Brice and Brice

[2017] FamCA 85

FAMILY COURT OF AUSTRALIA

BRICE & BRICE [2017] FamCA 85

FAMILY LAW – CHILDREN – With whom the children spend time with – where mother and father equally contribute to costs of fathers travel – where children spend time with father in Queensland – where children spend time with father in Europe – where father restrained from commencing proceedings relating to the children or their living arrangements in any Country E court – where mother believes father poses an unacceptable risk of retaining the children in Europe – where there is ongoing conflict between the parents

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Evidence Act 1995 (Cth) s 140

K v R (1997) 22 FamLR 592
M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & holdings Pty Ltd (1992) 67 ALJR 170
Re W (sex abuse – standard of proof) [2004] FamCA 768
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr Brice

RESPONDENT: Ms Brice

FILE NUMBER: CSC 329 of 2007

DATE DELIVERED: 23 February 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 7 December 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. All previous parenting orders relating to C born … 2000 and D born … 2001 (“the children”) spending time with the father be discharged.

2. The children spend time with the father in the 2017 Queensland Easter school holidays within 200km of F Town as follows:

   (a)From 9:00am to 5:00pm on each of Saturday 1 April 2017 and Monday 3 April 2017;

   (b)From 9:00am Wednesday 5 April 2017 until 9:00am Thursday 6 April 2017;

   (c)From 9:00am Friday 7 April 2017 until 9:00am Saturday 8 April 2017;

   (d)From 9:00am Monday 10 April 2017 until 12:00pm Saturday 15 April 2017.

3. For the purposes of the children spending time with the father under Order 2:

   (a)The mother and father shall each equally contribute to the costs of the father’s return economy class airfares to and from Australia;

   (b)The mother shall meet the father’s reasonable costs of accommodation from 31 March 2017 until 15 April 2017 at H Town, such accommodation comprising three bedrooms and being of a standard suitable to house the children in a comfortable environment and manner.

4. Providing the father spends time with the children substantially as provided for in Order 2 hereof, then commencing in the 2017 Queensland mid-year school vacation and thereafter, the children are to spend time with the father in Europe as follows:

   (a)For all of the mid-year school holidays;

   (b)For the first half of the Queensland Christmas school holidays in even numbered years; and

   (c)For the second half of the Queensland Christmas holidays in odd numbered years.

5. The father is hereby restrained from commencing proceedings relating to the children or their living arrangements in any Country E court.

6. For the purposes of the children spending time with the father under Order 4, the mother and father shall each equally contribute to the cost of the children’s return airfares to Europe.

7. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC329/2007

Mr Brice

Applicant

And

Ms Brice

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to two of the parties’ three children, being C (born in 2000 and hence presently 16 years of age) and D (born in 2001 and hence presently 15 years of age) (“the children”).  As ultimately distilled, the issue in dispute between their parents is very narrow.  Mr Brice (“the father”) seeks orders that the children spend their school holidays with him in Europe; Ms Brice (“the mother”) with whom, pursuant to orders made in the Federal Magistrates Court in 2007, the children live, opposes that, and says that any holiday time with the children should be spent in Australia.  She justifies her position on the basis that the father presents an unacceptable risk of retaining the children in Europe.

BACKGROUND FACTS

The parties

1. The father was born in Europe on 22 June 1960, and hence is presently 56 years of age.  He is a a professional.  The mother was born in Europe on 25 February 1967, and hence is presently 49 years of age.  She is a health care professional.  They commenced a relationship in 1992 in Europe, and married there in 1995.  Their three children (being the two children the subject of these proceedings and their elder brother, Mr B, who is aged 20) were all born in Europe.

2. The family moved to Australia in May 2005 but separated in December of that year.  Initially the parties remained living in Australia.

3. The mother commenced a new relationship, in which she remains, in January 2006.  On 20 January 2006, the father removed the children from Australia to Europe without the mother’s consent.  Litigation ensued in Europe pursuant to the Hague Convention.  In February 2006 a District Court in Europe ordered the return of the children to Australia, which was confirmed by a subsequent unsuccessful appeal which the father brought in the Supreme Court of City I.

4. It appears as though the father then returned, together with the children, to Australia.

5. Litigation here then ensued.  Ultimately final orders were made in the Federal Magistrates Court on 6 July 2007 which provided that the mother have sole parental responsibility, and that the children should live with her and spend time with the father.  However the father subsequently relocated back to Europe.

6. In October 2008 the father sought to spend time with the children in Australia, and did so.  He also spent time with the children on Christmas Day in 2008, but unfortunately when he returned the children to the mother’s home, was involved in a physical altercation with the mother’s partner.

7. Thereafter, it appears the father remained living in Australia and intermittently spending time with the children, until July 2011 when he again returned to Europe.  Later that year he commenced a relationship with his present partner, and he currently resides with her and her son in City I.

8. Unfortunately the parties remained in conflict thereafter.  The father commenced proceedings seeking to have the children live with him in Europe, but Benjamin J determined that there was an insufficient change in circumstance to justify re-litigation in relation to the residence of the children.  Notwithstanding that ruling, the father persisted in his attempts to litigate that issue, although ultimately relented.  The litigation then became focussed upon the circumstances in which the children should spend time with the father, including when and where.

9. On 3 December 2015, I made interim orders which provided for the children to spend time with the father in Australia in the forthcoming Christmas holidays.  However the father did not avail himself of those orders; he says that was because he could not afford to.

10. At the time of the trial before me in December 2016, the mother remained living in North Queensland with her partner and the children.  Mr B is studying interstate, but it appears as though he otherwise lives in the mother’s household.  The mother remains working as a health professional, earning a considerable income.

11. The father remains living in Europe with his partner and her son.  He remains working as a professional.

THE ISSUES

1. At the Trial Management Hearing prior to the trial, I identified the following as the issues in the litigation, in that they are likely to substantially inform the determination of the proceedings.

   1.What is the nature of the children’s relationship with each parent.

   2.Would the children benefit from a meaningful relationship with the father, and if so, how might it best be facilitated.

   3.What, if any, risks of harm does the father pose to the children if he spends time with the children in Europe or Australia.

   4.Is it reasonably practicable for the children to spend block holiday time with the father in Europe or Australia.

   5.Would the mother facilitate the children having a meaningful relationship with the father.

2. Once I have discussed the relevant statutory provisions and legal principles, I shall address those issues in advance of a traverse of any unaddressed relevant s 60CC factors, and then consider the appropriate orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

3. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal.  Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases.  

4. Therefore consistent with s 140(2), in taking into account the gravity of the mother’s allegations against the father, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

NATURE OF RELATIONSHIP BETWEEN CHILDREN AND PARENTS

1. The unchallenged evidence of Ms J, the Family Report writer in this matter, is that the children have a positive relationship with their mother, but are somewhat estranged from their father.  However she said that both children reported wanting to see the father in Europe, and neither perceived that there was a risk of the father retaining them there, or otherwise a risk to their safety in his care.  They both expressed a willingness to participate and engage in a relationship with the father.

2. I accept that evidence and give it weight.

BENEFIT TO CHILDREN FROM MEANINGFUL RELATIONSHIP WITH FATHER

1. Again Ms J’s evidence was unchallenged.  She said that research shows that children benefit from a relationship with both parents, and indeed both children expressed a wish to have such a relationship.  She said it would be best facilitated by the children going to Europe, as in this case the father asserts that he is not able to fund travel to Australia.  She pointed out that the children had travelled to Europe in the past to see the maternal family, and thought that it might be possible to use them to “scaffold” the re-introduction of the children to the father.  She thought the preferred option for re-introduction would be for the father to spend time during the day with the children close to the maternal grandparents’ home (where the children would, ideally, be staying) in order to re-start their relationship.  She thought that after some periods of day time, it should extend to overnight time.  A practical difficulty however is that the maternal grandparents live in City K, but the father in City I.  By fast train that is about apparently a one and a half hour journey.

2. She then contemplated once the children had been re-introduced, that the best means of facilitating and maintain the relationship would be for the children to spend regular face-to-face time with the father, and to remain in regular communication with him when they were not.  She said that would enable them to maintain a strong connection with him. 

3. I accept that evidence and give it weight.

RISK OF HARM POSED BY FATHER

1. Although not the focus of either of the parties’ cases, Ms J highlighted that the greatest risk to the children was their exposure to ongoing conflict between the parents.  That said, she said that the children themselves identified no risk being posed to them by the father.

2. She identified that there is a risk if the children were to travel to Europe that they may be retained by the father, although the father denied that he would do so.

3. It is plain that in January 2006 the father did take the children to Europe without the mother’s consent.  He correctly asserts that in doing so he did not act contrary to any court order or other law.  He further says that it would be physically impossible to retain children of this age in Europe against their wishes, and in any event indicated that he had no intention of commencing proceedings in Europe in relation to the children while they were there.

1. It is apparent that the mother is still enormously bitter about the father having taken the children to Europe in 2006 without her consent, and the fact that he opposed their return not only in the primary hearing, but unsuccessfully on appeal.  It appears as though this occasioned her considerable expense, and she perceived that the father was seeking to control her and leave her fresh relationship and return to Europe.  She may or may not be correct in that, but my role is not to dwell upon the past, but to assess future risk.

2. I assess the risk of the father retaining the children in Europe as low.  If he did so, not only would there obviously be remedies to the mother under the Hague Convention, but the father did not oppose an anti-suit injunction being ordered to restrain him from commencing proceedings in relation to the children in Europe whilst they are there.

3. I am not persuaded that the father is an unacceptable risk of retention of the children in Europe.

IS IT REASONABLY PRACTICABLE FOR CHILDREN TO HOLIDAY WITH FATHER

1. The mother did not cross-examine the father as to his alleged incapacity to fund his own travel to Australia.  Inferentially she challenged it however, pointing out that he lives in a large home and contends that he is successful.  However there is no direct evidence as to his finances.  Moreover, I am conscious that although the father had the benefit of orders enabling him to spend time with the children in the last Christmas holidays in Australia, he did not do so.

2. To this the mother countered that she would be willing to pay 50 per cent of the father’s airfares to Australia, and to meet his accommodation costs for two weeks at a hotel in H Town.  She said she would do that either in the forthcoming Christmas holidays or during Easter, if it was on too short notice.  She said that thereafter the father should pay for his travel to Australia.

3. That relatively generous offer persuades me that it is reasonable practicable for the children to spend two weeks of holiday time in the future with the father in Australia.  However the evidence does not permit me to conclude that thereafter it would be reasonably practicable for the father to do so.

4. On the other hand plainly the mother has the means to fund airfares for the children to travel to Europe to spend time with their father; she has done it in the past for the children to spend time with the maternal family.  They are of an age where they can travel independently.

5. For her part, Ms J identified that the children do not wish to spend all of their holidays with the father in Europe, as they engage in activities in Australia during those periods as well.  For example C has a hobby of keeping bees and wants to get a job to purchase a car so that he can get his provisional licence.  Plainly therefore, the children would be resistant to spending all of their holidays in Europe with the father, as he proposes.  However I am satisfied that it is reasonably practicable for the children to spend some block holiday time as proposed by the mother with the father in Australia, and that it would be reasonably practical for them to thereafter spend block holiday time with the father in Europe.

WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND FATHER

1. The unchallenged evidence of Ms J was that, post-separation, “the parents’ animosity towards each other has continued to grow.”  Further, she said that she was not confident that the mother was either willing or able to support a meaningful relationship between the children and the father, although it would be in the children’s best interests if she was able to.  She said that if both parents were to support the relationship between the children and the other, it would free up the children from feeling in a loyalty bind.  She thought that the strong relationship which the children have with the mother leads them to feel a sense of disloyalty when they are wanting to develop or maintain a good relationship with the father.

2. I am well satisfied that the mother would not facilitate a meaningful relationship between the children and the father.  She has shown no sign of doing so in the past, and there is no reason to think she will do so in the future.

SECTION 60CC CONSIDERATIONS

1. In discussing the issues I have already traversed both principal considerations, and a number of additional ones as well.  However I make the following further considerations.

2. The children have expressed the desire to spend time with their father in Europe.  They are mature and intelligent children and I give their wishes weight.

3. The mother contends that the father has not actively sought to engage in the children’s lives, for instance failing to avail himself of the Christmas time I ordered last year.  However I am satisfied that she has been quite resistant to the father having any engagement in the children’s lives, and each party is to blame for the present level of estrangement between the children and the father.

4. It appears as though the father pays little, if any, child support.

CHILDREN’S TIME WITH FATHER

1. The father no longer seeks orders in relation to parental responsibility or that the children live with him.  The issue in dispute is restricted to when and where the children should spend time with him.

2. The following points tell in favour of the children spending time with the father in Europe:

   ·The father does not present as an unacceptable risk of retaining them there;

   ·It likely presents the best opportunity for the children to re-establish a meaningful relationship with the father, and optimises the benefits which would flow from that;

   ·It is reasonably practicable for the children to spend some holiday time with the father there;

   ·It is likely the only way, during their childhood, that the children will be able to have a meaningful relationship with the father.

3. On the other hand the following points tell against the children spending time with the father in Europe:

   ·He did, in 2006, act unilaterally to remove the children from Australia;

   ·He presently has an estranged relationship with both of the children, and there needs to be a re-introduction that is safely managed, ideally by the children spending, initially, day time with him only.

4. Apparently Mr B was travelling to Europe over the 2016 Christmas period, and Ms J thought that that may provide an opportunity for the children to reside with maternal family and for the father to travel to spend day time with them for some period of time.  However unfortunately I was unable to conclude these reasons prior to those holidays.  Moreover it depended upon a number of matters well outside the capacity of the court to order; for instance whether the maternal grandparents would be prepared to have the children stay with them for that purpose.

5. The practical difficulty is how to now re-establish the children’s relationship with the father in a safe way, such that they can commence to spend over night time with him.

6. In my view, the appropriate way to do that is to have the father travel to Australia in the next school holidays (being Easter) as the mother proposes, with her contributing 50 per cent of his airfares, and 100 per cent of his accommodation for two weeks.  During the time that he is in Australia, the father should commence to spend day time with the children, but then move to overnight in the way that the orders I made on 3 December 2015 contemplated, with the father to spend the last week of those holidays with the children, including overnights.

7. However, thereafter the children should spend unsupervised block time with their father in Europe, comprising all of the mid-year holidays (commencing in 2017) and for one half of the Christmas school holidays.  Each party should contribute equally to the costs of those airfares.

8. Further, I am satisfied that the father should be restrained from commencing proceedings in relation to the children whilst they are in Europe.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.    

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 February 2017.

Associate:

Date: 23 February 2017