HEENEY & TILTON

[2014] FCCA 1266

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEENEY & TILTON [2014] FCCA 1266

Catchwords:
FAMILY LAW – Parenting orders – mother seeking to relocate the residence of the child from Victoria to Queensland – best interests of child – child’s wishes – change in residence arrangements – application refused.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR HEENEY

Respondent: MS TILTON

File Number: MLC 2675 of 2008

Judgment of: Judge Hartnett

Hearing date: 29 May 2014

Orders made: 30 May 2014

Delivered at: Melbourne

Delivered on: 19 June 2014

REPRESENTATION

The Applicant: In person

The Respondent: In Person

Counsel for the Independent Children’s Lawyer Mr Ambrose

Solicitors for the Independent Children’s Lawyer Geelong Family Lawyers

THE COURT ORDERS THAT:

1. All previous orders, save the order for equal shared parental responsibility made 29 May 2014, be discharged.

2. The child X born (omitted) 2004 (‘the child’) shall live with the Applicant father.

3. The child shall spend time with the Respondent mother as follows:-

   (a)each Christmas to January Victorian long term school holidays in Queensland for four consecutive weeks commencing:-

   (i)in 2014 and each alternate year thereafter from 28 December; and

   (ii)in 2015 and each alternate year thereafter from 22 December;

   (b)each first and third term Victorian school holidays in Victoria for one half of the holidays, being the second half in 2014 and each alternate year thereafter, and the first half in 2015 and each alternate year thereafter. It is to commence at 10am on the first day and conclude at 5pm on the last day;

   (c)each second term Victorian school holidays in Queensland (save for the 2014 school term holidays which shall occur in Victoria from 10am on the first Saturday until 12noon a fortnight later) for two weeks commencing the first Saturday of such holidays; and

   (d)such other and further times as agreed in writing between the parties.

4. Changeover take place as may be agreed between the parties and failing agreement when in Victoria at the father’s home and when involving interstate travel at the appropriate Melbourne airport.

5. Upon the child requiring airline travel to spend time with the mother, the father shall bear the costs of return from Queensland to Victoria and the mother shall bear the costs of travel from Victoria to Queensland.

6. The parties forthwith sign all such documents and do all such acts and things as shall be necessary to enrol the child in (omitted) ((omitted)) Primary School.

THE COURT ORDERS BY CONSENT THAT:

1. Each party shall permit the child to telephone the other party and/or communicate with the other party via email and/or internet should the child express a desire to do so at any time and, for that purpose, the party who has the care of the child shall make all reasonable endeavours to facilitate such telephone and/or electronic communication. Further, each of the parties is at liberty to telephone, text and email the child at all reasonable times.

2. Neither party change the child’s school enrolment without first obtaining the express written consent of the other party.

3. The child attend upon Dr L or, in the event Dr L is not available, such other appropriately qualified counsellor to be nominated by the Independent Children's Lawyer for the purpose of therapeutic counselling, and the parties do all such acts and things and sign all such documents as shall be necessary to ensure the child’s commencement of counselling, including but not limited to, obtaining a referral and a mental health treatment plan if required, and the parties shall follow all reasonable directions and recommendations as may be given by the child’s counsellor as to the duration, frequency and nature of the child’s counselling.

4. The father forthwith arrange for the child to attend upon Dr S or, in the event Dr S is unavailable, such other appropriately qualified medical practitioner to be nominated by the Independent Children’s Lawyer, for the purpose of obtaining advice, treatment and referral as may be required for the child with respect to her general health and wellbeing including, but not limited to, the child's nutrition.

5. The father forthwith arrange for the child to attend upon an appropriately qualified dentist for the purpose of obtaining advice, treatment and referral as may be required for the child with respect to her dental health.

6. Both parties shall comply with all reasonable recommendations of the child’s treating medical and·health practitioners.

7. The parties keep each other informed of and, as soon as reasonably practicable, notify each other of any serious illness or injury sustained by the child during any time the child is in their respective care, including any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised, if applicable.

8. Each party shall promptly provide the other party with information in relation to the child’s health and wellbeing such that they both have an opportunity to be involved in any decisions which may arise with the child’s medical advisors.

9. Each party keep the other informed of their current respective residential address and contact telephone number, with each party to notify the other of any change to this contact information with 48 hours of such change.

10. Each party be authorised, at their own expense, if any, to obtain copies of all school reports, newsletters, notices, photograph order forms and the like in relation to the child and each party be at liberty to attend any and all school functions and events that parents ordinarily attend.

11. Each party be at liberty to attend the child’s extra-curricular activities.

12. Without admitting the necessity for same, the parties, their servants and/or agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or their family in the presence and/or hearing of the child, and from permitting any other person to do so.

13. The parties, their servants and/or agents be and are hereby restrained by injunction from discussing these proceedings, or previous family law proceedings involving the parties, in the presence or hearing of the child, and from permitting any other person to do so.

14. The parties, their servants and/or agents be and are hereby restrained by injunction from permitting the child access to any documents or correspondence relating to these proceedings or previous family law proceedings involving the parties, or permitting any other person to do so.

15. The parties shall refrain and are hereby restrained by injunction from consuming any illicit substances or being under the influence of such substances whilst the child is in their respective care.

16. The parties shall ensure the child is not exposed to other persons under the influence of illicit drugs and/or excessive alcohol consumption at any time the child is in their respective care.

17. Each party shall refrain and is hereby restrained by injunction from physically disciplining the child.

18. Each party is restrained by themselves, their servants and/or agents from removing the child from the residence of the other contrary to these Orders.

19. The Order appointing the Independent Children's Lawyer be discharged.

20. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

B.The father will withdraw the current local Magistrates Court proceedings he has initiated seeking intervention orders and not thereafter proceed with such application.

IT IS NOTED that publication of this judgment under the pseudonym Heeney & Tilton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2675 of 2008

MR HEENEY

Applicant

And

MS TILTON

Respondent

REASONS FOR JUDGMENT

1. Final Orders in this proceeding were made on 30 May 2014, being the day following the conclusion of this hearing. These are the Reasons which support those Orders. The proceedings were in the relocation list of this Registry involving, as they did, a proposal by the mother to relocate the residence of the mother and father’s daughter X born (omitted) 2004 (‘X’) from the State of Victoria to the State of Queensland. The father opposed such move. The father and Independent Children’s Lawyer sought essentially the same orders, in particular, that X live with the father. This residence proposal was a change to the earlier final Orders of the Court to which the parties had consented, wherein X resided with her mother. As the trial progressed, many orders were able to be made with the consent of all parties. Ultimately, the Court determined that X’s best interests were served by making orders as sought by the father and Independent Children’s Lawyer. The mother’s position at the outset and throughout was that if X could not reside in Queensland with her, then X would have to reside with her father in Victoria. She had already relocated her residence from the (omitted)/ (omitted) district and obtained a long term tenancy in a suburb of the (omitted). She was residing with an adult daughter – not being a child of the father in these proceedings – and thought her health improved in the Queensland climate. Although she had returned to Victoria for a time during these proceedings, it was not her intention, regardless of the outcome, to remain in this State.

History

1. The father resides in (omitted). He is aged 61 years. He is a pensioner. The mother resided at trial, and temporarily, in her father’s home in (omitted). She is aged 48 years and also a pensioner. She does some small amount of part-time work which does not affect her pension receipt. Her hope is that in Queensland she might gradually enter the work force and retire from pension receipts. X is aged nine years and nearly seven months. She is sufficiently mature to express her views and did so to the family consultant, Dr P, who prepared a Report in the proceedings. 

2. The parties commenced their de facto relationship in 2000 and separated in May 2005 when X was about six months of age. They had lived in that time in the (omitted)/ (omitted) district and were, at separation, residing in (omitted). The father issued parenting order proceedings and final Orders were made in the Magistrates Court of Victoria at Hamilton for the parties to have equal shared parental responsibility of X, a situation which has never altered, and for X to live with the mother and to spend two 24 hour periods in her father’s care. Between that time and June 2008, there was some disputation between the parties which resulted in the father initiating proceedings on two occasions. On 3 June 2008, further final Orders were made in this Court, sitting at Warrnambool. Equal shared parental responsibility of the child remained agreed upon between the parties, and X continued her residence with her mother, whilst spending time with her father each alternate weekend from 5pm Friday until 5pm Sunday; on two evenings each alternative week; during school holidays; and on special occasions.

3. In 2009, X commenced school at (omitted) at the (omitted) ((omitted)) Primary School. The parties agreed on this enrolment and X was happy at that school for the next two and a half years. In July 2011, the mother moved her and X’s residence from (omitted) to nearby (omitted) to take up residence in the maternal grandfather’s home. X commenced school at the (omitted) Primary School. The father did not consent to the enrolment and was unhappy about the move. His approach was unduly restrictive. He also claimed the mother had threatened to relocate with X to Queensland. The father issued further proceedings. On 31 October 2011, final Orders were again made in this Court. There was no significant change to the living arrangements of X. However, there were injunctive Orders made to stop the mother removing X from (omitted) or (omitted) and requiring the father’s consent to any further change of school. Both parties were restrained from using illicit substances and from denigrating the other.

4. In May 2012, the father was diagnosed with an auto-immune disease, myasthenia gravis. In late 2012, the mother approached the father about the ongoing care of X. She proposed, and the father accepted, that X would spend the following 12 months in his care to enable her to move to Queensland and deal with her then health issues, including pleurisy and pneumonia. She continued to see X on an intermittent basis, and in (omitted). The parties agreed on a suspension in operation of the earlier final Orders, and until December 2013.

5. Following X commencing to reside with her father in (omitted), she attended upon Ms L, psychologist, for counselling as recommended by her treating doctor, Dr S. She resumed her attendance at the (omitted) ((omitted)) Primary School in (omitted). X expressed to Dr L that she had not liked attending the (omitted) Primary School and was keen to resume at the (omitted) ((omitted)) Primary School where she had been very happy. She worried about both her parents’ health and was very upset when her mother relocated to Queensland in June 2013. Despite this, she expressed a strong wish in August 2013 to remain living with her father and attending the (omitted) ((omitted)) Primary School. She repeated the expression of this wish in September 2013.

6. In November 2013, X spent time with her mother as agreed between her parents. The mother then travelled with her to Queensland without the knowledge or consent of the father. The mother “over-held” her. She claimed the father’s health precluded her from returning X to his care in accordance with their agreement at the commencement of the year, and their further agreement at the time of X commencing to spend time with her. The father issued proceedings seeking recovery of X. On 10 February 2014, this Court ordered that X be returned by her mother to the State of Victoria within seven days, and that thereafter she live with her mother and spend time with her father each weekend from after school Friday until Monday before school. On 16 February 2014, the mother and X resumed their occupation of the maternal grandfather’s home in (omitted). X commenced at her fourth school (having attended a further school in Queensland) being (omitted) Primary School.

7. In March 2014, the father alleged the mother assaulted X (by “smacking her really hard”) and made reports to Victoria Police, X’s general practitioner, and the Department of Human Services. The father claimed X sought not to be returned to her mother’s care. The mother denied the allegation. No protective concerns were established by the Department of Human Services and no harm was substantiated. The mother then herself sought a recover order on an ex parte basis in the Magistrates Court of Victoria in Warrnambool. That Court ordered the return of X to her mother on 4 March 2014.

8. The father responded by seeking an interim intervention order in the Magistrates Court of Victoria at Hamilton, naming himself and X as affected family members. Ex parte he obtained same. He was persuaded in these proceedings to desist from further litigation, and to withdraw from this ongoing intervention order proceeding. Various injunctive orders were made as between the parties in these proceedings to cover their respective areas of concern, one against the other, in respect of promoting the welfare and best interests of their child, including prohibiting violence as between them, and as might be perpetrated upon the child. It is noteworthy the father’s evidence was not tested in the Magistrates Court at Hamilton and yet despite the history of this matter and untesting of the evidence, he gained such an order.

9. On 17 March 2014, the father’s time spent with X, who was then living with her mother, was ordered to be from Friday after school until Sunday at 6pm, and for five continuous days in the April/ May school holidays.

10. Although the parties each sought sole parental responsibility of their child, they agreed in the running of the matter that an order for equal shared parental responsibility was appropriate and in the child’s best interests, and that the presumption of same was not rebutted. That certainly was the state of the evidence before the Court.

11. The parties have a prolific history of family law litigation. That should cease. It impacts adversely on X. The mother’s determination to reside in Queensland away from her daughter means that no shared care arrangement can be contemplated. In addition, the parties have very poor communication as between them. They don’t like each other. Each accuses the other, and rightly so, of drug taking and past criminal activity related to it. The father was an alcoholic for a time in addition, but has been free of drugs and abstained from consuming alcohol for some years. The father will not contemplate a move in his residence from the extended family and familiarity of (omitted). The mother considers (omitted) a poor environment in which to raise their child and a teenage pregnancy, drug use, unemployment and no academic qualifications were all possibilities stated by her as likely in X’s future. She herself needed to move away to cease her drug dependency. She however continues to use cannabis in Queensland.

Dr P's Family Report dated 17 May 2014

1. Dr P's Family Report was admitted into evidence and was unchallenged by any party. Upon interview, X told Dr P that she wished to live with her father, but did not want her mother told because “she’ll yell at me”. Her reasoning was relatively mature. She described a more involved father who seemed more attuned to her needs as a child. Her father was “nice” and “caring” whilst her mother was “sometimes nice” but played poker and slots on her phone which preoccupied her somewhat. Her mother’s removal of her to Queensland was not want she wanted, and the school there not as good as the (omitted) ((omitted)) Primary School. Quite maturely, X said “It’s better to miss mum and live in Victoria”. If she had to go to Queensland, she would feel “sad, angry and disappointed”. X had strong extended family connections in (omitted), in particular her half-sister Y to whom she proposed speaking about personal matters. Dr P, in her Family Report, also repeated comments from those she had consulted. Ms M, a former (occupation omitted), described X as a “very honest and upfront child” who spoke positively about her time with her father. X impressed Dr P as “a socially astute and confident nine year old child” whose views were “free of influence by others”. Those views had been consistent over time and Dr P was of the opinion that “significant weight can, and should, be given to X’s views about the proposed relocation”. She recommended that X not be required to relocate to Queensland and that regardless of where the mother lived, X live with her father whom she found to be “more sensitive and responsive to her needs”.

Father’s health

1. The father’s health was poor in 2013 and he was hospitalised on four occasions to stabilise his medication. His functioning is now stable and his current capacity to care for X is as set out in the unchallenged evidence of Dr R, his treating neurologist, which is as contained in his Report annexed to his Affidavit sworn 28 May 2014. That is, he is compliant with his medication and overall tolerating it well, including his steroid treatment. Dr Y concluded:-

   “He is essentially symptom-free, hence he should be able to look after his 9-year-old child without hindrances. It has to be mentioned that he also has a few other medical problems as I listed above including dyslipidemia, chronic obstructive airways disease, gastroesophageal reflux disease, hypertension, chronic back pain, etc. but overall I do not think at least at this point of time none of his conditions would impair his ability to look after his 9-year-old child. It appears that he has few hospitalizations with exacerbation of chronic obstructive airways disease (from what I heard from Mr. Heeney), but managed to keep out of the hospital for the last several months suggesting even this condition is under fairly good control at this point of time.”

Mother’s health

1. The mother put no medical evidence before the Court as to her current health and its impact on her capacity to care for X. She claims to be well but is in receipt, like the father, of a disability support pension. Currently, she is not on medication and is asymptomatic for pleurisy and pneumonia. She has Hepatitis C and needed last year to “get it under control”. She has also suffered from depression intermittently.

2. X loves both her parents and they her. The interaction between X and each of her parents is warm and comfortable. X is, as is said by the mother, “equally close to both her parents”. Despite the mother’s expressed concerns about the father’s capacity to care for X, she proposes he do so fairly much full-time if X remains in Victoria. She must, and does, I find, have some confidence in his ability to care for X. What the father must do in the best interests of X, is inform the mother if he has persistent and problematic health problems that impact adversely on his ability to care for X. The mother is concerned about the father driving X in a motor vehicle but there is no evidence before the Court of a history of negligent driving, accidents or the like, and the father has a current Victorian Driver’s Licence without conditions.

3. X, in continuing to reside in (omitted), will attend a familiar school which she enjoys; have extended family and a caring, attentive father; and her wishes given considerable weight. She will miss her mother, but see her regularly and communicate with her frequently. The mother has chosen to reside in Queensland for reasons, to some degree, of self-interest and with no real promise of future stability for X. It is all a bit untried. The mother is, amongst other things, attempting to avoid a drug culture that she seems unable to extract herself from. She has in fact sought it out, in a limited way, in Queensland.

4. It may be, over the years as X matures and enters her teenage years and perhaps if the father’s health deteriorates, that she seeks to again reside with her mother. The Court would hope that her parents listen to the expression of her wishes at that time if they were to be mature and consistent, and reach some accommodation concerning them. However for now, X is very settled and happy in her home in (omitted) with friends, family, school, animals and a good sense of belonging. She perceives her father to provide consistently for her needs and he in fact does. Both her parents have cared for her and fulfilled their parental responsibilities toward her. Both have provided for her emotional and intellectual needs, the father in respect of her education with some slightly better degree of insight. X has no interest in, and some anxiety concerning, living in Queensland. It is not surprising. It is a complete uprooting for her without any obvious offsetting benefits, save that her mother thinks she will be happier there. Whilst this is important and not to be underrated, it does not outweigh all the other positives for X in continuing to reside in her father’s care in (omitted). X will have to learn, as a young child, to see her mother on a less regular basis and certainly less than she would like. But her best interests are paramount, and they determine there be no relocation of her residence.

5. As appears in these Reasons, I have considered those matters which the Court must as set out in s.60CC of the Family Law Act 1975 (Cth) in determining the best interests of the child. Given the geographical distance now between the parties respective residences, periods of spend time with between the mother and child could not practicably have been more than that which the Court orders. The proposals for time spent with were canvassed by the Court with the parties during the running of the matter, and the Orders made accord with that which was generally agreed and as put forward by the Court after a consideration of the evidence as a whole.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 19 June 2014