Fitzpatrick and Power
[2009] FMCAfam 1007
•2 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FITZPATRICK & POWER | [2009] FMCAfam 1007 |
| FAMILY LAW – Children – interim relocation – best interests of young baby – with whom the child lives and spends time. |
| Family Law Act 1975 ss.60B, 60CA, 60CC(2), (3)(1), 61DA(3), 65DAA |
| AMS v AIF (1999) 199 CLR 160 P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145 |
| Applicant: | MR FITZPATRICK |
| Respondent: | MS POWER |
| File Number: | CAC 302 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 1 September 2009 |
| Date of Last Submission: | 1 September 2009 |
| Delivered at: | Canberra |
| Delivered on: | 2 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howard |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Maggie Orman, Solicitor |
ORDERS
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
The child [X] born in 2008 (“the child”) live with the Mother.
The Mother have sole parental responsibility for the child. In exercising her parental responsibility, the Mother is to keep the Father informed of any significant medical or other issue involving the child.
Subject to Order 7 below, the mother be at liberty to relocate the residence of the child to Queensland forthwith.
The child spend time with the Father as follows:
On 4 occasions each year for 6 days in the first week of each Queensland school holiday period for 3 or more periods of 2 hours between 9:00am and 6:00pm each day for the first two occasions and then for 3 or more periods of 3 hours between 9:00am and 6:00pm for the second two occasions;
On a further 2 occasions before the family conference in March 2010 for 5 days on each occasion and for 3 or more periods of 4 hours between 9:00am and 6:00pm each day. The dates and time for these periods shall be as agreed between the parties; and
Such further or alternative times as the parties may agree from time to time.
That for the purposes of Order 4:
(a)The Mother will travel to the [Y] district for the first week of the Term 2 holidays and for one week during the Term 4 Queensland school holidays, at her own cost, unless the Father advises no less than 5 days prior to the relevant period that he will be unable to spend time with the child during that period;
(b)The Mother will travel to the [Y] district for the periods of time pursuant to Order 4(a) at her own cost.
(c)The Father will travel to the district where the Mother is then living for the first week of the Term 1 and Term 3 Queensland school holidays, at his own cost;
(d)The Father’s time spent with the child is to include his other children, being [A] born in 1997, [B] born in 2000 and [C] born in 2001.
(e)Unless otherwise agreed between the parties, the time that the child is to spend with the Father shall be supervised by either or both of Ms C or Ms D (“the supervisors”).
(f)The time that the Father is to spend with the child shall, unless the parties otherwise agree, alternate between the homes of Ms D and Ms C.
(g)The Mother, if she chooses, may be present in the house or locality where the child is spending time with the Father but must remain in another room or apart from the Father and child unless she is required to calm the child if he is distressed;
(h)Prior to the commencement of each period of time the child is to spend with the Father, the supervisor must check the sobriety of the Father. If the Father is intoxicated then that period of time shall not occur. If the Father disputes that he is intoxicated then he may choose to submit to a breath test, and if the reading is less than 0.02%, then the period of time shall occur. The mother may be present at the commencement of each period of time and during any sobriety test.
The Father be and is hereby restrained from consuming any alcohol within 6 hours of the time he is to commence spending time with the child, or during the time he spends with the child.
Orders 2, 3, 4, 5, 6, 7 and 11 of the Orders made on 13 May 2009 are discharged.
Upon the completion of her contract with [W] the Mother return the residence of the child to within 60 kilometres of [Y], NSW. It is noted that the Mother’s contract of employment is for 18 months.
The Mother notify the Father forthwith of any serious illness or injury affecting the child and be at liberty to contact any Doctor or hospital treating the child to obtain information.
Pursuant to s. 62G of the Family Law Act 1975 the parties together with the child attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the child attending at the Federal Magistrates Court at Canberra on 1 March 2010 at 10:00am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family conference report.
The matter be adjourned to 29 March 2010 at 10:30am.
IT IS NOTED that publication of this judgment under the pseudonym Fitzpatrick & Power is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 302 of 2009
| MR FITZPATRICK |
Applicant
And
| MS POWER |
Respondent
REASONS FOR JUDGMENT
A. Introduction
On 1st September 2009, I heard, on an urgent basis, an application by the Respondent Mother to relocate from the very small country New South Wales town of [Y] to the Whitsunday area in Queensland. I delivered ex tempore reasons the following afternoon. At that time I indicated that, in the event that written reasons were required, because of the need for expedition, I would proceed by way of reference to a significant range of material in an abbreviated manner and incorporate it later into the reasons as revised from the transcript. These are those revised reasons with the incorporated material to which I referred included.
The reasons that follow are in three parts: background; legal principles; and the so-called ‘legislative pathway.’
B. Background
In an application in a case filed on 19th August 2009 the Mother of
10 month old [X] seeks the Court's sanction to relocate to Queensland on an interim basis and that [X] spend supervised time with his Father, Mr Fitzpatrick.
In his most recent of many expositions on relocation, in a paper delivered in June this year, Professor Patrick Parkinson categorises mothers’ reasons for relocating.[1] There are 10 of them. In order, the first and largest category is for the reason ‘to return home.’ The next reason in Professor Parkinson’s list is `a new partner.’ The last reason listed is ‘escaping control’. It might be said that reasons 3, 5, 6 and 10 might usefully describe the issues in play in those proceedings. They are – ‘getting away/fresh start in a new place; lifestyle, including financial reasons; escaping violence and escaping control.’
[1] Professor P. Parkinson, “Relocation: What We Know Now and Why it Matters.” Paper for Family Law Conference, Fiji (June 2009), p.14. For the record, I did not attend that Conference. See also his insightful earlier article, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145.
The parties to the proceedings cohabitated for approximately five months only, between September 2007 and February 2008. They continued to see each other casually after separation for approximately a further five months.
[X] was born in October 2008. Mr Fitzpatrick has three other children from a previous relationship. He currently cares for them on a shared care basis, although that will change in early 2010 for reasons unnecessary to recount at the moment.
Both parties live in the quiet small town in country New South Wales of [Y]. It is a town of approximately 80 to 100 people. Thus, it may readily be inferred, and it is claimed by Ms Power, that in such a small community, there is little that is kept “private.”
As with most interim applications, many matters of fact are disputed. This only makes the decision in this matter, which I heard late yesterday afternoon, even more difficult.
I note too that orders have been made previously in these proceedings. I refer in particular to orders that were made by consent on 13 May 2009 which provided for quite short periods of time for Mr Fitzpatrick to spend with [X]. There were other “protective” orders regarding supervision of Mr Fitzpatrick and for him to undertake a breathalyser test prior to any time that Mr Fitzpatrick was/is to spend with [X]. For ease of reference, a copy of those orders is Appendix “A” to these reasons.
Urgency of Application: There is some urgency in dealing with the application because Ms Power has received a job offer from [W]. That job is located at the Whitsunday branch of the [workplace omitted]. The letter of offer from [W] and the employment agreement were tendered at the interim hearing yesterday afternoon. The letter is dated 20 August 2009. It is clear that some of the details in it vary some of the information provided by Ms Power in her affidavit material provided to the Court. Somewhat curiously the Court was advised by Mr Howard, for the mother, that his client (as did he) saw this letter for the first time only in Court yesterday. Presumably, indeed doubtless, the details of the job offer were conveyed to her orally before that.
Also somewhat curiously, as was noted by Ms Godtschalk, Counsel for Mr Fitzpatrick, was the contention by Ms Power in her affidavit material that the application was urgent because, although on maternity leave, she would need to give adequate notice to her employer who is [W]. It was not explained why she should need to give notice to her current employer when it is that same employer who was the one offering her the new job. Perhaps I missed the explanation.
In any event, it is clear that she is required to commence this new employment in Queensland on 11 September. The contract is stated to be for 18 months. Currently she works part-time or rather more casually in [Y] and for quite limited income. Although her new position will not necessarily put her into a very high income bracket, nonetheless, it will offer a range of opportunities that she does not otherwise currently have, especially in such a small country town.
Two of the few things about which there is agreement is that first, because of his young age, being 10 months, [X] is dependent on his Mother who has been, since his birth, his primary carer. Secondly, for reasons that are otherwise contested, it is also agreed that there is little, if any, relationship between Mr Fitzpatrick and his baby son at the moment. This is also to say that the relationship between Father and son needs to be established.
C. Competing Proposals
The competing proposals of the parties were formally incorporated into my ex tempore judgment. Again for ease of reference, although on the Court file, copies of the respective proposals before the Court are annexure “B” to these reasons.
The competing proposals may be summarised as follows: for the Mother's part they are set out in the Application to which I have already referred. For Mr Fitzpatrick’s part, the orders he seeks are set out in his Response to an application in a case which was filed on 25 August 2009. A separate Minute of Orders Sought was filed by
Mr Fitzpatrick's solicitors on 31 August 2009. Again, the terms of that Minute, are also formally incorporated in these reasons. That Minute is Annexure “C” to these reasons.
D. Legal Principles
Firstly, regarding the legislative pathway, I refer to the Full Court decisions in Goode v Goode, and Keach v Keach.[2] Secondly, respectfully I adopt Brown J’s summary in her regularly cited “twin pillars” comments in Mazorski v Albright in relation to Part VII of the Act.[3]
[2] Respectively (2007) 36 FLR 422, especially at paras.10, 47, 48, 56, 81 & 82; (2007) FLC 93-353 at paras.24 ff.
[3] (2007) 37 FLR 518 at [3] - [6]. I am also indebted to Dessau J’s judgment in M v S (2007) 37 Fam LR 32 especially at [13] - [18] and [21] - [39].
Thirdly, in relation to relocation principles I refer to the following: my summary of principles set out in F v F; the Full Court decision in Taylor v Barker; the Full Court, constituted by Boland J, in Morgan v Miles; and my further decision in Badcoe v Badcoe, and in particular the consideration there of the Full Court decisions in Wiley v Wiley and Winter v Winter.[4]
[4] Respectively: (2008) 38 Fam LR 52 at [7] - [8]; (2008) 37 Fam LR 461 at [53]; (2008) 38 Fam LR 275 at [73] - [92]; (2008) FMCAFam 1368; [2008] FamCAFC 153; [2008] FamFAFC 159.
In most of the above cases the Courts almost invariably have referred to the High Court decisions in AMS v AIF and U v U.[5] I accent, albeit somewhat generally, Kirby J's comment in AMS, at [150] where his Honour referred to the great deal of "judgment, discretion and intuition" involved in relocation cases. I also accent, as I not infrequently do, the observation made by Gummow and Callinan JJ in their joint judgment in U v U, at [92], where their Honours said:
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 of movement have been incurred.
[5] Respectively: (1999) 199 CLR 160; (2002) 211 CLR 238.
It is essential to note here that unlike many interim relocation matters, in this instance there has been no unilateral relocation. Rather, the applicant Mother, very properly, and it would seem at some personal cost in a variety of senses, has submitted herself to the processes of an adjudication by the Court. This is no small matter, but obviously not necessarily a determinative one.
Formally I incorporate ss.60B, 60CA, 60CC (2) and (3) into these reasons.
I will deal firstly with s.60CC(3) before dealing with s.61DA(3) and s.65DAA. Two things should be noted, although I have already referred to them. First, we are concerned here with a very young child who, understandably, remains totally dependent on his Mother. Secondly, it is agreed or conceded that the Father has spent very little time with [X] since his birth. It is seriously contested why this was or is so. From the Father's perspective, it is because he is prevented from doing so by Ms Power. From her perspective, it is because Mr Fitzpatrick either does not turn up or turns up having [obviously] consumed significant amounts of alcohol.
And so to the ascetic `legislative pathway.’ Having already noted Brown J’s “twin pillars” summary in Mazorski v Albright, I will go straight to s.60CC(3).[6]
[6] I seek to follow sequentially the order of paragraphs in s.60CC(3) without necessarily naming each paragraph. Those not specifically referred to may be taken to have no application in the current proceedings.
First, obviously, there are no views to consider that have been expressed by the child in terms of the nature of the relationship of the child with each of the child's parents. [X] is a young baby and, as I have already remarked a number of times, he is dependent on his Mother. There is limited, if any, relationship with Mr Fitzpatrick. The relationship between [X] and Mr Fitzpatrick needs to be established. The central issue to determine is how this can best occur.
In terms of [X]'s relationship with other persons, including grandparents, there is limited evidence. Mr Fitzpatrick’s Mother confirms that she has a strained relationship with [X]’s Mother but says that she wishes to see him otherwise. Similarly there is the assertion that Mr Fitzpatrick's three other children, who are in the age range of approximately 7 to 10, love [X] and wish to spend time with him. Given that they will move to Canberra either later this year or early next, and that they spend time with their Father every alternate week, the opportunities they will have to spend time with [X] will necessarily, in any event, be limited.
As to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, even on the limited and untested evidence before the Court, it is clear that there are significant strains between the parents. At this stage, this does not auger well for much in the way of cooperation and promotion of a relationship with the other parent. Moreover, because of [X]'s young age, it will be difficult for either parent to promote the other parent's relationship with their son other than by facilitating or not impeding some basic practical matters that would make time between [X] and his Father, for example, less confrontational and more nurturing.
In terms of the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents, together with the matters that are addressed in sub-para.(e) to which I will come to shortly, this is patently the biggest issue before the Court. On one view, if Ms Power is permitted to relocate, on the current evidence, it would likely make little difference to [X]'s relationship with his Father.
I accept Ms Godtschalk's submissions on behalf of Mr Fitzpatrick that it is generally understood that very small children require frequent, albeit short periods of time, in order to bond with a parent or other significant person. In my view, the orders that I propose will facilitate, at least the beginning of a relationship between Mr Fitzpatrick and his son. It will require careful monitoring, and, therefore, appropriate orders in this regard are essential.
In terms of the practical difficulty and expense of [X] spending time with and communicating with his Father, and the other matters canvassed in sub-para.(e), the logistics here involved in Ms Power's application to relocate pose significant issues for Mr Fitzpatrick's time with his son, but so too does Mr Fitzpatrick's drinking about which there is significant evidence. Some of his drinking is social. Some of it clearly is not. Likewise, Mr Fitzpatrick's work responsibilities pose limitations on his time with [X] as do, to a limited extent, his responsibilities to his other children.
Because it is her application, if she is permitted to move, in my view, most of the burden of travel in bringing [X] to spend time with his Father should be borne by Ms Power. As proposed, as I understand it, Ms Power proposes that Mr Fitzpatrick spend time with [X] four times per year in the school holidays, the cost of that time essentially to be shared between them. In my view, she should travel to the area of Mr Fitzpatrick's residence four times per year to coincide with the school holidays, as well as two other times within the first six months of her time in Queensland, on dates and times to be agreed.
In terms of the capacity of each of the child's parents to provide for the [X]’s needs, this does not seem to have been raised as an issue at this stage of the proceedings, other than inferentially by Ms Power against Mr Fitzpatrick. Ms Power’s contentions are countered by
Mr Fitzpatrick's former wife, and by his mother, confirming that he has been and remains a hands‑on dad and who has had and continues to have the shared care of three other older children.
In terms of the maturity, sex, lifestyle and background of the child, I do not need to repeat the fact that [X] is of a very tender age and that he remains totally dependent on his Mother. Likewise, I do not need to repeat matters that I have already canvassed in relation to the parental attitudes to the child and responsibilities of parenthood. Nor do I need to repeat what has been said already given that the conflict of the competing evidence remains untested and therefore unresolved.
In terms of family violence, it was submitted by Mr Howard, on behalf of Ms Power, that according to subpoenaed material from the [Y] Country Club, Mr Fitzpatrick had a significant record of alcohol-related violence. Certainly it is indisputable that he has a significant history, dating from 1995 at that establishment, regarding threatening behaviour, abusive language and assault on a bartender at the club and various, rather regularly imposed, disciplinary action taken by the club against Mr Fitzpatrick. Usually, it seems, these actions result in him being disbarred from the club for varying periods of time. The last of these events took place in 2007. It would also seem unquestioned that these consistent anti-social events were alcohol related.
I note again that the consent orders, which were made in May this year, require Mr Fitzpatrick to undertake a breath test before he can spend any time with [X].[7] On Ms Power's evidence, he has failed such a test somewhat regularly, as well as not turning up on a significant number of occasions. For his part, Mr Fitzpatrick, denies these matters saying, amongst other things, that the breathalyser either does not work, is wrong, or that Ms Power offers him time with [X] when she knows that after work he has a few drinks and he would therefore inevitably fail the alcohol test he consented to undergo. I should also note that
Ms Godtschalk provided the Court with a copy of Mr Fitzpatrick's liver function test. It appears to be normal.
[7] See Appendix “A”.
For her part, Ms Godtschalk also drew from the subpoenaed material to indicate that the police considered it doubtful in relation to one matter complained of by the Mother, whether it could reasonably constitute harassment or intimidation.
Perhaps I should also note, for the sake of completeness, that
Mr Fitzpatrick complains, if that is the correct word, that he is subject to a condition imposed by Ms Power if he is to see [X]. That condition, according to him, is that he is required to have sex with Ms Power before he sees his son. If correct, this would perhaps put sex into the category, as discussed by some, as some form of contact sport or diversional therapy. Again, I can make no formal findings on such matters at this stage of the proceedings – if I ever need to.
I move then to s.60CC(3)(l). The orders I propose are those which, with appropriate monitoring included, are the least likely, in my view, to involve further litigation. This may, of course, as with all orders, be more aspirational than anything else.
E. Overview
In any event, by way of summary, the limited and untested facts before the Court confirm that Ms Power has been and remains [X]'s primary carer. Mr Fitzpatrick currently has little or no relationship with his
10 month old son, [X]. Mr Fitzpatrick has some considered and regular use of alcohol which, in the not too distant past, has caused him and others a range of difficulties.
Ms Power has the opportunity to undertake secure work in a very different environment which is a very significant distance removed from a very small community in country New South Wales. In my view she should have that opportunity. That opportunity brings with it two significant responsibilities. First, Ms Power must ensure that she returns to the [Y] area, rather more regularly than I am sure she would otherwise wish, to facilitate time between [X] and his Father. She must bear the cost of three-quarters of those trips: that is, four out of the six trips proposed. Secondly, in the absence of written agreement with
Mr Fitzpatrick, pursuant to the principles established by the Full Court in Sampson v Hartnett (No.10),[8] Ms Power must return to that same region, or within 60 kilometres of [Y], immediately upon the conclusion of her contract with [W]. The parties are to attend upon a Family Consultant of the Court in early March 2010 with [X]. The matter will be listed before me later that month. The dates and times for the family conference and the mention before me are to be advised.
[8] Sampson v Hartnett (No.10) (2008) 38 Fam LR 315 especially at [57] – [58]. In my view, the circumstances of this case are “exceptional” as that term is generally used by Kay J in Sampson v Hartnett (No 10) at [121]. I do not take his Honour to seek to circumscribe what might, and what might not, constitute “the most exceptional circumstances.” By definition, “exceptional” must be taken to mean `out of the ordinary.’ This is such a case.
I accept also that this case does not fit into the general observation by Bryant CJ & Warnick J, at [75], regarding the usual expectation of orders being conditional on the availability of “significant wealth” of both parties. It is clear that Ms Power is not moving to a place where she has resided for a long time. She is moving, essentially for work and life-style opportunities. But she is doing so for a defined time, and then returning to an area that, all going well, will enable [X] to spend significant and substantial time with Mr Fitzpatrick.
In relation to the time that [X] spends with his Father, until after we all have the benefit of a family report, it should remain supervised. That is to be by either, and alternating between, the paternal Grandmother and a nominated maternal aunt, Ms D, as nominated by Ms Power or as otherwise agreed between the parties. The supervisors are to check
Mr Fitzpatrick's sobriety, and his well-being more generally, to ensure his capacity to spend time with [X]. Formally, given the order in relation to supervision, until further order, I dispense with the requirement for him to be breathalysed before spending time with [X]. As well, the time that [X] spends with his Father should also, as far as humanly possible, be calibrated to include some time that involves
Mr Fitzpatrick's other children being [X]'s half siblings.
In relation to the operation of s.61DA and the presumption of equal shared parental responsibility, the circumstances militate against such an order at this stage. I do not see that it would be in [X]'s best interests, particularly given his age. That said, Ms Power is to keep
Mr Fitzpatrick informed about any significant health or other issues involving their son.
In the light of the matters I have canvassed and the orders I have made, s.65DAA has no operation at this time.
In my view, given the zero relationship that [X] currently has with his Father, there is scope in the orders for a gradual build-up of time between Father and son. As well, given his very young age and the quite limited scope of Ms Power's contract of employment, there remains a very significant scope for the father/son relationship to be built upon in the future. The orders proposed are, in my view, in [X]'s best interests (as well as those of his parents) at this stage of proceedings.
F. Conclusion
I conclude these reasons with observations made by Federal Magistrate Brewster in Wiley v Wiley that were quoted by the Full Court in that case.[9] As quoted by the Full Court, at [32], his Honour said, at [56]:
I acknowledge that the conclusion I have outlined in the previous paragraph is laconic in the extreme. I state a conclusion but do not explain how that conclusion was arrived at....
[9] [2008] FamCAFC 153.
Hopefully I have done so to some degree here. I continue with Brewster FM’s observations, as quoted by the Full Court in Wiley, still at [32]:
But I do not believe I can do better than I have. I have to balance the advantages, insofar as the best interests of the children is concerned, of the mother (and of course the children) remaining in [T] with the advantages of the mother (and the children) living in [S]. But how do you compare them? It is akin to comparing apples and pears. It is impossible to qualitatively compare the two. The decision as to where the balance lies falls to me to assess. I have found that it lies in favour of the mother being permitted to relocate. Essentially that is a value judgment which is incapable of analytical explanation.
I interpose here to repeat that Ms Power is to return to the [Y] area within a relatively short time, namely, at the conclusion of her contract.
Brewster FM then goes on to quote again Kirby J in AMS v AIF where his Honour (i.e Kirby J, at [150]) said that judgments such as these involve:
... a large element of judgment, discretion and intuition....
Given the logistical issues involved in negotiating the practical matters to which I have referred between the parties, and the families that are impacted or otherwise caught up in these proceedings, I request the legal representatives, Mr Howard for Ms Power and Ms Orman for
Mr Fitzpatrick, to consult and, in turn, to engross orders that will give effect to what I have said, especially having regard to school holiday schedules and the like. When that consultation and those orders have been engrossed, I will formally make those orders in chambers.[10]
[10] For the sake of completeness, I note that an application for a stay was made by Mr Fitzpatrick shortly after the above reasons were delivered ex tempore. I have not been asked to provide written reasons for rejecting that application. In the course of argument during the stay application I observed that, given the workload of the Full Court, and usual time-frame (if there is such a thing) for hearing and delivery of judgment in appeals, there would be a strong prospect that Ms Power and [X] would have returned from the Whitsundays prior to the appeal having been determined.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: D-R Gale
Date: 24 September 2009
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