Baier and Wagner
[2009] FMCAfam 683
•3 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAIER & WAGNER | [2009] FMCAfam 683 |
| FAMILY LAW – Parenting – mother unilaterally relocating to Melbourne with child now aged nineteen months – father seeking an interim order for the return of the child to Darwin – mother the child’s primary carer – mother saying that she will not return to Darwin if the child is ordered to return. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Campbell & Spalding (1998) FamCA 66 Morgan & Miles (2007) FamCA 1230 |
| Applicant: | MR BAIER |
| Respondent: | MS WAGNER |
| File Number: | DNC 216 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 29 June 2009 |
| Date of Last Submission: | 29 June 2009 |
| Delivered at: | Darwin |
| Delivered on: | 3 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Cecil Black Family Lawyer |
| Counsel for the Respondent: | Mr Norrington |
| Solicitors for the Respondent: | Legal Rite Solicitors |
ORDERS
UNTIL FURTHER ORDER
That the father and mother have equal shared parental responsibility for [X] born in 2007.
That within seven days the mother deliver the child to the father in Melbourne at a time and place to be agreed between the parties and failing agreement at the front gate of the maternal grandmother’s home at a time nominated by the father by text message sent to the mother such message to be sent no later than twelve hours prior to the proposed time for collection.
That the child live with the father.
That the mother spend time with the child
(a)in Darwin as agreed between the parties;
(b)in Melbourne between 22 August 2009 and 29 August 2009, with the father to deliver the child to the mother at the maternal grandmother’s home in Melbourne at the commencement of this time and collect the child from the mother at the maternal grandmother’s home in Melbourne at the conclusion of this time.
That the father make the child available to receive a telephone call or webcam communication if the technology is available from the mother at times agreed between the parties and failing agreement each Wednesday and Sunday at 6.00pm Darwin time.
That if the mother elects to return to live in Darwin pending a final hearing and the parties are unable to agree on interim arrangements for the child to spend time with the mother, the parties have liberty to
re-list the matter before me on short notice.
That each parent advise the other and keep the other advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within two days of such change occurring.
That each parent shall:-
(a)keep the other informed of the names and addresses of any medical or other health practitioner who treats the child and authorise those practitioners to provide to each parent information required by each of them concerning the child;
(b)promptly inform the other parent if the child while in their care is involved in a serious accident or diagnosed as suffering from a serious medical condition and each parent shall be at liberty to visit the child in hospital.
AND IT IS ORDERED
That pursuant to section 62G(2) of the Family Law Act 1975 a family consultant or suitably qualified person provide to the court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child [X] born in 2007 with such report to be released to the parties by 30 September 2009.
That the matter is adjourned to 9.30am on 13 October 2009 for further directions.
IT IS NOTED that publication of this judgment under the pseudonym Baier & Wagner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 216 of 2009
| MR BAIER |
Applicant
And
| MS WAGNER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Baier and Ms Wagner separated in Darwin on 2 March 2009. On 8 March 2009 the mother unilaterally relocated to Melbourne with the parties only child [X], who was then about 15½ months old.
On 13 May 2009 the father filed an application in which he effectively sought [X]’s return to Darwin.
The father sought final orders that [X] live with him and spend defined time with the mother. He sought interim orders to the same effect but he sought alternative interim orders that [X] live with the mother in Darwin and spend defined time with him. The father sought an order for equal shared parental responsibility.
On 24 June 2009 the mother filed a response. She sought final orders that [X] live with her in Melbourne and spend supervised time with the father in Melbourne. The mother sought an order for sole parental responsibility. She did not seek any interim orders.
The father’s application for interim orders was heard on 29 June 2009.
At the commencement of the hearing the mother informed the court that on an interim basis she proposed that [X] remain with her in Melbourne and that the father spend time with [X] in Melbourne. The mother said that she now agreed that the father’s time need not be supervised.
The mother said that she would not return to Darwin. She said that if the court ordered that [X] return, she would hand [X] over to the father in the interim, and pursue at a final hearing an order that [X] live with her in Melbourne.
Background
The mother is originally from Melbourne. She met the father in 2006 while she was in Darwin on a working holiday and the parties commenced cohabitation in February 2007. In August 2007 they purchased a home together in [L]. Their daughter [X] was born in November 2007.
After [X]’s birth the mother was [X]’s primary carer. The father was employed outside the home but it was his case that whenever he was at home he was significantly involved in [X]’s care. The mother conceded that the father “assisted [her] in caring for [X] as most good fathers would do.”[1]
[1] Mother’s affidavit paragraph 36b
The mother returned to part time work when [X] was about eight months old. Prior to the final separation [X] was enrolled at the [omitted] Child Care Centre and the mother worked two days per week as [occupation omitted].
Events after separation
The evidence of both parties suggests that they did not have an easy relationship. They separated on 2 March 2009. After separation the mother remained in the former matrimonial home with [X]. The father was keen to ensure that he spent time with [X] and by agreement with the mother he had [X] in his care for two hours on 4, 6 & 7 March 2009.
On 8 March 2009, without the father’s knowledge or consent, the mother flew to Melbourne with [X]. The father was distressed when he discovered what had happened. On 9 March 2009 he informed the mother that if she did not return to Darwin with [X] he would apply for a Recovery Order. There was then a period of about two weeks when there appears to have been some uncertainty in the father’s mind about whether the mother would return.
By 21 March 2009 it was clear to the father that the mother did not intend to voluntarily return to Darwin. He did not however commence court proceedings until 13 May 2009.
The father said that he consulted a solicitor as soon as he found out that the mother had gone to Melbourne but became discouraged as a result of the advice he received. He acknowledged that between 21 March 2009 and 19 April 2009 he had discussions with the mother which centred on a reluctant acceptance by him of the mother and [X] remaining in Melbourne.
The father sent the mother an email on 21 March 2009 in which he said as follows:
“I am aware that you have cancelled the child care for [X] in Darwin and you have now had your mail redirected to Melbourne. From this and other discussions would I be correct in saying that you intend to stay in Melbourne with [X]. If so, please be honest with me and just say so. It is OK. I no longer have fear in my heart as to what your next move will be. Before God I will be honest with you and have faith you will do the same.
It hurts me to have [X] taken away and living in Melbourne. I do not think you fully comprehend what this feels like – you are not in a position to feel what I am feeling. I would therefore ask that I have unlimited access to her, when I am able to travel to see her….”[2]
[2] Exhibit B
This email is consistent with the father’s evidence that he was extremely distressed about the mother relocating with [X]. It confirms that there was a time when the father accepted with pain and reluctance that the mother would remain with [X] in Melbourne. The email also confirms however that the father’s acquiescence in [X] remaining in Melbourne was not unconditional and was predicated on him being able to spend liberal time with [X].
When it became clear to the father that the mother was not going to agree to this and in fact was seeking to have his time supervised he sought alternative legal advice. On 13 May 2009 he filed an application seeking [X]’s return to Darwin.
It was the mother’s case that the father had acquiesced in her relocation and that as a result of that acquiescence she and [X] had now settled in Melbourne. It was her case that this was a factor which should incline the court not to now order [X]’s return to Darwin.
This is a parenting matter and any orders I make must be orders which are in [X]’s best interests. The mother has not taken any steps to settle herself in Melbourne which are incapable of reversal. The mother is simply living with her mother and doing some casual [occupation omitted] and some study. I do not consider that the father’s delay in commencing proceedings automatically means that his application for the return of [X] to Darwin must fail.
The parties current circumstances
The father is 41. He works full time as a [occupation omitted]. If [X] lived with him he would arrange for her to attend her former childcare centre while he was at work.
The father is now living in the former matrimonial home in [L]. In the longer term he wishes to retain the home in Darwin as part of a property settlement with the mother.
The father said that if the mother returned to Darwin pending a final hearing, he would vacate the home so that she could reside there with [X]. The father said that he could arrange suitable accommodation nearby.
The mother is 38. She is living with the maternal grandmother in suitable accommodation. The mother is doing some casual [occupation omitted] and is also studying. [X] attends childcare one day a week and otherwise the maternal grandmother assists with the care of [X].
The mother is comfortable and happy living in Melbourne where she has a supportive network of family and friends.
In due course the mother would like to purchase a home in Melbourne, in the same suburb as her mother.
Matters in dispute
There are many matters which appear to be in dispute between the parties. These include:
a)whether the father wanted the mother to terminate her pregnancy;
b)whether the father was supportive of the mother during her pregnancy;
c)the extent to which the father was involved in [X]’s care prior to separation;
d)the responsibility each party bears for the regular arguments which occurred during their relationship.
On the basis of the untested evidence currently available to me I cannot make findings about matters in dispute. In these interim proceedings however, not a great deal turns on any of the disputed matters outlined above.
Even if the father did originally want the mother to terminate the pregnancy, there is abundant evidence that he was a proud and devoted father once his daughter arrived. Even if he did have a lesser involvement than the mother in caring for [X] prior to separation he nevertheless had an involvement and if [X] comes into her care he can learn as he goes as most parents do. No matter where the responsibility lies for the arguing during the relationship the parties are now separated. [X] will not be exposed to conflict in the separate care of each parent, or at all provided that each parent curbs any tendency to argue with the other at changeovers.
Matters not in dispute
There are many matters which are not in dispute between the parties, including the following:
a)the mother has to date been [X]’s primary carer;
b)the mother unilaterally relocated to Melbourne with [X];
c)[X] is too young to fly unaccompanied;
d)the mother has limited ability at present to contribute to the cost of [X]’s or the father’s air travel;
e)the father has been persistent in his interest in spending time with [X] since separation.
I consider it beyond argument that [X] is too young to have useful communication with either of her parents by telephone or webcam.
[X]’s best interests
I must treat [X]’s best interests as the paramount consideration in determining appropriate parenting orders. Sections 60CC(2), (3) & (4) of the Family Law Act contain the considerations to which I must have regard in determining [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
The available evidence suggests that [X] has two parents who are valuable and important to her, and that she will benefit from having a meaningful relationship with each of them in the future.
If I make the orders sought by the father and [X] returns to live with the father in Darwin, she will have the opportunity to develop her relationship with her father. If the mother remains in Melbourne however then in the immediate future [X] will not be able to spend much time with her mother. This is far from ideal for a child of [X]’s age.
If I make the orders sought by the mother, and [X] remains with the mother in Melbourne, she will have the opportunity to develop her relationship with her mother. Unless the father relocates however she will only be able to see her father on infrequent occasions when he visits Melbourne. This is far from ideal for a child of [X]’s age.
There is no evidence that [X] is likely to be exposed to abuse neglect or family violence in the care of either of her parents.
As to the additional considerations, [X] is too young to have a view about parenting arrangements.
[X] has a good relationship with her mother. I am satisfied that [X] also had a good relationship with her father prior to the mother relocating. The mother had no hesitation in allowing [X] to spend time with the father for short periods prior to the relocation and did not suggest that [X] showed any reluctance about going to her father.
I am concerned about whether the mother has the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father. The mother said that she valued [X] having a relationship with the father, but her proposal for actual time was restrictive. She proposed an order for sole parental responsibility and some of the evidence in the mother’s affidavit suggested that she had a dismissive attitude toward the father.
On the basis of the evidence currently available I am not concerned about the father’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother. He showed some sensitivity to the importance of [X] spending adequate time with her mother in the orders he sought, and has shown no signs of wanting to restrict or obstruct the mother’s time with [X].
A significant issue in the case is the likely effect of any change in the child’s circumstances. [X] is 19 months old. The mother has always been her primary carer and [X] has not seen her father for almost four months.
The father would prefer that an order be made that [X] lives primarily with her mother, provided that this is in Darwin so that [X] can also spend frequent time with him. Such an order would be in [X]’s best interests.
I cannot make this order however because the mother said that she would not return to Darwin and the father does not propose at this time to relocate to Melbourne and perhaps cannot easily do so. I am faced with choosing between making an order that [X] live with the father in Darwin pending a final hearing, or making an order that she remain in Melbourne and see little of her father pending a final hearing.
A separation from her mother will be hard for [X] in the short term. However children are sometimes forced to adjust to changes of this nature, for example if a parent dies or if a parent in the armed services is deployed overseas.
An order that [X] lives with the father may well be in [X]’s best interests in the longer term as it may be the only way to ensure that she has the opportunity to develop a strong relationship with both of her parents. I am concerned that unless the importance of [X]’s relationship with her father is made clear to the mother at this point, the stage will be set for a long history of difficulties in [X] spending time with her father.
If [X] remains with the mother she will not face the short term pain of a transition to her father’s care, but she may lose the opportunity to develop a meaningful relationship with her father. This is likely to be to her long term detriment.
If [X] continues to live in Melbourne with the mother there will be considerable practical difficulty and expense in the father spending time with [X]. [X] is too young to fly unaccompanied. She will only be able to spend time with the father in the comfort of the father’s home environment if the father incurs two return airfares on the occasion of each visit. If the father spends time with [X] in Melbourne he will need to find somewhere to stay and either incur the costs of hiring a car or be limited to the use of public transport or taxis.
The mother’s counsel informed the court during submissions that at present the mother had a very limited capacity to contribute to the costs associated with the father spending time with [X].
The practical difficulty and expense of [X] spending time with the father will substantially affect [X]’s right to maintain personal relations and direct contact with the father.
If I order that [X] live in Darwin with the father and the mother remains in Melbourne, the practical difficulty and expense of [X] spending time with the mother will substantially affect [X]’s right to maintain personal relations and direct contact with the mother.
As to the capacity of each parent to provide for the needs of the child, I am satisfied that the mother is capable of providing for [X]’s day-to-day needs. I am not satisfied on the basis of the evidence currently available that the mother has the capacity to provide for [X]’s emotional needs, given her apparent blind spot about the importance of the father in [X]’s life.
I am satisfied that the father has the ability to provide for [X]’s day-to-day needs. He is a less experienced parent than the mother perhaps but there is nothing in the evidence which raises a concern that the father does not have the capacity to provide for [X]’s day-to-day needs. There is some evidence that he is sensitive to [X]’s emotional needs. He was not insistent that [X] live with him in Darwin, but was willing to agree to age appropriate orders about [X] living with the mother and spending increasing periods of defined time with him.
As to the attitude of the parents to the duties and responsibilities of parenthood the mother was critical of the father for not availing himself of the opportunity to have telephone communication with [X], but [X] is far to young to have meaningful telephone communication and I do not consider that the father can be criticised for not making the attempt.
The father showed a good attitude to the duties and responsibilities of parenthood in his willingness to vacate the former matrimonial home if the mother and [X] return to Darwin so they can live there pending a final hearing.
I have considerable concerns about the attitude displayed by the mother toward the duties and responsibilities of parenthood.
In unilaterally relocating to Melbourne with [X], the mother failed to facilitate the father participating in a decision about a major long term issue for [X]. Since the relocation the mother has failed to facilitate the father spending time with [X].
Between March 2009 and 29 June 2009 the mother’s proposal was that the father should spend supervised time with the child in Melbourne.
There was no evidence that [X] required protection from the father, and the mother agreed to the child spending unsupervised time with the father in Darwin prior to the mother’s departure, albeit for short periods. The mother conceded in her affidavit that the reason she proposed supervised time was because she feared the father might take [X] back to Darwin.
During submissions on 29 June 2009 the mother’s counsel said that the mother now agreed that the father could spend unsupervised time with [X]. The mother maintained her position however that she “object[ed] to any access that would require [her] travelling with [X] to Darwin[3]” and impressed upon the court that she was of limited financial means and could not make a great contribution to the costs of the father spending time with [X].
[3] Mother’s affidavit paragraph 34
The mother said that if the court ordered that [X] return to Darwin in the interim, she would not herself return but would hand [X] over to the father and remain in Melbourne pending the final hearing.
It is difficult to view the mother’s insistence that she will not return to Darwin as a child-focussed decision. The mother has been [X]’s primary (although not her only) carer to date and [X] is no doubt closely bonded to her. A separation from the mother will very likely be difficult for [X] in the short term.
It is difficult to reconcile the mother’s position that she will not return to Darwin in the interim even if [X] has to return with her evidence that when she and the father went away on a holiday to Bali and she was separated from [X] in mid-2008 that she “hated it the whole time [she was] away from [X].”[4]
[4] Mother’s affidavit paragraph 18
There is a flavour of intransigence in the mother’s affidavit, and in her statement to the court that she will not consider returning to Darwin in the interim. This, taken together with her failure to facilitate the father spending time with [X] and her unilateral relocation raises a concern about what might happen to [X]’s time with the father in the future if the mother gets her way and [X] is permitted to remain in Melbourne with the mother pending a final hearing.
There are no family violence orders in place, nor any allegations of behaviour which suggests that either parent has ever committed acts of family violence as that term is defined in the Family Law Act.
I take into account as a relevant fact or circumstance that the mother has been earning a living doing casual [occupation omitted] in Melbourne. It is reasonable to suppose that similar work would still be available in Darwin. I take into account that if the mother worked in the Northern Territory her mother would not be available to assist with the care of [X], but paid childcare is available and [X] has been enrolled in childcare in Darwin in the past.
I take into account that the mother arranged for [X] to see a paediatrician and to have an operation in Melbourne. I take into account the mother’s comment that medical treatment is more readily available in Melbourne. There was nothing in the mother’s affidavit to suggest however that [X]’s health would be endangered if she returned to Darwin.
Parental responsibility
Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence. The court may decide not to apply the presumption if it considers that it would not be in the child’s best interests for the presumption to apply.
In interim proceedings the presumption applies unless the court considers that it would not be appropriate in the circumstances for it to apply.
The mother sought an order for sole parental responsibility, but the contents of paragraph 40 of her affidavit suggest a misunderstanding on her part of what an order for equal shared parental responsibility would entail. Nothing in that paragraph suggests that an order requiring the parties to jointly make decisions about major issues (such as relocation) would be inappropriate.
Neither party has abused [X] and there are no allegations in this matter of conduct coming within the definition of family violence. [X] has two parents who are keenly interested in her welfare, and in my view there is no justification at this time for removing from one of the parents a right to have a say in major decisions concerning [X]. I intend to make an order that the parents have equal shared parental responsibility for [X].
Conclusion
This is a very sad case. I am faced with a choice of making an interim order that a nineteen month old girl be separated from her mother, in order to ensure that she has the opportunity to develop a relationship with her father, or alternatively making an order that she remain with her mother (who acted high-handedly in relocating with [X] and who does not demonstrate any insight into the importance of [X] having a relationship with her father) with the result that [X] may never have the opportunity of developing a strong relationship with her father.
The objects and principals in s.60B of the Family Law Act make it clear that children have a right to know and be cared for by both their parents, and absent protective concerns, to have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. The mother, without any consultation with the father, has taken steps which have made it extremely difficult for the father to have a meaningful involvement in [X]’s life.
The mother seeks to remain in Melbourne with [X] pending a final hearing. However in Campbell & Spalding[5] Warnick J. said as follows:
“In my view it is clear that the interests of any child or children including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.”
[5] Campbell & Spalding (1998) FamCA 66
In Morgan & Miles[6] Boland J. was dealing with an appeal from interim orders made by a Federal Magistrate following a unilateral relocation by one of the parents. She observed that:
“It appears to me that the very difficult issues involving a relocation make it highly desirable that, except in cases of emergency, the arrangements which will be in a child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[6] Morgan & Miles (2007) FamCA 1230
At a final hearing, the mother may persuade a court that it is in [X]’s best interests that she lives with the mother in Melbourne. The mother may persuade the court that her attitude toward the duties and responsibilities of parenthood has changed, or that the drafter of her affidavit did her a grave disservice in presenting her evidence. At a final hearing a proper examination can be made of whether the father has the capacity to relocate. A great deal more evidence will be available at a final hearing and all of the evidence can be tested. The view the court takes about whether it is in [X]’s best interests to live in Melbourne with the mother may be quite different after a final hearing.
In the interim however, it is my view that [X]’s best interests require that she be returned to Darwin. I accept that in the short term a transition to the father’s care may not be easy for [X], but on the current state of the evidence I consider that there is a real risk that unless this occurs [X]’s opportunity for a relationship with her father in the longer term may be lost or compromised.
The mother was adamant that she would not return to Darwin, and there is no point in delaying the change in [X]’s care. I intend to order that the father collect [X] from the mother in Melbourne within seven days.
I also intend to order a Family Report, and to list the matter before me on 13 October 2009 for directions. If the matter then needs a final hearing a date can be allocated before the end of 2009.
It is difficult to know what to do about orders concerning the mother spending time with [X]. It would be extremely sad if no time occurred between now and the next adjourned date. Doing the best I can I intend to order that the mother spend time with [X] as agreed between the parties and failing agreement that the father take [X] to Melbourne at his expense on 22 August 2009 to spend one week with the mother. I will also order that the father make [X] available for telephone calls or webcam communication with the mother, recognising that this is likely to be an experience which may last seconds rather than minutes given [X]’s age.
I do not intend to make any orders dealing with the eventuality that the mother may change her mind and return to Darwin in the interim. I am satisfied that the father would be more than willing to make appropriate arrangements with the mother concerning a division of [X]’s time if the mother chose to return and the parties may be able to come to an agreement if this eventuality occurs. However I will give the parties liberty to re-list the matter on short notice in case the parties are unable to reach an agreement.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 3 July 2009
0
0
1