Martin & Neal

[2008] FamCA 1077

FAMILY COURT OF AUSTRALIA

MARTIN & NEAL [2008] FamCA 1077

FAMILY LAW – CHILDREN – Best interests – International relocation

Family Law Act 1975 (Cth) s 60CC

A v A: A Relocation Approach (2000) FLC 93-035
AMS v AIF (1999) CLR 160
U v U (2002) 191 ALR 289

APPLICANT: Mr Martin

RESPONDENT: Ms Neal

FILE NUMBER: BRF 3434 of 2004

DATE DELIVERED: 11 August 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 11 August 2008

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Thiele

SOLICITOR FOR THE RESPONDENT:

Anthony Black Family Lawyers

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Bourke

INDEPENDENT CHILDREN'S LAWYER:

Anthea Walsh, Solicitor, Legal Aid Queensland

Orders

IT IS ORDERED

1. In the terms of Annexure A.

2. The original minute of orders signed by the parties be placed and kept on the Court file.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

4. The independent children’s lawyer is dismissed.

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

ANNEXURE A

1. That the child, … born …February 2000 live with the Mother.

2. That the Mother have sole parental responsibility for the major long term issues concerning the child.

3. That in the event the Mother requires to obtain or renew a passport for the child:

   3.1.the Mother shall send a passport application for the child (completed except as to the Mother’s residential address and telephone contact details) by ordinary pre-paid post to the Father at his last known address for service in Australia being … in the State of New South Wales or such other address that the Father notifies to the Mother in writing;

   3.2.should the Mother not receive the passport application signed by the Father by return within twenty-one (21) days of the date of posting the application to the Father, then the requirement for the Father’s signature upon the passport application be dispensed with.

4. That the Mother keep the Father informed at all times of her postal address through which she can be contacted for all notices pursuant to these Orders.

5. That the Father keep the Mother informed at all times of his postal address through which he can be contacted for all notices pursuant to these Orders.

6. That the Mother permit the child to receive from the Father appropriate gifts and photographs and appropriately worded letters and cards and to respond if he wishes.

7. That the Mother provide to the Father copies of the child’s school reports by sending a copy of each report by ordinary pre-paid post within 14 days of receipt, with the Mother permitted to delete from the copy of any report provided to the Father any details identifying the school and the contact details for the Mother.

8. That the Mother promptly keep the Father informed in writing of any serious health problems encountered by the child.

9. That from 1 January 2009 the Mother be permitted to relocate the child to the United States of America.

10. That the Mother be permitted to take the child to the United States of America for the purpose of a holiday for a period of not longer than 14 days prior to 1 January 2009.

11. That the Mother be permitted to retain the child’s passport and the Family Court of Australia release the child’s passport to the Mother.

12. That the Mother forthwith arrange for the child to attend upon Mr S or such counsellor or child psychologist (the child counsellor) as recommended by him for therapeutic intervention as recommended in paragraph 36 of the report of Ms B, Family Consultant, dated 4 August 2008.

13. That within twenty-eight (28) days the Mother inform the independent children’s lawyer of the name and contact details of the counsellor or child psychologist engaged to provide counselling to the child pursuant to Order 12 of these Orders and that within seven (7) days of receiving notice from the Mother the independent children’s lawyer shall provide copies of the reports of Ms B dated 4 August 2008 and 12 September 2007 and Mr C dated 6 April 2007 and  8 December 2005 to the person providing the counselling to the child.

14. That the Mother cause the child to be in the Brisbane metropolitan area for a minimum period of one (1) week in July or August of each even numbered year and to give the Father and to the Manager of the Child Dispute Service at the Brisbane Registry of the Family Court of Australia not less than eight (8) weeks written notice of the dates of such period.

15. That the Father give to the Mother and to the Manager of the Child Dispute Service at the Brisbane Registry of the Family Court of Australia four (4) weeks’ written notice of his intention to spend time with the child in accordance with Order 16 of these Orders, in default of which the obligation upon the Mother by Order 14 be discharged.

16. That during the period set out in Order 14 of these Orders the Father shall spend time with the child for one (1) period of up to four (4) hours at the Family Court of Australia at Brisbane with such time to be supervised by a family consultant appointed pursuant to Section 65L of the Family Law Act 1975 (Cth).

17. That the family consultant appointed pursuant to Order 16 of these Orders is to arrange the date, time and duration of the time spent by the Father with the child at the Court counselling section of the Family Court of Australia at Brisbane.

FAMILY COURT OF AUSTRALIA AT BRISBANE

File Number: BRF 3434 of 2004

MR MARTIN

Applicant

And

MS NEAL

Respondent

REASONS FOR JUDGMENT

Applications

1. By amended application filed on 28 July 2006, the father seeks parenting orders in relation to the child, born in February 2000, now 8½ years, including that he live with the mother, spend supervised time with and communicate with the father as set out in that application, continued information in relation to addresses and telephone numbers, joint parental responsibility concerning the child and that the mother be restrained from removing the child from Australia without the written consent of the father.

2. By amended response filed on 30 May 2008, the mother seeks parenting orders including that she have sole parental responsibility for the child, the child not spend time with the father, there be no communication between the child and the father, the father be restrained from contacting or approaching the child or the mother, the mother be permitted to relocate the child to the United States of America and other relief including in relation to the issue of a passport for the child and an overseas holiday to the United States of America for the child before the relocation.

Father’s non appearance at the trial – procedural fairness

1. On 25 June 2008 I ordered:

   3.The father must appear at the trial in person and if he does not appear:

   (a) his application filed on 20 November 2006 (sic) as amended will be dismissed; and

   (b) the matter otherwise will proceed under Rule 11.02(2)(c) of the Family Law Rules (Cth) for the mother's application, by her amended response filed on 30 May 2008, to be determined on the undefended basis for final parenting orders concerning the child.

2. On 25 June 2008, Schofield Muir, solicitors and barristers of Newcastle in New South Wales, were the solicitors on the record for the father.  However, neither Schofield Muir nor the father appeared on that date.

3. By open letter to the Court from Schofield Muir dated 14 July 2008, exhibit 3, Schofield Muir apologised to the Court and explained that a notice of ceasing to act had been forwarded but returned by the Court for a procedural reason and contained the following:

   On 12 June, 2008 I had a telephone conversation with [the father’s] treating General Medical Practitioner, Dr [H].  In no uncertain terms Dr [H] informed me that he had not recommended or advised the subject procedure to [the father], that [the father] had gone off his medication, contrary to Dr [H’s] advice, and had chosen to have the subject procedure performed in Thailand and was making his own arrangements in relation to it.  At the time I spoke to him Dr [H] had no understanding of the nature or extent of the proceedings which are listed for trial commencing on 11 August, 2008.  Unfortunately [the father] had told me none of this but had led me to believe that the subject procedure was recommended by his treating Doctors.  I wrote to [the father] on 13 June, 2008 advising of my conversation with Dr [H] and seeking his earliest instructions as a consequence.  On the same day I spoke to Ms Suzuki of our Brisbane Agents and advised her of the position.

   Since I was on leave the following week I left my office on 4 pm on Friday 13 June, 2008.  [The father] came to my office the same day after I had left and my secretary handed my letter to him that day.  He also then informed her that he was leaving Australia for Bangkok on 20 June, 2008 in any event and that he would be out of Australia for some ten to twelve weeks.  He advised my secretary that he was unable to provide any medical support for the subject procedure but that he had booked his trip and intended to go to Thailand in any event. (emphasis added)

4. The reference to Dr H, and to a medical procedure to be undertaken by the father are the subject of extensive evidence to which presently I need not refer.

5. Some of the matters contained in the letter, including parts which I have extracted, ordinarily would attract legal professional privilege. However, as I have said, the letter was an open letter to the Court. Importantly, Schofield Muir, by that letter, communicated to the Court the father’s intention to be in Thailand not Australia, for 2½ or 3 months following 20 June 2008, which period included the allocated and notified trial dates, 11-15 August 2008.  See the orders made on 29 April 2008, in particular order 4, made while Schofield Muir were the father’s solicitors on the record. 

6. On 26 June 2008, the day after the 25 June 2008 listing, Schofield Muir filed a notice of ceasing to act for the father.  In that notice,  the last known address for service for the father was given as …, New South Wales. 

7. In an affidavit filed by the father on 1 April 2008 he deposed that his residential address was the same as that address.  That address thus is the last known residential address for the father known to the parties and the Court. 

8. I am satisfied that the father is aware of the trial dates fixed by order 4 of my orders made on 29 April 2008.  At that stage, as I have said, Schofield Muir were the solicitors on the record for the father, and he appeared on that date by Mr Linklater-Steele of Counsel. 

9. Since that date the father had made application for an adjournment of the allocated trial dates, 11-15 August 2008, as to which on 11 June 2008 I made directions, and on 25 June 2008 ordered:

   1.The father's application for an adjournment of the trial listed to commence on Monday 11 August 2008 is dismissed.

10. Further, the father's father, by an affidavit lodged for filing in the Registry and filed by leave given by me today has sworn, expressly, that is made pursuant to what he described as a “written authority, delegated, signed and duly witnessed” by the father on 19 June 2008 “the eve of his departure to Bangkok”. (See par 3 of that affidavit and annexure DFM-01.) The timing of the lodging of that affidavit indicates awareness by the father of the imminence of the trial dates, and that the trial would proceed during his absence in Thailand. 

11. It is plain to me, from the matters to which I have referred, that the father is aware of the trial dates, and has been so aware since or soon after the trial dates were allocated.

12. It appears that the father may be in Thailand for medical treatment.  The history of the evidence concerning the medical treatment, or the father's need for it, is unsatisfactory.  See the transcript of the proceedings 25 June 2008 at 12/38-13/45 which I will incorporate by reference into these brief reasons. 

13. The father's trial affidavit filed on 1 April 2008 deposes that in 2002 he was diagnosed with bowel cancer, that it has been treated since, and that as at the date of swearing that affidavit he had been in remission for three months, that affidavit having been sworn in March 2008.  He annexed to the affidavit, as annexures B and C, documents provided by Dr H, to whom I have referred already, dated 11 March 2005 and 4 August 2005 as to the status then of his health. 

14. However, further to the matters set out in the Schofield Muir letter, exhibit 3, to which I have referred already, Dr H since has sworn an affidavit filed by leave today by the independent children's lawyer deposing that the father is a patient of his and swearing to certain documents obtained by the independent children's lawyer by subpoena to Dr H, in particular a letter prepared by Dr H to the Court and documents from Dr H’s file.  The first, annexure B, is a document to which I referred and took into account in refusing the application for the adjournment to which I have referred.  The document comprising annexure C includes progress notes, one of which seems to be an entry for a date in May 2008 including the words “Off to Thailand. Wants letter for faecal colitis to avoid Court issue”.

15. It will be plain, from my reference to the father's amended application, his trial affidavit and the affidavit of his father filed by leave today, that despite the father's absence, I have looked at his trial material and indeed have given anxious consideration as to the father's state of health, as to whether I ought proceed today with the matter, or further adjourn it, particularly having regard to the mother’s application, by her response, that she be permitted to relocate the child to the United States of America. 

16. The most recent information given to the Court on the father’s behalf is the following information in his father's affidavit filed by leave today.  At par 2, the father’s father says that the father is presently “unavailable” and to the best of the deponent's knowledge is “temporarily incapacitated through medical evaluation and treatment for a chronic bowel condition in Bangkok, Thailand commenced on Saturday 21 June 2008”.  In par 7 it is deposed that the father is and remains “extremely ill” and “continues to suffer from the same severe medical condition” that he has suffered for some time as to which the deponent's own synopsis is given. There are several other matters in the affidavit which I have taken into account but to which I need not specifically refer.

17. Invariably, if people are ill or have medical conditions such that they cannot attend at Court, adjournments are granted until they are well enough to attend.  This is a fundamental requirement of procedural fairness. However, in this particular case, the father's claim that he cannot attend the trial for the necessity to have medical treatment in Thailand is not supported by admissible evidence adduced on behalf of the father, nor by the evidence of Dr H, the father's own treating medical practitioner, by any evidence that in his view the father's attendance in Thailand for a medical procedure or procedures is necessary such that the father, for medical reasons, cannot be available to attend the trial. 

18. In the course of this matter being on my docket I have noticed that the father, on his first appearance in the courtroom, was a sturdy and well built man, indeed a sportsman by hobby or profession, who on his next appearance, which was the last occasion on which personally he was in courtroom, was of slight build having suffered great weight loss.  There is no doubt, on the evidence, that he has been diagnosed with and has suffered and perhaps is continuing to suffer the development of bowel cancer, however, the Court must act on the evidence, and whilst I am satisfied that the father has had and quite possibly still does have bowel cancer or other bowel conditions of various descriptions referred to in the material, I am not satisfied on any admissible evidence that he cannot be here for the trial.  I will, therefore, give effect to the order which I made on 25 June 2008 and proceed with the mother’s application, by her amended response, on the undefended basis.

Child’s best interests

1. It is plain that the child's best interests are the paramount consideration and that I must give effect to the objects of the Family Law Act 1975 (Cth) and the principles underlying the objects, set out in s 60B of the Act, in considering appropriate parenting orders for the child.

2. The mother and the independent children's lawyer helpfully have prepared a set of proposed parenting orders.  Throughout several hours this morning I dealt with those proposed orders with Counsel who, over the lunch hour, have further settled them and provided them to me as being mutually sought.  Those orders, of course, cannot be made by consent in the absence of the father, and I must therefore exercise my independent discretion as to what parenting orders will be in the child's best interests.

3. In relation to parental responsibility, I am satisfied that the presumption does not apply because of the mother's allegations of a history of severe violence involving herself and the father such that on any view there are reasonable grounds to believe that a parent of the child, namely the father, has engaged in family violence.  I am not satisfied otherwise that despite the presumption not applying on the face of the statute that it would be in the child's best interests for there to be an order for equal shared parental responsibility.  In particular,  as detailed in the two reports of Mr C, psychologist (see his affidavits filed on 12 December 2005 and 18 April 2007), and the two reports of Ms B, family consultant (see her affidavit filed on 29 April 2008 and ex 1 in today’s proceedings), the child has spent very little time with the father for several years, and on the last occasion, in the protected environment of the Family Court, the child was resistant to seeing the father and, indeed, expressed fear of him.

4. The mother, from past experiences alleged by her of violence from the father, could not, in my view, participate in an equal shared parental responsibility role with him.  The child's best interests, in my view, would be served by the mother having sole parental responsibility for the child, particularly in the circumstances which I have just outlined, to which I would add that the father is a convicted child sexual offender.

5. I turn then to the s 60CC matters. 

6. The child does not have a meaningful relationship with the father, as to which I would refer to Ms B’s second report (ex 1), par 33, third sentence and her recommendations.  The thrust of the provision in relation to whether the child has a meaningful relationship with a parent is whether there would be benefit to a child of having a meaningful relationship with that parent.  The matters to which I have referred cast doubt that at the present time there would be benefit to the child of having a meaningful relationship with the father, however, as the child is very young, now only 8½ years, that may of course well change in the future.  As will be seen, in the orders proposed, there is also to be some therapeutic intervention for the child in this regard which may change that circumstance for the future but not presently. 

7. The first report of Ms B, pars 8, 10, 12, 17 and 21, show that the child, in interview with Ms B, and in the presence of the father, expressed fear of him and other matters set out in those paragraphs.

1. There is insufficient on the evidence for me to make a finding that there is a need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in relation to the father.  As I have mentioned, the father is a convicted child sex offender. This is a matter to be carefully considered, in relation to which I would refer to the careful analyses of Mr C, psychologist, in his two reports to which I have referred. I would refer also to the notice of child abuse or risk of child abuse filed by the mother on 28 January 2005, as to which I need not make findings, the matter being undefended, but I note nonetheless the contents of the notice.

2. The child's views as expressed to Ms B in her first report at pars 12, 16 and 17 do not favour his spending time with the father.  However, the child is only 8½ years, and it is recognised in the evidence, in particular in the second report of Ms B, that fairly inevitably the child, to some extent, absorbs the mother's views.

3. As to the child's relationships, I have dealt already with the child's relationship with the father.  His relationship with the mother is close, she having been always and still his primary carer and with whom the child has always lived.  The child also has a close relationship with the maternal grandparents who are present in Court today and each of whom has sworn an affidavit in the mother's case.  The child, in recent times, has met and developed a rapport and good relationship with the mother's fiancée, Mr W, a resident of the United States of America, and an American citizen, to whom the mother is engaged to be married. 

4. As to willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, it is not to be avoided that the serious history of family violence alleged by the mother has left her with difficulty in supporting a relationship between the child and the father.  The father's willingness and ability in this regard is an academic question, having regard to the fact that he and the child have had little time together for several years. 

5. The mother, as I have mentioned, seeks not only that the child live with her but that she be permitted to relocate the child to the United States of America where she proposes to marry Mr W and have the child live with herself and Mr W as a family unit.  The likely impact on this of the child was canvassed by Ms B in her second report 4 August 2008, wherein she said that a relocation to the United States would not detract from any positive relationship the child has with the father because there is no relationship between the child and the father, but that a move to the United States would prohibit any immediate opportunities for the child to form a meaningful and ongoing relationship with the father, although she added that she was not confident that the father is in a healthy position to offer the child a safe, nurturing and ongoing relationship presently.  Apart from these observations by Ms B, there are the fairly obvious likely effects of change: change of country, change of school, change of school system, change of peer group, and absence from frequent contact with the child’s maternal grandparents.  There would also be for the child a change from knowing Mr W as the mother's friend and fiancée, to living with Mr W and his mother as a family unit, the child not having in recent times shared his mother in a living environment with another person.  However, having noted these things, there is little to be said, apart from observing that there is no indication on the evidence that the child would not adapt to these changes.

6. The matter of practical difficulty and expense raises the obvious matter that the United States is a considerable distance from Australia and thus, if and when the father returns from Bangkok after his treatment, which I understand from the evidence to be 10 or 12 weeks after 20 June, if I permit the mother to relocate the child to the United States there will be a considerable geographical distance between the child and the father.  In practical terms, however, as I have mentioned, the father and the child have had little contact with each other for some time.  The mother, by way of the orders proposed mutually with the independent children's lawyer, necessarily would be funding travel for the child, no doubt accompanied by herself, to Australia, at least in each alternate year, to facilitate the child spending time with the father as set out in the proposed orders, so that any expense associated with the proposed relocation would not impact upon the father.

7. As to capacity to provide for the child's needs, including his emotional and intellectual needs, the mother has proved that capacity by her continued care of the child and his state of health and welfare at the present time.  The father's capacity to so provide is less clear.  In Ms B’s first report, at par 37 she described the father as follows:

   37.His demonstrated traits of narcissism, lack of insight into his intrusive behaviours, inability to empathise with another individual causes me to be concerned for [the child’s] psychological and emotional safety if he were to spend time with his father currently. …

   This is not reflective of a confident prediction that the father presently has the capacity to provide for the child's needs, including emotional needs, as to which I would refer further to other paragraphs of Ms B’s first report as to the father showing little concern for the child's feelings as opposed to his own.

8. As to the child's maturity, sex, lifestyle and background, it has been mentioned that he is an 8½ year old male child whose lifestyle and background is unremarkable, save that he has for a father a convicted child sex offender and a person whom the mother says has been so violent in the past to her that she continues to be afraid of him.  It is necessary to state that the father always has proclaimed his innocence of the sexual matters the subject of his conviction despite the dismissal of an appeal.  He continues, however, diligently to seek to prove his innocence by reliance upon new DNA evidence and, in particular, an opinion he has obtained from a DNA expert that the DNA evidence included as part of the case against him, in which he was convicted, was unreliable.  The fact remains, however, that the conviction has been made and not overturned on appeal.

9. The parties' attitude to the child, and to the responsibilities of parenthood, have been sufficiently canvassed already. 

10. There has not been family violence involving the child.  I have referred, however, to family violence alleged by the mother against the father.  In relation to this, it is pertinent to refer to par 34 of Ms B’s second report:

    34. Given [the mother’s] experiences and her gallant and successful achievements to create a safe and secure future for herself and [the child], it is my opinion that her desire to leave Australia and start a new life with Mr [W] in the United States of America will assist her in psychologically and emotionally breaking away from her past and move forward.  It is also my opinion that this move will assist her to present [the child] with a less emotive and a more pragmatic view of [the father] that will not threaten her sense of safety but enhance [the child’s] sense of self as he creates his own life story.  I am therefore of the opinion that to enable [the mother] and [the child] to relocate to the United States of America would be in the best interest of the child.

    The mother's allegations of family violence, of course, have been untested, there not having been cross examination in the trial, however, that is not a reason for me to not have regard to Ms B’s own observations concerning the mother and the child.  In this regard, I would refer again to the notice of child abuse or risk of child abuse filed by the mother on 28 January 2005, and to her evidence in her trial affidavit as to some of those matters, however, as I have said, they are untested, and as the mother’s proceedings are undefended, it is not necessary to make findings. Nonetheless, I note consistency in the allegations by the mother.

11. It is not possible, I think, to predict in this particular case the order that would be least likely to lead to the institution of further proceedings in relation to the child, first, having regard to his age, and secondly, because if I am to permit the mother to relocate the child to the United States of America, it is uncertain what may ensue from there in relation to further applications by the father in relation to the child, either here or there.  However, it is necessary nonetheless to achieve finality of the current proceedings.

12. Having considered the statutory matters which I am required to consider, all of the evidence, and the submissions, and assisted greatly by Mr Thiele of Counsel for the mother, and Mr Bourke of Counsel for the independent children's lawyer, I have no hesitation in determining that the parenting orders proposed by the mother and the independent children's lawyer are in the child's best interests and I will make those orders.  In particular, the orders give effect to the careful recommendations of Ms B at pars 35-38 of her second report, including that the mother not relocate until the end of this year, specified in the orders as 1 January 2009, and that between now and then the mother arrange for the child to attend upon Mr S or such other counsellor or child psychologist as may be recommended by him for therapeutic intervention as recommended in par 36 of Ms B’s report. The orders provide also that the mother return the child to Australia for one week in July or August of each even numbered year, and give eight weeks prior notice to the father and the Manager, Child Dispute Services at the Brisbane Registry of the Court, to allow the child to spend with the father one period of up to four hours on each such visit, the father to give written notice to the mother within four weeks of the mother's notice of whether he intends to attend.

13. The orders deal with the child’s passport and the mother’s ability to renew it without the father’s consent, necessary to facilitate the child’s travel.

14. In matters relating to international relocation I am required to consider the advantages/benefits and disadvantages/detriments of each of the parties' proposals.  See AMS v AIF (1999) CLR 160 at 218 per Hayne J; A v A: A Relocation Approach (2000) FLC 93-035 (FC) at [108]; U v U (2002) 191 ALR 289 at [73], [74] and [80] per Gummow and Callinan JJ, with whom Gleeson CJ at [1] and Hayne J at [169] agreed, especially at [80]. Thus, in acceding to the orders proposed by the mother and the independent children’s lawyer, and in determining the child’s best interests, I take into account also the following.

15. The advantages/benefits to the child of the relocation are that he will come to live in a family unit again, which he has not for some time, comprising his mother, Mr W and himself, and have the benefit of the happiness that the mother and Mr W clearly presently are enjoying. The disadvantages/detriments for the child are that he will be placed at a geographical distance considerably further away from his father, thus making it more difficult for there to be the development of any meaningful relationship between the child and the father, however, that must be put completely in context and, in particular, in the context that for reasons already explained the child and the father for several years have not enjoyed such a relationship. Further, Ms B, as I have mentioned, presently is not confident that such a relationship would be likely to develop between the child and the father even if I did not permit the relocation. 

    ORDERS DELIVERED

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable O'Reilly J

Associate: 

Date: