Kirner and Forrester (No.3)

[2019] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRNER & FORRESTER (No.3) [2019] FCCA 1463

Catchwords:
FAMILY LAW – Parenting – best interests of the child – right to meaningful relationship with both parents – where father has obsessive concern for child because maternal grandparent resides with a partner convicted of possession of child pornography – no unacceptable risk of harm if child resides with mother.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS KIRNER

Respondent: MR FORRESTER

File Number: DNC 123 of 2017

Judgment of: Judge Young

Hearing date: 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Darwin

Delivered on: 8 May 2019

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: In Person

Counsel for the Respondent: In Person

Solicitors for the Respondent: In Person

Council for the Independent Children’s Lawyer: Mr Stirk

Solicitors for the Independent Children’s Lawyer: PoveyStirk Lawyers

ORDERS

1. That all previous Orders be discharged.

2. That the parties have equal shared parental responsibility for the child [X] born … 2012 (“the child”) save and except for matters contained in Order 3 herein.

3. That the mother have sole parental responsibility for the child in all matters relating to the child’s visa and migration applications including obtaining a passport.

4. That the child shall live with the mother.

5. That the mother be permitted to relocate the residence of the child to Melbourne, Victoria after 31 December 2019.

6. That prior to the child’s relocation to Melbourne the child shall spend time with the father as follows:

   (a)During school terms, commencing Friday 10 May 2019, from after school Friday to before school Monday (or Tuesday if Monday is a public holiday) each alternate week, with changeover to take place at school; and

   (b)Half of all school holidays, being the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years, provided that the father is available to personally care for the child, with changeover to take place at school if a school day or, if not, at a children’s contact centre to be nominated by the mother.

7. That in the event the father does not relocate to Melbourne after 31 December 2019, the child shall spend time with the father as follows:

   (a)For the first week of the holidays at the end of Term 1, 2, 3 and with the child to be placed on a flight on the first Saturday after the holiday commences and to be placed on the return flight on the following Saturday; and

   (b)For the first half of the holidays at the end of Term 4 (Christmas holidays) in even numbered years and the second half of the holidays in odd numbered years; and

   (c)Provided the father is available to personally care for the child for the entirety of the child’s time with him.

8. The parties will share in the cost of airfares as follows:

   (a)With the father to book and pay for the child to travel from Melbourne to Darwin and provide an itinerary and ticket to the mother at least 60 days prior to the child’s departure;

   (b)Upon receipt of the itinerary and ticket from the father, the mother will book and pay for the child’s return airfare from Darwin to Melbourne;

   (c)Each party will pay for an accompanying adult during travel they are required to book and pay for until the child is no longer required to be accompanied; and

   (d)That if the father does not book and pay for the airfare from Melbourne to Darwin and provide an itinerary to the mother 60 days prior to the child’s time spent then the child shall not time with the father.

9. For the purpose of calculating school holidays, school holidays commence on the first Saturday after the conclusion of the school term and conclude on the Sunday immediately preceding the recommencement of the following school term.

10. That in the event the father relocates to Melbourne, the child shall spend time with the father on the same terms as set out in Order 6.

11. In addition to the time provided for in Order 6 the child shall spend time with the father on the child’s birthday, but only if the birthday and the following day are school days, from after school on the birthday to before school the next day.

12. That the parties communicate with the child at all reasonable times and in default of agreement as follows:

    (a)Between 6pm and 7pm each Wednesday and Friday with the party with whom the child is living to instigate the telephone, FaceTime or Skype call to the to the non-resident party; and

    (b)The mother be permitted to terminate the telephone call if she deems the topic to be inappropriate

13. That the child be permitted to travel intrastate and interstate with the either parent during the time the child spends with that parent, provided that parent provides to the other a telephone number or numbers where the child may be called whilst they are intrastate or interstate so that the child can communicate with the other parent at all reasonable times.

14. That the child’s passport remain in the mother’s possession.

15. That the parties MS KIRNER born … 1979 and MR FORRESTER born … 1977, and their servants or agents be and are hereby restrained from removing or attempting to remove of causing or permitting the removal of the child [X] (male) born … 2012 from the Commonwealth of Australia.

16. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for 5 years.

17. That upon expiration of the period referred to in Order 16 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

18. That the parties will:

    (a)Communicate by text, email or “Our Family Wizard” except in the event of an emergency when communication will be by telephone;

    (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change; and

    (c)Advise each other of any medical or other emergency involving either of the children whilst in their respective care.

19. That a copy of these Orders authorises the child’s school and medical practitioners to provide to each of the parties:

    (a)Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children; and

    (b)Copies of medical reports including any referrals, information regarding any medical condition suffered by either of the children, including treatment and any other information or material concerning the health and wellbeing of the children.

20. That both parties shall do all acts and things to download and install the “Our Family Wizard” application on their respective smart telephones and/or tablets, sharing equally in the cost of the subscription and agree that all communication and information sharing regarding the child shall be via this application.

21. That each parent be restrained by injunction and an injunction issue restraining the parties from:

    (a)denigrating the other party or the party’s partner or members of that party’s family in the presence of or within the hearing of the child or any of them and each parent remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family;

    (b)discussing the court proceedings with the child or allowing the child to read or view any court documents;

    (c)posting matters relating to the child or these proceedings on Facebook or any other social media;

    (d)permitting the child to come into contact with Mr A; and

    (e)permitting, encouraging or allowing any third person, including but not limited to Ms B, the maternal grandmother, from permitting, encouraging or allowing the child to come into contact with Mr A.

NOTING

The maternal grandmother, Ms B, has entered into an undertaking not to allow the child to see or come into contact directly or indirectly with Mr A and the mother has undertaken to file the original of the undertaking with the Court forthwith.

IT IS NOTED that publication of this judgment under the pseudonym Kirner & Forrester (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 123 of 2017

MS KIRNER

Applicant

And

MR FORRESTER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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

2. This is a parenting case about a child, [X], who is seven years old.  The applicant mother initially sought orders that she have sole parental responsibility for the child and that she be permitted to relocate to Melbourne with the child.  She sought orders that the child spend time with the father as may be agreed.

3. In her final submissions the mother sought orders that the parties have shared parental responsibility but the mother have sole parental responsibility in all matters relating to the child’s visa and migration issues, including the child’s passport.

4. She also sought an order that she be permitted to relocate to Melbourne with the child and sought orders that pending her relocation to Melbourne, subject to the father producing a clean drug test result, the child spend from Friday after school to Monday before school on alternate weekends with the father.

5. She also sought orders for the child to spend school holiday time with the father, increasing from four days in each holiday to half of terms one, two and three holidays and two weeks of the Christmas holiday beginning in 2022. 

6. The Independent Children’s Lawyer (“ICL”) in general supported the mother’s proposal but submitted that the drug test requirement was not necessary.

7. The father’s response filed in December 2017 sought orders for shared parental responsibility and that the child live with the father and spend half the school holidays with the mother.  The father did not comply with the order of the Court to file an outline of case and did not say what orders, if any, he sought other than these.  He did not file a trial affidavit either but relied on his original affidavit filed on 4 December 2017.

8. The background to the case is as follows.  The parties are Country D citizens.  The mother came to Australia in 2009 and the father came to Australia in 2011.  The mother has, in addition to [X], a 19 year old son from a previous relationship who is studying in Melbourne.  Both parties have applied for permanent residency in Australia but those applications, I was told, are apparently waiting resolution of this case.  Both parties seemed reasonably confident that their permanent residency application would be successful.

9. This is of some significance because, at an earlier point, the father appears to have been concerned that after the parties’ separation in September 2016 he would be forced to return to Country D.  He refused to sign documents to permit the mother to apply for a visa for the child.  On 28 May 2018 I ordered the father to sign necessary documents and I understand he has done so.  The migration issues appear to have resolved, so far as they can be short of a grant of permanent residency to both parties.

10. Following separation, the child spent regular weekend time with the father from Friday to Sunday with consent orders to that effect being made on 29 May 2018.  Those arrangements continued until 12 December 2018 when the father withheld the child in breach of orders.  The mother applied for a recovery order and, in addition, complained that the father, in breach of earlier consent orders made on 7 April 2017, had failed to undergo monthly drug testing requested by the mother’s lawyers.

11. The matter came on for hearing before me on 14 December 2018.  The father offered the following explanations of his conduct. Firstly, in relation to the failure to undergo the drug test, he acknowledged he had received the request, he had undertaken the test and it was positive for cannabis.  He said, for reasons that I do not understand, that he felt that he did not need to provide the results to the mother’s lawyers or the ICL, who was by that stage appointed.

12. This is of some significance because at that time the only evidence about cannabis use for the father was his affidavit of 4 December 2017 where he deposed that he had used cannabis since he was 16 years old but he said, at paragraph 80 of that affidavit, that he had given up cannabis completely after receiving advice from his lawyers.

13. The father was cross-examined on that subject and admitted to continuing cannabis use.  He also admitted to cannabis use while the child was in his care.  I am satisfied the father continues to be a regular cannabis user and he sees no reason to cease cannabis use.  I am satisfied that his regular cannabis use has some effect on his ability to care for and focus on the child’s needs and probably some effect on his emotional availability for the child.

14. Nevertheless, the father continues in regular employment and appears to be well-regarded by his employer who is, according to the father, prepared to support the father in further education and training.  There was no concrete evidence that the father’s cannabis use has any significantly detrimental impact on his parenting capacity.  The father said he does not use alcohol.

15. The other matter that was dealt with on 14 December 2018 was the father’s withholding of the child.  The father said he felt justified in withholding the child for the best part of a week because the maternal grandmother was visiting the mother in Darwin.  The father said that he believed the child was at risk of what he called “sexual exploitation”.

16. The background to that allegation is as follows.  The partner of the maternal grandmother is a Mr A.  The maternal grandmother has lived in Australia for some time. The mother completed a substantial part of her schooling in Australia although she met the father in Country D. In 2009 the mother came to Australia and the father followed in 2011. Initially they lived with the maternal grandmother and Mr A.  The father discovered Mr A in possession of child pornography and reported the matter to the police.  Mr A was arrested and charged and ultimately convicted of possession of child pornography.

17. The mother and father were, according to the father and the mother did not significantly disagree with this, driven from the house.  Eventually they moved to the Northern Territory in 2012 and ceased living together in 2016.  It appears that the mother and the maternal grandmother have re-established their relationship and there is evidence that the mother and Mr A have communicated about these proceedings, especially about money, which Mr A appears to have lent to the mother in order to pay her lawyers at different times.

18. Disappointingly, the mother said in an affidavit that she did not communicate with Mr A. That was not true although there is no evidence that the communication was about anything other than these proceedings and the mother’s need for money.  The mother, to her credit, freely admitted her affidavit on that point had been misleading.

19. An injunctive order was directed to the mother at an earlier point in these proceedings that she not permit the child to have anything to do with Mr A or to come in contact with him.  There is no evidence that the mother has not complied with that order.  Further, the maternal grandmother travelled alone to Darwin in 2018 without Mr A, who remained in Melbourne.  There was, in my view, no objective risk to the child when the maternal grandmother travelled to Darwin and spent time with the mother and no breach of any order made by this Court by the mother.

20. There is no justification for the father withholding the child.  His conduct was impetuous and high-handed, qualities that the father has displayed on other occasions.  Given the father’s deliberate defiance of orders, I was concerned about his mental health.  I made orders that, pending a hair follicle drug test and a psychological assessment, the child’s time with the father should be supervised at CatholicCare.

21. During that hearing the father also undertook to comply with all orders of the Court.  The child was not at school at the time those orders were made but at the father’s workplace.  The mother went to the workplace to recover the child.  The precise circumstances are unclear but the manager at the father’s workplace, it was said to me, refused to deliver up the child and while negotiations continued with the manager, the father drove off with the child.

22. The mother and the ICL came back to Court after that and told me what had happened.  I attempted to telephone the father from the Court but there was no answer.  I then made an ex parte recovery order and suspended the orders for the child to spend time with the father, pending provision by the father of a psychological assessment.

23. The father is very critical of the mother and the ICL, contesting their version of events, but he has not filed any affidavit material to explain his conduct.  The father did not provide a psychological assessment and cited the prohibitive expense of doing so.  The ICL subsequently obtained a report from the father’s counsellor at Anglicare who had been counselling the father in relation to an order that he undertake counselling for anger management.  The counsellor’s opinion was that the father did not suffer from any mental illness. However, the counsellor observed, after referring to the father’s experience in Country D, that:

    I consider [the father’s] almost obsessive protective instincts to be the result of socialisation rather than a symptom of mental health.

24. The counsellor said that after some discussion the father said that the mother “probably did have a protective instinct for [the child]” but he was still concerned about a risk from the mother’s family.  In evidence and submissions the father repeatedly emphasised his concern on this subject.  He did not appear to unequivocally accept the mother’s genuine intention to protect the child.  I am concerned about whether the father is able to think rationally on this subject.  On balance, I do not believe he is.  I find his fears, although probably genuine, are not reasonable.

25. I am satisfied the mother is aware of the risk from Mr A and will act protectively towards the child.  The maternal grandmother did not give any evidence but has filed an undertaking that she will not permit the child to have any contact with Mr A.  I find there is no unacceptable risk of the child being brought into contact with Mr A and thereby being exposed to harm.

26. There were some other issues, including medical issues, that were canvassed in the trial.  Both parties have been critical of the other in relation to the child’s eczema.  It is apparent that this has been a difficult issue, particularly as the parties were for a period not eligible to access Medicare.  However, according to a report annexed to the mother’s affidavit, the eczema is now properly treated.  I am unable to make any finding about the quality of care offered by each parent in relation to this issue or accept the criticism each has made at different times of the other parent’s care.

27. There was some suggestion that the child displayed some autistic traits, but the child is attending school and there does not appear to be any other indication of this.  During the preparation of the family report, the family consultant, Ms E, thought that the child was cognitively advanced for his age and demonstrated excellent language and communication skills.  In my view, that subject does not require further attention.

1. The father alleged that the mother did not support the child’s relationship with him.  There are some indications that the mother has been intolerant of the father’s conduct at times, justifiably in my view.  The father is very focused on his own wishes and at times high-handed and dismissive of the mother’s concerns.  The mother freely acknowledges that the child loves his father and, to use her word, “longed” for a relationship with his father.  In my view, the mother has been supportive and continues to be supportive of the child’s relationship with his father but is intolerant of the father’s high-handed and at times selfish conduct.

2. There have been two family reports prepared in this matter, one dated 30 April 2018 and the other dated 21 January 2019, prepared by different consultants.  Both family consultants observed the child to be strongly attached to both parents.  The earlier family report noted the father’s preoccupation with Mr A but concluded that the father’s anxiety was unsurprising in the circumstances.  I accept that assessment.

3. In 2018 the family consultant considered that the mother’s proposal to relocate to Melbourne should be reassessed in 12 months’ time and it is, of course, now more than 12 months since that recommendation was made.  The reason for the family consultant’s recommendation in this regard was that she was concerned that the father’s visa status may not permit him to relocate to follow the child to Melbourne. 

4. It appears the parties decided to come to the Northern Territory to accelerate their permanent residency eligibility.  The family consultant was concerned that the mother’s return to Melbourne may have unpredictable consequences for the child’s relationship with his father.

5. The second family report generally agreed with the observations in the first report about the relationship of the child and his parents, a strong relationship in both cases, and as between the parents, hostile and without trust.  The author of the second family report, however, took the view that the visa status of the parents needed to be resolved before making any recommendation about relocation.

6. The mother said in her trial affidavit said that she, the child and Mr F, her 19 year old son, are currently on bridging visas pending finalisation of their applications for permanent residency.  The father has not filed any affidavit material since 2017 but, as I understood from his oral evidence, is in the same position as the mother.  His fear that the child would become a permanent resident but he would not and be forced to return to Country D has apparently abated.  However, it is clear that the situation is to some extent uncertain.  The mother’s evidence that the permanent residence application will not be resolved until this case has finished was not challenged.

7. I am satisfied in those circumstances that it is not possible or desirable to delay finalisation of this case.  The possible outcomes of the permanent residency applications are that both parents will be successful or, as the father originally feared, that the mother and the child will be successful but he will not.  Based on the father’s evidence, I am satisfied that the most likely outcome is that both parents will be successful.  In any event, I am satisfied that the child’s primary relationship is with the mother and he should continue to live with her.

8. Turning to the question of relocation, both parents moved to the Northern Territory to accelerate their eligibility for permanent residency.  The mother’s mother and the mother’s adult son live in Melbourne.  The mother wishes to move or return to Melbourne sometime after the end of this year, assuming her permanent residency application is successful.

9. The father gave no real evidence about this issue.  His primary focus appears to be on opposition to the mother moving to Melbourne because of his fear regarding Mr A.  He gave no evidence about the practicality of him moving to Melbourne, his employment opportunities or otherwise in Melbourne.  The father’s background is in customer service.  He has worked internationally and is customer service officer in Darwin.  There was no evidence to suggest he could not successfully relocate to Melbourne and obtain employment.

10. I should say something about credibility.  I have some reservations about the credibility of both parents.  As the mother conceded, some of her earlier affidavit evidence was false.  The father’s evidence often showed him attempting to display his position to advantage but while that is to be expected perhaps, I am not satisfied that he was always reliable.  I generally found the mother to be a more reliable witness than the father.

11. In deciding a parenting a case, this Court must follow the legislative pathway set out in Part VII the Family Law Act.  The child’s best interests are paramount.  The child’s best interests are determined by reference to matters in section 60CC(2) and (3).  The primary considerations are (a) the benefit to the child of a meaningful relationship with both of the child’s parents, and (b) the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence, with the greater weight to be given to (b).

12. I am satisfied the child has been exposed to family violence in the past when the parents lived together but I am satisfied that is no longer a consideration.  I am satisfied that the risk of abuse to the child from Mr A can be removed by ensuring that the child does not come into contact with him.  I am satisfied the child will benefit from a relationship with both parents.

13. Turning to the additional considerations in section 60CC(3):

14. (a)     Any views expressed by the child: It is clear that the child wishes to spend time with the father.  The mother said, as I have already mentioned, that the child “longed to see his father”. 

15. (b)     The nature of the child’s relationship with each of the child’s parents and any other persons, including grandparents or other relatives of the child: It is not an issue that the child has a strong relationship with both parents.  The mother gave evidence that the child has a good relationship with his older brother Mr F.  There is no real evidence of the child’s relationship with any other persons, including the maternal grandmother. 

16. (c)     The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in long-term decision making, spending time and communicating with the child: Both parents have sought to be involved in all aspects of the child’s life.

17. (ca)   The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child: There was some evidence from the mother that the father does not pay child support.  The father denied this.  There was no evidence of, for example, a ledger showing any outstanding amount owing for a child support assessment.  I am unable to make any finding about this subject.

18. (d)     The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or any other person with whom he has been living: The mother has been the primary carer of the child and proposes to relocate.  It is not in the child’s interest to be separated from the father but there is no evidence from the father that it was not practicable for him to move to Melbourne.  The child is presently separated from his older half-brother, Mr F, in Melbourne and it would be an advantage for the child to live in closer proximity to his brother.

19. (e)     The practical difficulty and expense of a child spending time with 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: As previously observed, I am satisfied that it is practicable for the father to move to Melbourne.  I am satisfied that this is likely, in the absence of any evidence to the contrary.  If the father remains in Darwin the child will spend school holiday time with the father. If the mother relocates the cost of travel will need to be shared.

20. (f)     The capacity of each of the child’s parents and any other person, including any grandparent or other relative, to provide for the needs of the child, including emotional and intellectual needs: I am satisfied the mother is a devoted and competent mother, able to provide for the child’s needs.  In my view, she is focused on the child’s needs emotionally and intellectually.  She appeared to me to be an intelligent, mature and generally well-balanced person.  I am satisfied she recognises the child’s need for a relationship with the father.  I am satisfied the father is a devoted parent.  However, I have significant reservations about his capacity to fully provide for the child's emotional and intellectual needs.  I am satisfied the father has exposed the child to conflict arising from this litigation.  An example is a text message to the child where he referred to "bad people" preventing the child from spending time with him after the child's time was suspended.

21. The father's obsession about the overarching need to protect the child, not only from Mr A, but from the maternal grandmother and the mother, concerns me greatly.  While this may be understandable and reflect cultural or other experiences, the father's suspicion of the mother, in particular, is exaggerated and, to my mind, obsessive.  I consider it overshadows the father's focus on the child's best interests.

22. (g) The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and of either of the child's parents and any other characteristics of the child that the Court thinks are relevant: The mother is, as I have observed, a mature person.  The father is less so, in my view.  He is a regular cannabis user but I am satisfied that that does not have a significantly detrimental impact on his capacity as a parent.  His counsellor suggests that his obsession-like behaviour about the risk to the child of sexual abuse, including from the mother, had a cultural source.  I am not sure I accept that view.  The particular source of the father's obsession-like attitude, especially to the mother, was unclear to me.

23. (h) The child is not an Aboriginal or Torres Strait Islander child.

24. (i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents: I have made some remarks about the parties under other headings.  I consider that the father's obsession has exposed the child to unnecessary conflict and that is not a responsible attitude to his obligations as a parent.

25. (j) Any family violence, and (k), I will deal with those together.  I am satisfied that the father has perpetrated family violence during the relationship.  There were a number of domestic violence orders made against the father during the relationship. There is an existing one which is in force until July 2019.  I do not find it necessary to make particular findings about each of the instances that have been alleged because I am satisfied that, while there was family violence during the relationship, the risk of that has greatly diminished since the parties have separated and have little to do with each other. 

26. I note (l) and (m).

27. As the mother has proposed there be shared parental responsibility, and I propose to make such an order, I am obliged to consider the matters in section 65DAA of the Family Law Act:

    a)I am satisfied an order for equal time is not in the child's best interests because of the incessant and unreasonable conflict between the parties, largely reflecting the father's attitude towards the mother, which I have already discussed. 

    b)I am satisfied that an equal time arrangement is not practicable, having regard to the matters set out in section 65DAA(5) and in particular (b) the parents current future capacity to implement an equal time arrangement and (c) the parents current and future capacity to communicate with each other, which I am satisfied are at a low level.

28. I make orders that the child spend substantial and significant time with the father, however, and I am satisfied that that is in the child's best interests.

29. I propose to make orders largely in line with the orders sought by the mother, with the exception of the requirement for the father to undergo further drug testing. 

30. These orders were, in substance, supported by the ICL.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 29 May 2019