Don and McGlennan
[2014] FCCA 2178
•19 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DON & MCGLENNAN | [2014] FCCA 2178 |
| Catchwords: FAMILY LAW – Father seeks to relocate to (omitted) on an interim basis – child is severely autistic – father awarded sole parental responsibility after 15 day Family Court of Australia trial in 2010 – exceptional circumstances interim relocation allowed. |
| Legislation: Family Law Act 1975(Cth), Pt VII, ss.60CA, 60CC, 65DAA |
| Rice v Asplund (1978) 6 Fam LR 570 AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MS DON |
| Respondent: | MR MCGLENNAN |
| File Number: | DNC 148 of 2009 |
| Judgment of: | Judge Harland |
| Hearing date: | 12 September 2014 |
| Date of Last Submission: | 12 September 2014 |
| Delivered at: | Darwin |
| Delivered on: | 19 September 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Applicant: | Mr Gordon |
| Solicitor for the Respondent: | Bowen Lawyer |
| Counsel for the Respondent: | Ms Bowen |
| Solicitor for the Independent Children’s Lawyer: | Northern Territory Legal Aid Commission |
| Counsel for the Independent Children’s Lawyer: | Ms Palavra |
ORDERS
That the father be permitted to relocate with the child X born (omitted) 2000 forthwith.
IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 148 of 2009
| MS DON |
Applicant
And
| MR MCGLENNAN |
Respondent
REASONS FOR JUDGMENT
X will be 14 on (omitted) 2014. He is severely autistic.
His parents have engaged in extensive litigation about X. They have 5 other children who are now adults.
Burr J delivered a judgment after 15 days of hearing on 3 June 2010. Relevantly those orders provided for:
a)The father to have sole parental responsibility for X;
b)X to live with the father;
c)X to spend time with the mother each Saturday from 10.00am to 5.00pm;
d)Mutual injunctions against the parties.
The Independent Children’s Lawyer appealed and the mother cross-appealed. The Full Court delivered its decision on the appeal on 3 February 2012. The Full Court set aside orders 7 and 8 of Burr J’s orders. Order 7 restrained the parties from relocating the children’s residences from the greater Darwin area.[1] Order 8 required the parties to attend the meetings at X’s school and abide by any proposals by the school including suggestions for X to spend more or different time with his mother and siblings. None of the parties sought order 7 and 8 at trial and they were not accorded procedural fairness with respect to those orders. The rest of Burr J’s orders were upheld.
[1] Two of the parties’ other children were also the subject of those proceedings but the parties entered into consent orders about those two children before Burr J delivered judgment.
Both parties filed contravention applications during the course of the proceedings before Burr J. There were further proceedings in 2011 commenced by the mother for contravention proceedings Dawe J delivered judgment dismissing the contravention. The contravention hearing took place over 4 days before Dawe J.
The mother started these proceedings on 8 May 2014. She filed an Initiating Application seeking orders including:
a)Increased time with X;
b)The mother to be noted as next of kin and an emergency contact;
c)That the mother be able to participate in X’s future education;
d)Equal shared parental responsibility;
e)That the father be restrained from changing X residence from the Darwin area.
The father opposes the mother’s application and seeks an interim order allowing him to relocate with X to Alice Springs straight away.
Until recently neither party was legally represented. This made the progress of this matter particularly difficult. The father becomes easily agitated in court. He is resentful of the process. His attitude is somewhat understandable given that he was awarded sole parental responsibility for X after extensive litigation. He raised in court in June 2014 that he has an urgent need to relocate with X because he was about to lose his accommodation but failed to comply with court directions to file material. Before securing legal representation he filed two brief affidavits which did not contain evidence but called the mother a liar and complained about the court. The father had the assistance of the duty lawyer on at least one occasion.
Due to the complex history of this matter, X’s special needs and the parties’ then unrepresented status I appointed an Independent Children’s Lawyer (“ICL”).
Fortunately the father has secured legal aid and has now put on material.
The mother has also recently secured legal representation.
I listed the matter for an urgent interim hearing once the father filed his material. All three lawyers who appeared before me put a lot of work into this complex case at short notice. They were all of assistance to the court. There are shortcomings in the evidence but this is not a criticism of the lawyers who have clearly carried out a great deal of work in a short period of time.
Decision of Burr J
Burr J’s detailed judgment provides the background to these proceedings. In the proceedings before Burr J both parties sought sole parental responsibility and that X live primarily with them.
X’s autism was dealt with extensively by Burr J at paragraph 51 to 66. I will not repeat those paragraphs but place significant weight on them. Burr J had the benefit of hearing from Dr B, X’s paediatrician and the assistant principal of X’s school, Ms L. I also had the benefit of hearing briefly from Dr B.
Drawing from Burr J’s judgment I note the following evidence from Dr B about X’s autism:
a)X has severe autism;
b)further development and may be limited and in fact he may regress as he gets older;
c)X’s autism has not changed since Dr B first saw him in 2004;
d)X has real difficulty with change of any sort but in particular with routine and environment;
e)without the cooperation of all relevant adults and in particular the parents it would be extremely difficult for X to adjust to change;
f)if X’s parents are stressed he will become stressed;
g)X’s routine is event-based. X routine and events are more important to him than adults and other children in his life;
h)whilst contact with the siblings would be recommended “in an ideal world” it is the environment and routine which is most important to X;
i)noise is a particular stressor;
j)the stress associated with family conflict may have delayed X’s developments and caused him to regress;
k)autistic children are typically stronger and taller than average children the fact that physical management becomes an issue as they get older.
Ms L’s evidence of X’s autism can be summarised as follows:
a)X’s autism is on the severe end of the scale;
b)his communication with by behaviour;
c)when X is happy it shows;
d)when X is not happy his behaviours are disturbing;
e)X can use a limited number of pictographs to indicate what he wants;
f)he only understand a few keywords which needs to be backed up with visual cue and it has been a huge move forward for him in the past two years;
g)X responds well to his father’s instructions and the father is much better at giving X instructions now;
h)X had difficulty adjusting to a new teacher;
i)she observed behavioural difficulties in X early in the week after spending time with the mother.
Dr B gave evidence at the hearing before Burr J that in the six years he had been treating X he only met the mother once when X was in hospital in 2008.
Burr J discussed the concept of meaningful relationship at some length and noted that it needs to be seen in the context of X’s developmental capacity as well as the parents’ capacity. He was clear from the family report that X engaged positively with both his parents.
Burr J referred to extensively incidents of conflict and violence between the parties and referred to the “long-standing toxic nature of the relationship between the parties.”
He rejected the suggestion that the father was abusive or neglectful of X and noted that X’s presentation when accompanied by his father which was witnessed by various independent experts and others could not have been as positive if that were the case.
Burr J found that the father failed to comply with orders or was obstructionist towards the mother’s time with X and that he did not demonstrate “the appropriate willingness to facilitate whatever relationship is possible between X and the mother.” He also found that the mother had not been following X’s routine which contributed to the difficulties.
The Independent Children’s Lawyer and the mother were unsuccessful in challenging the weight Burr J placed on the X’s autism in determining what was in X’s best interests bearing in mind the factors set out in section 60CC and the family violence.
It is clear from the parties’ own material and their presentation in court over several court appearances, that their relationship remains a toxic one. It appears that it is not in dispute that the current arrangements for X to spend time with his mother has not been taking place for the most part.
The evidence before Burr J was clear that X needs to be protected from stressful situations and the handovers could be ripe for stress to occur. Burr J referred to handovers taking place at CatholicCare if the centre would work with the family. Clearly this did not happen.
The father’s proposal
The father wants to relocate with X to Alice Springs on an interim basis immediately.
On a final basis he seeks that the orders providing for the X to spend time with the mother be discharged. In their place the father seeks that the mother spend time with X as agreed or as ordered by the court.
In his affidavit filed on 9 September 2014 the father sets out in some detail the findings made by Burr J. He raises the Rice and Asplund[2] issue and says the mother has not disclosed any change of circumstance since those orders were made. There appears to be a strong argument for this except for the fact that by relocating to Alice Springs the spend time with orders made by Burr J will no longer be practicable. It certainly appears to me from the material I have read that there would be no basis for revisiting the issue of sole parental responsibility.
[2] Rice v Asplund (1978) 6 Fam LR 570
There is no doubt that such a move in the short term will be very unsettling for X as any change to his routine is. The father says he will drive with X to Alice Springs. X will have his iPad in the car.
The father says he has arranged for accommodation in (omitted) at a caravan park.
The father says he has family at (omitted) outside of Alice Springs at that he will be able to do some work as a (occupation omitted) there.
He says that two of X’s old teachers from (omitted) School now work at a school at Alice Springs and X will be able to go to school there. He does not name the teachers or the school. He complains that he has had to home school X because of the mother attending the schools and interfering. The subpoenaed material tendered by the ICL does not support the father’s assertion about this but clearly there were difficulties at X’s last school. It will be a positive thing by X and his father if X can recommence school in Alice Springs with teachers he knows. This will provide the father with some respite and may give him some opportunity to pick up some work which will be available to him in Alice Springs. The mother raised the concern about who would look after X when the father is working but I do not understand the father’s proposal to be that he would leave X in the care of others so he could work.
The father says the property he and X have been living in for the past 10 years is being sold. He says there is no emergency accommodation available for him and X in Darwin. The father has not provided any documents to show that he been given a notice to move out. He does not provide any evidence of attempts to find accommodation in Darwin.
The father says he has sole parental responsibility for X and he is the only viable carer for X. He relies on Burr J’s judgment and also on the letter of support annexed to his affidavit from Dr B. I accept that this is the case and these are significant factors which favour the father’s application.
The father annexes a sample of receipts to show he has been at the handovers in compliance with the orders. He does not explain what has happened since the interim orders were made.
At the interim hearing the father said the caravan park is (omitted) Caravan Park.
The father says he has Aboriginal connections at (omitted) outside of Alice Springs. Cultural issues have not been raised previously and were not raised before Burr J.
The mother’s proposal
The mother says she initiated the current proceedings because the father has been breaching the orders and has been unable to spend time with X. The father denies breaching the orders and says the mother has not been turning up. I cannot determine who is telling the truth about this on an interim basis but it is a relevant consideration.
The mother resists the father’s application for relocation. She wants X to remain living in Darwin. She says the father’s plans are vague and that his proposal involves much upheaval for X.
The mother complains that father has obstructed her time with X. Her first affidavit sets out complaints about difficulties spending time with dating back to 2012. The mother acknowledges she should not have delayed coming to court about this for so long. The father says he has only come to court once she found out he had plans to move.
The mother says that the receipts annexed to the father’s affidavit do not prove compliance with the orders and he is silent about what contact did not happen on so many occasions after the interim orders I made.
The mother complains that since the interim orders I made on 23 June 2014 for the mother to spend time with X the father has continued to regularly not make X available to spend time with the mother. This is concerning.
The parties’ daughter Y swore an affidavit in support of her mother’s case. Much of her material predates Burr J’s judgment which is not relevant.
The mother submitted that there are too many unknowns about the father’s application including accommodation, his financial position and schooling. She also emphasised that X is familiar with the Darwin and Darwin is warm all year round which accommodates X’s love of the water.
I am concerned about the mother’s proposal to spend time with X in the event that the father is allowed to relocate with X as it seems to ignore X’s autism. She is proposing that X spend block periods with her in Darwin.
The Independent Children Lawyer’s position
The ICL is concerned about the father’s proposal and the lack of detail in that proposal. In her case outline she seeks a order that the father provide further details as to his proposed move and the services available for X.
She points out that the father has been in long term accommodation for 10 years and has not provided any evidence that he is losing accommodation. She says that the accommodation at the caravan park in Alice Springs may be temporary and that it is also possible to obtain temporary accommodation in Darwin.
The ICL wants information about respite care that is available in Alice Springs both in the event that the father was not able to look after X on a long-term basis and also temporary basis. It is clear that the father has used respite care for the X on Sundays from time to time. This is perfectly appropriate.
She also referred to Burr J’s judgement the fact that change is a significant issue for X. Even if there is a change of accommodation in Darwin X is familiar with many parts of Darwin as a place. The ICL admitted that it may be the best thing for X to move to Alice Springs but at the moment there was not enough information about the funding opportunities through (omitted), the father’s proposed accommodation, X’s proposed calling, the availability of respite care and other specialists. The geographical distance is also significant and there is a real issue about how X’s relationship with his mother and siblings will realistically be able to be continued. This is particularly so in light of the difficulties with time taking place in Darwin. The reasons for these difficulties are yet to be explored.
The Subpoenaed material
The ICL tendered an extensive bundle documents from the subpoenaed material. One of the issues is X’s schooling. He was suspended from (omitted) College last year and did not go back to school. The documents indicate that the father was going to apply to have X home schooled.
The problems with X’s schooling seem to have arisen after X left (omitted) School.
(omitted) School caters for preschool and primary aged children with special needs. A letter from the Principal to the father dated 9 January 2013 indicates that X did well there. X moved to (omitted) school in 2013 after graduating from (omitted) School.
The bundle also includes extracts from police records. After the time recommenced with the mother in accordance with my orders the father made a complaint to police that the mother had physically abused X whilst he was in her care. The police attended and looked at X. They noted that they thought the complaint was vexatious and that there had been a history of the father making vexatious complaints about the mother. They also expressed concern about the suitability of the home for X.
The father was assaulted by his adult son A in front of X on 26 August 2013. This was extremely distressing for X.
There is another entry on 23 March 2013 when there was due to be a handover. The father told police that he was due to receive a $300,000 inheritance for X and that the mother was only taking an interest in X because of the money. The police member recorded that the father was paranoid about his ex-partner.
There are other incidents involving confrontations between the father and his neighbours.
The subpoenaed material raises concerns what the father says in his material about the reasons for X being home schooled. Secondly the material from the police shows that the father has a tendency to make malicious complaints about the mother and is paranoid about her.
Oral evidence of Dr B
The ICL arranged first for Dr B to give oral evidence at the interim hearing by telephone. The reasons the father gave him for the move to Alice Springs were consistent with what father said in his affidavit. He had the impression that the father would have more supports there and X schooling was a predominant issue. He was aware that X had been suspended from school because of friction between X and his teachers.
Dr B said that significant change of X for the environment from Darwin to Alice Springs is not to be done lightly. It is dependent on the structures and supports in place. He had the impression the father had thought things through and had X’s best interests in mind.
He was asked about the impact on X of not seeing his mother and siblings except on a very limited basis. He said that a lot of those meetings had increased the level of X’s stress with changeovers. He is of the view that the father has X’s best interests at heart.
He confirmed that X enjoys an affinity for the water. He said that X appeared to recognise him even though he had not seen him for a couple of years. It will be pleasing for X to see people he knows.
Dr B that X has been fairly stable over the years. He is impressed that X can now carry an iPad. X will never have the ability to speak or to live independently. The transition to new accommodation needs to be done in a supportive way for X. He thought that a 21 hour trip in the car for X should be all right if he had his iPad with him and frequent stops.
He was asked about the father’s claim that the construction work around Darwin was distressing X. Dr B said noise would upset him. (There are significant construction works being carried out in various parts of Darwin).
The law to be applied
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions. This is true regardless of the type of parenting application before the Court.
It is well established that interim relocations should only be allowed in exceptional circumstances. Boland J’s decision in Morgan & Miles [2007] FamCA 1230 is well known and often quoted. The evidence is untested at an interim hearing. Relocation applications are applications which should be determined at a final and not an interim stage, unless there are exceptional circumstances because the evidence is not tested and the consequences are far-reaching.
The father’s counsel referred to the High Court decision of AMS v AIF (1999) 199 CLR 160 and Kirby J’s comments about the importance of freedom of movement for a parent particularly when that parent is the sole custodian for that child. A parent’s freedom of movement should only be curtailed when the child’s welfare would be adversely affected.
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 His Honour Justice Kirby said:
“[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”
He also referred to the decision of Heath and Heming (No.2) [2011] FamCA 749 being a decision of Kent J wherein he reviewed the authorities on relocation and discussed the appropriate pathway.
It is significant that in this case the father has sole parental responsibility for X. This means that section 65DAA is not triggered.
X has a meaningful relationship with his parents as much as he can in the context of his autism. X should continue to benefit from that. There is no issue of X being abused or subjected to family violence by his father. X was exposed to family violence when the father was assaulted but that was no due to the actions of either parent and there is nothing to suggest it was anything other than an isolated incident.
The father is X’s primary carer. There is no application on foot to change that. If such an application was made there would be a Rice & Asplund argument. The father was awarded sole parental responsibility after a 15 day contested hearing. The father is entitled to make decisions about X’s living arrangements, education and health without consulting the mother. If it were not for the fact that there are orders in place which provide for the mother to spend weekly time with X there would be nothing to prevent the father from relocating.
There is no doubt that the move to Alice Springs will involve upheaval and change for X in the short-term. The father is best placed to know how to manage that with his little history for X as possible.
The father queries the bona fides of the mother’s application. The mother says that the father has been obstructive of the mother spending time with X.
There is no doubt that the move will impact on X’s ability to spend time with his mother and siblings. However it is also clear that for whatever reason he has not been spending regular time with them.
There is some reason the concern about the father’s willingness and ability to encourage X’s relationship with his mother and via his mother with the siblings but there is also some concern about the mother’s commitment to take up the opportunity to spend time with X. These are issues which will need to be explored at the final hearing.
The father has sole parental responsibility for X. There is no order restraining the father from relocating.
The practicality and expense of X spending time with his mother and siblings is a significant issue given the distance between Darwin and Alice Springs.
Conclusion
This is a very difficult case. It is not the usual interim relocation case because of the history of the matter. The father already has sole parental responsibility. I am satisfied in the exception circumstances of this case the interim relocation should be allowed.
Although I have raised the question about how meaningful is X’s relationship with his mother and siblings and how orders were time are going to work realistically, X does have some sort of relationship with his mother and siblings and that was seen to have been of benefit to him in the decision of Burr J. There may come a time when the father cannot look after X which raises the question of who will look after him especially if he has no ties with the rest of his family.
It is clear from the evidence of both parties, that for whatever reason, X has spent little time with his mother since 2012. This is a relevant consideration in allowing the move to happen now. The issue that needs to be further explored is how X’s relationship with his mother and siblings can be maintained and the father will need to make a proposal and show a willingness to support this. One of the reasons why it is important that X maintain a connection with other family members is there may come a time when the father is incapacitated and is unable to look after X. That is a possibility that needs to be explored although hopefully for X’s sake that will not happen.
The challenges the father faces on a daily basis in managing X’s high needs cannot be underestimated. It must be relentless for him. He has taken on this role and does not complain. X will always need a high level of care and constant supervision. The father was found by the court after a 15 day hearing to be the only candidate to care X’s best interests were explored in depth in that hearing. The role the father had taken on needs to be supported. The father sees the move to Alice Springs as something positive where there will be more opportunities for himself and X. He has been entrusted to make the decisions for X’s care and whilst this proposal lacks some detail and the Independent Children’s Lawyer and the mother raised some concern these are not to such an extent that it in my view the father should be frustrated in making the move which he says necessary.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 19 September 2014
Key Legal Topics
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Family Law
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Civil Procedure
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