BLACK & COOLEY (No.2)
[2018] FCCA 2974
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACK & COOLEY (No.2) | [2018] FCCA 2974 |
| Catchwords FAMILY LAW – Parenting – mother sought sole parental responsibility, a reduction in the father’s time with the children and permission to relocate – not in the best interests of the children – father fulfilling parenting obligations – no evidence to the contrary – previous orders made remain in full force and effect. |
| Legislation Family Law Act1975, s.60CC(3) |
| Cases cited AKD16 v Minister for Immigration & Anor [2016] FCCA 3026 Cooley & Black [2017] FCCA 2946 Galea v Galea (1990) 19 NSWLR 263 Hawchar v Dasreef Pty Ltd (2011) 243 CLR 588 Kousal v Tack (2003) FLC 93-134 Re F (Litigants in Person Guidelines) (2001) FLC 93-072 |
| Applicant: | MS BLACK |
| Respondent: | MR COOLEY |
| File Number: | MLC 10022 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 28 August 2018 |
| Date of Last Submission: | 11 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M W S Duckett |
| Solicitors for the Applicant: | None |
| Counsel of the Respondent: | Mr D A Mort |
| Solicitors for the Respondent: | Carew Counsel Pty Ltd |
ORDERS
The orders made on 29 November 2017 remain in full force and effect.
The mother’s applications –
(a)to relocate with the children to Canberra; and
(b)for a contraction of the time the father has with the children,
are refused.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Black & Cooley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10022 of 2015
| MS BLACK |
Applicant
And
| MR COOLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 November 2017, I gave judgment in this proceeding ordering a regime for equal shared parental responsibility for two children born to the parties, for the children to live with the mother and to spend time with the father subject to a number of preconditions.
With a view to ascertaining that those orders were being followed, I arranged for this proceeding to be listed on 24 August 2018. On that day Mr Duckett of counsel, who appeared for the father during the trial on 2 and 3 October 2017, again represented the father. Mr Mort of counsel appeared for the mother. They were unable to reach agreement on the fate of the mother’s application filed on 12 February 2018 for, among other things, orders permitting her to relocate with the children to Canberra and for the father’s time with the children as ordered on 29 November 2017 to be reduced.
On a day otherwise allocated to me as leave, being 28 August 2018, I sat on this case and heard the contested application brought by the mother. Both parents gave evidence as did a family consultant.
As with all aspects of this litigation, a staggering amount of antagonism continues to pervade the relationship between the mother and the father. Their capacity to agree on even the most basic activity is impaired. With a view to resolving the impact that the parents’ disagreement has had on the children, the family consultant supported the mother’s application for her to relocate with the children to Canberra and for the father’s time to be reduced.
The mother told me that she wanted to travel to Canberra with a view to exploring job opportunities there. She said she has family near Canberra. At the date of the hearing she had not secured employment in Canberra. Her enquiries had progressed no further than a recruiter telling the mother that she should contact that recruiter when her relocation to Canberra was complete, itself being dependent on the orders I was called on to make in this case. The father stringently resisted the mother’s application to relocate. Both argued for different reasons that orders should be made along the lines urged by each parent.
Often, although not always, guidance can be given to a court by an objective, neutral, experienced person such as a family consultant who can offer a way through the impasse that the war between the parents creates. In this case I was in no way assisted by the position adopted by the family consultant. For reasons addressed below, in my view he was an advocate for the mother and on key issues did not even ascertain the wishes of the children let alone explore the matter, preferring instead to maintain the position he adopted throughout this case to the effect that the father’s personality disorder was such that the family consultant rejected the father’s position.
Against that background, I was called upon to determine the mother’s application to relocate and her application to reduce the amount of time the father spends with children.
Synopsis
For the reasons that follow, in my judgment I reject both applications urged by the mother. To be clear, I refuse her application to relocate and I refuse any contraction of the time the father has with the children. In my view, the father may have quirks of personality but he is nevertheless a loving and focused parent who, in the acrimonious circumstances of this case, provides stable, secure and otherwise adequate parenting for the children. I took the view that throughout this case, the mother adopted a fixated attitude founded in her vitriol towards the father such that she was and remains wholly unsupportive of the father’s time with the children, ever ready to exhibit antagonistic and confrontational behaviour towards him. I also refuse her application for an order for sole parental responsibility of the children.
Relevant factual setting
The precise details of the orders I previously made in this case are set out in my earlier reasons for judgment.[1] Suffice it to say that for present purposes, I made orders conferring equal shared parental responsibility on the parties and I ordered the father to have time with children subject to several preconditions set out in paragraph four of my reasons. At paragraph five of those reasons, I stated that I took into account the children’s need to have a meaningful relationship with both the mother and the father and that while the father had asserted his sobriety since a little earlier than Christmas 2015 the risk of relapse was ever present.
[1] Cooley & Black [2017] FCCA 2946
The father swore that he has maintained his sobriety in accordance with the orders I previously made. He was questioned about the presence of a can of light beer in his refrigerator. He denied any association with it or having consumed any form of alcohol. He was questioned about a reading on his car’s interlock device allegedly indicating the presence of alcohol on his breath. He denied that he had consumed alcohol and he said that the reading was attributable to the presence of a substance in the mouthwash that he used. His responses seemed credible enough and no serious inroad was made to his overall veracity to warrant my disbelieving him in the answer that he gave. In addition, he produced a number of pathology reports over the period 1 December 2017 to 14 May 2018 that revealed testing for the detection of ethanol. No illicit substance was recorded as having been detected.
The family consultant refused to accept that the father had made any headway in his grappling with the father’s previous difficulties associated with alcohol. In my view the family consultant adopted an unbalanced and unreliable attitude in that regard. In one passage of his 18 May 2018 report, the family consultant stated that the father presented “as if he had been drinking in recent days”. That was an entirely gratuitous and unsubstantiated “observation” unfounded on any scientific testing and, in my view, was incorporated in the family consultant’s report to impermissibly colour a reader’s impression of the father. As mentioned above, I took the view that the family consultant was an advocate for the mother’s cause in this case. I found his evidence to be less than helpful. Unsurprisingly, the father told me that he had very little regard for the family consultant.
On behalf of the mother an attempt was made to portray the father as a parent who was less than diligent in his attitudes towards the children. The father was cross-examined about the time at which he woke the children for school when they were in his care, how he did not get up to answer the door on one occasion and instead one of the children had to open the door. The father explained that he was ill and unable to arise from his sickbed. Another attempt was made to challenge the father’s parenting capacity when the father permitted the children to cross a main street unassisted.
None of those matters weighed particularly heavily in the balance with me. It must be accepted that individual parents have individual parenting skills and styles. None is necessarily perfect and no blueprint will work for all parents. Self-evidently, the idiosyncratic way in which a parent relates to his or her child cannot be the subject of criticism unless the child is at risk in the manner contemplated by the Family Law Act (“Act”). I did not detect any want of adequate parenting skills by the father. To the extent that the family consultant made adverse observations about the father I reject them. I have placed very little weight on the adverse criticisms that the family consultant levelled against the father.
The mother’s attitude towards the father’s parenting revealed an obsessive fixation with the father’s inadequacy. She was unable or unwilling to accept that the father’s ill-health may have disabled him from opening the door on one occasion. She was uncompromising in her criticism of the father for permitting the children to cross a busy road. Questioning the father about the time at which he caused the children to rise in the morning, based on instructions by the mother about the impropriety of that wake-up time, was ill directed. There was no suggestion that the children were awakened at a time that was cruel or unusual. An unnecessary amount of time was spent in this trial on such a trivial issue.
The mother’s motivation to seek relocation was wrongheaded. She gave as her reason for seeking location orders that she wanted to pursue employment with a (employer omitted) in Canberra and that her family was based in or near Canberra. When questioned about the necessary preliminary negations that ought normally be undertaken before an interstate move is contemplated, the mother revealed a bewildering lack of focus. She had not secured employment there. Her desire to work for a (employer omitted) could as easily be undertaken in Melbourne as it could have been undertaken in Canberra. (employers omitted) have operations in each state. I do not accept the concept that the mother’s skills were so special that it was necessary for her to move to Canberra to pursue employment in that territory in order to best exploit her skills. When boiled down, it seemed to me that the real reason for her desire to locate to Canberra lay in her wish to be closer to her family members. That tended to place her personal wishes ahead of the best interests of her children.
The mother was asked whether, in her view, the father would encounter any obstacle in moving to Canberra. Aside from the fact that such an enquiry was premised on an erroneous supposition that he should relocate in the first place, her answer revealed a lack of perception about the way relocation can orchestrate very considerable hardship to the children when the other party is left behind. The mother said that the father had studied in Canberra, he had some family nearby and that at one stage of their marriage they talked of moving to Canberra. That answer sidestepped the fact that the father was in employment in Melbourne, he lived in Melbourne, his children were schooled in Melbourne, he was deeply involved with his son’s (sports) in the suburbs of Melbourne and that the father’s life as well as the children’s lives remain fully focused on life in Melbourne. The mother sloughed that off.
The wishes expressed by the children and recorded by the family consultant pointed to the peculiarity of the family consultant’s evidence in this case. The parents’ daughter, aged eight, told the family consultant she did not wish to relocate to Canberra. The family consultant told me that he recorded that response because the daughter volunteered that information. The family consultant did not record any corresponding version of the evidence about the son’s wish to relocate to Canberra. I asked the family consultant why he did not ask the son about such an important issue having regard to the fact that he recorded the daughter’s unwillingness to relocate to Canberra. He said he does not raise the issue and only records any such comment if it was volunteered by a child. In view of the importance of that matter and the express requirement in the Act for the wishes of the children to be taken into account, I asked why he omitted to pursue such an important enquiry. He said he does not pursue the matter unless the child volunteers it. I found his answer extraordinary. The answer the question lay at the heart of this case. Precisely how or why he failed to pursue such an important point was bewildering. He devoted 31 pages of his report to an array of issues and omitted one of the most important issues in this case.
At an evidentiary level, that left the situation such that the family consultant gave evidence of the daughter’s rejection of the notion of relocation, the father’s rejection of the children’s willingness to relocate and an absence of evidence supportive of relocation as given by the son with only the mother wishing to relocate. In those circumstances the preponderance overwhelmingly favoured my rejection of the mother’s application to relocate. Not only did she not cite a valid reason supportive of the best interests of the children as a basis for her application, but the evidence pointed in the opposite direction to the making of the order she sought.
I reject the mother’s application for relocation. I find that it is not in the children’s best interests for them to relocate to Canberra. The mother has no job in Canberra and she offered no evidence of financial support in the long term on which she could draw as enabling her to sustain the children and herself while in Canberra. There was no evidence that she had sourced or secured housing nor schooling in Canberra. In addition, the mother paid little to no regard to the uprooting of the children from their circle of friends in Melbourne with its consequential social uncertainty that an order permitting relocation Canberra would cause.
Then there was the mother’s application to reduce the father’s time with the children.
In short, I reject it.
I have carefully read the mother’s affidavits and the material on which she relied as supporting the proposal. I have also carefully read the information offered by the family consultant on point. The family consultant seemed to take the view that the father has a personality disorder, he has not taken meaningful steps to address it and the parents were unable to cooperate in any shape or form with the consequence that the father’s time should be reduced.
The family consultant was not a psychiatrist. According to principles espoused by the High Court in Hawchar v Dasreef Pty Ltd,[2] information given by a person purporting to give expert evidence will be futile only if the information is within the witness’s field of expertise. The family consultant did not offer information about the nature of the personality disorder from which he said the father suffered. There was no evidence in this case on that point. At best, a collection of gratuitous and unsubstantiated assertions were volunteered by the family consultant on point. That heightened my suspicion that the family consultant was in reality an advocate for the mother’s cause and that he was not objective, neutral and independent, despite having asserted that he had read and understood the relevant code of conduct for expert witnesses.
[2] (2011) 243 CLR 588
As the trial judge in this case I enjoyed all the benefits of which Kirby ACJ spoke in Galea v Galea[3] about which I wrote in AKD16 v Minister for Immigration.[4] Relevantly, the judge –
a)hears the evidence in its entirety;
b)hears and sees all evidence in context, chronologically and logically advanced;
c)has time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hears and sees interruptions, hesitations and delays in the giving of testimony; and
e)observes body language, sometimes important for interpreting communication.
[3] (1990) 19 NSWLR 263
[4] [2016] FCCA 3026
It must be said that the father’s demeanour at times was less than cooperative. However, I saw him in the witness box at a time of great stress in an atmosphere in which he was unrepresented and he did his best to present his case. I make that observation having explained to all parties in detail, in the manner the Full Court of the Family Court of Australia has said I must,[5] the manner in which the case was to unfold and in particular the nature and scope of cross examination. The father did a creditable job in repelling some direct and undoubtedly confronting cross-examination at the hands of a very experienced and capable senior member of the Victorian Bar, Mr Darren Mort. I hasten to point out that Mr Mort behaved impeccably. He discharged his duties as counsel with utmost propriety.
[5] Re F (Litigants in Person Guidelines) (2001) FLC 93-072; Kousal v Tack (2003) FLC 93-134
Underpinning the contentions of the family consultant in respect of his urging for the reduction of the father’s time was his threshold thesis that the parents’ ongoing fighting meant that the children were continually exposed to that conflict whenever the father had time with the children. I do not accept that proposition. The parents must put an end to their squabbling. The time has come for them to behave as adults. The mother must let the father have time with the children without her preoccupation that the father will relapse or behave in a socially unacceptable manner. To my mind, the father was doing an acceptable job in his parenting obligations since the orders I made in November of last year. Rather than that pointing to a contraction in his time, it seemed to me that the current orders should remain in force.
No evidence was adduced that the father had been formally diagnosed as suffering from any identified personality disorder. The family consultant elliptically referred to the father as suffering from a personality disorder. However, he admitted he did not conduct any tests for any specific personality disorder. In any event he was not qualified to make such an assessment.
I am unwilling to accede to the mother’s request for a reduction in the amount of time the father has with the children based on little more than assertion by the consultant that the father suffers from a personality disorder when no medical evidence was adduced to substantiate any such allegation.
In those circumstances I reject the mother’s application for sole parental responsibility. The father provides an acceptable household for his children when he has time with them and is otherwise diligent in the discharge of his parental responsibilities.
It remains true that the parents are still engaged in bitter conflict. That points to an inability for the parents to cooperate. However, it does not mean that the father’s time with the children should be reduced nor does it provide any justification to accede to the mother’s request for the children to travel with her and live in Canberra on a relocation basis.
Conclusion
I dismiss the mother’s application for orders for sole parental responsibility, for a relocation order and for the reduction of time the father spends with the children.
In making the observations above, I have considered each of the subsections of s 60CC(3) of the Act even though I have not specifically alluded to them in the reasons set out above.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 24 October 2018
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