Arnott and Arnott

[2016] FCCA 2644

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARNOTT & ARNOTT [2016] FCCA 2644

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975, Pt.VII

Cases cited:
Morgan & Miles [2007] FamCA 1230

Applicant: MR ARNOTT

Respondent: MS ARNOTT

File Number: TVC 681 of 2016

Judgment of: Judge Demack

Hearing date: 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Rockhampton

Delivered on: 2 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Betts

Solicitors for the Applicant: McKays Family Law

Solicitors for the Respondent: Ms Grant of Women’s Legal Service Queensland

ORDERS UNTIL FURTHER ORDER

1. That the child X born (omitted) 2009 (“the child”) live with the mother on the (omitted).

2. That the child spend time with the father at all times as agreed between the parents in writing and failing agreement, as follows:

   (a)For the first half of the school holiday periods in even numbered years and for the second half of the school holidays in odd numbered years; and

   (b)Each alternate weekend from Friday afternoon to Sunday afternoon with such time to occur at the (omitted).

3. That the father be responsible for arranging travel to spend time with the child on the (omitted) at his own cost.

4. That in the event the father returns to the (omitted), that the parents review the Orders in relation to the time the child spends with the father with the aim of increasing the time that the child spends with the father.

5. That, noting that no interim order is being made about the parents’ joint or several liability for any school tuition fees, the mother may cause the child to attend (omitted) College at (omitted) in the State of Queensland.

6. That upon the father being notified that the mother intends to enrol the child at (omitted) College, the parents do all such acts, and sign all necessary documents to enable the child’s reenrolment to be completed within seven (7) days.

ORDERS

1. That the parents within fourteen (14) days of the date of this order contact the UnitingCare Community on (omitted) or Relationships Australia on (omitted) for intake in the Parenting Orders Program or such other program as recommended by that organisation.

2. That the parents shall comply with any reasonable direction of the Program Co-ordinator and in particular:

   (a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   (b)advise the Co-ordinator of their contact telephone number and advise the Co-ordinator of any change in that number;

   (c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.

3. That in the event that either parent refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Co-ordinator, then the matter may be re-listed by either parent on the giving of twenty four (24) notice.

4. That pursuant to Rule 15.09 of the Federal Circuit Court Rules2001, a Court Expert be appointed in this matter, such Expert to be as agreed between the parents within seven (7) days of the date of this Order.

5. That the expert by engaged on or before 15 August 2016.

6. That the parents and the child X born (omitted) 2009 attend upon the Court Expert on a date and time as organised between the Court Expert and the parties for the purposes of the preparation of a family report to be made available to the Court.

7. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in section 60CC of the Family Law Act1975 the following opinions should be included:

   (a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)That the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the child.

8. That the solicitors for the mother and the father forthwith provide the Family Consultant with a copy of all relevant filed material they seek the Family Consultant to read.

9. That the parents be equally responsible for payment of the cost of preparation of the family report.

10. That the report writer provide to the parents an estimate of cost of preparation of the family report and that the parents make payment of their one half share of that cost of the report writer within fourteen (14) days of receipt of such estimate.

11. That the report writer be under no obligation to commence interviews for the family report until payment pursuant to order 16 hereof has be made by each parent.

12. That within seven (7) days of the parties receiving the family report, the father is to file a copy of the family report with the Court.

13. That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Federal Circuit Court of Australia at Brisbane.

14. That the matter be adjourned to 9.30am on 31 October 2016 in the Federal Circuit Court of Australia in Brisbane.

15. That the father and his solicitor have leave to appear by telephone link on 31 October 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

TVC 681 of 2016

MR ARNOTT

Applicant

And

MS ARNOTT

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an interim decision with respect to parenting arrangements for X, who is the only child of (nationality omitted) parents who came to Australia after their marriage in 2007.  X was born on (omitted) 2009.  He turned seven (omitted). 

2. His parents separated on a final basis in around about October last year.  At final separation, as best as I can understand it, the child was firstly living with the mother on the (omitted), the father having gone to work in (omitted) for a period of about three months from September 2015. 

3. At the time the final separation was being discussed and arrangements for X were being discussed, it was the father’s intention to move to (omitted) for work purposes.  He intended to take X with him, and he contemplated that the mother would also move to (omitted) from the (omitted), where she is not only studying but is also working, and that she would move to (omitted) and even live in the same house as he and the child despite their separation. 

4. The mother says in her material that she did not agree to the father moving to (omitted) and taking X with him.  The mother, though, did go to (omitted), with the prospect of at least seeing X, in January 2016.  There was an incident of some substance between the parents that the child was apparently exposed to in January 2016, and the mother left (omitted) and left X in his father’s care.  The mother says that she was distressed at that time and did not know what further to do. 

5. The child remained in the father’s care.  The child was enrolled by the father in a school local in (omitted), having been at school on the (omitted) the year before.  The mother spent no time with X after that time until she spent time with him during the midyear school holiday period. 

6. The views of the separate parents as to how it came to pass that the mother did not spend any time with X between January and the midyear school holidays are yet another matter in dispute. 

7. The father, in his earlier material, says he offered to pay.  The mother says that the father never offered to pay and she did not have the capacity to travel to (omitted).  The father says even if that was the case, the mother seemed to have the capacity to travel to (country omitted) for a couple of weeks in April 2016, which he says means that she prioritised her own travel to (country omitted) over seeing the child.

8. In any event, in the middle of the year, during the school holidays, arrangements were made for the child to be spending time with the mother, and at that point in time the mother withheld the child and did not send the child back. 

9. The father travelled to the (omitted).  The mother refused to make the child available to the father, out of concern or fear, perhaps, that the father would do precisely what she had just done, that is, take the child somewhere else. 

10. The father brought an urgent application.  He also filed property proceedings and then served documents on the mother with respect to both parenting and property and also, within all of that, made the mother an offer with respect to property on a final basis, giving her a very short turnaround time in which to process the offer, which was said on the face of the letter to be an offer which was very generous to her. 

11. So the mother came to court on the first occasion having not attended to her paperwork.  This is unsurprising.  The father had sought short service.  He got short service, got a quick first return date, but the mother was not in a position to proceed, and the matter necessarily had to be adjourned for the mother to be able to put material before the Court.  The mother has now done that.  The father has also filed material in reply.  The mother has filed material in reply to that.  The father would seek to reply to the mother’s reply, and it seems that the parties are keen to have as many matters in dispute as they possibly can and to have few matters where they agree on the facts. 

12. This is an interim decision with respect to arrangements for X.  I can do little with the very many matters in dispute.  I cannot make findings of fact as I could after a final hearing.  I must simply do my best with the material that is before me. 

13. The best interests of X are my paramount consideration.  I am mindful of the objects and principles of Pt.VII of the Family Law Act1975.  I am very mindful of the fact that there are two primary considerations, the first being the benefit to X in having a meaningful relationship with both of his parents and the second being the need to protect X from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and the Family Law Act1975 is plain.  It is the second of those which is to be given the greater weight.  There are a raft of additional considerations, but I must firstly turn my mind, it seems to me, to those two primary considerations. 

14. Counsel for the father submits that the steps by the mother to have the child into her care during the June/July holidays and then retaining the child was the mother moving by stealth.  He refers me to the Full Court decision of Morgan & Miles [2007] FamCA 1230, which speaks of the need to, on an interim basis – being able to decide matters without the impediment of recent developments.

15. To be plain, I do not think that the developments of June/July are the only recent developments.  The developments in this child’s young life which are recent developments are all of those which have happened since September 2015, when the father left to work in (omitted), leaving the child in the mother’s care.  The final separation then happened.  A determination was made that the child would live in (omitted), whether that determination was a matter of agreement or not, but that was what happened – and that it was with the father that that happened.  The mother then attending in (omitted) briefly in January and there being an altercation of some kind between the mother and father and then the child remaining in the father’s care and the mother sending a number of text messages which are consistent with her being very distressed at what has happened and thinking that it is best that she keeps away from the child for a period of time as a result of her level of stress and what the child was exposed to between the parents.  The mother then taking the further steps that she did in the midyear holiday, seems to me, is just one in a recent line of changes for this child. 

16. So to be clear, I reject absolutely the notion that the child was in some form of settled and stable arrangement which was put into place – the mother says unilaterally, the father says by consent – from December last year, with the child then being enrolled in a school in (omitted) at the beginning of this year.  So I do not consider that there is something that the mother did somehow by stealth which means that the arrangements in (omitted) simply go back into place.

17. It seems to me what I need to do is consider what is now in the best interests of the child.  The child would benefit in having a meaningful relationship with both of the parents.  Whilst the child was living in (omitted), the child did not have a meaningful relationship with the mother.  The father has a superior income-earning capacity, it would seem, to the mother presently.  The father is in a better position to transport himself to the (omitted) to see the child than it is for the mother to transport herself to (omitted) to see the child.  So in terms of a meaningful relationship, the child should have the capacity to have a meaningful relationship with both parents.  Between (omitted) and the (omitted), the distance is too great for that to happen on a regular basis, so unless one of the parents is going to choose to move to the other place, it seems unlikely that the child will have the capacity to have frequent time with both parents. 

18. In terms of the need to protect the child from harm, between the parents themselves there are significant allegations made by both of them.  The father simply denies the allegations made by the mother, where the mother sets out – with some great particularity, it seems to me – the relationship between her and the father and how he would speak with her, what she considered he expected of her, how she considered she was expected to behave within the marriage, and she speaks of financial control, control within their intimate sex life, control within how she was expected to behave and what she was expected to do within the marriage.  She also speaks of the father being denigrating to her and calling her demeaning names. 

19. She speaks of the various moves that the family made, firstly from (country omitted) – apparently, even on the wedding day, the father flew to Australia, with the wife following some months later – living in Canberra in the first instance, then moving, at the father’s instigation, in a way which did not fit with what the wife was doing in her life, to the (omitted), then again, his unilateral decision that he would live in (omitted) for a period of time, and then again, his unilateral decision that he was going to be moving to (omitted) and that she could come and live in the house with him, albeit separated, but that the child would be going to (omitted).  So there is a number of things about which the mother speaks which would speak to a relationship with a significant power imbalance where the father, from the mother’s perspective, had the capacity to simply make determinations and to speak with her as he wishes. 

20. The father denies all of those things.  He says that the mother was physically violent to him and points to a police report that he has made and other times when he says that the mother has been physically violent to him. 

21. These he-said she-said about what happened during the relationship are factors which I cannot determine on an interim basis. 

22. What it tells me, though, is that there are many matters in dispute and that from the father’s perspective – although he says the mother was physically violent to him, the father does not assert or display any signs that he has any fear of the mother or that he has not been able to make his own decisions or that he has not been able to assert his own views within the relationship.  He plainly was able to assert his position that his preference was to live in (omitted) and to take the child to (omitted) and that the mother could come to (omitted) if she chose.  He has made himself able to assert his position in these proceedings.  He started proceedings urgently.  He achieved an urgent listing date.  He has been able to assert not only parenting matters but property matters, and he has been able to attend to all of those matters within the timeframe that he devised through the filing process. 

23. So there is nothing about the father’s presentation which would cause me to consider that he is seeking to express to the Court that he is somehow fearful of the mother or is fearful of his safety in the mother’s presence. 

24. The mother, on the other hand, speaks of her distress and inability to communicate usefully with the father and to feel as though she is disempowered in any kind of level of dispute with the father.  So it seems to me that what the child needs to have happen is to not be exposed to these things. 

25. When the parents are separate and apart, there is no reason for me to consider that either parent exposes the child otherwise to family violence or causes the child to be at risk of family violence.  The issue is when the parents are in direct contact with each other and there is this issue of conflict.  The events of January 2016 in (omitted) have both been spoken of by the parents.  They have different views as to how it happened and what happened, and there is little that I can do about that at this stage. 

26. I know from the father’s own material filed 12 July 2016 at paragraph 29 he says:

    I relocated with X from the (omitted) to (omitted) in December, 2015.  This was with the consent of the Respondent.  We agreed that X would live with me full-time and spend time with her.  It was agreed that she would eventually look for a job in (omitted), and possibly we would live under the same roof in (omitted).  In the meantime, the Respondent wanted to remain living at the (omitted) to work and focus on her studies.  She told me that X would be better off with me and that she knew I would take good care of him.

27. The mother denies that she agreed that X would live with the father in (omitted).  She denies that she said that the father would take good care of X.  It is her position – and the father does not argue against it – that X was in her sole care when the father chose to work in (omitted) for three months from September 2015.

28. The mother did go to (omitted) briefly, as I have said, and there was an incident which caused both parties eventually to go and give statements to the police.  The only independent evidence that I have from a source other than the parents’ own self-report, either to the court or to the police, really seems to come from a document which was referred to me for other reasons.  That is a document which is noted “(omitted)”.  OSH seems to be for outside school hours care, and it is a ‘concern report’.  The child X was placed in vacation care from 22 January to 25 January 2016 by the father in (omitted) and on Monday, 25 January the child, it is reported, was agitated and more disruptive than usual, and it had been the day before that his mother and father had had the incident in (omitted).  Prior to that time, the child hadn't seen the mother; had been in the father’s sole care, and only saw the mother for that brief period of time on the day or the night before or the day itself of the incident.  So at 22 January when the child starts vacation care the child hadn't seen the mother.

29. The vacation care report, which is annexed at A3 of the father’s affidavit filed 18 July 2016, says that the child’s play had:

    … begun to take on a more ‘sexual’ nature with taunts of ‘He loves you’, You love him’, ‘You want to have sex with him’.  The children were daring each other to kiss, and making sexually suggestive gestures (sliding their fingers in and out of their mouth like oral sex, sliding fingers in and out of the other hand, swapping ‘sucked on’ grapes)

    and the children were spoken with about that.

1. So at that early stage, the child was in the father’s sole care and had been in the father’s sole care for a period of some weeks, so whatever was happening in the father’s household, the child was displaying some level of aberrant or distressed behaviour.  I can’t assess anything higher than that.  But what that document tells me is this is that on the Monday when the child was more agitated and more disruptive than usual, his father called the out of school hours care provider and enquired about how X was coping.

2. The report then says this: 

   … He advised me they had been engaged in a very difficult family situation over the weekend with X’s mother, estranged from [the husband], visiting. 

   The report writer goes on to say:

   I did not press for more details at this point but reassured [the father] that, besides being slightly more outspoken than usual, X seemed to be well engaged with the activities and not displaying any sign of distress. 

   The report then goes on to talk more about the child’s behaviours, and then at the penultimate paragraph the report writer, who is a Ms K, says this: 

   [The father] arrived at this point to collect X.  I told him what had been revealed to me by X and he was initially shocked.  After a few minutes, he told me he had left X with his mother (Ms Arnott wife) for the afternoon.  She was dressed provocatively, without a bra, attempting to entice [the father].  When he rejected her, she became enraged and began hurling verbal abuse.  She then locked him out of the house for several hours.

   The report writer says,

   I am unsure where X was during this time. 

3. So what I learned from that report is that the father felt it appropriate to tell the out of school hours’ carer that level of detail:  that the mother was dressed provocatively without a bra attempting to entice the father.  That level of detail is plainly inappropriate for the out of school hours’ care provider.  It demonstrates a particular attitude that the father has, that he would think it was appropriate to tell the care provider that detail, and it also tells the audience which part of the incident the father, at that point in time, was fixed on.

4. It makes it difficult, really, when assessing what happened on that day in terms of understanding what the father’s view was of it at the time.  The fact that the mother left (omitted) and left the child in the father’s care is not consistent only with the mother thinking the child is safe in the father’s care or that the father should be the preferred carer.  It is consistent with the mother not being so concerned with respect to the child’s welfare that she thought the child was at risk in the father’s care.

5. It is also equally consistent with the view that the mother now puts on it, which is that she was so distressed by what had happened and so distressed at her own behaviour and so distressed at what the child was exposed to that her only response was to retreat and to try and work out what she should do next.  That position is also consistent with her then behaviour, that is, seeking some legal advice; learning that she wasn’t eligible for legal aid because of her financial position apparently, and then being unsure as to what to do next until she then later got some further legal advice and took the steps that she then did.

6. So I am not prepared on an interim basis to make any finding that either parent’s behaviour was worse in January or that the mother should be held to be solely liable or primarily liable for any distress the child experienced or anything that the child was exposed to at that time.  Plainly, between the father’s move to (omitted) and when the mother turned up there was a significant difference in what everybody was expecting was going to be happening and, as I say, I do not consider that the arrangements were settled and stable at that time or, indeed, nor do I consider that the arrangements had actually been put into effect by agreement between the parties.  That remains a matter in dispute.  The mother says that the child had said to her that he wanted to be with her because the father was busy marking – the father has a variety of responsibilities within his roles and marking would be one of them – and the child didn’t want to bother his father when his father was busy marking, and the mother says the child sounded sad when he said that.  I’m not prepared to make any finding that the child is at risk of any form of harm, including neglect, when he’s in his father’s care.  There is no evidence that the child has been particularly neglected in the father’s care. 

7. In terms, then, of the risk of harm to the child, the risk of harm, it seems to me, really comes from this dispute between the parents and, potentially, that is exacerbated by a lack of power balance between the parties. 

8. The solicitor for the mother submitted that within all of this, of course, there is, contemporaneously, the property proceedings which have placed added pressure on the mother, including the offer to settle which had a very short turnaround time and included some words at the end which may be considered to place extra pressure on the mother, they being words to the suggestion that the solicitor for the father considered that the offer was very generous and reminded the mother of the short period of time she had in which to address that issue.

9. So it seems to me that that is, in fact, an indicator of the balance of – the imbalance of power between the parties, that the father considered himself well in a position to make what he then seeks to assert is a generous offer to the wife and to give her a limited timeframe at which point in time he’s also pressuring her to attend to the parenting proceedings which he had sought and obtained a short return date for.  I don’t consider in the mother’s household the child is at any particular risk of harm of family violence or being subjected to or exposed to it, save as to say for the interactions between the parents themselves.

10. There is no evidence, particularly, of the child’s wish. 

11. In terms of the parents’ capacity to provide care, their attitude to the responsibilities of parenting and the like, the father plainly considered the mother was well competent to care for the child from September 2015 when he chose to work in (omitted) and leave the child in the mother’s care.  The child was otherwise in the father’s care from December through to the June/July school holidays and it seems to me both parents are adequate to provide care for the child.

12. In terms of the effect of change on the child, the child has had a lot of changes.  He was born in Canberra.  He moved to the (omitted) with his parents.  He started school on the (omitted).  His father then left to work in (omitted).  He remained on the (omitted) with his mother.  His parents then separated.  He moved to (omitted) with his father; didn’t see his mother save for the one brief unfortunate time in January 2016.  He then spoke with his mother by telephone during the intervening period, but didn’t otherwise see her face to face, and then came back to the (omitted).  He has been enrolled in a different school.  The mother seeks for the child to be able to be enrolled in his former school. 

13. She also seeks on an interim basis some orders with respect to the school fees being paid and seeks orders which would effectively be matters to do with child support.  I have no intention of turning my mind to those matters on an interim basis and I’m happy for the child to go to the former school, but I have no intention of making any orders with respect to child support or who is to pay those school fees.

14. So there has been changes constantly for this child.

15. If the child goes back to (omitted), the child will then be separated again from the mother who has the inferior earning capacity and inferior financial capacity, therefore, to travel to (omitted) on a regular basis. 

16. So the changes are just absolutely constant for this child as a result of the parents’ actions. 

17. Turning my mind to all of those things, I have formed the view that the best interests of the child is simply to draw a line in the sand now and say this is where the child is and this is where the child stays.

18. There is no particular benefit to the child in moving back to (omitted).  The child has been on the (omitted) longer than he has been in (omitted).  He has been at schools on the (omitted) longer than he has been at schools in (omitted).  He has been in his mother’s care for significant periods of his life.  When the parties were together they both worked at times; they both studied at times;  they both parented at times, but the child was able to take care from both of the parents.

19. There is nothing about the mother’s parenting capacity which would cause me to be concerned that she can’t meet the challenge.  Indeed, the father plainly thought she could when he went to (omitted).  The move to (omitted) was the father’s latest move in terms of his own decisions about his career.  It had nothing to do, as best as I can see, with a decision about what was best for the family or what was best for the child, but it was his own decision to move to (omitted).  It’s a matter for him.  If he wants to move back to the (omitted), then different arrangements would be able to be put in place, but it seems to me the deciding factor has to be the capacity for each of the parents to be able to spend time with the child on a regular basis.  The father has familiarity with the (omitted).  The mother is not familiar with (omitted).  The child had been in (omitted) for a period of time, but in the history of the child’s many changes in recent times, I do not consider that to be a matter of any substance at all.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date: 13 October 2016