Burnet and Lysett
[2018] FamCA 1104
•12 December 2018
FAMILY COURT OF AUSTRALIA
| BURNET & LYSETT | [2018] FamCA 1104 |
| FAMILY LAW – CHILDREN – RELOCATION – Undefended Hearing – Where the mother seeks to relocate with the child to the United Kingdom – Where the father has not engaged in the proceedings – Where the mother’s parenting capacity would likely improve due to family and financial support if relocation was permitted – Where the mother has facilitated a relationship between the child and father to date – Where the mother is permitted to relocate to the United Kingdom with the child – Where the child is to spend time and communicate with the father as may be agreed with the mother from time to time – Where the parties are to exercise equal shared parental responsibility. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 Malcolm & Munro (2011) FLC 93-460 Morgan & Miles (2007) FLC 93-343 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Ms Burnet |
| RESPONDENT: | Mr Lysett |
| FILE NUMBER: | TVC | 748 | of | 2018 |
| DATE DELIVERED: | 12 December 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 December 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The Mother and the Father have equal shared parental responsibility for decisions concerning the long-term care, welfare and development of the child, X born … 2015 (“the child”).
The child is to live with the Mother.
The Mother be permitted to relocate with the child to the United Kingdom.
The Father spend time and communicate with the child as may be agreed with the Mother from time to time, and in circumstances (including any supervision of the father’s time) as may be agreed with the Mother from time to time.
Otherwise all extant Applications be dismissed and the matter be 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 Burnet & Lysett 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: TVC 748 of 2018
| Ms Burnet |
Applicant
And
| Mr Lysett |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the appropriate parenting orders for the child X, born in 2015, and hence presently three years of age (“the child”). By her amended initiating application filed 24 October 2018, Ms Burnet (“the mother”) seeks orders, in substance, that she have equal shared parental responsibility for the child with Mr Lysett (“the father”) and that the child should live with her, that she be permitted to relocate with the child to the United Kingdom, and that the father spend time and communicate with the child as may be agreed between the parties from time to time, including any requirement for supervision as may be agreed with the mother from time to time.
The mother served the original Initiating Application upon the father and has served an Amended Initiating Application upon him as well, however he has chosen, for reasons which are not immediately apparent, not to engage in the litigation in any form whatsoever. On 15 October 2018, I directed that unless before 4 pm on Wednesday 5 December 2018, the father made, filed and served a Response and an affidavit setting out his evidence, that the proceedings would be listed for an undefended hearing today, and as it transpires, the father has neither filed a Response nor filed an affidavit, nor chosen to avail himself of the opportunity to attend by telephone today to be heard in relation to the mother’s application. I therefore have proceeded to hear the matter on an undefended basis. These are my reasons for judgment arising from that undefended hearing.
Background Facts
The mother was born in the United Kingdom in 1987, and hence is presently 31 years of age. She travelled to Australia in about 2010 and shortly thereafter, met the father and commenced a relationship with him. It appears as though she was at the time residing on B Town, and the father residing in C Town, and the relationship initially proceeded as a long distance one.
The father was born in Australia in 1985, and hence is presently 33 years of age. I know little of his background, save that it appears as though for most, if not all, of his adult life, he has been an itinerant worker and from time to time his employment has seen him move about principally North Queensland, but also perhaps other areas of Australia, seeking and engaged in work.
It seems that he was engaged as some kind of work in 2010 when he met the mother. He was at that point living in C Town. In December 2012, the mother relocated from B Town to C Town and commenced living with the respondent and continued to cohabit with him, albeit in a variety of locations, until February 2017, when the relationship permanently terminated. During the course of the relationship, as I have indicated, the child was born in 2015. It is sad to relate that the parties’ relationship was characterised by the father’s drug use or abuse, excessive alcohol consumption and his perpetration of domestic violence upon the mother. Those are matters to which I will return in due course.
Since the parties separated in 2017, to her credit the mother has remained willing and, indeed, on occasions, enthusiastic, to continue the connection between the father and the child. For instance, she has regularly travelled at her own expense with the child to make him available to spend time with the father, and has on other occasions made the child available, and supervised the father’s time with the child, when the father has travelled to do so. Indeed, it may be said that this case is unusual, even accepting that it is proceeding on an undefended basis, in that the mother has actively sought to facilitate the continuation of the relationship between the father and the child consistent with her belief that such a relationship presently is, and in the future will be, an important one to the child.
I say that that is an unusual characteristic, as frequently in international relocation cases, parties seems to think that it is to their advantage to seek to terminate, or at least minimise, the relationship between the other parent and the child, perhaps from some mistaken view that the lack of relationship may assist them in their relocation ambition. This is not such a case. This is a case where plainly the mother has been at pains to facilitate the relationship between the father and the child, and acknowledges the benefit of it, and intends for it to continue.
However, for present purposes, suffice to say that the mother not only has facilitated that time, but intends in the future, if relocation is permitted, to continue to make the child available to the father and to facilitate the relationship. As to that, the father has continued to regularly spend time with the child, indeed even in the last fortnight, and has on several occasions, as deposed to by the mother in her affidavit, indicated that if the mother is to relocate to the United Kingdom, he will follow her, so as to maintain a relationship with the child. There may be other reasons why the father wishes to relocate to the United Kingdom, but certainly he himself identifies that maintaining a relationship with the child is important. The mother says, and there is no reason to doubt, that she supports the father’s move to the United Kingdom, so as the child can maintain a relationship with him.
As at the date of the hearing before me, the mother is employed in D Town. The father remains engaged employed in C Town. It is the mother’s intention to relocate to the United Kingdom in July of 2019. I know little of the child, but that is scarcely surprising, as he is only three years of age.
Relevant Statutory Provisions and Legal Principles
The statutory regime
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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 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. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
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.
Relocation
The application of these provisions in the context of relocation cases has been discussed by many authorities. In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:
79. “In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[2]
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[3] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[2] U v U (2002) FLC 93-112, at [92].
[3]See, for example, the comments of Kirby J in AMS v AIF; AIF v AMS (1999) FLC 92-852, at [77]–[78].
Section 60CC Considerations
Turning firstly to the primary considerations, I am satisfied that the child would benefit from having a meaningful relationship with both of his parents, so long as his experience of that relationship is a safe one. The mother identifies that the child would benefit from such a meaningful relationship with the father, and implicitly the father concedes vice versa. I am therefore well satisfied that the child would benefit from having a meaningful relationship with both the mother and the father.
Turning to the second primary consideration, I identify that here there is a risk to the child of physical or psychological harm if he were to be exposed to family violence in the father’s presence, or neglect if in the father’s care. The father, unfortunately, has it seems, some propensity to family violence, including physical violence, but at least during the course of the relationship extending to family violence comprising, for instance, threats to suicide. I am well satisfied that the father has some tendency towards family violence when interacting with domestic partners, and perhaps others.
There is therefore a plain need on the evidence before me to protect the child from any exposure to family violence when in the presence of the father. Whilst it is not said, as I understand the material, that the father has ever posed a risk of direct abuse to the child, plainly his alcohol and drug abuse would pose risks to the child of neglect, and perhaps physical harm if the father were to have the unsupervised care of the child whilst under the influence of drugs or alcohol. The mother has recognised the need to protect the child from those risks by, firstly, insisting, on occasion, that the child’s time with the father being supervised, and secondly, on other occasions when she has agreed to the child not being supervised when with the father, satisfying herself prior to the child going into the father’s unsupervised care that the father was not then under the influence of drugs or alcohol. However, plainly there needs to be an ongoing regime which would enable the child to be protected from the risks which the father poses as I have identified.
I then turn to the additional considerations. The child is too young to express any views. I have little information as to the nature of the relationship of the child with persons other than his parents. The father on occasions has failed to engage in decision-making in relation to the child and has, on occasion, not availed himself of opportunities to spend time or communicate with the child. The conclusion which I draw from that is that the father’s drug and alcohol abuse, and perhaps underlying personality vulnerabilities, has caused him not to engage to the extent which he might otherwise have done with the child. Whether that continues in the future remains to be seen.
Turning then to the obligations to maintain the child, sadly it appears as though the father has contributed not one penny towards the costs of maintaining the child - at least since separation. Indeed, it appears as though during the course of the relationship, the mother was primarily supporting the father. Precisely why it is that the father is unwilling or unable to contribute to the maintenance of the child is unclear, but suffice to say that it reflects badly upon him.
The mother proposes to relocate with the child to the United Kingdom and that, of course, is a significant change to the child’s circumstances. However, the father indicates that he proposes to also relocate. I have little evidence as to the child’s relationships with other persons. It appears as though at least his paternal grandmother lives in North Queensland, but I have little information as to the importance of that relationship to the child at this point in time, or indeed, the desire of the grandmother to engage with the child in the future.
Unless the father also relocates to the United Kingdom as he says he intends to do, there will be practical difficulty and expense in the child spending time with and communicating with him. However, as I have indicated, the father says, and there is no reason to doubt his statements, that he will also relocate to the United Kingdom.
The capacity of the father to provide for the needs of the child, including his emotional and intellectual needs, is under a significant cloud, not only because of the father’s drug and alcohol abuse and his propensity to domestic violence, but also because that is what the father has shown in his engagement with the child post-separation.
That, of course, also reflects upon the father’s attitude to the child and his attitude to the responsibility of parenthood. It has to be said that the mother has demonstrated an exemplary attitude towards her responsibilities to parenthood, including fostering the relationship between the father and the child, but unfortunately, the same cannot be said of the father.
I have already indicated that there has been family violence between the mother and father, and family violence orders have applied from time to time. I am satisfied that the inference I should draw from that is that the father is prone to domestic violence in intimate relationships, perhaps associated with his drug and alcohol use or abuse from time to time.
It would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child. I cannot identify any other fact or circumstance which is relevant beyond those which I have already discussed.
Parental Responsibility
Although there are reasonable grounds to believe that there has been family violence between the parties, such that the presumption of equal shared parental responsibility is displaced, the mother expressly seeks an order for equal shared parental responsibility. She does so in somewhat unusual circumstances. Initially, and quite understandably, she sought orders for sole parental responsibility, in view of the father’s domestic violence and his lack of engagement from time to time with the child. However, in her affidavit filed 24 October, she explained the reason for her change of heart, namely, that an order for equal shared parental responsibility, on her researches, will assist the father in being able to obtain a species of visa for entry into the United Kingdom, which would enable him to stay there for at least some years.
Whilst ordinarily in circumstances such as this case, the mother would have little difficulty in persuading me to order sole parental responsibility, in the unique circumstances she has identified, I am satisfied that it is in the best interests of this child for the father to have the benefit of a visa which will enable him to enter the United Kingdom for some period of time beyond that which an ordinary visitor’s visa would avail him of. That will enable him to continue to have an involvement in the child’s life and hopefully, in due course develop a truly meaningful relationship with the child in that country.
With Whom should the child live
The only candidate for residence of the child is the mother. As I have indicated, the father has chosen to not engage in these proceedings. It would be impossible to contemplate the child now living with the father. Post-separation, he has never done so. The father does not seek such an order. His employment apparently requires him to move about the country, and his hours of work appear to be long, or at least sometimes long and otherwise variable. He has never been able to demonstrate that he is capable of primary care of a child. There is simply no other practical option, and it is in the child’s interests, for the child to live with the mother. There will, therefore, be an order to that effect.
Relocation
The mother seeks to be permitted to relocate with the child to the United Kingdom. The father has not engaged in these proceedings, although he is well-aware of the mother’s intention. The mother’s evidence is that the father has agreed to the child’s international relocation, and intends to relocate himself. The mother has no family support in Australia and limited other supports. All of her family reside in the United Kingdom. She is desirous of having the benefit of that family support and identifies that she wishes to live in the United Kingdom.
She, of course, has a right to live wherever in the world she so chooses, subject to relevant domestic law. I am satisfied that the mother’s supports in the United Kingdom are likely to be of great benefit for her, that there is a good prospect that she may, indeed, have improved financial circumstances in the United Kingdom, and that therefore it would likely improve her parenting capacity if she were permitted to relocate to the United Kingdom. That is no criticism of her present parenting capacity, which appears to be at an exemplary level, but rather that she will feel less constrained and more supported if she is able to live in the United Kingdom. I am therefore satisfied that this is a case where the mother should be permitted to relocate with the child to the United Kingdom.
Father’s time and communication with the child
The father does not propose any regime under which he would spend time or communicate with the child. To date there apparently has never been any such regime ordered, but rather it has been dependent upon the mother’s good graces to communicate with the father, and to make the child available from time to time at places and on occasions which suit the father’s convenience. In substance, what the mother seeks is permission for that regime to continue. It is, as I say, a regime that has been positively fostered by her to date and appears to be working, notwithstanding the somewhat considerable challenges of distance between the parties’ respective residences.
I am satisfied that firstly, this is not a case where it is presently possible to articulate a formula for the father spending time with and communicating with the child, but secondly, that the mother’s demonstrated history of making the child available for time and communication with the father shows that she can be relied upon to act responsibly to continue to facilitate the relationship between them. There is no suggestion that she has been stingy with time, or that she has been playing games with the father, or seeking to exchange making the child available for time, with the father meeting his obligations for child support or otherwise contributing to the maintenance of the child.
This is, therefore, a case where I am well satisfied that the mother can be trusted with responsibility of agreeing with the father from time to time to make the child available to spend time with him and communicate with him, whether in Australia or in the United Kingdom. I am particularly impressed by the mother’s cognisance of the need to either ensure that the father’s time with the child be supervised, or alternatively, to conduct rudimentary observations and inquiries to satisfy herself that the father, at the time that the child is going into his care, does not present a risk of harm from either alcohol or drug abuse.
I am therefore satisfied that the mother should be trusted with responsibility to require supervision of the father’s time, should that be her judgement at the time. There will therefore be an order which enables the father to spend time and communicate with the child as may be agreed between the parties from time to time, and in circumstances, including any supervision of the father’s time, as may be agreed between the parties.
OTHER MATTERS
By paragraph 4 of her amended initiating application filed 24 October 2018, the mother also sought an order that, in the event of her death, the child reside with his aunt, Ms E. In submissions, the mother conceded that her material did not sufficiently cover this issue. I am not persuaded that, on the material before me, such an order could be made, or even if it could be made, that it would at this point in time be in the child’s best interests. Simply, there is a deficiency in material before me. I decline to make any such order.
Conclusion
For these reasons, there would be orders as I have discussed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 December 2018.
Associate:
Date: 12 December 2018
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