Lenehan and Lenehan
[2017] FCCA 3307
•4 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LENEHAN & LENEHAN | [2017] FCCA 3307 |
| Catchwords: FAMILY LAW – Parenting – two children aged 5 years & 7 weeks – relocation of mother with child to (omitted) – another child of relationship born since relocation – mother refuses to return even if child ordered to return to the region – child diagnosed with autism – concerns about mother’s ability to provide for emotional needs of child – allegations of family violence – transfer of proceedings – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Applicant: | MR LENEHAN |
| Respondent: | MS LENEHAN |
| File Number: | NCC 3076 of 2017 |
| Judgment of: | Judge Middleton |
| Hearing date: | 4 December 2017 |
| Date of Last Submission: | 4 December 2017 |
| Delivered at: | Wauchope |
| Delivered on: | 4 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | East Coast Law |
| Counsel for the Respondent: | Ms Cullen |
| Solicitors for the Respondent: | Focus Family Law |
ORDERS
The matter be transferred to the Maroochydore Circuit of the Federal Circuit Court Brisbane.
The children X born (omitted) 2012 and Y born (omitted) 2017 (“the children”) live with the Mother.
The children spend time and communicate with the Father each alternate weekend as follows:
(a)With X from Saturday 9.00am until Sunday 5.00pm; and
(b)With Y for one (1) hour on both Saturday and Sunday as agreed and failing agreement from 9.00am until 10.00am on both days.
The child X spend time and communicate with the Father by telephone, Facetime or Skype every Sunday and Thursday between 7.00pm and 7.30pm.
The children be permitted to remain on the (omitted) until further Order.
The parties and the children attend upon a Family Report writer on the (omitted) to provide a recommendation to the Court regarding ongoing parenting arrangements for the children.
The Father’s costs for today are reserved.
Both parties contact Harmony House on the (omitted) with a view to engaging in an intake session for the purpose of changeover being facilitated at Harmony House.
For the purpose of changeover the Mother is to deliver the children to Harmony House at the commencement of time and the Mother is to collect the children from Harmony House at the conclusion of time.
Both parents comply with all reasonable directions of the directors and/or staff of Harmony House.
IT IS NOTED that publication of this judgment under the pseudonym Lenehan & Lenehan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WAUCHOPE |
NCC 3076 of 2017
| MR LENEHAN |
Applicant
And
| MS LENEHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The father seeks a recovery order for the child X born (omitted) 2012. She is now aged five.
There is another child of the relationship, Y born (omitted) 2017, who the mother has unilaterally decided to call Y.
Orders sought
The father seeks orders that the mother spend alternate weekends and half school holidays on an interim basis should the child live with him in the (omitted) area. He seeks no orders in the alternative.
The mother seeks the following orders that:
a)The children live with her;
b)The matter be transferred to the Maroochydore circuit of the Federal Circuit Court, Brisbane registry;
c)The child, X born (omitted) 2012, be known as X;
d)The children spend time and communicate with the father every alternate weekend at the (omitted) Family Contact Centre (Harmony House) on a supervised basis for one hour at the start with Y and X with supervised time bookended and one hour at the end with Y and X supervised, then for five hours unsupervised time with X between the supervised bookended time for Y and X;
e)The children spend time and communicate with the father by telephone, Facetime or Skype every Sunday and Thursday between 7:00pm and 7:30pm;
f)The children be permitted to remain on the (omitted) with the mother;
g)The children and the parties attend upon a Family Report writer on the (omitted) to provide a recommendation to the Court regarding ongoing parenting arrangements for the children;
h)The applicant pay the mother’s costs.
Background
The parties commenced cohabitation in about 2007. They married on (omitted) 2009.
The mother says the parties separated between 13 March 2013 and 27 May 2013. The mother says that thereafter, her and the child X lived in Victoria for about fifteen months, although the parties were again in a relationship.
The parties separated on a final basis with the mother unilaterally deciding to abscond with the child, X, whilst eight months’ pregnant with the parties’ second child in (omitted) of this year.
The mother then obtained an Interim Apprehended Domestic Violence Order in Queensland without any knowledge of the father.
The mother had the child diagnosed with autism on 6 September 2017.
The mother also alleges serious psychological harm and provides examples of the father jokingly stealing food off the child’s plate, insisting that the child eat breakfast and threatening to put pepper on the child’s eggs.
The mother says that the father continues to try to involve the child in adult issues. She gives an example of the father having answered the child’s question as to when he could visit, the father then having asked the mother when that might occur and indicating that he could hop in the car straight away.
Instead of answering, the mother decided to inform the father “my solicitor will get back to you tomorrow.” Yet the mother alleges that it is the father that embroils the child in adult issues. One would have thought a reasonable human would have simply answered the question. Nevertheless, they are the mother’s allegations.
The mother also raises allegations in relation to the father’s mental health. She provides absolutely no evidence at all to support such allegations.
The mother also says that she feels intimidated by the father sending the child presents. That seems to be the height of the allegations of family violence.
One wonders what was said in the application before the Magistrate in Queensland to grant an interim application. I am sure that will all become apparent in the fullness of time.
The mother met the father on 29 August 2017 and informed him that she was leaving town and thereafter left. The father says this is not the first time that has happened. He says it is the third time that has happened.
The father says the mother has no family or friends on the (omitted). The mother says she does because her mother and stepfather intend on moving there. No timeframe has been given at all for when this move will occur. The mother also maintains that another relative lives in the rather large state of Queensland.
The father has travelled to (omitted) on the (omitted) twice since separation.
Both parties have now left the (omitted) address.
The father says he has made available one of the parties’ homes in (omitted) so that the mother can return. He does not, however, seek a coercive order.
The mother says she will not return, even if X is ordered to return.
The parties both give some evidence as to having owned a reasonable amount of property and resources.
The parties both describe themselves as “comfortable.” They both have capacity to travel, although the mother has the care of a very young child and is recovering from a caesarean section birth.
The law
The child’s best interests are my paramount concern in recovery applications. [1]
[1] Family Law Act 1975 (Cth) s 60CA.
Turning to the primary considerations, both parents acknowledged that there will be a benefit to the children in having a meaningful relationship with both parents.[2]
[2] Family Law Act 1975 (Cth) s 60CC(2)(a).
I have some concerns over the bona fides of the mother suggesting that though, noting the orders that she seeks and the steps that she has taken so far to remove the father from the children’s life.
There is nothing contained within the affidavit material that would satisfy me that either child is at risk in the father’s home.
I have grave concerns about the mother’s ability to focus on the needs of the children and whether her self-focus will ultimately lead to one or both of the children suffering psychological harm in the future. [3]
[3] Ibid s 60CC(2)(b).
There is no evidence to satisfy me that the father’s time with Y needs to be supervised.
Both parties say that they have a good, secure relationship with the child X.
The father has had a severely limited relationship with Y, due to the mother’s own actions. The mother says she is the primary attachment. The evidence, at this stage, satisfies me, on balance, that she is the primary attachment.[4]
[4] Ibid s 60CC(3)(b).
There is a practical difficulty and expense involved in the children spending time with the father or mother, again, caused by the mother’s unilateral decision. However, both the father and mother say they can afford to travel often. [5]
[5] Ibid s 60CC(3)(e).
The mother alleges that the father cannot meet the emotional needs of the child.[6] That is yet to be determined, but on the strength of the allegations raised thus far, a serious question mark must be had over the mother’s allegation.
[6] Ibid s 60CC(3)(f).
Having regard to the mother’s decisions, that she unilaterally decided to call Y by a different surname and ultimately seeks to remove a reference to the father by way of name change for both children, I have serious doubts as to the mother’s capacity to meet the ongoing emotional needs of the children.
I also have grave concerns about the mother’s attitude and responsibility towards parenthood.[7] She strikes me as a self-focused manipulative woman who places her needs above that of her child.
[7] Ibid s 60CC(3)(i).
This matter turns, however, on the fact that X now has a brother, Y, a very young child who must stay with his mother. It is unwise and generally not in children’s best interests for siblings to be separated.
It is for this reason, and I must say reluctantly, that in real terms the only order I can make is for the children to remain living with the mother on the (omitted).
As I do not want the father being accused of family violence at changeover, and I really do have some grave concerns about the mother’s bona fides in that regard, I will make an order for changeover to occur at Harmony House.
Costs
The father’s costs of today are reserved. The mother’s costs of today are not reserved. This application was brought about as a result of the mother’s unilateral decision. The father has been put to great expense.
The children are now in a very difficult situation as a result of the mother. All of those matters should be considered ultimately when costs are ordered.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 30 January 2018
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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