FORRESTER & ULSTONE
[2015] FCCA 1152
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORRESTER & ULSTONE | [2015] FCCA 1152 |
| Catchwords: FAMILY LAW – Practice & Procedure – injunction sought to preclude father from continuing to instruct his current solicitors – consideration of the fraught nature of family law proceedings – the need to err on the side of caution – injunction granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 61DA, 65DAA |
| U & U (2002) 211 CLR 238 McMillan & McMillan [2000] FamCA 1046 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 |
| Applicant: | MR FORRESTER |
| Respondent: | MS ULSTONE |
| File Number: | TVC 95 of 2015 |
| Judgment of: | Judge Coker |
| Hearing date: | 2 March 2015 |
| Date of Last Submission: | 2 March 2015 |
| Delivered at: | Mackay |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fellows |
| Solicitors for the Applicant: | O’Shea & Dyer |
| Counsel for the Respondent: | Ms Mayes |
| Solicitors for the Respondent: | Kroon Legal |
ORDERS UNTIL FURTHER ORDER
That the Father have sole parental responsibility for the long-term and day-to-day care, welfare and development of the child, X born (omitted) 2009.
That the child live with the Father in (omitted).
That the child have the opportunity to spend time with the Mother, his siblings and Maternal Grandparents at such times as may be able to be agreed between the parties and, failing agreement, as follows:
(a)For the whole of the end of Terms 1, 2 and 3 gazetted school holidays; and
(b)For one half of the end of Term 4 gazetted school holidays as follows:
(i)With the Father for the first half in even numbered years and with the Mother for the second half in even numbered years; and
(ii)With the Mother for the first half in odd numbered years and with the Father for the second half in odd numbered years.
That the Father be restrained from continuing to instruct solicitors O’Shea & Dyer Solicitors Pty Ltd to act for him in these proceedings involving the Mother.
That the costs of both parties be reserved and the matter is certified for counsel.
That the matter be adjourned for further mention at 10.00am on 13 May 2015 at Townsville.
IT IS NOTED that publication of this judgment under the pseudonym Forrester & Ulstone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MACKAY |
TVC 95 of 2015
| MR FORRESTER |
Applicant
And
| MS ULSTONE |
Respondent
REASONS FOR JUDGMENT
THE APPLICATIONS
These proceedings relate to the parenting arrangements to be made with regard to a young child, X. X, born (omitted) 2009 and, therefore, just recently six years of age, is the child of Mr Forrester, whom I shall refer to as the father, and MS ULSTONE, whom I shall refer to as the mother.
The father commenced these proceedings on 28 January 2015 by the filing of an initiating application seeking orders on both an interim and final basis. The interim application is that which is before me at the moment and the orders that have been sought by the father can be generally summarised as follows:
·that the application be heard urgently;
·that the mother take steps to return the child X to (omitted) Queensland;
·that if the mother does not facilitate that move, then that a recovery order issue directed to the marshal of this court and to appropriate state and federal police officers to affect the apprehension and delivery up of the child;
·that the father have sole parental responsibility for decisions to be made in relation to the child;
·that the child live with the father in (omitted) Queensland;
·that the child spend time with the mother at all such times as may be agreed between the parties and, if not agreed, then pursuant to orders of the court;
·that there be certain injunctions put in place, including an injunction in respect of the mother’s consumption of alcohol in the presence of the child or during any time that the child is in her care and for a period of 24 hours prior to the child coming into her care;
·that the mother attend alcohol rehabilitation and participate in same as and when that may be able to be facilitated; and
·that the mother subsequently provide the father with evidence from the alcohol rehabilitation organisation that she has attended alcohol rehabilitation and she has completed alcohol rehabilitation.
The mother’s response to the father’s application was filed on 17 February 2015. The mother sought orders also with regard to final and interim arrangements in relation to parenting. The orders that the mother sought with regard to the parenting of X were, to a significant degree, a mirror image or reflection of those sought by the father but from the perspective of the child being in the care of the mother.
She, in fact, sought an order that the child be returned to her care, it being the case that subsequent to the father’s initiating application being filed, the father attended in Western Australia and, however it may have come about, the child was removed from Western Australia and is now residing with the father in (omitted) Queensland.
Additionally, the mother sought the issue of a recovery order and, thereafter, proposed that the child should live with her and that an injunction issue, restraining the father from removing the child from any school or educational institution, sporting or extra-curricular activity or event, the child’s principal place of residence and, more specifically, removal from the State of Western Australia.
Additionally, and as it takes some significance in relation to this matter, the mother also sought that whilst she has proposed that the child live with her, there should be an injunction specifically in place which would preclude the father from removing the child from the care of the maternal grandparents, Ms J, and the maternal step-grandfather, Mr R.
Further, the mother proposed that there be orders with regard to telephone or other electronic communication between X and the father, and that the father have the opportunity to spend time with the child, to coincide with the West Australian school holiday periods, for a total of four weeks, including with specific times detailed between 3 and 17 January each year and for two weeks during the end of what is generally considered the term 2, winter school holiday period.
It was specifically sought as an additional order, however, that the father be restrained from continuing to instruct solicitors, O’Shea & Dyer, from acting in the proceedings against the mother, it being suggested that O’Shea & Dyer had previously acted on behalf of the mother or, perhaps more accurately, on behalf of both the mother and the father.
THE ARGUMENT
The proceedings conducted before me were conducted in two parts, in that the issue of whether an injunction should be considered with regard to a restraint upon O’Shea & Dyer continuing to be involved on behalf of the father was argued, as was the far more significant and I do not mean to be disrespectful in relation to the issue of O’Shea & Dyer, but from the perspective of the welfare and wellbeing of the child, the far more significant issue of with whom X should live and, flowing from that, where he should live.
The issues that arose in relation to this matter were a little different to those that would sometimes come before the court. It would appear, for example, that there is acknowledged to be serious concerns with regard to the mother’s use of and, unfortunately, abuse of alcohol. It is not suggested for a moment, however, that that should be an excluding factor, in relation to the mother’s relationship with the child, but it certainly is a factor that needs to be considered, because the parents had agreed, prior to separation being effected between the mother and the father, that the mother would participate in an alcohol rehabilitation program to be conducted by an organisation known as (omitted). More particularly, it was also agreed that there would be arrangements made for the mother and X, as well as the mother’s children of a prior relationship, to travel to Western Australia with the mother.
It was also proposed that the maternal grandparents have responsibility for the care of the children and that, if possible, the father was both to spend time with the children and, in particular, X as much as could be facilitated. And, at least in passing, it was also suggested that there might be the opportunity for the father to seek work in the mining industry in Western Australia and, therefore, to have much closer involvement with the child than would be the case if he were to continue living in Queensland and just spend time with the child on occasions that were able to coincide with time off and his ability to travel to Western Australia.
There was, certainly, an acknowledgment of what was, therefore, to occur, but a number of factors have intervened. It is significant, at least from the father’s perspective, that shortly after the mother travelled to Western Australia she notified the father, it would appear on or about 26 December 2014, that she considered the relationship between the two of them to be at an end. Additionally, the mother, it would seem, suggested that she had established, in a short period of time after travelling to Western Australia, a relationship with Mr S.
Mr S is the widower of the mother’s best friend, Ms C, and it appears that both the mother and Mr S understandably have been experiencing a considerable amount of grief as a result of the death of their friend or wife and that they have, at least to some extent, taken solace in each other’s company and that that has led to a relationship being established.
The father indicates that he had certain suspicions about the relationship between the mother and Mr S from September/October when Mr S travelled with the maternal grandmother and his son, A, to Queensland and spent some time with the father and the mother and their extended family in (omitted).
Whether, in fact, a relationship was established at that time or whether it was simply, as I have indicated previously, for the purposes of solace and friendship is unclear and, perhaps to some extent, irrelevant in relation to the determination of these proceedings. But what is clear is that, as a result of the relationship between the mother and Ms S being established, the goal posts have changed, at least from the perspective of the father, in relation to what should occur with X.
Additionally, and it is relevant in relation to these proceedings, consideration must also be given to the fact that, whilst there is only one child of the relationship between the mother and the father, both the mother and the father have other children of prior relationships. The father indicates in his material that he has three adult sons from a previous relationship, those sons being 21, 25 and 30 years of age. Additionally, however, the mother has children of prior relationships, those children being Y who turns 18 this month, Z who is 15 years of age, and W who is 12 years of age.
It appears that for some time, the 15 year old, Z, has not lived with the mother and the father, but has rather resided with his father in (omitted), but certainly Y and W have been a significant part of the life of the family and, of course, flowing from that, a significant part of the life of this young man, X. It, of course, adds, if you like, just one more level of complication in relation to arrangements to be made, with regard to the parenting of this child.
If you like, the father says that whilst there was a secure and established relationship between he and the mother, there was an agreement as to what was to occur in relation to the parenting of X. However, the father also makes clear in material that has been provided by him, that the change to circumstances with regard to the relationship between he and the mother is such that, in his assessment at least, the appropriate course to follow, particularly with regard to X, is for X to return, as has now occurred, to (omitted) and to live with the father, with the father to be primarily responsible for the care and supervision of the child.
It is noteworthy that the father instructed O’Shea & Dyer prior, it would seem, to being aware formally, though he had suspicions, of the breakdown in the relationship between he and the mother. I say that because in communications between the firm O’Shea & Dyer and the mother, which communications are annexed to the father’s material and dated, respectively, 5 and 10 January 2015, there is reference to instructions having been provided by the father to O’Shea & Dyer, prior to Christmas 2014.
The relevance, of course, is that the father says that the first formal notice given to him of the mother’s view that the relationship was at an end was provided by telephone on Boxing Day, 26 December 2014. However, what the father’s instructions to O’Shea & Dyer were constituted of just prior to Christmas 2014, was a statement of what he considered the circumstances that existed between he and the mother and what he says were the arrangements or proposals in respect of the parenting of X depended upon what might or might not occur, in relation to the mother’s time in Western Australia and, of course, the treatment that the mother is to receive for alcohol rehabilitation.
The father’s solicitors say in their letter of 10 January 2015 the following:
Our client instructs us that you and he have lived together in (omitted) with X, W and Y for the last approximately 6 years. We understand that your oldest son, Z, who is 15 has for some time now resided with his father in (omitted), WA although he did live in (omitted) for a period.
Our client instructs us that for many years you have suffered from depression and with associated alcoholism.
Our client instructs that in quite recent times you have expressed a desire to return to live in Western Australia and that our client has made it clear to you that he strongly opposes you returning to Perth and thereby making it impossible for him to maintain any meaningful relationship with X. Our client also notes that W has next year been accepted into the Sports Excellence Program at (omitted) High School.
Our client instructs us that you have been advised by your treating Doctor that your health is being seriously compromised by your alcoholism and that you have accepted that you need to enter rehabilitation for treatment. We understand that you are waiting to hear from “(omitted)” a leading alcohol and drug treatment services based in Western Australia in relation to your admission to that centre.
The correspondence then goes on:
It is for this reason that our client has agreed to your travelling to Western Australia with X from about 17 December 2014. Due to the nature of the treatment for your condition our client is aware of the difficulty in putting a definitive timeframe on the time you will be required to be in Western Australia but anticipates that certainly by the end of March 2015 your treatment will have commenced at the centre. Clearly the nature of alcoholism is such that long term treatment and support will be ongoing.
Our client instructs that he has only agreed to your travelling to Western Australia for this treatment on the basis that X will reside with and be cared for while you are in Rehabilitation by your mother Ms J.
Our client instructs us that he will be travelling to Western Australia during this period both to see you and to spend time with X.
The correspondence then continues in the final paragraph:
In the event that you change your mind and decide not to enter Rehabilitation as agreed, then our client will be insisting upon the immediate return of X to (omitted). Further, in the event that you remain in Rehabilitation as at the end of March 2015, then our client will review X’s care arrangements and will consider at that time (or sooner) whether or not it is in X’s best interest that he remain in Western Australia or that he returns to (omitted). We note that our client has already spoken to his employer who has indicated that were our client to have X in his care, then our client would be allocated a day job so as to enable him to care for X. We also note that X remains enrolled at the (omitted) Primary School for 2015.
A number of factors therefore are outlined in that correspondence, not the least of which is that there was an agreement with regard to the child accompanying the mother to Western Australia for the purposes of her treatment. It is clear, at least from the father’s perspective, however, that there were also caveats on the circumstances or the basis upon which treatment would occur. One of those now arises, though it is the subject of dispute between the mother and the father, relating to the care of X. The father says that there was agreement that care primarily would be provided by the mother’s mother and her husband, Ms J and Mr R.
From the father’s perspective, however, the relationship that has now developed between the mother and Ms S is such that he is of the view that Ms S is taking a more significant role in the parenting of X and that that falls outside the grounds or ambit of what was agreed. Additionally and perhaps more significantly from the perspective of the father, there is also the issue of the mother’s treatment. It is, unfortunately, unable to be predicted with any accuracy whatsoever what will be the timeframe of treatment or even, at the present time, when that treatment will occur or commence, it being the case that, as best I understand the evidence, whilst the mother is engaged to commence a course of treatment at (omitted) it is not the case that that has commenced as yet.
It is also clear that the treatment program will be one of quite significant length. It would seem that the minimum period of time, though it is not recommended that it should be so short, would be in the vicinity of four to five months but may, with the needs to address all aspects of the mother’s alcohol rehabilitation, extend out to a period of a year or thereabouts. The father, therefore, says that as the mother would be required to participate in an in-house program, it would be an inordinately long period of time where X would not be in the care of either of his parents.
What will also be a significant consideration, certainly from the father’s perspective, is that if it were to be the case that X were to remain in Western Australia, he would either be in the care of Ms S or, more hopefully as least from the father’s and mother’s perspective, in the primary care of the maternal grandmother, but would not be obviously enjoying the opportunities for a meaningful relationship with either of his biological parents.
Unfortunately, the information that has been provided by the mother in relation to her rehabilitation program, is not so extensive as to indicate, for example, what might be the periods of time that are needed to pass before the mother would be able to take visitors or to see the children of her relationship with the father, as well as the older children and therefore it is unknown what opportunities for interaction there will be, with the mother.
More particularly, however, it is clear that if it were the case that this little boy were to be living in Western Australia, there would only be, certainly at the present time and in the present circumstances, limited opportunities for X to spend time with his father. It is a factor to be considered but of course, as was emphasised by counsel for the mother, is also a factor which needs to be balanced against the considerations of the child’s established relationships with his older siblings, as well as the established relationship with his maternal grandmother and maternal step-grandfather.
THE EVIDENCE
If you like, that encapsulates the very varied and difficult issues that need to be addressed in relation to the proceedings. From the father’s perspective, therefore, it is simply a case of the father being ready, willing and able to provide for and to meet the needs of this little boy and, if you like, to also take into consideration that whilst there is no doubt an established relationship with the mother, though there will be some difficulties over time whilst the mother receives treatment in relation to the continuation of that relationship as well as a relationship with his older siblings, there is correspondingly a relationship with the father and an established place that the child has grown up in.
The parents have been in a relationship for about six years, the age of this little boy, and it would seem that during the entirety of that relationship, or certainly the vast majority of it, the parents have resided together in (omitted) and that has been the area where the child has grown up and no doubt is the area in which he has established his friendship and peer groups as well as been settled in what is occurring, particularly, for example, now with regard to the commencement of his educational years.
The father submits therefore that there is a very great difference or distinction to be drawn between what is available in Western Australia and what is available in Queensland, primarily arising from the fact that in Western Australia there is limited opportunity for the relationship that X has with either parent to be fostered and developed, whilst at least if he were to be residing in (omitted), there would be the continuation of the involvement of the father in the child’s life and therefore the benefits that would flow from that.
Of course, correspondingly, in Queensland there would be clearly limitations on firstly the opportunity for X to spend time with his mother though, as I say, there is little information immediately available in that respect with regard to what interaction there might be over the first weeks or months of the mother’s rehabilitation program. Additionally, however, there would be a radical change in respect of the child’s interaction with his siblings and in particular Y and W.
It may also be that there would be a limitation on the opportunities that X would have to spend time with his older brother Z, although again, whilst it appears that Z is residing in (omitted) in Western Australia, it is unclear as to what might or might not be the opportunity for Z’s re-establishment of his previous relationship with X. In any event, the real difficulties here are to look at what arrangements are required to be put in place and how they best meet the needs of the child.
I am mindful, of course, of the various statutory requirements that a court must consider in relation to parenting. There is the general starting point, as is always the case, of section 60CA and the fact that the paramount consideration is the welfare and the best interests of the child. Of course a number of other matters need to be considered and the first of those is the issue of parental responsibility. Both the mother and the father have addressed such issues or at least some of the difficulties that might arise with regard to such issues, in respect of the parenting of the child.
The mother’s response simply proposes that X live with the mother and then also of course details the arrangements with regard to the father’s opportunity to spend time with the child. The father’s initiating application proposes not that there should be no orders made with regard to parental responsibility and, if you like, therefore, the presumption of equal shared parental responsibility but rather the father says that he should have sole parental responsibility, in relation to long-term decisions.
THE LAW
The court must exercise a discretion in relation to whether it is satisfied that there are circumstances that might rebut the presumption of equal shared parental responsibility. Issues of domestic violence or family violence, of course, are specifically addressed in the provisions of section 61DA of the Family Law Act. Here, however, there are no specific considerations that arise with regard to a rebuttal on the basis that there are concerns of abuse of the child or family violence within the household.
There is certainly, if you like, by inference, some concerns that the father expresses in relation to the mother’s capacity to provide for or to meet the needs of the child, arising from her acknowledged alcoholism but it is also clear that that has been addressed by both of the parents but particularly the mother, in taking steps with regard to having the significant assistance of her mother, the maternal grandmother.
The more general catch-all of whether the presumption of equal shared parental responsibility is rebutted arises pursuant to the provisions of section 61DA(4). Section 61DA(4) is in these terms:
The presumption may be rebutted by evidence that 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 for the child.
One factor looms very large in relation to this matter and it is the unknown with regard to the mother’s rehabilitation program, in relation to alcoholism. It appears clear that the rehabilitation program conducted at (omitted) is an intensive program. It is referred to in its own pamphlets, which are annexed to the mother’s material, as being in a somewhat isolated community in which the persons receiving treatment live in-house and are, as best I understand it, unable to come and go.
It is not clear whether there are, at least to any significant degree, restrictions on communication but what appears clear is that if it were to be the case that the parties were to have equal shared parental responsibility, for example in relation to decisions with regard to educational and medical issues, there would be anticipated, as best I can understand the material so far, to be difficulties that would arise in relation to communication with the other parent, specifically with regard to decisions to be made. That would be, if you like, in fact, further extended if it were, as suggested by the mother to be the case, that she have the child live with her, though acknowledging that for at least some period, perhaps quite a significant one, it would be the case that X would be cared for by his maternal grandparents.
How there might then be decisions made, when the child is living with persons who would not have, even in part, responsibility for decisions to be made with regard to the parenting of this child, at least insofar as long term decisions are concerned is difficult to imagine. It is a matter that troubles me in relation to the issue of parental responsibility and in my view, gives rise to circumstances where I am not satisfied that it would be in the best interests of the child for the parents to have equal shared parental responsibility.
What must then be considered, of course, is with whom should the child live and how should that be facilitated, because it will be that consideration or determination which leads ultimately to the determination of with whom sole parental responsibility should vest. I am mindful, of course, of the matters details in section 65DAA of the Family Law Act and of course, of the fact that if I were to be of a mind to make orders with regard to equal shared responsibility, then the court must consider equal time or substantial and significant time, as defined pursuant to the provisions of section 65DAA(3).
In this instance, however, one of the few really agreed factors in relation to the matter is that equal time or substantial and significant time, as defined, is an impossibility. I need, perhaps, say no more than the first of the considerations that must be looked at in relation to whether equal time or substantial and significant time is practicable in all the circumstances is to consider how far apart the parents live from each other. I understand that it is many thousands of kilometres and it would be, to all intents and purposes, fundamentally impossible for there to be arrangements made which would reflect equal time.
Other than, if you like, the most ridiculous of circumstances, which might be, for example, six months with the mother or the mothers’ family and six months with the father, because any lesser arrangements would involve changes of school, enormous expenses associated with transportation and the like. Suffice it say that even if it were to be the case that I was of the view that equal shared parental responsibility was appropriate and able to be effective in relation to the decision making process, I am not at all satisfied that it would be practicable, such that it could be effected.
What must then be considered, obviously, are those matters that arise pursuant to the objects and principles of part VII of the Family Law Act relating to children and parenting, and in particular, the provisions of section 60B, subsections (1) and (2) relating to the best interests and welfare of children. Section 60B, subsection (1) and subsection (2) are in these terms:
60B(1) The objects of this Part 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.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and the principles are, if you like, then reflected to all intents and purposes in the considerations which must be looked at by a Court in relation to determining what is in a child’s best interests. Section 60CC and in particular, subsections (2), (2A) and (3) are specifically significant in relation to this matter and are in these terms:
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a) 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;
(b) 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);
(c) 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;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) 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;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
DISCUSSION
There are obviously a number of the considerations here which must be looked at. First and foremost is the primary consideration set out in section 60CC(2)(a) relating to the benefit to the child of having a meaningful relationship with both of the child’s parents. As I have already noted, there are enormous difficulties in that regard with respect to the arrangements that both parents propose. Quite simply, the geographic constraints that arise are such that no matter with whom this little boy lives, there will be difficulties in fostering and developing a meaningful relationship with both of the child’s parents.
There is, of course, the need to protect the child from physical or psychological harm, but as I have indicated, apart from, if you like, the inferred concerns that might arise with regard to the care of the child, if primarily in the mother’s care and she is not dealing with her issues with alcohol, then there might be risks, but overall, it is not a situation where there is a counter balance to the need to ensure that the meaningful relationship that X has with both parents is fostered and developed.
But what is clear here is that the objects of the Act, and they are reflected in section 60CC(2)(a), relate first and foremost to the biological parents of children. It is noteworthy, for example, that section 60B(1) of the objects relates only to issues in relation to the parents’ involvement in a child’s life and the aspects that arise with regard to the care of the child, the protection of the child, the opportunities for a child to receive adequate and proper parenting and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Only in the principles set out in section 60B(2) and the additional considerations reflective of those principles set out in section 60CC(3) is there reference to those other persons who may be so significant in a child’s life. It is clear that the parliament, therefore, was certainly of the view that subject, of course, to that overriding consideration pursuant to the provisions of section 60CA of the Family Law Act, that the paramount consideration is the welfare of the child, there is a priority or first consideration that arises with regard to the child and the child’s relationship with parents.
It is significant in this matter, therefore, that there is only one parent, because of circumstances beyond the control of all, that is able to be fully involved in the life of the child.
There are certainly concerns expressed on the part of the mother, for example, that there may be limitations on the father’s ability to be fully involved in the child’s life. There being, for example, concerns with regard to his current work arrangements and there being, other than bland statements contained within his affidavits, no evidence of the cooperative nature of arrangements that might be able to be made with the father’s employers, to ensure to that he is able to be as fully involved in X’s life and involved in X’s care, as might be appropriate.
But with respect, no matter what might be the circumstances and it would, of course, be expected that the father would take the appropriate steps with regard to ensuring that he is as fully available in the life of the child as possible, there is certainly a distinction to be drawn between the father’s availability, to whatever extent it might be, as opposed to the fact that for some unknown period of time, there will be limited, if any, involvement of the mother in the life of the child. It is a factor of particular significance in relation to this matter and one that weighs heavily in favour of the father’s proposals, at least in the first instance, to be able to provide for and to meet the needs of the child in (omitted).
Of course, it would be essential to also consider the nature of the relationship of the child with other persons, including grandparents or other relatives of the child, and in that instance there is the situation of the maternal grandmother and maternal step-grandfather, as well as significantly, the circumstances of Y and W in the life of this boy.
What might be the degree of attachment between all of those persons and X is a matter which will, of course, need to be more fully inquired into. But at least to some extent, there can be the opportunities for there to be time spent by the maternal grandmother, maternal step-grandfather and siblings with X during periods or opportunities for time to be spent, during school holidays and the like.
Whilst there is clearly a relationship, it is not one which could be suggested to supersede the primary consideration of the benefits of a meaningful relationship with both of the child’s parents and that would be the case if the child were to be living in Western Australia without the opportunity for a fostered or meaningful relationship with both or either of the parents.
There are also, of course, other considerations that need to be looked at in relation to this matter, including, in particular, the provisions of section 60CC(3)(e) relating to the difficulties and expense of a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s right to maintain personal relations and direct contact with both parents. The tyranny of distance looms large. The expenses associated with X’s travel would be, obviously, a factor to be considered, as well as, of course, the simple consideration of the effect on a six year old boy of enormous amounts of travel, particularly in circumstance where, if living with the maternal grandparents in Western Australia, there would be travel to spend time with either parent.
Though, of course, dependent upon how regularly or lengthy might be the periods of time that can be spent with the mother, it would not be as significant as would be the case with time living with the father. It is a factor to be considered, but not one which is insurmountable, in relation to these proceedings and in any event, the parties assumed that one way or the other, there would be significant travel obligations that would arise, in relation to either parent or others being involved in interaction with the child.
Additionally, and I would think, particularly significantly in relation to this matter, is the requirements that arise, if you like, conjointly pursuant to the provisions of section 60CC(3)(f) and (i). Section 60CC(3)(f) relates to the capacity of each of the child’s parents and others to provide for the need of the child, including their emotional and intellectual needs. The starting point is, as stated, the parents’ capacity and with respect, the mother, at the present time, does not have that capacity, at least in the short to medium term, to provide for and to meet the needs of the child emotionally and intellectually.
Because of her illness and the need for there to be a significant rehabilitative period, the mother will not be able to be involved to any real extent in either of those issues with regard to the parenting of this child. It is a factor of particular significance and one that the father says he has taken on board and will obviously need to deal with, as a result of changes that he says will be facilitated, in relation to his employment.
Similarly, consideration must be given to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. I do not, under any circumstances, wish to sound harsh or uncaring in relation to the mother and her situation with regard to alcoholism, but the fact is that whilst it is a disease which no doubt has been brought about as a result of the most unfortunate circumstances that have existed in this woman’s life from a very early age, it is clear that, at least from the perspective of the father, and it is addressed in correspondence and material that has passed, not only between the legal representatives, but also between the parents themselves, there are concerns as to the mother’s capacity to show a proper and responsible attitude, at least at this time, to the obligations associated with parenting, because of the dreadful debilitating effects of her alcohol circumstances.
It is clear, therefore, that on an interim basis at least, I am of the view that there is a proper need for there to be stability in relation to the child, but also there is a need for there to be the involvement of one of the parents who is able to be as fully as possible involved in the life of the child.
Before elaborating upon or detailing the orders that I would intend to make in that regard, however, it is important that two factors be further addressed in relation to this decision by me. The first relates to the issue of relocation and if you like, stemming from that, the circumstances that led to the mother’s travel to Western Australia.
It will need to be the subject of evidence and of course, determinations in relation to proceedings to determine whether there was or was not a unilateral characteristic to the mother’s move. The father says that there was some agreement, but it was upon a base that has changed. From the perspective of the mother it was argued understandably, that the parents had made a decision in relation to this matter and that the parents should abide by that decision.
The first of the submissions made by counsel for the mother was to the effect that the ultimate thrust of the Family Law Act was to encourage parents to make joint decisions, in relation to the parenting of children and these parents had made such a decision. That is, of course, a common argument that is raised in relation to proceedings, but it fails to recognise a number of considerations, not the least of which is that circumstances change or people’s views change in relation to what is appropriate.
Ultimately it falls, if unable to be agreed between the parties, to a determination being made by a court, in relation to not what the parents agreed beforehand, but rather what does the judicial officer hearing the matter consider to be in the best interests of the child. I accept absolutely that at least from the mother’s perspective there was an agreement for a move, but once dispute has arisen in relation to what was to be the case with regard to the parenting of the child, it falls upon the court to decide what is in the best interests of the child.
If you like, the best evidence and example of that arises from the oft considered position of the court with regard to issues in relation to parental responsibility where, for example, one parent or the other might suggest that there be equal shared parental responsibility, but as is perhaps the case here, the view taken by me is that whilst it might be a hoped for situation, in relation to decision-making, it is not one in which there is appropriate circumstances such as to satisfy me that it is proper.
In any event it is almost invariably the case that when a court makes decisions in relation particularly to issues with regard to parenting, the suggestions by the parties are not binding upon the judge making the decision. In that respect I am, of course, mindful of the High Court decision in U & U (2002) 211 CLR 238, and of the comments made if I recall by Gaudron J in relation to the nature of the decision-making process and the fact that what the parents might have agreed might not be considered by the court to be in the best interests of the child.
The second factor that I also think is relevant in relation to this matter, is that whilst there may have been upon some basis, an agreement for X to travel to Western Australia, once dispute arose in relation to the circumstances of the move or whether it was agreed as to how it should occur, the considerations with regard to whether there should be a continuation of the status quo or otherwise, needs to be looked at. I am, of course, mindful of the detailed examination of such issues in such cases as Morgan & Miles (2007) FLC 93-343 as well as Goode & Goode (2006) FLC 93-286. In particular, I note the comments by Boland J, as she then was, in Morgan & Miles with regard to the need, unless there are examples of emergency or risk, of continuing as best there can be the established arrangements that have been in place.
Clearly, not everything remains the same in this family as in so many, because of the separation between the mother and the father, but at least in other respects the father’s proposals provide some continuity of arrangements with regard to house, school, friends, peers and time to be spent with at least one of the parents, none of which are, with respect, available in the short term if the mother’s proposals in relation to parenting of this little boy were to be effected.
As such, as I have indicated, I have come to the view that the father’s proposals, at least on an interim basis with regard to parenting, are appropriate and I intend to make orders which are generally reflective of such an arrangement, such that the father will, subject to appropriate opportunities if they are available, to consult with the mother, have sole parental responsibility for the child and X is to live with the father in (omitted).
I intend, obviously also, to make orders with respect to the child having the opportunity to spend time with the mother and also with his siblings and maternal grandparents at such times as may be able to be agreed, but failing agreement to coincide with the school holiday periods and I will include orders in that respect.
I do not intend to make orders with regard to the mother being restrained from consuming alcohol in the presence of the child. The mother has an illness and there are issues that arise in relation to that. Clearly she is seeking to deal with that particular aspect of her life, but as is hopefully clear from some of the comments that I have already made, that the mother must deal with those issues. If she were to fail to meet those fundamental obligations in respect of ensuring that the child is physically and psychologically safe with her or with others, then she fundamentally fails to meet the obligations that arise in relation to the responsibilities of parenting and clearly they would be factors which would need to be addressed.
Further, I do not intend to make orders with regard to the mother attending alcohol rehabilitation or providing confirmation of having completed such programs. One simply doesn’t know when that will start or when it will conclude, but it is clear that it must be addressed by the mother and as the matter progresses towards some final determination, evidence will need to be available because it is clearly a factor of fundamental significance, in relation to these proceedings.
THE INJUNCTION APPLICATION
I intend also to address the issue that arises pursuant to the mother’s response, with regard to whether or not the father’s current legal representatives, O’Shea & Dyer, should continue to represent the father, in relation to these proceedings. It appears clear that O’Shea & Dyer have previously provided joint legal services or assistance to the parties. It appears clear that that has arisen in circumstances where, for example, wills or powers of attorney have been prepared by O’Shea & Dyer and that there have therefore been those discussions that arise in relation to taking instructions and providing advice.
It also appears clear that, at least peripherally, there were some discussions that involved the mother raising with Mr I of that firm, issues in respect of property rights that might flow, either from matrimonial proceedings, and if you like an application for a property settlement between the parties, because of the fact that she has contributed, it appears acknowledged, a significant sum to the acquisition of property in Queensland, but also alternatively what might be the case in respect of protecting her interests in property, should it have been a situation where the mother and the father in these proceedings had remained together and recognising that the mother had obligations in relation go her older children by a prior relationship.
From the perspective of the father it was understandably argued, that there was not such direct or precise information provided or confidential particulars given, that would affect in any way the father’s right to continue to be represented by solicitors that he had confidence in and was able to be represented by. It’s noteworthy that at the conclusion of written submissions provided in relation to these proceedings, there was specific reference made to the decision in Volker and Anor & Dunwell and Anor, a decision of the Family Court (2013) FLC 93-558 where they adopted the passage from Westpac Banking Corporation v Newey [2013] NSWSC 533, the following statement:
The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction were granted, the integrity of the judicial process would be impaired. The basis for the second defendant’s application existed only in the clouds, at an abstract theoretical level. The facts on which it relied within and the speculation on which it depended was unconvincing.
There, the situation was one where it was simply that, because there had been involvement previously by legal representatives then acting on the part of the applicant, there should be a restriction on the involvement of those lawyers in matters between the current parties.
However, the Family Law Act and the judiciary generally have taken a more robust approach, in relation to such proceedings, not the least because of the fraught nature or characteristics of family law actions generally and the concerns that obviously arise where there are circumstances where through some manner or other, there has been the involvement for one party of legal representatives who then subsequently have had involvement for the other party to a relationship, in relation to disputed proceedings.
It’s interesting that I was referred by counsel for both the father and the mother to the decision in McMillan & McMillan [2000] FamCA 1046 and to the analysis by the Full Court of the previous authorities. In McMillan & McMillan the Full Court judges cited with approval the judgment of Bryson J of the Supreme Court of New South Wales in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, where Bryson J said:
Where confidential information has been communicated by a client to a solicitor and is relevant to litigation in which that client is now engaged and is still available to the solicitor the court should take a cautious approach to any proposal that it should allow the solicitor to act against that client. The considerations are much the same whether the information was communicated in the course of the litigation itself or in earlier business and whether or not the solicitor is a sole practitioner, or is one of a number of partners, or was employed by a principal. I would think that the court would not usually undertake attempts to build walls around information in the office of a partnership, even a very large partnership, by accepting undertakings or imposing injunctions as to who should be concerned in the conduct of litigation or as to whether communications should be made among partners or their employees. The new client would have to join in such an arrangement and give up his right to the information held by such parties and staff as held it. Enforcement by the court would be extremely difficult and it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods as wordless communication can take place inadvertently and without explicit expression by attitudes, facial expressions or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control.
Bryson J then goes on to comment about the circumstances in Sydney which are, of course, not really relevant here, but it is noteworthy that his Honour there specifically spoke about the artificiality of situations that might arise, even as might be the case here with Mr I of the firm of O’Shea & Dyer acting in relation to proceedings. It’s noteworthy that it would appear that since a concern has been identified in relation to the matter, the solicitor handling the application has been another solicitor within the office, Ms C, but the fact is that Chinese walls and screens do not necessarily give rise to the absolute security that might appropriately be considered, in relation to such arrangements.
More particularly, however, it is noteworthy that reference was made specifically in McMillan’s case by the Full Court, to the sensitive nature of the family law jurisdiction, and of the concerns that arise, simply because of the lack of trust that arises specifically in matrimonial proceedings, because of the general breakdown in the relationship between the parties and therefore the concern that there is no respect in all particular ways, with regard to what should or should not occur.
I’m mindful in this particular matter of the decision of Federal Magistrate Walters, as he then was, in Karapataki& Karapataki [2011] FMCAfam 6. There, it was interesting that comment was made by Federal Magistrate Walters about information obtained by solicitors during meetings with clients. He made a number of comments which are apposite to these proceedings. At paragraph 37 he noted:
In a case where a former client’s credibility becomes a matter of significance, his or her former legal practitioner’s knowledge of the “getting to know you” factors can become a powerful weapon at the disposal of the practitioner’s new client. Irrespective of the actual effectiveness of the weapon, it can be anticipated that the former client would feel anxiety about the potential of being cross-examined by a practitioner who might be perceived as being in a position of unfair superiority or by counsel instructed by such a practitioner.
Federal Magistrate Walters then went on to note at paragraph 65, that the “getting to know you” factors, would not be sufficient in themselves to justify a decision to restrain the solicitor in that case from acting for the wife, but then went on -
- but those factors serve to reinforce the conclusions that I have reached in these Reasons. Although Mr K’s relationship with the husband and the wife was not built up over an extended period of time, he saw them both in the role of their legal advisor at a time of obvious tension for each of them.
It is, in my assessment, similar to the situations here. Mr I saw the mother and the father in circumstances where he provided advice with regard to the preparation of wills, but he also acknowledges that he spoke with the wife about concerns that she had in respect of her entitlements to, or protection of her interests in property, as a result of the injection of funds that were made by her. It may be that it was peripheral, but I am satisfied that there was certainly the exchange of some information in relation to issues between the parties, which was of a significant nature, at least insofar as what might arise here.
I am mindful also, as I have noted, of the inherent difficulties that arise in relation to matrimonial proceedings and therefore, the need for there to be absolute distinctions between legal representatives who have previously provided information to both the parties or to a party that they now no longer act for and the need for there to be separation between the parties. It is noteworthy that Kay J, as he then was, in L v L [2003] Family Court of Australia 777 noted, and it was cited also with approval in McMillan’s case, the following:
I think that it is better to err on the side of caution in these proceedings and as regrettable as it may seem to the wife in the proceedings, I think the injunction must flow.
In this instance, I am also of the view that there should be a distinct demarcation between solicitors who have previously acted in any respect on the part of the parties and in circumstances where there is now obviously significantly contested issues with regard to the parenting of the this little boy, but one would anticipate, in due course, also with regard to a property settlement between the parties.
In the circumstances, the orders will be as noted at the commencement of these reasons.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 5 May 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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