KEITH & BROWNE
[2015] FCCA 1496
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEITH & BROWNE | [2015] FCCA 1496 |
| Catchwords: FAMILY LAW – Interim relocation. |
| Legislation: Family Law Act 1975 (Cth), Part VII |
| D & SV [2003] 30 Fam LR 91; FLC 93-137 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 |
| Applicant: | MR KEITH |
| Respondent: | MS BROWNE |
| File Number: | NCC 2905 of 2014 |
| Judgment of: | Judge Myers |
| Hearing date: | 13 March 2015 |
| Date of Last Submission: | 13 March 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Flintoff Lawyers |
| Counsel for the Respondent: | Ms Chakich |
| Solicitors for the Respondent: | Bannerman Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms Garrick |
| Solicitors for the Independent Children’s Lawyer: | Brennan Garrick Lawyers |
ORDERS
The Court makes the following orders:
The mother have sole parental responsibility of the child X born (omitted) 2014.
The mother must relocate the child’s residence to the (omitted) or (omitted) Council area within 56 days of today’s orders.
The mother is hereby restrained from changing the residence of the child from any address outside the (omitted) or (omitted) Council area without the written consent of the father.
The child X born (omitted) 2014 live with mother.
The child spend time with the father each Monday, Wednesday, Friday and Saturday of each week as agreed but failing agreement from 3.00 pm to 6.00 pm each day.
For the purposes of facilitation the handover of the child between the parties, the parties shall deliver, collect and return the child to one another in the carpark at McDonalds Family Restaurant, (omitted) at (omitted).
Each party shall ensure the other party is kept informed as soon as is practicable of any medical condition, serious illness suffered or medical emergency related to the child.
The parties be prevented by injunction from denigrating one another or any member of the other’s family in front of or within the hearing of the child.
The parties undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2001) urinalysis for drug screening as requested by the Independent Children’s Lawyer not more than once every six (6) week period and such urinalysis drug screening to be within 24 hours of such request and provide copies of the results of the tests to the other party within 48 hours of receipt of same.
The father is to remain engaged with his current general practitioner, psychiatrist and psychologist and undertake any counselling and form of therapy prescribed by the said general practitioner, psychiatrist and psychologist and in the case of the medication as prescribed by the said general practitioner, psychiatrist or psychologist.
The applicant’s costs of the proceedings are reserved.
Liberty to restore the matter on 21 days’ notice.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act1975;
(b)to profile of the parties
(c)to assess the parties interactions;
(d)to assess the child’s developmental and emotional state;
(e)to assess the relationship of the child to the parties and other significant persons in the child’s household;
(f)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(g)to assess the proposed and actual home environments; and
(h)to assess the proposals of each party as to the child’s future.
The Court requests the said report be released by 1 December 2015.
Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.
If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The matter is adjourned to 4 December 2015 at 9.30 am for directions hearing in the Federal Circuit Court of Australia sittings at Wauchope.
THE COURT NOTES THAT:
The parties may seek to agitate property proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Keith & Browne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
NCC 2905 of 2014
| MR KEITH |
Applicant
And
| MS BROWNE |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These are proceedings relating to a relocation of a child, X aged now 11 months of age, between the applicant father, Mr Keith, and the respondent mother, Ms Browne. Proceedings were commenced by the father filing an initiating application on or about 5 November 2014. In that application the father sought interim orders that provided:
a)the mother must relocate the child's residence to (omitted) or (omitted) council area within 35 days;
b)the parties have equal shared parental responsibility for the child X;
c)the mother be restrained from changing X's residence outside of the (omitted) or (omitted) council area without the written consent of the father;
d)the child live with the mother;
e)the father spend time with X every Monday, Wednesday, Friday and Saturday of each week as agreed but failing agreement from 3 pm to 6 pm on each day; and
f)each party must ensure the other party is kept informed as soon as is reasonably practicable of any medical conditions, serious illness suffered, any medication that has been prescribed and/or any accident or other welfare issues in relation to X.
In support of the orders sought by the father he caused to be filed an affidavit sworn or affirmed by him on 5 November 2014, filed the same date. The father deposes that he is the father in relation to the child X and in paragraph 4 sets out it is the mother's intention to take X to live permanently in Western Australia for her own motives, without the best interests of X in mind.
In paragraph 5 of the father's affidavit he deposes that Ms Browne, the mother, and he had been in relationship counselling which in his opinion was very beneficial. They made a genuine effort to resolve their differences but there was no chance of reconciliation between the parties. The father deposes that the parties reached what he describes as a verbal agreement agreed during relationship counselling whereby they would sell their property at Property W, a suburb some half an hour's drive from the (omitted) township; that the mother and X could go back to Western Australia over what he describes as the next six months; that the mother would then stay in Property W in the family home until the house was sold, and that the parties agreed that once the property was sold they would all move back to Perth together.
The father deposes that the mother decided to leave the home in Property W with X to travel to the township of (omitted), in Western Australia, without his consent on 20 October and that the mother was determined to relocate to Western Australia, limiting the time he spends with the child. The father deposes to a conversation he had with the mother on or about 12 October in a living room of the property the parties owned in Property W, where the mother is alleged to have said: "I will make sure you only get supervised visits if you stop X and I going to Western Australia because you are not fit to look after him because of the medication you are on" and that a further threat was made, "X needs to live with one parent. It's attachment theory. X will be living with me until at least he's four years old".
The father deposes to the mother making threats of laying false allegations against him to the effect that she would ring the police and inform them she was fearing for her life in order to stop him from what he describes as “filing an initiating application”. The father deposes to the mother making or fabricating allegations in order for her to be able to relocate to Western Australia. The father deposes at paragraph 11 in his affidavit, "After legal advice I did not consent nor obstruct X going to Western Australia on 20 October because of her threats". The father deposes that the mother planned to return to Sydney on 18 December so he could spend Christmas with X.
The father deposes that he booked flights to Western Australia on 8 to 13 November to ensure that he had regular contact with X following the mother’s travel to Western Australia with X. The father deposes that the mother is a good mother and that she is extremely, what he describes as, caring and loving with X, as is he. The father deposes that his relationship with X has suffered somewhat in circumstances where he has been absent from X's life and that he feels he cannot maintain a meaningful relationship with X in circumstances where X is living on what he describes as the other side of the country.
The father deposes that he is retired and has the time and capacity to care for X “50/50”. The father deposes to what he understands as to the necessity for there to be bonding between himself and X and that the father has been involved in aspects of X being raised to date, including doing such things as bottle feeding, reading and singing to X, and bathing and dressing him, mirroring his movements, playing with him, taking X for walks and the like.
The father gives a history in relation to his service in the (employer omitted), the (employer omitted) and the (employer omitted), (omitted)), and having been medically discharged from the service in December 2003 with post-traumatic stress disorder and chronic back pain after service in (omitted). The father deposes that he currently attends regular appointments with Dr W and fortnightly appointments with a psychologist, Dr R, in (omitted). The father deposes to currently being prescribed Oxycontin, the use of which he describes as “tapering down”, that has been prescribed for chronic back pain.
The father deposes to the parties, having known each other for 10 years and that he still loves the mother regardless of the ending of their relationship. The father deposes that the parties had what he describes as relationship problems in August 2013 when the mother was two months pregnant. The father deposes that at that time he did not want to be on the antidepressant medication Efexor 150mg for the whole of his life and spoke with Dr W who prepared what he described as a treatment plan for him to taper off the Efexor.
The father deposes to having been on antidepressant medication for a period of two years between February 2012 and May 2014, that he was feeling well or what he describes as “good”, and felt he did not need to be on the medication, especially with what he described as a new baby on the way. The father sets out at paragraph 27 in his affidavit that the parties' relationship suffered in circumstances where the mother did not enjoy her pregnancy, suffered from restless legs, a sore back, poor sleep and her body changing including gaining some 17 kilos during the pregnancy.
The father deposes to being excited about the birth of X. The father deposes that after X's birth the mother stayed at (omitted) Hospital for a period of five days and that during that time the father's 16 year old daughter to another relationship, the paternal grandfather and other guests stayed in accommodation that the parties had at the property they owned together so that they could visit upon X in the hospital. The father deposes at paragraph 31 to an important incident that took place on 15 May 2014 where he overdosed on prescription medication and vodka.
The father deposes to remembering working inside and outside all day, that he had been up with X a couple of times during the night, he had a lapse in what he describes as judgment and he regrets it, he did not wish to die, and that he simply wanted to feel appreciated for the work that he had done. The father deposes that he spent 12 hours in the (omitted) Hospital and was released on 17 May and that his two brothers came to support him and assist in doing some work around what the Court might describe as the parties' farming property.
The father deposes that as a result of prompting from family members and the mother he sought treatment from the (omitted) Hospital for post-traumatic stress disorder however he discharged himself from the hospital after 12 hours as he thought it was not the right place for him. The father deposes to spending another three weeks trying to be admitted into the (omitted) Hospital in Sydney near where his father lived. The father deposes that ultimately he was accepted into the (omitted) Hospital and to his “surprise and horror” he said he was put into a room with five heroin addicts.
The father deposes that he discharged himself after a four-day period and that Dr W, who was the father's treating doctor, was supportive and happy, and that Dr W understood the (omitted) Hospital was not right for him. The father deposes that the mother was unhappy at his self-discharge from the (omitted) Hospital and also from the (omitted) Hospital. The father deposes that the mother made him feel bad about himself and that he describes the mother being “relentless” in making him feel badly for what had taken place.
It is apparent that the mother then travelled to Perth and the father then followed. The parties did not travel together as the mother was angry about things that had taken place. The father deposes that the mother's stepfather made him feel unwelcome. The father describes being castigated over his overdose and that to his surprise the mother's stepfather was not aware of the father's military history. It is apparent that the parties then left the mother's parents' place in (omitted) and then stayed with the mother's sister in Perth before ultimately returning to New South Wales.
The father deposes to having a 16 year old daughter from a first marriage that the Court understands lives in (country omitted). Her name is Y. The father deposes that it his wish that X should stay in the (omitted) Area in New South Wales, that the mother can raise X together with him in New South Wales until their property is sold, and that at that time he will have a capacity to care for X on a day to day basis. The father deposes that the property the parties own together is what he describes as a large prestige property on 70 acres. It requires what he describes as a lot of work and maintenance to keep the property in pristine condition and therefore requires him to reside on the property.
The father caused to be filed a further affidavit filed by him on 15 December 2014 that the Court has read and considered. The father deposes in the affidavit as to matters that have taken place since the matter had been before the Court on 19 November 2014. On 19 November 2014 the matter came before the Court and the Court made the following orders pending an interim hearing:
a)That the child X live with the mother, residing with her in (omitted) in the State of Western Australia;
b)That whilst ever the mother resided in Western Australia that the mother had sole parental responsibility for the child;
c)That the mother was to inform the father in respect of any health issues relating to the child including if the child was hospitalised, placed on any medication or he was to be provided with copies of any health-care records;
d)Pursuant to section 68L of the Family Law Act the Legal Aid Commission of New South Wales was requested to provide representation to the child and the matter was adjourned until 13 March 2015 for interim hearing;
e)That the father was to file and serve any affidavit material on which he sought to rely including information with respect to his mental health by 4 pm on 10 December, and other orders were made with respect to the granting of leave to issue more than five subpoenas and the like.
The father deposes that he agreed with the mother that he would spend time with X on 10, 11, 12, 13 and 14 December between the hours of 8 am and 4 pm in (omitted), Western Australia, that the father booked flights on 26 November 2014 via the Qantas website, costing him some $681. The father annexes to his affidavit a copy of the flight bookings. The father deposes that on 8 December he drove from Property W in New South Wales to Sydney, a distance of approximately 300 kilometres, prior to flying to Western Australia.
The father deposes that on the night of 8 December he received a telephone call from the maternal grandmother, Ms J, and that the maternal grandmother said to him, "Ms Browne", being the mother, "has left (omitted) with X because she is scared of you coming over and does not trust you". The father deposes that the maternal grandmother had not previously phoned him before and sounded genuinely upset that the mother had left (omitted) prior to his visit.
The father deposes that on Tuesday, 9 December, before flying to Western Australia, he sent the mother a message that set out: "Are you okay? Where are you? Your mum said you have left (omitted)". The father deposes he did not receive a reply to that text message. The father further deposes that on Wednesday, 10 December he arrived at the mother's home at 8 am as per their arrangement, the gate was padlocked, that he walked up to the house, there was no car in the driveway, and the mother's dog was not there.
The father deposes that he then telephoned the mother and there was no answer and thereafter sent a text message to the mother in which the father set out: "Ms Browne, I am at your place to pick up X. Where are you? Mr Keith" and then a further message: "Ms Browne, I am in (omitted) at your place as arranged to pick up X. Please respond by 10 am this morning. I have travelled 4000 kilometres to see my son" and that the father did not receive a reply. The father deposes to waiting at the home until approximately 8.15 am, to then phoning and texting the mother without a response and at 8.20 am he visited the local police station and requested they conduct what he describes as a welfare check on X.
The father deposes that he exchanged some 15 text messages on the morning of 10 December 2014 with the maternal grandmother. The father deposes that the maternal grandmother sent one message that said words to the effect, "Sorry, Mr Keith, I'm not thinking straight at the moment. I know they are safe but I really don't know when she intends to come back. Sorry. That's sent without me intending to, but I just don't know how long she intends to stay away. She just doesn't trust you any more, Mr Keith. You have to realise that you broke all trust when you served those papers. She would never have not shared X with you but she now doesn't know what your intentions are. Where are you now? I could meet you for a coffee". The father annexes a printout of the messages from his telephone.
The father sets out that on Wednesday, 10 December he sent the mother a text message that set out: "Ms Browne, I know your phone is working. Your mum has rung you three times and many texts regarding you leaving (omitted). She swears she doesn't know where you and X are. You're not making X available to me. Please respond with a time to ring and see X by 2 pm today. Mr Keith". The father deposes that he then cancelled four nights accommodation at the local hotel. He then changed his flights, departing Western Australia on 11 December at a cost of some $230 and then drove back to Perth.
The Court notes that on the occasion the father was in Western Australia there were current orders in place made 19 November that provided for the father to be entitled to spend time with X in (omitted).
The father deposes that he was not aware as to whether the mother currently held a passport and that the mother had visited (country omitted) over some 15 times and that she lived in (country omitted) between 2008 and 2009 and raised some concerns with respect to the mother travelling.
On 3 December 2014 the father deposes that he sent a text message to the mother that stated: "You need to start paying rent for Property W. I will be reducing my payments into the joint account to $200 per fortnight. I'm currently paying the mortgage, $600 per fortnight, rates, maintenance for the property, insurance for the former family home. I've received a child support assessment which..... $166.67 per month”.
The father deposes that he cannot afford the costs of regular travel to Western Australia to see X and that his income is some $2600 net per fortnight including his Department of Veterans' Affairs pension.
The father caused to be filed a further affidavit by him on 4 March 2015. The affidavit is largely in response to some of the material filed by the mother in the proceedings. In summary the affidavit denies the mother’s allegations with respect to the father's controlling and coercive behaviour with regards to family violence and some other matters with regards to the father exerting control over the mother.
The father denies that he ever told the mother to get an abortion when she was 20 weeks pregnant. The father denies the mother’s allegations that the father confessed to doing such things as killing chickens and also seeking to terminate his mother's life in circumstances where she was terminally ill with pancreatic cancer. The father denies those allegations setting out in his affidavit that he did not administer a lethal dose of morphine that ended his mother’s life.
The father deposes that he had in the past used drugs on what he described as a recreational basis and there was a period of time between 2003 and 2004 where he would describe himself as self-medicating with amphetamines. The father deposes that the mother is “no stranger to drugs”, and that her ex-boyfriend was a heroin addict and grew what he describes as a commercial quantity of marijuana. The mother has in her affidavit material accused the father of stockpiling what I will describe as prescription medication and even swapped prescription medication for methamphetamines. The father denies those allegations.
The father does depose that he takes prescribed Oxycontin but has only ever been able to collect two boxes at a time and that he was prescribed Oxycontin as he suffers what he describes as chronic lumbar strain since 2004, associated with his service in the military. The father annexes and marks with the letter “C” a report from his treating psychologist, Dr G. The Court has read and considered Dr G's report. Dr G sets out his qualifications with respect to being a qualified medical specialist practising in psychiatry in New South Wales. These qualifications include a Bachelor of Medicine with Honours from the University of (omitted) and he is a Fellow of the Royal Australian and New Zealand College of Psychiatry since 1991.
Dr G sets out in the report that the father was referred by his local medical practitioner on 12 May 2004. The father’s general practitioner Dr I, set out in his referral letter: "Thank you for seeing Mr Keith aged 35 years for an opinion and management. He was in the services (omitted) and has suffered post-traumatic stress after being in battle in (country omitted)". It is apparent that the father's psychiatrist has been seeing the father now for a period of in excess of 10 years. Dr G sets out that he has read and understands rule 15.07 of the Federal Circuit Court Rules.
At paragraph 8, by way of history, Dr G sets out that the father reported that in 2002 he was based in (country omitted) and had been assigned to operational duties for some time. He had been directly exposed to threats to his own life and had witnessed the traumatic death of others, including civilians. It is apparent that the father felt somewhat aggrieved by the manner in which the incidents of which he was a witness were investigated. At paragraph 13 of the report he sets out the initial diagnosis as being:
Given the history and presentation, Mr Keith was diagnosed with suffering a chronic post-traumatic stress disorder at clinical interview and completion of clinical instruments confirmed that Mr Keith meets the diagnostic criteria for post-traumatic stress disorder.
He sets out that:
When last examined on 23 December 2014 Mr Keith described persisting symptoms of post-traumatic stress disorder. He reported that he had been managing his symptoms well and that he continues to closely monitor his condition and consult with professionals who are trained in the treatment and management of combat-related PTSD.
Dr G sets out his understanding of the father's previous drug use and attempted suicide.
The doctor sets out:
From the information provided to me on 23 December 2014" it is his opinion that Mr Keith is coping well despite his current situation.
He sets out at paragraph 35:
Importantly, Mr Keith was open and reported that he had overdosed on prescription medication on 15 May 2014 and that he continued to seek treatment and support under the care of Dr W and psychologist Dr R.
In paragraph 13 he sets out:
From the information provided to me I believe that Mr Keith is getting the treatment that he needs under the care of Dr W and Dr R. Mr Keith is commended for continuing to seek opinion and support in managing his symptoms and post-traumatic stress disorder and psychological injuries sustained following service in (country omitted).
At paragraph 38 the doctor sets out:
It is my opinion that Mr Keith is mentally fit and capable of fulfilling all duties and responsibilities that are required of a parent.
At paragraph 39 under the heading Risk Assessment it sets out:
From the information provided to me and from my assessment of Mr Keith on 23 December 2014 Mr Keith does not pose any risk of the safety of himself or the safety of another person, including a child.
The father deposes that the mother has been estranged from her father for the majority of her life. The father deposes to the mother disclosing to him that she had been the subject of sexual abuse by her father.
The father sets out some history of the manner in which the parties came to own their property after having initially thought about taking over the maternal grandmother’s bed and breakfast property in 2012. The father deposes to the mother engaging in what the father describes as aggressive behaviours towards him and towards friends and the father deposes that on 31 August 2012 the mother punched him at the (omitted) Club and that she hit another man causing a split to the man's lips. The father deposes to the mother having punched one of her friends by the name of Ms J.
The father deposes to an incident that occurred on the (omitted) in December 2013 where the mother reached over and squeezed his testicles in a manner so hard that it caused him to remove his grip from the steering wheel and that an accident almost ensued. The father deposes that the mother relocated to Western Australia in a unilateral manner and annexes to his affidavit a copy of an air ticket that the father said the mother had booked to fly from Perth to Sydney to travel on 18 December for herself and X, and that it was a one-way flight.
It is the father's case that any arrangements that were in place were such that the mother could go over and travel to Western Australia but ultimately that she would reside and remain at the property in New South Wales. The Court has read and considered annexure D. It appears to be the copy of an email from the mother to the father. It annexes a copy of flight from Perth to Sydney. The flight details were for 18 December 2014. It appears to be a one-way flight only. It gives some credit to the father's argument that there was an arrangement in place where the mother would travel back to Western Australia but ultimately she would remain living in New South Wales with X.
The father provide evidence in his affidavit under the heading Contact with X between 18 October 2014 and 15 February 2015. The father sets out that he has had limited access to X over the past four months, between 18 October 2014 and 15 February 2015, and he has had some Facetime communications with X, although noting his age the Court does wonder the benefit of the Facetime or its ability to replace what is really actual time between the father and the child when considering the dates given are October, 14 minutes; November, 35 minutes; December, 18 minutes; January, 22 minutes; February, 22 minutes. It is not clear whether they are individual occasions or a totality of any Facetime that may have taken place between the father and the child during those months.
The father deposes that on 18 December 2014 he dropped the mother and X off in Sydney; on 19 October the father rang the mother to see whether she needed a lift to the airport; that the mother invited the father to (omitted) for coffee in the morning and he was not able to make it as he had a previously-booked appointment. The father deposes that on 20 October the mother sent him a text message saying that the Facetime on her phone was not working properly and that she did not have any data available on her phone so he could not have Facetime with X.
The father deposes to various occasions that took place in October 2014 when there were difficulties in being able to have what he describes as Facetime with X. The father deposes that when he went to Perth to visit X on 8 November he took X out for a walk in the pram, fed him, changed his nappy and played with him. The father did lodge an appeal but subsequently withdrew the appeal in relation to the proceedings. The Court has otherwise read and considered the annexures to the father's affidavit material including various letters and copies of a transcript of the proceedings.
The Court has also read and considered the material that was tendered during the course of the proceedings on behalf of the father in the proceedings. Having viewed various photographs and what I will describe as some Facebook posts, it is apparent that, at least on some occasions, the mother is accepting that the father had a good relationship with X. The father has caused to be tendered a number of documents in a tender bundle forming exhibit I, being what are best described as advertisements for rental properties available for rent in the (omitted)/(omitted) area. It would appear that there are available, having regards to that material, rental properties available for rent in the sum of $260 to $350 per week.
The father caused to be filed an affidavit sworn or affirmed by his father, Mr J. Mr J deposes to various matters including his understanding of the difficulties the father has had in spending time with X. At paragraph 11 he sets out that the mother had alleged the father had been cruel and inhumane towards animals, that during the father's childhood they had various pets and that Mr J did not witness the father display any cruelty or violence towards animals and that he loved or adored his dogs that they had.
The father caused to be filed an affidavit of a solicitor, Ms Fiona Louise Healy. Annexed to that affidavit that the court has read and considered is a copy of a report prepared by Dr R, a psychologist. It sets out - it is dated 15 December 2014:
In response to your urgent request today I am not able to provide a report due to time restrictions. However, I can provide the basic information. I saw Mr Keith and Ms Browne originally on a referral from Dr S. The referral was for support in relationship counselling. They came together on several occasions. It was obvious that there were relationship difficulties which I was working with both parties to resolve. On the last session with both then there were some discussions about Ms Browne going to Western Australia with the baby son for some time and then returning to New South Wales.
It gives some credit to the father's position that there was an agreement that the mother could travel back to spend some time with her family in Western Australia but was not intending to permanently remove herself to Western Australia or the child but in fact was coming back. Again, that is somewhat evidenced by the copy of the email from the mother to the father that sets out the details of the one-way Qantas flight from Perth to Sydney in December.
Dr R sets out:
I also received another referral from Dr W more recently asking him to continue to see Mr Keith. My first consultation with both of them was 25 July 2014. I saw them again on 30 July, 6 August and 22 August. I have since seen Mr Keith six times, most recently on 4 December 2014. I have been seeing him recently on a fortnightly basis if possible in order to provide support for him since Ms Browne left and took the baby to Western Australia. I understand that Mr Keith has no other support in the local area other than myself and the GP. There has been no diagnosis provided to me by the GP although I understand from both parties that they both experienced some emotional difficulties during Ms Browne's pregnancy and after. Most of my sessions have been around relationship difficulties. I encourage him to understand things from the other perspective. Most recently I have been providing support to Mr Keith regarding the current loss of the child and partner which he is understandingly very distressed about. I believe he has been handling the situation well in the circumstances. He appears to be willing to attend sessions as often as can be organised and is accepting of my treatment recommendations. I am providing supportive counselling, cognitive behaviour, acceptance and commitment therapy as appropriate.
The mother caused to be filed a response in the proceedings on 18 December 2014. The mother seeks interim orders in that response as follows:
a)Order 3 of the orders made on 19 November be discharged;
b)The father spend time with the child at times as agreed with the parties on a basis when he is in Western Australia;
c)The father's time with the child pursuant to order 2 be supervised by an approved agency with the father to pay the fees associated with the approved agency;
d)The parties do all acts and things necessary to attend an intake session with the approved agency so the father can commence spending time with the child;
e)The mother seeks a written report from the supervision agency;
f)That the father undergo random drug screening;
g)At the request of the mother the father enrol and engage in what she describes as an age-appropriate parenting course;
h)The father undergo psychiatric evaluation prior to commencing spending time with the child.
i)The mother to provide the father as soon as practicable and keep the father informed of any medical emergencies;
j)The father be restrained by an injunction from removing the child from 300 kilometres of the Perth metropolitan area;
k)The father pay the mother's costs in relation to the proceedings.
The mother caused to be filed an affidavit sworn or affirmed by her e-filed on 18 December 2014. The mother deposes that she met the father in or about 2004 through her then partner, who had been employed or engaged with the (employer omitted) with the father. The mother deposes to her partner committing suicide in 2006 as a result of him suffering to what she describes as post-traumatic stress disorder. Indeed, the Court has read and considered the tendered material with respect to the mother's medical notes. It is apparent that the mother suffered significant emotional distress, following her late partner's suicide.
The mother deposes that in October 2012 the parties commenced a relationship. The mother deposes to being aware that the father was medically discharged from the (employer omitted) as a result of post-traumatic stress disorder. The mother deposes that the father reassured her, or assured her, that he was active in maintaining his mental health.
The mother deposes that in June 2013 the parties purchased a rural property in Property W, New South Wales in joint names. The property had established upon it an accommodation business. The mother deposes that she and the father wanted to experience what she describes as a rural lifestyle and purchased the property on the basis they would start a family. The mother deposes that Property W is approximately 40 minutes from (omitted) and approximately 1 hour and 15 minutes drive from (omitted), that the property is some 70 acres, and that the closest neighbour to the property is approximately one kilometre away.
The mother deposes that apart from the paternal grandfather, who resides in Sydney, the father has what she describes as few friends in Sydney and that the father's immediate family reside in Melbourne and (country omitted). The mother deposes that shortly after moving to Property W she discovered she was pregnant with X. The mother deposes that in December 2013 she was concerned about bringing X into a relationship she describes as dysfunctional and that the father sought that she have an abortion. Again, that is a matter that is contested in the proceedings. It is not an agreed fact.
The mother deposes to one of her friends, Ms S, having witnessed various incidents or what I will call arguments and fights between the father, or directed by the father towards the mother, and again the Court has read and considered the father's affidavit and, again, that is not an agreed fact in the proceedings. The mother deposes to being X's primary carer since his birth and undertaking activities associated with his care including breastfeeding, bathing, taking him to play group, nursing him, taking him to medical appointments and playing with him in accordance with his development. It is not a contested fact that the mother is the primary carer in the proceedings and that the child is primarily attached to the mother.
The mother seeks to minimise the amount of care that the father provided to the child as set out at paragraph 22 of her affidavit, stating that the father only fed and bathed X on less than 10 occasions. Again, that is not a matter the Court can make any findings about today. Interestingly, the mother deposes that between May 2012 and June 2013, the period in which the parties were in a relationship together, she and the father experimented with what she describes as crystal methamphetamines recreationally and used it sometimes on the weekend, that the father introduced her to crystal methamphetamines and had supplied her with it, along with what she describes as smoking implements.
The mother deposes to ceasing using crystal methamphetamines, which the Court takes judicial notice is known as “ICE”, when the mother discovered she was pregnant with X. The Court notes that the issue of methamphetamine use at that time is denied by the father and the Court again is not in a position to make any findings about it. The mother deposes that in October of 2014 the father told her that he had been using crystal methamphetamines every day while the parties were living in Perth and the mother deposes that she was unaware of the extent and severity of the father's drug use and did not know he had been using it every day prior to him telling her in October 2014.
The mother annexes to her affidavit a document she says she found prior to relocating back to Western Australia. The mother sets out that the document indicates that the father had used drugs since about 2002, however, she did not know when he commenced taking drugs. The document contains the writing "Correct as at 18 June 2014". The Court cannot give the document significant weight as it is not clear whether it is a business record, whether it is something that the father had written himself or otherwise the circumstances in which the document came into existence.
Under the heading in the document “Psychological” is written, "Drugs - Perth speed, cocaine, crystal rock, ecstasy and a little bit of marijuana. Escaped four times in 10 months. Haven't worked in two years". The Court understands that the document has written upon it "Correct as at 28 June 2004" although the Court does not know what the actual date the document was created. The court does not know the dates at which the use of speed, cocaine, crystal rock, ecstasy and a little bit of marijuana were being used in Perth or what it means by, "Escaped four times in 10 months". The Court cannot make a finding at this time that the author of the document was the father.
The mother sets out that the father had what she describes as stockpiled Oxycontin and sold it for money or exchanged it for crystal methamphetamines. The mother is not clear as to the actual times that such activity was alleged to have taken place. The mother deposes that the father told her he would do this and that in October 2013 he told the mother that he did it "a load of times". The mother deposes that the father supplied Oxycontin to a woman by the name of Ms L, who the father refers to as "(omitted)" who was in prison in late 2013.
The mother deposes that when the parties moved to New South Wales the father commenced consulting with a general practitioner, Dr W from (omitted) Medical Centre, in relation to post-traumatic stress disorder and in order to obtain a prescription for Oxycontin. The mother deposes that after the father had attended upon an appointment with Dr W and she asked him how it went and the father said "It's either homicide or suicide". Again, this is another matter the Court cannot make any finding about today in circumstances where these are not final proceedings and the evidence has not been tested.
The mother deposes that in April 2014 the father wrote a letter to his friend requesting him to carry out his wishes in relation to his funeral arrangements, including having his body cremated, that the father wrote a letter to his daughter Y, and that the mother found what she describes an imprint of the letters written by the father on a notepad in the office. The mother deposes that she confronted the father with the letters and the father told her he was planning to kill himself on 2 May 2014 after he attended on Dr W and obtained a new prescription of Oxycontin.
The mother deposes the father said he needed her to stop nagging her. The mother annexes to her affidavit and marks with the letter B a copy of the letters. The letter to Y reads:
Thank you for your lovely letter and coffee mug. It was a nice surprise to find it in my bag. I am so glad you came over to Australia to be with us during this special time. You were wonderful with X and a joy to have around. Y, I am so proud of you, never forget that. You have so many wonderful qualities and attributes. You're easygoing, carefree, fun, happy and a confident young woman. As to school, it will all work out. I think it was important to tell you I have been feeling as I am not myself. I am very unhappy and have been on a couple of different medications. Thank you for -
- I think it says "bolstering" and "being there for me. I love you so much and will be" - the letter simply stops.
The letter on the face of it is not a suicide note to the father’s daughter. The Court notes the further document marked and annexed B, being a further handwritten letter. The letter states:
Dear (omitted), could you please carry out my directions and wishes regarding funeral arrangements in case of my untimely death. I trust you to carry out these wishes despite any objections the family might have.
The letter is difficult to read and cannot be read properly. I think some of the writing states it is "surprise" or something, but it goes on to state:
“(a) cremate my body, scatter my ashes in the ocean, no service, no ceremony and the……”
It is a letter asking somebody to carry out some funeral wishes, it does state, "In the event of my untimely death". It is certainly well less than a suicide note.
The mother deposes to events that took place on 15 May 2014, that her mother, and the maternal grandmother, had returned from Perth after spending 10 days at their home assisting with the care of X. The mother deposes that when she returned from dropping her mother at the bus terminal she said to the father, "I need your help. I'm tired. I need your help and support and if you can't give it to me I'm going back to Perth". The mother deposes that the father began to rant and rave at her and said to her words to the effect that she was ruining his family, all she did was nag him and that she would take his son away from him. The mother deposes that she stayed quiet while the father ranted, and that she started to cry.
The mother deposes that later that afternoon the father went outside and sat near the fire pit woodpile on their property. She stayed inside and attended to X. Ultimately, the mother deposes, the father came in at approximately 7 pm via the balcony door near the bedroom. She heard a noise from the end of the house. She entered the room and found the father on the bed surrounded in vomit, blood and pills. It is an agreed fact that the father attempted suicide, although the father says that it was a cry for help and that he wasn't ultimately seriously trying to end his life.
The mother says that the father went in and out of consciousness for approximately 40 minutes and during this period the father said words to the effect, "You killed me. You killed (omitted). You're evil. I hate you. You did this. You deserve a medal and you've killed more (omitted) than the Taliban." Ultimately, the ambulance officers arrived and provided the father with first aid, ultimately his suicide attempt was not successful and the father sits before the court today.
It's apparent that there were some difficulties in the hospital and that the father tried to pull out his IV drip line and the mother sets out that on 18 May 2014, the father made what she describes as a number of confessions in respect to killing some chickens and attempting to or having killed his mother. The Court notes those are matters that are denied by the father. The mother raises some criticism of the father having been admitted to various hospitals and having discharged himself.
At paragraph 51, the mother deposes that she did not see the father until about 30 June 2014 when he arrived at her sister's home in Western Australia and she suspected the father being under the influence of methamphetamines based on what she described as his behaviour and alleged that the father told her that he had swapped a load of oxycontin for around $12,000 worth of ‘crystal meth’. Again, this is a matter that is in dispute between the parties and the court cannot make any findings about it for the purposes of today's proceedings where the evidence has not been tested.
The mother deposes that on 6 July, the father told her he had $2000 worth of “it” on him and that the mother took it to mean crystal methamphetamines and the father was seeking to drop it off at a friend's place. The mother deposes to the father taking methamphetamines from the car and then flushing it down the toilet. Again, this is a matter the court cannot make any findings about in circumstances where the allegation is denied, the evidence has not been tested and these are only interim proceedings.
The mother deposes to witnessing the father have what she describes as psychotic episodes in their home. The mother alleges that she suffered psychology and emotional abuse as a result of the father's behaviour in relation to his drug use and suicidal tendencies. The mother alleges that the father engaged in a course of behaviour that was financially abusive.
In paragraphs 62 to 65, under the heading “Relocation Back to Perth”, the mother provides what the court will describe as absolutely scant evidence with respect to the circumstances in which she relocated back to Perth. Paragraph 62 states:
“In or about December 2013, Mr Keith came back from Perth after a holiday and said that he wanted to sell the property and move back to Perth. Mr Keith then listed the property on a real estate site using For Sale By Owner Australia. Mr Keith and I agreed that we would relocate to Perth when the property had sold. The property is still listed.”
Under the heading Separation, the mother sets out that on 12 October, she told the father that she wanted to separate. The mother deposes she remained in the home in New South Wales for six months after they were separated and that she removed herself into what she described as self-contained accommodation on the property. The mother deposes to being subject to beratement by the father between 12 October and 14 October following the parties’ separation, that she had various telephone discussions with her mother, who contacted the (omitted) Police Station.
The mother deposes to being aware that on 15 October the father told her he would put in papers preventing her from removing or taking X away from him. The mother deposes that she told the father she would call the police and ask them to help her leave the property as she had no transport, money or family in the area and to assist her as she was scared of him. The father sets out in his affidavit, interestingly, that at the time the discussions took place with respect to the father's refusal, the mother threatened him with police action. The details in the mother's affidavit tend to support the father's allegations, although the court cannot make any findings as to the exact nature of what was said.
The mother further sets out:
At one point in time, Mr Keith voice recorded me. When Mr Keith left the property and collected his aunt from a nearby town, I packed X and my belongings and moved into accommodation on the other side of the house.
The mother suggests she was fearful for X's and her own safety. The mother deposes she told the father's aunt, when she arrived, not to leave her alone with the father as she was fearful of him and that during the aunt's stay, she was not left alone. The mother deposes that the father was going to take X, his aunt and herself to Sydney so she could travel back to Perth. The mother states she informed the father that her mother had come to Sydney to help her fly back and that she told the father if he wanted to spend an extra day time with X prior to them travelling to Perth, she was happy to travel to Sydney on 19 October. The mother suggests the father told her he did not want to spend time with X and he would take her to Sydney on 18 October.
The mother deposes that on 18 October 2014, only some three days prior to the father indicating to her that he would commence proceedings preventing her moving. The mother deposes the father dropped the mother off at Sydney airport so they could catch a flight to Perth. The mother deposes that she left Sydney on 20 October.
It's apparent that the mother allowed the father to visit her in Western Australia, spend time with X and stayed in her home in a spare room as she felt it was important for him to spend time with X. There is some incongruency, on the face of the mother's alleged behaviour at the time when the aunt was staying in the home in that the mother suggests she did not want to be left alone, when only some number of days later she allowed the father to come and stay at her home because she feels it's important for him to spend time with X.
In order to ameliorate what I will call the incongruency, the mother sets out that she and the father agreed that he would leave the property if he became emotionally abusive and she would call the police. The mother sets out she was fearful of the father spending time with X alone and thought the best option was for him to reside at her parent's property in (omitted). It should be noted it is the mother’s evidence she was not left alone for the first three days of the father’s visit.
The mother sets out that she was served with the father's Court documents on 12 November 2014. The father did not, in the view of the court, sit around on his hands and do nothing. It's not a case where the father, through his inactions, could be said to have acquiesced. The father had, in the view of the court, voiced his concerns. He did not want the mother to leave. He was threatened with the police both on his own account and that of the mother's, and having read the father's affidavit, it is apparent there that he was not under the belief at the time the mother left that she was intending to move permanently to Western Australia. That belief is accorded some weight by virtue of the return air ticket the mother attached to the email to the father.
The mother deposes that, the father was standing at the front door and she noticed the father was smiling when the process server attended; that she was distraught when she was served with the documents as she had never seen court documents before and that she asked the father to leave the property. The mother states that unbeknownst to her, the father had already packed his bags and the father then left the property and that she and the father began to exchange emails.
The mother sets out that the father told her if she returned and agreed to what he wanted he would discontinue the proceedings. The mother raises complaint that the father has not contributed to X's expenses since separation to having previously told her he would not pay child support and that the father is assessed to pay $166 per month in child support. The mother receives income, by way of war widow's pension and receives a military superannuation payment. The mother’s current income is approximately $1270 per week.
On 10 December 2014, the mother obtained an interim Violence Restraining Order, a copy of the order is attached and marked E to the mother’s affidavit. Having regards to the sections of section 60CC subparagraph (f) it is not clear as to whether findings were made by what might be described as the magistrate's court that issued the order.
The court does not have significant information before it that would go to those matters set out within section 60CC subparagraph (3) that would allow the court to give significant weight to the interim family violence order being in place. The order that is in place provides;
Except as set out in part B, you must not be in possession of a firearm, a firearm's licence or obtain a firearm's licence, cause or attempt to damage any property of the protected person.
The protected person in the order is Ms Browne.
The orders goes onto state the father must not behave in a manner towards the person protected is likely to breach the peace.
Except as set out in part B, communicate or attempt to communicate with the person protected by any means whatsoever, including SMS or text message, post or cause to be posted on any social networking sites such as Facebook, Twitter and including any blogging, message or image that depicts or refers in any way to the protected person and to remain ..... (omitted) or any other premises where the person protected lives ..... to be within 50 metres of the nearest external boundary of these premises, approach within 50 metres of the protected person, approach or remain within 20 metres of any property, including vehicle of or under the control of the protected person, cause or allow any other person to engage in conduct of the type referred to in the preceding paragraphs.
Part B states:
Communicate with the person protected through a lawyer or an Aboriginal Legal Service acting for you.
You will not breach the orders in part A if you comply with the orders made under the Family Law Act and Family Court Act, allowing you to live with, spend time with, communicate with the child named in that order; communicate with the person protected by email, SMS, text message or other electronic means solely to make arrangements to spend time with or communicate with your child or children; participate with the person protected in family dispute resolution; instruct a process server or bailiff to serve the person to participate in or attend court events.
In addition to the above terms, the order provides that:
the court informs you that your behaviour and activities are unlawful to threaten to harm the protected person, to assault the protected person, to stalk the protected person, to damage any property belonging to the protected person.
The mother deposes that she has no emotional or financial support in New South Wales given that she has resided in Western Australia her entire life. The mother set out in her evidence that she presently resides in (omitted) in one of her parent's properties and she's not required to contribute towards living expenses and orders were made in the Court on 19 November 2014, specifically order 3 permit the father to spend time with X when he is in Perth from 8 am to 12 noon.
The mother suggests she appreciates it is in X's best interests to have a relationship with the father. Given what the mother describes as the father's drug use and suicidal behaviours, the mother states she is concerned about X’s well-being and safety while spending time with the father and she seeks that the father's time be supervised when he spends time with X. It is interesting the mother points to order 3 of the orders made by the Court on 19 November in circumstances where the father deposes that he has been not able to exercise that time and his attempts do so were thwarted by the mother removing herself from the residence she was living at in (omitted).
It was a complaint made by counsel for the father in the proceedings that the mother has engaged in a course of behaviour designed to limit, if not discontinue, the child's relationship with the father in circumstances where the mother had managed to convince the father to allow her to travel to Perth for a short period of time and once domiciled in Perth, has done things such as obtaining an apprehended violence order and cutting off contact to seek to diminish that relationship.
The mother has caused to be filed an affidavit by Ms T, e -filed on 4 March 2015. Ms T deposes to attending upon (omitted), New South Wales, after the father's attempted suicide. Ms T deposes to the father having said that he killed some chickens and that he killed his mother. Again, this is a matter that is contested in the proceedings and the court cannot make any finding of fact about the issue for the moment.
Ms T provides some evidence with respect to the father being accepted into the (omitted) Hospital and as to her sister's state of mind, and being concerned about the father's mental health. Again, there are matters the court cannot make any findings about today in circumstances where the evidence contained within the affidavits largely relates to things the father is alleged to have said that he contests.
The mother did cause to be filed in the proceedings an affidavit by her mother, Ms J the maternal grandmother, which was e-filed on 4 March 2015. In the affidavit, Ms J deposes that despite the father's claims he got up to X every night, he did not and that she got up to X every time he cried and attempted to settle X before he woke the mother and the father.
The maternal grandmother deposes to the father being aggressive and engaging in what the court would class as family violence towards the mother. Again, these are matters that are denied by the father in his affidavit material and the court is not in a position to make any findings about this issue today in circumstances when these are contested proceedings being dealt with only on an interim basis and the evidence is not being tested. Ms J deposes to the father saying that he killed some chickens and killed his own mother.
The mother caused to be filed an affidavit by Ms S. She deposes to eating dinner with the parties one night in (omitted) and that when the mother disagreed with a comment that the father had made, the father turned around and opened up an office desk pulling out a big knife and waved it in the direction of the mother. Ms S suggests she did not recall that the father said anything, but she felt uncomfortable at the table and further felt the father was threatening the mother and the knife implied that the father was in control and the mother needed to be reminded of what he could do.
Again, Ms S deposes to what the court might describe as family violence perpetrated on the mother by the father and again the court is in a position, in circumstances where the matters are denied, that the court cannot make any findings, based upon the material available.
The court should say that some of the material that has been tendered during the course of the proceedings, particularly the mother's Facebook posts, forming exhibit F, some photographs forming exhibit E and exhibit H in the proceedings tends to suggest that the relationship was a good one, at least at times between the parties and the mother very much enjoyed the father's involvement in the care of X.
Exhibit C in the proceedings is a copy of a transcript of earlier proceedings before this court that was tendered during the course of the proceedings. In the transcript Ms Browne indicated to the court:
He drove me down to Sydney to relocate. He helped me pack the caravan and took it down to relocate back to Western Australia and that was done in about August or September. I never took X without his consent. I had no vehicle in New South Wales, so he is the one that actually drove us down to leave.
It's interesting that there is nothing in the mother's affidavit about the caravan.
The father stated that after the mother went to Western Australia
And then after that, she will return to New South Wales.
It's clear on the material from the father, and largely from that from the mother, that whilst the father drove the mother to the airport only days earlier, the father had certainly raised great concern about the mother's relocation. Both parties agree that at that time the father did not consent to it and on both accounts, the mother then spoke to the father about involving the police in their lives if he didn't allow her to go.
The question to be asked by the court, or answered by the court is, was this a unilateral relocation? Based upon the evidence the court has gone through today in the proceedings, taking into account those matters that are agreed and not agreed, it is agreed that the mother left. It is agreed that the father drove her to the airport. On the material available the court does make the finding that the relocation was unilateral – that the father was under a belief, and the mother was on notice of his belief, that she was intending to return back to New South Wales. That, in large part, is evidenced by the copy of the return air ticket that is annexed to the father's affidavit material.
There is no specific section of the Family Law Act 1975 that refers to the different subjects of relocation as opposed to other parenting matters. In fact, there is no such thing as a relocation case. In B & B: Family Reform Act 1985 (1997) FLC 92-755, their Honours Nicholson CJ, Fogarty and Lindenmayer JJ made it clear at page 84-114 that:
Relocations are not a separate category within the Family Law Act. Each is a case under Part VII relating to the best interests of the child but within a particular context and is to be determined in accordance with the principles contained in that Part.
On 1 August 2000, the Full Court of the Family Court delivered its reasons for the judgment in A v A: Relocation Approach (2000) FLC93-035 and formulated a guideline judgment to be applied in determining parenting cases of this sort. The decision drew together the principle enunciated in the Full Court decision in B & B: Family Law Reform Act 1995 and the 1990 High Court decision in AMS v AIF (1999) FLC 92-852.
The decision in A v A is authority for the principle that in reaching a decision in cases where one party proposes to relocate with a child or children of the relationship:
(1)the court cannot proceed to determine the issue in a way that separates the issues of relocation from that of the residence and best interests of the child;
(2)compelling reasons for or indeed against the relocation should be not be shown or need not be shown;
(3)the best interests of the child are to be evaluated taking into account considerations including the legitimate interests of both the resident and non-resident parent;
(4)neither the applicant nor respondent bears the onus;
(5)treating the welfare or best interests of the child is the paramount consideration. It does not oblige a court to ignore the legitimate interests and desires of the parents. If there is a conflict between those considerations, priority must be according to the child's welfare and rights; and
(6)if a parent is seeking to change arrangements affecting the residence of or contact with the parent, he or she must demonstrate that the proposed new arrangements, even if that arrangement involves a move overseas, is in the best interests of the child.
In 2002, the High Court again had the opportunity to consider the approach to be taken in relocation cases. This time in the case of U & U (2002) FLC 93-112. The High Court left the approach to be taken as articulated in A v A: Relocation Approach (2000) FLC 93-035 unchanged.
It's arguable that the 1 July 2006 amendments to the legislation focused on enabling children to enjoy regular time and meaningful relationships with both parents and that it would be far more difficult to succeed on an application to move away from one parent when the move restricts the amount of time the child can spend with that parent.
These are not final relocation proceedings. These are matters of an interim nature and the mother has sought to relocate to Western Australia on an interim basis, and indeed the mother has done so on a unilateral basis in the proceedings, the court having found so. The issue of interim unilateral relocation was considered in the case of Morgan & Miles by Boland J. The reference is (2007) FLC 93-343. Paragraphs 82 onwards, under the heading, What is the Effect of the Legislation in Dealing With an Interim Application, Boland J opines:
It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although section 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
The mother was served with the documents within only a matter of “a week and a bit” of relocating. It was an extremely short period of time.
Boland J goes on to set out
“the cases that demonstrate that sensibly judges recognise that these very difficult cases, often with far-reaching consequences for the child, require the full investigation which can only occur at a final hearing or now by issues to be identified in determining a less adversarial trial”.
The Court should say this: the Court has taken into account and considered the submissions made by the independent children's lawyer and the view as to what orders the independent children's lawyer sought. I have heard and considered the independent children's lawyer's views with respect to issues relating to stability and what will be required in respect of undertaking a full investigation in this case.
Boland J went on to consider the decision in Goode in which the Full Court considered whether the principles in Cowling remain applicable after the introduction of the amending Act. Particularly, paragraph 2 in Cowling talks about the well settled environment. Boland J quotes a passage from Goode that sets out paragraph 71 in the decision:
The reasoning in Cowling, particularly in paragraph 22 of the reasons for the decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in the light of the changes to the Act, particularly changes to the objectives of section 60B, the inclusion of the presumption of equal shared parental responsibility and the necessity if the presumption is not rebutted to consider the outcome of equal time and substantial and significant time.
Boland J goes on to set out:
I conclude the legislation, including the matters referred to above in Goode, does require consideration of section 60CC, section 61DA and section 65DAA in dealing with all the interim applications for parenting orders, including applications involving a relocation where an unauthorised relocation has occurred. As explained in Goode, the circumstances known at the time of the application immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well likely be extremely relevant.
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted when the case is referred to by the Family Law Council and its 2006 relocation report to the Attorney-General prepared by the Family Law Council, make it highly desirable, with excepting cases of emergency, the arrangements which will be in the child's best interest should not be determined in an abridged interim hearing and these are the types of cases in which a child's present stability may be extremely relevant on an interim basis.
It further appears to me that comments of Warnick J in C & S remain adapt and relevant to determining these cases and, again, Warnick J in C & S confirms the same interim relocation.
The case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency. This is not a matter where there is an emergency.
The Court is required to consider those matters set out at section 60CC and it does so. Section 60CC provides for two primary considerations in subparagraph (a) the benefit of the child having a meaningful relationship with the both of the child's parents. The mother does set out that she thinks there is some benefit in the child having a relationship with the father, where the father’s time is supervised. The father maintains there is certainly a benefit in him having a meaningful relationship with the child.
The Court has to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Again, there are many accusations contained in this matter, some that are agreed but most that are disagreed.
The father has caused to be filed a document from his treating psychiatrist. The psychiatrist has been seeing the father since 2004. He is aware of the father’s issues, what I will describe as, suicide attempt last year, his understanding of the treatment that the father has received, and he has formed a view that the father does not pose a risk to himself or a risk to the child.
The father’s psychiatrist is a person who is well aware of the father's history by way of the circumstances in which he served the military forces of Australia, serving overseas in (country omitted), and circumstances that led him to suffering post-traumatic stress disorder as a result of the things that he witnessed or observed during his service. The Court gives some weight to the report of the father's psychiatrist and with respect to the fact that he has treated him since, about 2004.
There are accusations raised by the mother with respect to the father's drug use, with respect to his methamphetamine use and his use of oxycontin. It appears an agreed fact between the parties that the father is entitled to and receives scripts for oxycontin because of back injury problems that have occurred during his military service. The mother in her affidavit material admits to having been a methamphetamine user. The father denies that he has been and the Court cannot make any findings about it. The Court simply does not know. It cannot make findings today about drug use. It is not in a position to do so. Before forming a final view about section 60CC(2)(b), the Court will consider the other matters set out at 60CC(3).
There are no views expressed by the child that the Court can give any weight, given the child's age, level of maturity and limited understanding. The Court must consider the nature of the relationship between the child and each of the child's parents and with any other person. The relationship between the child and the mother is one of primary attachment. She is the primary carer of the child. The child was, on the face of it, developing a secondary attachment, or had developed a secondary attachment, to the father. The nature of the relationship between the child and the father at this time is one of a diminishing relationship. It will be difficult for the child to develop a relationship with the father given the distance between the parties and given the child’s age.
The Court does not give any weight to the nature of the relationship between the child and any other person, including grandparents, or any other children, including the father's child. For the purpose of today's determination such considerations have little, if any, weight in the proceedings.
The Court must consider the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and communicate with the child. The Court raises no criticism of either party in that regard. The Court has must consider the extent to which each of the child's parents has facilitated or failed to fulfil the parent's obligations and maintain the child and, again, the Court cannot make any findings about that today.
The Court must consider the likely effect of any change in the child's circumstances, including the likely effect on the child of any separation from either his or her parents, any other child or person. The orders sought by the mother would not see the child separated from the mother. The orders sought by the father would not see the child separated from the mother.
The orders sought by the father would see the father spend what the Court will call short frequent time with the child. The father is not seeking an order that the child live with him. The father is seeking an order that enables the child to spend short frequent time with the father. The issue to be determined is really one about whether or not the mother should be compelled to return the child to live in the (omitted) area close to where the father lives.
So the effect of the Orders sought by the mother on X in the proceedings will have great effect, given his stage of development with attachment to the father. X is so young he does not really know where he lives. He will not know whether he is living in Western Australia or New South Wales. He will not know whether he lives in Queensland for that matter. He is a young child. What he will know, however, is that he lives with the mother. He will know if he does not live with the mother, but neither party's application is such that it would see X not living with the mother.
The Court must consider the practical living expense of the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. The mother has moved, the Court has found unilaterally and permanently to Western Australia. It is such a great distance that, by virtue of the difficulty of the distance and the expense of the distance, it will substantially affect the child's right to maintain personal relations and direct contact with the father.
I must consider the capacity of each of the child's parents and any other person to provide for the needs of the child, including their intellectual and emotional needs. There is not sufficient evidence before the Court that would enable the Court to make any finding that if the mother was required to return the child to New South Wales, and in doing so relocates to New South Wales, that it would affect her capacity to provide for the needs of the child.
It is a big jump for the Court to make that finding. It does not mean on a final basis the Court will not but, when taking into account the impact of the child relocating back to New South Wales, there is insufficient evidence to enable the Court to make a finding that the effect of making those orders would impact upon the mother's capacity to provide for the needs of the child, including the intellectual and emotional needs of X.
Based upon the information before the court, having taken into account the affidavit material of the father, having taken into account the report of the father's psychiatrist, the Court is of the view that the father does have the capacity to provide for the needs of the child, including the child's intellectual and emotional needs, during the times in which the father desires to spend time with the child in accordance with the orders sought by him, being each Monday, Wednesday, Friday and Saturday between the hours of 3 pm and 6 pm, three hours a day. The father can provide that. The father does not seek overnight time. He seeks short frequent time that, in the view of the Court, the Orders he seeks are age-appropriate.
The Court must consider the maturity, sex, lifestyle and background of either of the child and either of the child's parents and any other characteristics of the child the Court considers are relevant. The Court considers the background of the father, having served in the (employer omitted) and having served his country in a military capacity. The Court understands the father's difficulties with respect to his diagnosis of post-traumatic stress disorder and the lengths at which the father has gone to see that condition treated.
The Court is also aware of the background of the mother having experienced the suicide of her partner, a person who had served in the military and who was also suffering post-traumatic stress disorder. But again, whilst the Court has considered the effect upon the mother at the time when her partner suicided, there is not sufficient evidence before this Court today to make a finding that the background of the mother is such that it would prevent her providing for the needs of the child including the child's intellectual and emotional needs if the child was required to return to reside in New South Wales in the (omitted) area.
The Court must consider the attitudes to the child and the responsibilities of parenthood demonstrated by each of the child's parents and the Court can make no criticism of the parties in that regard. The Court must consider any family violence involving a child or a member of the child's family. There are allegations of family violence. Again, for the purpose of today's proceedings, the Court cannot make any findings about family violence. It does not mean the Court will not, but the Court is cautioned, as set out in Goode & Goode, that the Court sometimes cannot make findings in an abridged hearing where the facts are contested and the evidence has not been tested.
The Court has taken into account the interim family violence order in the proceedings, and it does say at subparagraph (k) of Section 60CC(3) that if a family violence order applies, or has applied to a child or a member of the child's family, any relevant inference can be drawn from the order. It is an interim order. It is not clear as to the circumstances in which the order was made. It is not clear whether it was made ex parte, in the presence of the father or otherwise.
The Court is not aware as to what evidence was submitted at the time the order was made. The Court is not aware as to any findings made by the magistrate who made the family violence order in Western Australia and any other relevant matter.
The Court must consider making orders that would be least likely to lead to the institution of further proceedings in relation to the child. Whatever the Orders I make today, there will be further proceedings. These are interim proceedings only.
The Court must take into account any other fact or circumstance the Court thinks is relevant. One of the matters that was removed from Section 60CC(3) during the most recent amendments was the Court's consideration of the parties willingness or ability to facilitate and encourage a close and continuing relationship of the child with the other parent.
The mother decamping from her residence in (omitted) in Western Australia at the time when she knew well the father was travelling over to spend time with the child in circumstances where the orders then in place provided for the father to spend that time. The mother’s action is such that the Court considers, at least on an interim basis, the mother for the time being appears not to be in a position where she has a willingness to facilitate and encourage the close and continuing relationship with the father.
It is a matter the Court gives some weight. It is extremely difficult for the father to maintain a meaningful relationship with a child who is domiciled in Western Australia in circumstances where there is a parent living in Western Australia who is unwilling to facilitate and encourage that relationship.
I turn back to section 60CC(2)(b). I said I would go back, and I return back to section 60CC(2)(b) having considered those matters found at subparagraphs (3)(a) through to (m).
The Court is not of the view that if orders were made in the terms sought by the father, based upon the information the Court has before it, that the child would suffer physical or psychological harm as a result of being subject to or exposed to, abuse, neglect or family violence. The Court would make an order however, that both the parties undergo random drug screening as requested by the independent children's lawyer from time to time on a period no more frequently than once each six-week period. Both the parties have admitted to drug use previously. In that circumstance the Court would want to ensure that the parties do not relapse into drug use.
Turning to section 61DA. Section 61DA provides for a presumption in favour of equal shared parental responsibility except in circumstances where the Court makes a finding about abuse of the child or any other child in the household, family violence or otherwise that is not in the best interest of the child. Subparagraph (3) specifically deals with interim orders and provides that, when the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.
The Court does know that the level of communication now between the parties would be at an all-time low, given the circumstances in which they find the parties. One of the considerations the Court must take into account when considering the best interests of the child is subparagraph (l) of Section 60CC(3), that is, making orders that would be least likely to lead to the institution of further proceedings. The communication between the parties is poor and it is unlikely that the parties would easily reach any agreement about issues relating to the child, particularly the child's health.
In those circumstances, given the difficulties the parties will face, at least with respect to their communication and ongoing relationship for the time being, the Court is not satisfied that they are going to be able to do things to overcome those difficulties. In that regard there may well need to be the institution of further proceedings to overcome even small issues that might take place if the Court were to make an order for equal shared parental responsibility. It must be said that it is therefore not in the child’s best interest that there be equal shared parental responsibility.
Having regards to subparagraph (3) of Section 61DA(3), the Court is of the view and it considers it would not be appropriate in the circumstances for the presumption to be applied when making an interim order. The Court notes the father does not seek orders for equal time or substantial and significant time and if it did so, given the effect on the child would have in regards to subparagraph (5) of Section 65DAA, the Court would have found the effect on the child would be detrimental. The father seeks short frequent time. In the regard, the Court does not find it necessary to trawl through the provisions of Section 65DAA. Neither party seeks that there is to be substantial and significant time or equal time.
The Court is left back in a position considering the questions: was it a unilateral relocation, and the answer to that question is yes; can the father maintain a meaningful relationship in circumstances where the mother maintains her residence in Western Australia with the child for the time being on an interim basis, and the answer to that question is no in circumstances where the Court forms the view that the mother has unilaterally relocated and that she is at least not willing to facilitate and encourage a close and continuing relationship with the father for the time being.
The Court asks the question, can the relationship be maintained with the tyranny of distance. The answer is no, given the distance and difficulties and expense of travelling backwards and forwards to Western Australia. The tyranny of distance is such that the Court finds that on an interim basis it would be an extremely difficult for the father to maintain a meaningful relationship. The next question, will the child suffer physical or psychological harm as a result of being subject or exposed to abuse, neglect or family violence if the child were to spend time with the father in accordance with the orders. The answer to that is no, having regard to the evidence provided by the father in his affidavit material, particularly giving weight to the report of the father's psychiatrist.
The next question asked is whether the effect of the orders on the mother are such that she will not be able to provide for the needs of the child, including the child's intellectual and emotional needs. Having regards to the evidence as it is, the evidence is not sufficient for the Court to make a finding in the affirmative, that is, the Court cannot find that the effect on the mother and the child being forced to return to New South Wales is such that the mother's capacity will be diminished by virtue or her relocation back to New South Wales.
The ultimate question is what orders should the Court make. The Court finds that the orders that should be made are the orders that are suggested by the father in the proceedings.
Having regards to the submissions of the parties in circumstances where the Court has afforded the parties procedural fairness, having considered making orders that are outside of the orders sought by either party, the Court considers that, given the distance between the parties, given the difficulties perhaps in arranging alternate accommodation in the (omitted) or (omitted) Council area, the Court is of the view that the amount of time provided to the mother to return the child should be that of 56 days as opposed to 35.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Myers
Associate:
Date: 3 June 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing