BOYD & OWEN

[2015] FCCA 3015

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYD & OWEN [2015] FCCA 3015

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged 3½ years – mother primary carer – mother lived in Adelaide – father lives in (omitted) – should time be supervised – protective issues – logistical issues – best interests.

COSTS – Father failed to attend conciliation conference.

Legislation:

Family Law Act 1975 (Cth), ss.60CC & 117

Applicant: MR BOYD

Respondent: MS OWEN

File Number: ADC 3092 of 2014

Judgment of: Judge Brown

Hearing date: 14 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Adelaide

Delivered on: 14 April 2015

REPRESENTATION

Counsel for the Applicant: Ms Grey

Solicitors for the Applicant: Mahony’s Lawyers

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Weatherly & Associates

ORDERS

1. The respondent father pay the applicant mother’s costs in respect of the aborted property proceedings fixed in the sum of eight hundred dollars ($800.00) payable within 28 days of today’s date.

2. The application filed 18 March 2015 is dismissed.

UNTIL FURTHER OR OTHER ORDER

1. The orders made on 30 September 2014 continue save that the time the father spends with the child concludes on Sunday at 6:00pm.

2. Further consideration of the matter is adjourned to 24 July 2015 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 3092 of 2014

MR BOYD

Applicant

And

MS OWEN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgement were delivered orally, immediately following the interim hearing concerned.  Given the matter is proceeding to a final hearing, it is appropriate that the reasons be transcribed.

2. This afternoon, I have the matter of Boyd and Owen listed before me.  The applicant in the proceedings is Mr Boyd and the respondent is Ms Owen.  The parties are the parents of X who was born on (omitted) 2011. 

3. Accordingly, at this time, X is about three and a half years of age.  In my view, the age of the child is the most significant factor in the case today, which relates to interim arrangements for X to interact with his father, Mr Boyd.

4. Mr Boyd commenced these proceedings on 25 August 2014.  On both a final and interim basis, he seeks orders that would see the parties sharing parental responsibility for X but that the child live with him.  His application was made returnable before the Court for the first time on 30 September 2014.  Mr Boyd currently lives in (omitted) and Ms Owen lives in the Adelaide area. 

5. On 30 September, the parties agreed that X would live with his mother.  Given her place of residence, by necessary implication this meant in metropolitan Adelaide.  It was further agreed that X would spend time, with his father, on alternate weekends from Friday afternoon until the following Monday morning. 

6. It is now accepted by both parties that this arrangement has not occurred regularly because of logistical considerations arising because of the distance between (omitted) and Adelaide.  It was further agreed on 30 September that that time would be supervised by the paternal grandparents.  It was also agreed that the parties would undergo random supervised drug screen tests within 24 hours of being requested to do so. 

7. On 30 September the parties were referred to a meeting with a family consultant to discuss arrangements for X on 24 November 2014.  At that conference Ms Owen alleged to the family consultant concerned that she was concerned about Mr Boyd’s history of drug use. 

8. In this context, she was concerned about Mr Boyd possibly driving whilst under the influence of prescribed opiates.  It was also her position that during the parties’ relationship there had been physical and psychological abuse inflicted upon her by the father.  Mr Boyd did not attend that conference. 

9. Mr Boyd has outlined his view on the history of the parties’ relationship in his affidavit filed in support of his application.  As I indicated during the hearing of this matter there is no doubt that the parties have known each other for a very long time. 

10. They are currently now both in their early 30s.  They met one another, when they were in their teens or late teens.  They formed a relationship and lived together in (omitted), although they met in (omitted), where each has family connections as I understand it.

11. They separated in 2007.  In 2008 they met again and resumed their relationship.  In (omitted) of 2009 Mr Boyd enlisted in the (omitted), which was his long-standing ambition.  As a consequence of that he was stationed in (omitted) in Brisbane and Ms Owen moved to Queensland later to be with him.  Again they had a house together in (omitted), which I understand is a suburb of Brisbane. 

12. Mr Boyd was deployed on active service to (country omitted).  He has criticisms of the mother that she was not supportive of him during his deployment overseas, which I accept was a challenging and stressful experience for him.  How could it be otherwise?  He was involved in a significant conflict on behalf of his country. 

13. In addition, regrettably, Mr Boyd suffered a severe injury to his spine, whilst he was on patrol.  He fell whilst on patrol carrying a 60 kilogram pack on his back.  However, notwithstanding that injury, he was able to complete his deployment.

14. However, there is no controversy that since his return to Australia he has been discharged from the armed forces and he has been diagnosed with a number of significant injuries which relate to his military career.

15. As I understand it, these include a post-traumatic stress disorder, the spinal injury to which I have referred, and also some other matters including an addiction to prescribed medication, particularly synthetic opiates.

16. The respondent mother responded to the application in September of 2014.  She has in that application raised financial issues.  It is her case that the father has significant assets and the parties were in a relationship for a long period of time. 

17. It appears to be Mr Boyd’s position that the only significant asset, which he has is his compensation monies arising from his military service.  This relates to the injuries which he suffered whilst on active service.  Therefore it is his position that Ms Owen has no claim on them.  That is likely to be an issue of significant controversy.

18. For reasons which I will outline in a moment, there is no doubt in my mind that there is a significant level of controversy and mistrust between the parties.  It is Ms Owen’s position that during the parties’ relationship Mr Boyd used a number of illicit drugs regularly, and from time to time behaved in an aggressive and violent manner towards her.  It is also her position that the father was also from time to time verbally abusive towards her.  I am not in the position to make any findings of fact about those issues. 

19. But it is apparent, from what each of the parties have said in their affidavit evidence, that the period whilst Mr Boyd was engaged in active service in (country omitted), for around 10 months, was a very difficult one for each of them.  The difficulties came to the fore when Mr Boyd returned to this country which coincided, it seems, with the time at which X was conceived. 

20. Other sensitive issues about which the parties are well aware of arose at that time.  I will not go through them in these reasons for judgment.  But is, I suspect, the case that those issues simmer and remain and are a source of extreme tension and difficulties for the parties.

21. In any event, the family lived in Brisbane for a while.  It is the mother’s case that they then separated.  It was her case that this happened when X was of tender years and that thereafter there was a difficult situation, and she perceived that Mr Boyd was not travelling particularly well psychologically. 

22. In those circumstances, she was working but wished to move to Adelaide, where she perceived that she would be nearer to her family and happier.  She was able to get a transfer with her employment.  I believe she works for a large multinational (omitted) firm, which operate (omitted) throughout Australia.

23. Anyway, she wished to move to Adelaide and although Mr Boyd was initially reluctant, he agreed and the move happened.  It was thought that he might be able to come to Adelaide as well and possibly, from the mother’s perspective, undergo a course of drug rehabilitation. 

24. That did not occur, and the father has lived in (omitted) for some time now.  It is his case that he instituted these proceedings out of desperation because he had not seen X for some time.  It is his perception that the mother is difficult to deal with about issues to do with X. 

25. It is the mother’s case that she is not unreasonable and has no great animus against Mr Boyd, but rather she is focused on what she perceives to be X’s best interests.  It is her case that because she has provided in recent times more of X’s care than has Mr Boyd, she has more insight into X’s emotional and developmental needs. 

26. It is Ms Owen’s position that she has to work to support X.  She does not receive any great amount of child support from Mr Boyd.  That may be because he does not have any great income because he receives a disability pension, or something like that, as a consequence of his military service.

27. But from the father’s perspective he is concerned that X spends a lot of time in day care.  That in this day and age cannot be regarded as being unusual.  But in those circumstances he contends that as a loving parent he is better placed than childcare to provide day-to-day care for X than a professional helper. 

28. That is in essence the background to the orders of 30 September 2014.  From the mother’s perspective she wanted X to spend time with his father.  It is her case that she accepts that X needs to know his dad and have a loving relationship with him. 

29. But it is her case that she has concerns about Mr Boyd, which relate both to her experience of him prior to his enlistment in the armed forces, and particularly her experience of him after his discharge.  Those concerns are supported by what information she has received from the military authorities. 

30. It is her case that she wished there to be some focus on protective concerns for X.  In that context she advocated that there be supervised time.  She thought that would be good for X as well because no doubt it was her view that doting grandparents would provide a loving environment for this little boy.

31. But she also wanted there to be some mechanism to test Mr Boyd for drugs and there was an order to that effect.  After the first aborted Family Dispute Resolution Conference another was arranged.  Mr Boyd was able to attend this appointment by telephone and Ms Owen apparently attended in person with Family Consultant Mr P.  The conference took place about six weeks ago or so on 23 February 2015.

32. At that time both parties said that the regime of weekend time was working well for X, although he got tired if he had to travel back to (omitted).  As the parties know it is a not insignificant drive between Adelaide and (omitted).  I think it is about six hours, but it may be more, it may be less, depending on the road. 

33. It is not an easy drive by any means.  Ms Owen also indicated to Mr P that she was open to X spending time with his father in Adelaide but she wanted – or at other times – but she stood by the drug test requirement.

34. It is Mr Boyd’s position, as advocated today and to Family Consultant Mr P, that there is no need for the supervision of his parents to be continued.  That really is, I think, the bone of contention today.  It is Mr Boyd’s position that he bridles under any suggestion that his time with his son needs to be supervised.  He resents it deeply.  It is his position that he agreed to the orders of 30 September 2014 effectively under sufferance because if he did not agree there might not be any time.  For all I know that may be the case.

35. It is against that background that Mr Boyd has advocated his current proposal; that is two weeks with the mother with X, and then one week with him.  Mr P was not in favour of such a regime.  He did not think that it was likely to be an arrangement suitable for a child of X’s age. 

36. He reports that he gave each of parties a brief explanation of the developmental needs of a child of X’s age.  It is likely, I think, to be the case that X will have an undeveloped sense of time and from his perspective seven days away from the person who provides his primary source of emotional sustenance is a very long time indeed.

37. No doubt it was Mr P’s position that X was not likely to have a cognitive understanding of how long a week was.  In addition for the reasons I have outlined, the parties do not have an empathetic or trusting relationship with one another. 

38. To the contrary their relationship is strained and poor indeed.  That is likely to be a further factor which militates against such a regime.  I can understand why Mr Boyd proposes it given the significant logistical difficulties which arise in the case. 

39. However, it seems to be the position that he agreed, albeit with reluctance, that Ms Owen and Mr Boyd could relocate from Brisbane to Adelaide.  He was not able to follow.  He is now living in (omitted).

40. As I have explained, I think in the past I have no obvious solutions to the logistical difficulties which arise in this case, the major one of which is that the parties live a very significant distance apart and that they are the parents of a child of tender years. 

41. In terms of where he saw the matter going, Mr P alluded to the drug screen test regime.  From the mother’s perspective that regime is a non-negotiable safety net for Mr Boyd.  There have apparently been two such tests.  The first sample was provided by Mr Boyd some six days late I think. 

42. I agree with the submission of Ms Owen’s counsel that a late test result is to all intents and purposes meaningless.  It is I think well-known that some illicit substances are metabolised by the body quickly, depending on the substance concerned, and that if a drug screen test is to have any currency at all it must occur quickly. 

43. I think it is also an inference which can be drawn when a test is answered later, that it is done so for the reason that doing it earlier would reveal some illicit substance.  At any event I discount the first such test.

44. The second test was positive for amphetamines.  That, I think, is a different drug to that which the mother was primarily concerned about.  Her major concern was synthetic opiates which are prescribed for pain relief.  However, as I say, it is her case that Mr Boyd has used a variety of illicit drugs during the period she has known him.  Mr Boyd is not in a position to deny the sample concerned.  It is his case that it was an isolated incident which relates to him attending a party.  He minimises his use of amphetamines. 

45. I am not in a position to accord him a great deal of leniency in respect of such a matter which has implications, I think implicitly, for the welfare of a child of X’s age.  So at this stage the fact remains that, from my perspective and indeed from the perspective of the mother, question marks remain about Mr Boyd’s drug use. 

46. It is also the mother’s position that the involvement of the paternal grandparents remains a safety net which she requires.  There was an incident which arose at X’s day care when Mr Boyd wished to collect the child in the absence of his parents.  It seems this caused an unpleasant altercation.

47. Mr Boyd may resent the condition, but he agreed to it and it was an order of the Court which has not been changed.  He is bound by the condition.  It is a significant one.  He wants the mother’s accommodation so far as him extending his relationship with X is concerned. 

48. It is my view it is incumbent upon him to be aware of the need for reciprocity.  He is not likely to get any accommodation from the mother if he attempts to frustrate or disobey orders to which he agreed and get any latitude or accommodation from the mother. 

49. It is the submission of counsel for the mother, Ms Lewis, that Mr Boyd perhaps has displayed a lack of insight into the needs of this little boy and the needs of his primary carer.  Whether that is so or not, I am not in a position to make a definitive finding at this stage.  But the matter causes me some concern. 

50. It is Mr Boyd’s position that his parents find the requirement to supervise the time onerous.  I can understand why that would be so.  With the advent of the football season I am told that they will not be able to supervise the time any further. 

51. Notwithstanding Mr P’s view, that a week away from his mother would not be in X’s best interests, Mr Boyd advocates for that outcome.  Again, Ms Lewis submits that that shows some lack of insight on his part. 

52. There have also been two conciliation conferences in respect of the property application initiated by the mother.  At the first mention of the matter on 30 September the parties were referred to a conference on 4 December 2014.  At that stage that order was made in the presence of each of the parties’ legal representatives.  The conference was not successful and the Registrar aborted it because there were no documents or financial statement filed.  The father’s solicitor attended that conference by telephone.

53. Against that background, on 15 December 2014 a further conference was convened for 25 February 2015 at 9.15am.  Again that order was made in the presence of the solicitors for each of the parties. 

54. It is in the parties’ best interests wherever possible to see if they can settle financial matters through a process of conciliation.  It is a significant resource that the court offers in the form of conciliation conferences for that to occur. 

55. In addition, the court relies on the efforts of legal practitioners who are officers of the Court to do whatever they can to make these conferences useful not only for their clients but also for the community generally.  There are many delays in respect of Family Law proceedings and there are many calls on the resources of the Court. 

56. The second hearing did not proceed either.  The father did not attend that hearing.  It is his position that he woke up and felt unwell.  That may be so.  He has not provided a formal medical certificate to that effect.  Rather he asserts he was suffering from the ‘man flu’.  That appears in an affidavit which he has filed.  The expression appears in inverted commas, and Ms Gray, who drafted the affidavit, says it is her client’s expression. 

57. Well, that may be so, but, as I indicated to Ms Gray, it is not a condition known to medical orthodoxy.  These proceedings are serious.  They have serious implications for the parties.  They have serious financial implications. 

58. Against this background of delay, the mother seeks an award of costs in her favour in the sum of $1,600 for both conciliation conferences, which, in her view, have been wasted, and that is the fee of her counsel and Ms Lewis, who was briefed to attend. 

59. Ms Gray, who appears for Mr Boyd today and appeared for him at each of the conferences concerned, resists that application.  It is her position that at the first conference her client said my compensation payment is sacrosanct, and that is it.  Apparently, some other offer was made. 

60. I am not entitled to know what the settlement negotiations of the parties were, however, from the mother’s perspective, the father has threatened, in a throwaway posted online, that he has money available and he will grind her down, effectively, through court proceedings.  A not uncommon threat, regrettably, in proceedings of this kind.  There is no trust between these parties. 

61. The obligations of the parties in property proceedings before this court are well known.  There is a duty to make full and frank disclosure.  That obligation arises not only as a result of the application of the court’s rules, which are readily available, and should be well known to all legal practitioners who practice in the jurisdiction, but also as a consequence of the application of the law. 

1. It is always of concern when there are issues of nondisclosure or inadequate disclosure.  The obligations of the parties are well-known, and they are also obliged to attend at conciliation conferences, particularly when the order for the second conference was made with the acquiescence of each of the parties concerned. 

2. Ms Gray, who appears for Mr Boyd, reminds me of the provisions contained in section 117 of the Family Law Act 1975 (Cth). It is ordinarily the position that parties in proceedings under the Act should bear their own costs.

3. However, the court has a discretion to make an award of costs if it is of the opinion that there are circumstances that justify it in so doing. That discretion is one which is controlled by the various matters outlined in section 117(2)(a). I am required to consider a number of matters, including the financial circumstances of each of the parties.

4. In this case, Ms Owen is in employment.  She has responsibilities for childcare for X.  She earns a modest income of about $52,000 or so per year.  It is her evidence that her expenditure exceeds her income by $6.  So she is keeping the wolf from the door.  She receives some government benefits.  She does not receive any child support from Mr Boyd. 

5. On any view, she is not in a strong financial position.  I accept that Mr Boyd is similarly not in a strong financial position.  He is receiving a pension.  Neither party, I have been advised, is in the receipt of Legal Aid, but I may be wrong about that. 

6. Significantly, I am entitled to look at the conduct of the parties to the proceedings, and whether the neglect or omission of a party has led to the other party incurring unnecessary costs.  In this case, there have been two conciliation conferences which have had little or no utility.  That is a significant matter. 

7. I have come to the conclusion that there should be an award of costs, and I propose making an award of costs in Ms Owen’s favour, not in the amount she seeks, in recognition of Mr Boyd’s financial circumstances, but of a significant amount, and I propose that there be an award of costs in the sum of $800, which is to be payable within 28 days of today’s date. 

8. Returning to the issue of what should be the order, if any, in respect of X, in this, as in all matters to do with children, the best interests of X are the paramount or most important consideration.  At this stage, I have limited evidence regarding X’s level of relationship with each of his parents. 

9. To remedy that deficit, I have ordered that a Family Report be prepared.  That is to be released on or before the end of June of this year.  That will be a significant document.  I do not have that report as yet. 

10. I have to consider a number of matters outlined in the Family Law Act at section 60CC, which are germane to X’s best interests. There are two categories of matter: primary considerations, and a longer list of additional considerations.

11. There are two primary considerations.  Firstly, the benefits X is likely to derive from having a meaningful level of relationship with both of his parents.  Secondly, the need to protect X from being exposed to physical or psychological harm as a consequence of being subjected to or exposed to abuse, neglect, or family violence. 

12. As a consequence of the insertion of section 60CC(2)(a) into the Act, I am directed to give greater consideration to the protective concerns relating to the child.

13. The father’s case is that X will benefit from having a meaningful level of relationship with him, and at present the fortnightly time is just not sufficient for the child to have a meaningful level of relationship.  The mother focuses on protective concerns for the child.  As I say, I am directed to give pre-eminence to those protective concerns. 

14. In this case, I am concerned about the history of compliance with the drug regime.  I am also concerned that in this difficult case, given X’s tender years, it is likely to be premature to relax the supervisory concerns in this matter. 

15. It seems to me that there are many, many difficulties in this case, but Ms Owen is X’s primary custodian.  In that context, I must give some consideration to how she will cope if she perceives that the court has acted in a cavalier fashion so far as X is concerned. 

16. She is likely to be anxious, I think, particularly given there has been a recent positive drug-screen test for amphetamines.  I am sympathetic to the difficulty that the paternal grandparents have.  However, Ms Owen came to Adelaide with Mr Boyd’s consent, albeit that consent, perhaps, was reluctantly given. 

17. I think in all these circumstances, I must proceed in a cautious way, particularly given that in a comparatively short period of time, there will be a Family Report.  That report will be utilised in conjunction with a final hearing on 16 and 17 November. 

18. It is my impression, which I concede may be wrong, that Mr Boyd has made an ambit claim.  He bridles under the suggestion that his time with the child needs to be supervised.  I can understand why he resents it.  But it does not assist his case that he has not easily complied with drug-screen tests, that the property proceedings have not gone particularly smoothly, and that there has been an incident at day care. 

19. In my view, given what Mr P has said, the current regime is likely to be at the upper end of what a child of X’s age can, perhaps, accommodate, particularly given that there is little love lost between the parties. 

20. This is not a case where the presumption of equal shared parental responsibility should be applied.  In my view, it is rebutted by issues of family violence. Therefore, there is no obligation for the court to consider either equal time or substantial and significant time. In any event, I do not think that such a regime would be in the best interests of the child.  Certainly, it would not be reasonably practicable to put into effect.

21. In all these circumstances, I think that I have no alternative other than to dismiss the Application in a Case. It is conceded that the Monday time has never occurred. For that reason, I will amend the order that was made on 30 September so that the time will conclude each Sunday at 6.00pm.

22. But out of deference to Mr Boyd’s concerns, and as no doubt, he will be aggrieved by these reasons for judgment, I will revisit the matter when the Family Report is to hand, and to that end, I will list the matter for further directions at 9.30am on 24 July 2015.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  2 December 2015