HENLEY & HENLEY

[2014] FamCA 762

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY [2014] FamCA 762

FAMILY LAW – CHILDREN – Interim Orders – Relocation – where father seeks orders that the mother return to Adelaide – where mother unilaterally relocated to northern South Australia with the child – where mother previously relocated to Adelaide and father moved closer to Adelaide to enable him to spend time with the child – where father has been charged with rape and other offences of a serious nature – where mother is the alleged victim – mother continued to facilitate time between the father and child prior to relocating to northern South Australia – best interests of the child – the meaningful relationship between the father and child is unlikely to continue if mother resides in northern South Australia – orders made for the mother to return to Adelaide.

Family Law Act 1975 (Cth) ss 60CC, 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Henley

RESPONDENT: Ms Henley

FILE NUMBER: ADC 1876 of 2014

DATE DELIVERED: 15 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Ms Fuda

SOLICITOR FOR THE RESPONDENT: Ms Jane Ekin-Smyth

Orders

1. On or before 4pm on 7 October 2014, the mother do cause the child N born … 2010 to take up residence in the Adelaide environs within a radius of 25 kilometres from the Adelaide GPO or at such other locality as the parties may agree in writing.

2. The child N shall spend time with the father as follows:-

   (a)       From 10am on Wednesday 8 October 2014 to 4pm on 12 October 2014.

   (b)From 12 noon on Thursday 16 October 2014 to 12 noon on Friday 17 October 2014 and each alternate week thereafter.

   (c)From 4pm on Friday 24 October 2014 to 4pm on Sunday 26 October 2014 and each alternate week thereafter. 

3. That handover necessary to give effect to these orders shall occur at the Suburb B Police Station, C Street, Suburb B.

4. The matter is adjourned for further consideration at 9.15am on 22 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1876 of 2014

Mr Henley

Applicant

And

Ms Henley

Respondent

REASONS FOR JUDGMENT

introduction  

1. These proceedings relate to parenting orders in respect of N born in 2010.

2. Mr Henley (“the father”) commenced proceedings by filing an Initiating Application on 18 March 2014 which was subsequently the subject of an Amended Application on 25 August 2014.

3. Ms Henley (“the mother”) filed a Response on 9 September 2014 to the father’s Amended Application.

ORDERS SOUGHT

1. The father’s seeks orders that would require the mother to return N to reside in the metropolitan area of Adelaide and that N re-enrol at Suburb E Child Care Centre.  Additionally, the father seeks orders that N should live with him during school term time from 5.30pm each Friday to 5.30pm each Sunday and for one half of each school holiday period.

2. There is some uncertainty as to the orders being sought by the mother.  Whilst the Response is silent, the hearing proceeded on the basis that the mother opposed orders sought by the father for N to spend time with him, but she did not oppose a continuation of orders previously made that effectively prevent her from removing N from the Commonwealth of Australia.  Notwithstanding that she sought orders to take N to Thailand for a holiday, that application was not pressed.

BACKGROUND

1. The father was born in 1953 and is currently 61 years of age.  He is employed in an education role in the State education system but has been suspended from his employment since early 2014.  The father currently resides in Town L in premises provided by his employer.  The mother was born in 1982 in Thailand and is 32 years of age.  As at the date of the commencement of the proceedings the mother lived in Suburb E, but it is now common ground that she, N and a child of another relationship namely, F born in 2002 now reside in Town P in northern South Australia.  The parties were married on in 2009 and separated in May 2013.

2. At the time of marriage, the father was already employed in an education role at School G.

3. The father alleges that following the birth of N, the mother suffered from post natal depression.  The mother agrees that this has been an ongoing difficulty for her.  She attributes her depression to her sadness arising from her separation from her family.  The mother’s affidavit filed 9 September 2014 agrees that she has depression, but it is difficult to determine whether it has its genesis with the birth of N or whether it is depression that arises from her loneliness and is still evident.

4. The father took up an education role position at Town H until December 2012 when he obtained an education role position at Town P School in early 2013.

5. The mother obtained employment in a hospitality industry role at Business J in Town P owned by Mr K.  The wife upon her return to Town P resides with Mr K in his home and she asserts that in the coming months when the business premises has undergone a renovation, she has been offered employment in a hospitality industry role.

6. There were a number of difficulties that adversely affected the relationship of the parties.  The father admits that he and to a lesser extent the mother engaged in on-line trading.  The family was dramatically unsuccessful and the father places his overall losses in the order of $100,000.  He admits to being irritable and depressed in respect of the parlous financial position that the family faced.

7. For her part, the father alleges that the mother suffered irregular mood swings which resulted in mood stabilising medication being prescribed and taken by the mother.

8. Whilst the father generally talks of “a happy and loving relationship” notwithstanding the emotional lability of each of them, the father says that he was accepting of the mother’s position that she was bi-sexual and was not opposed to “shared sexual activity with another woman or another man”.  From time to time, the father alleges that they introduced two other men known to the father into their sex life.

9. Importantly for what followed, the father alleges that there were two sexual encounters each involving a third person prior to the marriage.  It is the father’s position that far from the mother being forced or coerced to engage in these sexual encounters, she was an active, willing participant.  Importantly it is the father’s position that the mother’s involvement in these sexual activities both with or without other parties involved was at all times consensual.  Indeed, the sexual encounters involving third parties were the subject of video recording.

10. It also seems that perhaps for different reasons, pornography was a feature of interest to the parties.

11. The parties separated on 25 May 2013 with the mother initially obtaining emergency housing, but thereafter securing a rental property in Town P.  On 27 May 2013, after some initial counselling, the father alleges that the mother proposed a parenting arrangement with the children spending time with the father on average four nights each week.  The agreement was set out in a document signed by the parties and headed “Parenting Plan”.  The agreement referred to both N and F.

12. Over the ensuing days the father says that his observations of the mother were of concern.  He formed the view that her mental health was deteriorating and that she was in need of urgent medical attention.  Ultimately, the mother was admitted to the Town P hospital and during the three day period of her admission the children remained with the father.

13. Thereafter, with some modification to the terms of the Parenting Plan, the care of the children was effectively shared.  There was an amicable arrangement which involved the children spending Friday, Saturday and Sunday night of every week and half school holidays with the father.  On occasions the arrangement would change by agreement and it appears uncontroversial that the children spent significant and substantial time with the father as and from the date of separation but in particular, from October 2013.  There was even discussion of reconciliation proposed early in the separation by the father and then in early October by the mother.

14. In October 2013, the mother advised the father that she and the children would leave Town P and take up residence in Adelaide.  The father appears to link the mother’s decision to relocate to Adelaide consequent upon him advising her that there was no likelihood of a reconciliation.

15. Arrangements were made for the children to spend significant time with him and following the mother and the children moving to Adelaide, agreement was reached that the father would spend time with N each alternate weekend requiring him to travel 1800 kilometres each fortnight. The handover arrangements apparently occurred at the home of one of the participants in the sexual activities of the parties.  The father made arrangements to transfer his employment on compassionate grounds to a school nearer to Adelaide. He secured a position at Town L School scheduled to commence in the academic year commencing 2014.

16. The arrangements between the parties was such that N and F remained in the father’s care for a three week continuous period during the 2013/2014 Christmas school holiday period.

17. The parties reached further agreement that the children would spend time with the father for about four nights out of each fortnight.

18. In April, the mother was hospitalised and N remained with the father for about nine days.

19. In May 2014, the father was arrested and charged with rape of the mother both prior to and following marriage.  A copy of the charges appears at BCH2 of the father’s affidavit filed 18 August 2014.  The bail conditions were stringent and obliged the father to reside in his premises at Town L and in particular not contact or communicate directly or indirectly with the mother or other persons allegedly involved in the commission of the offenses.

20. The bail conditions were amended with the consent of the mother to enable communication between them for the purposes of arranging the father’s time with N.  Following amendment, not only did N spend the first night of the day of the amended bail conditions, but the next nine days including the first half of the July school holidays from 4 to 13 July 2014 with the father.  Thereafter, the father has spent no time with N.

21. The father alleges that the mother came to Adelaide in order to commence a new relationship.  He says that when that relationship broke down in July 2014, the mother decided that she would return to Town P whereupon she has commenced and/or rekindled a relationship with Mr K. The mother does not disagree with the allegation of a relationship in Adelaide, but she does not admit to a relationship with Mr K in Town P.  She refers to him as a friend, someone who is prepared to assist her and helpfully has provided her with accommodation and the promise of a job when the business reopens.

22. Up until the time that the father was charged and then the subject of bail conditions, the father alleges that the parties spent time together, that he was providing financial assistance and would undertake small tasks in order to assist the mother and the children.  When she was not able to care for the children, there was no difficulty about him doing so.  Annexed to the affidavit of the father filed 10 September 2014 is a raft of email communication between the parties which is suggestive of an amicable and civil relationship between the parties up to about 4 July 2014.  There would also appear to be email confirmation of the various parenting arrangements between the parties and confirmation of the time that N spent in his father’s care.

23. Additionally and if true, possibly contrary to the bail conditions, there appears to be spontaneous communication from the mother to the father seeking assistance in respect of matters not strictly relating to the time that N will spend with the father. This occurred as recently as 11 August 2014 (BCH4 to the affidavit of the father filed 18 August 2014).

24. The father argues that the interaction between the father and the mother post-separation, the substantial time that N has spent in the care of the father and his provision of financial support all of which has been readily accepted by the mother, is inconsistent with the charges of sexual assault that he now is required to meet.

25. By reference to the affidavit of the mother filed 9 September 2014, she does not deny that N spent significant and substantial time with the father.  As a reason for ceasing contact she alleges that it was done on advice of her previous solicitor.  The father’s position is that the mother was keen to resume a relationship with Mr K in Town P and clearly could not have done so if N was spending regular time with him.

26. A complicating feature to the background is the mother’s explanation for her delay in reporting the sexual assaults to the police.  She says that in Thailand the behaviour of the father would not have been of interest to the police and accordingly there was no point in making a complaint.  It was only upon the advice of counsellors at Organisation M that she determined to seek legal advice and report the father’s behaviour to the police.

27. Contrary to the position of the father, the mother asserts that the marriage was demonstrably unhappy and notwithstanding her own depression and loneliness following the substantial loss of money invested in on-line trading, the father was depressed and angry.

28. The mother does agree that she downloaded pornography but she says her reason for doing so was to better understand the behaviour of the father in his desire to involve other persons in their sexual activities and to see whether his behaviour was “normal in Australian culture”.

FATHER’S RELATIONSHIP WITH N

1. The mother has filed a Notice of Child Abuse on 9 September 2014.  The allegations of family violence are as follows:-

   (1)The husband has been charged with five counts of rape of the wife, four counts of sexual manipulation of the wife and five counts of indecent filming of the wife;

   (2)The child [F] was present in the house in another room at the time that these offences occurred, the wife does not know what the child heard or saw.

2. There are no allegations of any adverse or inappropriate conduct between the father and N.  She does not allege that the father is aggressive or sexually inappropriate towards N.  Indeed, given the significant detail of the loving and close relationship between the father and N and there being no denial by the mother of those claims, I am entitled to find that the mother accepts that other than the criminal proceedings which resonate within the definition of family violence, there is a demonstrably beneficial relationship between the father and N.

3. Under the heading of corporal punishment, in her affidavit filed 9 September 2014 the mother states:-

   [31]I have never hit my son [N].  I agree that I did smack [F] when he was younger.  In our culture smacking is permitted and even encouraged.

   [32]However [the father] pointed out to me that he did not agree with this and I now understand that smacking is not a good thing and I never smack either child now.

4. Accordingly and perhaps by necessary implication, the mother accepts that in relation to corporal punishment, the father’s attitude is demonstrably proper and indeed she recognises that her behaviour required some modification acting upon the father’s good advice.

MOTHER’S RESIDENCE IN TOWN P AND ADELAIDE

1. As her reason for moving back to Town P in July 2014, the mother says that she had stable accommodation which was not available to her in Adelaide.  Moreover, the owner of the house in which she resides has also offered her employment in a hospitality industry role in the business.  Additionally, she has a good relationship with her general practitioner and on a regular basis seeks assistance from a visiting counsellor.  She is currently studying to obtain a TAFE level qualification.

2. Her otherwise supportive network in Town P is to be contrasted with Adelaide.  She was not able to find employment and whilst she does have some friends with whom she associates, she does not have stable accommodation, employment or opportunity.

3. For his part, the father rejects the mother’s assertions.  He says that she left Adelaide only when her relationship came to an end and realising that there may be opposition from the father to a return to Town P, did so without warning or advice.  The mother has a social network in Adelaide and if she is able to work in a hospitality role in a business in Town P, there is every likelihood that a similar position would exist either in Adelaide or in the near environs.

4. It is clear that if the mother continues to reside in Town P there is little opportunity for N to spend time with the father.  That position was clearly understood by the mother.

APPLICABLE LAW

1. When considering any interim parenting application, I am to have regard to Part VII of the Family Law Act 1975 (Cth) and in particular the guidance given by the Full Court in Goode & Goode (2006) FLC 93-286 which provides for “a legislative pathway”. Whilst by their very nature interim proceedings are truncated, nonetheless as far as possible the following matters should be considered:-

   (a)The identification of the competing proposals of the parties;

   (b)The identification of the issues in dispute;

   (c)The agreement of any uncontested relevant facts;

   (d)When considering the best interests of N I am obliged to consider the matters as set out in Section 60CC both as to the primary but also additional matters.

2. There are no current orders in place, although some guidance can be obtained from the agreement reached between the parties as set out in the original parenting plan and also the manner in which N had been spending time with his father up until July 2014.  I am mindful of the matters as set out in Section 61DA and in particular whether the presumption should apply namely, is it in the best interests of N for N’s parents to have equal shared parental responsibility.  The presumption does not apply if there are reasonable grounds to believe that a party has engaged in the abuse of N, or there are issues of family violence (Section 61DA (2)).  In respect of an interim order the presumption applies unless I consider that it would not be appropriate.  The presumption may be rebutted by evidence to the effect that it would not be in the best interests of N for there to be an order of equal shared parental responsibility.

3. The circumstances as presented lead me to find that it would not be in the best interests of N for the parties to have equal shared parental responsibility.  At present the father is the subject of stringent bail conditions which allow him to communicate with the mother by electronic communication but only in respect of matters relating to N spending time with him.  It is not suggested (notwithstanding that the mother appears to have made some overtures) that there would exist the free and ready interchange of information and communication between the parties.

4. Clearly, the mother alleges that there has been family violence as demonstrated by her allegation that she has been the subject of sexual assault both before and after the marriage.  If the father is found guilty of the charges, significant weight would need to be given to the evidence of family violence.  There may however not be a conviction, but even so it is likely that the parties in the interim can arrange their affairs such that N will benefit a position of common purpose adopted by the parties.

1. The issue therefore is whether in all the circumstances it is in the best interests of N to resume spending time with the father.

2. The mother currently resides in Town P.  She agrees through her counsel that but for allegations of sexual assault there would be no good reason why N should not spend time with the father.  Moreover, the mother accepts that as a result of N’s residence in Town P it is impracticable and unlikely for him to spend time with the father.  The mother is not prepared to facilitate any arrangement or proposal that would enable time spent to occur.

3. Accordingly, on the mother’s case she does not propose that N would spend any time with his father.

4. The father’s position is that the mother should be required to change the residence of N from Town P to Adelaide as being the only way of maintaining a meaningful relationship.

5. It is uncontested that N spent significant and substantial time in his father’s care following separation in May 2013 and into July 2014 notwithstanding that the father had been charged with serious sexual assault and rape in October 2013. The issue was brought into stark focus when the father requested a change to the bail conditions and this was facilitated with the mother’s consent.  Thereafter N resumed spending time with the father.

6. If the mother’s opposition to N spending time with the father is based upon the advent of the criminal proceedings, I reject the contention that they alone should speak against a resumption of the relationship.  There are no allegations in respect of the father involving N and there is no opposition to the history of time spent as carefully set out by the father. The evidence is highly suggestive of the mother utilising the father to care for N over extended periods when she was not available to do so.

7. Whilst in the ordinary course, a Court would adopt a cautious approach to considering a resumption of time in circumstances where the party seeking to resume the relationship with N is the subject of serious criminal charges, this case is demonstrably different and by their actions, the mother and the police acknowledge that N is not at risk in the father’s care.

8. This case, like many requires the balancing of considerations relevant to Section 60CC (2) (a) being:-

   The benefits to a child of having a meaningful relationship with both of the parents and;

   Section 2 (b):-

   The need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.

9. The mother could have provided notice of her intention to remove N from Adelaide and take up residence in Town P.

10. The mother filed an Application for Divorce on 27 May 2014.  In that document she provided the address for N as at Suburb E, with the educational arrangements being the Suburb E Child Care Centre.  At paragraph 28 of the document under the heading “Current Details for the Child” the mother states that the arrangements for N to spend time with the father was “two days per week (Saturday-Sunday)”.

11. At the time that the father filed his Initiating Application on 18 August 2014, he did not know that the mother had moved to Town P.  It was only upon advice from the process server that the whereabouts of the mother and child became uncertain and ultimately was revealed to be Town P and in the home of Mr K.

12. I find that in circumstances where she had represented to the Court that there was an ongoing relationship between N and the father supported by her, no good reason existed for the mother to move and whilst clearly she is free to reside wherever she would wish, it is the impact of her actions which need to be considered in terms of whether in all the circumstances N’s best interests are served.

13. In the circumstances of this case, that is not a finding that I am prepared to make.

14. Rather, I consider that N’s interests are best served by a resumption of time with his father.

15. The mother may well consider that there is a punitive aspect to the orders that I propose to make which would see N resuming his relationship with his father but in circumstances which would require her to return him and obviously herself to the Adelaide region. It is not a punitive measure, but rather entirely focused on the interests of N and intended to support and sustain a meaningful relationship that had been fostered by both parties and considered important by each of them but in particular the mother notwithstanding the breakdown of their relationship and the criminal charges that are pending.

CONCLUSION

1. There is obvious uncertainty as to the arrangements that the wife can put in place for her accommodation in Adelaide.  I accept that the move will be difficult but it must have been contemplated by her when she left Adelaide to take up residence in Town P that it would likely be the subject of eventual opposition by the father.

2. I propose to require N to be returned to the Adelaide environs within 21 days of the making of this order.

3. The father would seek a resumption of time on the basis of two nights per week.  It must be recognised that the relationship between the parties is now not what it once was.  The mother’s circumstances will be uncertain at least in the short term and accordingly, I propose to adopt a cautious approach.

4. I note that the father would seek that N return to the Suburb E Child Care Centre.  I do not propose to make that order.  I do not know where the mother will take up residence.  It may be the case that she will enrol N in a different institution.

5. According, I propose to make orders that would see N spending time with the father for three nights a fortnight but designated by a block of two nights from Friday through to Monday morning and then a further overnight on the intervening Thursday night.

6. I will bring the matter back before me in December to consider what further orders, if any, need to be made at that time.

7. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 September 2014.

Associate: 

Date:  15 September 2014