Kadlec and Kasun

[2018] FCCA 2598

FEDERAL CIRCUIT COURT OF AUSTRALIA

KADLEC & KASUN [2018] FCCA 2598

Catchwords:
FAMILY LAW – Parenting – interim hearing – unilateral relocation – where the father has removed the child from the mother – where there is family violence – unacceptable risk to child’s welfare – child returned to mother.

Legislation:

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

Applicant: MS KADLEC

Respondent: MS KASUN

File Number: TVC 398 of 2018

Judgment of: Judge Young

Hearing date: 21 August 2018

Date of Last Submission: 21 August 2018

Delivered at: Adelaide

Delivered on: 21 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Shuttleworth

Solicitors for the Applicant: Shuttleworth Legal

Counsel for the Respondent: Mr Bulloch

Solicitors for the Respondent: Westside Lawyers

ORDERS

1. That the child [X] born 2013 live with his mother.

2. That the child be returned to the mother at the Police Station at the earliest opportunity.

3. That these proceedings be transferred to the Federal Circuit Court at Townsville to be listed on a date to be fixed by that Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

TVC 398 of 2018

MS KADLEC

Applicant

And

MR KASUN

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 amenable to being read.

2. This is an application concerning a five year old child, [X].  His parents separated in Town A, as far as I can see, towards the middle of 2017 and there is some disputed evidence about exactly what [X]’s arrangements were immediately after separation until about December 2017.  There is some indication that the father was primarily caring for [X], though he appears to have spent at least substantial and significant time with the mother at various times.  The mother suggests that until she and the father had their final dispute in December that time was approaching a shared care arrangement.  As I say, I cannot make a definite finding about that.

3. In August, or thereabouts, 2017 the father asserts that he was assaulted by the mother when she punched him during a dispute.  The circumstances of the dispute are rather unclear as the father has given somewhat different versions of the event in different documents.  In any event, it appears to be not in dispute that the mother was given some kind of supervisory penalty as a result of that.

4. The offence was committed on 28 July 2017, and on 14 March 2018 the mother was given, as I say, a supervisory order.  Ms Shuttleworth, her solicitor, says that it was a community-based order or a probation order.

5. The father said to the mother in about December 2017 – this is some five months after the offence was committed – that he wished to visit his family in Town B in South Australia and sought her permission or agreement at least to take [X] for the holidays.  In March 2018, the father decided not to return to Town A with [X] and in affidavit filed on 22 May 2018 he gave the following reasons.

6. I will correct what I said before.  The arrangement that I have described for [X]’s care continued until late March 2018.

7. In the father’s affidavit filed on 22 May he said that:

   On 28 March 2018, I took [X] to South Australia for a holiday to visit my friends and family.  We went and stayed with my friend Ms L and her husband and children in their home in Town B.  After staying with Ms L and her family for a few weeks, I realised that [X] and I would have a more positive life in my hometown of Town B, and there was nothing keeping me in Town A.  I had all of my furniture and effects transported to Ms L’s house and have not returned to Town A with [X].

8. It was suggested by the father’s counsel that the real reason for the father leaving Town A was fear or the wish to get away from a violent relationship.  That is not what is said in the affidavit material, and, indeed, the fact that after the assault in July 2018, the father remained living in Town A for some eight months with [X] would tend to suggest possibly that that was not his reason.  The other thing, of course, is that in referring to the mother’s convictions for violent offences - about the one on 14 March 2018 for the offence committed in July 2017, it should be mentioned that the mother was convicted of an offence which involved stabbing the father in 2013.  Of course, their relationship continued for many years after that.  I am told that the mother did not serve a period of actual imprisonment for that offence in 2013 and was released on parole.

9. The picture of violence between these parties is not one-sided.  The father has been convicted of breaches of domestic violence orders protecting the mother on two, if not three, occasions in recent years and it is clear from the material produced on subpoena from the Queensland Police that the father has on occasion assaulted the mother, including choking her, and it would appear that the physical violence between these parties has been a two-way street, so to speak.

10. I do not on this material see a basis for the submission that the father left Town A simply to escape violence or escape fear of the mother and I think the situation is probably largely as he describes it in his affidavit, that is, he believed he was coming for a holiday in March 2018 to see his family and with whom he apparently has improved relations after a period of estrangement and he decided that life suited him here.

11. Now, the difficulty, of course, with that is that it is in substance a unilateral location and the general policy of the Court in those circumstances has been to make orders that would see the child returned to the situation that constituted the status quo preceding the unilateral location. The authorities say that will usually be in the best interests of the child and permit a Court to more thoroughly examine all of the relevant circumstances rather than attempting to make a thorough assessment of the issues relating to the child’s best interests on what is in substance an interim hearing or a recovery order application.

12. This is not strictly a recovery order application.  The mother simply sought orders soon after the failure of the father to return to have the child returned with her.  In view of the allegations that were made the judge of this Court that was first seized of the matter, Judge Kelly made orders for the preparation of a family report evidently on an urgent basis because the family report was prepared and is dated 26 July 2018.  That family report is an important document because it attempts to make some assessment of the various allegations made by the parties and in particular the allegations by the father that it is not in [X]’s interest to return to Town A because of the mother’s mental health and other matters including her dependence upon painkiller medication.

13. The family report is a thorough document and in assessing the question of the mother’s drug use it notes that she is receiving three kinds of medication:  Xanax, a tranquiliser; Seroquel, which is an antipsychotic; and Effexor which is an antidepressant.  The family report refers to a letter from the mother’s doctor, which is attached to an affidavit, and the GP says that the mother is presently stable on her medication, she has not had a psychotic episode for 10 years and her medication does not affect her cognitive ability.  The mother evidently impressed the family consultant as child-focused, rational, functional, well-presented and appropriately dressed.

14. Her assessment of the father was that he was unrelentingly critical of the mother. The family consultant observed the child, who she described as a small and slender child who apparently had some speech difficulties so that it was difficult to understand him some of the time.  He would have been about five years old, just turned five at the time.  The family consultant was of the view that there was some evidence that the mother may have coached the child at some point because he said that he wanted to stay with mum and dad wasn’t sharing.  Nevertheless, the child was, according to the family consultant, connected and comfortable with both parents.

15. The distinctive thing about the observation was that when the child saw the mother, he was “overjoyed,” to use the family consultant’s word, to see her. As the observation was about to end, the child was extremely distressed or became extremely distressed on being parted from the mother, and in the family consultant’s opinion, the high degree of stress suggested to her that the child was suffering from trauma.  She speculated that the trauma was related to grief and she speculated that it was as a result of the fact that the child had been removed from having any contact with the mother.

16. Now, I might say that the family consultant is a psychologist with clinical psychology qualifications.  The family consultant’s overall assessment was that having regard to the history of violence between these parties that she saw no increased safety risk as a result of the past behaviour of either party to the child presently.  She thought that the father’s claims of the mother’s deficiencies or deficits were not supported by her observations.  As I said, she considered that the behaviour expressed or demonstrated by the child was indicative of trauma and an unresolved need for his mother’s love, attention and presence.

17. The family consultant said that the arrangements that had been put in place by the father, that is, for some telephone contact, were inadequate for this child at age five.  The family consultant also expressed the view that given the father’s relentlessly negative attitude displayed towards the mother, she did not think the father was in a position to adequately cope with the child’s grief or lessen its impact. 

18. She expressed a view that the father removing the child completely from the mother was neglectful of the child’s needs and that the father does not provide reassuring support in relation to the child’s relationship with his mother.  The father’s counsel in submissions suggested that there were elements of unacceptable risk should there be an order for the return of [X] to Town A.  Those unacceptable risks are, as I said, related to some aspects of the mother’s conduct or presentation at various times which give cause for some concern. 

19. In particular, there is a Queensland child welfare interview with the director of [X]’s childcare centre or early learning centre from November 2017.  She said, that is, Ms M, that:

    [X] is with his father.  At that stage, the child was content.  He’s not scared and withdrawn anymore since being in the father’s care. 

20. It does not, in terms, say that he was scared with the mother but that seems to be the implication. Given that the background to that statement is not described it is very difficult for me to properly evaluate that sentence because there is no context to it.  She goes on:

    When the parents were together, [X] presented as scared. He appeared scared of the mother.  If [X] ever got into trouble, eg, he bumped someone, he would say, “I’m sorry.  I’m sorry.” 

21. Now, if [X] was scared when the parents were together, of course, that would be the time when one or both parents were displaying or exhibiting family violence towards the other.  It is indicative that [X] was exposed to family violence possibly.  There is also evidence that he was not eating properly and that has settled apparently since the separation and since, according to Ms M, the child has been with his father.  There is also mention that the mother was caught pinching another child on video footage at the day care centre and she pinched another child as she walked past and then, according to Ms M, blamed it on [X].

22. She said there had been no worries for [X] in dad’s care.  He seemed to be a good dad.  The mother had come into day care in November 2017 and she was ranting and raving wanting to take [X], but he was not there.  She said:

    [X] presents well with plenty of food.  The mother used to bring things like frozen meals for [X]’s lunch.  He never had enough food. 

23. That note which, in itself, is concerning is to be contrasted with a note also apparently from the Queensland child welfare authorities from November 2016.  Again, with exactly the same person, Ms M, 12 months before.  And she told the child welfare authorities:

    There have been no issues noted in relation to [X].  He’s always clean and has lunch.  Ms M–

24. that’s Ms M, the Child Care Director –

    has never had problems with either of his parents.  Ms Kadlec picks him up of a morning and drops him off in the afternoon.  [X] presents well and Ms M has no concerns at all.

25. As far as I am concerned, those observations by the same person are entirely inconsistent.  Counsel for the father points out that there is a difference of 12 months.  Well, that is true.  There is a difference of 12 months.  But considering what was said by Ms M about the presentation of the child when the parents were together which – in 2017 – speaking about a period of separation which had been in mid-2017, the inconsistency with the remarks from November 2016 is striking and unexplained.

26. These matters, in my view, are illustrative of the reason why it is ordinarily best to assess competing claims and allegations in circumstances where the issues arose.  In this case, in Town A.  To add to difficulty in this case, the father has made it clear that if there is an order that [X] returns to Town A, he, the father, will not return.  So in substance, what the Court is being presented with by the father is a necessity to choose between – on an interim basis his proposal that [X] live with him in Town B and [X] return to Town A.

27. I must say that I share on the material before me the concerns expressed by the family consultant about the father’s unilateral relocation.  There are indications in the material that he has not supported the child’s relationship with the mother and that the child is suffering traumatic grief as a result of the separation from his mother.  Those matters would raise, in my view, very serious doubts about the father’s parenting capacity, his insight into [X]’s moods and his suitability to be the parent with whom [X] lives.

28. As against that, there is the information about the mother which in itself raises concerns, particularly the material relating to what Ms M, the director of the child care centre, said in November 2017 which was not before the family consultant as far as I know.  That is of concern.  But as against that, there is the material from the family consultant suggesting that the mother presented as child focused, rational and competent.  And there is the medical evidence to suggest that, despite the mother’s regime of medication, there is nothing suggesting that she has a mental health problem.

29. So, in my view, the Court really has difficulty in making what is, in effect, an order for relocation on the papers and I am not prepared to do that.  In my view, the authorities say that if I am not satisfied that there is unacceptable risk in having the child returned to Town A, that is the order I should make.  And I might say that I am concerned there is unacceptable risk to the child’s welfare should he remain in Town B with his father without any support of his – or encouragement of a relationship with his mother.  I think that is the more likely risk to his welfare at the moment.

30. Having regard to the matters in section 60CC, particularly subsections (1) and (2), I consider that the risk of psychological harm set out in subsection (2) should the present circumstances continue is a real one. That is the factor to be given the greatest weight. I have regard to the additional considerations in subsection (3). The one that appears to me to be most relevant at this stage is the one about parenting capacity. It is very difficult to make assessments of the other matters on an interim basis on limited material. As I have said, I have some question about the parenting capacity of the father in particular, having removed the child from his mother in the circumstances that he did. So I propose to make an order that the child live with his mother in Town A.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 12 September 2018