had already done this.  It is interesting, in my view, that the father gives much the same reason for moving to Melbourne as the mother did for going to Africa, in that he can obtain support from family members in that place. 

6. It was put to me strongly by Mr Sansom that I should rely on the paramountcy principle and that is something I intend to do.

7. Put simply, as I apprehend the father’s case - and I do not mean to demean anyone when I say that - it seems that the father makes no real complaint about the mother’s care of the children either on a day-to-day or long term basis.  Rather, his concern is the fear that the mother may again leave Australia, or endeavour to leave Australia, or try to conceal herself somewhere within Australia.  There is really no evidence before me that the mother would have any intention of seeking to conceal herself somewhere in the Commonwealth.  To my mind, the real concern is whether she might again try and leave the Commonwealth of Australia.

8. The mother says that she has surrendered or is no longer in possession of documents that would enable her to travel overseas.  She tells me in her affidavit material that she had an African passport which expired in 1993 or thereabouts, and was not renewed.  Clearly, that is incorrect.  There is such a renewed passport, which is valid until 2013, and I am not satisfied that that is a fact that the mother could simply have overlooked.  It seems to me, without any evidence before me, that I must regard the risk as serious that, by making an application to the African authorities as the holder of a current African passport, or as a person entitled to a current African passport, she may be able to receive travel documents for herself and the children.

9. The reason she gave for not renewing the passport that she said earlier expired, was that she believed there would be difficulty in holding dual citizenship between Africa and Europe.  The fact of the subsequent issue of the passport, to my mind, puts an end to that. 

10. I am told by Mr Gersbach that I could serve copies of my orders upon any consulate, embassy, high commission or other body representing the interests of a foreign country, and that that would probably mean that nobody would act contrary to those orders.  With great respect to Mr Gersbach, I have no evidence before me to indicate that, if copies of my orders were served on the European authorities or the African authorities, that they would be respected.

11. A difficulty is that this lady has, in fact, tri-national status.  I am satisfied I can deal with the Australian authorities.  I am not satisfied, nor has it been established to me, that any order I make would necessarily be considered binding or perhaps more significantly, treated as binding by the authorities of either Europe or Africa.  That, to my mind, means that I cannot exclude the possibility and I put it at a level below probability that the mother may again endeavour to leave the country.  That is the risk that is posed in this case.  Mr Gersbach, in his address on behalf of his client, urged me to find that his client, having come back, there was very little risk of her again trying to flee.

12. It is, with the very greatest of respect, that very little risk that I am on guard against.  He points out to me that any attempt to flee would almost certainly be detected.  It is, again, the almost certainty that concerns me.  It may well be that, when the matter has a final hearing and the mother has the opportunity to give evidence and be tested, that she will satisfy whoever is the judicial officer on that occasion that there is nothing to fear, and that the actions that she took earlier were not such as should necessarily excite the concern that I have expressed.  However, I am doing the best I can with the material before me and the need to protect these children.

The Law to be Applied

1. It seems to me that an appropriate way to deal with the matter is to consider the various statutory enactments that I am required to take into account in reaching a determination.  The first of those are the objects of the Act set out in section 60B and the first of those objects tells me this:

   The objects of this part are to ensure that the best interests of the child are met by:

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

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

2. I have no doubt that another attempt by the mother to remove these children would amount to abuse within the meaning of that subsection. 

3. The principles tell me that children have a right to know and be cared for by both parents, and a right to spend time on a regular basis and communicate with both parents. 

4. Subsection 60CA tells me that in making a determination, I must regard the child’s best interests as the paramount consideration.  Section 60CC then tells me how this is done. 

5. Section 60CC(2) sets out the primary considerations.  They are:

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

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

6. Whilst not in precisely the same wording as the objects, the section poses for me, and for any judge making a decision under this Act, the balancing exercise of meaningful relationship and protection.  Meaningful relationship, in my view, cannot be precisely defined but I take into account here that it is common ground that at least until the time the mother left for Africa, she was the primary caretaker of these children.  I turn then to the additional considerations.  The children have not expressed any views.  Each of the parties report in their affidavit material that when the children are with them, they say things that might be seen to be supportive of that parent’s case and in some way, to be held as against the case of the other parent.

7. The nature of the relationship of the child with each parent.  I am satisfied that, subject to what else I say in this matter, the nature of the relationship of the child with each parent is a close and loving one.  I am satisfied that the children love each parent and the parent, in turn, loves each of those children.

8. The willingness and ability of each of the children’s parents to facilitate a relationship with the other.  In my mind, this is of significance in this case.  The mother, in my view, displayed a total lack of willingness to have the father participate when she moved to Africa.  Nothing may turn on this, but it appears the father suggested that they meet in what might have been called a neutral place, and the mother insisted the father come to where she was.  Those terms were imposed by her unilaterally.  The father, of course, brought the children back to Australia and then took them to Melbourne.  He as I have already said, did not consult with the mother before doing so, but gave reasons very similar to the mother’s own reasons for going to Africa for doing so.

9. The likely effect of any change in the child’s circumstances.  To my mind, the children will do well in the household of either parent subject to elimination of the risk of their abduction.  I am satisfied, having regard to what I have already said about that risk, that the effect of a change whereby the mother had significant and unsupervised time with the children, may, of itself, further the risk of abduction from the Commonwealth.

10. The practical difficulty and expense of the child spending time with a parent.  To my mind, the practical difficulty is that they are some 40 kilometres apart, but the mother has assured me through her counsel that that distance is something she can manage on an almost daily basis.

11. The father has agreed he will bear any cost related to supervision.  To my mind, this is not a section which poses great difficulties.

12. The capacity of each of the child’s parents and any other persons to provide for the needs of the child.  I am told that both parties have, at various times, relied on nannies.  I am told that both parties see their parents and other members of their extended families as significant helpers in relation to the children.  It seems to me that either party can provide for the children in a physical sense that is providing home, clothing, food, ensuring they attend the appropriate schooling or other authorities.  However, it is to my mind the emotional and intellectual needs that, perhaps, I ought examine here.  My concern once more is that the children may, indeed, not have their needs provided for if the mother again is determined to absent herself and the children from Australia so as to remove them from the father’s immediate vicinity.

13. The maturity, sex, lifestyle and background.  It’s clear these children come from multi-ethnic backgrounds but nothing has been raised concerning this.  There is no evidence before me that one parent is to be preferred over the other to nurture the European, Australian or African heritage of any of these children.  To my mind, there is simply nothing before me that alerts me that I should consider anything under this section.

14. The attitude to the children and the responsibilities of parenthood.  Up until the time of separation, it is clear that both parties acted appropriately and their attitude to the children was exemplary.  Certainly, they had the assistance of other persons to care for their children.  They cannot be criticised for that.  However, the mother’s inability to see the damage that she was causing by removing the children from the father in the manner that she did with no warning, and to a greater or lesser extent by deceit, causes me to be concerned that she can put what she perceives to be her own interests, real as they may be, before the interests of the children.

15. I’m also concerned at the time that the mother took to return to Australia after the father had returned.  The evidence is clear that he returned in May and the mother did not return till 2 July.  The mother’s explanation for that is that she was afraid that she would not be allowed to leave Africa because of some action taken by the father.  However, nothing is put before me that there was any bar to her leaving Africa and one is left to wonder why it was that she remained in Africa for that period.  I’m not told of any family violence. 

16. This is not a matter where I believe I can apply section L relating to the order least likely because further orders are, undoubtedly, going to have to be made in this matter following a proper and full hearing.

17. The next of the matters I look at is subsection (4) which deals with the extent to which each parent has fulfilled responsibilities of parent.  I don’t propose to repeat ad nauseam the comments that I have made about the inappropriateness of both parties making unilateral decisions as to where the children should be. 

18. I turn then to section 61DA.  This is the section that tells me that there is a presumption applicable to matters of this kind, and that presumption is in favour of shared parental responsibility.  I am told that the presumption does not apply where there are matters of violence.  I am told in subsection (4) that the presumption may be rebutted. 

19. I am told that when making an interim order, the presumption applies unless not appropriate and I am told that if there are interim parenting orders in respect of a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility under interim orders.  That means that the orders I make on an interim basis are clearly incapable of binding any judicial officer conducting a final hearing.

1. I am not satisfied that in this case I can say that the presumption does not apply because of violence.  I am not satisfied that I would find that in this case it inappropriate to consider the presumption, but I am satisfied that on the material before me it is appropriate for me to find that the presumption is rebutted, and that it is not appropriate in this case at this time that an order for equal shared parental responsibility be made.

2. Accordingly, I must determine which of the parties should have responsibility for the children.  In the circumstances of this case I will order that the father have sole parental responsibility for the children.

3. Section 65DA speaks of, in the event that a parenting order is to provide equal shared parental responsibility, the Court must consider whether the child spending equal time would be in the best interests of the child, and consider whether the child spending equal time with each parent is reasonably practicable, and further, if that’s not so, significant and substantial time, and reasonably practicable for that to occur.

4. Thus whilst I do not propose to make an order for equal shared parental responsibility, the Full Court in the matter of Goode[1] made it clear that if the Court considers it in the children’s best interests I must still consider equal or significant and substantial time with each parent. 

   [1] (2006) FLC 93-286

5. Equal time would mean that there would be a shared and an almost mathematical formula, for the children to spend time with each parent.

6. Significant and substantial time requires every case be looked at in its own rights as to what is, in the circumstances of that case, significant and substantial time. 

Conclusions

1. Because of the concerns that I have expressed, I am of the view that in this case at this time, it is not appropriate for me to order overnight, unsupervised time to be spent by the children with their mother. 

2. I do this, I concede, as a matter of precaution against what I consider to be a risk for the children.  I am satisfied, however, that the relationship that the mother had with these children before they returned to Australia with their father, is such that it is appropriate, but whilst not spending equal time with the children, that she spend a good deal of time with them.  In my view, it is appropriate that she spends some weekday time with the children, acknowledging that in that situation, the oldest child will need to attend school and there are also commitments for the youngest child at a preschool.  I am satisfied that it is appropriate in the circumstances of this case, that I order that that time be supervised.

3. Mr Sansom has confirmed on behalf of his client that he – that is the client, not Mr Sansom – will be responsible for the cost of provision of someone in the nature of Dial-an-Angel.  That, of course, will impose some real cost upon the father, but to my mind, it indicates that he is at least prepared to – If I might use the vernacular – put his money where his mouth is, in respect of that situation.  What I propose to do is order that in a two week cycle, the children spend Monday, Wednesday and Friday in one week with the mother and in the second week, Tuesday, Thursday and Saturday, on each occasion from 8 am to 6 pm.  Those periods will be supervised.

4. The mother is to collect the children from the father at the commencement of each such periods of time and return them to the father at the conclusion of each such period.  On each occasion, the supervisor will be present.  I propose to order that the mother ensure that the oldest child attend school on each occasion of a school day, but I leave her the option of whether or not the youngest child attends her preschool provided proper notice is given of her intention in that regard.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 19 August 2010.

Associate: 

Date:  13 October 2010