Huggins and Cheney

[2018] FCCA 983

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUGGINS & CHENEY [2018] FCCA 983

Catchwords:
FAMILY LAW – Parenting – application for recovery order after the mother relocates from Darwin to Perth – where there are allegations of family violence – concerns about father’s parenting capacity – father’s ability to relocate – application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss.60CC(2), 60CC(3)

Applicant: MR HUGGINS

Respondent: MS CHENEY

File Number: DNC 42 of 2018

Judgment of: Judge Young

Hearing date: 27 March 2018

Date of Last Submission: 27 March 2018

Delivered at: Darwin

Delivered on: 27 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Coonan

Solicitors for the Applicant: Coonan and Coonan Legal

Counsel for the Respondent: Mr Carr

Solicitors for the Respondent: Northern Territory Legal Aid Commission

ORDERS

1. That the father’s interim application filed 29 January 2018 and Application in a Case filed 5 February 2018 be dismissed.

2. That these proceedings be transferred to the Family Court of Western Australia to be listed on a date and time to be advised to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 42 of 2018

MR HUGGINS

Applicant

And

MS CHENEY

Respondent

REASONS FOR JUDGMENT
EX TEMPORE

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amendable to being read.

2. This is an application by the father of a 2 ½ year old child that the child be returned to Darwin from Perth where the child is presently in the mother’s care and be placed in the father’s care.  The mother has indicated, in her response, that she opposes such an order.  She does not, in terms, say anywhere that she would be be prepared, as an alternative, to return to Darwin with the child.  In a way, that simplifies matters a great deal because the father’s material emphasises his commitment to working in Darwin and working on the (omitted) project, as I understand it, as a (occupation omitted) where he has a (omitted) business.

3. In the absence of some proposal from the father as to how he would care for the child, it is difficult to see in the absence of some indication from the mother that she would return to care for the child, how that could be practically given effect.  Mr Carr, who appears for the mother, told me, from the bar table, that his instructions are that the mother will not return.

4. Whether or not that is the case I do not think I need to determine.  There is clear evidence that the mother is very reluctant to return to Darwin.  There is some evidence from her treating GP that it would be bad for her psychological health to be forced, some way or other, to return to Darwin.  The GP gives evidence that the mother is being prescribed sertraline which I understand, although there is no evidence about this, is an antidepressant.

5. The background of the matter is as follows.  The parties have lived in Darwin for some years.  It appears that the relationship has been tempestuous.  There is evidence from the mother that she and the father separated in March of 2017 and she went to Queensland where she was for approximately two months, I believe, until about May 2017 when the father visited her and, after discussions, she returned to Darwin with the child.  When she returned to Darwin she rented separate premises to the father.  That is not an issue and, as I understand it, at least from that time, from March, the parties did not cohabit in the sense of having a single address at which they lived.

6. Counsel for the father said that in fact what happened was that they continued their relationship, albeit each with their own homes, including spending time together and having the child spend time with the father.  I think that is probably the case from the materials.  However, in September 2017, the mother applied for a domestic violence order in the Local Court.  There was no evidence before me precisely when that order, which was an interim order, was made final or permanent.  Ms Coonan, as counsel for the father, conceded there was an existing final domestic violence order.  Regrettably, neither of the parties were able to provide me with a copy of the order which is surprising given the nature of this case.

7. In any event, the domestic violence order which, I am satisfied, was in place since some time after the application in September 2017 has been in place and remains in place, whether as an interim order or a final order.  The father, at one point, set about applying to have the domestic violence order set aside. He said, in his application, that he and the mother had agreed that it was no longer necessary.  However, it was not proceeded with, that is, the application to set aside the order.  As I understand the procedure for making a domestic violence order the application would have been served on the father at some point and listed before the Local Court for the making of an order shortly after. If a party does not appear or a respondent does not appear on the day the order is made final.

8. It is, in my view, significant that the father did not oppose the making of a domestic violence order and has not pursued having a domestic violence order set aside. That is a matter I must take into account under the Family Law Act. The allegations concerning family violence, to use the phrase used in the Family Law Act, are contested. The mother’s evidence about physical violence is very limited. She says that in 2015 when she first told the father that she was pregnant with the child there was some disagreement which resulted in him pushing her. In May 2016 she says that he came home late, intoxicated, on one occasion, and there was a disagreement about a phone, which involved, as I understand it, her alleging she was struck in the face by an elbow. It is unclear whether she says that was deliberate or accidental. On another occasion, in February 2017 – and this would have been shortly before the mother left for Queensland – she said, during an argument, the father pointed a finger, or pressed a finger against her head, and insulted her.

9. Each of those allegations was denied by the father and the father said to the family consultant that he was perplexed, shocked and confused by allegations that he was a physically violent man.  I obviously cannot make any finding about those matters on an interim hearing and, if it were simply for those matters, I might consider that family violence was of limited significance but that is not the end of the matter.

10. The mother has also alleged that there has been a continuing of abusive conduct by the father, particularly by using abusive and insulting language and, in one of her text messages to the father, on 18 November 2017, after an incident at some (function omitted), where she says in her affidavit that the father was drunk and behaving aggressively and unpleasantly. She complained about his behaviour and on 18 November, which was following the incident at the (function omitted), she sent him a text to the following effect:

    No, Mr Huggins.  You abused me in the car with X in it.  You called me a stupid cunt, a fucking bitch, a piece of shit, a dumb cunt, amongst other things.  When I asked you to stop yelling at me, with X in the car, you said to me, “I won’t, because you brought this on, cunt.  This is your fault and if you think you’re going to Perth, think again.  You can stay here and be unhappy.” 

    Then, this is the mother speaking.

    You’re not coming anywhere near us today.  You have to own up to your actions and deal with the consequences.  I haven’t reported last night to police yet, as I am being nice about it, but if you keep going, I will.  I will have no choice but to report it.  So you leave me alone.  I won’t tolerate family violence in front of X.

11. The father replied to that text on the same date and he did not deny any of what the mother had alleged to him in circumstances where what she alleged was, in my view, of the utmost seriousness.  There is other material filed on behalf of the mother from the mother’s witnesses.  In particular, an affidavit by Ms B which refers to the father’s heavy alcohol consumption in 2016 and verbal abuse of the mother and, also, a reference to an assault by the father with the mother informing Ms B, as I understand it, of the telephone incident where she said that she was assaulted by the father. In its terms, that may be hearsay but the evidence about the abusive language and the heavy alcohol consumption was not hearsay. 

12. There is an affidavit from Mr D, an acquaintance of the parties, who referred to the incident on 18 November – the same one that the mother had referred to in the text – and he said that the father had been abusive to the mother and intoxicated.  This is the incident at the (function omitted).

13. There are other affidavits filed on behalf of the mother dealing with the incident at the (function omitted), including from Mr G.  Mr G, who worked with the father, said that the father had a drinking problem but also made allegations that the father was abusive and intimidating towards the mother when drunk. The fact that there is evidence from a number of witnesses about the incident on 18 November when the father was said to be drunk and abusive – the mother’s remonstration with him by text followed that and was unchallenged by the father – gives rise, in my view, to real concerns about whether the father abuses alcohol and his attitude towards the mother and his conduct towards her in the past.

14. As against that, the father has relied on a number of witnesses – eight, on my count, apart from himself – who give evidence that, when they have seen the father he has not abused alcohol.  One or more of the witnesses who say they have employed him say that he was subject to drug and alcohol testing and they would not tolerate the father working if he was affected by alcohol.  Other of the witnesses deposed to the father’s good relationship with the child and describes him in various ways as respectful or kind or gentle with the child.

15. None of that, apart from the allegation by Mr G that the father was drinking at work, is really inconsistent with what the mother says.  Much of that evidence about the father is from people who have not had an intimate knowledge of the household of the mother and father and much of the evidence is really in the nature of character evidence and does not, in my view, go to the heart of the issue which is whether or not there is substance to the allegation that the father misuses alcohol and engages in conduct towards the mother which would satisfy the definition of family violence, particularly the coercive and controlling behaviour involved in sustained insults or verbal abuse.

16. The other concerning thing about the SMS that I have already quoted from the mother to the father is the mother’s assertion that the father’s conduct was carried out in front of the child.  Again, that was one of the matters that was not challenged by the father.  All of those matters, in my view, give rise to a real doubt about whether it is appropriate, even if there were a unilateral relocation by the mother from Darwin to Perth, to make an order that the child live with the father.  In circumstances where it is uncontested that the mother has been the primary carer for the child, those matters, in my view, would militate against making an order that the child be placed in the father’s care.

17. There were also other areas of dispute, particularly whether or not there was an agreement by the father that the mother relocate to Perth with the child.  There is no doubt that there were discussions about that.  There is no doubt, in my view, as late as 19 November 2017, that the father was indicating to the mother that he would go ahead with the move to Perth.  That is clear from the text messages at item 32 and 40 of the father’s affidavit where he annexes at annexure H5 text messages to the mother.

18. The mother said in her affidavit that there was, in fact, an agreement that she would move to Perth in May of this year.  She said in her affidavit that the incident of 18 November, however, was the last straw or precipitated her decision to move immediately.  In that sense, I consider that the relocation was unilateral, although against a background of discussion about a move to Perth.  The father says that he does not want to move to Perth because he has significant debts and he is employed at the moment and needs to remain in employment to pay his debts.  Given that, it is difficult to see how he would look after the child in the absence of the mother’s return to care for the child.

19. Taking all those matters into account and also taking into account the matters in section 60CC of the Act, subsections (2) and (3), while I consider that, given the child’s very young age, there is a concern about whether or not the child will be able to maintain a meaningful relationship with the father while the father remains in Darwin and the child is in Perth, the fact is the father expressed a willingness to go to Perth and move to Perth in May.  His affidavit material does not explain precisely why he cannot do that.

20. I am left to draw the inference that, at various points, the father was prepared to agree to the mother relocating to Perth with the child and he would follow.  Certainly, there is material in the text messages to suggest that he was willing to go along with that but, very possibly, on the misunderstanding that he would be able to re-establish a relationship with the mother.  The mother, at all times, made it reasonably clear, I think, that she was not prepared to agree to that.

21. So there is a difficulty if the father remains living in Darwin but, in my view, there is no real reason given the father’s indication of a willingness to move why he cannot move to Perth.  I would be concerned, given the evidence of the father’s misuse of alcohol and the evidence of the father’s apparent willingness to expose the child to family violence, in particular, during the episode in the car referred to by the mother in her text message about whether the father has an adequate parenting capacity, particularly given that he has not given any evidence about a willingness to stop work and, indeed, him stopping work is entirely inconsistent with the whole purpose of him being in Darwin, that is, to work and to earn money.

22. So the father’s proposal, in my view, is impractical.  The other factors in subsection 60CC(3) I do not propose to canvass in any detail.  I have already canvassed some of those in a recitation of the facts of this matter.  Accordingly, I dismiss the father’s interim application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 19 April 2018