MAITLAND & MARSDEN

[2015] FCCA 1968

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAITLAND & MARSDEN [2015] FCCA 1968

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975, s.60CC

Morgan & Miles [2007] FamCA 1230

Applicant: MR MAITLAND

Respondent: MS MARSDEN

File Number: MLC 3911 of 2015

Judgment of: Judge Small

Hearing date: 12 June 2015

Date of Last Submission: 12 June 2015

Delivered at: Dandenong

Delivered on: 12 June 2015

REPRESENTATION

Counsel for the Applicant: Ms J. E. Williams

Solicitors for the Applicant: Mitchell Family Law

Counsel for the Respondent: Mr J. M. Salamanca

Solicitors for the Respondent: Sayer Jones

ORDERS

1. The oral application for production of the father's affidavit sworn 29 April 2015 is dismissed.

2. Leave is granted to the father to withdraw the Notice of Risk filed 5 May 2015.

3. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 15 December 2015 at 9.45am for Directions.

4. The parties and the child [X] born [omitted] 2012 (“the child”) shall attend upon a Family Consultant nominated by the parties, the costs to be borne 2/3 by the Father and 1/3 by the Mother, for the purposes of the preparation of a Family Report to be attached to an Affidavit sworn by the Family Consultant and filed no later than 35 days before the next hearing date.

5. The Family Report to deal with the following matters:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)the likely effect on the child if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

6. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant. 

7. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

8. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

9. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

10. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

11. The father’s cost of $3500.00 and $2200.00 be fixed and reserved in relation to today’s hearing and the hearing on 9 June 2015 respectively.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The child [X] ("[X]") born [omitted] 2012 shall live with the mother.

2. The mother shall return the child's place of residence to the Melbourne metropolitan area within 21 days and shall establish that place of residence no more than 20 kilometres from [E].

3. The child shall spend time and communicate with the father:

   (a)Each week from 5.00pm Wednesday to 8.30pm Thursday and until the mother relocates to Melbourne, she shall deliver the child to and collect him from the father's residence.

   (b)Each alternate weekend from 5.00pm Friday to 5.00pm Sunday.

   (c)By skype, facetime or other such electronic means each alternate Sunday and Friday on the weekend he is not spending time with the father, by agreement between the parties and failing agreement from 5.00pm to 5.30pm with the father to make the call and the mother to ensure the child is available to take the call and has access to an appropriate device to do so;

   (d)At other times by agreement between the parties in writing.

4. Changeover until the mother relocates to Melbourne for the purposes of 14 (b) shall take place at the McDonalds restaurant [address omitted].

5. The father shall pay the security bond and the first three months’ rent for the mother's accommodation in Melbourne.

6. Subject to paragraph 14(a) hereof changeover shall take place at an agreed venue and failing agreement at the McDonalds restaurant closest to the midway point between the parties’ residences.

7. Both parties shall attend a Post Separating Parenting Course and provide proof of completion to the other's solicitor.

8. The father shall attend Men's Behavioural Change Program and provide proof of completion to the mother's solicitor.

9. Both parties are restrained by injunction from:

   (a)Ingesting or being under the influence of any illicit substance;

   (b)Drinking alcohol to excess (ie. having breath alcohol reading of .05 or more) within 24 hours of the child being in their respective care;

   (c)abusing, insulting, belittling, rebuking or otherwise denigrating the other; and

   (d)discussing these proceedings, to or in the presence or hearing of the said child or any of them and from permitting any other person to do so.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3911 of 2015

MR MAITLAND

Applicant

And

MS MARSDEN

Respondent

REASONS FOR JUDGMENT

1. [X] was born [omitted] 2012.  He is now two and a half years old.  Ever since he was born, [X] has lived with his mother and there is no suggestion that he should not continue to live with his mother.  His mother is very clearly a dedicated parent who loves her little boy very much. 

2. The father likewise has demonstrated that he is a man who is very determined to be a good father to [X] and has exercised time with him since the separation of the parties which was some time in 2013.  That is a matter of dispute.  We can talk about that at trial.

3. I have made it very clear to the parties that today I cannot make findings of fact.  These parties, as I said, separated in 2013, either in March or in May – sometime in the first half of that year, and between then and April of this year, [X] spent time with his father on what could be called an ad hoc arrangement. 

4. It was a bit more than that.  There was an arrangement between the parties which was worked out in mediation, in family dispute resolution and in counselling with Mr P, a child and family psychologist.  So it wasn’t actually ad hoc.  There was some sort of arrangement, but certainly no orders were made in relation to [X].

5. Both parties deposed as to there having been difficulties during that time in communication in their relationship.  The mother says that the father has a controlling and coercive personality, that he, during the relationship, prevented her from pursuing her career to the extent that she would have liked to, and that he was particular in the way that he controlled her life, even to the extent of whether she could pick [X] up when he was upset and to how often he should be breast-fed.

6. The father says that the mother suffers from an alcohol dependence and the very strong implication of his affidavit evidence is that her parenting capacity is therefore impaired.  The mother denies that vociferously and she does present corroborative evidence in the form of affidavits from two doctors who have seen her regularly over that time and, particularly, from the obstetrician who saw her before [X]’s birth, Dr S, who sets out that he was unaware of any impairment to the mother and that, in fact, she was very healthy throughout the pregnancy.

7. But as I said, I cannot make findings of fact here.  All I can do is look at the evidence and look at the law, most particularly, and determine what is in [X]’s best interests at this time. What the law tells me is that I must look at the proposals of the parties.

8. The father’s proposal – and he is the applicant in these proceedings – is for an order that the mother return to the [E] area, that she live somewhere within 10 kilometres of that area, and that he return, essentially, to the times that he was seeing [X] before April of this year.

9. What happened in April of this year is that Ms Marsden, knowing that the father disapproved of her move, moved to [C] to live with her now-fiancé and she took [X] with her.  It is her evidence, which is not contradicted by any other evidence, that she has been in a relationship with Mr M, who is a [occupation omitted] which is near [C], for about the last 10 months, since about August 2014, and that in April of 2015 she moved to [C] to live with Mr M.  Mr M has bought a house for her and [X] and him to live in and they are attempting to have a family themselves through the IVF process.

10. The time that has been spent between the father and [X] in the some six weeks between that permanent move and now has been quite fraught.  Because there are no orders, and because Ms Marsden has been in [C] and Mr Maitland has been in Melbourne, the time has been changed and it is put to me by the father that, therefore, I should order that

    
    

    Ms Marsden return to Melbourne and that he should spend specified time with [X].

11. Ms Marsden seeks an order that I allow her to remain in [C] with [X] and she says that if I do that her proposal is that the parties work on a three-weekly cycle whereby [X] would spend, in weeks 1 and 3, the Friday to Sunday with his father, and an overnight on the Wednesday of week 2.  That would provide – it’s difficult – we usually talk about fortnights and numbers of nights per fortnight and I cannot do that on a three week cycle.  But it does provide some substantial time with the father.

12. The father says that his relationship with [X] will be very badly impacted if he cannot see him more often than that; that he had been seeing him twice or three times a week until April this year; and that that has created and allowed him to develop a close and attached relationship with [X].  That is not disputed by the mother.  She says that she understands that [X]’s father is an important part of his life and that she wishes for [X] to continue that relationship and develop it further.  She says that she wishes to remain in [C] and that that is where her future lies.

13. As I have said, this is an interim hearing.  Any orders I make today will be interim orders and any orders I make today may be totally different from orders I might make at the end of a trial when I have further information, such as a family report, and all the evidence has been tested.  I can then make findings of fact, but today I cannot.

14. Ms Williams for the father has referred me to the case of Morgan & Miles, a decision of a single judge sitting as the Full Court – if I can put it that way – as the Appeal Court in the Family Court in 2007, where Boland J said, particularly referring to a case like this where it is an abridged interim hearing – that it was only in circumstances of great urgency that an already concluded move should be allowed to stand.  I think that is a reasonable summary of what Boland J said in paragraph 88 of that judgment.

15. This is not an easy case.  We have a two and a half year old little boy who lives with his mother, who has always lived with his mother.  There is no doubt that he will continue to live with his mother, at least at this point.  But he also needs his father and his father says that his relationship with [X] will be damaged if he cannot spend time with him as he has before.

16. Now, when the court is looking at making parenting orders, the Act makes it very clear that the child’s best interests are to be the paramount concern of the court.  Now, that does not mean that they are the only concern of the court, but they must be at the forefront of the court’s mind when I am looking at what arrangements to make for [X]. 

17. In looking at what constitutes a child’s best interests, I am guided by the matters that are set out in s.60CC in the Act and there are two primary considerations, and the first of those primary considerations is the benefit to a child of having a meaningful relationship with both that child’s parents. Clearly, this little boy, [X], has a meaningful relationship with both his parents. He has spent considerable time with both his parents and there is benefit to him in having a relationship with both his parents.

18. The parents themselves – it almost does not need to be said – do not get on – we would not be here if the parents got on – and they cannot decide themselves on the situation that ought to pertain. If I order the mother to come back to Melbourne, and I make orders that provide for substantial time with the father, then the mother and [X] can live at [C] between now and the trial for some of the time and live in Melbourne for some of the time.

19. The issue here is not where the mother lives; it is the time and the convenience and the practicality – I must emphasise that – that this is not just about what is in [X]’s best interests;  it is about what is practical.  And at the moment, it does not appear to me to be practical for this little boy to making such travel.  It is a long way in anybody’s language and on anybody’s case, and I find it difficult to see how it is in [X]’s best interests at the age of two and a half.  He will not be two and a half when we come back to trial and, as I said, having heard all of the evidence, a different decision may be made at trial.

20. But at the moment, there is no emergency forcing the mother to move to [C].  It is something that she wishes; it is something that she says is in [X]’s long-term interests, and that may be the case.  It may be that it is in [X]’s best interest to live in [C] with his mother and his new stepfather and any half-siblings that he may have in the future. 

21. But at this point in time, there is no evidence as to a detriment to the mother, other than in convenience terms and in her desire terms, in her moving back to Melbourne. When I look at the matters that I need to look at in s.60CC subsection (2), there is no evidence that this child is in danger or is at risk of harm, other than from the dispute between the parents. And in those circumstances, the benefit of this child of having a meaningful relationship with his father must take precedence.

22. I will say – and I say this as much for the trial as I do for this hearing – that the question of what is a meaningful relationship has been discussed many times in this court and the Family Court, and the one thing that I can say about the definition of the word “meaningful” is that it is a qualitative definition; it is not a quantitative definition.  The ability to have a meaningful relationship with a child does not depend on the amount of time that one spends with him; it is about the quality of that time and that relationship.

23. Nevertheless, when I look at all the matters that are set out in s.60CC, subsection (3) – and I will not go through all 16 of them or all 14 of them at this time – but I consider at the fact that there is a clear relationship between [X] and his father. The separation of [X] from his paternal grandmother is another I must consider under the Act. I must consider the attitude to parenthood of both parents and their attitude to the child.

24. And I have to say that, it is not a matter – as Mr Salamanca, who acted for the mother until 3 pm this afternoon – but as he said, it is not a matter of punishing the mother for relocating unilaterally – which she did – I do not think there is any doubt about that. 

25. The evidence is that the mother told the father on 8 April 2015 that she was going to relocate in a couple of weeks, and that on 9 April the father instructed his solicitor to write a letter to her expressing his opposition to that move.  So she can have been in no two minds that that move was opposed, and still she moved because she thought it was the best thing for her and for [X].  I have no doubt of that.  I have no doubt that the mother’s motives for the move have been anything but positive and what she considers to be in [X]’s best interests.

26. But when I consider all the things that I need to consider under the Act, and when I consider the difficulties that have been in place in the last six weeks since the move – and I accept, absolutely, that there were no orders in place and that those difficulties may well have simply been because of the ad hoc nature of the arrangements between the parents – but when I consider everything as a whole, on balance, at this time, without all the evidence before me, I think it is appropriate for the mother to find appropriate accommodation in Melbourne, for there to be some substantial time between the father and the child, while also allowing for there to be a life in [C]. 

27. I think that is the balance.  And if I can say this, that a judge’s life is about balance – that decisions that judges make are always about balance.  Things are never black and white in this court.  It is never a case of being able to say, “Well, she is right, he is wrong or he is right, she is wrong, and therefore that is what I am going to decide.”  It is always a question of balance.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  20 July 2015