GARETH & NAYLOR

[2017] FamCA 793

FAMILY COURT OF AUSTRALIA

GARETH & NAYLOR [2017] FamCA 793

FAMILY LAW – CHILD ABDUCTION - Child taken from Australia – whether reasonably practicable to make certain orders

Family Law Act 1975 (Cth) ss 61DA(2), 65DAA

Morgan v Miles (2007) 38 Fam LR 275
MRR v GR [2010] HCA 4

APPLICANT: Mr Gareth

RESPONDENT: Ms Naylor

FILE NUMBER: CAC 1355 of 2017

DATE DELIVERED: 5 October 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

Orders

1. Until further order, it is ordered that:

   (a)The Applicant and the Respondent have equal shared parental responsibility for B born … 2015 (the child);

   (b)the child live with the mother and spend time with the father as agreed between the parties;

   (c)That on no less than three occasions each week the mother is to make the child available via FaceTime with her father, for a period of no less than fifteen minutes on each occasion, at such times as may be agreed between the parents, but failing agreement each Monday, Wednesday, Friday and Sunday at 5.00 pm Western Australian time; and

   (d)The mother is to surrender all passports for the child within 14 day and is restrained from applying for any further passports for the child.

2. The parties are restrained from removing or causing or allowing the removal of the child from the Commonwealth of Australia. 

3. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing B, born … 2015, female, on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain her name on the Watch List for a period of two years.

4. The parties are at liberty to make further application in relation to the time that the child will spend with her father given the refusal of the father’s application to cause the child to move to the F region of NSW.

5. The mother’s application for transfer of proceedings to the Family Court of Western Australia is refused.

6. The father’s application in a case filed 11 September 2017 and the mother’s application for interim orders are otherwise dismissed.

7. The matter is otherwise adjourned to the Registrar’s list at the Canberra Registry of the Family Court of Australia to a date to be notified.

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 Gareth & Naylor 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 CANBERRA

FILE NUMBER: CAC 1355 of 2017

Mr Gareth

Applicant

And

Ms Naylor

Respondent

REASONS FOR JUDGMENT

1. The parties to this matter are Mr Gareth (the father), born in 1968, and Ms Naylor (the mother), born in 1972. The parties were married in Australia in 2014, and their child, B, was born in 2015.

2. The father is seeking, by way of his application in a case filed 11 September 2017, for the child to live with him. He further seeks that the mother surrender the child’s passport, and be restrained from removing the child from Australia.  The father proposes alternative orders in the event that the mother lives within 150kms of C Town and not more than one hour and forty-five minutes by road, complies with medical treatment for depression, abstains from the use of illegal drugs and does not consume excessive amounts of alcohol whilst the child is in her care. These alternative orders are that the child spends alternating weeks with both the parents. The remaining balance of the orders relate to notification of any medical issues in relation to the child, drug testing of the mother, restraint from either parent denigrating the other in the child’s presence and furnishing of contact information.

3. The mother seeks, ultimately, to take the child with her to live in the United Kingdom.  Pending that final proceedings she seeks to remain in Perth with the child, for the child to have limited time with her father, and for the proceedings to be transferred to the Family Court of Western Australia.

4. The parties commenced their relationship in 2013 in the Middle East.  In March 2014 the wife moved from the Middle East to Australia and the parties started to live together.  They lived together in Perth and married there in 2014.  Their child, B was born in 2015.  In about October or November of 2015 the parties moved to the F Region of New South Wales following a burglary taking place in their home in Perth, while the mother was inside feeding the child.  The mother says “I was highly distressed after this incident and wanted to leave the area quickly because I felt so unsafe living mostly alone with a newborn”.  The parties then lived for a short period in C Town and then D Town in New South Wales.  During this time the father worked on a fly in fly out basis in Western Australia.  He worked on a two weeks on one week off basis. 

5. In March 2017, while the father was working in Western Australia, the mother travelled to the UK (where she is from) with the child.  This was done without any notice to the father and involved the mother packing up the home that the parties had shared until that point at D Town.  The wife left Australia with the child on 29 March 2017, and the father was informed by the wife that the relationship was over on 30 March 2017 via FaceBook message.

6. Proceedings were then commenced in the UK in accordance with the relevant Hague convention. By orders made in 2017 by in City E, UK, the wife returned to Australia with the child on 4 August 2017.  The mother subsequently travelled with the child to Perth in Western Australia, arriving on 4 August 2017.  She has remained there since. 

7. The father commenced proceedings by initiating application filed in the Federal Circuit Court at Canberra on 27 July 2017.  The matter was transferred to the Family Court of Australia on 23 August 2017.  In general terms there is a contest between the parties as to whether the child will live in the UK or Australia in the long term.  In relation to the interim, the parties agree that the child’s passport should be held by the Family Court, that there should be an injunction prohibiting the parents from removing her from Australia and that the child should be placed on the Airport Watch List.  The father seeks that the child be returned to the F Region (specifically D Town in New South Wales, although he lives in C Town in New South Wales).  The mother seeks that pending the final hearing that she and the child remain in Perth in Western Australia, in the alternative she seeks to live in Sydney with the child.  She seeks the transfer of the proceedings to the Family Court of Western Australia. 

8. As was pointed out by Boland J in Morgan v Miles:[1]

   The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.

   [1]Morgan v Miles (2007) 38 Fam LR 275.

9. That structured discretion sets out a process for considering child-related matters that conveniently commences with a consideration of the allocation of parental responsibility. There is presumption in favour of equal shared parental responsibility. That presumption is not applicable where in accordance with s 61DA(2):

   there are reasonable grounds to believe that a parent of the child… has engaged in… family violence.

10. In this case, while the mother makes an allegation of family violence, reliant in large part upon an assertion that the father has exhibited coercive and controlling behaviour by means of excessive contact with the mother, but also through, in general terms, giving the mother the silent treatment or clenching his fists in a threatening manner, at this stage of the proceedings, and absent a better particularisation of these incidents and more fulsome explanation as to the excessive contact, there is too fragile a basis to determine that there are reasonable grounds to believe that the father has engaged in family violence.

11. This, noting the interim nature of the proceedings, does not indicate what a finding might be after more fulsome evidence is provided, but at this stage does not displace the operation of the presumption.  In any event, even if it was the case that the presumption was displaced by virtue of it being reasonable to believe that the father has engaged in family violence, in this case it is appropriate at this point to determine that the parties should equally share parental responsibility as being in the child’s best interests.  The exercise of equal shared parental responsibility will require decision-making in relation to the child in relation to a narrow range of issues.  While there are difficulties in communication between the parties the narrow range of these issues does not appear likely at this point to cause a problem in terms of such decision-making.  The only matter identified on the evidence so far that could be conceived to have fallen within the narrow range of issues governed by equal shared parental responsibility was a decision by the mother to take the long-term step of relocating the child to the UK.  This was done without any consultation with the father and, having been exercised without any consultation with him, has so far proved to be detrimental to the child in that it has resulted in the child and the mother’s upheaval to the UK and back to Australia.  This manner of exercise of parental responsibility, without regard to the sharing of parental responsibility, is indicative that equal shared parental responsibility should govern long-term decision-making pending a final hearing of the matter. 

12. The consequence of a determination that there should be equal shared parental responsibility calls into operation s 65DAA of the Family Law Act 1975.  I am obliged to consider whether the child spending equal time with each of her parents would be in her best interests, whether that is reasonably practicable, and then consider making such an order.  In the circumstances of this case it is not in the child’s best interests to have equal time with each of her parents.  The child has not been separated from her mother at any stage during her life.  She is now aged a little over two years.  Although for short periods of time she may have been in the company of her father without her mother, almost her entire life has been spent with the mother.  Even while the parents cohabitated, given the father’s work on a fly in fly out basis which he concedes meant that he spent somewhere between five and six days in each three week period with the mother and the child, the vast bulk of the time was spent solely in the mother’s care.  In addition, due to the presumptive move by the mother to the UK, in the recent past the child has had even more limited time with her father.  These factors work together to rule out either a change to commence equally shared time or a change in relation to which parent the child should live with. 

13. Section 65DAA then requires, where I have determined that it is not in the child’s best interests for equal time, that I consider substantial and significant time. It is to be considered whether or not such an order would be in the child’s best interests and whether it is reasonably practicable. MRR v GR[2] specifies that before a Court is empowered to make such an order it is necessary to consider whether or not such an order would be reasonably practicable. If it is not then such an option is foreclosed. That is, even if such an order would otherwise be in the child’s best interests, if it is not reasonably practicable, then the Court is unable to make such an order by virtue of the operation of s 65DAA.

    [2]MRR v GR [2010] HCA 4.

14. It is appropriate here to deal firstly with the question of whether or not such an order would be in the child’s best interests.  Until the child was removed to the UK she had the benefit of significant involvement from her father, albeit face-to-face five to six days each for each three week period.  In addition to this there was frequent, it seems likely daily, FaceTime contact between the child and her father, despite the child’s young age.  That is, the father and the child had frequent, daily time with each other in one form or another.  He was able to be involved in various aspects of her life such that the time that he spent with her could be classed as substantial and significant.  At this stage of the proceedings it is important to preserve the involved level of relationship that the father and the child have had with each other in order to promote her receiving benefits from that relationship.  Importantly, although perhaps more critical for the final resolution of the matter, the father and his family offer important links for the child with her indigenous heritage.  In general terms it is in her best interests that there be substantial and significant time between her and her father, all other things being equal. 

15. Turning to a consideration of whether or not such an arrangement would be reasonably practicable raises a significant and difficult question.  The parties’ current living circumstances do not allow for substantial and significant time.  the child lives too far from her father to currently allow that to occur.  There would need to be a change so that the child was living close to both parents, either so that the child and the mother are living in the F close to the father, or the father is living in Perth close to the child and the mother.  Despite each of the parties having links to each place, neither wishes to move.    

16. The mother, on her return to Australia in accordance with orders made in the UK, travelled to Perth in Western Australia, despite having left the F Region in New South Wales where she and the father and the child lived to the point of separation.

17. The mother in her affidavit material recounted a history of isolation in Perth followed by a move to the F Region which was prompted by a break and enter into the mother and father’s home shortly after the child was born and while the mother was feeding the child.  The move to the F was a move closer to the father’s family, although there is some reason to think that there was some tension within the family that meant living too close was not desirable. 

18. The mother says that the move to the F Region was also accompanied by isolation.  She said that she had no support, although the father asserts that there was one friend which is what prompted the move to D Town.  On moving to D Town she found that the isolation was made worse by the fact that she had to travel to reach any facilities necessitating the use of a motor vehicle.  That is, the mother’s experience both in Perth and in the F Region was one of isolation.  She says that she now has support through friends in Perth who are able to offer her personal support and financial support.  She has not detailed who any of these people are although the father accepts that there is one person who will be available to provide her with support.  The mother is presently staying at a refuge in Perth and the evidence suggests that she would be able to remain at the refuge until the conclusion of the Family Court proceedings. 

19. There is no longer a house available in the F Region in the sense that the parties previous house is no longer theirs.  A move to the F Region would necessitate the mother obtaining further accommodation. 

20. The father, in Court, offered to pay for her bond for a two-bedroom residence in the F Region.  In terms of financial capacity the husband currently pays child support in excess of $500 per fortnight and spousal maintenance at a minimal level of $150 per fortnight.  This will not be adequate for the mother to support herself.  While she is not currently working there is no evidence before me that suggests that she will be unable to work.  She has previously obtained a well-paying job in the finance sector.  The father has additionally offered to pay for the flights for the mother to travel from Western Australia to the F Region.

21. As an alternative position the mother says that she would move with the child to Sydney.  There is no evidence that she has any support available to her whatsoever in Sydney.  In making such a suggestion she has not advanced a reason why that would be an economically viable resolution for her.  This position calls into question the position painted by the mother that there is a complete incapacity in respect of moving away from Perth. 

22. The father’s current position is that he is on worker’s compensation payments having been injured in his work.  His fly in fly out work involves him transitioning through Perth, where the parties previously lived.  If he was to regain that work it would seem that there would be a necessity for him to travel through Perth which would mitigate some of the difficulties with the mother remaining in Perth.  It is however at this stage unknown how long it might be before the father is able to regain that work.  He has indicated that he has no intention of moving back to Perth at least in the short-term.  If the child was to relocate to the F, the father says that he will obtain new accommodation for himself rather than remain living with his parents.

23. As noted above, the mother has been the primary carer for the child since she was born.  That is a role that should continue pending the final hearing, as reflective of what is in the child’s best interest.  Despite the alternative position of a move to Sydney, the evidence at present is insufficient to show that it is a role that can be supported if the child was to return to the F. While the evidence about the living arrangements in Perth is limited, and provides a picture of the mother being reliant on refuge accommodation, with little other support, the evidence about what is available in the F is even less clear.  While the mother has accommodation for the duration of the proceedings in Perth, the evidence does not establish that she will be able to secure accommodation in the F at all.  The unsatisfactory position she faces in Perth is even more uncertain in the F.  The potential homelessness of the mother, her lack of income and her indebtedness render a move to the F Region to support a substantial and significant relationship with the father not reasonably practicable.

24. While the father indicates no intention to move to Perth in the short term, if he were to do so substantial and significant time would become reasonably practicable.

25. Given that the practicalities of either the child visiting the F, or the father visiting (or staying in) Perth were not addressed in the applications before me, if orders are sought to support such arrangement the parties are at liberty to file an application and material in support of such arrangements.  However, the evidence supported the notion that the father has had extensive time with the child through electronic communication through her life (although reduced following the removal of the child from the jurisdiction).  This arrangement should continue, particularly as the mother’s material indicates that she has the capacity to facilitate FaceTime, and orders will be made to for such to continue.

26. On the question of a transfer of proceedings to the Family Court of Western Australia, the father has indicated a number of witnesses to support his case who are from the F Region.  A move in the proceedings would present significant practical difficulties to their attendance at the final hearing of the matter, although this may be ameliorated through the use of a video link.  Importantly, the father has offered to pay for the mother to travel to attend proceedings if they remain in Canberra.  Those factors favour the refusal of the transfer application.

1. The mother accepted that she would surrender the child’s passport and would not oppose an order restraining both parties from removing the child from Australia.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 October 2017.

Associate:

Date:  5 October 2017.