Kidd and Young

[2016] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIDD & YOUNG [2016] FCCA 1935

Catchwords:
FAMILY LAW – Parenting – Relocation of a child – Mother moved to Perth where her family live with two-year-old in absence of the consent of the Father – Father sought child be returned to Sydney with the Mother – Mother permitted to stay in Perth with the child pending further order of the court as an order in the child’s best interests – proceedings transferred to Western Australia Family Court.

Legislation:

Family Law Act1975 (Cth)

Morgan & Miles [2007] FamCA 1230 (17 October 2007)
Browne & Keith [2015] FamCAFC 143
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346

Applicant: MR KIDD

Respondent: MS YOUNG

File Number: SYC 2706 of 2016

Judgment of: Judge Henderson

Hearing date: 20 July 2016

Date of Last Submission: 20 July 2016

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Othen of Counsel

Solicitors for the Applicant: Mason Foxx Lawyers

Counsel for the Respondent: Ms Messner of Counsel

Solicitors for the Respondent: Domestic Violence Legal Clinic

ORDERS

1. That the child is X born (omitted) 2014 to live with her mother MS YOUNG.

2. That the parents, MS YOUNG and MR KIDD have equal shared parental responsibility for the child X.

3. Until further order MR KIDD and his servants and agents are restrained from taking or sending or attempting to take or send the child X, female, born (omitted) 2014 from the Commonwealth of Australia.

4. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

5. Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

6. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

7. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

8. The proceedings be transferred to the Family Court of Western Australia.

9. The child X born (omitted) 2014 is to spend time with her father MR KIDD as follows:

   (a)In Perth for no more than 3 consecutive days from 9am to 4pm during the day with the Father to provide to the Mother no less than 5 days’ notice.

   (b)In Sydney when the Mother travels to Sydney, for no more than 3 consecutive days from 9am to 4pm during the day with the Mother to provide to the Father no less than 28 days’ notice.

10. The Mother is to cause the child to Skype the Father daily and is to use her best endeavours to have the child greet and engage with the Father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2706 of 2016

MR KIDD

Applicant

And

MS YOUNG

Respondent

REASONS FOR JUDGMENT

1. The matter of Kidd & Young, is an interim application by a father asking the Court to cause the mother to return their daughter X to Sydney from Perth, where she currently lives. The mother agrees if I order that she cause the child to be returned to Sydney, she will return with her daughter. The child X is aged 2 having been born in (omitted) 2014.

2. Mr Othen of Counsel represented the father and Ms Messner of Counsel the mother.

3. The material I read for the parties was as follows:

   a)For the father:

   i)Application filed on 4 May 2016 seeking both final and interim orders seeking the child’s return to Sydney;

   ii)Affidavits of 11 July and 2 May 2016; and

   iii)Affidavits of his mother, Ms A and his father, Mr K filed 11 July 2016.

   b)For the mother:

   i)Affidavits filed 30 June 2016 and 18 May 2016;

   ii)Affidavit of the maternal grandmother filed 30 June 2016;

   iii)Affidavit of her psychologist, Ms M; and

   iv)Response seeking orders on an interim and final basis that she and the child remain living in Perth filed on 19 May.

   c)Exhibits tendered:

   i)Mother’s exhibit 1: the father’s (omitted) bank accounts;

   ii)Mother’s exhibit 2: the Father’s (omitted) bank accounts;

   iii)Mother’s exhibit 3: the police records in relation to each of the parents; and

   iv)Court’s exhibit 1: The child dispute memorandum dated 18 July 2016.

4. The short relevant facts are as follows.

5. The father is age 25, the mother 24.

6. The parties commenced a relationship in 2009 then went through a religious ceremony of marriage on (omitted) 2011.

7. The mother asserts that the father perpetrated violence upon her and acted aggressively and poorly in her presence in 2011 in April and September 2011. He broke coffee tables, threw things, punched holes in walls, pushed her and she fell over and hurt herself.

8. The parents lived in Perth for around 12 months in 2010 to 2011.

9. The father moved back from Perth to Sydney in September 2011 and the mother followed in October 2011.

10. The parties lived in the granny flat at the back of the father’s parents’ home.

11. The mother alleges the father advised that he wanted to go overseas to (country omitted) and fight in late 2011 and that he spent significant time at the (omitted) Youth Centre in 2011, rather than time with her.

12. The mother enrolled in a university course in January 2012 but has not completed that.

13. In April 2012, the mother says the father pinned her to a bed and was yelling and swearing at her, insisting she attend (religion omitted) classes and again in February 2013 told the mother he wanted to go overseas to fight in (country omitted). These are all assertions by the mother.

14. The father did travel to (country omitted) in March/April 2013. The mother went to Perth to stay with her family and the parties ultimately spent some time together in (country omitted).

15. The mother alleges the father choked her in 2013. The mother again visits her family in Perth in October 2013 and she says she told the father she was separating.

16. The father came to Perth and ultimately the parties reconciled and returned to Sydney. This was around about the time that the mother found out she was pregnant with the child.

17. The parties had some difficulty with conception and whilst the mother was in Perth her pregnancy was confirmed.

18. The child X was born on (omitted) 2014. The father took 10 days off work when the child was born.

19. In August 2014, when the child was some perhaps, eight weeks old, the father left Australia and went to (country omitted) for 5 weeks. His case is it was to assist an aunt whose husband has died.

20. The mother says and it is not denied that the father borrowed $35,000 at that time from the (omitted) Bank and that that debt has now increased to $50,000.

21. The mother says when the father returned from (country omitted) he continued his poor behaviour, aggression towards her, threw a baby photo against a wall smashing it, in October 2014.

22. In March 2015, he threw his mobile phone at a wall and punched a hole through the child’s door.

23. In June 2015, the mother says he slapped her across the face and she fell backwards. The grandfather apparently entered the property to calm the situation down and the father and grandfather were yelling. The child was present at this time.

24. The mother says again the father damaged a coffee table in August 2015.

25. He became angry in his shed in October 2015 and smashed things.

26. The mother says the father asked him if she would go to (country omitted) with him in December 2015. This assertion is denied.

27. Not all the acts of aggression asserted by the mother are denied by the husband.

28. The mother and the child travelled to Perth in February 2016, staying there for about two months. The father travels to Perth and the parents return to Sydney at the end of March 2016.

29. Upon their return the mother says the father yelled and screamed at her on 6 April 2015.

30. There is agreement that they each went to see a religious leader at this time due to difficulties in their parental and personal relationship. It is clear at that time the mother informed the father she wished to separate and wanted to go to Perth where all of her family currently reside and it is clear that the father disagreed with her taking the child to Perth .

31. The parties separate on 21 April 2016.

32. Without notice to the father, the mother removes herself and the child to Perth.

33. The father alleges that the mother is violent and has stabbed him with a knife and that is set out in his affidavit. He talks about the mother’s mental health issues and his concern about her anger and aggression to the family consultant.

34. The family consultant set out the risk issues under the heading Risk Issues in the CDC memo. She reports that both parents allege a history of potentially serious family violence by the other, including X’s exposure to that violence.

35. The mother took out an interim AVO against the father when she went to Perth. There are no AVOs taken out by her or the father in New South Wales.

36. Mr Kidd alleges he had previous concerns about possible harm to the child by her mother due to alleged mental health problems. He clarified his concern and said it was related to X potentially being accidentally harmed by her mother due to her alleged aggressive behaviour. This is yelling and screaming and throwing things as is set out by the father in his affidavit.

37. The mother in her affidavit and when speaking to the family consultant says Mr Kidd is a (religion omitted). She said he has told her he wants to fight in (country omitted). The father denied this to the family consultant and in his affidavit. He told the family consultant he is concerned that the maternal grandfather is a supporter of (omitted).

38. The family consultant said that the co-parenting relationship is poor and further evidence and testing needs to be carried out before there could be any finding comment about whether the co-parenting relationship might be feasible or practical in the future.

39. The family consultant observed the child with both her parents. The child was comfortable with her father and comfortable with her mother. She was observed sitting on her dad’s lap and was content and happy to do so and the mother reports that the father and child have a very positive relationship. The father says that he and the mother were always involved in the care of the child and that his bond with his daughter is strong and that he has been a source of comfort and support to his daughter.

40. The mother says she has been the child’s primary carer and although the father assisted in her care when he could, the child has never spent a night away from her and that the child is used to living with her full time.

41. Under the heading Future directions the family consultant said that in  determining the interim parenting and with the risk and safety concerns a primary issue for the child is to have consistency and stability in her care and that this will be an important considerations.

42. The family consultant said that given the family violence allegations, the current poor parenting relationship and X’s young and vulnerable age, she is more likely in the interim to benefit from living the majority of the time with one of her parents but spend as much time as is possible – not necessarily overnight – with the other parent.

43. On the evidence and agreed by the father, the mother has had many visits to Perth post X’s birth and since X’s birth and the father has had many visits to Perth.

44. The parents lived in Perth for about 12 months during the early part of their relationship. It is clear that the mother and the child and the father have connections with Perth having both living there for a period of time and the mother’s returns to Perth regularly during the marriage. The mother was in Perth when she discovered she was pregnant and she returned to Sydney and X was born in (omitted) 2014. The mother’s sister arrived in Sydney in 2015 and has now returned to Perth in May 2016 after mother had returned in April 2016.

45. The mother and child had been in Perth for a couple of months in March 2016 and at an earlier period of time after the child’s birth coinciding with the father’s 5 week absence in (country omitted). The reasons put forward for the (country omitted) trip at that time I will make no comment upon but will clearly need to be tested at a final hearing.

46. Whatever the reason the child has spent lengthy periods of time in Perth and would be familiar with that place and her maternal grandparents and this is where she is currently living with the mother. The child has lived in Perth in the sole care of her mother in the past and in the absence of her father at times.

47. This is an interim hearing and I cannot make findings of fact.

48. However, it is clear to me on the evidence that the mother has been the child’s primary carer. The child has always lived with her mother. She has never spent an overnight period away from her mother and although her father has been involved in her care and I make no criticism of him, it has been the mother who has been the constant and provided the necessary stability for this young child during her two years if life. It would be a catastrophic change for this child not to be living full time with her mother and this father understands.

49. The mother alleges significant domestic violence perpetrated upon her pre and post the birth of their child, being controlling and coercive behaviour as well as physical acts of frightening behaviour, such as punching holes in walls, smashing furniture, mobile phones and the like and a (omitted) religious bent of the father. The father alleges that the mother has a temper and cannot control her behaviour. He is concerned that the child might be harmed by the mother, however, the mother and child have always lived together and the father spent time away from the child in the mother’s sole care when she was a young baby.

50. There is no objective proof for any of the allegations made by either parent and the mother obtaining the AVO post her leaving the relationship in Western Australia does not satisfy me that this is objective evidence sufficient to prove what the mother says today on an interim basis. There are no medical contemporaneous notes or corroboration as I would often see in such matters. However, I accept the mother’s position; as I accept the father’s position, save for two things.

51. The report of the mother’s psychologist is a real problem for me. It neatly segway’s into the mother’s case of a violent husband and is contrary to the clinical note also provided earlier in time by this same clinician. That clinical note said the mother had gone to see her for anxiety and she was suffering from post-traumatic stress syndrome due to having been sexually abused when she was young. There was no mention of any violence perpetrated by the father upon her as being the cause of that condition from which I accept she suffers at this time.

52. The report that follows after the clinical note is vastly different. It talks about the sexual abuse but also the domestically violent relationship. I will not rely upon that report at this interim stage. Without the Court having the benefit of cross-examination of this psychologist or the notes of the psychologist, it would be very unwise to rely upon a document which is in stark contrast to one provided by a professional at an earlier point in time given that being exposed to and suffering from domestic violence would also be an important and significant element causing a person to suffer from PTSD.

53. I, too, am concerned, although I make no such finding today that the report has been tailored for a purpose and without notes and cross-examination, it is unreliable.

54. Secondly, the father’s assertion of the mother’s mental illness is inconsistent with him leaving his new-born with the mother for five weeks when she was only eight weeks of age and permitting the mother to travel to Perth with the child on two occasions and staying for lengthy periods of time. The father’s assertion that there is some problem in the maternal family home with the mother and her mother being supportive of each other is also inconsistent with that conduct.

55. I am satisfied on the evidence the child has a primary bond with her mother and a close bond with her father as the mother tells me the father and child have a positive relationship and this was confirmed by the family consultant’s observations. X gets on well with her dad and he with her.

56. However, on each parent’s evidence this child has been exposed to violent and poor behaviour by both parents, her father yelling at the mother, pushing the mother, behaving aggressively towards the mother in the presence of the child, the father saying that the mother pulling a pillow from under the sleeping child’s head, causing the child to hurt her head and have fear, the mother being angry, screaming and shouting and behaving aggressively to the father in the presence of the child.

57. There is no doubt that the mother left Sydney knowing full well the father did not agree to her removing the child from her home in Sydney. I am satisfied the mother did this, that is, removed her child to Perth, after she determined that her marriage was over, that she needed her family’s support to assist to parent a young child at the age of two. She wished to separate from her husband, had no family support in Sydney, no money, no job and thus she returned to her parents in Perth, as she has done on at least three occasions during the marriage.

58. The mother’s actions were clearly unilateral and bespeak more of her needs than of the child’s needs. However, I accept her evidence of her isolation in Sydney, her perception of the paternal family’s lack of support of her, whether that be correct or not, her husband’s significant absences overseas, spending at the youth centre at (omitted), hunting and fishing with his friends and now working with his brother rather than with she and the child.

59. The mother alleges in her affidavit, that she feels alone and isolated and cannot maximise parenting her child in Sydney as she would be living where she does not want to live, with people she believes do not support her, feelings of isolation, fear of the father and with a paternal  family she does not trust. In this light the mother’s parenting will be will be significantly impacted upon.

60. I accept X living in Perth is a significant loss for her father and her relationship with him. For the father to maintain his all-important relationship with her will be very difficult if she remains in Perth. At the age of 2 her capacity to use electronic means of communication is severely limited and frequent face-to-face time is preferred and is the optimal position.

61. However, there is no great impediment to the father moving to Perth. He has no other children in Sydney. He does not own a business in Sydney. He has commenced working the last three or four weeks with his brother’s very successful firm in Sydney. He has lived and worked in Perth previously. He does not have any ties to Perth, other than of course the support of his family, which is extremely important to him, as is the support of the mother’s family extremely important to her. Apart from those issues, he does not have ties which would make it impossible for him to move to Perth. He says he cannot but I could see no impediment to him moving.

1. For the mother to move to Sydney there is a significant upheaval and potential instability for not only her but importantly for X. The mother will be totally dependent upon the father paying her rent, her bond and maintaining a property for her in Sydney as she has no means to do this. He has significant debt.

2. The father says there is family money available to pay for rent up to $350 a week and a bond. The mother said she would need that rent at least two months in advance so she knows she had the stability of accommodation. I note that the heavy impost this would place on the father, that is, paying $1400 a month rent at minimum plus the bond he would have to pay and furnishing the premises with bed, cot, fridge, a washing machine, drier, crockery, cutlery and the like may be something that has to continue for two years, given the delay in this registry. If the matter is transferred to Perth, as the mother seeks it be done, there is also a significant delay in the Perth Family Court. I do not know that there is much difference between this registry and the Western Australian Family Court in obtaining a final hearing.

3. The mother also sought an order that if the father fell behind with the rent she be able to return to Perth. Stability of housing and accommodation is significant issue for the mother and it is a significant issue for this child. The mother does not want to return to the (omitted) area. She is concerned about the father’s friends, not so much his family but his friends and those he associates with and is concerned her actions and movements may be monitored. Her preference is to live in the (omitted) or (omitted) area if she returns.

4. The mother says that living back in Sydney without the support of her family and being totally dependent on the father’s family for financial support and security of accommodation, will increase her anxiety as  she is living in conditions that really are not stable and that she has little control over them.

5. Going to the law.

6. The decisions of Morgan & Miles[1], Brown & Keith[2] and Dieter & Dieter[3] I was referred to, and they are relevant to applications for relocation. All options that are possible need to be considered.

   [1] Morgan & Miles [2007] FamCA 1230 (17 October 2007)

   [2] Brown & Keith [2015] FamCAFC 143

   [3] Dieter & Dieter [2011] FamCAFC 82

7. The benefit to a child of a meaningful relationship with the parents is a primary consideration however it is not the only consideration.

8. The options are this. The mother and father remaining where they are, mother in Perth, father in Sydney and the child in Perth.

9. Secondly the mother returning to Sydney with the child.

10. Thirdly the mother remaining in Perth with the child and the father living in Perth.

11. As this is an interim hearing. I cannot make findings of fact as the evidence cannot be fully tested.

12. Going to the Act[4] as I must and following the pathway set out in Goode & Goode[5].

    [4] Family Law Act1975 (Cth)

    [5] Goode & Goode [2006] FamCA 1346

13. I will not rebut the presumption of equal shared parental responsibility. Although there has been violence alleged by each parent, I cannot make a finding today. X is a young child and she is entitled to have, if it is in her best interest, each of her parents involved in her care. To date the parents have made those arrangements and can continue so to do.

14. Having made that order, I must consider whether it is appropriate to have an order for equal time or significant and substantial time. It is clear from the family consultant’s memorandum equal time is inappropriate for this child and a two-year-old child in any event. She is more likely to benefit from living the majority of the time with one of her parents but spend as much time with the other parent. Much time is not significant and substantial time. That time is time on the weekend, overnight time and time during the week and on special occasions. The family consultant did not favour overnight time and thus an order for significant and substantial time is not appropriate at this stage either.

15. On the evidence that I have before me I do not see equal time or significant and substantial time would be appropriate for a child of this age. However, the time should be frequent and regular. X will require time with her father to mature and grow in order to spend lengthy periods of time away from her mother because she simply has not spent time away from her on any version of the events. Her mother is always with her.

16. The father’s application, that if the child returns to Sydney that there be some sharing of time including overnight time is inappropriate, not child-focused and does address the needs of the child, who has never spent a night away from her mother but has spent many nights away from her father.

17. Going to the section 60CC factors. The child benefits clearly from a meaningful relationship with each of her parents. That was clear from the family report memorandum and the mother agrees that the father and child have a good relationship.

18. The child has been exposed to violence from both parents in their home as each allege.

19. Her wishes are irrelevant.

20. Both parents have parental capacity. They have a capacity to care for this child. I am unable to assess who has a greater capacity, if one does. She is a young child. She is progressing well. Her health and other needs have been met by each of her parents and I find they have an equal capacity at this stage.

21. I find the mother has not demonstrated particular insight into the needs of X to spend regular and frequent time with the father as she has been removed to Perth. However, her reasons for doing that are clear.

22. The father’s insight in asserting that this two-year-old child would benefit from an equal time or significant and substantial time arrangement in that she has never spent overnight time away from her mother demonstrates a lack of insight into this particular child and her needs.

23. Impact of change. This is a significant factor in this matter. To cause the mother to return to Sydney is likely to have a negative impact on the mother’s happiness, her mood. The father himself is already concerned about the mother’s mental health issues, her behaviour and her anger and to place the mother in Sydney isolated from her family, totally financially dependent upon the father to maintain a home for her, is an invidious position for anyone to be in, let alone a mother with young child who has determined her marriage is over and does not feel supported by her husband or his family. A deterioration in the mother’s functioning, which may well occur in the circumstances I have outlined above would result in a significant negative impact on the child for the following.

24. The mother is the child’s closest emotional attachment, and diminution in her mother’s functioning will be flow over to the child. That flow over may well negatively impact upon the child’s capacity to have a relationship with her father because it is clear her mother has a capacity and has exhibited capacity to promote the child’s relationship with her father given she has a good relationship with the father. That position may well be seriously compromised if the mother is placed in this position of living isolated in Sydney, totally dependent on the father and his family for financial support.

25. On the other hand, I accept the grandfather’s affidavit of the great pleasure he takes in his granddaughter, spending time with her, her welcome presence at his home and the affection he and she feel for each other, which is contra-indicated to the mother’s position. However, today I cannot test that evidence. I accept the grandfather’s position that he and his wife have done their very best to support their daughter-in-law. That is not how she says it is for her.

26. The child’s relationship with her father will struggle to be maintained at the level it currently is if she is Perth and he is in Sydney. At her age she does need frequent and regular time. His capacity to go to Perth would perhaps be once a month, for if he can fund $1400 a month to pay for the mother’s rent, he can fly to Perth once a month with that money. If he can find a bond for $1400 as well that he can use that money to fly to Perth to see his daughter.

27. It seems on his own evidence he can afford a trip to Perth once a month.

28. Secondly I see no impediment other than the father’s own personal needs, which I accept are important, that he cannot live in Perth for a period of time pending a determination of this matter.

29. This is a finely balanced matter and it is difficult on an interim basis because I cannot make the findings I need to make when determining such matters. However, today I have determined the disruption to the child’s current stable and secure living arrangements and her mother’s feeling of being supported and nurtured, living with her family in Perth, the importance of maintaining stability and minimising risk to the child which was raised as an important issue in the CDC memo will all be achieved by the mother remaining in Perth and be at real risk if she returns to Sydney.

30. I find that that the overwhelming need for X at this time is safety, stability, security and a mother who is living where she feels supported even though I accept this will have a negative impact on her current relationship with her father.

31. I have determined that the likely significant diminution in the mother’s functioning and then adverse impact upon her parenting of the child will have a greater negative consequence for the child than that which will result from a change or a diminishing in her relationship with the father. Her father can live in Perth for a time and/or travel there once per month.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 27 July 2016