Kingston and Miller
[2013] FamCA 894
•4 November 2013
FAMILY COURT OF AUSTRALIA
| KINGSTON & MILLER | [2013] FamCA 894 |
| FAMILY LAW – CHILDREN – Undefended hearing – where the mother seeks to relocate to Country D |
| Family Law Act 1975 (Cth) |
| Rice & Asplund (1979) FLC 90-725 Starr & Duggan [2009] FamCAFC 115 |
| APPLICANT: | Ms Kingston |
| RESPONDENT: | Mr Miller |
| FILE NUMBER: | WOC | 229 | of | 2012 |
| DATE DELIVERED: | 4 November 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 4 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice |
| SOLICITOR FOR THE APPLICANT: | Helen Volk Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
All previous parenting orders, including those made on 5 July 2011 in the B Town Local Court, be discharged.
The mother have sole parental responsibility for the child C born … 2008 (“the child”) provided that, before the mother makes any decision about any major long term issue in respect of the child, she provide the father with 21 days written notice of her proposed decision and takes into account any response that she receives from him in that 21 day period before making a final decision. That condition does not apply to any urgent decision that she needs to make.
The child live with the mother.
The mother be at liberty to relocate the child’s residence to Country D.
The child spend time with the father at his expense and communicate with the father at such times and for such durations and in such manner as is mutually agreed between the parties.
I note that the mother has indicated that if the father wishes it to happen, she will facilitate electronic communication between the child and the father by Skype or communication by any other appropriate electronic means.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingston & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 229 of 2012
| Ms Kingston |
Applicant
And
| Mr Miller |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
This case is about the future parenting arrangements for C born in 2008. She is 4 years and 10 months old.
On 30 July 2012, the mother filed an application seeking that she have sole parental responsibility and be permitted to relocate with the child to Country D. She initially proposed that she live with the maternal grandmother but now proposes that she live with maternal aunt.
From time to time, the father has involved himself in these proceedings. He has been called three times outside the court today and has not appeared.
On an earlier occasion, the mother’s solicitor sent letters to the father care of the paternal grandparents’ address. The father has responded to correspondence at that address. He executed a passport application for the child in February 2012, as well as consenting to the mother’s proposal to relocate in March 2012, and revoking consent in April 2012 (detailed below).
The matter first came before me on 18 December 2012. On that day, I ordered, amongst other things, that service be effected by sending documents to the paternal grandparents’ address.
The father appeared in person before me on 13 February 2013 when the matter had been listed for a possible undefended hearing.
At times the father has actively participated in these proceedings and at those times, has opposed the child being permitted to relocate to Country D.
I noted on 13 February 2013 that the father had not had face to face time with the child since July 2011 and that the last time he had spoken to the child on the telephone was October 2012.
I noted on 13 February 2013 that the child had been having therapy with a psychologist, Ms E. I had Ms E’s report which was dated 28 January 2013. I ordered that the mother contact Ms E and inform her that the father had appeared and indicated that he wished to be involved in the proceedings with a view to as sensitively as possible, reintroducing himself to the child. I ordered that that happen with the assistance of Ms E. I ordered a family report. The central issue discussed in that report was whether or not the child would be permitted to relocate to Country D.
The matter was relisted before me on 6 September 2013 for a procedural hearing. The father appeared on that day. I ordered that the father file and serve a response within 21 days, including a notation that the response should set out proposals in relation to the child in the event that the court found it was in the child’s best interests both to remain in Australia and in the alternative, to relocate to Country D. Within the same period the father was to file an updating affidavit setting out the evidence upon which he sought to rely (including evidence in relation to the issue of whether or not the father could relocate to Country D).
On 6 September 2013, when the father was in court, I set the matter down for hearing today. As I have noted, the father again does not appear today. Accordingly, I find that it is appropriate to deal with this matter on an undefended basis.
The father has been aware of the mother’s desire to move with the child to Country D since she wrote to him on 16 January 2012 and this was confirmed when she filed an affidavit on 30 May 2012 in the Federal Magistrates Court.
Since the father was last before the court, the mother has filed her affidavit of 27 September 2013, Ms E’s affidavit of 27 September 2013 and a tender bundle of documents from subpoenaed records. I am satisfied that those documents have been appropriately forwarded to the father.
DOCUMENTS RELIED UPON
The mother relies on:
14.1.Affidavits sworn by the mother on 28 May 2012; 21 July 2012; 27 January 2013 and 27 September 2013
14.2.Affidavit of Ms E sworn 27 January 2013; 27 September 2013
14.3.Affidavit of Ms F sworn 24 May 2013
14.4.Family report by Ms G dated 24 June 2013
The father has not filed any updating material, but I do take into account what the father said in his affidavit sworn 7 March 2013.
CHRONOLOGY
The mother was born in Country D in 1972 and is currently aged 41.
The father was born in Country D in 1977 and is currently aged 36.
The parties married and commenced cohabitation in Country D in 2004.
The parties immigrated to Australia in February 2005.
The parties’ child the child was born in 2008. The child holds dual Australian and Country D citizenship.
The parties separated under one roof in September 2010. The parties continued to live under one roof until April 2011.
On 5 July 2011 there were consent orders made for equal shared parental responsibility, the child to live with the mother, and the father to have time with the child as agreed. So far as any issue might arise as a result of the principles enunciated in Rice & Asplund (1979) FLC 90-725 and the cases that follow it, I am satisfied there has been a significant change from when the orders of 5 July 2011 were made. That change relates to the lack of involvement of the father in the child’s life and the deep desire of the mother to be able to return to Country D.
This matter came before Foster FM (as his Honour then was) on the 10 December 2012. On that day, the father did not appear, however the paternal grandfather did appear. His Honour ordered the matter be transferred to the Family Court largely on the basis this case involved an issue in relation to international relocation.
THE MOTHER’S PROPOSAL TO RELOCATE
The mother intends to relocate with the child back to Country D. She initially intends to live at the home of the maternal aunt, Ms F, who has sworn an affidavit. The mother anticipates purchasing a home in Country D within a year, using funds gifted to her by her family.
The mother spent some months in Country D towards the end of 2011 and early this year during which she attended her father’s funeral but also made certain inquiries about whether she would live and work in Country D.
The mother’s proposals for housing are set out from paragraph 101 of her affidavit sworn 27 September 2013.
The proposals for schooling are set out from paragraph 94 of the mother’s affidavit sworn 27 January 2013 and from paragraph 92 of her affidavit sworn 27 September 2013.
Many of the mother’s family members live close by, namely three sisters and two brothers (see paragraph 104 and following of the mother’s affidavit sworn 27 January 2013). From paragraph 110 of her affidavit sworn 27 September 2013, the mother describes the child’s warm relationship with her maternal family.
As to financial support, the mother has already investigated appropriate work (see paragraph 100 and following of the mother’s affidavit sworn 27 January 2013 and from paragraph 97 of her affidavit sworn 27 September 2013).
HISTORY OF FATHER’S ATTITUDE TO RELOCATION
Annexure E to the mother’s affidavit sworn 27 July 2012 is a letter from the father to the mother’s solicitor. The letter is undated, but was received on 6 March 2012. The letter says, amongst other things, “I give my conditional approval for Ms Kingston and the child to return to live in Country D.”
The father wrote a further letter to the mother’s solicitor dated 18 March 2012. In that letter he listed numerous conditions which he wished to impose if the mother relocated, including that the mother pay for the child to travel to Australia each year and that the mother relinquish all entitlement to child support.
On 2 April 2012, the father sent a letter to mother’s solicitors. He says “I withdraw my offer and do not give permission for the child to be removed from Australia.”
I note exhibit B is a letter from the father to the mother. The letter is undated. The mother received the letter on 7 December 2012. The letter says “I have decided I will not contest custody.” It goes on to say “In relation to your wish to return to [Country D], I do not agree that long term this is in the child’s best interests. I do however trust you will make the best decision for the child.”
As I have already noted, the father has engaged in these proceedings by initially appearing before me on 13 February 2013 and again on 6 September 2013. He participated in the interviews for the family report and he attended upon Ms E for therapeutic counselling with the child on four occasions. He also filed an affidavit in March 2013. He has otherwise, however, failed to comply with directions in respect of filing additional material and has not appeared today on the scheduled occasion for the final hearing.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII Family Law Act 1975 (“FLA”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
In the context of the facts of this case, the consideration of s 60CC factors does not take place in a vacuum. There needs to be an assessment in the context of the proposals of the parents. The mother has clearly set out her proposals. The father has made known that he opposes those proposals but sets out no proposal of his own and no longer actively participates in the proceedings.
The Full Court in Starr & Duggan [2009] FamCAFC 115, in the context of an international relocation case, set out the following suggested approach:
·First make findings concerning the relevant s 60CC factors
·Then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·Then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
(Counsel for the mother referred to the endorsement of this statement by another Full Court in Sayer & Radcliffe & Anor [2012] FamCAFC 209).
Primary considerations
The statutory changes that were made in June 2012 apply in this case (but given the facts in this case, the weighing of the primary considerations is not a relevant consideration).
The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)
The child enjoys a meaningful relationship with her mother.
Following a series of orders made by me, the child had four therapeutic sessions with the father under the supervision and guidance of Ms E. Those took place on 22 June, 4 July, 18 July and 3 August 2013.
Whilst Ms E describes the sessions in positive terms, in paragraphs 23 to 40 of her affidavit sworn 27 September 2013, the mother describes the adverse reactions the child exhibited following each of the sessions. These included bad behaviour at day care sufficient for the mother to be formally advised of it, difficulty going down to sleep, wanting to sleep with the mother and bed wetting. The mother says that these behaviours were not present prior to the sessions. Otherwise, Ms E described the sessions between the child and her father in positive terms.
Unfortunately, although the father told the family consultant on 28 May 2013 of the means by which he planned to re-establish a relationship with the child (see paragraph 7 of the Family Report), he has taken no action to initiate any further contact between himself and the child with the exception of a single telephone call. The father has not participated in these proceedings today.
The mother has been cooperative in making the child available for the four therapeutic sessions with Ms E. I do not accept that the mother has thwarted the father’s ability to have a regular and meaningful relationship with the child in the way he asserts in his affidavit.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) FLA)
This is not a relevant consideration.
The additional considerations
Child’s views (s60CC(3)(a))
The mother says the child has “continually expressed a desire to return to Country D and be with her extended family.” the child is 4 years old. She is too young to have any weight afforded to any view she has expressed.
Relationships of the child with the parents and other persons (s60CC(3)(b))
The mother is the child’s primary caregiver.
The child has not spent face to face time with her father since 23 July 2011, apart from four sessions with Ms E. She has had no communication with the father face to face since the last session with Ms E.
At paragraph 26, the Family Consultant describes the child’s interaction with her father. The child had in her mind (as evidenced by what she said and what she drew), that her father had lots of hair and a beard. The father in fact had neither lots of hair nor a beard (although he had grown a beard for the fourth session with the child’s psychologist). Whilst the child happily chatted to her father and appeared very comfortable with him, she did not identify the respondent as her father or the father that lived in her imagination. Given the child’s nature however, the Family Consultant was of the view that a reestablishment of a relationship between the child and her father could have been possible.
The paternal grandparents have not made contact with the child since 19 February 2012. The paternal grandparents live in the H region but have not participated in these proceedings.
Both the mother and father come from Country D and have significant family ties there. The mother has her mother, three sisters and two brothers in City I.
The mother says that her recent visit to Country D went well. The mother says the child has developed a “close and loving relationship with [her] extended family in Country D.”
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, to spend time with the child, and to communicate with the child (s60CC(3)(c))
The mother has arranged for the father to telephone the child on numerous occasions. The mother says that the father has regularly failed to telephone at the agreed dates and times.
Annexure E to the mother’s affidavit sworn 27 January 2013 and Annexure C to the mother’s affidavit sworn 27 July 2012 are copies of the letters she sent to the father advising of her holidays to Country D in August 2012 and December 2012. The mother annexed a copy of her itinerary in each case.
The extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child (s60CC(3)(ca))
As at 4 December 2012, the father was in child support arrears in the sum of $3,118.01. The father did send the child a birthday present in January 2013. The father has been in arrears in child support for a significant proportion of the time since he was first assessed to pay. Child support arrears of $1,338 were paid on or about 9 August 2013. The Child Support Agency advised the mother however that this was most likely an Australian Taxation Office deduction rather than a voluntary payment and that no arrangements had been entered into for future payments. The current assessment is $31.92 per month. The financial support of the child continues to be mostly the responsibility of the mother.
The father claimed in his affidavit at paragraph 69 that he would seek casual employment in order to meet his child support obligations. Counsel for the mother made the point that, given that the father has been unemployed for a lengthy time, he can hardly claim that he can be optimistic about his future employment prospects in Australia.
Although the father told the Family Consultant that previously he had been in full-time employment when living in Country D, he claims that his employment prospects in Country D would be poor and he certainly indicates that he is not prepared to return to Country D.
The father also refers in paragraph 90 to the mother receiving funds gifted to her and to her siblings from the maternal grandmother and that he has "made no claim on the money to this point" even though he had "sought legal advice" about it. The father made the point that the mother seemed to have the funds to go to Country D regularly.
Likely effect of any change in the child’s circumstances (s60CC(3)(d))
The mother proposes to relocate with the child to Country D.
In this case there can be no question of the child being separated from the mother, her primary carer. The child's relationship with her father has already been significantly weakened by the infrequency of time spent together, particularly the lack of face to face time. Given his past failure and lack of commitment to spending time with and having a relationship with the child, were the mother and child to live in Country D it is unlikely that there would be any significant effect on the child from the physical separation from her father.
In the early period after their final separation the father consistently did not attend to spend time as arranged with the effect that the child was often distraught and hysterical (see paragraph 47 of the mother’s affidavit sworn 28 May 2012).
Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))
The mother proposes the parties reside in different countries. There will clearly be significant difficulties and expense for the child to spend time with the father.
The mother points to the limited contact between the child and the father and says that “there would be no greater difficulty in facilitating such communication whether the child was living in Country D or Australia.”
If and when the father travels to Country D to see the child, it is likely that his airfare would be his only expense. He has a significant family network in Country D. On his paternal side, he has two aunts, two uncles, their spouses and a number of cousins. On his maternal side, he has one aunt and her partner.
The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))
The mother has demonstrated a capacity to provide for the child’s needs. I have already referred to the fact that her affidavits sets out her proposals for schooling and education in Country D.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i))
The father told the Family Consultant that he planned to see the child at a contact centre and then move to unsupervised time. He was given all of the necessary information by the Family Consultant who expressed the opinion that if the father failed to follow through with this plan, then his future ability to maintain regular and consistent contact with the child would need to be questioned.
The father has not followed up on these matters and has made no attempt to arrange time with the child.
He has not complied with the Court's orders made on 6 September 2013 to file a Response and updating affidavit.
The mother has in the past attempted many times to reintroduce the child to her father. For example she gives seven occasions when she tried to arrange for him to see the child during April and May 2012 (see paragraph 24 her affidavit sworn 27 January 2013). The father largely does not deny the mother's attempts to invite him spend time with the child.
The father's general excuse has been simply to blame the mother for his inconsistency, inaction and failure to maintain a relationship with the child.
It appears that late in June or early in July 2013 the father went on holiday to Country J. So far as the mother is aware, he continues to assert that he is unemployed. Counsel for the mother submitted that the Court must question his priorities given the minimal child support he is assessed to pay and the fact that he does not pay.
The recurring theme from the father's affidavit and interview with the Family Consultant is that he seeks to blame the mother entirely for his failure to see the child and provide consistent parental care and contact.
No letters have been written on his behalf by lawyers seeking restoration of time, no demands are recorded in correspondence and it would appear that when he did consult a lawyer it was about whether he could claim a share of monies gifted to the mother, not about parenting proceedings.
The father did not ever initiate parenting proceedings. Counsel for the mother points to the fact that apart from filing an affidavit, attending on the Family Consultant for an interview and being in court on two occasions, he has been impassive in relation to seeing the child for many years. The father did however attend upon Ms E on four occasions.
Any family violence involving the children or a member of the child’s family (s60CC(3)(j) and(k))
There is no history of family violence.
Likelihood of order leading to further proceedings (s60CC(3)(l))
An order made in the terms as sought by the mother is likely to lead to the finalisation of these proceedings and is an order which is likely to lessen the prospects of further proceedings.
Any other relevant fact or circumstance (s60CC(3)(m))
The father has had significant gambling and alcohol problems for many years. He has sought treatment in the past but it appears he is not currently receiving any treatment. These issues are described at paragraphs 72 to 81 of the mother’s affidavit sworn 27 September 2013. As directed, the mother has filed a bundle of subpoenaed medical records that support her contentions about these matters (see Exhibit 5).
EQUAL SHARED PARENTAL RESPONSIBILITY
The mother seeks sole parental responsibility. In situations where there is no family violence, the FLA creates a presumption in favour of an order being made for equal shared parental responsibility. That presumption may be rebutted if the court finds it is in the best interests of the child to do so.
Notwithstanding what the father has said in his affidavit, the father has demonstrated a concerted lack of interest in spending time with and communicating with the child and has ceased to be involved in these proceedings.
I am satisfied that the parents are unable to communicate on important matters. The Family Consultant opined to that effect and that both parties agreed that their level of communication was extremely poor. The facts of the case certainly support that. She also noted that the parties remain highly distrustful of one another and against this background shared parental responsibility would not only be impracticable but would be likely lead to further conflict. She says in paragraph 29 of her report that a total lack of communication and high level of distrust between the parents is troubling and will impact negatively on any future arrangements for the child to spend time with the father, irrespective of whether or not she is permitted to relocate.
I find that the presumption of equal shared parental responsibility is rebutted and that it is in the child’s best interest that the mother have sole parental responsibility.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Although I am not mandated to consider it, the large geographical distance between the parties and their inability to communicate mitigates against an order for equal time or substantial and significant time.
CONCLUSION ABOUT BEST INTERESTS
The mother is the child's unchallenged primary parent and currently in a position where she is for practical purposes (but not through her own choice) the sole parent to the child. The mother’s well-being is a high priority in those circumstances.
The mother has very few connections with Australia and no family ties other than the fact that the father lives here. The mother feels desperately alone and isolated in Australia. She hopes to be reunited with her family in Country D and tells the Court that she can rely on her family to assist her with the care of the child.
In the second paragraph of the letter received on 6 March 2012 (Annexure E to the mother's affidavit sworn 27 July 2012) the father conceded that:
87.1.The mother is a wonderful mother;
87.2.The mother clearly was not happy living in Australia, especially due to the "deep effect" the death of her father was having on her mother;
87.3.He had no intention of positioning himself in a situation where he was directly responsible for placing the child in any more uncomfortable an environment than is already the case, and that to do so was clearly not in the interests of his daughter.
Whilst the Family Consultant opines that the mother would have the emotional resilience to accept a decision that she must remain living Australia so that the child may have regular time with her father, if the father does not maintain consistent and regular contact with the child it is likely the mother would have significant difficulties in accepting that she must remain here in such circumstances.
If the mother and the child were to remain in Australia, this would not preserve any long-standing arrangement for frequent and regular time with her father. There has never been any regular pattern of care of the child by her father and there is no reason to find that he would be prepared to change. He has had ample opportunity to demonstrate that to date.
The family consultant opines and I accept that the father’s vulnerabilities arising from his gambling addiction are connected to the lack of responsibility he has shown in involving himself in the child’s life.
I find it is in the child’s best interests to live with the mother and that she be allowed to return to Country D with her mother.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 4 November 2013.
Associate:
Date: 15.11.13
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