CARMODY and BRADDOCK
[2017] FCWA 33
•1 MARCH 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CARMODY and BRADDOCK [2017] FCWA 33
CORAM: DUNCANSON J
HEARD: 1 MARCH 2017
DELIVERED : 1 MARCH 2017
FILE NO/S: PTW 2922 of 2016
BETWEEN: MR CARMODY
Applicant
AND
MS BRADDOCK
Respondent
Catchwords:
CHILDREN - proceedings undefended - where mother seeks to relocate children [interstate] at a time of her choosing - where father has engaged in family violence - sole parental responsibility to mother - relocation permitted
COSTS - conduct - father wholly unsuccessful - costs ordered
Legislation:
Family Law Act 1975 (Cth) s 4AB, s 60CA, s 60CC, s 61DA, s 117
Category: Not Reportable
Representation:
Counsel:
Applicant: No Appearance
Respondent: Ms L Grey
Solicitors:
Applicant: Self-Represented Litigant
Respondent: Tolcon Legal
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern five year old [Child A] and four year old [Child B]. They are the children of [Mr Carmody] (“the father”) and [Ms Braddock] (“the mother”).
2The children live with the mother. Currently they do not spend time with the father. The mother wants the children to continue living with her and she wishes to relocate them [interstate]. She wishes to move there as she has been offered employment there. For reasons set out below the relocation would take place at a time of her choosing.
3On 26 October 2016 the time within which the father had to file his trial affidavits was extended by a period of 21 days from that date. An order was made, subject to any contrary direction of the Trial Judge, in the event that the father failed to comply with the order to file his trial documents, the mother have leave to proceed on an undefended basis.
4The father has not filed his trial documents. He has not participated in these proceedings. The trial proceeded on an undefended basis.
THE ORDERS SOUGHT
5The orders sought by the mother are contained within a Minute of Orders Sought handed up in Court on 1 March 2017. She seeks an order that she have sole parental responsibility for the children, that they live with her and she be permitted to relocate the children interstate at a time of her choosing.
6The mother proposes that the children spend time with the father during the school term, provided notice is given. The mother proposes that in the school holidays she will travel to Perth with the children on two occasions each year to enable them to spend time with the father. The children’s time with the father is to be supervised.
7The mother’s proposals for the children’s time with the father include special occasions. She also proposes various injunctions, orders regarding the provision of information and overseas travel.
FAMILY BACKGROUND
8The father was born [in] 1975 and is 41 years of age. He is a self‑employed [plumber]. The mother was born [in] 1977 and is 39 years of age. She is an [accountant].
9The parties have two children Child A born [in] 2011 and Child B born [in] 2012.
10The parties commenced cohabitation in 1999 and were married [in] 2007. They separated on 12 April 2015. The children have lived with the mother since then.
11After separation the children spent limited time with the father. The mother had concerns about their safety in his care, by reason of his drug use and violent and aggressive behaviour towards her prior to separation.
12On 4 June 2015 the father attempted suicide and was taken to [hospital] for a mental health assessment.
13On 19 August 2015 the mother obtained an interim Violence Restraining Order (“VRO”) protecting herself from the father as he had found out where she and the children were living and he sent her threatening text messages.
14In February 2016 the children began spending time with the father supervised by the paternal grandmother. The mother describes that time as inconsistent and problematic. The spend time orders were varied to provide that the children’s time with the father was to be supervised by Building Bridges with a report to be provided after eight visits. The father did not participate in an intake session. The mother offered alternate supervisors, which offer was not taken up by the father. The children last spent time with the father in December 2016 supervised by the paternal grandfather. That has been the only visit since orders were made on 26 October 2016.
15After separation the father remained in the family home. The bank has foreclosed on the home. The mother’s employment in Western Australia (“WA”) has been made redundant, but she has been offered a superior role with her employers interstate, together with increased salary, relocation and rent assistance. Currently she undertakes her interstate role from Perth.
16Child A has developed some health difficulties which are not yet diagnosed and it remains to be seen if her condition develops in the next six months. It is a neurological disorder heightened by anxiety and stress.
THE EVIDENCE
17The mother relied on her affidavit filed 24 October 2016 and her affidavit filed 15 February 2017 an application in a case. She also relied on the affidavit of her mother [Ms Neville] filed 24 October 2016. The order sought in the application in a case to adjourn the trial was not pressed.
18The mother gave oral evidence. I found her to be honest, forthright and measured. Her evidence was reliable.
THE LAW
19These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
20The objects 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.
21In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.
22Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
23Section 60CC(2A) provides that in applying the above considerations, the court is to give greater weight to the need to protect the child from harm.
Parental responsibility
24Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.
25Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are issues about the care, welfare and development of a child of a long-term nature.
26The presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there is abuse or family violence. The meaning of family violence is set out at s 4AB of the Act which provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)...
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
27The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
28The mother seeks an order for sole parental responsibility for the children and I refer to that further below.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child’s parents
29The children have a meaningful relationship with the mother and it is to their benefit that it continues. The children previously had a meaningful relationship with the father, but they have seen him only once since October 2016. It is to the benefit of the children to have a meaningful relationship with him, but this must be balanced against the need to protect them from harm.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
30There is not a need to protect the children from harm in the care of the mother. There is however, a need to protect the children from harm in the care of the father, by reason of his mental health difficulties, drug use and violent and aggressive behaviour towards the mother. The children were exposed to this behaviour when the parties were together, although the mother did her best to shield them from it. To ensure the children’s safety, the mother proposes that their time with the father be supervised.
ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
31The children are five and four years. They are too young to express any meaningful views.
the nature of the relationship of the child with –
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
32The children have a close and loving relationship with the mother. The children previously enjoyed spending time with the father. Their relationship with the father is no longer close as he has not sought to spend time with them for many months. The children enjoy a good relationship with their maternal grandmother. They previously had a good relationship with their paternal grandmother, although they have not seen her for some time. The children have friends at school.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity -
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
the extent to which each of the child’s parents fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
33The mother has made the decisions about major long-term issues in relation to the children since separation. Since December 2016 the father has not spent time, or communicated with the children, despite having the opportunity to do so.
34The mother has maintained the children. The father has not provided financial support for them.
the likely effects of any change in the child’s circumstances including separation from
(i)either of his parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
35The children are accustomed to living with the mother, who has been their primary carer since birth. It is likely that the separation of the children from the mother would have a detrimental effect upon them. If the children are not to relocate interstate the mother will remain in WA. Upon the proposal of the mother, the children would be separated from the father. Had they been spending regular time with him, it is likely that separation would have had an impact upon them. They have not however seen him for many months and a separation from him such that they live in interstate, will have less of an impact.
36The mother is mindful of minimising stress and anxiety for Child A because of her current condition, for that reason the relocation sought is postponed, as a change at this time would not be in her best interests.
37The mother proposes that the children have electronic communication with the father and also that they spend supervised time with him, both during school holidays and on special occasions.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
38There is practical difficulty and expense associated with the children spending time with, or communicating with the father if they live with the mother interstate. This difficulty arises by reason of distance and the cost of flights. The mother however proposes to travel to WA on two occasions each year to enable the children to spend time with the father. She also proposes that the children spend supervised time with him should he travel to interstate.
the capacity of -
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs
39The mother is in full-time employment as an accountant. She provides well for the children on all levels. She receives no practical or financial support from the father.
40The mother showed insight and sensitivity for the children’s emotional needs when she said she tells them their father works away or is unwell, by way of explaining why he has not seen them.
41The father is not capable of providing for the children’s needs. Although the children enjoyed spending time with him, his circumstances are not stable and the children would be at risk in his care unless his time was supervised.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
42The mother described the children as “beautiful, happy and healthy children”, although Child A now has the health difficulties referred to above.
if the child is an Aboriginal child or a Torres Strait Islander child -
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
43This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
44The mother has demonstrated a responsible attitude to the children and to the responsibilities of parenthood. She has shielded the children from the father’s behaviour. She acknowledges that the children love their father and I accept she would facilitate and encourage the children’s time with him provided they are safe in his care.
45The mother has successfully combined her career with her responsibilities for the care of the children.
any family violence involving the child or a member of the child’s family
46There has been family violence between the parties. The mother said at Christmas in 2014 the father hit her in the face causing her to fall backwards and hit her head on the floor. She suffered a bloodied nose and bruising around the eye and nose area. In April 2015 while in a rage, the father took a sledge hammer to the mother’s car and destroyed it. He shouted and swore at the mother and threatened her, in the presence of the children. After the parties separated he drove past the mother’s home and did burnouts.
if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
47The mother obtained an interim VRO against the father protecting herself. It did not prevent the children spending time with the father. Ultimately in January 2016, the mother withdrew the VRO as she was unable to afford the costs of a final hearing.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
48It would be preferable to make an order least likely to lead to institution of further proceedings in relation to the children. If the children are not permitted to relocate interstate, it is possible a further application will be made at a later date as the mother’s prospects of employment there are greater than in WA. An order permitting the relocation at a time of the mother’s choosing enables these proceedings to be concluded.
any other fact or circumstance that the court thinks is relevant
49The mother has strong reasons for seeking to relocate the children interstate. She has been offered full-time employment in a superior role. She alone provides financially for the children and to take up this employment would enable her to continue to do so.
50The maternal grandmother proposes to accompany the mother interstate to assist her in establishing her and to assist in caring for the children while she does so.
51The mother has friends and acquaintances interstate.
52The mother has made enquiries about arrangements for the children’s school, for in which locations to live and in that sense she is well prepared to meet the children’s needs.
53The relocation will take place when the mother, in her discretion, decides it is best for both children, particularly Child A.
CONCLUSIONS
54Having considered the evidence in the context of the primary and additional consideration, I have come to the following conclusions.
Parental responsibility
55There has been family violence between the parties. The presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply. I intend to order that the children live with the mother and that she have sole parental responsibility for them. Since the parties separated she has made decisions without the participation of the father. She is attuned to the children’s needs and is best placed to make decisions about long-term issues for them in the future.
The children’s living arrangements
56As stated above I intend to order that the children live with the mother. She has been their primary carer since birth and they have lived with her since separation. It would be in their best interests to continue to do so as she provides well for them on all levels.
57Unfortunately the children do not have a relationship with the father at this time. The children mostly enjoyed their time with and would like to see him. Their time with him would have to be supervised by reason of the father’s difficulties to which I have referred above. The mother readily acknowledged that the children miss their father and would like to see him, and I am satisfied therefore that she would facilitate and encourage the children’s time with him, provided it is safe to do so.
58Having regard to the mother’s sole responsibility to provide for the children and her sound reasons for moving interstate I intend to make an order that the mother be permitted to relocate the children interstate. Having regard to Child A’s difficulties, the relocation may take place at a time of the mother’s choosing.
59Having weighed and balanced the matters in s 60CC referred to above, I am satisfied that it is in the children’s best interests to live with the mother and she be permitted to relocate them interstate.
COSTS
60The mother makes an application for costs.
61Subsection 117(1) of the Act provides that, subject to s 117(2), each party to proceedings shall bear his or her own costs. Subsection 117(2) provides that if the court is of the opinion there are circumstances that justify doing so, the court may, subject to s 117(2A), make such orders as to costs as it considers just. Subsection 117(2A) provides as follows:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
62As to the financial circumstances of the parties, I am informed that the mother is in receipt of an annual income of $100,000 and she provides for the children without financial assistance from the father. Although the father is understood not to be working at this time, there is to be a sale of the former matrimonial home in [Suburb B] and the mother estimates the equity to be between $300,000 and $400,000. It is anticipated that the father would receive a share of that and consequently he is, or will be in a position to meet an order for costs.
63Neither party is in receipt of assistance by way of legal aid.
64The conduct of the parties to the proceedings, that is their conduct as litigants is relevant. The father has failed to comply with orders. He failed to attend court and failed to comply with orders for supervised time and drug testing. He has disengaged from the proceedings and the case proceeded on an undefended basis. The conduct of the father is a relevant factor as the mother has been put to expense by reason of that conduct.
65The proceedings were not necessitated by the failure of a party to comply with previous orders of the court.
66The father has been wholly unsuccessful in the proceedings in that the orders sought by the mother in her minute have been made. In relation to offers, an offer was made to the father to settle the proceedings on 23 January 2017 in terms of the minute contained in the offer. The father did not accept that offer. These are relevant factors.
67In all the circumstances, I consider the father should make a contribution to the mother’s costs. I am informed that her costs to date are $29,695. Those are costs on an indemnity basis. Costs in the specified sum of $20,000 are sought. I am informed that this is close to party/party costs. Exercising the broad discretion which I have, I consider an order that the father pay a contribution to the mother’s costs in the sum of $20,000 is an order which is just.
THE ORDERS
68I made the following orders:
1All previous parenting orders be discharged.
2Orders in terms of the mother’s Minute of Orders sought at trial, handed up in Court today and dated 1 March 2017.
3The father pay the sum of $20,000 to the mother by way of costs with payment to made at the time of property settlement.
4The proceedings otherwise be dismissed.
I certify that the preceding [68] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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