CLARKE & KING

[2015] FCCA 113

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE & KING [2015] FCCA 113

Catchwords:
FAMILY LAW – Interim parenting – mother’s unilateral relocation from Wollongong to Brisbane – where the children should live – serious allegations of family violence.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR CLARKE

Respondent: MS KING

File Number: WOC 1001 of 2014

Judgment of: Judge Altobelli

Hearing date: 13 January 2015

Date of Last Submission: 13 January 2015

Delivered at: Sydney

Delivered on: 13 January 2015

REPRESENTATION

Solicitors for the Applicant: Aboriginal Legal Service

Solicitors for the Respondent: Burke Lawyers

Solicitors for the Independent Children's Lawyer: Mahoney Family Lawyers

ORDERS

THE COURT ORDERS PENDING FURTHER ORDERS THAT:

1. The Mother have sole parental responsibility for the Children, [W] (born [omitted] 2003), [X] (born [omitted] 2005), [Y] (born [omitted] 2006), and [Z] (born [omitted] 2008), PROVIDED THAT she notifies the Father with respect to any decisions concerning the Children’s education and health, and subject to the Mother being able to protect the precise details of her whereabouts.

2. The Children live with the Mother.

3. The Children spend time with the Father as follows:

   (a)In accordance with the document marked “A” dated this day 13 January 2015 and attached hereto; and

   (b)For one week during each school holiday period in NSW, on terms to be as agreed or as adjudicated, and subject to the Paternal Aunt, MS J, becoming a party to these proceedings.

THE COURT FURTHER ORDERS THAT:

1. The proceedings are transferred to the Federal Circuit Court, Brisbane Registry, to be listed for directions on 5 March 2015 at 9:30am.

THE COURT NOTES THAT:

A.The Orders referred to in Order 3(a) were prepared by the parties at the request of the Court, but reflect the Court’s intention.

B.Ex tempore reasons will be typed and published as soon as possible for the benefit of the parties and other Judge who will deal with this case.

C.The Paternal Aunt may become a party to these proceedings, a matter that will have a significant impact on the most appropriate parenting arrangements for these Children, wherever they live.

“A”

1. That the children spend time with the Father as follows:

   (a)From 10:00am on 14 January 2015 to 10:00am on 21 January 2015;

   (b)Under the supervision of the Paternal Aunt Ms R, Paternal Aunt Ms J or Paternal Grandparents Mrs & Mr C;

   (c)On condition that the children spend any overnight time at the home or in the company of Ms R.

2. That in order to facilitate Order 1 herein, the Maternal Grandmother shall deliver the children to, at the commencement of time, and collect the children from, at the conclusion of time, the home of Ms R.

3. That the Father is restrained from consuming illicit drugs during any period the children are spending time with him.

4. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

A.That if any child expresses their wish to return to the Mother during the children’s time with the Father, that the Father take all necessary steps to return the child or children to the Mother in Wollongong as soon as practicable.

B.That the Orders of 19 December 2014 remain in place as to telephone time between the Father and the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 1001 of 2014

MR CLARKE

Applicant

And

MS KING

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of King and Clarke, I provide the following ex tempore reasons.  The application before me relates to four children, [W], who is 11, [X], who is 9 and will shortly turn 10, [Y], who is 8, and [Z], who is 6 and will shortly turn 7.  The application comes before me in circumstances of urgency. 

2. On behalf of the children, I want to express frustration at having to make a decision that is supposedly in their best interests in circumstances where there is so little evidence.  It is conflicting in part and is untested.  There is no expert evidence.  But there are circumstances that compel a decision having to be made.  The most pressing of which is the fact that the school term resumes in about two weeks’ time and these children need to know whether they are going to be going to school in Brisbane, where they have been going to school for the last few months, or going back to school in the Illawarra, where they have previously been going to school.  

3. The issues that are raised by the parents are very serious ones.  In the Father’s case, he raises two very significant issues.  Firstly, he questions the Mother’s attitude towards parenting in the sense that she does not appear willing or able to facilitate the children’s relationship with him.  This is most clearly exemplified by what I can only describe as her blatant failure to comply with Orders that she consented to on 19 December 2014.  She gives explanations for that which, to me, sound like mere excuses.  The issue that the Father raises about whether and, if so, to what extent the Mother will facilitate the children’s relationship with him is a very serious one.  The other issue that he raises that is very important for these children is their connection to their Indigenous culture and heritage which, on the impression formed from the evidence, would be much more likely and more substantial, both in a qualitative and quantitative sense, if they were to live in the Illawarra or Shoalhaven. 

4. In the Mother’s case, however, she raises equally important issues.  For example, that she has been the main, and the most consistent, parent in these children’s lives and she has been responsible for their parenting for the most part, and to change that would be a level of change in their circumstances that could not possibly be in their best interests.  In the Mother’s case, she raises issues about family violence perpetrated by the Father and issues of his drug and alcohol abuse.  She says that these matters were matters that ultimately precipitated her unilateral relocation from the Illawarra to Queensland. 

5. The evidence before the Court, including concessions by the Father or inferences reasonably drawn from his evidence, is that there certainly was family violence in the relationship.  There was past drug and alcohol issues.  The unresolved issues, even on the Father’s evidence, is the nature and extent of his ongoing drug issues, particularly consumption of cannabis.  The other concern that arises from the Father’s own evidence – and the details of this can be perceived from the transcript of the exchanges between Bench and bar table – is ongoing possible concerns about the Father’s mental health, given the evidence about his threats to self-harm are often expressed in the context of the presence of the children.

6. The evidence that is before the Court is referred to in the case outlines that have been filed on behalf of both parents. 

7. The Father relied on the following documents:

   ·Initiating Application, filed 28 November 2014;

   ·Affidavit of Mr Clarke, sworn 25 November 2014;

   ·Affidavit of Mr Clarke, sworn 6 January 2015; and

   ·Affidavit of Ms R, sworn 6 January 2015.

8. The Mother relied on the following documents:

   ·Response, filed 19 December 2014;

   ·Affidavit of Ms King, sworn 19 December 2014;

   ·Affidavit of Ms K, sworn 17 December 2014;

   ·Affidavit of Mr W, sworn 18 December 2014; and

   ·Affidavit of Ms L, sworn 17 December 2014.

9. The Father’s proposal is contained within Schedule One of these reasons and the Mother’s proposal is contained within Schedule Two of these reasons.  In short, the Mother wishes to remain in Queensland with the children where she is living with her new partner, to whom she is pregnant.  The Father proposes that the Mother return with the children to the Illawarra so that he might continue to spend time with them in accordance with the Interim Orders that he seeks. 

10. The recently appointed Independent Children's Lawyer was able to meet with the children the afternoon prior to the Interim Hearing.  In short, my interpretation of what Ms Mahoney informed the Court about is that the children prefer to remain with their mother and appear to be content with, and settled, in their new life in Queensland. 

11. There are so many frustrating aspects of this case.  To cause the Mother to return to New South Wales in circumstances where she is implacably opposed to it is highly problematic in its own right, particularly in circumstances where she is pregnant and the move might involve a separation from her partner.  Removing the children from her care is out of the question and it is, in any event, not a proposal advanced even by the Father.  To bring the children back in circumstances where they appear to be settled is disruptive to them.  But the risk, of course, is that this merely endorses the Mother’s totally unacceptable, capricious and probably deceptive actions in unilaterally relocating to Brisbane. 

12. If this case were to be decided by reference to the actions of the Mother and the Father, the focus would be taken away from what is best for the children. It would be so easy to become quite angry and indignant at both parents for what they have done to their children. To the Father, for his actions in perpetrating family violence, probably – but not necessarily – only as a result of his drug and alcohol abuse. The Mother’s unilateral actions are somewhat hard to understand in circumstances where she could have removed herself from the concerns she had about the Father’s behaviour without going to a place where it is going to be very difficult to sustain a meaningful relationship. All the Court can do is the best it can under the circumstances by reference to the statutory considerations under s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). 

13. Whether the children have a meaningful relationship with their father is, quite frankly, unknown. Their contact with him has been limited. He lives in [E]. His proposal is that the children return to the Illawarra. They currently live in Queensland. In any event, as s.60CC(2A) makes very clear, the need to protect the children from harm is a consideration that must be given greater weight to meaningful relationship anyway. There is, on the evidence, reason to believe that the children do need to be so protected. The Father has clearly perpetrated family violence and this casts a long shadow over these proceedings in terms of the potential impacts on the Mother and on the children. He continues to struggle with the consumption of cannabis. I have highlighted some concerns earlier in these reasons about mental health issues in circumstances where there are threats of self-harm that appear, on the Father’s own evidence, to have occurred after he says he has ceased hard drugs. There is therefore the need to protect them from harm. The issue is complex, however, because there might be ways of protecting the children, and indeed the Mother, that are not inconsistent with their return to the Illawarra or the Shoalhaven.

14. The Court must consider matters such as the children’s views.  The evidence about this is very limited and is, indeed, limited to the information provided from the Bar Table by the Independent Children’s Lawyer.  To the extent that there is some indication of the children’s views, it would seem to suggest that they wish to remain with their mother and, indeed, there is some suggestion that they prefer to remain where they are in Queensland. 

15. The Court is required to take into account the nature of the children’s relationships with their parents.  What is clear and indeed is not in contention is that they have a strong relationship with their mother, who has been primarily responsible for raising them.  The precise nature of their relationship with their father is unknown in circumstances where there has been such limited contact. 

16. The Court is required to take into account the extent to which the parents have taken or failed to take the opportunity to do various things, including participating in decisions and spending time.  This is contentious and probably is not determinative.  Another matter that is not determinative is the extent to which each of the parents has fulfilled or failed to fulfil the parents’ obligations to maintain the children. 

17. An important consideration is the likely effect of changes in the children’s circumstances.  Of concern there is the further wrench to the children’s lives that would be caused by making an order the effect of which is that they return to New South Wales, especially in circumstances where it is not what the Mother wants and the impression formed is that it would create an intolerable burden on her.  Such pressure, of which of course experience indicates, would be apparent to the children. 

18. Not returning to New South Wales, however, means that the children will spend far less time with their father.  But this needs to be taken in the context of the broader circumstances of this case, where certainly he appears on his own evidence to have been in and out of the children’s lives over the years anyway.  Perhaps of greater concern is the fact that the children, who appear to have a very close relationship with their aunty Ms R, will not be able to spend as much time with her and other members of their extended family. 

19. Issues of practical difficulty and expense abound in this case.  For example, even if the children were returned to New South Wales, for all practical purposes, they would have to be spending time with their father at their Aunty [Ms R]’s care in the Shoalhaven.  The Father lives in [E] on the far south coast of New South Wales.  The logistical issues of spending time with the Father, should the children remain in Queensland, are significant but not necessarily impossible to overcome. 

20. Issues of parental capacity abound in this case, in particular, the Father’s capacity.  Having regard to the issues that I have raised, there must be issues about the Mother’s capacity as well, though she appears better supported. 

21. I have already referred to the fact that the children are of Aboriginal background and one of the significant concerns that the Court has is that if the children are not returned to New South Wales it will make it harder for them to enjoy their culture. 

22. The Court must regard the attitudes of the parents.  Again, problems abound here.  I have already expressed my criticism of the Mother’s actions in failing to comply with the Orders that I made by consent.  Indeed, the Mother’s actions in unilaterally relocating are also of concern.  But the perpetration of family violence by the Father, his drug, alcohol and possible mental health issues – no doubt, based on experience, all of which are interrelated – also raise issues about his attitudes and responsibilities.  I have made reference to family violence.  An Apprehended Violence Order has been made and the father has been convicted of breach of AVO. 

23. The Court has to consider, even on an interim basis, all of these considerations.  On balance, albeit in the context of a finely-balanced case, the Court believes that it is in the best interests that these children remain with their mother in Queensland.  It would be an unacceptable change for them to bring them back in circumstances where, quite frankly, so little is known about where and how they would be accommodated, where the Father lives in [E], and where they appear to be well settled where they are. 

24. This is a case also where I believe that the presumption of equal shared parental responsibility has been rebutted because of the evidence before the Court, including the Father’s own concessions about family violence, drug and alcohol issues.  Accordingly, the Mother should have sole parental responsibility, but Orders will be made by the Court to the effect that she provide the Father with information about matters relating to the children’s education and health, subject to what would appear to be her legitimate concern about protecting her precise whereabouts. 

25. In the circumstances, making an Order for the children to spend time with their father during school holidays seems to be the only answer, but there are so many unknowns about this, perhaps the greatest of which is the role that Aunty [Ms R] might play in this.  In view of the Order that I intend to make, it would seem appropriate that this matter be transferred to the Federal Circuit Court in Brisbane, and in those circumstances, the Order for school holiday contact is not something that I need to deal with today except in general terms.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       10 February 2015

Schedule One

Orders proposed by the Applicant Father

1. No later than the commencement of school term 1, 2015, the Mother, Ms King, her servants or agents, return the children, [W], born [omitted] 2003, [X], born [omitted] 2005, [Y], born [omitted] 2006, and [Z], born [omitted] 2008, within 10 kilometres of their former address [omitted].

2. That the children live with the Mother;

3. That the parties equally share parental responsibility in relation to the children;

4. That the parties are required to make all decisions about major long-term issues in relation to the children jointly;

5. That the parties are not required to consult the other when making decisions while the children are in their care under this order about issues that are not major long-term issues;

6. That the Father spend time with the children as follows:-

   (a)From 10 am, 14 January 2015, to 6 pm, 24 January 2015.

   (b)from the conclusion of school on alternate Thursdays until the commencement of school the following Monday;

   (c)from the conclusion of school to 8 pm on the other Thursday, to include being there for any extracurricular activities, a meal afterwards and homework supervision before return home;

   (d)for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods;

   (e)from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph;

   (f)on the occasion of the celebration of the Father’s birthday with his family provided the Father gives the Mother one week’s notice as to the date and venue;

   (g)on the occasion of the celebration of the paternal great grandfather’s birthday with his family provided the Father gives the Mother one week’s notice as to the date and venue;

   (h)any family celebrations provided the Father gives the Mother one week’s notice as to date and venue;

   (i)for the whole of NAIDOC week; and

   (j)Any other times as agreed.

7. That pursuant to Order 6(a) the Father or his agent shall be responsible for collecting the children from school at the beginning and returning the children to school at the end of the children’s time with the Father;

8. That unless otherwise agreed, and pursuant to Orders 6(b) - (h) the Father shall be responsible for collecting the children from the maternal grandmother’s home and returning the children at the end of the children’s time with the Father.

1. That the Father and children communicate with each other by telephone everyday when the children are not in his care at 7:30 pm and at such other times as may be agreed between the parties.

2. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

3. That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.

4. That the Mother not allow the children to be left unsupervised with

   
   

   Mr W.

5. That the Mother not allow Mr M to have any contact with the children.

6. That the parties encourage and not undermine each child’s relationship with the other party.

Schedule Two

Orders proposed by the Respondent Mother

1. That the mother have sole parental responsibility for the children [W] born [omitted] 2003, [X] born [omitted] 2015, [Y] born [omitted] 2006 and [Z] born [omitted] 2008.

2. That the father be subject to weekly urine analysis testing for a period of 4 weeks prior to as well as during to any time he spends with the children.

3. That the father’s time with the children be supervised by the children’s paternal Aunty Ms R as follows:

   (a)Each school holiday period for a period of 7 days.

4. That the children be permitted to reside with the mother in Queensland.

5. That the mother’s address and the name and address of the children’s school(s) be supressed.