MACALARY & PALANCA

[2020] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACALARY & PALANCA [2020] FCCA 1779

Catchwords:
FAMILY LAW – Parenting – contravention application alleging the father failed to comply with a consent order to undergo a hair follicle drug test for illicit substances – where the father claimed he had a reasonable excuse that he did not have the money to pay for the test – where the father was aware of the cost at the time the order was made – contravention proved.

FAMILY LAW – Parenting – best interests of the child – application concerning a child who has had a somewhat troubled background – where the child now lives with the mother and spends time with the father – what time the child is to spend with the father and at whose cost – where the mother claims the child displays signs of anxiety – where satisfied the father has the child’s best interests at heart – the child is to spend some school holiday time with the father – the parties are to equally share the costs of the child spending time with the father.

Legislation:  
Family Law Act 1975 (Cth)

Applicant: MS MACALARY

Respondent: MR PALANCA

File Number: DNC 439 of 2014

Judgment of: Judge Young

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Darwin

Delivered on: 18 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Czislowski

Solicitors for the Applicant: DS Family Law

Counsel for the Respondent: Mr Story

Solicitors for the Respondent: Story & Associates

ORDERS

1. The respondent MR PALANCA is convicted of contravening order 7 of the orders made by Judge Young on 8 May 2019 in terms of count one set forth in the Contravention Application filed on 10 September 2019 without reasonable excuse.

2. By way of penalty the respondent MR PALANCA do enter into a good behaviour bond to operate for a period of twelve (12 months and that it be a condition of that bond that he observe and comply with the requirements of all parenting orders of this Court and of the Family Court of Australia.

3. The respondent pay the applicant’s costs fixed in the sum of $1,300.00.

4. The other 21 counts alleged in the Contravention Application filed on 10 September 2019 do otherwise stand dismissed.

5. The child X born in 2013 (“X”) is to travel to Darwin to spend time with the father in the September/October 2020 school holidays for a period of 12 days on the condition that X is to be accompanied by the father or the paternal grandmother for the entirety of his air travel to and from Darwin.

6. Thereafter the consent orders below shall provide for X to travel unaccompanied to spend time with the father.

7. Costs of the travel for X to spend time with the father as per Orders 1 and 6 shall be split equally between the parties and shall not include the cost of any person accompanying X.

THE COURT FURTHER ORDERS BY CONSENT:

1. All other previous orders in this matter be and are hereby discharged.

2. The parties have equal shared parental responsibility for the child X born in 2013.

3. The child live with the mother.

4. That X spend time with the father:

   (a)subject to further Orders made by the Court, commencing 2020 and each alternate year thereafter, for the second half of the Christmas school holiday periods;

   (b)commencing 2021 and each intervening year thereafter, for the first half of the Christmas school holiday periods, to include Christmas Day;

   (c)commencing 2021 for the entire the mid-term school holiday periods;

   (d)for a period of up to 3 consecutive days and nights on non-school days at any other time in Victoria, on the provision of 14 days’ notice to the mother; and

   (e)at any other times as agreed.

5. The mother shall deliver and collect X from Melbourne Airport to facilitate his time with the father, and the father shall collect and return X to Darwin Airport, for his return to the mother.

6. Both parties have liberty to:

   (a)liaise and discuss the progress of X with all educational and health care professionals dealing with them and receive, directly from those professionals, medical and school reports, newsletters, school photo order phones and circulars relating to X;

   (b)where practicable, attend at and participate in functions and/or activities organised by any school attended by X as well as any sporting, educational or social events organised for him;

   (c)visit X in hospital in the event that he is hospitalised.

7. Both parties shall:

   (a)immediately inform the other of any significant injury or health problems suffered or hospitalisation required by X whilst in each party’s respective care;

   (b)save and except in the case of a medical emergency, obtain the other party’s written consent to any significant medical or surgical procedure for X;

   (c)inform the other by telephone, as soon as is practicable, of any emergency concerning X; and

   (d)keep each other informed of a landline and mobile telephone number and address at which the children can be contacted.

8. Each party has liberty to telephone or communicate otherwise electronically with X whilst in the other party’s care as agreed between the parties and failing agreement, in the first week, each Tuesday, Thursday and Sunday at 7.00pm EST and in the second week, Monday, Wednesday and Friday at 7.00pm EST, with the other party to facilitate that telephone contact. If scheduled time cannot take place the unable parent shall text the other advising of their inability to communicate as soon as practicable.

9. That either parent is permitted to take X on a holiday interstate or outside the Commonwealth of Australia during their school holiday time provided that:

   (a)that parent provides at least 28 days’ written notice (by email) to the other parent of the intent to take the child on holiday, together with a copy of the relevant tickets, proposed itinerary, address and telephone details where that parent and X may be contacted while on holidays and, for travel outside of the Commonwealth of Australia, a quote of comprehensive travel insurance for that parent and the child;

   (b)For travel outside of the Commonwealth of Australia, that the other parent consents in writing to the holiday within seven days of receiving notice. Consent for the holiday shall not be unreasonably withheld;

   (c)that parent provides, at least 14 days prior to travel, a final itinerary, address and telephone details where that parent and X may be contacted while on holidays and, for travel outside of the Commonwealth of Australia, confirmation of purchase of comprehensive travel insurance.

10. That both parents do all acts and things and sign all documents necessary to obtain and/or renew an Australian passports for X and, that for the purposes of this Order, the mother shall retain the passport and provide them to the father within 14 days’ of receiving a written request to do so, with the father to return the passports to the mother on return to Australia.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNC 439 of 2014

MS MACALARY

Applicant

And

MR PALANCA

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.

Contravention Application

1. This is a contravention application alleging that the father failed to comply with a consent order made on 8 May 2019 that, if required, he would undergo, within 48 hours of the making of the order, a hair follicle drug analysis test at his own expense.  The father failed to comply with that order, and he failed to comply with it in two respects, by:  

   a)not undergoing the test; and

   b)failing to file the results on affidavit.  

2. He has defended the matter on the basis that his breach of the order was reasonable, that is, there was a reasonable excuse.  The reasonable excuse he offered was that he did not have the money to pay for the test.  At the time he was employed and earning about $1000 a week.  He said that he was aware of the cost of the testing at the time he consented to orders, but, apparently sometime after the orders were made he changed his mind about his willingness to borrow money from his mother, which apparently had been his plan to fund the testing.  Five weeks later, he borrowed the money from his mother and undertook the test.

3. The test is not in evidence and, as far as I know, there has never been a clean hair follicle test filed by the father.  I have never seen a clean test, so the father continues to be in breach of that order, as far as I am concerned.  In all of the circumstances I am not satisfied there is a reasonable excuse and I find the contravention proved. 

4. The applicant seeks the imposition of a good behaviour bond and nothing more, which I propose to do.  The father will be required to enter into a good behaviour bond, which will be prepared by my associate, and he will be required to sign it for a period of 12 months.  The bond is to comply with future court orders.

5. I am also going to make an order that the father pay the applicant’s costs in the sum of $1,300.

Application in a Case

1. This is an application concerning a child, X, who is about seven and a half years’ old.  X has had a somewhat troubled background.  His mother and father separated after a quite short relationship in about 2014.  Sometime after separation X lived with his father and, indeed, X lived with his father until November 2019, a period of probably about five years after separation.

2. X’s mother appears to have had a somewhat troubled background.  At one point, I think from late 2015 to early 2017, she was convicted of criminal offences and sentenced to a period of imprisonment.  Her relationship with X was disrupted during that period but it appears that she did keep up a relationship with him and she in more recent times appears to have found stability in her own life.  She has re-partnered with Mr A and she and Mr A live in Town B in Victoria.

3. Initially, the proceeding came into this court on the basis that Ms Macalary was attempting to set up a regime whereby X could spend time with her.  In the course of last year however, the dynamics of the situation changed quite markedly and it was agreed that X would go to live with his mother in Victoria, along with Mr A, and that happened in November 2019.

4. Mr Palanca has said last year in particular X was showing some behavioural problems.  He was not paying attention at school and when young children do not pay attention at school for whatever reason, they often become disruptive and create some behavioural issues for everybody involved, including the child of course.  Mr Palanca also said that outside of school X was showing some behavioural issues.

5. Mr Palanca, I thought to his credit, conceded that he was not coping with X as well as he might have and he thought that X was not necessarily doing as well as he could in his care.  Mr Palanca agreed with Ms Macalary that X should go and live with his mother in Victoria.  While Mr Palanca appears to have a fair degree of hostility towards Ms Macalary for various reasons and was anxious at times in his evidence to criticise her, the one aspect of her behaviour that he did not criticise was her capacity as a mother.  Mr Palanca spoke very highly of Ms Macalary’s capacity as a mother and he acknowledges that X has done well living with his mother and Mr A in Victoria.

6. I am satisfied that Mr Palanca is a father who has his son’s best interests at heart and, essentially, I accept his evidence about X and his assessment of X’s capacities and his relationship with him.  I also accept that Ms Macalary has achieved stability in her life and she is now a person that is able to offer X a great deal.  That is clear from Mr Palanca’s evidence and X appears to be doing very well in her care.  There seems to be no reason why that should not continue, I certainly hope it does and I expect it will continue.

7. The difficulty in this case, I think, is that there is a fair degree of residual hostility between Ms Macalary and Mr Palanca and that gets in the way of things at times between them and I think it gets in the way of making clear assessments of what X’s needs are.  Obviously, not in all ways, but I am satisfied that that is the case in some ways and the fact that this case has required resolution by hearing is an instance of that. 

8. The actual dispute that I was called on to adjudicate on today was, in fact, in quite narrow terms.  It is simply the circumstances under which X should see his father.  The mother says that for the first visit, the father is to travel to Victoria and spend time with X in Victoria.  She relies on a report from Ms C, who is a psychologist, who says that she is treating X for anxiety.  It is a brief report, it was not based on any discussion with or interview of Mr Palanca and in that sense is one-sided.  I give that report some weight but I do not give it great weight, primarily because I consider it to be a point of view rather than a report based on a careful assessment of all of the evidence and interviews with the parties. 

9. I accept that X is displaying some degree of anxiety.  The source of that is unclear from Ms C’s report.  It is not said that X is anxious about seeing his father.  That would seem to be inconsistent with the other material, such as the family report and everything else which indicates that X, who lived with his father or in his father’s sole care for about five years, would have any reason to feel anxious about spending time with his father and, indeed, it was not put to Mr Palanca that that was the case.

10. While I accept that X is displaying some signs of anxiety and there were suggestions that he may suffer from attention deficit hyperactivity disorder (“ADHD”) or have an undiagnosed autism spectrum disorder, I cannot make any findings about that.  There is no evidence before me that any of that is the case but Mr Palanca acknowledged that this child has some characteristics of ADHD, which Mr Palanca said he suffered from himself as a child.

11. I do accept that X is operating with some levels of anxiety at the moment and I think that has to be taken into account in the travel arrangements.  I propose to make an order that X is to travel to Darwin in the September/October school holidays for a period of 12 days and I propose to make an order that X on that travel is to be accompanied by his father or the paternal grandmother, that is, one or both of them are to travel with X from Melbourne to Darwin and then from Melbourne back to Darwin.  That order is only in respect of the first visit.  Thereafter, I propose to make the consent orders which provide for the child to travel unaccompanied.  He will be somewhat older then and I would expect him to be able to travel unaccompanied. 

12. In relation to the cost of travel the mother put that she cannot afford to pay for the cost of travel and she relied on, in particular, the fact that she is mother to a newborn child who was born in this year and that her expenditure exceeds her income.  She also relied on the fact that Mr Palanca has not been giving very much child support of late, but it was not challenged that he has lost his job as a casual tradesman recently due to COVID-19 pandemic issues.  He says, however, he expects to be able to return to work, hopefully in the not too distant future. 

13. The mother gave evidence in cross-examination.  When she was asked whether she had given evidence at an earlier point in an affidavit that she had an interest in two businesses with her partner Mr A, she said that was incorrect, notwithstanding that she had affirmed an affidavit to that effect, her lawyer had put that in and it was simply wrong.  The clear implication in her evidence was that she did not have an interest in any such business.

14. Her financial statement, which was filed on 16 June 2020, says something somewhat different.  It says that she is currently employed as an admin officer by D Pty Ltd as trustee for the Mr A Family Trust.  Then, somewhat separately, at question 8 it said, “Are you self-employed?”  That is directed at persons who are not employees, in other words, people running their own businesses.  To the question “Are you self-employed” she has answered “yes”.  Question 8 also asked her to “state the name of the business/company/partnership/trust” and she answered “D Pty Ltd as trustee for the Mr A Family Trust.”

15. At Part D of the financial statement the mother said that she has income from a business, partnership or company trust, again D Pty Ltd as trustee for the Mr A Family Trust, and said that she receives income of $400 a week.  I asked the mother whether that indicated that she had an interest in the business.  She professed not to know whether she had an interest in the business but she did tell me that the money was paid as a dividend.  I am satisfied that the money would not be paid as a dividend unless she had an interest in the business, either as a beneficiary, discretionary or otherwise, of the family trust or in some other way.

16. The financial statement under Part I “Property owned by you” refers to the mother being the owner of two properties, one a property in Town B which I gather is the matrimonial home of the mother and Mr A and the other an address in Suburb E in Victoria where she is the joint owner with Mr A.  It is not said what that property is but it could well be an investment property, which might explain in part the other item of income that the mother said she receives, which is rent paid by a tenant of $183 a week. 

17. Another factor that I should mention is that while the mother says that her income is $708 a week, including a Family Tax Benefit of $125, she says her expenditure is $1,051, a discrepancy of some $343.  In other words, she is spending $343 a week more than she receives in income.  I would have expected that to be reflected in indebtedness, credit card or otherwise, but apart from mortgage debt, the financial statement refers to no debt whatsoever.

18. I give the mother’s financial statement limited weight.  I am not satisfied that she is unable to share equally in costs of this child’s travel and I propose to make an order that the cost of the child’s travel be shared equally between the parties.  That, of course, is not including any travel of any accompanying adult.  I am talking about the child only.

19. There is also the question of the September holiday.  I propose to make an order that the child spend 12 days of that September/October Victorian school holiday in Darwin with the father on the conditions that I have mentioned.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 1 July 2020