Bambach and Madigan

[2018] FCCA 343

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMBACH & MADIGAN [2018] FCCA 343

Catchwords:
FAMILY LAW – Relocation – application for recovery order – best interests of the children – abusive communication – family violence – relocation supported by health professionals – father agreed to move to Perth – father purported to withdraw agreement.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:
Goode & Goode (2006) 36 Fam LR 422

Applicant: MR BAMBACH

Respondent: MS MADIGAN

File Number: MLC 82 of 2018

Judgment of: Judge McNab

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

Counsel for the Applicant: Ms Parker

Solicitors for the Applicant: Clancy And Triado

Counsel for the Respondent: Mr Thompson

Solicitors for the Respondent: Carr & Co

ORDERS

1. Pursuant to section 39 of the Federal Circuit Court of Australia Act1999, these proceedings be transferred to the Perth Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.

2. The mother and father have equal shared parental responsibility for the three children [X] born (omitted) 2012, [Y] born (omitted) 2015 and [Z] born (omitted) 2017 (“the children”).

3. Until further Order the children live with the mother and she be permitted to continue living with them in Perth, Western Australia.

4. The until further Order the children spend time with the father as follows:

   In the (omitted) precinct as follows:

   (a)between 15 and 27 April 2018 for the two elder children on every second night from 10:00am one day to 4:00pm the following day and for the child [Z] day time only between 10:00am to 4:00pm;

   (b)between 3 July and 12 July and over Christmas period 18 December to 7 January 2019 on the same terms as in paragraph (a) save the children be returned to their mother at 6:00pm 24 December 2018 until 1:00pm 25 December 2018;

   (c)In Perth on three occasions for a weekend from 6:00pm Friday to Sunday 4:00pm during the next 12 months on 14 days prior notice in writing to the mother but there is to be no overnight time to the child [Z].

5. Until further order the father have “face time” communication three times a week up to half an hour being 7:00am Perth time or 5:30pm Perth time by prior arrangement.

6. The father’s time with the children be subject to the following conditions:

   (a)he is to reimburse the mother for one half of all travel expenses for her and the children to come to Melbourne including airfares and transport to and from the airport referred to in paragraph 3 above;

   (b)the mother is to pay or cause to be paid three occasions of airfares only for the father to come to Perth over the next 12 months referred to in paragraph 3 above.

7. The mother shall provide a pram, portable cot, nappies and any other necessities for the children for the father’s use when he spends time with the children in Perth.

8. Otherwise dismiss paragraphs 4, 5, 6 and 7 of the father’s initiating application for interim orders and paragraph 2 of the mother’s response for interim orders dated 31 January 2018.

AND THE COURT NOTES THAT:

AThe parties propose to have mediation via their solicitors with a view to reaching further parenting arrangements for the said children.

BPursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 82 of 2018

MR BAMBACH

Applicant

And

MS MADIGAN

Respondent

REASONS FOR JUDGMENT

(Delivered Ex-Tempore)

1. By initiating application filed on 5 January 2018, the father seeks an abridgment of orders 4 to 7 of the interim orders he seeks, which requires the mother to return the children [X] born (omitted) 2012, [Y] born (omitted) 2015; and [Z] born (omitted) 2017 to (omitted) in Melbourne.  The father, aged 32, relies on his affidavits affirmed 4 January 2018 and 4 February 2018 and that of his mother, Ms A, affirmed 4 February 2018. 

2. The mother, who is aged 33, opposes the orders and seeks orders that she be permitted to remain with the children in Perth where she is living with her mother and the children. The mother relies on her affidavit of 1 February 2018 and an affidavit of her father, Mr M, sworn 21 January 2018.

3. The case has some particular features, these being:

   a)that the parties have had three children over the last five years but have only spent 11 months of that time cohabiting;

   b)the parties ceased living together in 2012, but the father has spent regular time with the older children, [X], in particular, and there have been parenting plans made since 2013 which are in evidence; and

   c)the father moved in with his parents in Town A in January 2017 and continues to live there, and the mother moved in with her mother in Town B in about July 2018.  The father deposes that from about January to November 2017, [X] and [Y] spent one overnight period from Friday afternoon with him and that he spent time with all of the children on a Sunday.

4. There are points of agreement as between the parties dated 16 December 2017, which are exhibited to the affidavit of the father affirmed 4 January 2018.[1] The agreement relates to the father’s spending time with the children. It points to some of the issues confronting the father and notes:

   [1] Exhibit “DB-02”.

   Subject to the following, the father’s time with the children will be unsupervised:

   ·The father is not to drink alcohol 24 hours prior to having the care of the children or in front of the children;

   ·The father will attend and have completed an anger management course by the end of June 2018;

   ·The father will get counselling for his alcohol intake with a counsellor specialising in overuse of alcohol.  This will commence at the end of January 2018;

   ·The father will not leave the children in the car without an adult present;

   ·The father will not drive with the children within 4 hours of taking a Valium;

   ·The father will only use his telephone for the purpose of necessary communication when he has care of the children.

5. This proceeding is principally concerned with the relocation of the children by the mother to Perth.  The father’s evidence is contained in paragraphs [18] – [48] of his affidavit.  Paragraphs 18 – 21 provide:

   [18] On Saturday, 18 November 2017, I went out with friends when I saw Ms Madigan out drinking.  I observed Ms Madigan to be in a highly intoxicated state and I saw her leave with another man.

   [19] I was intoxicated and became distressed and angry.  I sent Ms Madigan a series of 9 text messages in the 45 minutes before midnight on 18 November, followed by 11 messages in the few hours following midnight.  Some of these messages were very abusive and/or used foul language and were threatening, for example, one of the messages I sent stated “wish you were dead” although this was immediately followed by a further message which stated “I don’t wish that.  This has shaken me.”

   [20] I deeply regret sending these messages on the evening of 18 November and 19 November and I understand that they would have been very distressing and also scary for Ms Madigan to receive. 

   [21] I apologised to Ms Madigan on the day of Sunday 19 November.

6. Whilst it is heartening that he has recognised that these messages were frightening and were very abusive and used foul language, in my view that is an understatement of the effects of the messages. The mother deposes that they were not out drinking.  They were in fact attending the same wedding.

7. The messages go on for over four pages and are an unmitigated expression of disdain and hatred of the mother, are derogatory of the mother and her family, and are quite confronting to read.  Clearly, those messages have had an impact on the mother as no doubt they would have on any sensible person.  The mother describes that she sought an intervention order because following the receipt of the messages the father attended the house in Town B with her mother and was quite confronting to her and her mother.

8. No intervention order was made as there was an agreement reached which did not necessitate the making of an intervention order. However it does not derogate from the fact that the mother was perfectly entitled to seek an intervention order in those circumstances. Whilst the father says that the intervention order was dismissed, it was not dismissed; it was in effect struck out.  There was no adjudication on the merits of the matter.

9. The father submits that he had never sent material like this before, however this is a matter of strong dispute by the mother who says that there has been an issue with alcohol certainly since the birth of [X] in 2012, and there are instances of family violence described in her affidavit.

10. In paragraphs [29] and following of the father’s affidavit, he deposes that in late November or early December, the mother informed him that she wished to move to Perth with the children. He says in paragraph [31] that at that time he regarded the proposed relocation as sudden, hasty and without consideration for his relationship with the children.

11. The mother deposes that she raised the proposal with the father in late November or early December, which coincided with the time when she had been the subject of abusive communication from the father. She deposes that the proposal occurred in the context where the relationship had not been settled for at least a five year period, with the parties only living together intermittingly over that period.  There is evidence that a parenting agreement was reached in 2013. Clearly this has not been a straightforward relationship, but it would appear that from the mother’s point of view, the reception of the atrocious material at the end of November brought her to breaking point. That is confirmed by the evidence of Ms L, the mother’s treating psychologist, who has been treating her since September 2017.

12. In the context where there had been discussions about a move to Perth where the wife’s mother resides, on 18 December 2017, the father sent an email to the mother of at 11.44 am which states:

    I will not attempt to block you from relocating to Perth with the kids if this is what you want.

13. Bear in mind that this was written on the same date as the agreement in relation to spending time with the children that I referred to earlier.  To quote further:

    It is my intention to be part of the kids lives (as you know) so we’ll have some work ahead of us to make arrangements.  From the mediation on Saturday it sounds like you are amicable to make plans that will work for both of us (and my Mum and Dad), so I hope we can sort out an agreement here.

    In terms of the agreement:

    * Could I ask you to get in touch with Mr M and ask if he is willing to put a firm offer on the table to pay for flights for me to come over every second weekend and provide accommodation not too far from where you live. He raised this arrangement during our phone call last week. I’d ask this this would be on an indefinite basis. 

    * I would like the kids to fly back to Melbourne for a decent amount during the school holidays and the Christmas period. I’d imagine we split the cost of the kids flight here.

    There is, no doubt, going to be a lot more to consider, and reach agreement on, before you leave. 

    It is my intention to be part of the kids lives, however, I will take my time in deciding whether I move to Perth.  To be clear, there is no promise/understanding that I will. 

    Ms J called this morning.  She is happy to hear that we can reach agreement on this relocation.

14. From the mother’s point of view the relocation was a culmination of what had been discussed since early December 2017.  The conditional aspect of it, which was highlighted by counsel for the father, is really only conditional on the terms of the relocation and whether arrangements could be made. There is certainly no indication in that correspondence that the mother could not shift to Perth unless some other wider agreement is reached.  From an objective point of view, there had been a crisis which had occurred between these parents.  There had been attendance in relation to an intervention order. There had been counselling.  Discussions of this have been raised and the father states “I will not attempt to block you from relocating to Perth with the kids if this is what you want.” 

15. Not surprisingly, the mother proceeded to make plans to continue with this course. The father obtained legal advice in relation to the settlement of the conditions, or the arrangements that will be made upon the relocation, which he foreshadowed in his letter of 18 December 2017.  The father’s suggestion in the letter was not that he would obtain legal advice about whether there would be a relocation. He presumably obtained legal advice that he could prevent the relocation and the letter states in bold on the second page:

    Please note that our client does not consent to you relocating with the children to Perth without his prior written consent.

16. The mother has responded on 1 January 2018, where she states in her letter to the father’s solicitors:

    Mr Bambach gave me written consent to relocate to Perth via email on the morning of the 18th December 2017.  Mr Bambach informed me in writing that he has spoken to our mediator Ms R and she was pleased that we had reached agreement on our relocation to Perth.

    Mr Bambach and I attended a family counselling session the afternoon of the 20th December 2017 where again he confirmed his consent verbally and we spoke with the counsellor about arrangements for the children moving forwards following my imminent relocation with the children.

17. She then went on to outline the steps that she had taken in order to relocate, including un-enrolling [X] from primary school in Victoria and enrolling him in school in Perth and un-enrolling the children from day care in Victoria and enrolling them in Perth.  She also booked a removalist for the relocation, booked a car, booked flights for the children and paid for the deposit for the day care in Western Australia.  In my view, it was perfectly reasonable for the mother to take the steps that she did to relocate, given the circumstances of the abusive conduct, which I have outlined earlier. 

18. I also note that the mother has experienced significant stress and sought medical treatment from a psychiatrist for generalised anxiety disorder and a depressive episode which followed the birth of her son, [Z].  Pleasingly, that condition seems to have responded well to treatment.  However, the psychiatrist’s opinion in relation to the relocation to Perth is unequivocal in his view that Ms Madigan's relocation to Perth will be beneficial for her mental health:

    Not only is Ms Madigan well supported by family in Perth (she has no family support available in Melbourne), she is likely to feel safer in the knowledge that her ex-partner is much less likely or able to invade her personal environment.  This can only be helpful for her psychiatric condition. 

    My opinion is that it is highly likely to be detrimental to Ms Madigan's mental health if she is required to return to reside in Melbourne.  As mentioned above, Ms Madigan has no family support in Melbourne.  The stress of being a single parent to three young children whilst going through a complicated separation from her ex-partner has already caused an exacerbation of Ms Madigan's anxiety condition.  Being required to return to the same environment in the circumstances will not be beneficial for her psychiatric condition.

19. Further, I note that this is not a report obtained for the purposes only of litigation or a consultation with a psychiatrist for the purposes of litigation. It is a report from a treating psychiatrist who has knowledge of the subject, rather than an expert simply recounting instructions which are obtained in the course of litigation.

20. The Court was also referred to a psychological report prepared by the mother’s treating psychologist, Ms L dated 1 February 2018, which recounts in detail the psychological conditions which the mother presented with. Ms L also opines in her report in relation to the possible effect of the wife’s mental health and having to return to and continue to reside in Melbourne:

    The 10 year history of the relationship with Mr Bambach and reported incidents of negative and or abusive communicated has contributed to Ms Madigan’s self-doubt and affected her ability to maintain boundaries.  Multiple interactions with Mr Bambach have been for Ms Madigan associated with increased distress, reduced self-worth and possibly reduced ability to manage physical health problems and treatment, including medication use.

21. The psychologist supports the mother’s relocation to Perth. The father disputes that there is any support of the agreement to move to Perth.  However, the fact is that the mother relayed the father’s support of the move to third party counsellors who were seeing the parties.  That support for the move was expressed by the father on 18 December 2017, when the father unequivocally stated in an email that he would not stand in the way of the move to Perth.

22. The father has submitted that the mother was on notice of the withdrawal of consent and continued to move notwithstanding the notice. He also submitted that both parties had lived active lives in Melbourne and that a move should not be made without expert evidence and as the mother’s job can be done remotely, she should return to Melbourne with the children. 

23. I do not agree with that.  There is expert evidence before the Court that the move back to Melbourne will be detrimental to her. It is not an off the cuff or unconsidered opinion. It is an opinion based on treatment which has extended over a period of time. Furthermore, the circumstances of the mother leaving to go to Perth are as I have outlined, where she has been the subject of terribly abusive communications which cannot simply go away by virtue of an apology, regardless of how heartfelt it is. It is also preceded by a great deal of instability between these people.  In my view, it is in the best interests of the children for them to remain in a settled and safe environment in Perth where the mother is living with her mother.

24. There will be capacity for the father to see the children, both in person and through the use of electronic communication, pending any further interim hearing or a final hearing.  The best interests of the children cannot be assisted by what has been a terribly acrimonious and difficult situation between these parents, to the extent that the mother is experiencing anxiety and is seeing health professionals. I understand that the father has also experienced anxiety. 

25. In my view the best interests of the children are supported by the mother remaining in Perth. In relation to the considerations under s.60CC(3) I rely on the approach to the determination of interim parenting applications set out in Goode & Goode (2006) 36 Fam LR 422. In particular the consideration of family violence under s.60CC(3)(f) which I have canvased above, the fact that the father can continue to have a meaningful relationship with the children (s.60CC(2)(a)) and that the father agreed to the relocation in Perth and treating health professionals support the move to Perth (s.60CC(3)(m)).

26. The father is still able to have a meaningful relationship with his children in the manner that I have outlined and the elements of family violence which, whilst in part are not admitted by the father, but to the extent that they are admitted, are such that there is likely to be a real benefit in the mother and the children remaining in Perth for the reasons outlined by the health professionals whose evidence I have had regard to.

1. In those circumstances, I dismiss the application for relocation.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 February 2017