Howells and Madden
[2005] FMCAfam 386
•5 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOWELLS & MADDEN | [2005] FMCAfam 386 |
| FAMILY LAW – Children – residence and relocation – best interests – father’s attempt to take child to (country omitted) without mother’s knowledge or consent – child entitled to a (country omitted) passport – credit – mother permitted to relocate to NSW – no face to face contact for foreseeable future – child’s details to remain on airport watch list – father restrained from making further applications for a passport for the child. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) |
| AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A; Relocation Approach (2000) FLC 92-035 B & B (1988) FLC 91-978 M & M (1988) FLC 91-979 Neil v Nott & Anor 121 ALR 148 Re Andrew (1996) FLC 92-692 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR HOWELLS |
| Respondent: | MS MADDEN |
| File Number: | HBM 141 of 2002 |
| Judgment of: | Roberts FM |
| Hearing dates: | 15 & 16 September 2004, 13 & 14 October 2004, 4 March 2005, 18 April 2005 and 5 July 2005 |
| Date of Last Submission: | 5 July 2005 |
| Delivered at: | Hobart |
| Delivered on: | 5 July 2005 |
REPRESENTATION
| The Applicant was not represented by a lawyer |
| Counsel for the Respondent: | Mr T. McGuire |
| Solicitors for the Respondent: | Temple‑Smith Partners |
ORDERS
That X born (omitted) 2000 (“the child”) reside with MS MADDEN (“the Mother”).
That the Mother have sole responsibility for the child's day‑to‑day and long‑term care, welfare and development.
That the Mother be permitted to reside with the child in New South Wales.
That Mr Howells (“the Father”) have contact with the child as follows:
(a)by letter;
(b)by telephone at reasonable times, provided that such does not exceed once per week and on the basis that the Father initiates the relevant telephone call to the mother's mobile telephone; and
(c)on such other terms and conditions as may be agreed by the Mother in writing beforehand;
That the child's details remain on the Airport Watch List.
That until further order the child's (country omitted) passport No. (omitted) remain in the custody of the Registry Manager of the Family Court of Australia at Hobart.
That until further order the Father is restrained from making any further application for a passport for the child;
That copies of these orders be provided for information to the Department of Foreign Affairs and Trade and the (country omitted) High Commission in Canberra.
That the mother's application for costs be adjourned for hearing as a special fixture at 9.30 a.m. on Thursday 14th July 2005 in Devonport.
That save as to costs, all extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Howells & Madden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBM 141 of 2002
| MR HOWELLS |
Applicant
And
| MS MADDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter father is Mr Howells and the mother is Ms Madden. As they are both applicants and respondents in relation to two different matters, residence and relocation, it is easier to refer to them as “the father” and “the mother”.
This matter has had a long history, in that the trial of the residence matter started on 15 September 2004, continued on 16 September, and 13 and 14 October 2004. Subsequent to that there was an application by the mother to re-open. She was seeking to relocate. That was heard on 4 March, 18 April, and today.
The mother and father are the parents of X (“the child”) who was born on (omitted) 2000, so she has just turned five. The applicant in relation to residence orders is the father and the respondent is the mother.
Initially the dispute between the parties was in relation to with whom the child would live, what contact the other parent would have, and whether or not the father should be permitted to take the child to (country omitted). It has expanded to also be a dispute about whether or not the mother should be permitted to relocate on a permanent basis from Tasmania to New South Wales (if she is to be the residence parent).
Background and applications
The father is 46 years old and is the owner of some real estate from which he receives rental income. He was a little vague today about his other sources of income. The mother is 38 years old and is a (occupation omitted). The child is currently living with her mother and her nine year old half‑brother, Y.
It would appear from the evidence that the parties did not live together. On 25 March 2002 the mother filed an application seeking orders that the child reside with her and that the father have reasonable contact. She also sought an order that the child not be removed from the State of Tasmania without the written permission of the mother or an order of the court. She supported that application with an affidavit in which she stated that the father had made a number of threats to take the child to (country omitted) against her wishes. That application was not served and the mother did not proceed with that application.
The child resided with the mother from her birth until 27 May 2004 when the mother was hospitalised as a result of a psychotic episode. She was diagnosed as suffering from bipolar affective disorder and she was treated. At that time the child went to live with the father and the child's brother, Y, went to live with his father and stepmother. The mother was an inpatient at the (omitted) Clinic from 27 May until 8 June 2004. She subsequently received treatment as an outpatient.
After being reassured in relation to the mother's condition, Y’s father returned him to the mother's care. Despite requests by the mother that X be returned to her, the father did not do so.
On 7 July 2004 the mother filed an application seeking a residence order in relation to the child and orders providing for contact between the father and the child for two days each week from 8 am until 3 pm, coinciding with the mother's employment as a (omitted), and from 4 pm each Friday until 12 noon on Saturday. Again, the mother sought an order that the child not be removed from Tasmania. In addition, the mother sought a recovery order in relation to the child. That application was listed for hearing in Devonport on 19 July 2004.
On 9 July 2004 the mother filed a further application seeking inter alia an urgent order that the child's details be placed on the Federal Police watch list in order to prevent the child's removal from Australia. She supported that with an affidavit in which she set out her concerns about the child being taken to (country omitted) by the father. That application was heard urgently in Hobart on 13 July 2004 and I ordered that the child's details be placed on the watch list. The mother's earlier application came before the court on 19 July 2004, an interim residence order was made in favour of the mother, and a recovery order in the usual terms was also made.
On 12 August 2004 the father was stopped at Melbourne Airport when he was attempting to travel to (country omitted) with the child. The recovery order was executed and the child was returned to the mother.
On 18 August the father filed an application which initially sought final orders that the child reside with him and the mother have contact as agreed. That application also sought interim orders that the matter be heard urgently and ex parte and he also sought various other interim orders to allow him to remove the child from Australia. For reasons that I do not understand, that part of the father's application form dealing with final orders appears to have been crossed out. However, it is quite clear that he is seeking final orders in relation to the child.
The father sought to have that application heard in Melbourne. However, it was listed in Tasmania and it came before me initially on 26 August 2004. At that time it was considered that the matter should be dealt with on a final basis and it was adjourned for hearing as a two‑day special fixture commencing on 15 September 2004 in Launceston.
When the matter had not been concluded by the end of the day on 16 September, it was adjourned for further hearing in Devonport sittings of the court in October 2004. The hearing resumed on 13 October and concluded on 14 October.
Because the father was seeking to set aside orders that I had made on 13 and 19 July 2004, I consider that it was appropriate for him to be treated as the applicant and for the mother to be treated as the respondent. I did not see that as being of any disadvantage to the father as an unrepresented litigant because he would be able to observe counsel cross‑examining before he had to cross‑examine and he would be able to hear counsel's submissions before he had to make his submissions at the end of the matter.
My decision was reserved and before I could deliver that decision the mother applied, on both a final and interim basis, for orders permitting her to relocate to New South Wales. The application was filed on 17 February 2005 and I heard the interim application on 4 March 2005. I permitted the relocation on an interim basis and the final hearing was further adjourned to 18 April 2005.
On that day the father sought an adjournment, which was not really opposed other than in relation to costs. I granted the adjournment and ordered that the father pay the mother's costs thrown away because she had come from New South Wales especially for the hearing.
The matter has come on for final determination today. It is almost 10 months since the hearing commenced.
Relevant law
Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Act”). They are subject to s.65E of the Family Law Act, that in determining the outcome, the best interests of the child is the paramount consideration. This is the overriding principle.
Subsection 68F(2) of the Act sets out the factors that the Court must consider in determining what is in a child’s best interests and I shall examine the evidence in this matter in the light of such of those factors that are relevant.
Section 60B of the Act sets out the objects of Part VII and the principles that underlie those objects. The four principles are:
1.Children have a 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.
2.Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
3.Parents share duties and responsibilities covering the care, welfare and development of their children.
4.Parents should agree about the future parenting of their children.
Section 65E provides that, in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. However, it is clear that the High Court has indicated, in particular in AMS v AIF; AIF v AMS (1999) FLC 92-852 that the best interests of the child is not the only consideration.
Following the decision of the High Court in that case and the decision of the Full Court of the Family Court that followed it A v A; Relocation Approach (2000) FLC 92-035, it is clear that in determining an application to relocate the residence of a child, the following principles apply:
·The best interests of the child remains the paramount consideration, but it is not the only consideration.
·The court cannot require the applicant to demonstrate “compelling reasons'' for the relocation.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way that separates the issue of relocation from that of residence.
·The evaluation of the competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·The Court must follow the directions set out in sections 60B and 68F of the Family Law Act 1975.
This case has no allegation of child abuse yet evidence has been brought before the court today from a person who is particularly involved with child abuse cases. It is clear from B & B (1988) FLC 91-978 and in M & M (1988) FLC 91-979 that the court should not grant residence or contact to a parent if that would expose the child to an unacceptable risk.
As I have indicated, this case has not only taken a lot of time, in terms of hours and from start to finish, and in many ways the length and the spread of the hearing has been brought about by the father's representation of himself, in that he was not legally represented.
In 1994, in Neil v Nott & Anor 121 ALR 148, the High Court said at page 150:
A frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
Unfortunately, this was particularly applicable in this matter.
Because this has gone on for a long time and because the parties deserve to have answers to the questions that are no doubt uppermost in their minds, I decided to give my decision in this matter on an ex tempore basis.
Credit
I propose to examine the evidence in the light of the section 68F(2) factors that are relevant. However, before I do that, I am of the view that it is important to deal with the issue of credit.
The father attempted to persuade me that he had not been served with a particular application that had been filed by the mother and, in doing so, he enlisted the aid of a Mr K as a witness. When Mr K was cross‑examined, his evidence was in stark contrast to his affidavit. His affidavit comprises only two short paragraphs, and yet his oral evidence managed to differ with those two short paragraphs in three respects: firstly, as to where he was standing in the driveway of the property at the time he alleges he was given documents by a process server; secondly, as to whether he sent the documents back to the lawyers or whether someone else did it on his behalf; and, thirdly, as to whether he rang the court in Devonport or not.
Having heard Mr K's evidence and having observed him in the witness box, I have no hesitation in coming to the conclusion that Mr K was not a witness of the truth.
I also saw the process server give evidence. I found him to be an impressive witness and he clearly recognised the father as the person he served with the relevant application and other documentation.
I accept his evidence over that of the father and it is clear to me that the father changes his evidence to suit his purpose from time to time.
We had a further example of the father's unreliability in relation to his evidence today. When it suits his purpose, his memory seems to let him down. For example, he could not remember when he last filed a tax return and he could not really remember what his occupation is.
In my view, the husband when giving his evidence from time to time, has been evasive and at times just quite devious.
It is also of significance in my view that the father obtained a (country omitted) passport for X without the mother's consent and without any notice to the mother. I am not saying that he has done anything illegal. It became apparent when that evidence was led, that he had not done anything illegal as far as the (country omitted) authorities are concerned. He was able to make an application for a passport because (country omitted) law does not require the other parent's consent. If a child has an entitlement to a passport, that entitlement cannot be stopped by one of the parents withholding consent. What the father has done may have been legal, but it certainly was not proper. It is clear to me that the father was, by devious means, trying to remove the child from the jurisdiction of the court.
It is interesting too that the father still persists in seeking an order that he be permitted to take the child to (country omitted) on the basis that his sick mother wishes to see the child. In my view, the risk that he will not return far outweighs any benefit that the child may gain from visiting a grandmother that she does not even know.
I also agree with the remarks made by the mother’s counsel that the doctor's report does not actually say that the father's mother is on her deathbed, which is the impression the father constantly tried to convey to the court. It does say she is not well and it does say that she is severely disabled and is not able to walk, nor can she fit into a wheelchair. However, it does not say that she is on her deathbed. It says quite clearly that she would very much like to see her grandchild, and I can accept that. That is fairly normal for a grandmother. But it does not say what the father tried to convey on numerous occasions.
I should also comment on the evidence of Y’s stepmother Ms S. Her evidence did nothing in my view to help the father's case. She is clearly bitter towards the mother when, from the evidence before me, he has no reason to be bitter towards her. The evidence was clear that the mother has promoted a relationship between Y and his stepmother and half‑siblings (i.e. the Ms S siblings), when she could have taken a far more obstructive position. I venture to suggest that Ms S's judgment in relation to the matter is clouded by the recent tragic loss of her husband (Y’s father) but it is to the mother's credit that she is able to rise above the bitterness displayed by Ms S and promote Y’s relationship with his half‑siblings and his stepmother.
The section 68F(2) factors
The child’s wishes
The child is only five years old and only just that, so her wishes will clearly not determine this matter. She is not mature enough to even understand the significance of the dispute between her parents.
The nature of the child's relationships with the parents and with others
It is clear that the child has a normal, close, loving relationship with her mother. Apart from a period following the mother's hospitalisation and until the recovery order required the return of X, the mother has looked after X for the whole of her life.
Similarly, the only evidence that I have is that the child has a normal, loving half‑sibling relationship with Y, with whom she has also lived for the whole of her life, apart from that period referred to in the preceding paragraph.
The child has not seen the father for any meaningful contact since the police executed the recovery order in August 2004. It is quite obvious, and in my view understandable, that the mother does not trust the father. The lack of contact between the child and her father must have affected the relationship between the child and her father and I must conclude that X's relationship with her mother is much stronger than her relationship with her father.
The likely effect of any changes in the child's circumstances
When I look at the likely effect of any changes in the child's circumstances as proposed by the father, it is inevitable that a change in residence away from the mother would have a devastating effect on this five-year-old child. She has not had any contact with the father for nearly a year, apart from an apparent attempt at telephone contact on her recent birthday.
The capacity of the parents to meet the child's needs
The mother was diagnosed as suffering from bipolar affective disorder. Dr C's evidence was that her condition has been stabilised by medication and I accept the mother's evidence that she appreciates the need for her medication and, significantly, that she takes her medication on a regular basis as directed. I recall her clear evidence about her different ways of ensuring that she takes her medication. Dr C's evidence was that her illness did not make any difference to her parenting capacity. He said: “She is capable of doing anything that a so-called ‘normal’ person can do.”
The father sought to introduce evidence today from a psychologist. There was no objection taken to that and the psychologist's affidavit sworn on 1 July 2005 was admitted. That affidavit sets out the psychologist's qualifications (which they are clearly impressive qualifications) and also provides a report in relation to bipolar affective disorder. The report is a detailed treatise on the disorder. However, where the report is lacking, is that it does not have any reference to the mother.
Consequently, if there is any conflict in the evidence, then Dr C's evidence is to be preferred because he was the treating psychiatrist for the mother. (However, I do not believe there is any conflict in that evidence.) Further, the psychologist, who does not treat mental disorders in the same way that a psychiatrist does, has not even met the mother.
However, the psychologist said a number of things that were supportive of the mother's case, not only in her report but also in her oral evidence today. She has indicated that in some instances women with mental illness can find parenthood a stabilising influence. In cross‑examination, she gave evidence that was essentially contrary to the case of the father, in that she indicated that bipolar affective disorder can be aggravated by two parties being in dispute.
Her evidence in relation to the question of paranoia raised by the father, was that it could be part of the psychotic episode and part of the delusion. There was no evidence from her that those who suffer from bipolar affective disorder are constantly paranoid. However, it is quite clear that the mother has a substantial worry that the father will remove the child from her. She broke down when giving evidence about that today. In my view, given the history of the matter, that is not paranoia, it is an understandable concern of a mother.
In relation to the capacity of the parents to meet the child's needs, I must also look at their financial capacities. The mother is a (occupation omitted) and her income is in the order of $60,000 per annum. That gives her a capacity to meet the financial needs of the child.
The position in relation to the father and his financial capacity is somewhat clouded. He initially started his evidence today saying that he was a landlord and he was involved in two or three other activities. However, for reasons that I do not quite understand but it was clear he thought the evidence would go against him, he backed off in relation to the two or three other activities and relied only on his income as a landlord. If all his units are full, that income as a landlord is $450 per week. He has five and he lets them out at $90 each. He pays about $400 a month out, so roughly a quarter of that income goes in mortgage payments. He also stated that he pays rates of $7,000 per annum, which is a substantial amount, being roughly $135 per week. He does not rely on any social security benefits either from Australia or (country omitted), so it seems to me that, without resort to the public purse, the father is probably finding it difficult to make ends meet.
The capacity to meet the child's needs includes the capacity to meet educational needs. I conclude that the mother, being a (occupation omitted), has no difficulty in meeting those needs because of her education. However, it is also clear that the father, if he was to be the residence parent, would be able to meet those needs.
The attitude of the parents to the child and to the responsibilities of parenthood
I have no concerns about the mother's attitude to parenting. She shows that she has significant concern for her children. She moved to New South Wales for financial reasons essentially, and clearly an income of $60,000 as opposed to $20,000 per annum provides a reasonable incentive. As I have indicated, the authorities state that the mother does not have to show compelling reasons to relocate, but she clearly has shown good reasons.
I have some concerns about the father's attitude to the responsibilities of parenthood. It was clear that he was intending to take the child to (country omitted) without the mother's consent and it was only the placing of the child's details on the watch list that prevented that. It shows that placing the child's details on that watch list was the correct decision. In my view, I can conclude on the evidence before me that the father was intending to cut the mother out of the child's life, possibly forever, but most certainly for a substantial period of time. That clearly shows a complete lack of understanding of the child's relationships with her mother and with Y, and the need for those relationships to continue.
The need to protect the child from physical or psychological harm caused by abuse
I have some further concerns about the father’s attempt to introduce an element of child abuse into this case when there is no credible evidence of any such abuse before the court. I must say that I can see no good reason for the evidence of Ms C. I am not being critical of Ms C at all. It is just that her evidence was not at all relevant to this particular case. There is no evidence of the sort of child abuse that Ms C apparently deals with on a reasonably frequent basis.
There is no evidence of abuse so there is no need for the court to be looking to protect the child from it.
The practical difficulty and expense of contact
In my view, one of the significant practical difficulties associated with contact is the effect on the mother of face‑to‑face contact. I have been referred to cases such as Re Andrew (1996) FLC 92-692. Given that the father's expert psychologist says that the mother's situation could be detrimentally affected by disputes between the parties, I do need to look at the effect of contact orders upon the mother. From the mother’s evidence today, it seems that she still has some very real concerns that the child may be taken away from her. In my view, the father's attempt to take the child to (country omitted) without her knowledge or consent is justification for those concerns.
I therefore propose that there be no face-to-face contact, at least for the foreseeable future. The mother's evidence was that when the child is older and is able to cope, she may be able to cope with face‑to‑face contact. However, I am quite sure that she cannot cope with it now.
There was a suggestion that perhaps there should be some supervised contact but I have nothing before me to say what supervision is available. Further, that supervision would need to be in a contact centre or something similar, and I have no evidence of whether there is a contact centre anywhere near the mother.
The mother lives at (omitted), some distance from Sydney, and that causes a difficulty and expense in relation to face-to-face contact, However, that is not insurmountable.
It is my view that there should be no face-to-face contact at least for the foreseeable future. However, I do not propose to make the contact orders interim orders, because the father can at some stage in the future make an application for further contact. He would, of course, need to get over the Rice & Asplund (1979) FLC 90-725 threshold if he was to make that sort of application.
Proposed orders
The orders that I propose to make will be:
·that the child reside with her mother.
·that the mother have sole responsibility for her day-to-day and long‑term care, welfare and development of the child (Someone needs to make decisions about important matters like schooling and hospitalisation and so that should not remain joint.)
·that the mother be permitted to reside in New South Wales with the child.
·that the father have contact with the child by letter, and by telephone at reasonable times, provided that it does not exceed once per week and on the basis that the father initiates the telephone call to the mother's mobile telephone. (On the evidence I am satisfied that the father has made minimal efforts to contact the child since this matter was before me in April.)
·that the father have contact with the child on such other terms and conditions as may be agreed to by the mother in writing beforehand.
·that the child's details remain on the airport watch list
·that until further order the child's (country omitted) passport (which is an exhibit in these proceedings) remain in the custody of the Registry Manager of the Family Court of Australia at Hobart.
·that until further order the father be restrained from making any further application for a passport for the child.
·that copies of the orders be provided not only to the (country omitted) High Commission but also to the Australian Department of Foreign Affairs and Trade in Canberra (because it seems to me that the child is entitled to both Australian and (country omitted) passports).
I otherwise propose to dismiss all the applications, unless there are any other matters that I have not dealt with.
Note: The mother’s application for costs was adjourned for hearing as a special fixture in Devonport at 9.30 a.m. on 14 July 2005.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 5 July 2005