B and M
[2002] FMCAfam 484
•9 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & M | [2002] FMCAfam 484 |
| FAMILY LAW – Relocation application – mother moves in breach of Order of State Magistrates Court for contact – best interests of children met by children residing with Mother in South-East Queensland. |
| Applicant: | B |
| Respondent: | M |
| File No: | BRM7238 of 2001 |
| Delivered on: | 9 May 2002 |
| Delivered at: | Brisbane |
| Hearing Dates: | 6 & 26 March 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| The Applicant in person: | B |
| Counsel for the Respondent: | Mr Linklater –Steele |
| Solicitors for the Respondent: | Groves & Clark |
| Counsel for the Child Representative: | Mr Burridge |
| Solicitors for the Child Representative: | Legal Aid Queensland |
FEDERAL MAGISTRATES |
BRM7238 of 2001
| B |
Applicant
And
| M |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves two children, R aged 5 and S aged 3. Currently the mother, M, resides in North Queensland whilst the father resides on the Gold Coast. The father wishes the mother to return to South-East Queensland in order that his contact with the children can be more frequent and fulfilling. The father, B originally applied to the Southport Magistrates Court for contact to his children in February 2001 and amended his application before trial in May 2002 to an application for residence.
The mother's proposals
In final submissions the mother's proposals identified by counsel, Mr Linklater-Steele, were that,
(a)she be permitted to remain in Northern Queensland with the children, and
(b)that contact occur on a graduated regime from a level of some hours of supervised contact to daily contact, then overnight contact, and
(c)if the mother is ordered to return with the children to South-East Queensland then the regime proposed by the mother was more frequent.
The father's proposal
As indicated at trial the father sought that the child reside with him and that the mother have regular contact on a fortnightly and holiday basis. In the alternative the father proposes the mother re-locate with the children to South-East Queensland and his contact be more frequent.
The child's representative
On conclusion of the evidence the child's representative proposed that:
(a)the mother re-locate with the children to South-East Queensland and that the father have contact graduating from a daily basis to an overnight regime with holiday contact and
(b)that the children reside with the mother.
Background – the children
The age of the children means that their innate personalities are still developing in a demonstratable way. They appear all to the child report writer genuinely to be happy, well-adjusted, energetic children with age appropriate behaviour. There is no suggestion on the evidence that they have any special needs or challenges which should be taken into account.
History of the relationship and contact
The parties commenced cohabitation in mid-1996 and their relationship was punctuated by separations and unhappiness until a final separation in December 1999. The father says the mother was merely going to New South Wales for a two-week holiday as far as he was aware and was surprised by the final separation. At the time of final separation when the children remained in the care of the mother, R was two years old and S was approximately four months old.
Shortly after separation the mother moved from the home the parties occupied on the Sunshine Coast (where the father was working as a butcher) and went to New South Wales to spend time with various members of her family. Shortly after separation the father formed a permanent relationship with U, a teenage friend of the mother. U is a former employee also of the parents’ butcher shop. The father and U married in October 2000 and have a child, H, who was born in August 2001. U has the care of three children from a previous relationship,
C 9, B 8 and N nearly 6 at trial. Tensions in the relationship escalated not only at a personal level but because of the effects upon a butcher shop operated by the parties which had to close down. Both parties provided their versions of telephone conversations at the time which the mother described as intimidatory and harassment and the father says arose from the frustrations of not seeing his children.
The mother returned to the Gold Coast in April 2000 after spending some two months with the maternal grandfather in New South Wales. The father had limited contact in New South Wales over that period, on one occasion in March 2000, of which I will speak shortly. The mother remained on the Gold Coast until June 2001 when she moved to Northern Queensland. During the mother's residence on the Gold Coast, the father also having moved to that region, it seems the following contact events took place:
a)the mother resided at Mermaid Beach for eight months and did not inform the father of her address. Although the mother claims the father had her mobile phone number the father essentially had no contact to the children.
b)It seems the father may have become aware of the mother living on the Gold Coast (through her friend A) and subsequently brought proceedings in the Southport Magistrates Court in February 2001. By this time the father had enjoyed contact to the children, it seems, on only one occasion in Sydney in March 2000. The mother responded by seeking and obtaining a temporary domestic violence order on 20 February 2001 and moving to a women's refuge in Tweed Heads until 16 April 2001. Domestic violence proceedings were contested, however a final order for two years was made on 20 April 2001. The transcript of those proceedings were before me.
c)
On 16 March 2001 Batts SM ordered the children have supervised contact with the father two hours each Sunday subject to the availability of the Robina Contact Centre, commencing
25 March 2001.
d)The matter was transferred to the Family Court of Australia for hearing. It appears that there were some difficulties in the availability of the contact centre.
e)Despite the order for contact no contact took place and the mother left the Gold Coast in late June 2001 without informing the father of her intentions or whereabouts.
f)When the matter first came before the Family Court on 18 June 2001 the mother was represented and the matter was adjourned to 20 August 2001. It is not apparent why the matter was adjourned, however I can infer that at least one basis for the adjournment, from her perspective, was her intention to leave the Gold Coast without informing the father.
g)When the mother came back before the Court on 20 August 2001 the mother did not appear and a Commonwealth information order was made, including a notation that if the mother did not appear in September 2001 a recovery order may issue.
h)On 12 September 2001 the mother appeared by solicitor. Her re-location to Northern Queensland was revealed and the matter was again adjourned to 11 November 2001 for interim hearing. On that day Registrar Wilkie, with the assistance of the child representative, made an order that the father have contact supervised by A on 3 and 4 November and regular telephone contact.
i)Upon transferring this matter to the Federal Magistrates Court for hearing in May 2002 contact was ordered to take place in December 2001, February 2002 and April 2002 for two hours on two consecutive days at the Robina Contact Centre. It is common ground that the contact in February did not take place because of illness.
j)The combination of these events coupled with delay in delivery of the reasons, which is a matter of regret to me and I acknowledge The combination of these events coupled with delay has not helped the situation, is that the father has had limited contact to his children for a multitude of reasons for over the last three years since separation in January 2000.
Overview
In Hardy and Herlihy (2001) FCA 147 2 Unreported Kay J, at paragraph 51 and 52 he says:
"Relocation cases are agonising for all persons involved in them. They almost invariable involved two claims of right; there is the right of the resident parent to get on with life as he or she sees fit and at the same time there is the right of the children to maintain a meaningful relationship with the non-resident parent if at all practicable. From a non-resident parent's point of view a breakdown in the frequency of contact is no doubt a painful experience. Decisions are often made by parties in these proceedings without thinking through the entirety of the consequences. This observation applies to both decisions to move and decisions to oppose any move."
I agree with those observations. The Full Court in Re A & A: Relocation Approach provided guidelines to trial adjudicators about the approach to be adopted in a matter of this kind.
Guidelines to be incorporated.
Evidence
The father represented himself and his material and cross-examination were limited. He called as the supporting witnesses, his wife, U and O, both of whom were cross-examined. The level of frustration within the father was obvious. However he, to his credit, conducted himself during the proceedings before me with even temper. He did not display the aggressiveness alleged by the wife and at times made proper concessions in my view. I regard him essentially as an honest witness inclined at times to minimise however some of the past events of conflict with the mother.
The mother presented in the witness box as at times emotionally fragile, and vague and inconsistent. Again, having had the opportunity to observe her carefully during the proceedings, it was my view that she did her best to be open and frank but was inclined at times to exaggerate or embellish some of the past events. The mother called a number of supporting witnesses and rather than dealing with them individually I choose to refer to their evidence and how, if at all, they assisted me in this difficult decision when I deal with the factual issues shortly.
It is regrettable that the material filed by the mother was highly provocative and accusatory, generally of the father's conduct but particularly and vehemently directed to U. I have mentioned the mother's earlier relationship with her. A number of unsubstantiated and broad allegations about U being a “drug dealer”, “unlicensed driver”, driving unregistered cars and, with the father, “have been reported to the New South Wales Department of Children's Services” for unspecified matters by unspecified people were made.
At the commencement of the trial I indicated that such vague allegation coupled with numerous lay opinions and hearsay were totally inadmissible and disregarded by me. Not surprisingly the father and his wife were offended by the stinging allegations and at times responded in kind. None of this was helpful but it did highlight to me the deep divide and animosity which exists between these parties.
At the conclusion of the trial the counsel for the child representative, Mr Burridge, procured from each parent an undertaking essentially to not denigrate each other; not to use obscene or offensive language; not to use illicit drugs or drink alcohol to excess; not to physically discipline the child; keep the other informed of their address; phone numbers and matters relating to the health or education of the children.
I should also mention that the mother relied on a total of 10 witnesses, five of whom were not required for cross-examination. I take their evidence as far as it is relevant into account. The view I have taken of the mother's witnesses called for cross-examination, namely contact supervisor, sister K, brother E and father, T and the brother's girlfriend, Y, is where appropriate reported in these reasons.
I was also assisted by the independent evidence offered by the child representative through consultant social worker, Arleen Rees, who prepared two reports as a result of interviews in October 2001 and April 2002. Most of her observations and assessments of the parties were in my view confirmed by the evidence before me.
Factual issues
I am required to determine factual issues concerning:
(a)The alleged drug use by the father and his wife;
(b)The alleged violent and aggressive behaviour of the father;
(c)The mother's reasons for re-locating;
(d)The likely effect of parties living closer;
(e)The facilitation of contact;
(f)The father's residence proposal.
Alleged drug use by father and U
The mother and a number of her witnesses gave direct evidence of the father using drugs during the relationship. Although generally the substance was marijuana, other drugs were mentioned. It was also alleged by the witness, K, that she had seen the mother using marijuana. I think it is likely that the parties were social users of marijuana during their younger years together. I am not satisfied that U is a drug dealer as alleged by the mother. I believe I can accept with confidence the undertakings offered by each parent without admission not to use drugs or excessive alcohol whilst the children are in their care.
Father's alleged violence and aggressive behaviour
In many ways the evidence of this issue is relied upon by the mother to form a reasonable explanation and justification for her actions post separation. The evidence offered by the mother, of abuse during the relationship was:
a)The transcript of domestic violence proceedings before State Magistrate Wilkie on 20 April 2001. In the mother's evidence she refers to being –
“Pushed around”
and suffering –
“Emotional abuse, that was every single day, just constantly.”
b)The evidence and findings of Wilkie SM suggest the mother felt intimidated by the father's behaviour, particularly it seems telephone conversations after separation and allegations of stalking. I was not satisfied on the evidence that stalking had actually occurred.
c)I heard a tape recording of some telephone calls by the father after separation. The mother recites some of those words in one of her affidavits. The tape was played to the father. He acknowledged he was surprised on hearing it of the level of aggression which was apparent. The tape generally dealt with issues relating to finalising the business arrangement but also his assertions that the mother was denying him “access”. He sounded angry and frustrated. I think it was reasonable in view of the words used and the tenor of those words to accept the mother held some fears about what the father would do.
d)At this stage, of course, she was living in Sydney. The 40 minute contact visit by the father in Sydney in March 2001 was the subject of evidence by the mother and her father. See para 8 of his affidavit. The father arrived too early for a visit planned only the day previously. He acted aggressively and the police were called who told the father to return to the house when the children woke up. They were asleep at the time he initially arrived.
Although the maternal grandfather made some comments about the quality of the contact there is no compelling evidence to suggest the father acted inappropriately in the presence of the children. Although there is some evidence by the mother and her witnesses' relations and A about conduct during the relationship, including inappropriate language, discipline and one incident of alleged violence of kicking at R, the mother in her evidence conceded that she does not believe the father would physically harm the children. She does fear what she described as “psychological harm”.
The parties' relationship was robust, volatile and constantly argumentative. I am not satisfied on the evidence that the father is likely to harm the children in any way. I do accept that as a result of the history of the parties' relationship to date (coupled with the remarriage of the father to U) and the strong emotions recorded by all parties and family members that any contact between the father and mother should minimised as specifically regulated by the orders of this Court.
With regard to the comments of Ms Rees in her second report at para 48, I also can see no prospect of goodwill developing in the near future.
Reasons for relocating
I am, of course, conscious that the authorities establish that the mother does not have to establish that she has a good reason to relocate. However, in this case I believe her reasons for relocating are relevant from the point of view of the best interests of the children, in particular the effect upon them if she remains in North Queensland.
The mother gave evidence that:
a)She had always wanted to go to North Queensland and alleged she had put her name down for a Housing Commission home at separation. No corroborative evidence was offered by her;
b)Northern Queensland office is a geographically safe environment particularly the area in which she chooses to live ;
c)Although she had no family living there her brother G has since moved in with her;
d)She has identified returning to study and possible employment options;
e)She knew of the order made by Magistrate Batts, however, she did believe that the order did not prevent her from leaving the Gold Coast. She says she relied on legal advice.
Whilst the mother may have considered North Queensland as an option post-separation I am satisfied that the mother's conduct, including relevantly the failure to disclose her whereabouts to the father, is sufficient for me to find that the main reason that the mother left south-east Queensland was, as she says, to be “away from the father” and in my view as far away as possible.
There is nothing in her conduct which would suggest she gave any thought to the effect such relocation would have on the children's relationship with their father. I do not accept that the mother's economic benefits in Northern Queensland cannot be duplicated in the more populous South-East Queensland area.
Likely effect of the parties living closer
The evidence is clear that:
a)the mother does not wish to move from North Queensland;
b)the father will not move to North Queensland;
c)the father and mother are not able to facilitate regular contact as a result of cost, distance and desire.
The father's reluctance to move to North Queensland is amplified by his responsibilities to his wife and his step-children. He also says, in effect, the family has lived predominantly in south-east Queensland. The mother's views and fears of intimidation at the hands of the father and U justify in her mind being so far away.
She was asked if she would contemplate moving to the Sunshine Coast where they had previously lived for some time. She said she had not considered the possibility. She also said (again without any corroborative evidence) that she fears her asthma would get worse if she was required to relocate south.
The obvious positive effect, and in my view an important one, of the parties living closer, is that it would allow a more child-focused regime for contact between the father and the children to occur. This is dealt with by Ms Rees in her report including the fact that change-overs would need to occur at a contact centre, until both children were at school.
Facilitation of contact
On the whole of the evidence I have formed a clear view that not only has the mother not encouraged contact between the children and the father, but that she has actively and intentionally prevented and disrupted it occurring. The history of the mother's actions even when living on the Gold Coast confirm this finding. The evidence of the father's witness L about telephone contact difficulties is evidence I accept as a further example. The mother went into hiding for at least two significant periods. I do not accept that she has changed her attitude in this regard, notwithstanding her evidence to this Court.
The father's residence proposal
The father in final submissions on, the evidence, properly conceded that it is in the children's best interests that they live with the mother. He has had so little contact to the children that he was able to acknowledge that removing them from the mother at this age and stage of their development would not be appropriate. I agree.
The child representative said with some force in my view, that such an acknowledgment really put the father at a tactical disadvantage. It did, however, cause to highlight what this case was always about, namely contact.
Section 68(F)(2) factors
I now turn to consider the relevant s.68(F)(2) factors. In doing so, I will refer but not repeat the findings that I have made above on contested factual issues. In my view the children are too young and immature for any wishes which they may express to be given any significant weight or certainly any determinative weight.
Relationship
The children are securely and primarily bonded to their mother. There is little evidence of any other significant relationships with the children in Northern Queensland. I would infer they had developed some social connections in the area. Relations with the mother's family appear normal but they are all, except G, quite remote, geographically, from the mother.
The best evidence of the father's relationship with his children is a combination of what he and his wife say (including evidence prior to separation) and post-separation the evidence of Ms Rees and the contact supervisor Ms Schulan. I will discount the observations of A who was so closely aligned to the interests of the mother to be far from independent in my view.
I would assess that at the time of the last contact of which I have evidence there were the remnants of the previously close relationship between the father and R. Clearly the lack of contact, coupled I am sure, with the negativity of the mother has damaged that bond. I would predict, as does Ms Rees, that with support and a sensitive graduation it could be renewed to a relationship of importance you the child.
It is more difficult for S who really was a baby at separation and who other than by name, would have little recognition of the father in her life. Notwithstanding these difficulties Ms Schulan did not observe any reluctance on the part of the child to engage with the father. Whether that was borne out of curiosity I do not know. Ms Rees certainly also observed a natural interaction. The mother was dismissive of the exercise saying to Ms Rees at one point:
“Osama Bin Laden could play with his children for half an hour and you wouldn't know that he was the sort of person who could fly aeroplanes into buildings.”
I accept the limits of a short observation. Importantly though there is nothing in the reaction of the child or the actions of the father to suggest a fulfilling contact regime would not be successful. The mother regards U as an amoral and incapable mother. Because contact, is now really the only issue, the relationship of the children with U is not a priority before re-establishing of a firm base between the children and the father. This is reflected in Ms Rees' recommendation.
I should say, however, that the evidence offered by the mother would not satisfy me that the mother's criticisms of U were in any way justified.
Practical difficulties
This factor is a real issue in this matter. The mother says that she would need to rely upon her two "free" return travel vouchers to facilitate contact. The father has, he says, limited financial capacity to contribute. He discounted any prospect of regular trips to North Queensland.
I formed the view on the evidence (including the problems with telephone contact) that even two monthly contact may not be feasible and possible. If the children were required to live within a reasonable radius of the Gold Coast the only practical difficulties would be cost. Public transport in South-East Queensland is accessible. Contact centres are available. The father and the child representative’s proposals have far less practical difficulties to encounter than the mother's proposal.
Capacity
I do not hold any concerns about the mother's capacity save for attitude and the effect on her capacity of a forced relocation if that was ordered. The father is already co-parenting three children. I have made findings about the issues of violence. I draw comfort from the sensible approach observed at the contact centre and with Ms Rees adopted by the father. As a parent seeking contact I do not regard this fact is determinative.
Child protection and family violence
I do not find the child would be at risk of harm either emotionally or physically in the care of the father. Unsupervised contact should be permitted for R immediately and on balance for S provided she is with her brother.
Attitude to parenting
I have already made some findings about what I regard as the attitude of the mother to contact. They exhibit a clear desire to minimise the father's role, almost it would seem to me to extinction. I think it is more likely than not that as the children have got older they are aware of the mother's strong negative views of the father and U. This is likely to be damaging to their sense of security if contact is to be ongoing. The mother would benefit from undertaking a parenting course to achieve a better understanding of the need to separate her feelings and fears from her role in supporting contact and in development of the relationship between the children and their father.
Whilst it seems clear that some of the actions of the father during the relationship were inappropriate (drug use, offensive language) my assessment of him in the witness box confirmed by Ms Rees was that he has developed a more insightful and sensitive parenting style. He understands that he will need to be flexible and “hasten slowly” with contact if it is to be successful long-term.
It is important that the father not allow the view of his wife U to shape his actions. Unless she is capable of moderating her expressed views about the mother the development of the relationship between the father and his children will be put at risk. I am satisfied that the father’s interest in his children is genuine and he has the capacity and desire to achieve the relationships the children deserve to have with him.
The effect of change
I have left this factor till last because in my view it is the most critical. The effect on the mother of the father's proposal that she relocate will be profound and quite possibly as Ms Rees suggests debilitating. The evidence of the mother's doctor is that she presented in October 2001 with a history of asthma and depression which was controlled by Zoloft. There is no evidence she is still using this medication. No more recent medical evidence was provided.
If forced to relocate the mother will feel she is being punished. She fears control by the father and his wife of her life. She may lose any relationships in North Queensland she has formed (D was mentioned but at trial was not committed to a permanent relationship it would seem). She will lose her Housing Commission accommodation, lose support from her brother G, suffer the anxieties of finding a place to live and be required to find new schools and childcare for the children.
I would be surprised if this did not adversely affect her parenting of the children initially. She is likely to be unhappy and will show it. She would not appear to be the type of person who would accept the situation and make the best of it. She would only see the negatives. Importantly the children would also be forced to move from a settled environment of nearly two years now.
I can reasonably infer that they would have to adjust to the contact. They are unlikely in my view of the evidence to draw immediate comfort from the mother. I would think that with that support and more regular contact to the father they would quickly adjust and cope. This is the view expressed by Ms Rees.
The father is simply unable to do anything to minimise the effect on the mother and, through her, the children other than by having regular contact which will allow the mother some time to explore personal needs and to seek to improve communication and reduce conflict.
Conclusions
I have found this a most difficult matter. As I observed at the beginning of these reasons the delay in delivering reasons for judgment, the fault for which I entirely accept responsibility, is likely to have caused the mother's situation at Northern Queensland to have become more settled. A disruption by relocation where the mother has not explored any options in South-East Queensland will have an effect on her and the children.
On the other hand the children having such limited contact (for that is what it is likely to be in my view however ordered) is in the long term more likely to cause the type of damage to R and S that may on the evidence prevent them from reaching their full potential. This can be overcome by the mother moving the children back to South-East Queensland.
It is in the best interests of these children that they have a bond and developing relationship with their father. I am satisfied on balance that is only likely to occur if the mother moves closer.
The mother is not being punished as she fears. Rather her unilateral actions in moving to North Queensland when she did, was not child-focussed or in the children's best interests. She had a responsibility to maintain the contact ordered by Batts SM. She did not. She had an obligation to facilitate contact for the children. She did not. Parenting is about timing. The mother's timing in this case has been extremely poor.
I will leave submissions as to when the children should return (my preference now being in the Easter School holidays) and the form of contact determined upon return. Such contact will need to reflect the practical challenges that exist between where the mother chooses to relocate the children and the Gold Coast. The child representative in the final orders sought, providing a geographic proximity – it being the only way, on this submission the childrens right to contact could be pleasured. By the Noosa and Gold Coast council boundaries. That seems a sensible approach.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Baumann FM
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