WOLDE & TESFAY

[2015] FCCA 397

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOLDE & TESFAY [2015] FCCA 397

Catchwords:
FAMILY LAW − Whether child should spend overnight time with father − whether mother should be prevented from taking child outside Australia.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DA, 65DAA

Applicant: MS WOLDE

Respondent: MR TESFAY

File Number: DGC 1495 of 2013

Judgment of: Judge Phipps

Hearing date: 5 June 2014

Date of Last Submission: 5 June 2014

Delivered at: Dandenong

Delivered on: 27 February 2015

REPRESENTATION

Applicant: Ms Wolde

Respondent: Mr Tesfay

Counsel for the Independent Children’s Lawyer: Mr Kent-Hughes

Solicitors for the Independent Children’s Lawyer: Robert Halliday & Associates

NOTATION: These orders have been amended pursuant to rule 16.05(2) of the Federal Circuit Court Rules 2001 to reflect a correction made to the front page in relation to the Hearing Date and the Date of Last Submission from 5 June 2015 to 5 June 2014.

ORDERS

1. That all previous orders are discharged save for paragraphs 10, 11, 12 and 13 of the Order made 3 February 2014 (the Airport Watch List paragraphs).  The Airport Watch List paragraphs are discharged from 3 February 2016.

2. That the parties have equal shared parental responsibility for the child [X] born [omitted] 2009.

3. That the child live with the mother.

4. That the child spend time and communicate with the father as follows:

   (a)each alternate Sunday from 10.00am until 5.00pm;

   (b)each intervening Sunday from 2.30pm until 6 30pm;

   (c)at other times as may be agreed between the parties.

5. That upon the father obtaining suitable accommodation for overnight time with the child, and no earlier than two months from the date of these orders, the father spend time and communicate with the child as follows:

   (a)for the first three months, each alternate weekend from the conclusion of school Friday until 1.30pm Saturday;

   (b)thereafter each alternate weekend from conclusion of school Friday until 6.00pm Sunday;

   (c)for the first and second school holiday terms commencing at the expiration of time pursuant to (a) above from 10.00am on the first Saturday of the holidays to 10.00am the following Wednesday;

   (d)thereafter for the third school holiday terms commencing at the expiration of time pursuant to paragraph (a) above from 10.00am on the first Saturday of the holidays to 10.00am on the following Friday;

   (e)thereafter for half of school term holiday periods by agreement and failing agreement the first half;

   (f)commencing 2016/2017 for half of the long summer holidays by agreement and failing agreement the first half of each even year and the second half of each odd year.

6. On Father’s Day from 10.00am until 6.00pm, should that weekend fall on the mother’s time with the child and the father’s time be suspended should this time fall on Mother’s Day from 5.00pm the day before Mother’s Day until the next scheduled spend time visit.

7. For spend time with arrangements change overs shall occur at the McDonald’s Restaurant at [omitted] when not at school.

8. The father be permitted to attend any school or extracurricular activities to which a parent would normally be invited to attend, including but not limited to parent teacher interviews, concerts and sporting events and to receive all school newsletters, notices, reports and school photograph applications, at his expense, if any.

9. That in the event the child’s school require the mother to provide specific authorities regarding paragraph 8 of these orders, the mother shall provide such clarity to the child’s school forthwith.

10. That each party inform the other of any change to the residential address or change of telephone details within 24 hours of such change.

11. That the parties immediately inform the other of any injury sustained by the child requiring medical attention whilst the child is in their care, and shall provide details of the treating practitioner and health service provider to the other party.

12. That this order acts as an authority with respect to the release of medical information concerning the child by any health service provider and in the event the health service provider seeks specific authorities from the mother before the release of such information to the father, the mother provide such an authority forthwith.

13. That the parties are at liberty to attend the child’s school for any events that parents normally attend, including parent/teacher interviews and liaise with the child’s school and with her teachers.

14. The parties, their servants and agents are restrained by injunction from denigrating the other party in the presence or hearing of the child and from allowing anyone else to do so.

15. The parties their servants and agents are restrained by injunction from discussing, or allowing third persons in their presence to discuss, with the child the court proceedings and in particular any of the allegations raised therein.

16. That the parties, if they have not already done so, enrol; in and complete a Post Separation Parenting course and provide the other party with a copy of the certificate of completion.

17. That the order appointing the Independent Children’s Lawyer is discharged

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1495 of 2013

MS WOLDE

Applicant

And

MR TESFAY

Respondent

REASONS FOR JUDGMENT

1. The Mother, Ms Wolde and the father, Mr Tesfay have one child [X] born [in] 2009.  The child lives with the mother.  The parties are in dispute about whether the child should spend overnight time with the father and whether the mother should be permitted to take the child to [African nation omitted].  The father agrees that the mother can take the child to [European nation omitted], but the Independent Children’s Lawyer does not.

2. Both parents were self represented at the hearing and required the assistance of an interpreter.  The father had solicitors prior to the hearing who filed an outline of case containing his proposal.  The mother had not filed an outline of case, but stated her proposal at the commencement of the hearing and in evidence.  The Independent Children’s Lawyer had a written proposal.

3. The mother’s proposal is that the child should live with her and spend only daytime time with the father, 10.00am to 5.00pm every second Sunday and 2.30pm to 6.30pm every second Saturday.  She proposes that she be permitted to take the child to [African nation omitted] and [European nation omitted] both where she has relatives.  The mother’s proposal in her application is that she have sole parental responsibility and that seems to be her approach at the hearing.

4. The father’s written proposal was modified a little by him during his evidence and is essentially the same as the Independent Children’s Lawyers.

5. The Independent Children’s Lawyer proposes that the parties have equal shared parental responsibility, the child live with the mother and spend time and communicate with the father:

   a)each alternate Sunday from 10.00am until 5.00pm;

   b)each intervening Sunday from 2.30pm until 6 30pm;

   c)at other times as may be agreed between the parties;

   Upon the father obtaining suitable accommodation for overnight time for the child, and no earlier than two months from the date of these orders, the father spend time and communicate with the child as follows:

   a)for the first three months, each alternate weekend from the conclusion of school Friday until 1.30pm;

   b)thereafter each alternate weekend from conclusion of school Friday until 6.00pm Sunday;

   c)for the first and second school holiday terms commencing at the expiration of time pursuant to (a) from 10.00am on the first Saturday of the holidays to 10.00am the following Wednesday;

   d)thereafter for the third school holiday terms commencing at the expiration of time pursuant to paragraph (a) above from 10 00am on the first Saturday of the holidays to 10.00am the following Friday;

   e)thereafter for half of school term holiday periods by agreement and failing agreement the first half;

   f)commencing 2016/2017 for half of the long summer holidays by agreement and failing agreement the first half of each even year and the second half of each odd year.

6. The proposal then sets out time on Father’s Day and Mother’s Day, changeover at McDonald’s restaurant on [omitted] when not at school (which is agreed) and provisions for the father attending school activities, each party informing the other of their residential addresses and change of telephone details and injuries sustained by the child, a non-denigration clause and a restraint from discussing the proceedings.

7. Both parties were born in [African nation omitted], the mother on [omitted] 1977 and the father on [omitted] 1974.  The father arrived in Australia in January 1999.  He is an Australian citizen.  The father sponsored the mother to migrate to Australia.  The mother is now an Australian citizen They married on [omitted] 2008 and separated on 9 September 2009, although the mother says it was in September 2010.  The father saw the child on a sporadic basis but had not seen the child since 2011 when these proceedings were commenced.

8. The parties divorced in September 2013 and the father married Ms W on [omitted] 2013.  They live in a household which includes her two sons aged fifteen and eight.  The mother has not re-partnered.

9. The mother is the youngest of six children.  Her mother, two sisters and one brother live in [African nation omitted].  The brother is single and the two sisters have their own families.  She has a brother and sister living in [European nation omitted], both with families.  Her father is deceased.  The father’s mother and younger sister migrated to Australia in 2003 and live close to the father’s residence.  His father is deceased.

10. The mother commenced the application on 4 June 2013 applying for an order that the child obtain a passport without having to have the permission of the father.  The father then filed a response applying for parenting orders.

11. Consent orders on 27 July 2013 provide that the child live with the mother and spend time with the father each Sunday from 10.00am until 1.00pm at [omitted] shopping centre.  The order provided for the father to sign a passport application of the child and that the mother was at liberty to travel with the child to [European nation omitted] for a period of four weeks during the school year.  The order required the mother to provide details of her travel and that she deposit the child’s passport with the father’s lawyers.  The father has signed the passport application but the mother has not obtained a passport and she has not travelled to [European nation omitted].

12. An order on 3 February 2014, not by consent, provided for the child to spend time with the father each Sunday from 2.00pm to 6.30pm.  That order restrained each party from removing the child from Australia and placed the child’s name on the Airport Watch List for a period of two years.

13. The mother and the child live in public housing near to where the child attends school.  The father lives with his wife and her two children in a two-bedroom residence.  The mother has employment as a [omitted].  The father, at the time of the hearing, was studying [omitted] and working casually as a [omitted].

14. The significant issue is the father’s ability to care for the child.  The mother in her affidavits alleges that the father was violent and abusive, whereas the father alleges it was the mother who was abusive.  To the report writer the mother alleged that the family violence towards her in the child’s presence was an issue that could compromise the child’s safety when in the fathers care.

15. While assertions are made in the affidavits there was no cross examination on this issue and it is not possible to make a determination.  As described below the family report writer did not see anything in the child’s behaviour which indicated any apprehension about the father.  While it is not possible to make any findings about the allegations of family violence while the parties were together there is no evidence of any risk to the child since she commenced spending time with her father in July 2013.

16. The mother came from [African nation omitted] to live in Australia where she has no family support.  The marriage was short lived and her apprehension about the child’s time with the father is understandable, but I am satisfied the child is not at risk of abuse in the father’s care.

17. The family report was prepared by Ms F.  On the day of the interviews and the observation session the child developed a fever but apart from that Ms F says the child presented as healthy overall and well cared for and despite her ill-health was responsive to both the mother’s and father’s care.  To Ms F the mother described the child as a happy and settled child and that she has responded well to primary school.  The mother attends a local church and has a supportive social network there that includes children with whom the child socialises.

18. The mother said to Ms F that in the three hours of contact time spent at [omitted] shopping centre the father did not consistently interact with the child.  She said that after the time with the father the child comes home tired and hungry, she doesn’t eat and gets upset and won’t go to bed.  Ms F says that the mother indicated that in more recent times four and a half hours not at [shopping centre omitted] have apparently proceeded uneventfully.  The mother was also concerned that when the child was attending church services with the father she might not be adequately supervised because the father is actively involved in providing music and other support during services. The father told

    
    

    Ms F that the child has socialised happily with other children and said that extensive adult supervision is available during church services.

19. To Ms F the mother raised the father’s parenting capacity as a concern listing inappropriate physical care, limited emotional interaction and overall limited commitment to the ongoing relationship with the child.

20. In the observation session of the father and the child, once the mother had left, Ms F observed that the child settled and sat on the floor, engaging in happy conversation with the father.  She referred to him as “Daddy” and enthusiastically talked with him.  Ms F says that the father demonstrated competent parenting.  He was responsive and warmly engaged in activities.  Ms F says that the father presents as emotionally available to the child and seems to employ a parenting approach of support, of encouragement and active guiding.  Ms F says the child demonstrates strong emotional bonds with the father and she perceives him as a secure attachment figure.

21. Ms F’s observation of the child and the mother was brief because the child was clearly becoming more unwell.  Ms F was able to observe warmth, affection and physical comforting.  The mother demonstrated competent parenting.  The child presented as securely attached to the mother.

22. The father reported to Ms F that his relationship with his wife was positive and they have a supportive household with her two sons.  They met at church.  Ms F interviewed the father’s wife.  Ms F does not dispute the father’s description of his current relationship.

23. Ms F recommends overnight time as in the Independent Children’s Lawyer’s proposal.  She says that the child seems to have settled in the four years since separation.  She has secure attachment to her mother, a positive bond with her father and overall positive age-appropriate development.

24. The one matter that Ms F comments on is the mother’s negativity towards the father and she said that this appears to be the foremost potential compromise to the child’s ongoing meaningful relationship with her father and his extended family.  She recommended each party attend a post separation parenting course.

25. The pathway through the legislation described by the Full Court of the Family Court of Australia commences with the best interest considerations. Section 60CA of the Family Law Act 1975 (Cth) provides that the best interests of the child is the paramount consideration in making parenting orders. The best interest considerations are contained in s.60CC. They must be considered in the context of the objects and principles set out in s.60B.

26. I will commence with the additional considerations.  Ms F did not ask the child about her views but the relationship with the father observed by Ms F demonstrates that the child enjoys the time with the father.

27. The second consideration is the child’s relationship with each parent and others.  The mother is the child’s primary carer with a secure and loving attachment.  She has a secure attachment to her father and an obvious bond and relationship with him.  According to the father the child gets on well with his wife and his wife’s children.  The mother wishes to take the child to [African nation omitted] and [European nation omitted] so that she can meet her grandmother and other members of her family.  The child has never met them but would benefit from meeting them if that is possible.

28. The third consideration can be summarised as the extent to which each parent has participated in the life of the child.  Except for a few occasions the father did not pursue any time with the child until the mother commenced the proceedings.  The mother did not attempt to have the child spend time with the father prior to then but has since abided by the orders.  I am satisfied that she will abide by any orders made in the future.

29. The other consideration relevant to this case is the ability of each parent to care for the child.  Plainly the mother has that ability, demonstrated by the child’s happiness and satisfactory development.  Ms F assesses the father as having the ability to care for the child.  The mother expressed some misgivings to Ms F but I am satisfied from

    
    

    Ms F’s evidence that the father has the ability to care for the child for the times which are proposed.

30. Family violence is alleged by the mother as an issue relevant to the additional considerations and the second of the primary considerations, the need to protect the child from harm.  The father’s domestic situation is now well-established and settled.  The child showed no apprehension in the father’s presence and I am satisfied that the child is not in any risk with the father.

31. Ms F concludes her assessment by saying that the child’s relationship with the father will be facilitated with additional time that allows the father to be actively involved in the child’s daily life and for the child to have facilitative relationships with significant others in the father’s life.

32. The first of the primary considerations is the benefit to the child of a meaningful relationship with each parent.  The assessment by Ms F and the history of the father’s time with the child shows that the child has a meaningful relationship with the mother which will not be affected by increasing the child’s time with the father.  The child does have a meaningful relationship with the father and I am satisfied that will be enhanced by additional time as proposed by the father and the Independent Children’s Lawyer.

33. At issue is the question of whether the mother should have sole parental responsibility or whether the parties should have equal shared parental responsibility. The presumption in s.65DA is that it is in the best interests of a child for parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that there has been family violence or abuse of the child or if it is otherwise not in the child’s best interests to apply the presumption.

1. I am satisfied that if there was family violence it now does not affect the child’s relationship with the father.  I do not consider that there is sufficient evidence to say that there are reasonable grounds for believing that there has been family violence or abuse.

2. I must consider whether it is in the best interests of the child for there to be an order for equal shared parental responsibility.  The parties communicate only by text message but have done so satisfactorily for the purpose of the child’s time with the father.  The mother has the principal if not sole role in determining major long-term matters so far.  This will continue and nothing in the evidence suggests that the husband will be uncooperative.  It is a serious matter to remove a parent’s role in major long-term decision-making concerning a child.  In this case I consider it is in the child’s best interests for that to happen.

3. An order for equal shared parental responsibility means I must consider the requirements of s.65DAA. Equal time is not proposed and so need not be considered. The child’s best interests are met by the child eventually spending alternate weekends and half school holidays with the father. Her relationship with both parents is sound. Her mother is the primary carer and her relationship with her father will be promoted by the additional time. The proposal is recommended by Ms F and I accept that her reasons for making the recommendation are sound.

4. In the circumstances the time proposed meets the requirements of substantial and significant time.  The parties residences are close enough together to make the proposal reasonably practicable and the parties can cooperate to the extent necessary to make it work.

5. The issue about overseas travel has two aspects:

   a)the risk that the mother will not return the child to Australia;

   b)the risk in travelling to [African nation omitted].

6. The father consented to an order that the mother could travel to [European nation omitted], that being a continuing order.  The Independent Children’s Lawyer is opposed to this and proposes a prohibition on the mother taking the child out of Australia at all.  The opposition of the Independent Children’s Lawyer is because once the child is out of Australia the mother could take the child to [African nation omitted].  The Independent Children’s Lawyer’s opposition is based on both grounds, the risk that the child will not be returned and the circumstances in [African nation omitted].

7. The Department of Foreigner Affairs and Trade’s recommendation for [African nation omitted] generally is “Reconsider your need to travel”.  For areas bordering Ethiopia, Sudan and Djibouti the recommendation is “Do not travel”.  The advice says that Australia does not have an embassy or consulate in [African nation omitted].  The advice says that exit permits are required to leave [African nation omitted].  Obtaining these permits can be time-consuming, delay travel plans or even be denied in some circumstances.

8. The mother says that she has no plan to leave her daughter overseas.  She says that her whole life is here in Australia and her daughter’s life for employment, education for everything.  She wants to go to [African nation omitted] to see her mother and return.

9. The mother has not obtained a passport for the child despite having the father’s signature on the application.  She said she was not going to apply for the passport until she knew she could travel.  She did not want to leave the child in Australia in the care of others and travel to [African nation omitted] herself.

10. The mother’s connection to Australia is that she is an Australian citizen and has been here since 2008.  She has employment and a social network associated with her church.  The child was born in Australia and while speaking both English and [omitted] has successfully commenced school in Australia.  The mother lives in rented government accommodation and has no substantial assets in Australia.  She could not provide any security bond.

11. I consider that the risk of the mother not returning the child from [African nation omitted] is low, but it does exist.  The possibility exists that having arrived in [African nation omitted] with an intention to return the mother might change her mind.  She has a mother, brother and two sisters with families in [African nation omitted] and her family ties might persuade her to stay.  On the other hand, she left [African nation omitted] to marry the father and left her family behind.  She now is established in Australia and is an Australian citizen and has an Australian child.  The mother has complied with orders made despite her misgivings.

12. The appropriate balance between the benefit to the child of travelling with a parent to her country of origin and meeting her extended family there and the risks associated with that are to leave the existing airport watch list in place.  It will expire on 3 February 2016.  By that stage the child will be seven and commencing her third year at school in Australia and will have been spending substantial amounts of time with the father.  I will not make a positive order that the mother could take the child from Australia so that if there is opposition by the father the mother will need to obtain a court order.  I consider that with the resolution of this proceeding and the passage of time there is a possibility that by the commencement of 2016 the relationship between the parties will have improved such that they can reach agreement about travel.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  27 February 2015