Berry and Davis - [2014] FamCA 412

FAMILY COURT OF AUSTRALIA

BERRY & DAVIS

[2014] FamCA 412

FAMILY LAW – CHILDREN – Interim proceedings – Review of orders made by Senior Registrar

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Whether children should live in North Queensland with mother or return to Sydney – Where allegation that children abused by father’s daughter from previous relationship – Where no risk of abuse by father – Whether relocation is reasonably practicable – Where children settled in current environment – Where mother cannot afford to relocate – Relocation not reasonably practicable – Father to spend supervised time with children and to communicate with children by telephone

Family Law Act 1975 (Cth)

Ember & Assadi [2013] FamCAFC 107

APPLICANT:

Mr Davis

RESPONDENT:

Ms Berry

FILE NUMBER:

SYC

494

2013

DATE DELIVERED:

7 April 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

7 April 2014

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Hope

SOLICITOR FOR THE RESPONDENT:

Marsdens Law Group

Orders

IT IS ORDERED

That the children S (male) born … 2009 and C (male) born … 2011 (“the children”) live with the mother.
That the father’s application for the return of the children to the Sydney Metropolitan Area or the Central Coast of New South Wales is dismissed.
That the children spend time with their father on any weekend subject to the time being supervised by an appropriately accredited children’s contact centre and in the absence of agreement to the contrary at the Town B Contact Centre.
That the father’s contact on weekends shall be for any time which the accredited children’s contact centre is prepared to facilitate.
That the mother cause the children to telephone the father and in the absence of agreement such calls are to take place at 6 pm each Sunday evening and that the mother be permitted to monitor the telephone calls by using a speaker phone.
That the venue of these proceedings be changed to the Family Court of Australia sitting at Townsville.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berry & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 494 of 2013

Mr Davis

Applicant

And

Ms Berry

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court concern two children: S born in 2009, now four and a half years old, and C born in 2011 and now two and a half years old.
The proceedings were heard and determined by Senior Registrar Campbell on 21 March 2014. The father sought to review the decision of the Senior Registrar and the matter, therefore, comes before me by way of hearing de novo.
The applicant, Mr Davis, is the father (“the father”), and the respondent, Ms Berry, is the mother (“the mother”).
The issue which is to be determined is whether or not the mother and the children should be permitted to remain in Town D in North Queensland, where they now reside, pending the final determination of these proceedings, or whether they should be required to return to the Sydney metropolitan area or the Central Coast of NSW.
The father’s daughter, E, now aged 13, regularly spent time with the family while the parents lived together.
The parents separated on 1 August 2012 and the children, thereafter, lived with their mother.
There was regular contact with the father at the home of the paternal grandparents until October 2012. Between October 2012 and April 2013, the father saw the children three times.
In April 2013, the parties agreed, in mediation, that the children should have regular weekend visits with the father.
The last time that the father spent time with the children was 26 July 2013.
On 30 August 2013, the mother discovered material on E’s Facebook page which indicated that E may be the victim of ongoing sexual abuse. She reported that material to the police.
Subsequently, S disclosed to his mother that E had been touching him inappropriately and said other things to his mother’s cousin, Ms F. A police investigation began. It is important to note that the allegation is that E sexually abused S with an involvement of the paternal grandfather. There is no allegation of improper behaviour of that nature against the father.
The mother was living with her cousin, Ms F, in Western Sydney. They had a falling out and Ms F moved out. The mother was unable to afford to pay the rent on the property on her own. Her only income is from Centrelink.
It is the mother’s evidence that she was stressed and was diagnosed with depression in 2012 and that in 2013 her medications were increased.
The mother’s aunt in Queensland offered accommodation to her and the children and purchased airline tickets for the mother and the children. They flew to Queensland on 20 September 2013.
The mother was subsequently able to lease suitable premises and, since that time, she and the children have lived in Queensland.
The mother asks that the proceedings be transferred to the Townsville registry and that an order be made for the father to have supervised time with the children.
The father opposes the transfer and asks for orders that the mother and the children return to the Sydney metropolitan area or the Central Coast with the children. His alternate application that the children live with him was not seriously pressed before me.
There is no evidence before me of any offer made by the father to provide any support for the mother if she returns to New South Wales and I note that he is not paying child support, although he is in employment.
The mother makes allegations that the children are not safe in the father’s care because he has been violent towards her, has a history of controlling behaviour and has uncontrolled diabetes. That is a brief summary, only, of the mother’s allegations. The father denies those allegations and it is not necessary for any determination to be made in relation to them. The only issue for determination today is where the children will live while the parenting proceedings are awaiting determination.
It is not in dispute that it is in the interests of the children that they have a meaningful relationship with their father. That is the basis of the mother’s application, that they spend time with the father even though the time will be supervised. The benefit of the children having a meaningful relationship with their father must be balanced against the need to protect them from the risk of abuse. But it is stressed that there is no risk of abuse by their father.
Again, the protection of the children from the risk of abuse has to be given priority over all of the other matters that the Court has to consider. But, again, the father does not pose a risk of abuse to the children. In regard to the mother’s allegations of his parenting difficulties, those allegations are overcome in the interim period by the father’s agreeing that any time that he should spend with the children will be supervised.
It is the mother’s case that the factor which mitigates against her return is that it is not reasonably practicable for her to do so. Her evidence is that rents are more affordable for her in Queensland. There is no other evidence before me of comparable rental costs in Sydney or the Central Coast.
The mother would have to locate accommodation, pay a bond and pay her moving costs. She would be required to pack up and transfer all her belongings, and those of the children from Queensland. She would have to pay airfares for herself and the children and find temporary accommodation until such time as she can find a place to rent.
There is no evidence before me to satisfy me that she has any likelihood of being able, financially, to do any of those things.
The children appear to be settled.
It is the mother’s evidence that the children are sleeping in their own beds, settling at night and doing well in day-care. The mother says that the sexualised behaviour, which was previously displayed by S, is decreasing.
The mother was engaged with a counselling service until January 2014. The service provided a report in support of the mother’s case. There is no evidence that the report writer has spent any time with the children or made any independent inquiries about them. I propose to treat that report as repeating the information given by the mother about the children to the report writer.
There was also, in evidence, a report from the mother’s treating doctor dated 14 March 2014. The doctor said:
This lady has done very well since her time here in [Town D]. Her depression and anxiety has responded well to treatment, such that medications have been dramatically reduced.
There is no doubt that, prima facie, the best interests of the children mandate that they are given every opportunity to maintain their relationship with their father. It is likely that the children will see their father more frequently if they live in Sydney or on the Central Coast than they will if they remain in Queensland because of the high cost of travel to the father.
However, as the Full Court stressed in Ember & Assadi [2013] FamCAFC 107, I am required, when considering what arrangements should be put in place for the children, to consider whether there is evidence which establishes that the arrangements which are proposed are reasonably practicable.
Regrettably, in this case, I cannot find that it is financially possible for the mother and the children to move back to Sydney or the Central Coast or that it is reasonably practicable.
Although I cannot find any order that has been made for equal shared or other parental responsibility, I note in passing that for the reasons I have set out it is not appropriate for the children to have substantial and significant time with their father and I note that he does not press for such an order. In all of those circumstances, the father’s application will be dismissed.
I am asked also to deal with the issue of the transfer of the matter to the Townsville registry. The considerations in relation to transfer are the balance of convenience. It is more practicable for the mother and the children to travel to Townsville for family report interviews and for the hearing than for them to travel to Sydney.
I order that the proceedings will be transferred to Townsville.
The father has not spoken to the children since July 2013. I propose to put in place a regime of telephone calls where the mother facilitates a call once each week to the father. She has expressed concerns that the father will speak inappropriately to the children and, for that reason, she can monitor the calls on a speaker phone. The father, having listened to the argument and to my reasons for judgment, will be acutely aware of the need to speak sensitively to the children.
The father should provide a telephone contact number to the mother’s solicitor before leaving Court today. Absent any other agreement, the telephone calls should be made at 6 pm each Sunday.
It is not appropriate that the calls involve E at this stage of the police investigation into the allegations relating to abuse of S and, for the same reason, it is not appropriate that E participate in the supervised contact.
It is the mother’s evidence that the supervised contact centre in Town B, Queensland will facilitate visits on two consecutive days. That would seem to be a most appropriate situation provided that arrangements could be made.
The orders that I will make will allow the father to have supervised time at the supervised contact centre in Town B, unless the parties agree on another venue, on any weekend that the father can travel to Town B.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 April 2014.

Associate:

Date: 7 April 2014