Dylan and Bryson - [2018] FamCA 269

FAMILY COURT OF AUSTRALIA

DYLAN & BRYSON

[2018] FamCA 269

FAMILY LAW – CHILDREN – international relocation ‑ undefended hearing – mother permitted to relocate with child to New Zealand

Family Law Act 1975
APPLICANT:	Mr Dylan

RESPONDENT:

Ms Bryson

FILE NUMBER:

BRC

9845

2014

DATE DELIVERED:

18 April 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

18 April 2018

REPRESENTATION

No appearance by the Applicant

COUNSEL FOR THE RESPONDENT:

Ms R Lyons

SOLICITOR FOR THE RESPONDENT:

Neumann & Turnour Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr W Ness

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CNG Law

Orders

That the mother have sole parental responsibility for the child, B born .. 2012 (“the child”).
That the child live with the mother.
That there be no time or communication between the child and the father.
That the child be permitted to relocate overseas to New Zealand at a time convenient to the mother.
That pursuant to s.68B of the Family Law Act 1975 the father be restrained and an injunction issue restraining the father from:
(a)       harassing, stalking or intimidating the mother;
(b)       contacting the mother and/or child via telephone and/or social media;
(c)       attending upon the child’s school and/or extra-curricular activities; and
(d)       approaching the child directly or indirectly.
That the mother be permitted to obtain a passport for the child and the requirement of the father’s signature on a passport application for the child, pursuant to s.11 of the Passports Act 2005, be dispensed with and an Australian passport issue for the child.
That pursuant to s.65Y(2)(b) of the Family Law Act 1975 this Order operates as authority for the mother to take and/or send the child from the Commonwealth of Australia to places outside the Commonwealth of Australia.
That pursuant to s.11 of the Passports Act 2005 the child be permitted to leave the Commonwealth of Australia alone for the purpose of a school excursion or extra-curricular activity, or in the company of the mother.
That the Independent Children’s Lawyer be discharged.

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 Dylan & Bryson 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 BRISBANE

FILE NUMBER: BRC 9845 of 2014

Mr Dylan

Applicant

And

Ms Bryson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Background

Proceedings in relation to B, a little boy born in 2012, and arising from a relationship between the Applicant father, Mr Dylan, who is now approaching his 46^th birthday, and the Respondent mother, who is now 42 years of age and separated in April 2014, have had a less than glorious history.
It is apparent from the material on the file and as stated in the written submissions on behalf of the mother handed up to the Court today which I have now read, that the parties have a troubled relationship, and it is fair to say, to a large degree, has been shaped by, sadly, the father’s indifferent mental health.
The extent that his mental health has been affected by use of substances, it is almost impossible to say, notwithstanding Dr C, an independent forensic Psychiatrist retained on the behalf of the hardworking Independent Children’s Lawyer, raised various concerns about the father in a report that was dated 18 September 2015, now two and a half years ago.
Dr C suggested that the father maintain a relationship with who was then his treating psychiatrist because of his concerns that the father’s condition might be reflective of a psychotic illness, and he recommended further therapeutic support for the father. Certainly, Dr C took the view in September 2015 after his report that the child should not have unsupervised time with the father as a result of the way he presented to Dr C. It is fair to say, of course, that the father has, although bringing the Application, seemingly not had legal representation for some time if at all.
He is in receipt of a disability support pension, having been diagnosed, it seems, at some stage earlier with Attention Deficit Disorder and Schizoaffective Disorder. Attempts to try and organise time of a supervised nature have been unsuccessful for a range of reasons which I do not need to canvass, save to say that the father has spent no time with B for some time now. On the material that I have read, I am satisfied that at least initially, whilst the mother had very serious concerns about the father’s mental health and the domestic violence which she says had been perpetrated upon her during the relationship, she is mindful of trying to encourage, where possible, safe time for B with the father.
She had the benefit of legal advice for most of the journey in this Court and in the Federal Circuit Court of Australia. Issues, it seems, probably came to a head when the mother indicated in October 2016 that she wished to relocate to New Zealand. The mother gives evidence about why she sees New Zealand as an appropriate place for her to raise her son. Certainly, when Dr D prepared a family report in March 2015 the issue of relocation per se was not on foot.
After the mother brought an application seeking interim relocation, the matter came before Judge Spelleken in the Federal Circuit Court of Australia in November 2016, when on the evidence at that stage, her Honour, on an interim basis, transferred the matter to the Family Court of Australia and discharged all time and communication orders between the child and the father. It is clear that there had been problems with getting any time arrangement between B and the father before then, in any event. Since that time there has been an abject failure by the father to do anything including turning up at court or seeking to pursue supervised time arrangements. I speculate, on the evidence, but cannot find that this may all have something to do with the father’s mental health functioning.
Curiously, in my view, despite the father filing a Notice of Discontinuance of his Application on 28 April 2017, about a week later when before the Senior Registrar, the father sought to withdraw his Notice of Discontinuance and was allowed to do so. I make no criticism in respect of that, however those actions and the actions subsequent seemed to be reflective of the Applicant, the father in this case, using the court process in a way which causes some either significant cost to or psychological stress on the mother.
The father may well say otherwise, but since he does not turn up, I can hardly put it to him. I say that because after the father was given leave to withdraw his Notice of Discontinuance, the evidence before me now shows that the parties signed in early June 2017, self-prepared, it seems, minutes of order which reflected an agreement by the father that the mother could relocate. When the Independent Children’s Lawyer sought to perfect those orders in a form which would be suitable to the court, no doubt, the father again refused to perfect that document. Again, by mid-2017 we had a further stalemate. I note the matter had been in the trial pool for some time by this stage.
Then the matter came before me on the first occasion on 22 February 2018, and alerting myself to the past troubled history, I have, as the orders will demonstrate, sought to manage this matter so that the Court could properly give the father an opportunity to appear; to file material and to defend what would otherwise be undefended proceedings. I am satisfied the father, as best as possible, is aware of these proceedings and has failed to attend today.
As a result, the mother, through her Counsel Ms Lyons, and with the benefit of the comprehensive written submissions prepared by her instructing solicitor, Mr Potts, urges the Court to make final orders in accordance with the draft which I have initialled. It is a draft slightly different to one which had some, in my view, objectionable features, such as to prevent the father from bringing future proceedings and the like. It is an order though which achieves the same result. It provides that the mother have sole parental responsibility for the child and that the child live with her. Importantly, it provides that the child be permitted to relocate overseas to New Zealand, although it does not say that, but that is what I propose to put in the order.
I will indicate that I propose to amend the order that says that the child is permitted to relocate overseas to New Zealand at a time convenient to the mother and that the mother obtain a passport for the child who is an Australian citizen. In the circumstances it is appropriate and in B’s best interests, that there be an order that no time and communication between the father and child occur. The injunctions under s.68B of the Family Law Act 1975 about the father attending her home workplace or contacting the mother are also in B’s best interests.
I regard the order being sought by the mother and which has been slightly amended by me as to the location for relocation, and supported by Independent Children’s Lawyer, are in the best interests of B. Whether or not at some future point in time the father wishes to pursue an application in other jurisdictions to spend time with the child will be a matter for that jurisdiction, not for this Court. The mother has had a very difficult journey post-separation with the father. There is nothing in the evidence that will suggest the mother is anything other than a committed, loving and caring parent who is doing the best she can for her son.
She does so in circumstances where she is being put under enormous pressure in this country. The evidence is that she feels she will have added support in New Zealand, but also clearly she believes the geographical separation will be an important part for her capacity and functioning as a single parent of B. There is no evidence she has formed any other relationships at this stage. She is a mature-aged mother who just wants to get on with being a mother. In all the circumstances I am satisfied the orders now being proposed are in the best interests of the child. I make those orders. I also make an order that the Independent Children’s Lawyer be discharged.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 April 2018.

Associate:

Date: 30 April 2018